Environmental law update

The principle of sustainable development has been central to environmental and international law for well over 25 years. In view of its primary purpose to provide a fairer and more just society locally and in the wider world it is at least arguable that it should have been central to public, social and commercial law as well; but that's for another time. What is clear is that the term 'sustainable development' and its rationale of securing society's needs, rather than wants, or demands, is informing legal discussion and decision-making more and more.

The Brundtland report published in 1987 defined sustainable development as: "development that meets the needs of the present without compromising the ability of future generations to meet their needs." Importantly, Brundtland goes on to explain that sustainable development includes two key concepts: the concept of 'needs', in particular the essential needs of the world's poor, to which overriding priority should be given; and the idea of limitations imposed by the state of technology and social organisation on the environment's ability to meet present and future needs.

By 2012, the term had entered our legislative and policy structures. Section 4(1) of the Environment Act 1995 provides that the principal aim of the Environment Agency is to contribute towards sustainable development; while section 79 of the Government of Wales Act 2006 requires Welsh Ministers to set how they propose to exercise of their functions to promote sustainable development, with the White Paper A Sustainable Wales (3 December 2012) being part of those functions. Meanwhile, the overhaul of English land use policy in March 2012 by the publication of the National Planning Policy Framework (NPPF) had the presumption of sustainable development as a 'golden thread' running through the policy.

Three dimensions

The NPPF explains at paragraph 7 that "there are three dimensions to sustainable development: economic, social and environmental." It notes that those dimensions give rise to the need for the planning system to perform a number of roles: "an economic role - contributing to building a strong, responsive and competitive economy, … a social role - including supporting strong, vibrant and healthy communities,…; and an environmental role - contributing to protecting and enhancing our natural, built and historic environment; and, as part of this, helping to improve biodiversity, use natural resources prudently, minimise waste and pollution, and mitigate and adapt to climate change including moving to a low carbon economy." Importantly, paragraph 6 of the NPPF emphasises that the policies within the NPPF "taken as a whole, constitute the Government's view of what sustainable development in England means in practice for the planning system" (emphasis added). Paragraph 8 reiterates the point by stating that the roles of sustainable development "should not be undertaken in isolation because they are mutually dependent" and that "economic, social and environmental gains should be sought jointly and simultaneously".

The joint and collective approach to sustainable development within the NPPF was recently affirmed in Hunston Properties Ltd v Secretary of State for Communities & Local Government [2013] EWHC 2678 (Admin) with HHJ Pelling QC noting at paragraph 12 that the "need to focus on all of [the NPPF] requirements rather than one at the expense of another is emphasised by Paragraph 8 and at Paragraph 10 the need to take local circumstances into account is emphasised." In Hunston the court considered the question of need in terms of housing and quashed a planning inspector's decision refusing permission to develop 116 homes, a 72-bed care home, a new road access, two tennis courts and open space on St Albans green belt land. The error of law found in Hunston was that the inspector had been found to assess the proposal against the wrong housing need or projection figures and, further, if the correct figures had been used it could "realistically have made a difference to the outcome" (paragraph 33).

Defining 'need'

Two weeks before Hunston was handed down, Mr Justice Haddon-Cave had given judgment in R (Cherkley Campaign Ltd) v Mole Valley DC [2013] EWHC 2582 (Admin) a case involving the proposal for an über-exclusive hotel and spa complex together with an 18-hole golf course on the 375 acre Cherkley Estate in the Surrey Hills. The application was controversial. The officer's report to committee recommended refusal of the application for three main reasons: (i) the golf course would be seriously detrimental to the visual amenities of the locality; (ii) there was no justification why the golf course needed to be set in the protected landscape contrary to the local plan and the NPPF; and (iii) the new buildings in the green belt would be inappropriate development. The committee rejected the officer's recommendations and granted permission. In quashing the decision, the court held that a developer's attempt to equate private "demand" to public "need" was legally flawed and that there was no "proven need" for additional golf facilities as required by the local plan. In particular, the judge noted the following:

102. I reject Mr Findlay QC and Mr Katkowski QC's constructions of the word "need". They are inimical to the philosophy of planning law. They run counter to the specific context in which the word appears in the Mole Valley Local Plan. ?They do not accord with common sense. Their approach would be recipe for a planning free-for-all.

"103. In my judgment, the word "need" in paragraph 12.71 means "required" in the interests of the public and the community as a whole, i.e. "necessary" in the public interest sense. "Need" does not simply mean "demand" or "desire" by private interests. Nor is mere proof of "viability" of such demand enough. The fact that Longshot could sell membership debentures to 400 millionaires in UK and abroad who might want to play golf at their own exclusive, 'world class', luxury golf club in Surrey does not equate to a "need" for such facilities in its proper public interest sense. Paragraph 12.71 in the Local Plan requires applicants proposing new golf courses in the Mole Valley to demonstrate that further golf facilities are "necessary" in this part of Surrey in the interests of the public and community as ?a whole."

Integrated requirements

Finally, in the recent case of R (Marton-cum-Grafton PC) v North Yorks CC [2013] EWHC 2406 (Admin), HHJ Gosnell held that there was no obligation in law to include the evidence of need in an environmental statement and that a developer could not be criticised for treating a 'need updates' as not falling within the scope of 'further information' under the EIA Regulations 2011. Moreover, the court found that the defendant could not be criticised for failing to advertise the additional further information in a local newspaper pursuant to regulation 22(3).

In Marton the proposal in question was an energy-from-waste facility incorporating mechanical treatment and anaerobic digestion. It may be the case that a narrow interpretation of the directive could lead to the conclusion that need should not form part of an environmental statement. However, it is difficult to reconcile that approach with the overriding objectives of the directive including the need to have regard to the Treaty of the Function of the European Union, including Article 11, and that "environmental protection requirements must be integrated into the definition and implementation of the Union's policies and activities, in particular with a view to promoting sustainable development." Added to this is the 'wide scope and very broad purpose' that applies to the EIA directive (see e.g. paragraph 42 of Case C-2/07 Abraham v Région wallone) and that the European Commission guidance on the scope of an environmental statement includes considering the 'do nothing' option as an alternative to the project.

In the light of the varied application of sustainable development in decision-making and the increasing prominence in policy and legislation, its review by the courts is unlikely to diminish. In any event, there appears to have been a shift in its status of what was once very much soft, inchoate international law into domestic jurisprudence and legislation. It is perhaps right that if we are to live our lives with a global perspective that we should also have regard to the overriding needs of the world's poor. SJ

 Dr Paul Stookes is a solicitor-advocate and partner at specialist law firm Richard Buxton Environmental and Public Law, and an accredited mediator