Heffalump Traps: The Ashdown Forest Cases

The Ashdown Forest in East Sussex is unique. Lindblom LJ recently described it as follows:
“Ashdown Forest contains one of the largest continuous blocks of lowland heath in south-east England. The [Special Area of Conservation] which extends to about 2,700 hectares, comprises both Northern Atlantic wet heaths with Erica tetralix and European dry heaths. It is a “European site” under regulation 8 of the Habitats regulations. The [Special Protection Area] was designated mainly for the protection of two species of bird: the Nightjar and the Dartford Warbler, both included in Annex 1 of EU Directive 79/409/EEC on the conservation of wild birds, as amended. Ashdown Forest is also designated a Site of Special Scientific Interest (“SSSI”), for its heaths, birds, invertebrates, reptiles and amphibians, including the Great Crested Newt.”

The Ashdown Forest was of course also the inspiration for A.A. Milne’s Winnie the Pooh:

“Anyone who has read the stories knows the forest and doesn’t need me to describe it. Pooh’s Forest and Ashdown Forest are identical.” (Christopher Milne)


This honeypot is particularly vulnerable to the indirect effects arising from development in two respects:

– nitrogen deposition caused by motor vehicles

– impacts from recreational use of the forest
It can be particularly difficult to model the levels at which those effects are likely to arise. Any standardised thresholds are bound to be simplistic and to err either on the side of unnecessary restriction of development or on the side of risking significant harm to the forest. But we can’t embark on a huge multi-disciplinary research project every time any change is proposed – and, even then, will the results be accurate?

Whether we are in or out of the EU, I assume that we all accept that there are some particularly special places such as Ashdown Forest that require longterm protection due their nature conservation value and which can be harmed in a number of ways by the incremental effects (direct and indirect) of development? Equally, I’m sure we all recognise that a balance has to be struck in the level of survey work and assessment that local planning authorities and developers should do to determine whether development will acceptable?

It would never be easy to construct a legal regime that provides a fair and efficient process for determining what survey work and assessment is required and where the dividing line is between what is acceptable and unacceptable. As both a Special Area of Conservation and Special Protection Area, the Ashdown Forest is protected under the EU’s Habitats and Birds Directive, transposed in England and Wales by the Conservation of Habitats and Species Regulations 2010.
In basic summary, if it cannot be proven, beyond reasonable scientific doubt, that there will be no significant effect on the site either alone or in combination with other plans or projects, “appropriate assessment” is required, namely consideration of the impacts on the integrity of the European site, either alone on in combination with other plans and projects, with regard to the site’s structure and function and its conservation objectives. If the assessment determines that there will be adverse impacts which cannot be mitigated or avoided by alternative solutions, the plan or project can only proceed in extremely limited circumstances. Appropriate assessment can be a significant undertaking. Relevant for what follows, policy makers have come up with a pragmatic mechanism of requiring contributions by developers to Suitable Alternative Natural Greenspace (“SANGs”) to provide for areas to come forward that will take recreational pressure away from protected sites as a standardised form of mitigation, often thereby avoiding the need for individual, development by development, appropriate assessment. 
Additional levels of protection, not just relevant to European designated sites, are provided by the Strategic Environmental Assessment Directive (in relation to the formulation of plans or programmes whose policies may give rise to significant environmental effects) and by the Environmental Impact Assessment Directive (in relation to certain categories of development projects which may give rise to significant environmental effects). Each has a screening stage, by which the need for detailed assessment work can be avoided if it can be shown that significant environmental effects are unlikely to arise. 
The Great Repeal Bill will operate post Brexit so as to continue to give legal effect in the UK to all of these regimes until such time as Parliament reviews each of them. The Government published on 30 March its White Paper, Legislating for the United Kingdom’s withdrawal from the United Kingdom. It contains this details-free passage on environmental protection:
“The Government is committed to ensuring that we become the first generation to leave the environment in a better state than we found it. 

The UK’s current legislative framework at national, EU and international level has delivered tangible environmental benefits, such as cleaner rivers and reductions in emissions of sulphur dioxide and ozone depleting substances emissions. Many existing environmental laws also enshrine standards that affect the trade in products and substances across different markets, within the EU as well as internationally. 

The Great Repeal Bill will ensure that the whole body of existing EU environmental
 law continues to have effect in UK law. This will provide businesses and stakeholders with maximum certainty as we leave the EU. We will then have the opportunity,
over time, to ensure our legislative framework is outcome driven and delivers on our overall commitment to improve the environment within a generation. The Government recognises the need to consult on future changes to the regulatory frameworks, including through parliamentary scrutiny. ”
That may sound benign, but let’s keep an eye on that reference to ensuring “our legislative framework is outcome driven”. “Too much red tape’ appears to be the knee jerk reaction of many politicians to EU environmental legislation, viz recent jabs at protected species such as the great crested newt and at SANGs.
So have we got the balance right in our current legislation? Ashdown Forest has in the last two years given us four court rulings (three at Court of Appeal level) which in different ways identify the difficulties and complexities that inevitably arise in practice. If the sensitivity of a site such as the Ashdown Forest is a given, how would any other system better regulate the competing interests at play and provide an effective regime for determining forensically what are often complex and difficult environmental and ecological scientific issues?
Chronologically (if we ignore famous proceedings that ran from 1876 to 1882 as to the extent of commoners’ rights over the forest versus the rights of a landowner, the 7th Earl De La Warr), the cases have been as follows:

Ashdown Forest Economic Development LLP v Wealden District Council and South Downs National Park Authority (Court of Appeal, 9 July 2015)

This was a challenge by local landowners, including in fact the 11th Earl De La Warr, to policies in the Wealden Local Plan, including a requirement for SANGs provision in relation to housing developments within 7 kilometres of the forest. The Court of Appeal quashed the requirement, holding “with a degree of reluctance” that the council and the national park authority had failed to consider reasonable alternatives to the 7 kilometres cordon, in breach of the requirements of the Strategic Environmental Assessment Directive, overturning Sales J’s first instance ruling.  
Sales J had also rejected the landowners’ challenge to a cap on housing numbers in the plan, which had been justified on the basis of seeking to ensure that traffic movements did not increase beyond 1,000 AADT (annual average daily traffic flows on any road in the forest, equivalent to a 1% increase), treated by the authorities and Natural England as a threshold beyond which appropriate assessment would be required under the Habitats Regulations. The landowners were not given permission to appeal that ground and so that housing numbers policy stands. 
Secretary of State v Wealdon District Council (Court of Appeal, 31 January 2017)
This was a challenge by Wealden District Council to an inspector’s decision to allow an appeal against the refusal of planning permission for the construction of 103 dwellings, 42 of them to be provided as affordable housing, and the provision of 10 hectares of SANGs and public open space, on land at Steel Cross, a small settlement to the north of Crowborough. The site is about 2.4 km from the edge of the forest. The inspector had found that there would have been a need for appropriate assessment despite the 1,000 AADT threshold not having been reached, but for proposed mitigation in the form of financial contributions towards heathland management. The challenge had succeeded at first instance before Lang J and the Court of Appeal had to address a number of submissions from the opposing parties based on SAC and SPA issues:
– did the inspector adopt too strict an approach in concluding that there was no need for an appropriate assessment? 
– was he wrong to assume that heathland management to mitigate the effects of nitrogen deposition would be carried out under a strategic access management and monitoring strategy (“SAMMS”)? 

– did he fail to take into account evidence given for the council on the efficacy of heathland management?

The Court of Appeal held that the inspector’s approach to the potential relevance of even relatively small additional traffic numbers had not been wrong but he had failed to justify why, in the face of contrary evidence from the council, he considered that heathland management would amount to adequate mitigation. Furthermore:
“As Mr Price Lewis submitted, the inspector did not explain how he thought the financial contributions in the section 106 obligation were in fact going to be translated into practical measures to prevent or overcome the possible effects of nitrogen deposition to which he had referred, as well as funding the SAMMS projects which would tackle the potential effects of recreational use. He did not say what he thought was actually going to be done, by whom, and when, in implementing the “habitat management” upon which his conclusion on the need for “appropriate assessment” was predicated. That conclusion depended on his judgment that, with mitigation, including heathland management to mitigate the effects of nitrogen deposition, the proposed development, together with other proposals, was not likely to have significant effects on the European site. Such mitigation, as he made clear, was essential to his “precautionary approach”. So if there was any real doubt about the requisite heathland management coming forward, his conclusion that an “appropriate assessment” was not required would, to that extent, be undermined. It was necessary for him to establish with reasonable certainty that the relevant mitigation, including heathland management, would actually be delivered. But he did not do that. He did not identify a solid proposal for heathland management, relevant to this proposed development, to which there was a firm commitment on the part of those who were going to carry it out. His conclusions in paragraphs 68 and 71 of his decision letter, and in paragraph 105, clearly depended on the concept that the “contributions to SAMMS” in the section 106 obligation “would” – as he put it – actually be used, in part, to fund “projects” of “habitat management”. These projects would involve measures, such as cutting and grazing to reduce, “offset” or “outweigh” the effects of nitrogen deposition attributable to this development in combination with other proposals, including “additional eutrophication”. But which “projects” he had in mind is obscure.”
The planning permission was quashed. 
R (DLA Delivery Ltd) v Lewes District Council (Court of Appeal, 10 February 2017)  
This case raises a number of issues in relation to neighbourhood planning (see my 19.2.17 blog post, Five Problems With Neighbourhood Plans ) but for the purposes of this blog post the relevant question before the Court of Appeal was whether the neighbourhood plan for Newick, approximately 7 km from the forest, contravened the Strategic Environmental Assessment Directive in that the need for strategic environmental assessment had been screened out, relying on on the emerging sustainability appraisal work carried out by Lewes District Council and the national park authority. The claim had been brought by a promoter of a scheme which had not been allocated for development in the plan. If SEA had been found to be required, this would have given it the opportunity to promote its site as a reasonable alternative for those allocated, given that it was outside the magic 7 km radius of the forest. Whilst the court found errors in the council’s reasoning for arriving at a negative screening opinion, they were not such as to vitiate the decision and the plan was not quashed. 
Wealden District Council v Secretary of State, Lewes District Council and South Downs National Park Authority  (Jay J, 20 March 2017)
The forest lies within Wealden’s and the national park authority’s respective administrative areas. Lewes District Council’s boundary is around 5-6km from the forest. This was a challenge by Wealden District Council of a joint core strategy prepared by Lewes and the national park authority. Wealden claimed that Lewes and the national park authority had acted unlawfully in concluding, on advice from Natural England, that the joint core strategy would not be likely to have a significant effect on the SAC in combination with the Wealden core strategy. 
Natural England had advised that if the expected increase in AADT flows on any route within 200m of a protected site was less than 1,000 cars per day or 200 HGVs per day, equivalent to less than a 1% increase in traffic, then appropriate assessment was not necessary. The expected increase turned out to be 190 AADT, but the expected increase of 950 generated by proposals in the Wealden core strategy was ignored. The defendants tried to argue before the court that the 1,000 AADT threshold was “sufficiently robust and precautionary to cover any likely scenario of in-combination effects. The amounts of nitrogen dioxide in play are so small that they are effectively de minimis and of neutral effect”. 
The judge held that Natural England’s approach was “plainly erroneous”. There was “no sensible or logical basis” for excluding the Wealden core strategy from account” and a “clear breach” of the Habitats Directive. 
A couple of additional points to note:
– The challenge was to policies in the joint core strategy, but (unlike the national park authority) Lewes had adopted it more than six weeks before the challenge had been brought. Accordingly only the policies relating to the provision of new housing in the national park authority’s area were quashed. 
– In an extreme case of nominative determinism, Natural England’s expert advisor, as in a number of these cases, was one Marion Ashdown. 

Controversy relating to Ashdown Forest is likely to continue if a recent Daily Mirror piece  on the Mid-Sussex local plan inspector’s 20 February 2017 preliminary conclusions on housing requirements is anything to go by…
So what do we conclude from all of this?
Even once we agree that complex eco-systems such as Ashdown Forest need protection, the dividing line between an appropriate precautionary approach to house-building in the vicinity and inappropriate over-protection is really hard to draw, and it is equally difficult to apply triage so as to reduce the amount of detailed assessment work required. 
The necessary predictions draw upon scientific disciplines such as chemistry, statistics, ecology and psychology as much as they are about planning or law. 
Perhaps there is room for greater clarity. After all, it is concerning when even the Government’s statutory advisory body can be “plainly erroneous” in its approach. And it is concerning that so many complex cases are reaching the courts – and leading to the quashing of decisions and policies. This hardly gives a certain basis for house building. 
But don’t think that this is ever going to be easy or that the problems mainly lie with the nature of the EU directives from which the legal principles flow. We will reinvent the wheel at our peril. 

After all that, perhaps there is one thing on which we can all agree?

It is more fun to talk with someone who doesn’t use long, difficult words but rather short, easy words like “What about lunch?” (A.A. Milne)

Simon Ricketts 8.4.17
Personal views, et cetera

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Five Problems With Neighbourhood Plans

The real effects of neighbourhood plan making on housing delivery and on the efficient, democratic operation of the planning system are hard to pin down and yet the Government continues to champion its role. Are we really heading in the right direction? After all, despite the positivity of government sponsored initiatives such as mycommunity.org.uk  it isn’t all sweetness and light. Here is my personal worry list:
1. Neighbourhood Plans are usurping the role of local plans, whilst being subject to a lighter-touch examination process
The Court of Appeal, in R (DLA Delivery Ltd) v Lewes District Council  (10 February 2017), has now confirmed that a neighbourhood plan may be made without there being an up to date local plan. Until such time as the local plan comes forward, as the only up to date development plan, the neighbourhood plan’s policies will benefit from the statutory presumption in section 38(6) of the Planning and Compulsory Purchase Act 2004 and from paragraph 198 of the NPPF: “[where] a planning application conflicts with a neighbourhood plan that has been brought into force, planning permission should not normally be granted”.
This gives neighbourhood plans a role which was surely not foreseen by Parliament. Neighbourhood plans are intended to be in general conformity with the local plan’s strategic policies. But instead any policy vacuum can be filled by the neighbourhood plan’s own strategic policies. Whilst the Planning Practice Guidance urges collaborative working between neighbourhoods and local planning authorities, this does not prevent problems from arising which are exacerbated by two further factors:
–  in order to survive the ‘relatively limited‘ (Court of Appeal in DLA Delivery, para 5) examination process, neighbourhood plans only have to satisfy the ‘basic conditions’ set out in the paragraph 8(2) of Schedule 4B to the Town and Country Planning Act 1990 as applied to neighbourhood plans by section 38A of the Planning and Compulsory Purchase Act 2004, rather than the wider and more rigorous soundness test applicable to local plans. 
–  the Neighbourhood Planning Bill proposes to accelerate the process, by deeming post-examination pre-referendum neighbourhood plans to be a material consideration in the determination of planning applications (clause 1) and by deeming post-referendum neighbourhood plans to be treated as part of the statutory development plan ahead of formally being made by the district or borough council (clause 2). It will be easier for the Secretary of State to dismiss appeals on the basis of inconsistency with emerging neighbourhood plans (a sensitive subject for DCLG given for example Holgate J’s quashing in Woodcock Holdings Limited v Secretary of State, 1 May 2015 and a series of examples of the Secretary of State having consented to judgment in similar circumstances). 
2. The Neighbourhood Plan process is “complex and burdensome”
Not my words but a description given by participants, according to recent research by the University of Reading: Neighbourhood Planning Users Research Revisited.  
Any community embarking on a neighbourhood plan has to be ready for the long haul. Because policies within the plan can have real consequences for communities and developers alike, it is no surprise that the process can be litigious. 
R (Crownhall Estates Limited) v Chichester District Council  (Holgate J, 21 January 2016) was the third (third!) judicial review in relation to the Loxwood Neighbourhood Plan, with the claimant developer seeking unsuccessfully to challenge the plan’s provision for only 60 homes against a background of a failure of the district council to meet its obejectively assessed housing needs. 

I do not believe that there is a transcript of Dove J’s rejection in Swan Quay LLP v Swale Borough Council on 31 January 2017 of a challenge to the Faversham Creek Neighbourhood Plan which contained a policy preventing redevelopment of the claimant’s property on the basis that it would lead to ‘gentrification’. The ruling is summarised by the Faversham Creek Trust in a press release.  
Challenges commonly focus on whether there has been compliance with the requirements of the Strategic Environmental Assessment Directive, another unsuccessful ground of challenge in DLA Delivery. R (Stonegate Homes Limited) v Horsham District Council (the late, missed, Patterson J, 13 October 2016) was an example of a successful challenge on this basis. The Haddenham Neighbourhood Plan is another, where Aylesbury Vale District Council consented to judgment.
3. Neighbourhood Plans dissipate the local planning authority’s resources

Parish councils such as Haddenham are unlikely to have the resources to resist a legal challenge, leaving the responsibility to the local planning authority which, under the legislation, formally “makes” the plan. How much say will they have over the way in which the defence case is brought and, as importantly, why should the local planning authority’s resources be stretched in this way?

We also have of course dissipation of CIL proceeds, with 15% of CIL proceeds available to be spent by parish councils, increased to 25% where a neighbourhood plan is in place – proceeds that would otherwise have applied towards infrastructure projects required to deliver development. 
4. Neighbourhood Plans are unnecessary and marginalise the role of the local planning authority

District and borough councils are designed to operate down to ward level. We elect ward councillors to represent our local interests – that is to say, the things we care about in relation to our home environment, our neighbourhood. Local plans can and do include policies at neighbourhood level. Additionally, there is scope for area action plans to provide more detailed site-specific policies where justified. 

We should all engage more with local plan making. Does the distraction of neighbourhood planning fuel the inaccurate sense that what happens at district or borough level is remote and not to do with us? What if the energy that one sometimes sees expended on neighbourhood planning were to be properly harnessed at local planning authority level, with proper access to officers and with consistency of plan making over a strategically sensible area?
5. Neighbourhood Plans are not fit for the further roles that Government continues to give them
Neighbourhood planning is of course voluntary. It is more prevalent in affluent areas and its heartland is in the south east (Turley research, 2014). In unparished areas it is the preserve of unelected groups. And yet the Government intends it to play a grown up role alongside local plans. Indeed, given that they have statutory force, unlike the NPPF, have neighbourhood plans in fact become more important than the Government’s own planning policies?
Gavin Barwell’s 12 December 2016 written ministerial statement (see my blog post That Ministerial Statement) set out that relevant policies for the supply of housing in a neighbourhood plan that is part of the development plan should not be deemed to be ‘out-of-date’ under paragraph 49 of the National Planning Policy Framework where the following circumstances arise at the time a planning decision is made: 
* the written ministerial statement making the policy change on 12 December 2016 is less than 2 years old, or the neighbourhood plan has been part of the development plan for 2 years or less;

* the neighbourhood plan allocates sites for housing; and

* the local planning authority can demonstrate a three-year supply of deliverable housing sites. 

The statement is of course the subject of a judicial review. In the meantime, the Government’s Housing White Paper has added the further qualification that neighbourhoods should be able to demonstrate that their site allocations and housing supply policies will meet their share of local housing need and that the local planning authority should be able to demonstrate through the White Paper’s housing delivery test that, from 2020, delivery has been over 65% (25% in 2018; 45% in 2019) for the wider authority area (to ensure that delivery rates across the area as a whole are at a satisfactory level). 
 The White Paper also proposes changes to the NPPF to “highlight the opportunities that neighbourhood plans present for identifying and allocating small sites that are suitable for housing, drawing on the knowledge of local communities”.

Finally, local planning authorities will now be “expected to provide neighbourhood planning groups with a housing requirement figure, where this is needed to allow progress with neighbourhood planning. As part of the consultation on a new standard methodology for assessing housing requirements, we will seek views on whether a standard methodology could be developed for calculating housing need in a neighbourhood plan area“.
Let us remember that these are voluntary plans, prepared by parish councils and community groups. Are we not seeing, yet again, a relentless move towards process and complexity, in an effort to make running repairs to a mechanism that was not designed for this function? 
Simon Ricketts 19.2.17
Personal views, et cetera

There Goes The Neighbourhood? Recent Challenges To NDPs

There is still significant legal debate as to what is the proper scope of neighbourhood development plans. This has resulted in a series of cases in which the parish council or neighbourhood forum that has promoted the relevant NDP sits on the sidelines (due to lack of resources) as the borough or district council which has been required to make it finds itself embroiled in significant legal proceedings. 
Can an NDP be made in advance of an up to date local plan?

This question is critical because, if so, there is significant freedom for the NDP to set the local policy agenda on issues (such as housing numbers in the neighbourhood) which might be thought to be more properly the domain of the local plan (whereas if there is an adopted local plan there is the statutory constraint that the NDP must be in “general conformity” with its “strategic policies”). 

To date High Court judges have taken the view that the answer is “yes” but this will come before the Court of Appeal for the first time this coming week, when the claimant’s appeal from the ruling of Foskett J in R (DLA Delivery) v Lewes District Council  (31 July 2015) is heard on 15 and 16 November 2016. Foskett J had taken an equivalent approach to that of Lewis J in R (Gladman Developments Limited) v Aylesbury Vale District Council  (18 December 2014) and Holgate J in Woodcock Holdings v Secretary of State  (1 May 2015). 
Can an NDP require new dwellings to be occupied as a “principal residence”?
This was the main issue before Hickinbottom J (promoted to the Court of Appeal since the hearing) in R (RLT Built Environment Limited) v Cornwall Council  (10 November 2016). This of course concerned the St Ives Neighbourhood Plan’s proposed ban on new dwellings being used as second homes. 
As is so often the case in NDP challenges (see below for more of this) the first line of attack was as to the adequacy of the strategic environmental assessment that had been carried out. The claimant, a local developer, claimed that increasing the amount of market housing for local people to buy was a “reasonable alternative” that should have been assessed. The judge disagreed – as an alternative it was an “obvious non-starter” as it did not achieve the objective of the policy which was to reduce the number of second homes in the area.  
The second line of attack was that the policy would amount to an unjustified interference with the right to a home in Article 8 of the European Convention on Human Rights. The judge held that whilst the right might in theory be interfered with if a resident had to leave the area due to changes in personal circumstances, the interference was proportionate and therefore acceptable. The LPA would also be able to take personal circumstances into account in deciding whether or not to take planning enforcement action. 
Whilst much turned on the local circumstances of the second home honeypot that is St Ives, can one extrapolate to other areas under pressure from second homes, such as parts of London?
When will a plan be quashed on the basis of inadequate strategic environment assessment?
There have been many challenges, whether to decisions to screen out SEA (eg R (Larkfleet Homes Limited) v Rutland County Council  (Court of Appeal, 17 June 2015)) or to the adequacy of the SEA process (most recently in the Cornwall case but before that in for instance in BDW Trading Limited v Cheshire West and Chester Borough Council  (Supperstone J, 9 May 2014)). Until last month, I only knew of one example of an NDP being quashed on the basis of inadequate assessment: the Haddenham Neighbourhood Plan, where Aylesbury Vale District Council consented to judgment  in March 2016 (to the chagrin of the parish council that had promoted the plan). 
So R (Stonegate Homes Limited) v Horsham District Council  (Patterson J, 13 October 2016) is quite something: the Henfield Neighbourhood Plan was quashed by the High Court following a contested hearing on 4 October (Mark Lowe QC acted for the successful claimant, who incidentally also acted for the successful defendant in the Cornwall case two days later on 6 October). The plan favoured residential development to the east of the settlement and, relying on perceived problems with the local road system, no assessment was carried out of the possibility of development to the west, despite a planning appeal having been allowed to the west and a highways reason for refusal having been withdrawn by the LPA following agreement between the appellant and the county council. The plan was quashed on the basis of a flawed assessment of reasonable alternatives within the SEA process as well as on the basis that there was no evidential basis for the examiner of the plan ruling out locations to the west or for the LPA to conclude that the plan met EU law requirements.  
The case is an encouraging example of the SEA Directive fulfilling a necessary role in providing a safeguard against loose or lazy thinking, against the background of a process where examination can be light touch (to put it charitably) and where the legislation has as many holes as a Cornish trawler net when it comes to NDPs, minnows of our plan led system. 

Simon Ricketts 12.11.16
Personal views, et cetera

(EIA + SEA) – EU = ?

Deadlines, deadlines. 
The EU’s 2014 amending directive on environmental impact assessment  has to be transposed by member states into domestic law by 16 May 2017. 
Given that Theresa May has announced that Article 50 of the Lisbon Treaty will be invoked by the UK government by the end of March 2017, which would see us out of the EU by the end of March 2019, does the 16 May 2017 deadline matter?
The Scottish Government is currently consulting  on transposition, with a consultation deadline of 31 October 2016. The Welsh Government is consulting  with a consultation deadline of 11 November 2016. 
I have seen no signs of any equivalent work underway for England or Northern Ireland, despite the lengthy lead-in period to the transposition process if it is to be done in accordance with the UK government’s own guidance .

This can only be deliberate but is going to lead to problems for developers and LPAs alike. 
What does the amending Directive change?
The changes are significant. For instance:
– More information is to be provided with requests for screening opinions, requiring more analysis and work at an earlier stage

– Mitigation measures considered at the screening stage need to be specified and retained in the final development proposals

– Reasoning for screening opinions and directions are expressly required

– If a scoping opinion is obtained, the ES must comply with it

– The Environmental Statement becomes an ‘EIA Report’

– It will need to be prepared by ‘accredited and technically competent experts’

– Decision makers in reaching decisions will need to decide whether the environmental information is up to date or whether further updated information is required

– The decision maker will need to decide whether to impose monitoring obligations to cover the implementation and management of the project

– The minimum public consultation period in relation to the EIA report will be 30 days (whereas the UK minimum period is of course 21 days).

It is not of course unknown for a member state to be late in transposing a Directive, but there are real consequences. The state can be fined for its failure to transpose. But, of more specific relevance to developers and LPAs, the failure to transpose the Directive by the deadline can in some circumstances lead to grounds of challenge for a claimant when, for instance, seeking to challenge a planning permission on the basis that the LPA has not complied with the requirements of the Directive. The Directive applies where projects have not been screened or scoped – or the subject of an ES submitted – by 16 May 2017. 
So, pre 16 May 2017, the 2011 Regulations will continue to apply (as long as you have screened, scoped or submitted) and post 16 May 2017 it would be prudent to comply with the substance of the amending Directive. 
But what will happen once we have left the EU? Well of course we have been promised the ‘Great Reform Bill’ which seems designed to retain UK legislation that transposes EU legislation in some holding pen, from which laws will be taken out individually over time to be amended or repealed. Accordingly, even after March 2019 (or whenever our exit from the EU turns out to be) the 2011 EIA Regulations (as amended from time to time) will continue to apply until further notice.
In my view it would be a mistake to envisage any substantial repeal of environmental impact assessment legislation, as opposed to attempts no doubt at streamlining. 
Accordingly, the stream of EIA case law will undoubtedly continue. Some 2016 highlights:
R (XY) v Maidstone Borough Council  (Deputy High Court Judge Rhodri Price-Lewis QC) – held that negative screening opinion was lawful – on the facts no requirement to treat proposal for gypsy site as inevitably part of a larger development proposal given other similar proposals in the area. 
R (Jedwell) v Denbighshire County Council  (Hickinbottom J, 16 March 2016) – reasons for negative screening opinion not given within a reasonable period of time but permission not quashed. 
R (Licensed Taxi Drivers Association) v Transport for London  (Patterson J, 10 February 2016) – challenge to London’s east-west cycle superhighway failed – determination of adverse environmental effects was for the LPA.
SEA
The SEA Directive  is fully transposed into law in England by the Environmental Assessment of Plans and Programmes Regulations 2004  – also destined for the Great Repeal Bill holding pen. 
In the meantime the cases continue. According to a Landmark Chambers update  we await the outcome of R (RTE Built Environment Limited) v Cornwall Council in relation to the St Ives Neighbourhood Plan, with its proposed second homes ban, following a hearing on 6 October 2016. 
More selfishly, a number of us who have contributed chapters to the forthcoming book by Greg Jones QC and Eloise Scotford, The Strategic Environmental Directive: A Plan For Success?  are hoping that it has a long and relevant shelf-life….

Simon Ricketts 8.10.16
Personal views, et cetera