Strategic assessment guidance to planners at odds with EC views

One of the most difficult issues in implementing the Directive in England will be how to avoid confusion between its environmental assessment requirements and the wider environmental, social and economic assessments required by "sustainability appraisals". The latter are to be made mandatory for the new types of plan - regional spatial strategies (RSSs) and local development documents (LDDs) - to be introduced by the Planning and Compulsory Purchase Bill, which is still wending its way through Parliament.

The ODPM intends to produce future guidance on sustainability appraisal which, it promises, will provide further details on its relationship with SEA. Meanwhile, it says, the new guidance "shows how SEA can be expanded into a sustainability appraisal, and how the differences between these two types of analysis can be reconciled."

That guidance, it might be argued, is sometimes rather thin. For example, in setting out a proposed structure for an SEA environmental report, it says that this is also suitable for reporting on a sustainability appraisal - "but if an authority uses it in this way, it must show clearly the elements which meet the requirements of the Directive."

That simple statement may not be quite enough, to judge by guidance on the SEA Directive issued by the European Commission this autumn.²On environmental reports, the Commission says that the wording of the Directive implies that they should form "a coherent text or texts", and if this is not produced as a free-standing document it should nevertheless "be clearly distinguishable as a separate part...and be easy to find and assimilate for the public and authorities."

Another area in which there is inconsistency between the ODPM and Commission guidance is how the "reasonable alternatives" to a plan or programme should be handled.

The ODPM's guidance puts forward a hierarchy of alternatives which should be considered in the plan-making process. This starts with "obviation" of demand - or options for avoiding the need for development - and then goes on to the how, where and when of development.

The guidance then adds: "To keep the big issues clear, the alternatives considered at this early stage should not be elaborated in too much detail. Only the main differences between the alternatives need to be considered and documented."

The Commission, by contrast, lays more emphasis on a level playing-field. It points out that the Directive makes no distinction between the assessment requirements for the proposed plan or programme and for the alternatives.

"The essential thing," according to the Commission, "is that the likely significant effects of the plan or programme and the alternatives are identified, described and evaluated in a comparable way. The requirements [in the Directive] concerning scope and level of detail for the information in the [environmental] report apply to the assessment of alternatives as well."

Last year's consultation paper on the draft guidance was, indeed, much closer to this interpretation, stressing that options should be considered "thoroughly and even-handedly" (ENDS Report 334, p 46 ).

Efforts to minimise the Directive's impacts on planning authorities are evident in other parts of the ODPM guidance. It stresses, for instance, that authorities should set themselves a time limit for collecting baseline environmental data for their first SEA exercises rather than aim to be comprehensive. And, other than a quality assurance checklist, it does not put forward any proposals for meeting the Directive's requirement that environmental reports are of "sufficient quality".

According to the Commission's guidance document, the case law of the European Court of Justice has determined that an "authority" subject to the Directive can include a body providing public services under the control of the state.

"For example," it says, "privatised utility companies may be required to carry out some tasks or duties (such as preparing long-term plans for ensuring water resources) which in non-privatised regimes would be carried out by public authorities. In respect of those functions they would be treated as authorities for the purposes of the Directive."

Much the same issue has cropped up over the EU Directive on public access to environmental information, but has never been tested in court in the UK. But it will be less easy to dodge with the SEA Directive.