Northern Ireland judgment

The M4 motorway is a vital transport route across South Wales. However, near Newport, there are sections of the motorway which do not have the capacity to accommodate the volume of traffic that uses it, resulting in high levels of congestion, traffic jams, accidents and pollution. These problems have been apparent for over 20 years, and have worsened over time. They are predicted to worsen further in the future. There is no doubt that the transport arrangements around Newport are in need of improvement.

On 16 July 2014, on behalf of the Welsh Ministers, the Minister for Economy, Science and Transport Edwina Hart AM (“the Minister”) announced the decision to adopt a plan called “M4 Corridor Around Newport” (“the Plan”), which provides for a new section of motorway to be constructed to the south of Newport between current M4 Junctions 23 (Magor) and 29 (Castleton) and various complementary measures including the reclassification of the current route of the motorway between those points to a trunk road. The new stretch of motorway would run across the Gwent Levels, an area comprising several Sites of Special Scientific Interest (“SSSIs”) and the River Usk Special Area of Conservation (“SAC”).

This claim was issued on 23 September 2014 by the Claimant, which is a well-known and respected environmental organisation. In the claim as issued, it is contended that the adoption of the Plan should be quashed on three grounds (the order being mine):

On 31 October 2014, Dove J ordered the application for permission to proceed be listed for hearing on a rolled-up basis so that, if permission were granted, the substantive claim would immediately follow.

At that hearing before me, Alex Goodman and Matthew Dale-Harris appeared for the Claimant, and Jonathan Moffett and Tom Cross for the Welsh Ministers. I thank them all for their considerable assistance.

During the course of the hearing, Mr Goodman abandoned reliance on Ground 3, and I formally refuse permission to proceed on that ground. This judgment is concerned with Grounds 1 and 2.

In due course, I will need to look at the SEA Directive in some detail but, at the outset, an indication of where it fits into the legal framework for environmental protection might assist, before I move on to deal with the facts of this case.

One of the earliest impacts of European law on town and country planning in this jurisdiction was Council Directive 85/337/EC (“the EIA Directive”), which came into force in 1988. In considering applications for certain major development projects, the EIA Directive requires an Environmental Impact Assessment (“EIA”), i.e. the presentation, collection, publication and assessment of information on the environmental effects of the proposed project. The Directive was implemented in Wales by the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (SI 1999 No 293). Under those regulations, the construction of motorways and express roads falls within Schedule 1, and consequently an EIA is mandatory.

The EIA focuses upon the environmental assessment of major projects that are likely to have a substantial impact on the environment. However, by the time consent for development in respect of such a project is being considered, prior decisions may have been taken which effectively limit the room for significant change. The SEA Directive seeks to address that issue by requiring strategic environmental assessment (“SEA”) to be an integral part of plans and programmes, so that potentially environmentally-preferable alternatives are not discarded as part of the process of approving plans and programmes without proper consideration of the environmental impacts of the various options.

As Lord Reed JSC noted in Walton v Scottish Ministers [2012] UKSC 44 at [12]-[13], this was lucidly explained by Advocate General Kokott in her opinion in Terre Wallonne ASBL v Région Wallone [2010] 1-ECR 5611; [2010] EUECJ C-105/09, at [31]-[33]:

“31.

The specific objective pursued by the assessment of plans and programmes is evident from the legislative background: the SEA Directive complements the EIA Directive, which is more than ten years older and concerns the consideration of effects on the environment when development consent is granted for projects.

32.

The application of the EIA Directive revealed that, at the time of the assessment of projects, major effects on the environment are already established on the basis of earlier planning measures (Proposal for a Council Directive on the assessment of the effects of certain plans and programmes on the environment, COM (96) 511 final, page 6). Whilst it is true that those effects can thus be examined during the environmental impact assessment, they cannot be taken fully into account when development consent is given for the project. It is therefore appropriate for such effects on the environment to be examined at the time of preparatory measures and taken into account in that context.

33.

An abstract routing plan, for example, may stipulate that a road is to be built in a certain corridor. The question whether alternatives outside that corridor would have less impact on the environment is therefore possibly not assessed when development consent is subsequently granted for a specific road-construction project. For this reason, it should be considered, even as the corridor is being specified, what effects the restriction of the route will have on the environment and whether alternatives should be included.”

Thus, as Lady Hale succinctly put it in R (Buckinghamshire County Council and Others) v Secretary of State for Transport [2014] UKSC 3 at [155]:

“The aim of the [SEA] Directive is not to ensure that all development proposals which will have major environmental effects are preceded by [an SEA]; rather, it is to ensure that future development consent for projects is not constrained by decisions which have been taken ‘upstream’ without such an assessment, thus pre-empting the environmental assessment to be made at project level.”

The SEA Directive is expressly procedural in nature (see recital (9)). It does not impose any substantive duties on the relevant authority: it rather seeks to improve the quality of decision-making for development by requiring the authority to assess the potential environmental effects of a particular plan or programme before its adoption. Its aim is to ensure that future planning decisions are not constrained by earlier strategic decisions; so that article 5 of the SEA Directive requires that the likely significant environmental effects of a plan or programme “and reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme are identified, described and evaluated”. Those options must be the subject of public consultation in the form of a report with the draft plan or programme (article 6); and, before the adoption of the plan or programme, the results of that consultation must be taken into account by the relevant authority (article 8). The environmental evaluation of those alternatives must be on a comparable basis to the evaluation of the preferred option.

I shall return to the SEA Directive after considering the factual background against which the challenged decision to adopt the Plan was made.

Section 28 of the Wildlife and Countryside Act 1981 (“the 1981 Act”) enables the Natural Resources Body for Wales (“the NRB”) to designate land an SSSI, by reason of any of its flora, fauna, or geological or physiological features. The protection of those designated sites was substantially increased by the Countryside and Rights of Way Act 2000 (“the 2000 Act”) which, by section 75 and Schedule 9, inserted new sections 28A-28R into the 1981 Act. For example, development of designated land now requires the consent of the NRB (section 28E); although, if an owner is refused consent, he may appeal to the Welsh Ministers (section 28F). Importantly for this claim, in exercising any of their functions, the Welsh Ministers have a duty, set out in section 28G(2), to take reasonable steps to further the conservation and enhancement of the features (such as flora or fauna) which have led to the designation. An alleged breach of that duty is the basis of Ground 2, and I return to it below (see paragraph 125 below).

Furthermore, the Conservation of Habitats and Species Regulations 2010 (SI 2010 No 490) applies a protection regime to sites designated as Special Areas of Conservation (“SACs”) under European Council Directive 92/43/EEC (“the Habitats Directive”), and sites designated as Special Protection Areas under Council Directive 79/904/EEC (“the Wild Birds Directive”).

The City of Newport lies on the River Usk, near the mouth of that river as it joins the Severn Estuary. The existing M4 motorway runs to the north of the city. To the east of the city, south of the M4 and immediately south of the main line London-South Wales railway line, lies Llanwern Steelworks. To the south and east of those works, and to the east of the river, there is an area of ancient wetlands and marshes running down to the estuary, that forms four SSSIs, namely (running east to west) Magor & Undy SSSI, Redwick & Llandevenny SSSI, Whitson SSSI and Nash & Goldcliff SSSI. To the west of the river, is a fifth, St Brides SSSI. In addition, in December 2004, the River Usk was designated an SAC. I will refer to these protected areas collectively as “the Gwent Levels SSSIs”.

Helen Bowkett is the Head of Transport Evidence for the Welsh Government. She has extensive experience in transport modelling, and appraisal of highway and transport schemes. In her statement of 30 January 2015, she explains the methodology and appraisal process used by the Welsh Government, known as “The Welsh Transport Planning and Appraisal Guidance” (“WelTAG”). It will be helpful to summarise that process at this stage.

WelTAG is derived from the United Kingdom Department of Transport Guidance, WebTAG, which (says Ms Bowkett) “is widely accepted and is applied as the industry standard…”. WelTAG is a substantial document, exceeding 200 pages. It was published by the Welsh Government in June 2008, with the intention that it be applied to all transport strategies, plans and schemes promoted by the Government (paragraph 1.1.1). It has two primary purposes, namely (paragraph 1.4):

“• To assist in the development of proposals to enable the most appropriate scheme to be identified and progressed – one that is focused on objectives, maximises the benefits and minimises the impacts; and

• To allow the comparison of competing schemes on a like-for-like basis, so decision-makers can make difficult funding decisions.”

It is therefore made clear from the outset that the process is “focused on objectives”.

The March 2013 WelTAG Stage 1 Appraisal Report in respect of the M4 Corridor Enhancement Measures (see paragraphs 45 and following below) adds (at paragraph 1.2):

“WelTAG aims to ensure that transport proposals contribute to the wider policy objectives for Wales. Three pillars of sustainability, known as the Welsh Impact Areas, underlie policy in Wales. These are:

• Economy: this reflects the importance of a strong and developing economy for Wales;

• Environment: this reflects both the legal requirements and desire to protect and enhance the condition of the built and natural environment; and

• Society: this reflects the desire to address issues of social exclusion and to promote social justice and a high quality of life for Welsh people.”

WelTAG provides a mechanism for “providing decision-makers with information about all significant impacts from proposals (positive and negative)” (paragraph 45 of the Statement of Martin Bates dated 30 January 2015). It is structured into the following stages (paragraph 2.2.3 of WelTAG):

“• A planning stage which includes problem identification/proposal rationale, objective setting (these are interactive processes), option development and testing;

• An appraisal stage, which involves a two-stage process;

• A post appraisal stage which involves both on-going monitoring of performance and evaluation/value for money assessment; and

• Participation (including consultation), which occurs at several stages in the planning process (from setting objectives through to proposal appraisal and quite possibly implementation) and should start being considered from the outset.”

The planning stage has the function of establishing the conditions in the area, and its transport problems and opportunities; and to generate objectives for the steps that follow (paragraph 4.2.1). In the appraisal process, the Transport Planning Objectives (“TPOs”) are key. The guidance emphasises:

“4.2.2

Good practice in transport planning requires that the planning of any transport intervention is objective-driven. The planner starts by establishing the final outcomes to be achieved, which are formulated as Transport Planning Objectives (TPOs), and then develops solutions – which will help to achieve these objectives.

4.2.3

Therefore, the planning process starts from problems and opportunities, then sets objectives, and then identifies the best ways of achieving these. An important implication of this is that the planner has to consider a diverse range of alternatives, and not start from an implicit objective of promoting a particular proposal. A planner who thinks that WelTAG is simply a new hoop through which to get their preferred proposal is missing the point of transport appraisal and this guidance.”

The guidance stresses that the starting point of the process is “the identification of transport problems [such as traffic congestion], constraints and opportunities…” (paragraph 4.3.1), and that TPOs setting out what it is sought to be achieved “underpin the whole development and appraisal process by allowing the planner to test whether or not a proposal is likely to succeed in addressing the identified problems…” (paragraph 4.4.1). The process is therefore underpinned by the TPOs, as well as the Welsh Impact Areas.

The two-stages into which the appraisal process is subdivided are described as follows (paragraph 2.2.9):

“Stage 1 is always required and has the primary purpose of testing and screening options.

Stage 2 is only applicable to schemes and provides a fuller, more evidence based, appraisal of the options selected for future development by Stage 1.”

Transport is a devolved function under the Government of Wales Acts. Until 1999, responsibility for motorways in Wales rested with the United Kingdom Government, initially the Minister of Transport and later the Secretary of State for Wales. On 1 July 1999, under the Government of Wales Act 1998 and paragraph 2 of the National Assembly for Wales (Transfer of Functions) Order 1999 (SI 1999 No 672), that function passed to the Welsh Government, being performed by the National Assembly for Wales until 1 May 2007, when it was transferred to the Welsh Ministers by section 162 of, and paragraph 30 of Schedule 11 to, the Government of Wales Act 2006. Town and country planning is similarly a devolved function, now resting with the Welsh Ministers.

Plans for a new motorway between London and South Wales were announced by the United Kingdom Government Minister of Transport in 1956. It was built in sections, that were later joined together. The Severn Bridge was opened in 1966, and, a year later, a motorway was opened between what are now M4 Junctions 24 and 28 as, effectively, a Newport by-pass. That section included the first motorway tunnels in the United Kingdom, at Brynglas. Since then, various steps have been taken to improve that stretch.

The result of this process of evolution is that the section of the motorway between M4 Junctions 23 and 29 around Newport falls short of modern motorway design standards. It has many lane drops and gains, as a result of some sections (including the Brynglas Tunnels) being two-lanes and others being three-lanes. Parts have no hard-shoulder, because of the incorporation of the original hard-shoulder into the highway itself. There are frequent junctions.

Coupled with these design issues, traffic flows are very high. In addition to through traffic, this part of the M4 is characterised by large volumes of local traffic. Martin Bates is a Project Director in the Transport Infrastructure Delivery Division of the Welsh Government, having previously had a similar role in the Welsh Office. He has been closely involved with developing proposals for the road transport system around Newport since 2005. In his statement of 30 January 2015, he sets out the history of the M4 around Newport, and how the challenges it presents have been considered from time-to-time. This history is largely uncontroversial, and this part of the judgment is indebted to it. Mr Bates says – again, uncontentiously – that, once traffic flows exceed 80% of road capacity, “operational problems” can be expected (paragraph 17 of his statement). By 2012, the traffic flows on the M4 around Newport during peak times exceeded 90%, being 98% between M4 Junctions 27 and 28. In practice, this means that the motorway is congested during weekday peak periods, with traffic jams and frequent incidents which can cause very severe delays. The motorway and surrounding roads are not resilient in transport planning terms: they cannot cope with changes in demand or conditions, such as bad weather. In addition, the motorway as it currently operates gives rise to high levels of noise and air pollution.

By 2022, if nothing more is done than that which is already planned and committed, traffic flows are forecast to exceed 80% for the whole stretch from M4 Junctions 24 to 29 and to exceed 100% between Junctions 26 to 29. By 2037, the traffic flows are expected to exceed 100% of capacity between Junctions 24 to 29. Once traffic flow exceeds 100% capacity, severe operational problems are of course inevitable, the affected part of the road network effectively seizing up altogether.

These problems have been recognised since the 1980s. In March 1989, the South Wales Area Traffic Study identified the need for substantial improvements to address the growing capacity issue for the section between M4 Junctions 23 and 29. It concluded that, because of topographical and other physical restrictions, there was no obvious opportunity to widen the existing motorway and no obvious corridor for a new road to the north of Newport.

Routes to the south of Newport were therefore investigated; and, in February 1992, a new three-lane relief road motorway from Magor to Castleton was included in the Government’s plan for new highway schemes, “Roads in Wales: Progress and Plans for the 1990s: 1992 Supplement” (which was the forerunner of the Welsh Trunk Road Forward Programme). Expert consultants (Ove Arup & Partners (“Arup”)) had been engaged by the Welsh Office to assess the options, including corridors to the north and south of Newport and simple widening and improvement of the current motorway. They concluded that a new motorway to the south was the preferred option, corridors to the north offering less traffic relief, having high costs risks, providing a major intrusion into communities and landscape, and being less compatible with existing planning strategy and policy. The Countryside Council for Wales was concerned about the impact of any southern route on the Gwent Levels SSSIs, and it requested a report providing a detailed explanation for the assessment of the northern options and the reasons for discarding them. A further review was carried out, but northern routes were again rejected, on the basis that (amongst other things) they would have a more severe impact on the built environment and the requirement for a new crossing of the River Usk would be a major severance feature.

Corridors to the north of Newport were therefore discarded in 1993 and, as Mr Bates says (paragraph 33 of his statement):

“Since then, no one has credibly suggested that a route to the north of Newport would be appropriate.”

The Claimant does not suggest that the Minister (or her predecessors) erred in not considering northern options further.

Following consultation, the preferred route for the M4 relief road was announced by the Secretary of State for Wales on 12 July 1995. A TR111 Notice was issued the same day, identifying a 134m wide corridor within which, to avoid any development that might create a risk that the proposed road would not be deliverable, any development decisions had to be referred to the Government for consideration. That route avoided some protected areas (such as the Severn Estuary SAC), but crossed the Gwent Levels SSSIs. However, says Mr Bates (paragraph 34), the route was identified to “minimise the potential impacts on the Gwent Levels SSSIs”. The preferred route was modified slightly in 1997, to enable the development of an employment site at Duffryn.

In 1999, responsibility for motorways was transferred from the United Kingdom Government to the Welsh Government, as I have described (paragraph 23 above).

In 2004, the Welsh Government Minister for Economic Development and Transport ordered a review of transport programmes, to ensure a strategic fit with new core planning policy documents, namely “Wales: A Better Country” and “The Wales Spatial Plan”. That review confirmed that additional capacity was required on the M4 motorway. On 7 December 2004, the Minister announced that the Welsh Government was proceeding with proposals to develop a new section of the M4 south of Newport.

Those proposals were subjected to a further preferred route review between 2004 and 2006, which specifically and expressly took into account changes such as the strengthening of protection for SSSIs by the 2000 Act (particularly the Welsh Government’s duty under section 28G of 1981 Act, introduced by the 2000 Act), the designation of the River Usk as an SAC in 2004, and the ending of steel production at Llanwern Steelworks. Indeed, reading the Arup review report dated April 2006 as a whole, it is clear that the section 28G duty was a main driver of the review (see, e.g., paragraph 3.2); and it expressly referred to the increased importance of SSSIs consequent upon the introduction of section 28G which it expressly took into account. The conclusion of the review was that the route corridor south of Newport remained the preferred option; but, in accordance with the Welsh Government’s duty under section 28G, it recommended revisions to the route protected by the 1997 TR111 Notice, moving the preferred route north (“Route C4”) to reduce the impact on and severance of the Gwent Levels SSSIs. It was noted that that new route reduced the length of SSSIs crossed and reduced the overall severance of the SSSI from the Caldicott Level. A more southerly alignment was discarded because it “would be contrary to the Ministerial commitment to deliver the lowest possible long-term environmental impact”. In announcing the revisions on 19 April 2006, the Minister said:

“There is a clear need for additional capacity along the M4 corridor in South-East Wales, essentially to reduce congestion along this strategic gateway and remove the obstacles to greater prosperity the length of the M4 corridor through to Swansea and West Wales…. The changes to the 1997 Protected Route offer a clear benefit to the environment by taking the route northwards and where possible onto land previously of industrial use thereby reducing its impact on the Gwent Levels including the [SSSIs]”.

That same day, a revised TR111 Notice was published, replacing the 1997 Notice, to protect the revised preferred C4 Route (which is essentially “the Black Route” eventually adopted in the Plan: see paragraph 54 below).

In 2009-10, various WelTAG Stage 1 Appraisals of the project were undertaken, which led to objectives for the M4 and transport system around Newport being identified by April 2009. These are set out as an appendix to an Arup draft document dated 4 May 2010, in the form of twelve TPOs which, as Mr Goodman emphasised in reply, have never substantively changed: with the exception of new TPO 15 (“A cultural shift in travel behaviour towards more sustainable choices”) which has been added, they are in substance the same as the TPOs in the adopted Plan (set out in paragraph 62 below). The outcome of these 2009-10 Stage 1 appraisals was that a new M4 route to the south of Newport was recommended for further appraisal (paragraph 50 of Mr Bates’ statement).

However, the project did not proceed to Stage 2, because, in a written statement in July 2009, the Deputy First Minister Ieuan Wyn Jones AM announced that the new M4 relief motorway was not affordable; although the statement accepted “the need to urgently address safety and capacity issues on the existing route” through the introduction of “a range of measures”. That statement was reflected in “The National Transport Plan 2010-15”, published in March 2010, which set out the transport schemes the Welsh Government would progress over the five year period. That did not include the new M4 relief motorway; but it said that, given the continuing capacity and safety problems, the Welsh Government would:

“Deliver a package of measures designed to improve the efficiency of the M4 in South-East Wales, including public transport enhancements, making the best possible use of the motorway and improving the resilience of the network.”

This became known as the M4 Corridor Enhancements Measures (“CEM”) Programme.

Two things are noteworthy about this development in the funding position. First, the project for a new M4 relief motorway was apparently not altogether abandoned. The Arup draft report dated May 2010 says:

“In order to achieve the above [i.e. the TPOs], Arup was asked to investigate potential schemes to improve the operation of the existing M4 around Newport, as part of the New M4 Project. Such schemes are to be implemented as interim measures to:

• Make best use of existing infrastructure and capacity;

• Improve the resilience of the network; and

• Improve public transport.

A strategy was thus required to embrace the above three themes and to ensure that any measures put forward would contribute effectively to one or more of those themes.” (emphasis added)

It was therefore recognised that, in due course, a longer-term solution to the identified problem would or may be required. However, future funding (even after the five years of the 2010-15 plan) was far from guaranteed; and Mr Bates (at paragraph 52 of his statement) accepts that:

“The M4 [CEM] Programme was therefore initiated by the Welsh Government and this aimed to create an affordable package of measures which could be delivered in phases as an alternative to a new motorway, to deal with the capacity, resilience, safety, and sustainability problems on the M4 around Newport.” (emphasis again added).

Second, the funding problem was not simply a question of the amount of money that a new relief road motorway would cost. A motorway such as that proposed, by its nature, has to be delivered in a single stage. The money for it therefore has to be available in a single stage. The cost cannot be spread by phasing the development. The Welsh Government therefore looked to packages of measures which (as Mr Bates says) could be delivered in phases.

Under the M4 CEM Programme, over one hundred possible measures were identified and considered in the course of public consultation, including corridor efficiency measures, widening the existing M4 between Junctions 24 and 29, hard shoulder running on the existing M4, bus priority on the M4, reduced public transport fares, a new lagoon barrage link, a new dual carriageway road to the south of Newport, and improvements to existing roads including the A48 Southern Distributor Road (a trunk road currently running between M4 Junctions 24 and 28) (“the SDR”) and the A4810 Steelworks Access Road (which runs between M4 Junction 23A and the SDR) (“the SAR”). It became apparent that no single solution would address the problems, and combinations of measures were therefore considered.

On 6 March 2012, the Welsh Government issued a consultation document, “M4 Corridor Enhancement Measures Magor to Castleton (M4 CEM): Easing the Flow” (“the March 2012 CEM Consultation Document”). The document describes the transport problems with the M4 around Newport, and the TPOs already identified (which had increased to fifteen, in the same terms as the TPOs in the eventually adopted Plan: see paragraph 62 below), which it refers to as “Goals”. Under the heading, “Developing strategic approaches to achieving the M4 CEM Goals”, the document said:

“No single solution delivers all the Goals, but through this methodology, measures that contribute towards a combination of compatible options, or ‘Packages’, have been identified. The Packages combine public transport, highway and other travel solutions.

The strategic approaches adopted by the Welsh Government to reduce congestion and to delivering the M4 CEM Goals all involve creating some new highway capacity on the M4, and/or elsewhere in the highway network between Magor and Castleton. However traffic congestion will not simply disappear as a result of capacity increase. This is because the development of new or up-graded, convenient and reliable roads tends to encourage more people on to them. This results in additional vehicles using additional road capacity (not a stable volume of vehicles using more/emptier roads).

To avoid this and to curb the rising demand for more highway capacity and to out transport onto a carbon reduction pathway, the M4 CEM Programme proposes increasing and improving the opportunities for access, and for travel and transport using alternative modes, such as trains and buses (public transport), cycling and walking. We also propose minimising the need for certain types of journey.

To enable the sustained productivity and competitiveness of Wales, and the South East Wales region in particular, highway infrastructure must also be developed…”.

As a result, the approach which the Welsh Government “may” take was described as one involving one of three highway infrastructure options, plus public transport measures, plus common measures, which (it was said) “could form part of the M4 CEM Strategy”. It was said that studies had shown that “new or improved public transport measures are likely to have only a minimal effect with respect to reducing traffic on the M4” of less than 3% (paragraph 8). The common measures were those that merely supported the strategic highway capacity and public transport measures. The key element was the highway infrastructure changes suggested, of which there were four:

The public transport measures – which comprised mainly increasing rail and bus services – were costed at £300m capital expenditure with ongoing subsidy costs of a similar amount over a 60 year period.

In respect of each of these options, the consultation sought views on the extent to which the option would address the problems identified and achieve the TPOs. It also sought views of prioritisation of TPOs. It was said that, once the consultation period had ended, the Minister would “decide which measures should be pursued as the best strategy aimed at addressing the problems of capacity, resilience, and safety, and sustainable development on the M4 Corridor between Magor and Castleton in the light of the responses to the Consultation” (paragraph 11).

The public consultation was held between March and July 2012. In November/December 2012, the Welsh Government also consulted on a number of other preliminary documents, namely a Health Impact Assessment, an Equality Impact Assessment, a Strategic Habitats Regulations Assessment Screening Report, a Strategic Habitats Regulations Statement to Inform Appropriate Assessment and an Environmental Report which purported to be an SEA report. The SEA Report was prepared on the same options basis as the March 2012 CEM Consultation Document. It was immediately met by a threat of judicial review by (amongst others) the Claimant, on the basis that the report did not comply with the SEA Directive because it failed to identify, describe and evaluate reasonable alternatives. Mr Bates says (at paragraph 61 of his statement) that it was subsequently recognised that it could not be an environmental report for the purposes of the SEA Directive or the 2004 Regulations, because it did not set out a preferred strategy (or, indeed, as the pre-action protocol letter alleged, reasonable alternatives). Before me, it is common ground that that report did not form part of any valid SEA process, and the Welsh Ministers do not rely upon it as such.

In March 2013, following that consultation, all of the M4 CEM options were considered in a WelTAG Stage 1 Appraisal Report, again prepared by Arup. This was, of course, an internal appraisal report, not the subject of consultation; and, although, as I have described, the criteria by which the WelTAG appraisal was performed reflected to an extent SEA Directive criteria, it was not part of any SEA process. For each option considered, the report included an appraisal of the November 2012 Environmental Report and the comments received on the consultation on that document (see paragraph 7 and the Appraisal Summary for each option).

The appraisal’s conclusions on the effects of the various highway infrastructure options on the problems with M4 around Newport were effectively set out in paragraphs 5.5 and 11.1.

Therefore, the appraisal concluded that, by the design year (2035), Options B, C or D (none of which involved a road across the Gwent Levels SSSIs) would provide no significant relief from the current identified problems with the M4. Indeed, in respect of each case, by that date the problems sought to be addressed would be as bad as or worse than they are now.

Of public transport, it said that studies suggested that a 50% increase in public transport use could result in a less than 3% decrease in traffic volumes on the M4. Thus it concluded that a high level assessment suggests that “public transport enhancements will not address the problems of the M4 CEM Programme”; but such enhancements would have wider benefits and they might usefully be pursued through an initiative by another team, the South East Wales Integrated Transport Task Force. It also supported various “common measures”, i.e. measures that would support any highway option chosen.

Of Option A (which was the only option which involved a new road across the Gwent Levels SSSIs), the appraisal said that:

“Option A has a much greater effect on reducing traffic volumes through the Brynglas Tunnels than either of the SDR improvement options, with a reduction of over 50% in the opening year. It also produces the highest total volume of traffic crossing the Usk screenline, suggesting that it offers greater capacity/network resilience than other options.”

Option A was referred to as “the favoured option”; but the final conclusion of the appraisal was that only Option A, together with public transport enhancement and common measures, was “worthy of further consideration and more detailed appraisal”. Public transport measures would have no material effect on the M4 problem (and should be considered in a different forum), and common measures were only supportive. The only option that addressed the identified problems was the highway option, Option A.

But, again, that option was not progressed; because there was then another major development with regarding to funding. As I have described, the reason why new motorway options had been removed from the table in 2009 was not simply cost. By its nature, a motorway has to be delivered as a single development; other options might be delivered in phases, so that the capital costs can be spread over a period of development. The Welsh Government determined that it could not afford a single stage development such as a motorway. However, from 2011, there were discussions between the Welsh Government and HM Treasury, as well as the work of the Commission on Devolution in Wales, which considered the devolution of fiscal powers and the borrowing powers of the Welsh Government. By June 2013, it had become clear that the Welsh Government would be able to use its borrowing powers to fund a solution to the problems of the M4 round Newport that involved the costs of a single development new motorway. It was again possible to consider new motorway options. Indeed, the Minister’s written statement of 26 June 2013 made clear that that is what the Welsh Government proposed to do. She said:

“As a result of ongoing discussions with the UK Government there has been a significant change in the assessment of the affordability of a major enhancement of the M4.

Building on the extensive development and consultation work undertaken on M4 [CEM], we will be consulting formally over the summer with [the NRB] in order to go out to public consultation this September with a finalised draft Plan and [SEA] Report.

If implemented, the draft Plan would lead to a motorway being built south of Newport.”

Mr Goodman, rather pejoratively, described this as a policy “U-turn” by the Welsh Government; but, in my view, that is not a fair description. A new motorway south of Newport had always been the Government’s preferred option, but it had not been viable in the period 2009-13 because funding was not available for such an option. That is why, during that period, they investigated other options. In substance, it was not the Welsh Government’s underlying policy or preferences that changed in 2013: it was the availability of funding.

With this development, a further WelTAG Stage 1 Appraisal had been conducted on 24 June 2013, which was clearly the basis upon which the Minister announced the motorway route south of Newport as, again, the preferred option. Mr Bates makes clear that the only change that prompted the fresh appraisal was:

“… the availability of funding, which enabled a solution to the problems on the M4 to be delivered in a single phase. The problems faced and the potential options for solving them had otherwise not changed.” (paragraph 76 of his statement).

The problems sought to be addressed had not changed. Nor had the objectives: the TPOs were reappraised, but were considered still to be “wholly relevant” (paragraph 1.3 of the June 2013 WelTAG Appraisal); and did not change at all from the March 2012 CEM Consultation/March 2013 WelTAG Appraisal.

With regard to options, the June 2013 WelTAG Appraisal set out (in paragraph 6) the conclusions to the March 2013 WelTAG Appraisal and in particular why it recommended that Options B, C and D be discarded, namely (in short):

“[N]o relief is likely to be provided to motorway congestion under Option B….

Whilst Option C would be likely to result in benefits, these would not be focused on relief to the motorway. By the design year (2035), analysis has shown that the traffic levels through the Brynglas tunnels under Option C would be reduced by only some 4% compared to a do-minimum scenario….

Traffic forecasts for Option D have indicated that, by the design year (2035), the section of motorway between Junction 26 and Junction 27 is likely to be operating some 6% above capacity in the westbound direction during weekday PM peak. This would be likely to result in severe operational problems. The lack of an alternative route will thus result in motorway capacity problems and network resilience issues.”

The change in available funding – the only change since March 2013 – did not improve any of those options.

The June 2013 WelTAG Appraisal considered three highway options (designated by the colour of the proposed new highway route on the appraisal plan) and two other sets of measures:

The June 2013 WelTAG Report provided a comparative assessment of these options, concluding that the Welsh Government should progress the preparation of a draft Plan on the basis of the Black Route. With regard to the other options:

The Appraisal Report dealt with environmental matters quite shortly, on the basis that these would be dealt with in due course in an SEA Report. However, it said that all three highway options “result in moderate to large impacts on the environment (biodiversity, landscape and townscape in particular” (page 71). Of biodiversity, it said:

“The new motorway would cross approximately 8.5km of [SSSIs] resulting in a loss of 60ha (less than 1.5%) of the total SSSI. The principal ecological interest of the Gwent Levels SSSI lies in the reen drainage system [i.e. the system of drainage channels].”

These options formed the basis of an SEA Report that was published for consultation on 23 September 2013. The proposed alternatives to be assessed in the SEA Report were the subject of a scoping report which was put out to consultation with statutory consultees; but no comments were received that additional alternatives should be considered. A further option (“the Blue Route”), to which I shall return (see paragraphs 67-70 below), was raised in correspondence from July 2013; but it was not detailed by its proponents until December 2013, and was not included in the SEA Report.

The purpose of the SEA Report consultation was set out on the frontsheet:

“We want your views on our draft Plan which aims to address transport related problems on the M4 around Newport.”

The report identified a “draft Plan” and “reasonable alternatives” to that option. The glossary gave the following definitions:

“draft Plan: This is the Welsh Government’s preferred strategy to solve transport related problems affecting the M4 Corridor around Newport in South Wales. If implemented, the draft Plan would lead to a new motorway (Black Route) being built to the south of Newport, alongside some complementary highway management, walking and cycling initiatives. Assessments of the draft Plan compare it to reasonable alternatives as well as the Do Minimum scenario.”

“Reasonable alternatives: These are reasonable alternatives to the draft Plan, being other options that the Welsh Government considers could solve transport related problems affecting the M4 Corridor around Newport in South Wales. If implemented, the reasonable alternatives would lead to either a new dual carriageway (Red Route) being built to the south of Newport, or a motorway solution along a similar alignment (Purple Route) alongside some complementary highway management, walking and cycling initiatives.”

The “transport related problems” referred to were set out in detail in paragraph 2.2, and summarised in paragraph 1.2 in similar terms to those set out above at paragraphs 25 and following. I need not set them out in detail here. They were not only described as “transport related”, but they are each in substance related to the problems with regard to the M4 around Newport.

Given these problems, the aims of the Welsh Government were set out in paragraph 2.3:

“The aims of the Welsh Government for the M4 Corridor around Newport are to:

1.

Make it easier and safer for people to access their homes, workplaces and services by walking, cycling, public transport and road.

2.

Deliver a more efficient and sustainable transport network supporting and encouraging long-term prosperity in the region, across Wales, and enabling access to international markets.

3.

To produce positive effects overall on people and the environment, making a positive contribution to the overreaching Welsh Government goals to reduce greenhouse gas emissions and to making Wales more resilient to the effects of climate change.

The draft Plan aims to help to achieve or facilitate these aims as part of a wider transport strategy for South East Wales, as outlined within the Prioritised National Transport Plan.”

The TPOs or “Goals” of the draft Plan were dealt with in paragraph 2.4, as follows:

“If the draft Plan (or any reasonable alternative to the draft Plan) is successful, its success will be measured by how well it achieves the following goals:

1.

Safer, easier and more reliable travel east-west in South Wales.

2.

Improved transport connections within Wales and to England, the Republic of Ireland and the rest of Europe on all modes on the international transport network.

3.

More effective and integrated use of alternatives to the M4, including other parts of the transport network and other modes of transport for local and strategic journeys around Newport.

4.

Best possible use of the existing M4, local road network and other transport networks.

5.

More reliable journey times along the M4 Corridor.

6.

Increased level of choice for all people making journeys within the transport Corridor by all modes between Magor and Castleton, commensurate with demand for alternatives.

7.

Improved safety on the M4 Corridor between Magor and Castleton.

8.

Improved air quality in areas next to the M4 around Newport.

9.

Reduced disturbance to people from high noise levels, from all transport modes and traffic within the M4 Corridor.

10.

Reduced greenhouse gas emissions per vehicle and/or person kilometre.

11.

Improved travel experience into South Wales along the M4 Corridor.

12.

An M4 attractive for strategic journeys that discourages local traffic use.

13.

Improved traffic management in and around Newport on the M4 Corridor.

14.

Easier access to local key services and residential and commercial centres.

15.

A cultural shift in travel behaviour towards more sustainable choices.”

The emboldened TPOs were most selected as priorities in the 2012 M4 CEM Consultation exercise (see paragraphs 40-44 above).

In the narrative of the SEA Report, the relevant history of the problems and proposals for their resolution was set out. It was explained that the March 2013 WelTAG Appraisal concluded that “… the following measures are worthy of consideration”, namely the Red Route, public transport enhancements and common measures. The options considered in the June 2013 WelTAG Appraisal were set out, and it was said that that appraisal concluded that the Black Route and complementary measures would “best achieve the goals and address the problems of the M4 Corridor around Newport…” (paragraph 2.6.2). That was the preferred option. The SEA Report then set out the draft Plan, and the Red Route and the Purple Route alongside complementary measures as reasonable alternatives.

The 2013 SEA Report expressly took account of the 2000 Act as a relevant statute (Table 5). Section 6 of the report deals with Environmental Objectives, which include: “Ensure that biodiversity is protected, valued and enhanced”. Section 7 deals, at some length, with the assessment of the significant effects of each SEA option (i.e. the preferred route and reasonable alternatives), as required by the SEA Directive. The details of the effects of the Black Route option are set out in paragraph 7.2 (which refers to the reen system being the principal ecological interest in the SSSIs) and Table 16 (which refers to mitigation measures such as new reens, actively managing the SSSIs more effectively and project-level measures designed to facilitate animal movements etc). All of this is focused on the potential harm to the Gwent Levels SSSIs, and mitigation in respect of that harm. That part concludes:

“Any scheme would be required to integrate necessary measures to avoid, reduce and offset in addition to delivering enhancements. The net benefit for biodiversity is considered to be positive in the long-term. However, considering the importance of the sites and features that may be affected the significance of effect has been determined as minor negative to account for any short term to medium term effects.”

The high level mitigation measures so far as biodiversity is concerned are set out in section 8.

The SEA Report was published in September 2013, with a draft Plan Consultation Document (which set out in more detail the appraisal of the draft Plan and reasonable alternatives), and associated assessments including the March 2013 and June 2013 WelTAG Appraisals. A dedicated website was set up, with an information hotline and email address, and all of these documents were put onto that website, as well as hard copies being deposited in libraries and local authority offices. Two stakeholder workshops and ten public exhibitions were held across Newport. The consultation period concluded on 16 December 2013.

On 11 July 2014, having taken into account the consultation responses, Mr Bates recommended the Black Route to the Minister, in a submission about which no discrete complaint is made. On 16 July 2014, the Minister announced the decision to adopt the Plan. It is, of course, that decision which the Claimant challenges in this claim.

As I have indicated (paragraph 57 above), a further possible option was raised by various bodies after the Ministerial announcement in June 2013 had not only put motorway options back onto the agenda but indicated that a new motorway south of Newport was the preferred option. The first letter was from Wildlife Trusts Wales to the Minister on 12 July 2013, which expressed concern about the proposed new motorway, and suggested that an upgraded SAR and SDR would provide a solution to the M4 problems at much less cost. It said that, with the Institute of Welsh Affairs and the Chartered Institute of Logistics and Transport Wales, they had commissioned a report from Professor Stuart Cole, a transport economics consultant. On 16 August 2013, RSPB Wales wrote to Mr Bates, expressing concern that not all reasonable alternatives had been included in the scoping report, and they specifically referred to the Blue Route and the commissioning of Professor Cole to report upon it. Professor Cole also referred to the Blue Route as an option in his evidence to the National Assembly for Wales Environment and Sustainability Committee during its enquiry into proposals for the M4 in the Newport area.

Professor Cole’s report (“The Blue Route – A cost effective solution to relieving M4 congestion around Newport”) was published on 7 December 2013. The Blue Route comprised upgrading the SAR to a two-lane dual carriageway of expressway/motorway standard, a freeflowing junction between the SAR and the SDR, grade improvements to the junctions along the SDR, and freeflowing junctions between the dual carriageway and the M4 at junctions 23A and 28. Thus it was proposed that there should be a high quality road, short of a motorway, running across the top of the Gwent Levels SSSIs and through the centre of Newport, which would be an alternative route to the current M4 which would remain. I do not doubt the credentials of Professor Cole – which are not challenged by the Defendant, and which are on any view impressive. However, this report was relatively modest in length (16 pages) and detail. But its conclusion was that the Blue Route would satisfy traffic capacity requirements between 2018 (by when Professor Cole considered it could be complete) until 2025. The report costed the package at £380m.

With eight other alternatives suggested during the SEA consultation exercise, it was appraised by Arup, the results of that appraisal appearing in a document published with the SEA Post-Adoption Statement, with the descriptive title “M4 Corridor Around Newport: The Plan: Strategic Appraisal of Alternatives Considered During Appraisal” (“the Post-Adoption SAA”). Although it was noted that upgrading the SAR and SDR as individual proposals had been discarded in 2010 as, looked at separately, neither fulfilled the objectives set for the Plan, Arup examined the Blue Route which combined the two components.

The Blue Route is appraised in paragraph 4.1. As Professor Cole’s report put forward a high level concept of the relevant route, Arup assessed a range of possible scenarios, namely (i) the full proposed package (which Arup costed at more than £800m), (ii) the package without the freeflowing connections with the M4 (which Arup costed at more than £600m), and (iii) upgrading with a limited budget of £380m, namely just grade separated junction improvements along the existing SDR. These three scenarios were the subject of detailed analysis, the appraisal executive summary concluding:

“The ‘Blue Route’

Appraisal indicates:

• It would provide some local accessibility benefits and a degree of increased network resilience, particularly at times of accidents and delays on the M4.

• It would not address the problems (i.e. the need for the scheme) or achieve the objectives for the M4 around Newport, whilst it performs poorly compared to the draft Plan (Black Route) appraisal.

• The cost of a Blue Route that aims to be attractive to motorway users is likely to cost more than £600m, whilst an optimal solution would cost more than £800m, excluding any allowance for land and compensation.

• Legal agreements between the Welsh Government and Tata Steel and St Modwen require access points to their land and operational areas. Therefore to upgrade the SAR to ‘expressway’ or motorway standard would require a completely new scheme to be developed that would involve land and property acquisition to provide the necessary motorway standard and the necessary service roads and junctions to serve existing and planned residential and employment land developments.

• Forecasts of future traffic volumes show even with the optimal Blue Route in place, operational problems would continue to be experienced around Newport.

• The Blue Route in combination with public transport measures would still not provide sufficient relief to the M4 Corridor around Newport.

• The risks of the Blue Route compared to the Black Route include greater economic, environmental and social impacts on communities, property and future development land allocations in the urban area of Newport, also resulting in possible job losses and potentially substantial claims for compensation.

• The Blue Route would not provide a long term solution to the identified (and acknowledged) problems associated with traffic congestion and journey time variability on the motorway around Newport.

The Blue Route, either as a stand-alone measure or in combination with public transport measures, is not considered to be a reasonable alternative to the draft Plan. The Blue Route, as considered within this document, should not be taken forward for further appraisal.”

Therefore, in summary, the Blue Route did not meet the objectives; but, even if it had done so, it would be an unattractive option.

In compliance with its obligations under article 9 of the SEA Directive and paragraph 16 of the 2004 Regulations (see paragraphs 81-82 below) the Welsh Government published, with the Post-Adoption SAA, three other documents: the Post-Adoption Statement, a Consultation Participation Report and a Strategic Habitats Regulations Assessment. The Post-Adoption Statement summarised the reasons for adopting the Black Route in the light of the reasonable alternatives considered, and the potential environmental effects and associated mitigation in similar terms to the SEA Report, as I have already described. There is no discrete complaint about that Statement.

I have already referred to the SEA Directive, and its place in the panoply of European measures designed to protect the environment (see paragraphs 7-12 above).

Recital (4) states:

“Environmental assessment is an important tool for integrating environmental considerations into the preparation and adoption of certain plans and programmes which are likely to have significant effects on the environment in the Member States, because it ensures that such effects of implementing plans and programmes are taken into account during the preparation and before their adoption.”

Thus, the objective of the SEA Directive – particularly important given the need for a broad and purposive approach to the interpretation of such instruments (see, e.g., Walton v Scottish Ministers [2012] UKSC 44 at [20]-[21] per Lord Reed JSC) – is set out in article 1, as follows:

“The objective of this Directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development, by ensuring that, in accordance with this Directive, an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment.”

I pause there to note that, although the ultimate object of the Directive is the protection of the environment, it seeks to fulfil that very high level object in a discrete way, namely by ensuring that relevant plans and programmes are subjected to an environmental assessment thus improving decision-making. It imposes purely procedural requirements. Of course, to ensure effectiveness, that environmental assessment must be performed during the preparation of the plan or programme, and before its adoption (article 4(1)); but it imposes no substantive obligations with regard to the decision itself, e.g. to chose the option that will cause the least environmental harm.

“Environmental assessment” is a process, defined in article 2(b) as follows:

“… the preparation of an environmental report, the carrying out of consultations, the taking into account of the environmental report and the results of the consultations in decision-making and the provision of information on the decision in accordance with article 4 to 9.”

“Environmental report” is defined in the same article as:

“… the part of the plan or programme documentation containing the information required in article 5 and Annex 1.”

Article 3(1) and (2) identify the circumstances in which an environmental assessment must be carried out. There is no doubt that the Plan in this case requires an SEA assessment under the Directive.

Article 5(1), crucial to Ground 1 in this claim, provides:

“Where an environmental assessment is required under article 3(1), an environmental report shall be prepared in which the likely significant effects on the environment of implementing the plan or programme and reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme, are identified, described and evaluated. The information to be given for this purpose is referred to in Annex I.”

Annex I includes, as information to be provided in the report:

“(h)

an outline of the reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken including any difficulties (such as technical deficiencies or lack of know-how) encountered in compiling the required information;…”.

Article 6 requires consultation on the draft plan or programme; and, before adopting any plan or programme, article 8 requires the decision-maker to take into account the environmental report prepared under article 5 and the responses to consultation under article 6.

Article 9 requires the plan or programme as eventually adopted to be made available to the public, together with:

“… a statement summarising how environmental considerations have been integrated into the plan or programme and how the environmental report prepared pursuant to article 5, [and] the opinions expressed pursuant to article 6… have been taken into account in accordance with article 8 and the reasons for choosing the plan or programme as adopted, in the light of the other reasonable alternatives dealt with…”.

The SEA Directive was implemented in Wales by the 2004 Regulations. They very much follow the form and terminology of the Directive; and it is common ground that they fully and properly transpose it. I can therefore deal with the Regulations briefly.

Regulation 5 (found within Part 2) effectively replicates article 3 of the Directive. Regulation 12, reflecting article 5, provides:

“(1)

Where an environment assessment is required by any provision of Part 2, the responsible authority must prepare, or secure the preparation of, an environment report in accordance with paragraph (2) and (3) of this regulation.

(2)

The report must identify, describe and evaluate the likely significant effects on the environment of –

(a)

implementing the plan or programme; and

(b)

reasonable alternatives, taking into account the objectives and the geographical scope of the plan or programme.

(3)

The report must include such of the information referred to in Schedule 2 as may reasonably be required…”.

Schedule 2 (“Information for Environmental Reports”) mirrors Annex I of the SEA Directive, paragraph 8 being in identical terms to paragraph (h) of that annex (save for the reference to the examples “such as technical deficiencies or lack of know-how”, which is omitted).

Regulation 13 requires consultation in line with the SEA Directive requirements; and regulation 8 prohibits the adoption of a plan or programme unless the environmental report and responses to the consultation process have been taken into account. Regulation 16 effectively transposes the post-adoption procedures of article 9 of the SEA Directive.

The SEA Directive does not seek to define “reasonable alternatives”; although the European Commission guidance in relation to the Directive (“Implementation of Directive 2001/42 on the assessment of the Effects of Certain Plans and Programmes on the Environment”) (“the SEA Commission Guidance”), to which I shall return (see paragraphs 103-104 below), seeks to give some indicators. It is in any event clear that that Member States have a significant margin of discretion with regard to how “reasonable alternatives” are identified. The European Commission Report on the application and effectiveness of the SEA Directive dated 14 September 2009 (COM(2009) 469) explains at paragraph 3.5, under the heading “Definition of reasonable alternatives (Article 5(1)”:

“Consideration and identification of alternatives in the environmental report is one of the few issues that have given rise to problems in [Member States]. Extensive national guidelines have been developed by some [Member States] in order to provide support for the identification and selection of reasonable alternatives in individual procedures. However, the majority of [Member States] have not defined how this should be done.

Most national legislations do not provide a specific definition of ‘reasonable alternatives’ or a number of alternatives that must be assessed; the choice of ‘reasonable alternatives’ is determined by means of a case-by-case assessment and a decision. All [Member States] report that a ‘do-nothing’ alternative has to be included in the environment report on a mandatory basis.”

Nor do the 2004 Regulations seek to define or further elucidate “reasonable alternatives”.

However, I was referred to a number of authorities in which the term has been considered, notably: R (Save Historic Newmarket Limited) v Forest Heath District Council [2011] EWHC 606 (Admin) (Collins J) (“Save Historic Newmarket”); Heard v Broadland District Council [2012] EWHC 344 (Admin) particular at [53]-[72] (Ouseley J) (“Heard”); R (Buckingham County Council and Others) v Secretary of State for Transport [2013] EWHC 481 (Admin) particularly at [160]-[165] (Ouseley J) (“HS2”) (which passage appears to have been accepted as sound by the time the matter went to the Supreme Court: see R (Buckingham County Council and Others) v Secretary of State for Transport [2014] UKSC 3 at [47]-[48] per Lord Carnwath JSC); R (Chalfont St Peter Parish Council) v Chiltern District Council [2013] EWHC 1877 (Admin) (His Honour Judge Foster) (“Chalfont St Peter (Admin Court)”) and [2014] EWCA Civ 1393 (“Chalfont St Peter (CA)”); and Ashdown Forest Economic Development LLP v Secretary of State for Communities and Local Government [2014] EWHC 406 (Admin) particularly at [84]-[100] (Sales J, as he then was) (“Ashdown Forest”). Although none of these cases concerned Wales, the transposition of the SEA Directive in England (by the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004 No 1633)) is in materially the same terms as the 2004 Regulations for Wales.

I shall deal with specific aspects of those cases in due course; but I will first set out propositions concerning “reasonable alternatives” for the purposes of article 5(1) of the SEA Directive which I derive from them, of course read with the Directive itself. In these propositions, I simply refer to a “plan”, rather than “plan or programme”; but both are intended to be covered. I refer to the relevant decision-maker as “the authority”.

Turning to the authorities, the relative competence of primary decision-makers and the courts in the planning field is very well-established and uncontroversial. I hope that, for convenience, I may be forgiven for referring to the way I put the matter recently in Stevens v Secretary of State for Communities and Local Government [2013] EWHC 792 (Admin) at [35]-[37]:

“35.

The courts themselves have long-recognised that town and country planning involves acute, complex and interrelated social, economic and environmental implications, and that Parliament has consequently entrusted its regulation to administrative decision-makers with planning experience and expertise, namely planning authorities (whose planning officers and committees also have local knowledge), and on appeal the Secretary of State acting through inspectors. Certainly, the courts have eschewed any suggestion that they should engage with the merits of planning decision-making, leaving such decisions to the appointed decision-makers, on the basis of guidance promulgated by the Secretary of State. It is well-recognised by the courts that planning decisions quintessentially require planning judgments of fact and degree, the merits of which are a matter entirely for the appointed administrative decision-makers. The limited role of the court in these circumstances has been emphasised in a number of cases (see, e.g., R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23 at [60] per Lord Nolan, [129] per Lord Hoffmann and [159] per Lord Clyde; and R (Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 74 (Admin) at [7] per Sullivan J as he then was)…. In Alconbury, having considered the relevant European Court authorities, Lord Hoffmann (at [129]) said that those cases did not require the court to substitute its decision for that of the administrative authority, and that such a requirement would not only be contrary to the jurisprudence of the European Court but ‘profoundly undemocratic’.

36.

Hence, according to this principle, in any challenge to such a planning decision, the courts are restricted to considering the legality of the decision-making process. The principle is well-established….

37.

Of course, that does not mean that a planning determination cannot be challenged in the courts: effectively, it may be challenged on any of the conventional public law grounds …”.

Those comments were of course made in relation to decision-making in the context of an application for development consent; but they equally apply – indeed, apply with greater force still – in the context of the preparation and approval of plans and programmes. That is the important starting point.

Of the cases to which I was referred on the construction of article 5(1) of the SEA Directive, I found two particularly helpful.

First, there is the judgment of Ouseley J in HS2, in which he considered five applications for judicial review of the United Kingdom Government’s decision in January 2012 that there should be a high-speed rail link between London on the one hand and Manchester and Leeds on the other (“the Y-network”). One of the many matters with which Ouseley J grappled was the contention that the SEA report in that case was defective because it did not analyse reasonable alternatives in the form of new motorways, changes to the conventional rail system and alternatives in the configuration of any high speed network system. He dealt with this at [162]-[163]. What he said was in the event obiter, because he found that the SEA Directive did not apply in this case; but, as I understand it, the issue was fully argued before him, and the superior courts (to which the matter proceeded) did not suggest that his comments were in any way unsound. He said:

“162.

The SEA [Directive] requires the environmental report to contain an outline of the reasons for selecting the alternatives dealt with. That selection is made taking into account the objectives of the plan. Alternative objectives do not have to be explained nor, for these purposes, the reasons why the objectives are thought worth achieving. It is alternative ways of meeting the objectives which are the focus of the SEA. The Government concluded that alternative strategies for motorways or a new conventional or enhanced existing rail network were not capable of meeting the plan objectives set for high speed rail. It is obviously a contestable view as to whether those objectives should be met, or can be met to a large extent by means other than a new high speed rail network. These alternative strategies could not, however, have constituted reasonable alternatives to the plan for assessment in the SEA, since they are incapable by their very nature of meeting all the objectives for a new high speed rail network. The sifting process whereby a plan is arrived at does not require public consultation at each sift. This whole process has been set out in considerable detail in the may published documents for those who wished to pursue it, but it did not all have to be in an SEA.

163.

The consultation process ranged wider on alternatives than would have been necessary for a consultation limited to what the SEA [Directive] required in relation to a plan. Although these were alternatives which the Government was prepared to consider through its non-SEA consultation process, that does not make them reasonable alternatives for the purpose of SEA, when measured against the objectives of the plan…”.

That passage is particularly helpful in emphasising (i) “it is alternative ways of meeting the objectives which are the focus of the SEA” ; (ii) a “reasonable alternative” is one capable of meeting the objectives identified; and (iii) the broad nature of the discretion in the decision-maker in determining whether options are capable of meeting the objectives identified and thus are “reasonable alternatives”.

I pause to note that, at [165], Ouseley J suggested that there was no obligation on the decision-maker to assess all reasonable alternatives: “What is required in the SEA are the reasons for the selection of the reasonable alternatives chosen for assessment”. Leaving aside the whittling down of alternatives within an SEA process, in my respectful view, that elides the criteria for reasonable alternatives and the criteria for the need to give reasons which may not be (and, in my judgment, are not) the same thing. I shall return to the difference as I see it below (see paragraphs 101-102). But suffice it to say for now that article 5(1) requires an SEA environmental report to identify, describe and evaluate the environmental effects of reasonable alternatives, i.e. all alternatives that are capable of meeting the relevant objectives, not a selection of such alternatives. However, the point does not arise before me, because, for the purposes of this claim, it is common ground that the SEA Report was required to deal with all reasonable alternatives. Mr Goodman submits that it did not do so; and Mr Moffett submits that it did.

The second judgment is that of Sales J in Ashdown Forest. This was an application to quash the Wealden District Core Strategy Local Plan (part of the statutory development plan for the relevant area) on the grounds that, inter alia, the steps taken by the authority to investigate whether the overall housing requirement figure of 9,440 was justified were inadequate to comply with the SEA Directive, because of a failure to examine reasonable alternatives. In considering the process with regard to reasonable alternatives, Sales J said this:

“90.

…. As to the substance of the work to be done by a local planning authority under article 5 in identifying reasonable alternatives for environmental assessment, the necessary choices to be made are deeply enmeshed with issues of planning judgment, use of limited resources and the maintenance of a balance between the objective of putting a plan in place with reasonable speed (particularly a plan such as the Core Strategy, which has an important function to fulfil in helping to ensure that planning to meet social needs is balanced in a coherent strategic way against competing environmental interests) and the objective of gathering relevant evidence and giving careful and informed consideration to the issues to be determined. The effect of this is that the planning authority has a substantial area of discretion as to the extent of the inquiries which need to be carried out to identify the reasonable alternatives which should then be examined in greater detail.

91.

These points are similarly relevant to interpretation of the SEA Directive and the standard of investigation it imposes as under ordinary domestic administrative law: see, e.g., the review of the authorities by Beatson J (as he then was) in Shadwell Estates Ltd v Breckland District Council [2013] EWHC 12 (Admin) [“Shadwell Estates”] at [71]-[78]. The Directive is of a procedural nature (recital (9)) and the procedures which it requires involve consultation with authorities with relevant environmental responsibilities and the public, with a view to them being able to contribute to the assessment of alternatives (recitals (15) and (17); articles 5 and 6). The relevant aspect of the obligation in article 5 is to identify and then evaluate “reasonable alternatives” to the plan in question. Under the scheme of the Directive and Environmental Assessment Regulations it is the plan-making authority which is the primary decision-maker in relation to identifying what is to be regarded as a reasonable alternative (and see [Heard] at [71] per Ouseley J: part of the purpose of the process under the Directive is to test whether a preferred option should end up as preferred “after a fair and public analysis of what the authority regards as reasonable alternatives”). In respect of that decision, the authority has a wide power of evaluative assessment, with the court exercising a limited review function.

92.

This interpretation is reinforced by the scope for involvement of the public and the environmental authorities in commenting on the proposed plan and to make counter-proposals to inform the final decision by the plan-making authority. The Directive contemplates that the plan-making authority’s choices may be open to debate in the course of public consultation and capable of improvement or modification in the light of information and representations presented during that consultation, and accordingly recognises that the choices made by the plan-making authority in choosing a plan and in selecting alternatives for evaluation at the article 5 stage involve evaluative and discretionary judgments by that authority which may be further informed by public debate at a later stage.

93.

The interpretation is also supported by the limited nature of the information which the plan making authority is obliged to provide to explain the selection of the “reasonable alternatives” which are selected for examination. It is only “an outline of the reasons” for selecting those alternatives which has to be provided (paragraph (h) of Annex I; language which is similar to that used in paragraph (a), “an outline of the contents, main objectives of the plan or programme [etc]”), directed to equipping the public to participate in debate about the plan proposed, not a fully reasoned decision of a kind which might be appropriate for a more intrusive review approach or exercise of an appellate function on the part of the court.

94.

As Mr Pereira submitted, paragraph (h) of Annex I (replicated in Schedule 2 to the Environmental Assessment Regulations) is to be contrasted with the language in the text of the equivalent paragraph of the draft of the SEA Directive which was originally proposed for adoption. The corresponding paragraph in the draft Directive (paragraph (f)) referred to “any alternative ways of achieving the objectives of the plan or programme which have been considered during its preparation (such as alternative types of development or alternative locations for development) and the reasons for not adopting these alternatives”. This was a more demanding standard in relation to the level of reasons which would be required to be given at the article 5 stage which the legislator chose to reject in favour of an obligation to provide only “an outline of the reasons” for selecting the alternatives to be subjected to full comparative appraisal.

…

96.

It is open to the plan-making authority, in the course of an iterative process of examination of possible alternatives, “to reject alternatives at an early stage of the process and, provided there is no change of circumstances, to decide that it is unnecessary to revisit them”; “But this is subject to the important proviso that reasons have been given for the rejection of the alternatives, that those reasons are still valid if there has been any change in the proposals in the draft plan or any other material change of circumstances and that the consultees are able, whether by reference to the part of the earlier assessment giving the reasons or by summary of those reasons or, if necessary, by repeating them, to know from the assessment accompanying the draft plan what those reasons are”: [Save Historic Newmarket] at [16]-[17]. It may be that a series of stages of examination leads to a preferred option for which alone a full strategic assessment is done, and in that case outline reasons for the selection of the alternatives dealt with at the various stages and for not pursuing particular alternatives to the preferred option are required to be given: [Heard] at [66]-[71]. As Ouseley J put it in Heard, in this sort of case “The failure to give reasons for the selection of the preferred option is in reality a failure to give reasons why no other alternatives were selected for assessment or comparable assessment at that stage” ([70]).

97.

A plan-making authority has an obligation under the SEA Directive to conduct an equal examination of alternatives which it regards as reasonable alternatives to its preferred option (interpreting the Directive in a purposive way, as indicated by the Commission in its guidance: see [Heard] at [71]). The court will be alert to scrutinise its choices regarding reasonable alternatives to ensure that it is not seeking to avoid that obligation by saying that there are no reasonable alternatives or by improperly limiting the range of such alternatives which is identified. However, the Directive does not require the authority to embark on an artificial exercise of selecting as putative “reasonable alternatives,” for full strategic assessment alongside its preferred option, alternatives which can clearly be seen, at an earlier stage of the iterative process in the course of working up a strategic plan and for good planning reasons, as not in reality being viable candidates for adoption.

98.

In my judgment, that is the position in the present case…

…

100.

As to the Claimant’s challenge to the adequacy of the reasons given… for selecting Scenario C, but not Scenarios A or B, for full strategic assessment, I consider that it fails. [The authority] was only obliged to give an “outline of the reasons for selecting the alternatives dealt with”, which in my view it undoubtedly did…. In giving “outline reasons” it was entitled to focus, as it did, on the main reasons why particular alternatives (in particular, Scenarios A and B) were not considered to be viable or attractive having regard to the full planning context – and hence were not “reasonable alternatives” – without descending into great detail to set out each and every aspect of the case or of impediments to adoption of such alternatives.”

I make no apology for the length of that quotation which, as will be seen, provides the derivation of (or at least substantial support for) many of the propositions I have set out above. In particular, Sales J stressed the importance of recognising the competence of the relevant authority, which has been assigned by a democratically-elected body to be the primary decision-maker. In the case before me, the relevant authority is the Welsh Ministers. It is they who have been assigned to identify objectives for the resolution of the transport problems that afflict the M4 around Newport. It is they who have been assigned to give appropriate weight to the multifarious objectives they have identified, and the other material considerations. It is they who, as primary decision-makers, have been assigned to determine – of course, on a properly informed basis and on a proper construction of the relevant legal provisions – the option that best meets their objectives (i.e. the preferred option) and whether any other particular option sufficiently meets those objectives to make it viable. After due SEA Directive process, it is for them to determine, again on a properly informed basis (including the responses to the SEA consultation), whether the provisionally preferred option remains the option which best meets their objectives. This court is only concerned with whether those decisions are legally rational.

Sales J referred to the judgment in Shadwell Estates, in which Beatson J (as he then was) specifically considered the role of the court in challenges to environmental assessment process. He confirmed (at [73]) that review of such assessments is on “conventional Wednesbury grounds”; and he quoted (at [78], within the passage cited by Sales J with approval), the Northern Ireland case of Re Seaport Investments Limited [2007] NIQB 62, in which Weatherup J said (at [26]) that:

“The responsible authority must be accorded a substantial discretionary area of judgment in relation to compliance with the required information in environmental reports. The court will not examine the fine detail of the contents but seek to establish whether there has been substantial compliance with the information required by Schedule 2 [i.e. Annex I of the SEA Directive, which was transposed in Northern Ireland by Schedule 2 to the Environmental Assessment of Plans and Programmes Regulations (Northern Ireland) 2004 (SI 1991 No 1220 (NI11)) in materially the same terms as it was in Wales and England]. It is proposed to consider whether the specified matters have been addressed rather than considering the quality of the evidence.”

Mr Goodman referred me to Chalfont St Peter (CA), in which, he submitted, Beatson LJ (giving the judgment of the Court of Appeal) himself assessed whether the threshold for “reasonable alternatives” (which threshold, at [75], was described as “low”) was crossed. I will come back to that reference to “low threshold” (see paragraph 104 and following below); but, as accepted by Mr Goodman during the course of his reply, Beatson LJ could not have been suggesting that there was any question of precedent fact here or that the nature of the court’s role was anything other than considering conventional public law grounds. The case concerned a core strategy allocation of a convent school site for housing. The claimant contended that there was a reasonable alternative, not considered in the SEA assessment, that a parish school could relocate to the convent school site, with the current parish school site then being used for housing. The County Council (the relevant local education authority) indicated that it would not provide funding for such a land swap, because the current parish school facilities were adequate. All parties appear to have accepted that the role of the court was one of traditional review; the judge at first instance had clearly regarded that as the proper role of the court; and Beatson LJ did not seek to gainsay that, concluding (at [76]) that “the District Council was not under an obligation to consider the land swap proposal as a reasonable alternative” (emphasis added). It is clear from Shadwell Estates that Beatson LJ’s very firm view is that the basis of review is Wednesbury; and it is inconceivable that he would have suggested such a fundamental change in public law in such a manner, without reference to any of the relevant authorities that make the court’s role clear. Nothing in his judgment in Chalfont St Peter (CA), properly construed, suggests a different role for the court.

Paragraph (h) of Annex I to the SEA Directive, when read with article 5(1) (as transposed in paragraph 8 of Schedule 2 to the 2004 Regulations, when read with regulation 12) requires the environmental report to include “an outline of the reasons for selecting the alternatives dealt with…”. The term “reasonable alternatives” is not used here. “The alternatives dealt with” must include all “reasonable alternatives” (with which such a report is required to deal), together with alternatives which have been dealt with in the SEA process but which have been assessed during that process as not meeting the objectives and thus not being “reasonable alternatives”.

The requirement to give reasons for selecting alternatives was considered by Ouseley J in Heard. This again concerned a core strategy document, which included provision for major urban growth in an area to the North-East of Norwich (“the North East Growth Triangle” or “NEGT”). One complaint was that the SEA Report failed to explain why, during the iterative SEA process, the options selected were restricted to those with growth in that particular area. Ouseley J held that (i) an iterative SEA process is allowed, but the SEA Directive requires an equal examination of all alternatives reasonably selected for examination at a particular stage, whether preferred or not (see [71]); (ii) the Directive requires reasons to be given for the selection of an option as the preferred (or sole) option (see [69]-[70]); and (iii) outline reasons can be given by reference to earlier documents, if those documents contained the required information (see [62]). None of those propositions is contentious before me; and, if I might respectfully say so, they certainly seem good to me. The judge also confirmed that what were “reasonable alternatives” depended upon an evaluative assessment by the relevant authority, saying (at [71]):

“It is part of the purpose of this process to test whether what may start out as preferred should still end up as preferred after a fair and public analysis of what the authority regards as reasonable alternatives” (emphasis added).

With regard to the complaint about the absence of reasons for the selection of alternatives in that case, Ouseley J said (at [66]):

“I conclude that, for all the effort put into the preparation of the [Joint Core Strategy], consultation and its [Sustainability Assessment, which was intended to satisfy the requirements for an SEA report], the need for outline reasons for the selection of the alternatives dealt with at the various stages has not been addressed. No doubt there are some possible alternatives which could be regarded as obvious non-starters by anyone, which could not warrant even an outline reason for being disregarded. The same would be true of those which obviously could not provide what [Regional Strategy] required, or which placed development in an area beyond the scope of the plan or the legal competence of the Defendants. But that is not the case here on the evidence before me, in relation to a non-NEGT growth scenario, with or without [the Northern Distributor Road], and especially with an uncertain [Northern Distributor Road]. Without the reasons for the earlier selection decisions, it is less easy to see whether the choice of alternatives involves a major deficiency.”

There was before me a lively debate as to whether Ouseley J was here using “obvious non-starters” negatively to define “reasonable alternatives” (i.e. “reasonable alternatives” being all options that are not “obvious non-starters”) as Mr Goodman submitted and as Beatson LJ appears to have assumed in Chalfont St Peter (CA) (at [75]: see paragraph 104 and following below); or, as Mr Moffett contended, merely to mark that some alternatives might prove so obviously “non-starters” that no reasons for the discarding of them need be given. Mr Moffett submitted, with very considerable force, that options that are “regarded as obvious non-starters by anyone” are unlikely ever to have fallen within the category of having the potential to meet the objectives of the relevant plan or programme.

The concept of the “obvious non-starter” may well be useful in some circumstances; but it is not a term that appears in the SEA Directive or statutory scheme nor, clearly, did Ouseley J use it as a term of art. In my view, he was not dealing with the scope of “reasonable alternatives” but with a different issue, namely the failure of a decision-maker to give reasons for the selection of the preferred (or sole) option and reasonable alternatives. He was here referring to the discarding of options that were never possibly reasonable alternatives, and stressing that, where these obviously never had merit as a reasonable alternative, it was unnecessary for the decision-maker to give any reasons at all for their being discarded because the reasons for discard would be obvious. He was not suggesting that there could not be alternatives that, in terms of being non-starters (in the sense of not meeting the decision-maker’s objectives), were less than obvious but which nevertheless did not fall within the scope of “reasonable alternatives”. For those options, reasons may have to be given for not selecting them as reasonable alternatives. Mr Goodman, very properly, accepted that, in respect of some options, it might only become apparent to the decision-maker that they are “non-starters” so far as meeting the decision-makers’ objectives is concerned after some appraisal of them has been done. In my judgment (and with respect to those who appear to have taken a different view), Ouseley J’s comments were clearly not intended to refer to the question of the scope of “reasonable alternatives”. Indeed, they do not appear to me to be concordant with the views he generally expressed in HS2, to which I refer above (paragraphs 91-92).

I was referred to the SEA Commission Guidance, which (at paragraph 5.14) states that: “The alternative chosen must be realistic”. Otherwise, in the absence of any assistance in the SEA Directive or 2004 Regulations, the courts have attempted to identify the hallmark of a “reasonable alternative” to a preferred plan or programme.

In this context, Mr Goodman relied upon this passage from the judgment of Beatson LJ in Chalfont St Peter (CA) at [75]-[76]:

“75.

Departmental Policy PPS12, which was in force [in England] at the time of these decisions, states of the requirement to evaluate reasonable alternatives, that ‘there is no point in inventing an alternative if it is not realistic’. That and the phrase ‘obvious non-starters’ used by Ouseley J in [Heard] (at [66]) for proposals which do not warrant even an outline reason for being disregarded shows that the threshold is low.

76.

Notwithstanding the low threshold, … I have concluded that, in the circumstances of this case, the District Council was not under an obligation to consider the land swap proposal as a reasonable alternative. It was thus not under an obligation to subject it to a sustainability appraisal in its environmental report.”

This reflects the reasoning of the first instance judge, who also took the phrase “obvious non-starters” to be negatively definitional of “reasonable alternatives” (see Chalfont St Peter (Admin Court) at [29]). However:

However, two other attempts at identifying the characteristic are, in my respectful judgement, more helpful. In HS2 at [162], Ouseley J used the concept of an option “capable of meeting the plan objectives” (see paragraph 91 above); and, in Ashdown Forest, Sales J considered that a “reasonable alternative” was one which the decision-maker “considered to be viable or attractive having regard to the full planning context” (see paragraph 94 above). In my view, an option other than the preferred option that is capable of meeting the objectives of the relevant plan, as determined by the relevant decision-maker, is the truest and most helpful formulation. However, whilst I am unpersuaded that “attractive” is an optimal term, an option which the decision-maker considers “viable … having regard to the full planning context”, as suggested by Sales J in Ashdown Forest at [100] is, in my respectful view, also a helpful and appropriate way to characterise “reasonable alternatives”; because an option will be so viable if, and only if, it is capable of meeting the objectives.

I reiterate that it is primarily for the Minister to identify objectives, to give each of those objectives the weight she considers appropriate and to determine whether a particular option does or does not meet the objectives. Mr Goodman submitted that this approach was legally wrong: the Minister merely has to take into account those objectives in determining whether an option is a reasonable alternative. But I do not agree. If, in the Minister’s rational view, an option is capable of meeting the objectives, then its acceptability on (e.g.) environmental grounds will be considered during the SEA process: indeed, that is the very purpose of the process. Making it a reasonable alternative ensures that it is subject to that process. That is not only what the SEA Directive requires, it makes clear practical sense: if a particular plan is incapable of meeting the identified objectives such that in practice it will never be pursued, there is no point in subjecting it to an environmental assessment.

In this case, matters were, in the event, clear cut: other than the draft Plan and the alternatives assessed in the 2013 SEA Report, none of the options considered came anywhere near meeting the objectives, the overall aim being to solve the current problems of the M4 around Newport. It is common ground that the M4 around Newport requires improvement. In each of the discarded options, by the design date, the problems would not be significantly less than they are today. In respect of most, they would be considerably worse. Therefore, the fact that some of those options might possibly cause less environmental harm – and in that sense they might be environmentally-preferable to the Plan – is not to the point.

The SEA Directive requirement for “an outline of reasons for selecting the alternatives dealt with” obliges the relevant decision-maker to provide reasons why all of the options covered by the SEA process were selected for that process. As I have explained, with regard to the preferred option and reasonable alternatives, they will have been selected because the decision-maker considers that they are capable of meeting the relevant objectives. The Directive requires the decision-maker to explain why. That requires consideration of not only why those options selected were considered capable of meeting the objectives, but, in appropriate circumstances, why other options were not. In this case, the Welsh Government did just that: it is clear from the SEA Report that the options discarded pre-SEA had been discarded because they would not significantly improve the position with regard to the M4 around Newport from the current position, upon which it was the entire purpose of the Plan to improve. In my judgment, that is clear from the face of the SEA Report; but, insofar as it is not, it is patently clear from the WelTAG Appraisals to which cross-reference is made in the SEA Report.

As Ouseley J explained in Heard (at [70]), the requirement also obliges the decision-maker to explain why, of all of the options that are capable of meeting the objectives, the decision-maker considers the preferred option to be the best, again by reference to the objectives. But, again, the SEA Report explains that too, namely that, of the viable options, the Black Route satisfies the TPOs best; and, in summary terms, why that was considered to be the case.

As I have indicated, under the umbrella of Ground 1, Mr Goodman relied upon several “sub-grounds”; but these largely illustrate the consequences of the fundamental public law error which, Mr Goodman submitted, underlies them all. He submitted that the process by which the Plan was adopted failed properly to identify, describe and evaluate all reasonable alternatives (and particularly alternatives that did not involve a motorway being constructed across the Gwent Levels SSSIs) on a comparable basis to the Plan. The draft Plan and all of the alternatives canvassed in the SEA Report involve the building of a fast road of two- or three-lanes each carriageway, on an identical alignment over the most environmentally sensitive part of their course, so that any possibility of an option not involving such a highway had been foreclosed prior to the commencement of the SEA process in 2013. Whether such other options might have less environmental impact than the preferred draft Plan was therefore never assessed within the SEA process; and, thus, the pass had been sold on the SEA Directive object of integrating environmental considerations into the preparation and adoption of plans. The major framework-establishing decision had been taken prior to the relevant public consultation.

He submitted that the legal test for “reasonable alternatives” was that indicated by Ouseley J in Heard, i.e. all alternatives that were not “obvious non-starters” fell within the scope of “reasonable alternatives”. However, in this case, it was clear (he said) that the Minister considered options without a major highway across the Gwent Levels SSSIs to be a reasonable alternative, in the sense of sufficiently meeting the objectives that she had set, because she assessed such alternatives in the March 2013 WelTAG Appraisal. Those options must have been regarded by the Minister as “reasonable alternatives” to the draft Plan, because the objectives did not change over the material period, and she not only had them appraised internally through the WelTAG Stage I Appraisal process but also put them into what she considered to be an SEA Report in November 2012. Only options that were regarded as “reasonable alternatives” would have been put into such a process.

The object of the SEA Directive was thus defeated.

However, forcefully as these submissions were made, I cannot accept them.

Therefore, on the facts, Mr Goodman cannot begin to make good his contention that the Welsh Government failed to include in the 2013 SEA Report and process reasonable alternatives that ought to have been included. They used the correct legal test throughout, choosing the option which they considered best met the TPOs as their preferred option and including other options that they considered capable of meeting the objectives as reasonable alternatives. The decisions they made with regard to selection of objectives, the weight given to each objective chosen and the selection of preferred option and reasonable alternatives were all in accordance with the relevant legal tests, rational and otherwise lawful. They explained, giving at least outline reasons (and, in practice, far more), why they had selected their preferred option and reasonable alternatives.

For those reasons, the foundation upon which Ground 1 is built is fundamentally flawed. The Minister’s approach to the identification of “reasonable alternatives” was not wrong in law: indeed, it was eminently correct.

That foundation having been found wanting, Ground 1 must fail. However, although they are mere reflections of the same overriding issue, before leaving Ground 1, I should briefly refer to the nine “sub-grounds” upon which Mr Goodman relied.

Sub-ground (i): The Defendant’s environmental assessment was improperly and irrationally premised on the basis that there was no reasonable alternative other than to build a road over a specified route across four SSSIs (the assessed variations occurring only in the route taken thereafter)

Sub-ground (ii): The Defendant, in treating harm to the SSSIs as inherently unavoidable failed to rationally assess the Plan or conform to the requirements of the SEA Directive

Sub-ground (iii): The Defendant misunderstood article 5(1) of the SEA Directive as requiring that alternatives examined in the environmental report should “deliver” the objectives, rather than take account of them and/or the reasons given for not selecting alternatives are inadequate and erroneous”

Sub-ground (iv): The scope of the Environmental Report was narrowed so as to exclude reasonable alternatives in consequence of a scoping exercise which was improper and in breach of Article 5(4)

Sub-ground (v): The Defendant improperly and/or irrationally and/or unlawfully excluded from consideration the Blue Route or any alternative capable of testing the otherwise inherent assumptions as to the inevitability of environmental harm

Sub-ground (vii): The Defendant’s “sifting” process by which it alighted upon the preferred option in June 2013 was procedurally improper, irrational and inconsistent with the SEA Directive

Sub-ground (viii): The SEA process was inadequate and/or irrational in that it did not set out adequately and intelligently why only alternatives involving roads through the SSSIs had been selected

Sub-ground (ix): The Defendant failed to take into account and/or give adequate reasons regarding its consideration of current knowledge and methods of assessment in relation to the impact of planned public transport improvements traffic forecasting (in breach of Article 5(2) of the SEA Directive)

As his second ground, Mr Goodman submits that, in considering and making her decision to adopt the Plan, the Minister breached the duty imposed upon her by section 28G of the 1981 Act. That section provides, so far as material:

“(1)

An authority to which this section applies…..shall have the duty set out in exercising its function so far as their exercise is likely to effect the flora, fauna or geological or physiographical features by reason of which [an SSSI] is of special interest.

(2)

The duty is to take reasonable steps, consistent with a proper exercise of the authority’s functions, to further the conservation and enhancement of the flora, fauna or geological or physiographical features by reason of which the site is of special scientific interest.”

The Welsh Ministers are an authority to which the section applies; and, therefore, the Minister was subject to the duty imposed by section 28G when deciding to adopt the Plan.

Mr Goodman submits that the duty was breached in two respects.

First, the Welsh Government failed properly to understand the nature of its duty under section 28G, which gave the protection and preservation of SSSIs enhanced weight in the decision-making process, such that there is a presumption against any plan that would lead to harm to such sites.

In support of that bold proposition, Mr Goodman relied upon authorities concerning the interpretation of provisions such as section 66(1) of the Planning (Listed Building and Conservation Areas) Act 1990 which imposes a duty on the relevant planning authority when considering an application for development which affects a listed building or its setting to have “special regard to the desirability of preserving the building or its setting…”. In Garner v Elmridge Borough Council [2011] EWHC 86 (Admin), of that provision, Ouseley J said this (at [8]):

“Section 66 does not permit a local planning authority to treat the desirability of preserving the setting of a listed building as a mere material consideration to which it can simply attach what weight it sees fit in its judgment. The statutory language goes beyond that and treats the preservation of the setting of a listed building as presumptively desirable. So if a development would harm the setting of a listed building, there has to be something of sufficient strength in the merits of the development to outweigh that harm. The language of presumption against permission or strong countervailing reasons for its grant is appropriate. It is the obvious consequence of the statutory language, rather than an illegitimate substitute for it.”

That was quoted with apparent approval on appeal (see [2011] EWCA Civ 891 at [7] per Sullivan LJ). Mr Goodman submits that the same approach should have been adopted by the Minister in relation to section 28G of the 1981 Act.

However, I do not agree. As Ouseley J made clear, in interpreting the true meaning and effect of section 66 of the 1990 Act, the statutory language was key. Section 28G of the 1981 is in entirely different terms. It does not impose a general duty on the decision-maker to have some particular regard to the desirability of protecting and preserving SSSIs: it imposes an entirely different type of obligation, namely a duty to “take reasonable steps… to further the conservation and enhancement of the flora, fauna or geological or physiographical features by reason of which the site is of special scientific interest”.

As Mr Moffett submitted, that section 28G duty is more akin to the duty of an employer under what was section 6 of the Disability Discrimination Act 1995, which provided:

“Where –

(a)

any arrangements made by or on behalf of an employer, or

(b)

any physical feature of premises occupied by the employer

place the disabled person concerned at a substantial disadvantage in comparison with persons not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect.”

As Baroness Hale explained in Archibald v Fife Council [2004] UKHL 32 (at [57]), that entailed a measure of positive discrimination, in the sense that it imposed a positive duty on the employer to take steps that are in all the circumstances reasonable to help disabled people which they are not required to take for others.

Similarly here, the section 28G duty does not seek to protect SSSIs by weighting the desirability of their protection as against other factors, but by requiring relevant authorities to take reasonable steps to “further the conservation and enhancement of the flora, fauna or geological or physiographical features by reason of which the site is of special scientific interest”. I gain some comfort that my view, based upon the wording of the relevant statutory provision, appears to be shared by the academic authors to whom I was referred (see Burnett Hall on Environmental Law, 3rd Edition (2012) at paragraph 9/087).

The question I have to consider is, therefore, not whether the Minister gave the desirability of conserving and enhancing these features particular enhanced weight, but whether she took reasonable steps to conserve and enhance those features. It is rightly common ground that “conserve and enhance” includes “not damage” the features.

I have already dealt with the relevant facts. However, in brief, the following matters are particularly relevant to this issue:

Mr Moffett submitted that the only steps that the Minister could have taken to conserve or enhance the relevant features would have been:

The second way in which Mr Goodman submitted that the Minister breached her duty under section 28G was that, he said, the 2013 SEA Report conclusion that the biodiversity impacts of the Black Route (and the reasonable alternative highway options) were “minor negative” was irrational, particularly bearing in mind the June 2013 WelTAG report conclusion that all three highway options “result in moderate to large impacts on the environment…”.

Mr Goodman did not actively pursue this sub-ground at the oral hearing. In my view, that was appropriate reticence: this is, in substance, a merits challenge. Although he suggests that the mitigation measures identified in the SEA Report were similar to that in the June 2013 WelTAG Appraisal conclusion, the SEA Report properly considered the potential harm to the SSSIs and the available mitigation measures, and its view as to the lack of long-term effects and thus its conclusion of minor negative harm overall is unassailable as a matter of law.

For those reasons, Ground 2 also fails.

This is a rolled-up hearing. As I have indicated, Mr Goodman (if I might say so, wisely) did not pursue Ground 3. I have formally refused permission to proceed in relation to that ground. With regard to Grounds 1 and 2, although, as will be apparent, I do not consider that each aspect of those grounds was of equal merit, I formally grant permission to proceed. However, for the reasons I have given, I refuse the substantive application.

Indeed, despite Mr Goodman’s valiant efforts, he has fallen very far short of persuading me that any of his grounds has been made good. Whilst I do not for one moment question the sincerity of the Claimant, its real complaint is as to the merits of the policy decision to sacrifice – to the necessary extent – the environmentally important and protected Gwent Levels by the construction of a motorway across their northern part. However, the merits of such a decision are quintessentially for the Welsh Government. This court is only concerned with the process by which that decision was made. For the reasons I have given, I am quite satisfied that the decision was lawful.