Re: Important European Court of Justice SEA case - Public forum - Planning Advisory Service (PAS)

I don't think your analysis is correct for two reasons: 1. LPAs are not SEA bodies and are therefore not both the plan making authority and a SEA body 2. The situation is not the same, as identified in para 40 of the decision, in that Northern Ireland is unusual in having only one body that is a SEA body whereas other parts of Britain have more than one. On both of these point objectivity is assured.

If I follow Andrew's point, a Planning Policy team cannot carry out it's own SA and SEA and claim objectivity, there has to be a 'chinese wall' between the team preparing the dpd (for example) and the team/person carrying out the SA and SEA. James, am I right in thinking that a SEA body is a consultee. Are you suggesting that this ruling only applies where it is the SEA body who have prepared the plan and who will be consulted on it? I'm hoping that somebody else will come along and tell us which one of you is right...

James is incorrect and misunderstood the judgement, and in any event the argument only applies to point 2 of the three arguments considered by the court An LPA conducting its own SEA on a plan where it is sovereign is a 'state body' under the directive e.g. LDFs The directive allows states to designate separate 'SEA bodies' to consult on plans and conduct SEA - as independent agencies - the finding of the court is that there is no compulsion on state bodies to do this - it is optional providing these are objective and their are Chinese wall arrangements.

I don't have issue with LPAs being 'state bodies' but I remain unconvinced that this judgement is applicable to LPAs and I will explain why. From the judgement: "The first and second questions 32 By its first two questions, which it is appropriate to consider together, the referring court asks, in essence, whether, in circumstances such as those in the main proceedings, where an authority which has been designated as the authority to be consulted as provided for in Article 6(3) of Directive 2001/42 is itself responsible for the conception of a plan for the purposes of that directive, that provision must be interpreted as requiring that another authority be designated as having particularly to be consulted in connection with the preparation of the environmental report and the adoption of that plan." This is not the case for LPAs as they are not both the body producing the plan and the body to be consulted. The Northern Ireland case is rightly subject to question because the authority is having to consult itself, however that has been judged as being ok due to the internal partition. Question 3 is about time scales and is not what we are discussing.

Does this mean that this extract from the DCLG guidence is now out of dat? Who should do SEA? 2.20 The Directive does not prescribe who is to carry out an SEA, but normally it is the task of the Responsible Authority, i.e. the body which prepares and/or adopts the plan or programme. 2.21 Good practice in SEA emphasises the value of integrating the assessment with the plan- or programme-making process. Many benefits of SEA may be lost if it is carried out as a completely separate work-stream or by a separate body. But it is also helpful to involve people, either within the Responsible Authority or outside, who are not directly concerned in producing the plan or programme and can contribute expertise or a detached and independent view.

Having read the judgement, I have interpreted the same as James above. I understand that the authority undertaking the SEA cannot also be the consultation body. Therefore in England, where the authority undertaking the SEA is the planning authority and the consultation bodies are the Environment Agency, Natural England and English Heritage, there would therefore not be a problem. I would appreciate the thoughts of others though.

Andrea - this is how I read it too.

Thanks to all for this discussion. it is my understanding that the Seaport case is about situations where an authority which prepares a plan or programme (termed a "responsible authority" in UK transposing regulations) is also an authority which must be consulted on SEAs (a "consultation body" in UK regulations). For example, the Environment Agency is a consultation body, but is also the responsible authority for river basin management plans, which are subject to the SEA Directive. The court has ruled that this situation is legal, provided that the part of the organisation which gives its opinion about environmental matters has the autonomy and resources to give an objective opinion as the SEA Directive requires. Local planning authorities are the responsible authorities for their own plans which are subject to the Directive, but are not consultation bodies, so the ruling is not relevant to them. As with all these kinds of issues, you should always seek your own counsel advice.