“England’s road network is a huge national asset and a cornerstone of our present and future economic prosperity. Across the country the government is investing in this network, in order to open up new opportunities, improve productivity and connect people and businesses. As part of this, after considerable consultation and review, the government is announcing today (12 September 2018 ) the preferred corridor for the new Oxford-Cambridge Expressway, accepting the recommendations of Highways England. The expressway, which fills a major gap in the national road network, will work together with the proposed East West Rail link to revolutionise east-west connectivity. In so doing, it will help unlock the commercial development of up to one million new homes. The expressway is projected to take up to 40 minutes off the journey between the A34 south of Oxford and the M1, so that hundreds of thousands of people will be brought within reach of high quality jobs in centres of rapid growth such as Oxford Science Park. The preferred corridor identified today runs alongside the planned route of East West Rail, so that consumers have a variety of road and rail travel options. This decision determines the broad area within which the road will be developed: the process of designing a specific route will now get under way, involving extensive further consultation with local people to find the best available options. Members of the public will be able to comment on the full set of frontrunning designs in a public consultation next year, and the road is on schedule to be open to traffic by 2030. The choice of this corridor means that the government has ruled out construction in the area of the Otmoor nature reserve, underlining its desire to protect the natural environment.”
“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 Member States, because it ensures that such effects of implementing plans and programmes are taken into account during their preparation and before their adoption.”
“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.”
“… “plans and programmes” means plans and programmes, including those co-financed by the European Union, as well as any modifications to them, which– (a) are subject to preparation or adoption by an authority at national, regional or local level; or (b) are prepared by an authority for adoption, through a legislative procedure by Parliament or Government; and, in either case, (c) are required by legislative, regulatory or administrative provisions; …” (a) are subject to preparation or adoption by an authority at national, regional or local level; or (b) are prepared by an authority for adoption, through a legislative procedure by Parliament or Government; and, in either case, (c) are required by legislative, regulatory or administrative provisions; …”
“Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.”
“If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.”
“… it is necessary to avoid strategies which may be designed to circumvent the obligations laid down in Directive 2001/42 by splitting measures, thereby reducing the practical effect of the directive.”
“The two Directives are to a large extent complementary: the SEA is ‘upstream’ and identifies the options at an early planning stage, and the EIA is ‘downstream’ and refers to the projects that are coming through at a later stage…. the boundaries between what constitutes a plan, a programme or a project are not always clear…”
“The kind of document which in some Member States is thought of as a plan is one which sets out how it is proposed to carry out or implement a scheme or a policy. This could include, for example, land use plans setting out how land is to be developed, or laying down rules or guidance as to the kind of development which might be appropriate or permissible in new areas, or giving criteria which should be taken into account in designing new development….”
“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. 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.”
“72. The Decision accepted HE’s recommendation to identify preferred corridor areas within which routes could be developed for public consultation, that is where detailed work would be focussed to develop route options. It does not preclude consideration or later development of routing options outside the preferred corridor. The preferred corridor areas included two different areas, one to the west of Oxford (B1) and one to the east of Oxford (B3), rather than a single preferred corridor. The Expressway can only be constructed either to the west or to the east of Oxford, and not in both. 73. I am aware that the Claimant has argued that the Decision was intended to direct the development of the Expressway by stipulating a corridor within which the Expressway must be built, and set a locational framework for the Expressway project so that it limits consideration of environmental effects to just this corridor, but this is genuinely not the case. The DfT does not regard itself, either as sponsor of the project or as decision-maker on the project, constrained in this way. No instruction has been given to HE through which the Decision would act as a constraint on what HE can propose. To the contrary, when HE asked for confirmation that it was appropriate to look beyond the preferred corridor area for solutions to environmental, engineering or other issues that emerged, DfT was happy to confirm that they could. I have seen nothing which would lead me to think that the Decision will be a material consideration when the time comes for the Secretary of State to make a decision on the DCO application. 74. The CAR and the Decision identified preferred corridor areas within which work would be focussed in the next stage to develop viable route options to be progressed into public consultation. This means that in practice it is likely that the route of the Expressway which is finally proposed through a Development Consent Order will be within one of the preferred corridor areas, Bl and B3, but there is nothing which requires this to be the case. It is possible that something identified in the future, either as part of one of the check-back exercises or arising for some other reason, will cause us to look for route options outside the preferred corridor areas identified in the Decision. If the preferred corridor area turns out to be worse than was judged in the CAR in a significant respect, including in relation to its environmental effects, then we would review the corridor position. The Decision was a pragmatic way of attempting to narrow down the work with HE had to do to develop route options, but it did not impose any kind of constraint on the project or on the decision-making in relation to the project. 75. The Decision does not mean that the Expressway will, or can only, be constructed within the preferred corridor area. Nor does it mean that the preferred route to be selected in around Autumn 2020 must be situated within the preferred corridor area. The Decision does not confine the later decisions on the preferred route or on development consent. The Decision does not fix a corridor within which the Expressway must be built, nor set any parameters which limit the scheme, nor set any confines for later decisions. The Decision does not mean that alternatives outside the preferred corridor area, and their environmental effects, are ruled out from any further consideration. No instruction has been issued by HE which could have any effect like this and the DfT does not regard itself as bound in any way as regards future steps or future decisions by the Decision. 76. No part of the Expressway project development process will constrain the decision on whether or not to grant development consent nor will it affect the discretion of the Government on whether or not to proceed with all or any part of the project. 77. The overall study area being used by the Expressway design team for the identification of suitable route options is centred on the preferred corridor areas but extends out across a study area that is appropriate and proportionate for the topic and receptor type being assessed. [A receptor is an asset (natural or engineered), community or feature that may be affected by impacts of the proposal. As an example if vibration is experienced from road traffic, a grade 1 listed building is defined as a receptor. The first task is to identify all the sensitive features (receptors) such that impacts of a proposal can be assessed.] Moreover, the corridor areas are subject to amendment as part of an iterative assessment and corridor refinement process which will likely broaden out the study area in some locations or focus it more tightly in other areas. As a matter of fact, the route option development process is not being confined to the preferred corridor areas identified in the Decision. The preferred corridor area boundaries are being treated by HE in its assessment work as indicative only, with HE effectively reserving the ability to go outside those boundaries when developing route options.”
“Administrative provisions are formal requirements for ensuring that action is taken which are not normally made using the same procedures as would be needed for new laws and which do not necessarily have the full force of law. Some provisions of ‘soft law’ might count under this heading. Extent of formalities in its preparation and capacity to be enforced may be used as indications to determine whether a particular provision is an ‘administrative provision’ in the sense of the Directive. Administrative provisions are by definition not necessarily binding, but for the Directive to apply, plans and programmes prepared or adopted under them must be required by them, as is the case with legislative or regulatory provisions.”
“36. Against that background, and unaided by more specific authority, I would have regarded the concept embodied in article 3.2 as reasonably clear. One is looking for something which does not simply define the project, or describe its merits, but which sets the criteria by which it is to be determined by the authority responsible for approving it. The purpose is to ensure that the decision on development consent is not constrained by earlier plans which have not themselves been assessed for likely significant environmental effects. That approach is to my mind strongly supported by the approach of the Advocate General and the court to the facts of Terre Wallone case[2010] ECR I-5611 and by the formula enunciated in Inter-Environnement Bruxelles ASBL v Région de Bruxelles-Capitale[2012] 2 CMLR 909 and adopted by the Grand Chamber in Nomarchiaki case[2013] Env LR 453. 37. In relation to an ordinary planning proposal, the development plan is an obvious example of such a plan or programme. That is common ground. Even if as in the UK it is not prescriptive, it nonetheless defines the criteria by which the application is to be determined, and thus sets the framework for the grant of consent. No doubt the application itself will have been accompanied by plans and other supporting material designed to persuade the authority of its merits. In one sense that material might be said to “set the framework” for the authority's consideration, in that the nature of the application limits the scope of the debate. However, no one would for that reason regard the application as a plan or programme falling within the definition. 38. In principle, in my view, the same reasoning should apply to the DNS, albeit on a much larger scale. It is a very elaborate description of the HS2 project, including the thinking behind it and the government's reasons for rejecting alternatives. In one sense, it might be seen as helping to set the framework for the subsequent debate, and it is intended to influence its result. But it does not in any way constrain the decision-making process of the authority responsible, which in this case is Parliament. As Ouseley J said: “96. The very concept of a framework, rules, criteria or policy, which guide the outcome of an application for development consent, as a plan which requires SEA even before development project EIA, presupposes that the plan will have an effect on the approach which has to be considered at the development consent stage, and that that effect will be more than merely persuasive by its quality and detail, but guiding and telling because of its stated role in the hierarchy of relevant considerations. That simply is not the case here.” 39. With respect to Sullivan LJ, I do not think that position is materially changed by what he called the “dual role” of government. Formally, and in reality, Parliament is autonomous, and not bound by any “criteria” contained in previous government statements. 40. I have noted that the majority and the minority in the Court of Appeal adopted the same test, turning on the likelihood that the plan or programme would “influence” the decision. The majority referred to the possibility of the plan having “a sufficiently potent factual influence” (para 55). Although Mr Mould generally supported the reasoning of the majority, he submitted that “influence” in the ordinary sense was not enough. The influence, he submitted, must be such as to constrain subsequent consideration, and to prevent appropriate account from being taken of all the environmental effects which might otherwise be relevant. 41. In my view he was right to make that qualification. A test based on the potency of the influence could have the paradoxical result that the stronger the case made in favour of a proposal, the greater the need for strategic assessment. Setting a framework implies more than mere influence, a word which is not used by the court in any of the judgments to which we have been referred. It appears in annex II of the directive, but only in the different context of one plan “influencing” another. In Terre Wallone[2010] ECR I-5611 Advocate General Kokott spoke of influence, but, as already noted, that was by way of contrast with the submissions before her which suggested the need for the plan to be “determinative”.” “96. The very concept of a framework, rules, criteria or policy, which guide the outcome of an application for development consent, as a plan which requires SEA even before development project EIA, presupposes that the plan will have an effect on the approach which has to be considered at the development consent stage, and that that effect will be more than merely persuasive by its quality and detail, but guiding and telling because of its stated role in the hierarchy of relevant considerations. That simply is not the case here.”