Hertfordshire Minerals Local Plan Review 2002 – 2016

Provisional Statement to justify why Hertfordshire County Council considers that a Strategic Environment Appraisal of the Minerals Local Plan Reviewis not feasible

1.Summary

1.1The purpose of this report is to consider the implications of the EU Directive on Strategic Environmental Assessment. Under the Directive,development plans which are not adopted by 21 July 2006 must be subject to an SEA. This report outlines the relevant legislative provisions and considers more particularly those matters relevant to exceptional non-compliance with the requirements of the Directive.

1.2This report explains in this contextwhy aStrategic Environmental Assessment of the Minerals Local Plan Reviewhas not been feasible and falls within one of the exceptional cases where a decision-making authority may conclude that compliance with the Directive may not be required. The County Council (“the Council”) has considered the environmental effects of the Minerals Local Plan Reviewsystematically and in detail and it is considered that the objectives of the Directive have been substantially met. In line with best-practice, the Council soughtstakeholders’ views in respect of its provisional decision that a process of Strategic Environmental Assessment of the Minerals Local Plan Review has not been feasible.

2. Background

2.1In 1998 work commenced to review the Minerals Local Plan (Adopted July 1998) with the consultation and adoption of the Framework for Site Selection. The subsequent site selection study incorporated a sustainability appraisal and formed an integral part of the evidence base for the Minerals Local Plan Review 2002 -2016. Appendix A sets out the process for site selection, including the sustainability appraisal undertaken.

2.2In parallel to the Site Selection Study, independent consultants (The Landscape Partnership) were appointed to undertake a Landscape Character Assessment which includedan assessment of the mineral bearing land of the County. This assessment was also the subject of public consultation.

2.3The Council drew together the Site Selection Study, Landscape Character Assessment and other relevant data to develop the pre-deposit consultation document which set out the key issues surrounding mineral extraction and the options for dealing with them. The Key Issues consultation took place between 29 October 2001 and 4 January 2002. The purpose of the Key Issues Document was to initiate public debate about the content of the new Plan, including (but not limited to) its site-specific content. The Key Issues Document identified 21 potential areas for future mineral extraction (“Proposed locations for further study as potential areas for mineral extraction”) as a starting point for ultimately determining which areas would be identified as preferred areas for mineral extraction in the Plan. The Key Issues Document also raised a range of issues relating to the potential Plan content, on which respondents were invited to comment. As well as contacting a range of stakeholders through written consultation, officers and members of the Council attended public meetings on request and held an open meeting on 17 April 2002 from 9am to 9pm, where members of the Council’s Aggregates Panel received oral representations on the Key Issues Document. A total of 63 speakers were heard, of which 36 speakers represented 34 organisations and 27 spoke as individuals. Appendix A includes a more detailed description of the consultation undertaken as part of the site selection process. Throughout the development of the Plan Review, the Council sought to demonstrate that environmental impacts were assessed from the outset in an open, systematic way.

2.4The First Deposit Draft consultations on the Plan took place between 7 October and 16 December 2002. 627 objections were made. The Second Deposit Draft consultation took place between 13 October and 24 November 2003 and a further 22 objections were made. Proposed Pre-Inquiry changes were published for consultation between 1 June and 3 July 2004 and a further 111 objections were received. In addition to the statutory requirements, neighbour notifications were sent to all properties within 100m of the boundaries of the proposed preferred areas, the Council’s web-site was updated regularly and the Councils’ newspaper “HertsDirect” (delivered to every household in the county) detailed each stage of the review process. Both Deposit Drafts and the Proposed Pre-Inquiry Changes were the subject of a process of sustainability appraisal that subsumed many of the characteristics of Strategic Environmental Assessment - a process characterised for the purposes of this report as “Hertfordshire Sustainability Appraisal”.

2.5An independent Inspector was appointed to consider objections to the Plan on 17 February 2004. A Pre-Inquiry meeting was held on 27 May 2004. Further written representations to the Plan and proofs of evidence from objectors were required to be submitted by 27 July 2004, with the Council’s responses published 2 weeks later. Apublic inquiry into objections to the Minerals Local Plan Review opened in September 2004 and closed in December 2004. The Inquiry sat over 9 days. At that time there were 530 objections to the 1st Deposit Draft and 18 objections to the 2nd Deposit Draft outstanding. 44 objections by 17 objectors were heard at the Inquiry whilst 64 objections by 19 objectors were dealt with by way of further written representations.

2.6The Inspector’s Report was published in May 2005. Modifications to the Plan were published and consulted upon during December 2005 - January 2006.

2.7In March 2006, the Council intended to publish a notice of its intention to adopt the Minerals Local Plan Review. An item relating to this was due to be reported to the Council’s Cabinet on 20 March 2006 and to thefull Council on 28 March 2006. However,immediatelyprior to this, the Council received a letter dated 28 February 2006 from the Office of the Deputy Prime Minister (“ODPM”) advising plan making authorities of the need to carry out Appropriate Assessmenton land use plans in order to comply with the EU Habitats Directive. The adoption of the Minerals Local Plan Review was postponed to enable the Council to undertake the necessary screening as to whether an Appropriate Assessment was required of the Minerals Local Plan Reviewor not.

2.9The screening of the Minerals Local Plan Reviewto ascertain the need for an Appropriate Assessment took place between April and July 2006. Consultation with English Nature (the “competent body”) has confirmed that an Appropriate Assessment is not required but has identified a need to make some additional modifications to the supporting text of plan to fully accord with the Habitats Directive. As a consequence, the Minerals Local Plan Reviewwas not formally adopted by 21 July 2006. As a result of this, a Strategic Environmental Assessment of the Minerals Local Plan Reviewis required to comply with the Strategic Environmental Assessment Directive unless the Council as the plan-making authority for the Minerals Local Plan Reviewdecides that it would not have been feasible to undertake an Strategic Environmental Assessment.

3.Requirements of the SEA Directive

3.1The Strategic Environmental AssessmentRegulations came into force on 20 July 2004 to implement the requirements of the Directive in the UK.The former ODPMpublished“The Strategic Environmental AssessmentDirective: Guidance for Planning Authorities” in October 2003.

3.2Regulation 6(1) states that the responsible authority shall carry out an

SEA of a plan of which the first preparatory act is before 21 July 2004 and which is not adopted or submitted to legislative procedures for adoption before 21 July 2006.

3.3However Regulation 6(2) states: “Nothing in paragraph (1) shall require the environmental assessment of a particular plan or programme if the responsible authority - (a) decides that such assessment is not feasible; and (b) informs the public of its decision”

3.4The Regulations require the systematic and transparent assessment of the likely environmental effects of a wide range of plans and programmes that have a strategic role in directing development and other interventions in the environment. The objective of the Strategic Environmental Assessment provisions is to provide a high level of protection, integration and environmental consideration into plan and programme preparation and the promotion of sustainable development.

3.5The Strategic Environmental Assessment provisions also involve the continuing review and reporting on the likely significant environmental effects, consultation with environmental authorities and the public and public consultation of the final environmental report. The outcome of each stage is then taken into account during the plan preparation process. The Regulations require that this process is carried out from the outset and before the plan or programme can be adopted.Adoption must be accompanied by a statement summarising how environmental considerations have been integrated into the plan or programme and how the results of consultations have been taken into account.

3.6The ODPM guidance referred to in paragraph 3.1 above was publishedin advance of the transposing legislation to help authorities become familiar with its requirements. It advised that the Directive will apply to plans where formal preparation commenced before 21 July 2004 if they have not been adopted or submitted to legislative procedures for adoption by 21 July 2006.

4Where SEA is not feasible

4.1In July 2006 the ODPM published ”The SEA Directive: Advice for Planning Authorities on Retrospective Application”(a copy of which is attached to this report at Appendix B). This advicestates:

‘It is for the responsible authority which prepares a plan to form a view on whether it is feasible to carry out an environmental assessment. Decisions are however open to both domestic judicial review and infraction proceedings brought by the European Commission. Ultimately, what is feasible will be decided by the courts.

4.2The Advice also states that it would be advisable to carry out aStrategic Environmental Assessment in all cases except where:

a)The plan concerns minor alterations to an existing plan or is concerned with a small area and is unlikely to have any significant environmental effects OR

b)The plan had reached such an advanced state on 21 July 2004 that there were compelling reasons why Strategic Environmental Assessment should not be carried out at that stage and it would be unreasonable to do so. The criteria to be taken into account when reaching this decision could include:

  • the nature and number of statutory steps still to be taken before adoption would normally take place,
  • the expense and disruption of having to go back to the beginning of the plan preparation process and
  • the extent to which the Strategic Environmental Assessment at this stage was unlikely to add value

4.3Authorities are also advised that the above criterion must all be weighed against the environmental protection objectives of the Strategic Environmental Assessment Directive. An authority’s argument that it is not feasible to carry out aStrategic Environmental Assessment is likely to carry considerable weight if, as at 21 July 2004, an inquiry or examination in public has already commenced or was about to commence.

5.Why Strategic Environmental Assessment of Minerals Local Plan Reviewhas not been feasible

5.1The Council has taken into account the following factors in accordance with the former ODPM Advice.

5.2The nature and number of statutory steps to be taken before adoption

5.2.1A public inquiry was held between September-December 2004 to consider objections to the Minerals Local Plan Review. At 21 July 2004, the Plan was therefore at an advanced stage, with the Inquiry process well under way. Proofs were required to be submitted by 27 July 2004.

5.2.2The Inspector’s Report was published in May 2005 and following modifications to the plan, the Council had intended to publish notice of its intention to adopt the Minerals Local Plan Reviewin March 2006. Consequently the only remaining steps to be taken prior to the letter from ODPM referred to in paragraph 5.24 below wereapproval by the Council to publish the formal notice of intention to adopt, the publication of the relevant notice and final adoption/publication after the due period. TheCouncil was due to consider this on 28 March 2006.

5.2.3It was always the Council’s intention that the Plan would be adopted prior to 21 July 2006, as set out in the timetable in First and Second Deposit Drafts(proposed adoption late 2004); The Proposed Modifications/Final draft for adoption (proposed adoption Spring 2006); and the Minerals and Waste Development Scheme (proposed adoption date March 2006)which was submitted to the Government Office in March 2005 and brought into effect on 18 April 2005.It would not, as at 21 July 2004, have been feasible to commence a formal process of Strategic Environmental Assessment consistently with this timetable.

5.2.4However, the former ODPM circulated a letter dated 28 February 2006 to all plan making authorities in England and Wales, advising of its intent to amend the UK Conservation (Habitats &c) Regulations 1994 to make land use plans subject to Appropriate Assessment of their implications for European Sites to ensure that the 1994 Regulations transposed completely the requirements of Article 6(3) and (4) of the Habitats Directive. The penultimate paragraph of this letter went on to suggest that if it is decided that a plan is likely to have significant effect then the local planning authority may go on to decide “whether it is reasonably practicable to carry out an Appropriate Assessment” and that “if LPAs decide that it is not reasonably practicable to apply Appropriate Assessment to land use plans that are adopted before the amending regulations come into force, they should justify their decision with evidence”.

5.2.5The Minerals Local Plan Reviewis a land use plan. The purpose of an Appropriate Assessment is to assess the impacts of a land use plan against the conservation objectives of a European Site and to ascertain whether it would adversely affect the integrity of that site. Where significant negative effects are identified, alternative options should be examined to avoid any potential damaging effects.

5.2.6Pursuant to legal advice from Queen’s Counsel dated 15 March 2006, the Council began work to determine whether the emerging Minerals Local Plan Reviewwas likely to have any significant effects on these European sites (“screening process”). The result of this screening would enable the Council to determine whether an Appropriate Assessment of the Minerals Local Plan Review needed to be carried out or not. The screening process took place between Apriland July 2006. The Council was then obliged to consult with English Nature on the outcome of the screening process. English Nature responded by letter to the Council dated 3 August 2006 and received on 4 August 2006.

5.2.7As the Council was in process of ascertaining whether an Appropriate Assessment was needed or not, it could not have adopted the Minerals Plan by 21 July 2006, the date after which all non- adopted development plans must be subjected to a Strategic Environmental Assessment, unless it is concluded that it is not feasible to do so.

5.2.8Had the Council proceeded to adopt the Minerals Local Plan Reviewwithout having ascertained whether an Appropriate Assessment was required or not, and if so, to undertake an Appropriate Assessmentof the emerging Minerals Local Plan Review, the Council would have not complied with the legal requirements of the Habitats Directive and as such, be at risk of a successful legal challenge by a third party. This could result in the quashing of the entire plan.

5.2.9 If aStrategic Environmental Assessment were required under the Directive, the Council would need to go back to the start of the process for the review of the Minerals Local Plan Review. This would delay adoption of the Minerals Local Plan Reviewfor a minimum of three further years, but more realistically for an unknown longer period of time.

5.3The extent to which Strategic Environmental Assessment would be likely to have added value

5.3.1Appendix C sets out the requirements of the Strategic Environmental AssessmentDirective against the sustainability appraisal the Council carried out. The Hertfordshire Sustainability Appraisal was carried out in accordance withtheUK based methodology as set out (at the time) in Planning Policy Guidance Note 12 – Development Plans (1999). The Hertfordshire Sustainability Appraisal assesses the likely economic, social and environmental impacts of plans and policies. This process has been adopted for every stage of the Plan’s progress, including the Further Modifications now proposed in light of the screening arising from the requirements of the Habitats Directive. The Council believes that the appraisal work carried out so far has, as is reasonably practicable, considered the environmental impacts associated with the Minerals Local Plan Review and further to this has carried out an Appropriate Assessment screening.

5.3.2The first appraisal was carried out in July 2002 and assessed the draft policies for the first deposit draft using a methodology based on Government guidance at the time. Further appraisals then accompanied each subsequent stage of the plan making process. It has therefore been an iterative process which has informed the preparation of the plan at each stage. Each of the appraisals has fully met the requirements for Sustainability Appraisal as well as including elements of Strategic Environmental Assessment. In addition, each stage of the Hertfordshire Sustainability Appraisal has been adapted to take into account emerging guidance from Government. This includes PPG 12 (December 1999) and the Draft Guidance on the Strategic Environmental Assessment Directive (October 2002) in relation to the 1st and 2nd Deposit Drafts of the Plan.

5.3.3“A Practical Guide to the Strategic Environmental Assessment Directive” was published by ODPM in September 2005 – post-dating the 21 July 2004 date by which the Council could have reasonably decided whether the likely adoption date of the Minerals Local Plan Review would be prior to 21 July 2006 (in which case the Regulations requiring a Strategic Environmental Assessment would not apply). As discussed in paragraph 5.23, it was always the Council’s intention that the Minerals Local Plan Review would be adopted prior to that date. Even if the Council had decided that a Strategic Environmental Assessment was required, as opposed to the Hertfordshire Sustainability Appraisal being carried out, definitive guidance was not available at 21 July 2004 to ensure that any Strategic Environmental Assessment would be compliant with the Directive.

5.3.4The Council believes that considerable work has been carried out at each of the plan making stages and each version has been amended following the appraisals carried out by Land Use Consultants on the Council’s behalf.

5.3.5The ODPM Guidance on Sustainability Appraisal (“Sustainability Appraisal of Regional Spatial Strategies and Local Development Documents” published November 2005) explains the difference between environmental assessments required under the Strategic Environmental Assessment Directive and sustainability appraisal of development plans as required by UK Government. There are many parallels but also some differences. Simply put, Sustainability Appraisal includes a wider range of considerations, extending to social and economic impacts of plans, where as Strategic Environmental Assessment is more focussed on environmental impacts. The guidance now recommends undertaking a joint Sustainability Appraisal/Strategic Environmental Assessment.