Case Law >> When SEA is required?

Hayley Tam and Jen Hawkings from LexisPSL examine two recent cases on strategic environmental assessment

It has been an important year for cases on strategic environmental assessment (SEA). In March 2012, the Court of Justice of the European Union delivered a significant judgment on the scope of the SEA Directive (2001/42/EC) in Inter-Environnement Bruxelles ASBL v Region de Bruxelles-Capitale (C-567/10).

The Directive requires SEAs for plans and programmes or any modifications to them that are likely to have significant environmental impacts. Plans and programmes are defined in article 2(a).

The Inter-Environnement case concerned the repeal of a land development plan in Brussels that was provided by national legislation but was not required to be adopted by the competent authority. It was argued that the repeal of the plan was a “modification”, and therefore required an SEA.

The court decided that the word “required” in article 2(a) does not exclude from the definition of plans and programmes those that are provided for by legislative provisions, but whose adoption is not compulsory; and, in principle, the total or partial repeal of a plan or programme falls within the scope of the SEA Directive.

This ruling has significant implications for authorities that must consider undertaking a SEA whenever they propose to adopt, amend or revoke any compulsory or non-compulsory plans or programmes.

More recently, in Walton v Scottish Ministers [2012] UKSC 44, the Supreme Court dismissed an appeal alleging that a road project in Scotland required a SEA – in addition to an environmental impact assessment (EIA) – because it modified a regional transport strategy.

The court noted that the SEA Directive is concerned with the environmental effects of plans and programmes that set the framework for future development consent, whereas the EIA Directive (2011/92/EU) is concerned with the environmental impact of specific projects.