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Save Historic Newmarket Ltd v. Forest Heath District Council [2011] J.P.L. 1233

DATE: 25 Mar 2011

This was a challenge under s.113 of the Planning and Compulsory Purchase Act 2004 to the Forest Heath Core Strategy, which was adopted in May 2010.  It focused on the policies in the Core Strategy allocating a 1,200 dwelling urban extension in north-east Newmarket on land owned by the Earl of Derby. The claimants, a consortium of national and international horseracing interests, opposed the urban extension on the basis that it would seriously undermine Newmarket's status as a world class centre of racing excellence.

The primary ground of the challenge was that the Core Strategy had been adopted in breach of the requirements of Directive 2001/42/EC on the assessments of the effects of certain plans and programmes on the environment ("the SEA Directive"), in particular the duty for the 'environmental report' accompanying a draft plan or programme to explain what reasonable alternatives to the proposed policies have been considered and why they have been rejected. The case was one of the first in the English courts to consider the requirements of the SEA Directive.

Following a two-day hearing in the High Court, Collins J allowed the claim, holding that:


1) For there to be compliance with Article 5 of the SEA Directive, the public must be presented with an accurate picture of what reasonable alternatives there were to the proposed policies and why they were not considered to the best option.

2) Equally, the environmental report and the draft plan must operate together, so that consultees can consider each in the light of the other.

3) In an iterative plan-making process, it is not inconsistent with the SEA Directive for alternatives to the proposed policies to be ruled out prior to the publication of the final draft plan, but if that does happen the environmental report accompanying the draft plan must refer to, summarise or repeat the reasons that were given for rejecting the alternatives at the time when they were ruled out and those reasons must still be valid.

4) These principles were not followed in the present case. It was not possible from the environmental report accompanying the draft plan for the public to know what were the reasons for rejecting any alternatives to the urban extension or to the amount of development proposed.

5) A plan or programme adopted contrary to the SEA Directive was bound to be quashed regardless of whether any prejudice was caused to the particular claimant(s).

Accordingly, the policies in the Core Strategy relating to the urban extension were quashed.

David Elvin QC and Charles Banner appeared for the successful claimants, instructed by Ashursts LLP.