Mrs Justice Lang DBE has handed down judgment this morning in R (Berks, Bucks & Oxon Wildlife Trust) v Secretary of State for Transport and Another [2019] EWHC 1786 (Admin), dismissing a challenge brought by Berks, Bucks and Oxon Wildlife Trust against a decision made by the Secretary of State for Transport to approve recommendations from Highways England relating to a preferred corridor area for the proposed new Oxford to Cambridge Expressway.

The challenge was brought on two grounds:

(1) that the Secretary of State unlawfully failed to carry out a Strategic Environmental Assessment under the Environmental Assessment of Plans and Programmes Regulations 2004 and the SEA Directive;

(2) that the Secretary of State unlawfully failed to carry out an appropriate assessment under the Conservation of Habitats and Species Regulations 2017 and the Habitats Directive.

Mrs Justice Lang accepted the Claimant’s submission that it was necessary to adopt a purposive approach to the interpretation of the SEA Regulations and Directive where restrictions are interpreted narrowly ([28] – [33]), but ultimately went on to reject the argument that the decision fell within the terms of the SEA legislation.  The Judge rejected the latter argument for four reasons, each relating to the restrictions contained within the SEA Regulations and Directive.

First, Lang J held that the decision was not a “plan” under the Regulations but was instead a “step taken in the course of the preparation of a project” ([47]).  Second, there was “no procedure, let alone a formal procedure, which required the taking of the decision by the Defendant” ([53]).  Third, the decision “did not set the framework for the future development consent of any project” but instead “merely identified the broad areas where detailed work would be focussed to find potential routes for the Expressway as a step in preparing a specific project” ([56]).  Fourth, there was no determination that the decision required an appropriate assessment under the Conservation and Species Regulations 2017 ([60]).

The Judge also rejected the second ground of challenge advanced by the Claimant, namely that the decision should have been subject to an appropriate assessment under the Habitats Regulations and Directive.  For substantially the same reasons as relied on in Ground 1, it was held that the decision was not a “plan” within the terms of Article 6(3) of the Habitats Directive ([70]).  Mrs Justice Lang went on to note that the decision was in any event unlikely to have a significant impact on either the Oxford Meadows SAC or the Cothill Fen SAC on the basis that it was an “early preliminary step in the definition of a project yet to take shape” ([71]). 

Mrs Justice Lang refused the Claimant’s applications for a reference to the CJEU and for permission to appeal. 

Ned Westaway and Merrow Golden appeared for Berks, Bucks and Oxon Wildlife Trust, instructed by Leigh Day. 

Andrew Tait KC and Richard Honey appeared for the Secretary of State for Transport, instructed by the Government Legal Department.