ECJ’s preliminary ruling
in the People Over Wind
/ Sweetman case means that ‘mitigation measures’ should not longer be taken into account when screening for ‘any significant effects’ on SAC/ SPA for plans and projects (for the purpose of deciding whether Appropriate Assessment is needed to establish if the effects would be likely to have an adverse effect on the integrity of the designated asset).
On the face of it, it means, for applications where significant effects on SAC/SPA are likely (i.e. applying the Waddenzee precautionary approach, the risk cannot be definitively ruled out) that Appropriate Assessment will be required so that mitigation measures are evaluated in more detail.
An End To Sense?
The People Over Wind ruling is that “…it is not appropriate, at the screening stage, to take account of the measures intended to avoid or reduce the harmful effects of the plan or project on that site” (emphasis added).
This cuts across the domestic approach adopted in the Hart District Council case in 2008, which has provided a sensible basis for addressing effects on Natura 2k sites. Having regard to mitigation measures in screening out Appropriate Assessment for planning applications and plans has been commonplace common sense, treating the Habitats Directive as a “aid to effective environmental decision making, not a legal obstacle course” (Sullivan, J as he was in Hart).
The reasoning in the ruling (paragraphs 35 and 36) does not withstand much scrutiny and is really Law Over Sense. To make things worse, it is unclear about what “mitigating measures” are for these purposes. It simply refers to them as measures “intended to avoid or reduce the harmful effects of the envisaged project on the site concerned“.
Planning Inspectorate View
In-built mitigation by design is surely not within its ambit? The Planning Inspectorate’s Note 05/2018 takes a more hardline view: “Competent authorities cannot take account of any integrated or additional avoidance or reduction measures when considering at the HRA screening stage whether the plan or project is likely to have an adverse effect on a European Site. The screening stage must be undertaken on a precautionary basis without regard to any proposed integrated or additional avoidance or reduction measures“.
This is gold plating – the ECJ ruling does not provide any express basis for the underlined element. The benefit of the environmental assessment process, noted in Hart, is to get thinking about reducing effects at the outset of scheme design. Trying to split out anything that is ‘integrated’ into the scheme design, for example, is horribly artificial and a terrible waste of time.
The effects of this are being felt as LPAs suspend development management decisions and Local Plans are suspended.
Let’s Be Sensible
Outcomes: Where the finding based on mitigation would previously have been a negative screening (because of no likelihood of any significant effect at all, with that mitigation), the lesser threshold of no adverse effect on the integrity of the SPA at the full AA stage should be satisfied. The additional process will probably yield more information about mitigation measures but no change of outcome (subject to the point noted below).
Government will need to provide leadership to ensure we do not simply end up with a deluge of AA reports concluding that there is no significant effect with mitigation. That would be a truly pointless exercise.
Steps: It would be sensible for PINS and Government to be clear, ASAP, that:
- Things authorised by the development consent should be regarded as integral components of the scheme and so not mitigation for its effects for the purposes of the ECJ ruling.
- Where AA is now unavoidable, a standardised toolkit will be available to allow very short AA reports to be prepared that allow, for example, the analysis of the effect of off-site SANG contributions to be fully standardised (using the AA analysis conducted when justifying the SANG contributions in the first place). This is crucial to avoid the ruling becoming another source of time-soak, cost and distraction in the already bloated world of planning assessments.
- The current block (in NPPF119) on applying the NPPF14 ’tilted balance’ is going to be revisited in the soon-to-be-revised NPPF to avoid an unintended outcome. If AA concludes that there is no likely significant effect with mitigation (as distinct from concluding that there will be a significant effect short of adversely effecting the integrity of the SPA), the presumption in favour should apply.