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ECJ Ruling on Habitats Regulations Assessments is Straight Bananas

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.

Neighbourhood Plans First But How Long Will They Last?

Judgment has been handed down in the first Neighbourhood Plan (NP) case to reach the Court of Appeal, reinforcing the position that NPs can come forward in the absence of up to date Local Plans.

As discussed previously, developer DLA Delivery Limited judicially reviewed the decision to hold a referendum on the draft NP as, in addition to environmental concerns, DLA claimed that the plan was not in accordance with the appropriate strategic policies.  The NP had been prepared in accordance with the policies of the unadopted, emerging Local Plan, rather than the expired strategic plan.

In the High Court, Foskett J dismissed the claim, allowing permission to appeal on the ground of conformity with strategic policies.  Permission was subsequently given to appeal on additional grounds.

Conformity with what?

On the first ground, whether the district council misunderstood and misapplied the requirement that the NP be in general conformity with the strategic local policies, Lord Justice Lindblom agreed with Foskett J that a NP could proceed in the absence of a strategic development plan document. Lindblom LJ added that where the local plan is historic, a NP cannot logically lack general conformity, as the plans are made for wholly different periods.  The judgment makes clear that a NP can come forward in the absence of an up to date local plan.  Both the National Planning Policy Framework (NPPF) and Planning Policy Guidance (PPG) references to a NP being in general conformity are intended to prevent the “mischief” of a NP frustrating an up to date local plan, rather than requiring a local plan to be in place first.

Properly assessed, but not explained

On the second ground, whether the NP failed to meet Habitats Directive requirements due to the lack of evidence that the Suitable Alternative Natural Greenspace (SANG) required to mitigate the proposed development would be provided.  Lindblom LJ found that the examiner was not irrational to have considered that SANG would have to be provided, despite the timing and location being uncertain (unlike the level of certainty needed when dealing with a planning application).  The examiner failed to address the lack of evidence for SANGs, and should have done, but Lindblom LJ did not consider this to be fatal, finding that addressing the lack of evidence would not have changed the conclusion.

Early Warning

This judgment clearly demonstrates that NPs can come forward in the absence of an up to date local plan. However, the groups preparing NPs in such areas should be aware of the risk that their NPs may become “out of date” when a local plan with a higher objectively assessed housing need is adopted.  The Written Ministerial Statement, as clarified by the Housing White Paper, provides protection for NPs unless there is a significant lack of delivery in the local planning authority area – but this will be outside the control of the NP group.  Many NP groups and local authorities will also be reassured by Lindblom LJ’s robust defence of the current way of appointing examiners.

The judgment also flagged other areas of caution for NP bodies. Lord Justice Lindblom found the consideration of the environmental mitigation by the examiner was not wholly correct, whilst concluding that it was not fatal to the plan.  The conclusion that the screening opinion was actually in breach of some habitats legislation will be a particular red flag.  Screening opinions and SEA considerations raise particular risks for NPs.  NP forums need to give careful attention to their proper preparation, which can be tricky where groups may have limited experience of such documents.

Court rejects 5 year housing land supply argument in AONB harm case

In Wealden District Council v Secretary of State for the Communities and Local Government [2016] EWHC 246 (Admin), the local planning authority successfully challenged the grant of permission on appeal under 288 of the Town and Country Planning Act 1990 in relation to planning permission for 103 homes, a ten hectare Suitable Alternative Natural Greenspace (SANG) and a public open space with access and car parking, play space and footpaths.  The judgment highlighted errors in relying on mitigation SAC measures to offset impacts on the Special Protection Area (SPA) and Special Area of Conservation (SAC).  It also rejected the Inspector’s approach to considering Objectively Assessed Needs (OAN) the applying the requirement under NPPF116 to use seek alternative sites to those in the AONB.

Not much harm, but enough

The authority refused permission on the basis of the countryside location and visual effects of the scheme. It also relied on the likelihood of adverse effects on the integrity of the Ashdown Forest SPA/ SAC (alone and in combination with other plans and proposals) by traffic-related intensification of nitrogen deposition on sensitive heathlands.

mapRegulation 61(5) of the Conservation of Habitats and Species Regulations 2010 prohibits the grant of permission where there is a possible adverse affect on the integrity of an SAC/SPA, unless there are no alternatives or overriding issues of public importance.

Finding that the development was acceptable in location and general impact terms, the Inspector decided that the impact of the proposals on their own would be insignificant (and risk of a significant in-combination affect with the other development was “low”). His finding that it could be mitigated via financial contributions towards habitat management arrangements (intended to address recreational use pressures) was held to have been unlawful on the basis that he had failed to have regard to evidence showing that not to be the case.

In allowing the developer’s appeal, the Inspector also found are exceptional circumstances in the public interest for the grant of permission within an Area of Outstanding Natural Beauty, given the lack of harm to landscape and scenic beauty. He also rejected the alternative sites proposed by the authority under NPPF116 on both feasibility grounds and, crucially, that they could not meet the whole housing OAN.

OAN role limited for AONB purposes

Whilst generally the approach to alternative sites for the purposes of NPPF116 was considered acceptable (and the matter of planning judgment), the Inspector was held to have failed to properly assess one of the candidate sites put forward (having no evidence to support the conclusion reached, applying Alconbury Developments Limited v Secretary of State for the Environment, Transport and the Regions [2013] 2AC295).  Although he was correct to use the current OAN requirement, rather than that which the Core Strategy could meet, as the benchmark, the Judge rejected his approach of deciding that the existence of alternatives sites was irrelevant given that together they would not have been able to meet the total OAN.

The judgment appears to suggest that a sequential approach is required when applying in NPPF116, so that the existence of an alternative site would be an absolute bar on development in the AONB regardless of whether the development of that site and all other alternative sites would meet OAN.