Surrey council suspends protected area planning decisions in wake of European court ruling

A Surrey council has temporarily suspended planning decisions on developments within 5km of a special protection area (SPA) in the wake of a recent judgement of the Court of Justice of the European Union (CJEU) related to habitats regulations assessments (HRAs).

Waverley Council: authoritywarns of planning delays in wake of EU court ruling
Waverley Council: authoritywarns of planning delays in wake of EU court ruling

In April, the CJEU ruled on the People Over Wind and Sweetman case, concerning a proposed electricity cable serving a wind farm in the Republic of Ireland.

Last week, a planning inspector beginning his examination of the recently-submitted Central Bedfordshire Council local plan expressed concerns that the document may not be "legally compliant" in the light of the ruling.

Now, Waverley Borough Council has said that, in the wake of the court ruling, it has temporarily suspended planning decisions for new residential developments in the 5km protected zone of the Thames Basin Heaths SPA.

The European Union Habitats Directive includes measures to protect sites such as special areas of conservation and SPAs from the effects of development.

Under the directive, before undertaking or consenting plans or projects likely to have a major impact on such sites, a public body as the "competent authority" must carry out an "appropriate assessment".

The competent authority can normally only let the plan or project proceed if this assessment concludes that development will not adversely affect the integrity of a site protected by the directive.

As an exception, however, the authority may agree to a plan or project that would have an adverse impact if there are no alternative solutions, or the plan or project must be carried out for imperative reasons of overriding public importance and adequate mitigation or compensatory measures can be secured.

April's CJEU ruling essentially overturned a previous CJEU judgement which concluded that mitigation or compensation measures that were part of a project could be taken into account at the screening stage of a habitats regulations assessment.

But, in the new judgement, the CJEU concluded the Habitats Directive "must be interpreted as meaning 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".

Making its announcement, Waverley Borough Council said: "This is a precautionary measure and nothing we have done is unlawful."

The local authority said that the court ruling "is about procedure and changes when the council considers mitigation against development in the SPA. The council is confident that by making some small changes to its documents and the procedure to assess applications it will be in line with the new judgement. Natural England has supported this approach."

An earlier statement from the council said it is "currently awaiting further legal advice on this matter … to ensure that future decisions made by the council in these areas are lawful and to avoid the possibility of legal challenge".

Waverley Council adopted the first part of its local plan in February, and launched a consultation on the second part last month. The council said this consultation was "not affected" by the ruling.

According to the council's local plan, SPA designation "seeks to ensure that new residential development which is likely to have a significant effect on the ecological integrity of [the SPA] has adequate measures put in place to avoid or mitigate any potential adverse effects."

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