How a European court ruling that stiffens wildlife safeguards could delay plan-making

A recent landmark European court ruling on protected wildlife zones could slow local plan-making and further restrict housing supply around these areas, say practitioners.

Suitable alternative natural greenspace (SANG): ruling casts doubt on stage at which mitigation measures such as SANGs can be taken into account in planning process
Suitable alternative natural greenspace (SANG): ruling casts doubt on stage at which mitigation measures such as SANGs can be taken into account in planning process

In April, the European Court of Justice (ECJ) issued what appears to be a landmark judgment on habitats regulations assessment (HRA). Under the European Union habitats directive, local planning authorities are required to carry out these assessments to make sure plans or projects affecting sites in and around EU- designated special areas of conservation (SACs) or special protection areas (SPAs) have no harmful effects on them.

HRA has two stages – a screening stage and then a full "appropriate assessment". Established practice, following the High Court ruling in R (Hart District Council) v Secretary of State for Communities and Local Government [2008], has been that proposals aiming to mitigate any negative impacts of a proposed plan or project , such as the provision of suitable alternative natural greenspace, can be considered at the screening stage. If the promoter can persuade the decision-maker at this point that negative impacts will be mitigated effectively, the requirement for appropriate assessment is avoided.

However, April’s ECJ ruling in a case from the Irish Republic, People Over Wind and Sweetman v Coillte Teoranta, appears to overturn this interpretation. Instead, the judgment states that "a full and precise analysis of the measures capable of avoiding or reducing any significant effects on the site concerned must be carried out not at the screening stage, but specifically at the stage of the appropriate assessment". Stuart Andrews, national head of planning at law firm Eversheds, said the ruling is a "significant step change" that could have a "profound impact".

Last week, it emerged that the Planning Inspectorate (PINS) has written to planning inspectors to provide guidance on the issue, warning that both local plans and individual projects could fall foul of the ruling. The PINS guidance note says inspectors should review local plans going through the examination process and ongoing appeal casework for compliance with the ruling.

According to the note, inspectors should ask plan-making authorities to "confirm the extent to which they consider their HRA report is legally compliant in light of the judgment and ask them to revisit the screening assessment in doing so". If a revised screening assessment concludes that an appropriate assessment is required, it says, "this should be carried out". Further consultation may be required on any revised screening assessment or appropriate assessment, PINS advises.

There are 931 EU-protected special areas of conservation (SACs) and special protection areas (SPAs) in the UK, covering 17 and 11 per cent of the land surface respectively. Some designated areas, such as the Thames Basin Heaths SPA, which extends across 82 square kilometres in Hampshire, Surrey and Berkshire, are very close to high-growth areas.

Experts say the ruling’s focus on appropriate assessment carries significant planning implications. First, consultation with statutory agency Natural England is mandatory when undertaking an appropriate assessment, whereas it is merely optional at the screening stage. Second, appropriate assessments set a more stringent test. At the screening stage, promoters and councils must establish that a site allocation or project will have "no significant effect" upon protected sites "on the basis of objective information". To pass the appropriate assessment test, this has to be proved "beyond reasonable scientific doubt". Finally, paragraph 119 of the National Planning Policy Framework (NPPF) makes clear that the tilted balance in favour of sustainable development for councils lacking a five-year housing land supply does not apply where development requiring appropriate assessment is being considered, planned or determined.

Echoing the PINS note, commentators agreed that local plans in progress are potentially affected, although those adopted before the judgment was handed down on 12 April could not have been expected to be compliant. Mike Harris, senior associate town planner at consultancy Stride Treglown, said: "I can certainly see a situation where people are pausing on local plans." Penny Simpson, a partner at law firm Freeths, said she expects "a hiatus" in local plan progress prompted by the judgment.

At least two English local authorities have already felt the effects of the ruling. In May, a planning inspector beginning his examination of Central Bedfordshire Council’s local plan asked the authority to justify its submission in light of the judgment, warning that it may not be "legally compliant". Earlier this month, Waverley Borough Council temporarily suspended all planning decisions potentially impinging on the Thames Basin Heaths SPA in the wake of the court ruling.

Andrew Davie, assistant director of development and infrastructure at Central Bedfordshire Council said he has asked consultants to reassess the local plan’s HRAs to ensure they will pass the "higher bar" of appropriate assessment, and will then reconsult with Natural England. "It’s possible this could delay the process if Natural England can’t get back to us quickly and if it is suddenly besieged with consultation requests," he said.

However, Davie said he is optimistic that the ECJ ruling’s overall impact on plan-making may be limited and will merely require the reassessed HRAs to be submitted during the plan’s public examination, rather than involving resubmission of the entire plan. "We’re perceiving this as just a procedural issue," he said – a stance echoed by the PINS guidance note, which says that "if avoidance and reduction measures are adequate to exclude adverse effects on European sites’ integrity, the approach required is primarily a procedural one".

Ben Kite, managing director of environmental consultancy EPR, said that in many cases local authorities may be able to simply re-present existing screening assessments as full appropriate assessments. Nicky Linihan, housing delivery specialist at the Planning Officers Society, agreed that this is a likely way out. "It’s difficult to be certain at this stage whether the judgment will result in a need to undertake a significant amount of new work," she said. But Harris said the removal of the NPPF’s presumption in favour in areas where appropriate assessments are needed means "a real risk that housing supply could be constrained".

Environment lawyer Richard Buxton said any planning decisions taken in the past two months that didn’t take the European Court judgment into account had made a "straightforward error in law". But he added that claimants seeking to overturn such decisions would also be likely to have to prove that following the correct procedure would have resulted in a different outcome. "Local authorities shouldn’t be frightened of this," he said. "It will just inject some proper rigour into a process that should have been there all along."

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