How EU court's ruling on habitats could affect neighbourhood plans

Neighbourhood planning groups may face further delay and expense in drawing up supporting material to show that policies will not harm key wildlife sites, experts suggest.

European sites: experts say habitats assessment judgement could stall progress on neighbourhood plans
European sites: experts say habitats assessment judgement could stall progress on neighbourhood plans

According to planning experts, April’s EU Court of Justice ruling on a case from the Irish Republic involving habitat regulations assessment (HRA) could affect neighbourhood development plans (NDPs) just as much as it does local plans. The ruling in People Over Wind and Sweetman v Coillte Teoranta stated that the effectiveness of measures to mitigate the impact of plans or projects on sites protected by the EU habitats directive should be tested through a full appropriate assessment, rather than relying on likely significant impacts being "screened out" at an earlier stage.

A Planning Inspectorate (PINS) guidance note issued in May urged inspectors to review local plans undergoing examination for compliance with the ruling, but was silent on NDPs. "NDPs are ‘plans’ in the context of the EU directive, so I envisage they would be caught by this judgment," said Stephanie Wray, a director at ecological consultancy Biocensus. "Just as for local plans, an NDP adopted before the judgment couldn’t be challenged, but if it was not adopted by the date of the judgement then it could be." Neighbourhood plan adviser and exam- iner Nigel McGurk, principal at consultancy Eri- max, agreed: "It is a basic condition that neigh- bourhood plans are compatible with European obligations, so they must demonstrate compatibil- ity with relevant environmental legislation."

Ben Kite, managing director at consultants Ecological Planning and Research, said the ruling’s impact on NDPs will depend on how adequately potential effects on European sites have been addressed in appropriate assessment of preceding local plans. "If this has already established that impact avoidance and reduction measures will pre- vent an adverse effect on sites’ integrity, reaching a positive conclusion should be fairly swift," said Kite. "However, if such issues have been passed ‘downstream’ – for example, if the local plan sets targets for housing delivery but defers allocation of particular sites to the NDP stage – appropriate assessment of the NDP could be much more involved." Mandatory consultation with Natural England staff could also slow things down, he added: "They are already a bit overloaded trying to respond to consultation requests."

"There are 254 special areas of conservation and 88 special protection areas in England, so a vast number of NDPs are affected by the ruling," said Jon Herbert, a director at consultants Troy Plan- ning + Design. Herbert said neighbourhood plan- ning groups are already being asked to "look again" at NDPs recently submitted for examination on the assumption that negative impacts on designated sites have been screened out. "Assessments  might cost in the region of £10,000, but funding and technical support through the Ministry of Housing, Communities and Local Government  (MHCLG) neighbourhood planning support programme is limited. This could leave a lot of plans  in limbo," he warned.

Chris Bowden, a director at consultants Navigus Planning, said the ruling will "inevitably" increase costs for NDP groups and local authorities. "If it needs to be applied retrospectively to recently made NDPs, all hell could break loose," he warned. Neil Homer, a director at consultants O’Neill  Homer, suggested that NDPs making small site al- locations may still be able to screen out adverse  effects on European sites, "but any more than that  will probably have Natural England and risk- averse councils demanding appropriate assessments". Homer suggested that the MHCLG support programme managed by community  organisation network Locality had not anticipated the need for appropriate assessments as well as screening statements.

But John Wilkinson, neighbourhood planning officer at Locality, said the ruling should have no impact on neighbourhood planning groups’ access to its support services. "Neighbourhood planning  groups undertaking site allocations would automatically be eligible for the HRA technical support package, which already covers the appropriate assessment stage," he said. However, "the ruling could lead to some groups who have already had a support  package applying for further support to restructure their HRAs", Wilkinson added. "We anticipate  that decisions on whether to fund this work would be considered by the MHCLG in the same way all other technical packages are signed off."

McGurk said he is confident that the EU court ruling is "just another hurdle" that neighbourhood planning will take in their stride. "Neighbourhood plan-makers have regularly overcome criticism of their skills and abilities while quietly succeeding in delivering NDPs across the country," he said. "This ruling is just about more checks and balances in a process that already happens successfully. It will mean a bit more work, but it is not about to derail neighbourhood planning." 

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