Cornwall Council updates draft sites allocation document in wake of habitats ruling

A South West council has updated measures set out in its draft site allocations document to take account of a European Court of Justice (ECJ) ruling on habitats regulations assessment (HRA).

Cornwall Council: draft sites allocation document back out for consultation
Cornwall Council: draft sites allocation document back out for consultation

Cornwall Council’s Cornwall Site Allocations Document is currently undergoing examination. In July, inspector Brian Sims set out a series of recommended changes to the emerging document.

These included asking the council to ensure that policies set out in the document are legal in the wake of April’s European Court of Justice (ECJ) 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 requires a screening stage, which may be followed by 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 to mitigate any negative impacts of a proposed plan or project, for instance by creating alternative wildlife-friendly areas, can be considered at the screening stage.

If the promoter can persuade the decision-maker at this point that the measures will effectively mitigate negative impacts, the requirement for the second "appropriate assessment" stage is avoided.

However, April’s ECJ ruling on a case from the Irish Republic, People Over Wind and Sweetman v Coillte Teoranta, appeared to overturn this interpretation. Instead, the judgment stated 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".

Following the inspector’s July letter, the council has issued an addendum to the draft sites allocations document. The document says that it has "been prepared to ensure the HRA for the Cornwall Site Allocations Document is legally complaint following the judgment handed down on 12 April 2018 ".

The document says that the council is satisfied that the sites allocation document is now compliant with the ECJ ruling. "For clarity, this addendum ensures that any mitigation, for individual sites or strategic mitigation, has not been considered at the screening stage of the HRA, but at the appropriate assessment stage," it says.

The HRA covers three site allocations: Jennings Street in Penzance, Westheath Road in Bodmin, and North Pill in Saltash.

The consultation on the changes to the draft sites allocations document runs until 22 October 2018.

Cornwall Council’s local plan was adopted in November 2016. The sites allocation document is intended to support the delivery of policies set out in the local plan.

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