Government moves to clarify NPPF policy on habitat assessments

The government intends to modify national planning policy to take into account a European Court of Justice (ECJ) ruling this spring that has caused uncertainty over the rules regarding assessment of the impact of projects and plans on key wildlife sites.

Protected habitat. Pic: Dr Duncan Pepper
Protected habitat. Pic: Dr Duncan Pepper

The "additional clarification" is proposed in a Ministry of Housing, Communities and Local Government (MHCLG) consultation document issued this morning mooting further changes to the revised National Planning Policy Framework (NPPF), published in July.

The move follows April’s ECJ judgment on habitats regulation assessments (HRAs) in the People Over Wind and Sweetman v Coillte Teoranta case, which concerned a proposed electricity cable serving a wind farm in the Republic of Ireland.

The consultation document notes: "The effect of the ruling is that appropriate assessment of habitats impacts is required in plan-making and decision-making whenever there is a potential impact on a habitats site, regardless of any mitigation measures proposed."

Paragraph 177 of the revised framework says: "The presumption in favour of sustainable development does not apply where development requiring appropriate assessment because of its potential impact on a habitats site is being planned or determined."

However, the MHCLG consultation accepts that the European Court ruling means that sites with suitable mitigation are now excluded from application of the presumption, "which was not the intention of the policy".

In response, it proposes to make clear that the presumption is disapplied only where an appropriate assessment has concluded that there is no suitable mitigation strategy in place.

Its proposed revised wording is: "The presumption in favour of sustainable development does not apply where the plan or project is likely to have a significant effect on a habitats site (either alone or in combination with other plans or projects), unless an appropriate assessment has concluded that there will be no adverse effect from the plan or project on the integrity of the habitats site."

In addition, the consultation says the ministry is considering what other changes to regulations and guidance may be necessary following the European Court ruling.

Under the European Union Habitats Directive, local planning authorities are required to carry out 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.

Established practice, following the High Court ruling in R (Hart District Council) v Secretary of State for Communities and Local Government [2008], had been that proposals to mitigate any negative impacts of a proposed plan or project, for instance by creating alternative natural greenspace, can be considered at the screening stage.

However, the ECJ ruling 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".

The consultation also proposes revisions to the government's new standard method of assessing housing need and changes to the new NPPF's definition of "deliverable" sites.

The consultation closes on Friday 7 December 2018. The Technical consultation on updates to national planning policy and guidance  can be found here.

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