How revised rules could allow neighbourhood plans to progress

New regulations mean that the neighbourhood plan process now complies with fresh case law on habitat regulation assessments, but practioners fear this could mean more cost and complexity for plan-makers.

Habitats: New regulations mean that the neighbourhood plan process now complies with fresh case law
Habitats: New regulations mean that the neighbourhood plan process now complies with fresh case law

You could call it the butterfly effect. When the European Court of Justice (ECJ) handed down its ruling in the case of People Over Wind and Sweetman v Coillte Teoranta in April last year, it had an unforeseen impact: putting a large number of neighbourhood plans in Britain on hold.

The ECJ ruling related to habitats regulations assessments (HRAs). These assessments comprise two stages - a screening stage, followed (if the screening shows it to be necessary) by a full ‘appropriate assessment’. Before the ruling, it was accepted practice in the UK for plans or projects to show at the screening stage that any negative impacts on EU-protected habitats would be effectively mitigated, thus avoiding the appropriate assessment stage. But the ECJ ruled that mitigation could only be considered at the full appropriate assessment stage.

Neighbourhood planning regulations had stipulated that one of the basic conditions that plans had to meet to pass examination was that they should not "have a significant effect on a European site". Before the ECJ ruling, mitigation measures identified at the screening stage could be used to demonstrate there would be none of these significant effects and an appropriate assessment would be avoided. Following the ruling, however, if a plan was found to have a significant effect on a habitat, it would mean that it had failed the "basic condition" and so could not progress, even to appropriate assessment stage.

Steve Carnaby, associate director at Intelligent Plans and Examinations, said the "unfortunate bit of wording" in the basic condition "prohibited a plan from moving to conduct a full appropriate assessment if the HRA screening had identified significant effects".

Following the judgment, local authorities began to review emerging neighbourhood plans to assess whether they would be affected. In many cases, it was found that the HRA screening stage was sufficient to prove there would be no significant effects. In others, where such effects were found, plans were put on hold, according to Chris Bowden, director at Navigus Planning. "When there’s uncertainty, you don’t want to plough forward for fear you’ll just have to do things again," he said.

At the end of 2018, the government amended the neighbourhood planning regulations  to address the problem - one of a series of policy changes prompted by the ECJ ruling. The revised basic condition states that plans must not "breach the requirements of Chapter 8 of Part 6 of the Conservation of Habitats and Species Regulations 2017", which outlines how land use plans must comply with the HRA process. A letter from MHCLG chief planner Steve Quartermain to councils on 15 January said the judgement had led to "uncertainty for those working on neighbourhood plans". Quartermain wrote that the revised regulations allow plans "to be subject to an ‘appropriate assessment’ to demonstrate how impacts will be mitigated."

Neighbourhood planning consultant and former RTPI president Ann Skippers said: "There was uncertainty last year as to whether, if the extra work was needed, [the appropriate assessment] could actually be carried out. The new basic condition just cuts through that and says, yes, if you need to do that extra work, go ahead. From that point of view, it’s positive."

However, while local authorities and neighbourhood planning groups may now know where they stand, it still leaves those required to carry out an appropriate assessment with more work to be done than they might have imagined when embarking on the process. "An appropriate assessment is not necessarily a straightforward exercise," said Bowden. "Will it be local authorities taking it on, or government grants paying for consultants?" That’s still not clear, he said.

Locality, the organisation commissioned by the government to support neighbourhood planning, said groups could seek funding to help with the process. Francis Shaw, neighbourhood planning programme manager, said: "Groups that meet our technical support criteria are able to access HRA support at no cost. Otherwise groups can use some of their grant pot to commission consultants to undertake this work, provided they have grant money remaining."

Neighbourhood planning consultant Tony Burton said more assistance for groups to conduct complex and costly appropriate assessments would be important. "The government move to introduce new regulations and change the basic conditions for neighbourhood planning is welcome for unblocking the system, but does not yet go far enough," he said. "The complexity is putting off too many local communities and more hands on advice and support is required."

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