Environmental Bulletin: Habitats Directive Update

There have been a large number of court judgments relating to the site protection provisions of the Habitats Directive in the last few months of 2015. We set out some of the key issues below

No Adastral New Town

HRA: 

no legal obligation to carry out a "likely significant effect test" screening assessment In relation to the Habitats Directive, the Court of Appeal in NANT had to consider whether the fact that the Council had not carried out a "likely significant effect" screening assessment meant that the Council had failed to comply with the HRA provisions of the Habitats Directive. In this case, even though the Council had not conducted such a screening assessment, it had conducted an appropriate assessment (AA). Following the AA it had concluded that, subject to mitigation, the proposed allocation of housing would have no adverse effect on the integrity of the SPA.

The Court of Appeal said that there was no legal obligation to carry out a "screening assessment", and no rule about when it should be carried out. The Court said that just because there is a legal requirement that plans / projects "likely to have a significant effect" must be subjected to an appropriate assessment, this does not mean there has to be a separate "likely significant effect" assessment. The Court stated however "if it is not obvious whether a plan or project is likely to have a significant effect it may be necessary in practice to carry out a screening assessment in order to ensure that the substantive requirements of the Habitats Directive are ultimately met. It may be prudent and likely to reduce delay, to carry one out at an early stage of the decision making process. However there is no legal obligation to do so".

The Court held that the Council had complied with the legal requirement as it had carried out an AA.

This view has now been upheld by the Supreme Court in an important case called R (Champion) v North Norfolk District Council (decision 22 July 2015). Lord Carnwath, who gave the leading judgment, referred to the likely significant effect test as an "informal threshold decision" and said that "it is not to be confused with a formal screening opinion in the EIA sense". He went on to say that "All that is required is that, in a case where the authority has found there to be a risk of significant effects to a protected site, there should be an AA. Appropriate is not a technical term. It indicates no more than that the assessment should be appropriate to the task in hand: that task being to satisfy the responsible authority that the project will not adversely affect the integrity of the site concerned taking account the matters set out in the Article...

No special procedure is prescribed and, while a high standard of investigation is demanded, the issue ultimately rests on the judgment of the authority". The Supreme Court held, in the Champion case, that the Council had discharged its duty by concluding through the planning process that "any material risk of significant effects on the SAC had been eliminated" and it did not matter that this was expressed by the officers as a finding that no AA was required, because the decision would not have been any different if they had conducted a AA.

Whilst these decisions are somewhat surprising for those of us working regularly with Habitats Regulations Assessments ("HRAs"), the decisions are unlikely to make much difference to the way competent authorities carry out their HRAs. The Court in NANT has still confirmed that in practice it will often be sensible to carry out a "screening assessment" (or rather "an informal threshold decision").

And we are in no doubt that in practice a decision not to carry out an AA (because it is considered that there is no likely significant effect) should be set out / explained in a document to evidence how that conclusion was reached.

The decisions do however stress that, at the end of the day, whether through the "informal threshold decision" or through an AA, the competent authority must be convinced as to the absence of adverse effects on the relevant SPA / SAC so as to allow a plan or project to proceed without reliance on the Article 6(4) derogation tests.

HRA: An AA of a Core Strategy can leave mitigation measures to be decided at the planning stage

The Court of Appeal in NANT also refused to accept that the Core Strategy was deficient because it did not go far enough in specifying mitigation measures when there was sufficient information available to allow it to do so.

The Court stated that "the important question in a case such as this is not whether mitigation measures were considered at the stage of Core Strategy in as much detail as the available information permitted, but whether there was sufficient information at that stage to enable the Council to be duly satisfied that the proposed mitigation could be achieved in practice...

The Council needed to be satisfied as to the achievability of the mitigation in order to be satisfied that the proposed development would have no such adverse effect". In addition, policy wording in the Core Strategy that said (in essence) "if at the planning stage it appears that the Core Strategy cannot be delivered without adverse impacts which cannot be mitigated then the proposals will only make provision for the level and location of development for which it can be concluded that there will be no adverse effect" was acceptable, as it was a sensible safeguard to incorporate into the Core Strategy policy, and not an indication that there was uncertainty.

This part of the NANT judgment has been followed and applied in two further cases:

It has been applied to a planning permission (rather than to a Core Strategy) scenario in the High Court case of R (Devon Wildlife Trust) v Teignbridge District Council, 28 July 2015.

In the Devon Wildlife Trust v Teignbridge District Council case (concerning effects on land providing South Hams SAC bat corridors and sustenance zones), the judge repeated the quote above in the NANT case and then stated:

"therefore in a multistage process, so long as there is sufficient information at any particular stage to enable the authority to be satisfied that the proposed mitigation can be achieved in practice it is not necessary for all matters concerning mitigation to be fully resolved before a decision maker is able to conclude that a development will satisfy the requirements of reg 61 of the Habitats Regulations". On that basis the judge held that it was acceptable that planning permission was granted subject to a condition that a s106 agreement would be completed to secure the relevant mitigation.It has been followed again in a High Court case involving a Habitats Directive challenge to a decision to put a "Neighbourhood Development Plan" out to referendum in the Ashdown Forest area – the case of DLA DeliveryLtd v Lewes DC and Newick Parish Council, 31 July 2015. The judge said "The issue for the court is not to decide whether SANGs [SuitableAlternative Natural Greenspaces] will be deliverable as required, but whether the Defendant was entitled to rely upon its belief that it will be delivered within the plan period and whether the examiner was justified in accepting that as a sufficient basis for the proposed Neighbourhood Development Plan to meet the basic conditions referred to above".

SEA: one can rectify deficiencies with a SEA Addendum

In relation to SEA, the pertinent legal point in the NANT case is that the Court of Appeal confirmed an earlier case in which the judge had found defects in a Council’s SEA process but had accepted that the challenge could not succeed as the Council in that case had then rectified those deficiencies by issuing a "SEA Addendum".

On the facts of NANT, however, the Court of Appeal simply rejected the arguments that Suffolk had not carried out a genuine consultation on alternatives.

Smyth v DCLG, Court of Appeal, 5 March 2015 and R (Forest of Dean Friends of the Earth v Forest of Dean DC, 9 July 2015

The Smyth case was a Habitats Directive challenge by Mrs Smyth against a planning appeal decision which had granted permission for 65 homes in Exminster in Devon, near to the Exe Estuary SPA. She lost and we understand that Mrs Smyth may be seeking to appeal to the Supreme Court.

The Local Planning Authority (LPA) had decided that there would be a "likely significant effect" based on "in combination" matters and so conducted an AA. The LPA then found no adverse effect of the proposed development on the integrity of the SPA, taking into account certain additional mitigation measures which had not been considered at the "likely significant effect" stage.

The Inspector (at appeal) however decided that the proposed development would have "no likely significant effect", because he took the view that it was acceptable to take into account at the "likely significant effect" stage all mitigation measures, as had been ruled acceptable by the High Court in a well known case called R (Hart DC) vs DCLG in 2008 The Court of Appeal in Smyth made a number of important comments about the Habitats Directive tests:

HRA: Difference between mitigation and compensation

Following an important Court of Justice of the European Union case called Briels (2014), the Court of Appeal clarified the difference between mitigation measures (which are relevant to the "no adverse effect test" under Article 6(3) of the Habitats Directive) and compensation measures (which have to be taken into account under the derogation tests of Article 6(4) of the Habitats Directive):

"Preventive safeguarding measures which have the effect of eliminating or mitigating to some degree possible harmful effects of a plan or project on a protected site (in the sense that they prevent such effects from arising at all or to some degree) may be taken into account under Art 6(3) and a competent authority is not confined to bringing them into account under Art 6(4)."

"If a preventive safeguarding measure of the kind I have described is under consideration, which eliminates or reduces the harmful effects which a plan or project would have upon a protected site in question so that those harmful effects either never arise or never arise to a significant degree then it is directly relevant to the question which arises at the Art 6(3) stage and may properly be taken into account at that stage."

"On the other hand, where measures are proposed which would not prevent harm from occurring, but which would (once harm to a protected site has occurred) provide some form of offsetting compensation so that the harm to the site is compensated by new environmental enhancing measures elsewhere, then it cannot be said that those offsetting measures prevent harm from occurring so as to meet the preventive and precautionary objectives of Art 6(3)".

HRA: One can take fully into account mitigation measures at the "likely significant effect" stage

The Court of Appeal also confirmed that the Hart approach to mitigation was correct ie mitigation can be taken fully into account at the "likely significant effect" stage:

"Since it is clear that preventive safeguarding measures are relevant matters to be taken into account under an AA, there is a compelling logic to say that they are relevant and may properly be taken into account in an appropriate case under the "likely significant effect" test as well."

"If the competent authority can be sure from the information available at the "likely significant effect" stage (including information about preventive safeguarding measures) there will be no significant harmful effects on the relevant protected site, there would be no point in proceeding to a AA to check the same thing".

HRA: Where a proposed project may have "in combination effects" arising from its interaction with a future development then the mitigation to address those future impacts can be dealt with at the later stage when that future development comes forward

The Court in Smyth held that where a "first housing development" has no "likely significant effect" on a SPA alone (due to provision of public open space as mitigation) but there could be "in combination" effects between it and future housing development, one does not need full certainty on the mitigation to address the potential in-combination effects, as they can be assessed / secured when that future development comes forward at a later stage.

The facts were that Mrs Smyth alleged that the Inspector in the planning appeal had failed to be certain to the requisite standard that there would be no possibility of adverse effects on the integrity of the SPA ie the mitigation measures on which the Inspector relied were too vague and uncertain. They were proposed to be implemented in the future but there could be no guarantee whether or when they would be put in place eg there was uncertain funding to purchase the SANGs that were a key part of the mitigation; and purchase of the SANGs were subject to uncertain compulsory purchase. The Court said that this argument had force but it ultimately disagreed.

The Court said that the project of 65 houses itself was not assessed to create any risk of significant harm to the SPA ie any adverse effects from this project alone were "de minimis". This was because this housing development was able to provide its own public open space which would absorb a significant amount of recreational pressures associated with the development.

It was the in-combination effects with other projects which were the problem. So the key question was for the Inspector to be sure that no significant in-combination adverse effects on the SPA would arise if he granted permission for the 65 houses.

In this case the in-combination effects were future effects when allocations of specific sites for the very substantial residential development under the three Local Development Frameworks (which were being developed) were eventually brought forward. Each of these developments would then have its own assessment. So the potential in-combination effects identified by the Council could not occur without further screening and AA. As such the Inspector could be satisfied that there would be no irreversible harmful effects on the SPA arising from implementation of the 65 house development at once and there was sufficient scope to ensure that appropriate preventive safeguarding measures would be implemented before any other major residential developments gave rise to possible in-combination effects. Future adequate preventive safeguarding measures would be put in place in proper time before any contemplated in combination adverse effects might arise.

This judgment may at first seem somewhat odd. It is saying that a "first housing development" should not be prevented from gaining planning permission, even where there could be in-combination effects with a second or third future housing development and the mitigation to address those combined effects is not as yet clear / secured, because the future development will itself be subject to assessment. It could be argued that this renders redundant the "in combination assessment" requirement which under Article 6(3) Habitats Directive is to be applied to the assessment of each plan and project. Why would Article 6(3) of the Habitats Directive have included this as a requirement if the problem of in-combination impacts can simply be addressed when the next project comes along?

The facts to which this judgement relates do however have some specific features. It was accepted that the first development (the 65 homes) would have "de minimis" impacts on the SPA due to public open space already provided within that development.

Although not put this way, the judgment really seems to be saying that the 65 homes were not going to have any notable impacts on their own; and the impacts of the future developments could be dealt with down the line when they are assessed. It seems surprising, on that basis, that the developer did not simply make the case at the outset that the 65 home development did not need an in-combination assessment at all, because "alone" it would have a neutral effect on the SPA given its provision of public open space. Where an effect of a project alone is neutral then there can be no in-combination effects. By contrast, in a situation where the first development is not offering its own public open space / is not "mitigating itself", so that the in-combination effects are, in greater proportion due to the first project, then this judgment may not apply, as it could be argued that the mitigation to address those effects would have to be clear to obtain permission.The Smyth case has been followed in a further case:

 The Court of Appeal case of R (Forest of Dean Friends of the Earth) v Forest of Dean DC, 9 July 2015. In the Friends of the Earth ("FoE") case, FoE challenged the grant of 2 planning permissions in 2 locations which, in the future, would be joined by a spine road. A SAC for bats was nearby. FoE argued that the Council’s AA was deficient because it had granted the 2 permissions without first undertaking a AA of possible adverse effects on the SAC from the spine road as per the requirement to carry out an "in combination" assessment. The Court of Appeal dismissed the challenge and said that a LPA can adopt a staged approach to consideration of individual projects as they are brought forward. Accordingly, where planning permission is sought for a first development project, the LPA must carry out an AA and may grant permission as long as it alone will not have any detrimental impact on the SAC, even where it is possible that there might be future "in combination" effects on the SAC if planning permission were then granted for a second development. This is because the in combination effects can instead be considered at the stage of the second project.

Again the FoE case is a decision in which the two permissions which were being challenged had been found, alone, not to give rise to an adverse effect. Indeed Freeths LLP had been the legal advisers on this project. We had advised that the shadow HRA produced by the developer should explain that no in-combination effects would arise at all since each project, alone, had neutral effects due to the provision of full mitigation. As such it is not surprising that no in-combination assessment was required at this stage. It would only be required when / if the proposed spine road came forward. However, again, as in Smyth, we conclude that if any in combination effects were in greater proportion due to a first project (ie the first project was itself able to offer full mitigation), then this judgment may not apply.