New court judgment on Habitats Regulations Assessment: can a competent authority rely on another regulator to avoid HRA?

When complying with Habitats Regulations Assessment requirements, a competent authority cannot simply rely on the competence of other regulators to avoid conducting their own appropriate assessments

If you are a competent authority (authority “A”) needing to carry out a HRA of a project, you might think that you can avoid having to appropriately assess matters which will be separately assessed by another competent authority (“B”) through a separate permitting regime. Not so! The starting point is that competent authority A needs to appropriately assess all relevant impacts itself, even if another authority B will also have to separately permit some element of the project.

Last month the High Court quashed a County Council's decision to vary a planning permission for a water company to construct a sewage outfall into a European site river (R (on the Application of Preston) v Cumbria County Council [2019] EWCA 1362). The mistake made by the County Council was that, although it had carried out an appropriate assessment (“AA”), its AA was limited to considering the impacts on the river SAC of construction of the outfall. It had not considered impacts on the river SAC of the operation of the outfall. Indeed the AA even stated that the operational impacts would be addressed in a separate HRA submission but none was ever provided.

In quashing the planning permission, the High Court rejected the County Council's argument that it did not need to assess the operational impacts of the discharge on the SAC river because it could rely on the competence of the Environment Agency (“EA”) to regulate the discharges under the separate environmental permitting regime. The County Council had argued that it was entitled, indeed bound, to assume that the discharge would be properly controlled by the EA with the consequence that there was no prospect of any adverse effect resulting from the discharge - this was rejected by the Court. The Court rejected this, saying that the County Council still had to exercise its own judgment albeit giving due weight to the views of a body such as the EA.

The case serves as a stark reminder that planning authorities and other competent authorities cannot, in appropriate assessments, simply rely on the competence of other regulators to avoid conducting their own assessments. They must instead themselves satisfy their own HRA duties. The judge said: “Regulation 63(1) provides that the trigger for making an appropriate assessment is that the relevant plan or project 'is likely to have a significant effect on a European site'. Regulation 63(3) envisages consultation with the appropriate nature conservation body taking place at the stage of the appropriate assessment and accordingly after the initial view that there is likely to be significant effect has been formed.

The conclusion as to whether the integrity of the relevant site will be adversely affected is to be made 'in the light of the conclusions of the assessment' (Regulation 63(5)) and it is at that stage that regard is to be had to the manner in which the project is to be carried out and to the conditions or restrictions which the authority is minded to impose (Regulation 63(6)). The effect of restrictions imposed by another regulatory body is seen as an aspect of the manner in which a project is to be carried out and so falling for consideration under Regulation 63(6) at the end of the assessment process rather than as removing the need for an appropriate assessment.” (Paragraph 63).

The Court also made clear that, at the first (screening) stage of HRA, it was not open to the Council to rely merely on the existence and powers of the EA so as to conclude “no likely significant effect”. The Council would need more evidence than that to conclude that the discharge would have no likely significant effect so as to avoid the need for an AA. Cases can be more complex where competent authority B has already undertaken a HRA. In such a case, competent authority A may well be able to adopt the HRA, or relevant parts of the HRA, of competent authority B instead of carrying out its own assessment from scratch (see regulation 67 of the Conservation of Habitats and Species Regulations 2017 and the Habitats Directive - Guidance on competent authority coordination under the Habitats Regulations). We can provide further legal advice on the details of this if needed.

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We are the Freeths' Environment team, part of Freeths' Planning and Environment Group. We are a strong team of environmental lawyers, using our experience and expertise to advise both public and private sector clients across a wide range of environment matters. If you would like to speak to a member of the Environmental team about this e-shot please contact the team.