The Habitats Regulations Assessment regime after 31 December 2020 - how will it look?

Environmental professionals will no doubt be planning ahead for the practical implications of Brexit with the transition period coming to an end at 11pm on 31 December 2020.In this article, we unlock the key concerns on what the end of the transition period will mean for the Habitats Regulations Assessment (“HRA”) regime.

Will the HRA regime set out in the Conservation of Habitats and Species Regulations 2017 (as amended) continue to apply in the same way after 31 December 2020?

In general, yes. The Conservation of Habitats and Species Regulations 2017 (as amended) will remain in place with only relatively minor changes coming into force on 31 December 2020 (the changes are being effected by the Conservation of Habitats and Species Amendment (EU Exit) Regulations 2019 which will come into force on 31 December 2020).Examples of the relatively minor changes are that the European Commission's role in the HRA derogation test process will be replaced by the Secretary of State for the Environment, Food and Rural Affairs; and that there will be changes to the procedures for designation / classification of Special Areas of Conservation (“SACs”) / Special Protection Areas (“SPAs”).The HRA regime set out in the Conservation of Habitats and Species Regulations 2017 (as amended) will therefore continue to apply in largely the same way after the transition period ends. Parliament will however be at liberty to introduce future changes to the Conservation of Habitats and Species Regulations 2017 (as amended) since, after 31 December 2020, the UK will no longer be bound by the EU Habitats and Wild Birds Directives.

Will Court of Justice of the EU (“CJEU”) judgments / domestic court judgments on HRA given prior to 31 December 2020 remain binding after 31 December 2020?

In general, yes. At the present time the position, under section 6(3) EU (Withdrawal) Act 2018 (as amended), is that the courts in the UK, with the sole exception of the Supreme Court, will continue to be bound by HRA judgments handed down by the CJEU and by domestic courts prior to 31 December 2020 when interpreting the Conservation of Habitats and Species Regulations 2017 (as amended). This is the case as long as the Conservation of Habitats and Species Regulations 2017 (as amended) remain unmodified by Parliament. The Supreme Court will, however, be at liberty to depart from these judgments after 31 December 2020 if they consider it appropriate to do so. There is, however, a possibility that regulations will be brought in before 31 December 2020 to extend to other courts, including the High Court and the Court of Appeal, the power to depart from pre-31 December 2020 CJEU and domestic court judgments. This will depend on the outcome of the Government's consultation on 'Departure from retained EU case law by UK courts and tribunals' which ended on 13 August 2020.This means that when you are writing your HRA / sHRA reports after 31 December 2020 you should still continue to comply with / refer to HRA caslaw from before 31 December 2020.

Will CJEU judgments on HRA given after 31 December 2020 be binding?

No. Decisions of the CJEU on HRA made after 31 December 2020 will no longer be binding on any of the courts in the UK. It will also no longer be possible for UK courts to refer cases to the CJEU after that date. However, that is not to say that CJEU decisions post 31 December 2020 will cease to be relevant altogether after 31 December 2020. At present, section 6(2) of the EU (Withdrawal) Act 2018 (as amended) provides that “a court or tribunal may have regard to anything done by the CJEU or another EU entity or the EU so far as it is relevant to any matter before the court or tribunal”. This means that domestic courts and tribunals will have the option to “have regard to” (although will not be bound to follow) decisions of the CJEU when deciding on issues relating to the HRA regime. This means that when you are writing your HRA / sHRA reports after 31 December 2020 you are at liberty to refer to CJEU judgments handed down after 31 December 2020 if you wish to do so, even though they will not be binding. In doing so, you should refer to section 6(2) EU (Withdrawal) Act 2018 (as amended).

Can I still rely on the European Commission Guidance on HRA?

Many environmental professionals dealing with HRA issues will be familiar with the European Commission's guidance document titled 'Managing Natura 2000 Sites: the provisions of Article 6 of the Habitats Directive 92/43/CEE' (updated version dated November 2018) (the “Guidance”), which provides guidance on the interpretation of certain key concepts relating to the HRA regime. The good news for those wanting to continue to rely on the Guidance is that this document may still have some influence on domestic courts after 31 December 2020. This is because, as noted above, under section 6(2) of the EU (Withdrawal) Act 2018 (as amended), courts and tribunals “may have regard to anything done by the CJEU or another EU entity [i.e. the European Commission] (...) so far as it is relevant to any matter before the court or tribunal”. Note that the legislation is not specifically empowering Local Planning Authorities / the Planning Inspectorate to have regard to this Guidance, but the logic would be that they could also do so given that the Courts above them will have this option.

Can I still rely on the Domestic Guidance on Appropriate Assessment?

The guidance published by the MHCLG on Appropriate Assessment in July 2019 (on Gov.uk) will remain relevant to domestic court decisions and Local Planning Authorities / the Planning Inspectorate after 31 December 2020 (subject of course, to any future changes which may be made to this document).

HRA or shadow HRA report-writing after 31 December 2020

If you are writing HRA reports or shadow HRA reports after 31 December 2020 then remember the following:

• Stop talking about the Habitats Directive / Wild Birds Directive - stick to referring to the Conservation of Habitats and Species Regulations 2017.
• Still refer to “European sites” / “European marine sites” for: SAC / SPAs already existing at 31 December 2020;
  • any SAC proposed to the EU Commission / SCI on the EU Commission's list prior to 31 December 2020; and
  • any SAC / SPA designated / classified after 31 December 2020.
• Refer to “Natura 2000” as the network of SACs and SPAs in Europe.
• Refer to the “National Site Network” for the network in the UK of:
  • European sites in the UK
  • European marine sites in the UK
  • European offshore sites in the UK

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Freeths LLP's Environmental Law Team will continue to monitor the impact of Brexit on the HRA regime as well as other areas of environmental law. In the meantime, please feel free to contact us if you have any queries regarding the content of this article or any other HRA or environmental law issues. We are always happy to answer quick queries without any charge and would encourage you to be in touch.