New Decision on Screening for Appropriate Assessment under the Habitats Regulations

The Inner House of the Court of Session has recently considered the 'screening' procedure under regulation 48 of the Conservation (Natural  Habitats &c.) Regulations  1994 (the Habitats Regulations) in a statutory appeal under section 239 of the Town and Country Planning (Scotland) Act 1997 (the Act)1.

Background to the Case

Argyll and Bute Council, the planning authority, notified the Scottish Ministers in 2007 that they had resolved to grant permission to the applicant to erect 14 wind turbines, some 110 metres high, over an area of 5.6 hectares at Stacain, near Inveraray, Argyll. The Scottish Ministers then called in the application.

Following the call in, an inquiry was held and ultimately the application was refused. However, that decision was quashed due to a failure of the Scottish Ministers to take account of a change in Scottish National Heritage's position on turbine collision risk for eagles after the Reporter's recommendation but before the decision.

The application was therefore returned to the Scottish Ministers and another inquiry was held. The Reporter recommended refusal of the application on the basis of concerns about the effects of the proposed turbines on golden eagles. The Scottish Ministers adopted the Reporter's recommendation and refused the application. It is that decision which was the subject of the statutory appeal.

The application site lies within the Glen Etive and Glen Fyne Special Protection Area (the SPA), which was designated with a purpose of protecting golden eagles, and therefore invoked the Habitats Regulations.

The Habitats Regulations: Regulation 48

One of the grounds of challenge related to whether the Reporter applied the correct process for 'screening' under regulation 48(1) of the Habitats Regulations which provides:

A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which:

An appropriate assessment is an assessment of whether a plan or project, which is likely to have a significant effect on a European site, will adversely affect the integrity of that European site. Subject to limited exceptions, a competent authority can only agree to such a plan or project after having ascertained that it will not adversely affect the integrity of the European site.

In terms of regulation 48, an appropriate assessment is only required where a project "is likely to have a significant effect on a European site". As a result, competent authorities will carry out an initial 'screening' to determine whether a project is likely to have a significant effect on a European site and it is that 'screening' which was called into question in this statutory appeal.

The Inner House Decision

The Inner House largely relied on the leading European Court of Justice case on Habitats Regulations appraisals, the Waddenzee case2, in its judgement. Key elements of the Inner House decision in relation to the 'screening' procedure are:

The Inner House decision largely reaffirms the position as set out in Waddenzee. However, it interestingly added the suggestion that, where the absence of a risk of a likely significant effect can only be established after detailed investigation or expert opinion, it is an indicator that an appropriate assessment is required. In the particular case, the court said it was abundantly clear to them that "construction and operation of 14 wind turbines, each 110 metres high, in the foraging ground for eagles in an SPA would be "likely" to have a significant effect upon those eagles and hence the conservation objectives of the SPA".

In practice, if appropriate assessment was required whenever expert opinion or detailed investigation was undertaken to establish the absence of a likely significant effect then it would be likely to lead to a significant increase in the number of projects subject to appropriate assessment and its stringent tests.

Footnotes