Habitat Regulations Appraisal Screening

It is rare for a major, or even medium-scale, development these days not to involve considerations under the Conservation (Natural Habitats, &c) Regulations 1994 and/or the Conservation of Habitats and Species Regulations 2010 (‘the Habitats Regulations’), whether it is effects on Special Protection Areas (SPAs) and Special Areas of Conservation (SACs) or European Protected Species (EPS) licensing.

This trend is reflected by the number of significant cases on the interpretation of the Habitats Regulations that have come before the courts recently.

Habitats Regulations Appraisal: screening

When carrying out a Habitats Regulations Appraisal (HRA) in determining an application, competent authorities will carry out an initial ‘screening’ to determine whether a project is likely to have a significant effect on a European site.

Clarification has recently been provided on the meaning of ‘a likely significant effect’ (Bagmoor Wind Ltd v The Scottish Ministers (see (2013) 155 SPEL 16) and Feeney v Secretary of State for Transport & Ors). It has been ruled that the word ‘likely’ in the Habitats Regulations should not be interpreted as referring to the probability of a significant effect but rather as a description of the existence of a risk of a significant effect (that is the possibility).

The Feeney case and other recent cases (R (on the application of Long) v Monmouthshire County Council and Alternative A5 Alliance, Application for Judicial Review) have also affirmed what can be taken into account when undertaking the screening, particularly in relation to mitigation. If relying on mitigation to conclude that there is no possibility of significant effect, then there should be no doubt as to the effectiveness of those mitigation measures.

What is an adverse effect on site integrity?

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

The ECJ (in Sweetman v An Bord Pleanála) has now stated that it should be inferred that a site needs to be preserved at favourable conservation status if its integrity is not to be adversely affected. In summary, this is likely to involve a consideration of whether a site’s qualifying features, whether it is a habitat or the population of a species, will be maintained in the long term.

It was also stated that an adverse effect on site integrity would exist if a plan or project is liable to prevent the lasting preservation of the constitutive characteristics of the site that are connected to the presence of a priority natural habitat. What is interesting to note about the Sweetman judgment is that it appears to restrict its decision to sites where there are designated priority natural habitat types (that is those in danger of disappearance).

Determining applications where there is potential for harm to EPS

Under the Habitats Regulations, a competent authority must have regard to the requirements of the Habitats and Wild Birds Directives (Directives 92/43/EEC and 2009/147/EC) in exercising their functions, so far as those requirements may be affected by the exercise of those functions. In some cases, they must also exercise their functions which are relevant to nature conservation so as to secure compliance with the requirements of those Directives.

This raises questions about the extent to which a competent authority should consider the requirement for an EPS licence under the Habitats Regulations when determining an application for development approval, such as a planning permission or s.36 consent.

Recent cases have suggested that a competent authority is entitled to rely on a lack of objection from the nature conservation body to ensure compliance with the duty to have regard to the requirements of Habitats and Wild Birds Directives when determining the application.

Comments

There now appears to be a settled position that a competent authority:

What is less settled is the meaning of ‘an adverse effect on site integrity’ as the ECJ appears to have restricted its judgment to situations involving priority natural habitat types. With the increasing number of projects involving consideration of the Habitats Regulations it may not be too long before the meaning of ‘an adverse effect on site integrity’ is considered again by the courts.

Full text of the article can be accessed here.