An amendment to one paragraph of the latest incarnation of MHCLG’s National Planning Policy Framework concerning developments on land designated under the EU Habitats Regulations has helped resolve months of anguish in the planning community over a judgement by the European Court of Justice.
The seemingly modest change, in the form of an amendment to Paragraph 177 of the NPPF covering conserving and enhancing the natural environment published on 19 February, was made in response to a highly significant judgment on the interpretation of Article 6 of the EU Habitats Directive in April 2018 concerning conservation of natural habitats and habitats of species in the Natura 2000 network of sites. The changes are visible only as a web page update.
The change centres on Art.6.3 of Council Directive 92/43/EEC of 21 May 1992, which states that: "Any plan or project likely to have a significant effect on a Natura 2000, either individually or in combination with other plans or projects, shall undergo an Appropriate Assessment to determine its implications for the site. The competent authorities can only agree to the plan or project after having ascertained that it will not adversely affect the integrity of the site concerned."
Courts in the UK had customarily interpreted this as implying that if suitable mitigation measures were intended to be applied to such a development, the government’s controversial presumption in favour of sustainable development in the NPPF could then apply even to these sites, given that the adverse impacts could be avoided or minimised. This was further interpreted as meaning that mitigation measures could be included for consideration in the scoping stage, so that no formal Appropriate Assessment of damage to the habitat and its species would be needed in such cases.
But this widely used interpretation was overturned in a landmark ruling by the European Court of Justice on 12 April 2018 on a case referred to it for a preliminary ruling by the High Court of Ireland. The case concerned plaintiffs People Over Wind, an environmental NGO, and Peter Sweetman v Coillte Teoranta, an Irish government-owned company operating in the forestry sector, seeking to lay cables across a designated site to connect a wind farm to the grid.
The ECJ took the view that the very fact mitigation was necessary pointed to the potential for harm to designated habitat by the development, and that the screening stage should therefore not include the mitigation for consideration.
The Court (Seventh Chamber) ruled on Art.6.3 that "…in order to determine whether it is necessary to carry out, subsequently, an appropriate assessment of the implications, for a site concerned, of a plan or project, it is not appropriate, at the screening stage, to take account of the measures intended to avoid or reduce the harmful effects of the plan or project on that site".
In effect, the Sweetman judgement means that the presumption in favour of sustainable development cannot be applied to a site under the Habitat Regulations at the screening stage, even if a mitigation is available, and that a Habitat Regulations Assessment must be carried out in all such cases. Not surprisingly this has meant a sharp increase in assessments being carried out and increased costs that are likely to put off small developers.
A project can still go ahead even if it is damaging to designated habitat if there are "imperative reasons of overriding public interest" (IROPI) under Article 6(4) so long as there are suitable compensatory measures. Some developers could also argue that the mitigation is a integral part of the project, which is allowable in screening, which has sparked another debate.
MHCLG’s response is an amendment to paragraph 177 of the NPPF on habitats and biodiversity. This has been carefully crafted so that sites needing an HRA but for which mitigation is possible are not penalised: "The presumption in favour of sustainable development does not apply where the plan or project is likely to have a significant effect on a habitats site (either alone or in combination with other plans or projects), unless an appropriate assessment has concluded that the plan or project will not adversely affect the integrity of the habitats site." The latest amendment partly sidesteps the ECJ ruling, but will not be without controversy in the conservation community.
Another amendment, in this case to footnote 13 relating to paragraph 73 of the NPPF on delivery of a sufficient supply of homes to satisfy housing need, now reads: "Unless these strategic policies have been reviewed and found not to require updating. Where local housing need is used as the basis for assessing whether a five-year supply of specific deliverable sites exists, it should be calculated using the standard method set out in national planning guidance."
This change was expected, as it was considered necessary to clarify that 5-year housing need should be assessed using the straightforward standard method in national policy, as distinct to assessment for more complex strategic reasons under paragraph 60 using a justified alternative approach.
The final NPPF amendment is to the glossary, which defines readily ‘deliverable’ sites for housing as those "available now, [which] offer a suitable location for development now, and [can] be achievable with a realistic prospect that housing will be delivered on the site within 5 years". These shovel-ready sites must have detailed planning permission and be deliverable while permission lasts, but will be excluded if evidence suggests they will not be delivered within 5 years due to factors such as lack of viability, lower demand, or phasing over a longer period. The update follows a string of planning appeals.
In contrast, sites which have only outline planning permission for major development, have been allocated through a development plan, have permission granted in principle, or are listed on a brownfield register, "should only be considered deliverable where there is clear evidence that housing completions will begin on site within 5 years", it says.
Local housing need has also been redefined, to ensure agreement with footnote 13.