From experience, we know that the Habitat Regulations assessment process can be confusing, that it can affect our clients’ sites and often cause some frustration in application timeframes.
This week we take a look at key High Court rulings and their implications for those schemes that could trigger a screening or Appropriate Assessment under the Habitats Directive and Habitats Regulations 2017 to determine whether a plan or project has potential to affect the integrity of International/European designated habitat sites.
In April 2018, the Court of Justice of the European Union ruled in the case of People Over Wind and Sweetman v Coillte Teoranta that mitigation measures couldn’t be taken into account when undertaking a screening assessment and should only be considered at the Appropriate Assessment stage under the Habitats Directive. This created some uncertainty in the system as it was in direct conflict with UK law which allowed for mitigation to be included within screening assessments. Additionally, this also raised questions about how this works in a phased planning system which involves outline and reserved matters stages.
This month, the government published guidance on the use of Appropriate Assessments, yet this provided little clarity on the points identified above. However, some recent High Court decisions have shone some further light on this.
In two recent rulings – Canterbury City Council v SoS and Gladman Developments Ltd v SoS – it was confirmed that mitigation can only be considered at the Appropriate Assessment stage, thus enshrining the CJEU People over Wind ruling in domestic law.
How then does this play out for phased sites? In a recent Judicial Review of Canterbury City Council’s decision to approve a reserved matters application, the judge was asked to consider whether conducting an Appropriate Assessment at reserved matters stage was lawful. In this instance, a screening assessment, including mitigation measures, ruled out the need for an Appropriate Assessment at the outline stage (lawful prior to People over Wind). The judge found that whilst an Appropriate Assessment should have been undertaken at outline stage given the People over Wind judgement, conducting an Appropriate Assessment at reserved matters stage was a lawful way in which to remedy this error.
This is the first decision of this kind and there are likely numerous other sites with outline consents in similar circumstances, where an Appropriate Assessment is now required at reserved matters stage. We recommended that clients review the information submitted with the outline consents to confirm whether mitigation was included in screening for an Appropriate Assessment. If this is the case, you are likely to require an Appropriate Assessment at reserved matters stage/s.
Iceni’s Planning and Environmental Impact Teams would be happy to provide advice and assistance on anything Habitat Regulations related. Please get in touch!