A recent Court ruling on mitigation and Habitats Regulations Assessment sets the cat amongst the pigeons, but do developers really need to be concerned ?
Many development projects, when located in close proximity to a European designated site (Special Protection Areas, Special Areas of Conservation or Ramsars) are subject to Habitats Regulations Assessment (HRA) as a key stage of the planning process. This legal and procedural requirement must be undertaken by the ‘competent authority’ (typically the determining planning authority), although it is common practice for applicants to provide information in a separate document so as to ease the HRA process.
The HRA process is multi-staged. Stage 1 (screening) is required to assess whether the project is likely to have a significant effect (‘LSE’) on the European site. If so, Stage 2 (Appropriate Assessment) considers the implications for the European site in view of its conservation objectives. Stage 2 must ascertain that the proposal will not adversely affect the integrity of the European site, otherwise the HRA process continues to Stage 3 (assessment of alternatives) and ultimately Stage 4 (consideration of imperative reasons of overriding public interest, or IROPI). In reality it is extremely rare for any commercial project to proceed beyond Stage 2 as alternative options almost always exist.
Until very recently, many HRAs required only Stage 1 (screening) to be completed. Often this was due to the inclusion of mitigation, either through design or fairly standard environmental protection measures, which were quite logically considered as part of the project. However, this sensible approach is now no longer acceptable following a recent judgement by the Court of Justice of the European Union. The ’People over Wind’ judgement now means that mitigation can no longer be considered at Stage 1, forcing most projects to proceed to Stage2 (Appropriate Assessment) and therefore potentially increasing the time, costs and risks associated with projects which could, albeit theoretically, affect European designated sites.
This is further confounded as, at the moment, there is no clarity on what level of mitigation can be considered design (or is this avoidance?), or on how to differentiate between mitigation for the wider environment or on human health, rather than specifically for a European site (such as in issues of air or surface water pollution). No doubt clarifications will be provided by the Courts at some stage, but in the meantime developers must avoid an opportunity for those seeking Judicial Review.
Avian Ecology is at the forefront of HRA and has already adapted to the judgement accordingly. That means ensuring our documentation is carefully worded so as to be robust, and certainly not spiralling costs and reams of paperwork. Care, clarity and succinctness are always our approach.
We have already authored two complex HRAs which take full account of People over Wind and have been through successful legal review. This has been achieved quickly and efficiently by adapting the wording of our ES chapters and the application documents, as well as within the HRA report itself. The judgement may have set the cat amongst the pigeons, but with a little forethought the obvious pitfalls can be avoided with relative ease.
The Avian team has provided full HRAs and HRA reports, including those requiring Stage 4 (IROPI), for plans and projects across the UK for both the private and public sectors. Our recent HRA projects include those for the MoD, United Utilities, Scottish Power Networks and a host of major developments. We have also provided HRA services for planning authorities and acted as HRA advisors to the Irish Planning Inspectorate An Bord Pleanála. As such, our experience in HRA is comprehensive and unparalleled.
If your project requires HRA, please get in touch to ensure the process is completed in a simple, efficient and robust manner.