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Protecting Habitats: Revised Ruling on Mitigation & Compensatory Measures

Protecting Habitats: Revised Ruling on Mitigation & Compensatory Measures

Friday 25th May 2018

The European Union Habitats Directive includes measures to protect Special Protection Areas and Special Areas of Conservation from the effects of development. Before undertaking or consenting plans or projects likely to have a major impact on such sites, the competent authority must carry out an appropriate assessment.

The competent authority can normally only let the plan or project proceed if this assessment concludes that development will not adversely affect the integrity of a site protected by the Directive. As an exception, however, the authority may agree to a plan or project that will have an adverse impact if there are no alternative solutions, the plan or project must be carried out for imperative reasons of overriding public importance and adequate mitigation or compensatory measures can be secured.

Up until recently, where mitigation or compensation measures were seen as capable of avoiding or offsetting the adverse effects of development, this could be taken into account at the screening stage of a Habitat Regulations Assessment (HRA). As such a finding of "no significant effects" could be made at the Stage 1 screening stage, and a full HRA assessment would not be required.

However, following a European Court ruling (CJEU) in People over Wind and Peter Sweetman v Coillte Teoranta on 12 April 2018, the CJEU concluded the Habitats Directive "must be interpreted as meaning 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".

This ruling appears to reverse the judgement in R (on the application of Hart DC) v Secretary of State for Communities and Local Government [2008] (the "Dilly Lane" case).

So in summary, competent authorities (which include Local Planning Authorities and Qualifying Bodies for the purposes of local and neighbourhood plans) can no longer take account of any integrated or additional avoidance or reduction measures when considering at HRA screening stage whether a plan is likely to have an adverse effect on a site protected by the Habitats Directive.

Read more about the Habitats Regulations 2017 in the IPe news article 1 December 2017