Neighbourhood Planning: Amendment to the Prescribed Basic Condition

Neighbourhood Planning: Amendment to the Prescribed Basic Condition

Wednesday 16th January 2019

The Conservation of Habitats and Species and Planning (Various Amendments) (England and Wales) Regulations 2018 ('the 2018 Regulations') came into force on 28 December 2018.

15 January 2019 update: Chief Planner letter now issued, view HERE

These, amongst other things, amend the basic condition related to habitats assessments, prescribed in Regulation 32 and Schedule 2 (Habitats) of the Neighbourhood Planning (General) Regulations 2012 ('the 2012 Regulations'). This basic condition must be met by a neighbourhood plan subject to independent examination.

By way of background, the Conservation of Habitats and Species Regulations 2017 include rules for the assessment of the impact of plans (including neighbourhood plans) and projects on protected habitats sites. The first non-statutory stage is a preliminary 'screening' to determine whether the plan or project is likely to have a significant effect on a protected site. If the plan or project is 'screened in' (i.e. because significant effects cannot be ruled out) the second stage is for an assessment to be undertaken to determine the impact of development proposals on the site's conservation objectives, called an 'appropriate assessment'.

Consent for the plan or project may only be given if the plan or project is 'screened out' in the first stage, or the appropriate assessment concludes development will not adversely affect the integrity of the protected site.

There had been a settled interpretation in domestic law which allowed for 'mitigation measures' to be taken into account at the screening stage, where any such measures built into the plan or project could avoid or remove likely significant effects. However, in April 2018 the Court of Justice of the European Union clarified in People Over Wind & Sweetman v Coillte Teoranta [case C-323/17] that it is not appropriate at the screening stage to take account of mitigation measures. The judgment reserves consideration of mitigation measures for the appropriate assessment stage, i.e. stage two.

This has subsequently created a problem in terms of progressing neighbourhood plans which are screened in to require appropriate assessment, due to the nuanced wording of the basic condition in Schedule 2 of the 2012 Regulations. The revised wording will ensure that neighbourhood plans that are screened in to the assessment process can continue to progress, following an appropriate assessment. The appropriate assessment would consider any impacts alongside mitigation measures, following the same process as assessments for local plans.

There are no transitional arrangements in relation to the revised basic condition, thus it will apply to any neighbourhood plans currently in the process of being examined, as well as any submitted for examination on or after 28 December 2018.

The 2018 Regulations also effect similar changes to a range of other planning tools including local development orders, special development orders, permission in principle and brownfield registers.

View the 2018 Regulations HERE