4 Development Control in European Sites

13.160 Development in European sites – for example SACs and SPAs notified under the European Habitats and Wild Birds Directives – is subject to more stringent restrictions than those applicable in SIs.

13.161 Where, however, an operation in a European site involves ‘development’ that requires planning permission,³¹⁷ then the 2010 regulations apply more stringent planning rules that restrict the public bodies’ ability to grant planning permission more extensively than is the case in other protected areas (such as, for example, in an SI). The terms and conditions upon which the decision maker must proceed are the same as those applicable to non-planning matters (above) and replicate the same protective provisions in the Directive. They are integrated into the more complex decision making apparatus of the Town and Country Planning legislation in the manner set out below. The combined effect of Part IV of the Conservation Regulations 2010, and governmental guidance to local authorities and other decision makers,³¹⁸ is to raise a stronger presumption against development of land in European sites than applies in other protected areas. Permitted development rights are also subject to extensive restrictions in European Sites. The special planning provisions apply to development in SACs and SPAs, and to development in potential SPAs (‘pSPA’) and candidate SACs (‘cSAC’) as if they had already been classified or designated.³¹⁹

13.162 The discussion that follows will concentrate on the implementation of the Directive through planning law and development control.

(a)Environmental Assessment

13.163 If the planning authority considers that a plan or project is likely to have a ‘significant’ effect on a European site, they must consult Natural England and carry out an ‘appropriate assessment’ of the project’s implications for the site in view of it’s conservation objectives. They can only agree to the development after having ascertained that it will not adversely affect the integrity of the European site.³²² The assessment required by the Conservation Regulations 2010 should not be confused with the project-based environmental impact assessment (‘EIA’) required under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011.³²³ The ‘appropriate assessment’ under the 2010 regulations is more narrowly focussed to an assessment of the impacts of development on the conservation status of the habitat and species, for the protection of which the site has been designated. A full EIA will look at a wider range of potential environmental impacts flowing from the development.³²⁴ Where a full EIA is also required, information gathered for the purposes of the latter can also be used for the purposes of the appropriate assessment required by the Habitats Directive.

13.164 The local planning authority’s power to grant planning permission is further restricted in that the regulations put a positive onus on the authority to satisfy itself that the proposal will not adversely affect the site’s conservation features.

13.165 The requirements outlined above for the scrutiny of planning applications in European protected sites are also applied to require the review of existing permissions and consents granted before a site was designated a European site.³²⁶ The decision maker – for example the local planning authority – must review existing permissions and consents on the same terms as apply to applications for planning permission for new development in the site (above), and carry out an appropriate assessment of their impact on the site’s integrity. If their exercise is likely to cause significant disturbance to protected species or the conservation status of the site then the permission must be revoked – unless the imposition of planning conditions or planning obligations can avoid adverse impacts that have been identified.³²⁷ Revocation of consents or permissions will have implications for the payment of compensation eg in the case of the revocation of a planning permission.³²⁸

(b)Criteria for Environmental Assessment

13.166 The assessment under the Conservation Regulations 2010 must be carried out in accordance with criteria and guidance set out in the National Planning Policy Framework and supplementary planning guidance. If the development is not directly connected with or necessary to the site’s management then the authority³²⁹ must first determine whether the proposal will have a ‘significant’ effect on the European site.

13.167 The plan or project’s implications must be assessed in view of the sites conservation objectives, so as to ascertain whether it will prejudice the integrity of the site, either individually or in combination with other plans or projects.³³¹ The maintenance of site integrity is the central objective of the assessment provisions, and this is defined to mean ‘the coherence of [the site’s] ecological structure and function, across its whole area, that enables it to sustain the habitat and/or the levels of populations of the species for which it was classified’.³³² Natural England will advise on the technical aspects of the assessment eg on the impact of land-take issues or hydrology. An assessment must be made for each interest feature for which a site is classified and for each designation where a site is classified under more than one international obligation (for example both as an SPA and as a Ramsar site). Moreover, all aspects of the plan or project which can, either by themselves or in combination with other projects, affect the sites conservation objectives must be identified the light of the best scientific knowledge currently available.³³³

13.168 The planning authority cannot grant planning permission unless, having carried out an appropriate assessment, they determine that the proposal will not adversely affect the integrity of the site, taking into account all likely and foreseeable effects.³³⁴ If the project would adversely affect site integrity, or the effects are uncertain but could be significant, then planning permission should not be granted. The decision maker can only grant permission if it has made certain that the plan or project will not adversely affect the integrity of the site, in the sense that no reasonable scientific doubt remains as to the absence of adverse effects.³³⁵ This test requires the authority to have regard to the scientific evidence in order to ascertain the presence or absence of scientific doubt as to the likely impacts of the development, and in this endeavour the advice of the statutory conservation bodies (who will be statutory consultees on all planning applications of this nature) will be very important.

13.169 If the decision maker is unable to ascertain that the development will not have adverse affects on the site’s integrity, then planning permission cannot be granted unless one of a number of closely defined circumstances applies.³⁴⁰ The planning authority must be satisfied that there are no alternative solutions that would have a lesser effect than the proposed development on the site’s integrity. If an alternative solution is identified then planning permission must be refused. If, on the other hand, no alternative solution is identified then permission can be granted only if the proposed development has to be carried out for imperative reasons of overriding public interest. These can include considerations of a social or economic nature, and the government will obtain the opinion of the European Commission as to whether particular reasons can be considered imperative and overriding for these proposes.³⁴¹ In every case, the overriding importance of the public interest in development must be such as to override the ecological importance of the designation – and the Conservation Regulations require the planning authority to consult with and consider the views of other competent authorities before agreeing to the development.³⁴² Planning guidance makes it clear that permission will be given in these circumstances in very few cases.

13.170 If the site host a ‘priority’ habitat or species type identified in the Habitats Directive then the grounds on which consent can be granted are narrower.³⁴³ The only considerations of overriding public interest which can justify a grant of planning permission are those relating to public health or safety, ‘beneficial consequences of primary importance for the environment’, or other reasons which the authority consider – having regard to the opinion of the European Commission – to be imperative reasons of overriding public importance.³⁴⁴ If there are other grounds, their status as imperative reasons must be confirmed by the European Commission. The court of appeal considered the meaning of this provision in Duke of Westminster’s Settlement v Welsh Assembly Government³⁴⁵ where it was held that the words ‘other imperative reasons of overriding public interest’ in the regulations³⁴⁶ could not allow the preservation of a protected species to itself constitute the ‘public interest’ legitimising the grant of a licence – their preservation was instead the objective of the regulations and the controls they impose on planning and licensing decisions.³⁴⁷

(c)Compensatory Measures

13.171 Where a plan or project is consented on grounds of overriding public interest – notwithstanding a negative assessment of its implications for a European site – the appropriate authority must secure that any necessary compensatory measures are taken to ensure that the overall coherence of the Natura 2000 network is protected.³⁴⁸ This might include, for instance, the designation of an alternative site hosting the same habitat type as that lost to the development. In the second reporting period for member state implementation of the Directive (2001-2006), the UK implemented compensatory measures for nine projects affecting SACs, and 7 affecting SPAs under the Birds Directive.³⁴⁹