The People Over Wind Ruling ? – Does it matter ?
The ruling relates to 931 EU-protected Special Areas of Conservation (SACs) and Special Protection Areas (SPAs) in the UK, covering 17 and 11 per cent of the land surface respectively. For example, it affects the Thames Basin Heaths SPA, which extends across 82 square kilometres in Hampshire, Surrey and Berkshire.
There are two steps that a decision maker must follow in determining whether a plan or project is likely to affect a Special Area of Conservation under the Habitats Directive or a Special Protection Area under the Birds Directive (given domestic effect by the Conservation of Habitats and Species Regulations 2017). For plan making this is carried out in what is termed a Habitat Regulation Assessment (HRA).
The first step is what is commonly called “screening”, although it is not a formal procedural process as there is with EIA. At this stage the question is whether the plan or project is likely to have a significant effect on an SAC or SPA (either alone or in combination with other plans or projects). “Likelihood” is a low threshold – as summarised in People Over Wind). The practice has been for mitigation to be offered at this stage to allow the decision maker to conclude that the risk is not significant and therefore the more detailed second step of “appropriate assessment” is not required.
Appropriate Assessment (AA) is a detailed process to ascertain that an adverse effect on the integrity of the site can be ruled out. Where such an adverse effect on the site cannot be ruled out, and no alternative solutions can be identified, then the project can only then proceed if there are imperative reasons of over-riding public interest and if the necessary compensatory measures can be secured.
To pass the Appropriate Assessment stage, Natural England will need to be consulted and the test that a site allocation or project will have "no significant effect" upon protected sites "on the basis of objective information". To pass the Appropriate Assessment test, this has to be proved "beyond reasonable scientific doubt".
The consequences will be slower decision making both in terms of plan making but also decisions on individual sites. This will also be more expensive for all concerned in the process at a time when Local Authorities and Natural England lack expertise and resource to answer these complex questions.
Will leaving the European Union help ? Probably not in the short term as it will need the UK courts to take a different view to the European Courts, but in the longer term there are major questions still to be answered over what does the UK want to protect. Is this say habitats and species that are common in the UK, but are rare in Europe ?
As with all judgements of this nature, it is often the following judgements that allow better understanding and how future decision trends might follow. We will watch such matters with interest, and will be sure to update our clients appropriately in relation to their specific sites and interests.