Comment

Representation ID: 92159

Received: 13/08/2018

Respondent: Natural England

Likely significant effect, Please refer to our comments on Habitats Regulations Assessment in our letter of 13 August 2018.

Annex 1: Natural England's comments on the Draft Habitats Regulations Assessment of the M&WLPR, dated May 2018

A recent judgment from the Court of Justice of the European Union (Case C-323/17 People Over Wind v Coillte Teoranta) has provided authoritative interpretation relating to the use of mitigation measures at the screening stage of a Habitats Regulations Assessment (HRA). The judgment concluded that it is not appropriate, at the screening stage, to take account of measures intended to avoid or reduce the harmful effects of the plan or project on a European site. However, when determining whether the plan or project will have an adverse effect on the integrity of the European site at appropriate assessment, a competent authority may take account of those avoidance and mitigation measures.
The Local Planning Authority, as competent authority for the Minerals and Waste Local Plan, should consider this judgment when undertaking the HRA screening under the Conservation of Habitats and Species Regulations 2017 and may wish to take its own legal advice on the implications of the judgment.
This means that for any sites where avoidance and mitigation measures have been identified to protect designated Natura 2000 sites such as Special Areas of Conservation (SACs), Special Areas of Protection (SPAs) or Ramsar sites, the sites should not be screened out for likely significant effect but carried forward to Appropriate Assessment, at which point any mitigation measures, eg not de-watering, conditions to control dust or lighting etc, can be assessed in detail and taken into account.
Our specific comments on various individual allocations included in the initial consultation are intended to reflect this ruling. That is, where measures have been identified specifically to protect a Natura 2000 site, then these allocations should be screened in to Appropriate Assessment. At this stage the effectiveness of any proposed avoidance and mitigation measures and all the evidence should be examined to reach a conclusion of likely significant effect, either alone or in combination with other plans or projects, and to ascertain whether an adverse effect on the integrity of the site can be ruled out.
Note that any proposal which may affect a Natura 2000 designated site must go through a project level HRA in addition to this strategic plan-level HRA. This should be identified for each relevant allocation and reflected in the policy wording, including what avoidance and mitigation measures would be necessary. This can be at a 'high' level, e.g. work would take place outside the bird breeding season to avoid disturbance to nesting birds. However, more detail would be expected in the HRA at planning application stage.
The future conclusions and recommendations of the HRA will need to be incorporated into later revisions of the Sustainability Appraisal (SA) report, and be reflected in the allocations and policies of the M&WLPR.