This is entry number 232, published on 11 April 2011, of a blog on the Planning Act 2008 infrastructure planning and authorisation regime. Click here for a link to the whole blog.

Today’s entry reports on Infrastructure Planning Commission advice on habitats assessment.

On Friday. the Infrastructure Planning Commission (IPC) published its tenth advice note, on the subject of habitat assessment. The advice note can be found here. At 24 pages it is the longest advice note to date. Here is a summary of what habitat assessment is and the advice note - a lot of jargon in what follows, I'm afraid.

Background and terminology Habitat assessment is a very complicated area of environmental law, so it is worth briefly setting out its history and the different terms that get used.

In 1979 the EU passed the Birds Directive, which allows areas of land and sea to be given a special status for the purpose of protecting migratory and other rare bird species. These are known as Special Protection Areas (SPAs).

The rest of nature caught up in 1992 with the Habitats Directive, which does the same thing for protecting habitats and other species. These areas are known as Sites of Community Importance, or, in the UK, Special Areas of Conservation (SACs).

The SPAs and SACs around the EU are collectively known as the Natura 2000 network and in UK legislation tend to get called just 'European sites', one of many terms that are used in this area that give little clue as to their meaning. I'm not quite sure where the '2000' came from - perhaps in 1992 the EU thought that the network would be complete by 2000, but it is in fact still not quite complete. A map of the network across Europe can be found here.

Separately, in 1971 an international convention on protecting wetlands was concluded at Ramsar on the Caspian Sea coast of Iran. This led to a third set of protected sites known as Ramsar sites (sometimes incorrectly spelt in capitals as if it stands for something - you might also have thought that Ramsar was in a Ramsar site itself, but it isn't).

The UK treats Ramsar sites with the same level of protection as SPAs and SACs. In practice Ramsar sites are usually SPAs or SACs, or both, as well. Most of the main estuaries in the UK have at least one of the three designations, and they are also where much port development is concentrated, leading to a tension between environmental and economic interests.

The Birds and Habitats Directives have been implemented in the UK through the (recently consolidated) Conservation of Habitats and Species Regulations 2010. A phrase in these regulations about what a decision-maker has to do before approving development that might affect a European site is often used to describe the whole process: 'appropriate assessment'.

Strictly speaking though, appropriate assessment is only one stage of a four-stage process that the decision-maker has to go through (screening, appropriate assessment, assessment of alternative solutions, IROPI).

The decision-maker is referred to by yet another special term: 'competent authority'. There may be more than one of these if there are several applications for the same project.

If it is decided that even with mitigation, a development is likely to have an effect on the integrity of a European site, then it can still go ahead, but it has some high hurdles to jump. There must be:

  • no viable alternative solutions that would have less effect on European sites,  
  • 'imperative reasons of overriding public interest' (IROPI, pronounced eye-ropey) that the development should go ahead, and  
  • suitable compensation (in land, not money, terms).  

These hurdles come from article 6(4) of the Habitats Directive.

The IPC advice

The IPC advice note sets out the stages that must be gone through for nationally significant infrastructure projects to get approval.

First, as one of the application documents, the project promoter must submit a report saying whether the project is likely to have an effect on a European site, and giving enough information for an appropriate assessment to be carried out. Even if there is no likely effect, the promoter must say so, and why (in what the IPC calls a 'no significant effects report').

If the promoter does not give enough information, then the IPC may well reject the application - it cannot ask for more information while it is deciding whether to accept an application.

Although more information may be sought after the application is accepted, it may be refused later because of the short fixed timetable for considering it, if it turns out that there isn't time to produce it. Doing enough in advance is therefore the key.

Note that although the IPC will not be the competent authority (except possibly in the case of the two live applications), rather the government will be, the IPC, or its replacement, will carry out a 'shadow' appropriate assessment for the government.

Early engagement with the relevant statutory nature conservation body is recommended, and there are three of these: Natural England in England and up to 12 miles offshore; the Countryside Council for Wales in Wales and up to 12 miles offshore; and the Joint Nature Conservation Committee for over 12 miles offshore.

If there is likely to be an effect on the integrity of a European site, then the 'Habitat Regulations assessment' (HRA) that is submitted with the application must contain:

  • a plan showing the affected European sites or Ramsar sites,
  • evidence about the impact of the project on the sites' integrity,  
  • evidence of engagement with the nature conservation body,  
  • identification of mitigation measures,  
  • identification of residual effects remaining after mitigation,  
  • a schedule setting out the timing of the mitigation, and  
  • identification of the development consent order measures that guarantee (as far as possible) that the mitigation will be provided.  

If there are effects on integrity that cannot be avoided, then the HRA must also contain:

  • an assessment of alternative solutions  
  • a 'justification for IROPI statement', and  
  • a 'compensatory measures assessment report' following consultation with the nature conservation body.

The advice note finally outlines the stages that are undertaken once an application has been accepted. Essentially, the competent authority must consider the evidence it has been submitted, may ask for more, and must consult with the nature conservation body and the government (who may consult the European Commission) at various points before making a decision.

A complex area, indeed. Needless to say getting suitable legal and environmental expert advice is the best way forward.