It has been over 15 months since the CJEU’s ruling in People Over Wind (“POW”) that measures to avoid or reduce harmful effects on a European site should be left out of account at the screening stage of Habitat Regulations Assessment (“HRA”) but still its repercussions can be seen domestically. Not least during a three day period in late July where the Government issued planning policy guidance on the use of HRA and the High Court gave its judgment in Gladman Developments Ltd v Secretary of State for Housing, Communities and Local Government & Medway Council - considered below as part of an ongoing blog series on HRA.
Planning Policy Guidance on HRA
On 22 July 2019 the Minster of Housing, Communities & Local Government published guidance on the use of HRA.
As well as providing a general overview of HRA and appropriate assessment, the guidance hones in on the implications of POW. Overall, as one would expect, there are no surprises to be found in the guidance but, of particular note for those grappling with HRA in the aftermath of POW, is the advice concerning what constitutes mitigation and the principles to be considered as to whether appropriate assessment is required.
On the question of what constitutes mitigation, the guidance defines mitigation widely and advises that, in the first instance effort should be made to avoid an adverse effect altogether, but if not “impact reduction measures should be applied”. Various examples are provided, including switching to a less damaging method of construction or undertaking works at a less sensitive time of year (e.g. outside a breeding season) – standard mitigation measures which underline the potentially wide implications of POW.
The guidance proceeds to consider the key principles that authorities should consider when determining whether appropriate assessment is required, advising:
- Measures that have been added primarily to mitigate the effects on a habitats site should not be considered at the screening stage. By way of example, the PPG advises that offsite Suitable Alternative Natural Greenspaces (SANGs) “may be” a mitigation measure “as their primary purpose is to draw recreational pressure away from sites and so prevent an adverse effect from occurring”; and
- Conversely, features that are integral to the design or physical characteristics of the project may be considered at the screening stage. For example, features such as the layout, timing and location of a scheme that “may be the product of other considerations, irrespective of any nature conservation issues, for example safety considerations”.
The advice is carefully hedged, indicating that considering whether a measure has been included primarily to mitigate the likely habitats-related effects on the site is only “one way” of determining whether it can be considered as part of HRA screening (although the PPG is silent on the other possible ways) and whether “something is integral to the project and not a mitigation measures will have to be determined on a case by case basis”. This is because the distinction that the guidance is grappling with – integral features -v- mitigation measures – is a difficult one to make or apply in practice. A perfect example of the point is what would an onsite SANGs be?
Whilst the guidance undoubtedly offers more assistance than R (Langton) v Secretary of State for Environment, Food and Rural Affairs & Natural England, the first High Court decision to consider the question of whether something is an integral feature or mitigation post-POW, it ultimately serves to illustrate the legal minefield that this area has become. For applicants and authorities alike, in the current climate, if there is any doubt as to whether something is mitigation or not in an HRA context, the safest course of action from a legal challenge perspective remains to disregard that measure at HRA screening and to proceed to appropriate assessment when it can then be factored back in.
An inevitable consequence of POW was that there would be a procession of cases through the Administrative Court of those planning decisions that were unfortunate enough to be determined in an application or appeal process which straddled POW. Gladman was one such case, although an immediate distinction is that this was not a case where there was any argument about the lawfulness of the HRA itself.
Rather, the main issue in Gladman was indirectly related to HRA and POW – specifically whether the appropriate assessment that POW caused to be undertaken in the case should have deprived the applicant of the benefit of the NPPF presumption in favour of sustainable development in the final decision. This was especially as, by that time, and in light of POW, the Government was already consulting on changing the particular NPPF paragraph that disapplied the presumption where an appropriate assessment was undertaken.
In rejecting the claim on 24 July 2019, the Court essentially accepted the Secretary of State’s argument that he had simply applied what was the correct and established policy at the time of the planning decision. It is difficult to argue with the logic of this and, given that the outcome of the aforementioned consultation was for the NPPF to be updated so that the presumption is no longer disapplied simply because an appropriate assessment has been undertaken, one can conclude that the claimant was just plain unlucky in terms of the timing of the planning decision.
What perhaps is more notable about Gladman was the quixotic attempt to argue that POW was wrongly decided. Given the lawfulness of the HRA was not in contention in the case and the fact that POW has already been considered in a number of cases, it is not immediately obvious why this ground was pursued. Unsurprisingly, the Court gave it short shrift, referring back to the recent review of the law around HRA in the Canterbury and Crondall cases to reiterate that:
- POW is correct; and
- As a consequence, the previous line of domestic authority on is no longer good law.
A reiteration that was hardly needed but at least it saved the Secretary of State the immediate job of having to re-write the planning policy guidance on HRA issued a few days before.