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Tread warily: habitats

17 January 11

There are some hundreds of "European sites" in Scotland attracting special protection for species and habitats, and the rules on land use assessment are complex

by Alastair McKie

This article focuses on the issues and challenges illustrated in the recently published guidance by Scottish Natural Heritage (SNH) entitled Habitat Regulations Appraisal of Plans – Guidance for Plan-Making Bodies in Scotland. It underlines the continuing impact of European environmental law on the planning system and the added complexity of applying “appropriate assessment” under the Habitat Regulations 1994 to land use plans that affect “European sites”.

European sites are of international importance for species and habitat protection, and comprise special areas of conservation (currently 239 in Scotland), special protection areas (SPA; currently 147 sites), and RAMSAR sites (wetlands). They are not restricted to the remoter parts of the country, and the River Forth is a SPA, as is land adjoining Glasgow airport.

As with the rest of the UK, the Scottish planning system operates a “plan-led” system of decision making, with the Planning Act 1997 placing a strong legal presumption on development proposals that are in accordance with a development plan and conversely a strong legal presumption against proposals that are not. What is noteworthy is that although land use plans do not themselves grant project consent, their impact is sufficient to be caught by the directive, and this point has been ruled on in Commission v UK (C-6/04) [2005] ECR I-9017. This case led to an amendment to the Habitat Regulations by adding regs 85A-85F to apply them to land use plans.

Duty to assess

The strict legal protection requires complex legal procedures to be adopted by any “competent authority” for the purposes of considering any “project” or “plan” affecting a European site. The project or plan need not involve development on the site, as the test is one of significant effect regardless of the development’s location. A competent authority is the decision maker on the project or plan.

Failure to comply may result in such a decision to approve a project or plan being set aside by the courts following a successful legal challenge. With land use plans increasingly becoming the focus for promoting development, the requirement for engagement with the Habitats Directive and the Habitat Regulations will continue as a risk area.

The Habitat Regulations specify what type of land use plan requires to be assessed, and these include the national planning framework, strategic development plans, local development plans, and supplementary guidance. Core path plans are covered under reg 69A. Other types of plans not explicitly referred to in the regulations will need to be subject to appraisal for their effects on European sites, because reg 47(1)(b) applies to such other plans and projects. This means that master plans and development briefs affecting European sites will require to be assessed.

Lawyer input

At a practical level, it is somewhat easier to assess the effects of a project or development on a European site than those of a “plan”. That is because plans are by their nature conceptual and the level of detail required to make an informed assessment may be difficult to obtain. SNH’s Guidance helpfully illustrates a 13-stage appraisal process. The stages on which legal advice may be required are stages 5-7, which relate to screening the plan for its potential effects on a European site. Only those aspects of the plan that are likely to have a significant effect on a European site, either alone or in combination with other aspects, require to be appraised.

The difficulty for the appraiser is the interpretation of a “likely significant effect”. A likely effect is one that cannot be ruled out on the basis of objective information. Although “likely” would imply an effect that is probable or might well happen, in Waddenzee (ECJC-127/02) the European Court ruled that a project should be the subject of an appropriate assessment “if it cannot be excluded, on the basis of objective information that it will have a significant effect on the site either individually or in combination with other plans and projects”. Where a plan or project might undermine European sites, the effects must be considered to be significant. It is the potential effect on the ecological functioning of the site that is relevant.

Stages 8-9 relate to an “appropriate assessment” of the implications for the European site in view of its conservation objectives under the regulations. Consultation with SNH is mandatory, and where following that assessment the competent authority cannot conclude that the plan will not adversely affect the integrity of the European site, it may not be adopted.

That is because to do so the plan would have to meet the extremely high test of there being no alternative solutions and for reasons of overriding public interest.

Alastair McKie, Partner, Anderson Strathern LLP

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