Skip to main content

Assessing your Neighbourhood Plan's effects on the environment: Conservation & Habitats Regs 2018

Assessing Neighbourhood Plans effects on environment, Conservation and Habitats Regulations
In response to a ruling by the European Court of Justice, new legislation has came into force in December 2018. This new legislation may affect how you should assess the environmental impacts of your Neighbourhood Plan.


All Neighbourhood Plans must be legally compliant and satisfy the basic conditions. The basic conditions require Neighbourhood Plans to be compatible with, and not breach, EU obligations, and must also satisfy other prescribed conditions.

The following directives are of particular significance to plan-making:
Directive 2001/42/EC (hereafter referred to as the "SEA regs") sets out a process for testing whether a plan will lead to harm to the environment. This process is known as Strategic Environmental Assessment - often abbreviated to "SEA".

Directive 92/43/EEC (hereafter referred to as the "HRA regs") sets out a process for assessing whether a plan will result in harm to internationally-important sites for wildlife.

The directives have been transposed into UK law, so the requirements for checking a plan's effects on the environment will remain post-Brexit.

Strategic Environmental Assessment (SEA) process

Locality has produced an excellent guide to carrying out SEA for neighbourhood plans, titled Screening Neighbourhood Plans for Strategic Environmental Assessment. I don't intend to duplicate the information in the guide, and would suggest you refer directly to it when carrying out SEA.

In summary, SEA is carried out in two stages. Firstly, a 'screening' assessment is undertaken, to determine whether a full Strategic Environmental Assessment is required. In other words, you must first do an initial 'check' to see if the plan is likely to have any impacts on the environment which require a detailed assessment.

If the screening assessment concludes that the plan is likely to result in significant environmental impacts,  a full SEA must be prepared.

Whether a Neighbourhood Plan is expected to have environmental effects will vary, depending on:
  • What the policies in the Neighbourhood Plan say; and
  • The context in which the plan is being prepared, for example whether there is an up-to-date Local Plan and/or evidence base.
SEA is an essential part of the Neighbourhood Plan process. At the point of submitting your Neighbourhood Plan to the local authority, you must include either a statement of reasons why a full SEA isn't required, or where a full SEA has been carried out, an environmental report.

Habitats Regulation Assessment (HRA) process

The purpose of HRA is to assess whether a plan will impact on 'designated sites' - habitats which are of international importance, such as Special Protection Areas (SPAs) and Special Areas of Conservation (SACs). The process is similar to the SEA process in that it consists of two parts - a 'screening' stage and a full Habitats Regulation Assessment, often referred to as an 'Appropriate Assessment'

For Neighbourhood Plans, the Locality guide recommends that HRA screening is incorporated into the SEA screening stage. Where the screening assessment identifies potential impacts on designated sites, a full Appropriate Assessment will be required.

Recent EU Court Ruling

A decision by the European Court of Justice (ECJ) (People Over Wind & Sweetman vs. Coillte Teoranta) in April 2018 has had a big impact on the HRA process for both Local Plans and Neighbourhood Plans. In short, the ECJ ruled that in order to determine whether it is necessary to carry out a full Appropriate Assessment of the implications of a plan, it is not appropriate to take account of the mitigation measures at the screening stage. Rather, consideration of mitigation will need to occur at the full Appropriate Assessment stage.

In more simple language, if a Neighbourhood Plan includes measures to counter the plan's effects on habitats sites, these should be ignored at the screening stage.

Jon Herbert of Troy Planning & Design has written this excellent article which sums up the issues this ruling may have for neighbourhood planning.

It is perhaps inevitable that, as a result of the ruling, more Neighbourhood Plans will require full Appropriate Assessments and Strategic Environmental Assessments. As discussed in the Troy Planning & Design article, this has resource and time implications, and could lead to delay in plan-preparation where up-to-date evidence is unavailable.

New legislation

The purpose of these new regulations is to amend various pieces of legislation to ensure it reflects the ECJ's ruling. The new legislation attempts to remove uncertainty about how existing legislation should be applied. This includes amending the basic conditions for neighbourhood planning, providing clarification that a Neighbourhood Plan must follow the HRA assessment process. In addition, the legislation resolves issues affecting the operation of Neighbourhood Planning Orders.

What you should do next

In its Notes on Neighbourhood Planning Edition 21 (December 2018), the Ministry for Housing, Communities & Local Government acknowledges that the ECJ's "judgement has led to uncertainty for those working on neighbourhood plans". The new legislation is helpful in so far that it provides some clarification to the legal process.

You should start the conversation about SEA & HRA with your local authority at an early stage of preparing your Neighbourhood Plan. Many local authorities regularly carry out the screening stage for neighbourhood planning groups as part of their 'duty to support' package.

Even if the local authority is unable to carry out the screening exercise, they should supply you with the necessary evidence documents to enable you to complete the assessment yourself - making sure to follow the Locality guide as you do so.

Where a full SEA or HRA is required, again, speak to your local authority. Some may offer to undertake the assessment for you, others may offer to assist with the assessment - perhaps the assessment could be a collaborative effort between the neighbourhood planning group, local authority and statutory bodies (Environment Agency, Historic England and Natural England). However, resources are typically limited and stretched in all of these organisations so this may prove impractical.

Some local authorities may not have sufficient resource available or may lack up-to-date evidence necessary to prepare the assessment. In such cases, most neighbourhood planning groups would likely need to seek technical support from an external organisation.

MHCLG's Notes on Neighbourhood Planning directs neighbourhood planning groups to its support provider, Locality, noting that:
"Our support provider Locality will continue to offer technical support for neighbourhood plans on Habitats Regulations Assessments."
Alternatively, neighbourhood planning groups could commission a consultant to carry out the assessment on its behalf.

There is clearly an important role for local authorities in supporting Neighbourhood Plans through the SEA & HRA process, which has recently been made more complex and burdensome. Firstly local authorities can directly assist neighbourhood planning groups through the duty to support placed on them by the Localism Act.

Secondly, local authorities should ensure their Local Plans and evidence base are kept up-to-date to ensure adequate information is available to neighbourhood planning groups to utilise. Where an area has an up-to-date Local Plan supported by a recent Habitats Regulation Assessment, and where the Neighbourhood Plan is in general conformity with the strategic policies of the Local Plan, undertaking SEA & HRA will likely be far simpler than those areas where the Local Plan and evidence base are out of date.

Whilst being mindful that there is a rigorous legal process for assessing the environmental effects of plans, any SEA/HRA assessment undertaken for a Neighbourhood Plan should be far more modest in its scope and scale than that for a Local Plan. In most cases, the geographic area and levels of growth affected by a Neighbourhood Plan will be a mere fraction of that set by the Local Plan. As stated by the NPPF (para. 31), the evidence used to justify a plan's policies should be "adequate and proportionate".


Popular posts from this blog

Why the Middlewich Neighbourhood Plan failed

News that the Middlewich Neighbourhood Plan was rejected at referendum has spread rapidly across social media and has even been picked up by local and national press - see BBC article.

The story has garnered a lot of attention as it is highly unusual for a Neighbourhood Plan to be rejected. The Middlewich Neighbourhood Plan is only the third Neighbourhood Plan not to be supported by residents.

At the referendum held on 14 March 2019, the Neighbourhood Plan was rejected, albeit by a very slim margin of just 22 votes.
'No' Campaign Prior to the referendum, Labour town councillors led a campaign which encouraged local people to vote against the Neighbourhood Plan. 
Based on the literature shared by the campaign group, opposition to the Middlewich Neighbourhood Plan appears to be pointed at three key issues: Impacts on the town and its infrastructure of the overall scale of growth Middlewich is expected deliverDisagreement with the individual sites identified by the Neighbourhood …

Latest stats show continued increase in house-building

Chart: All Things Neighbourhood Planning
Data source: Live tables on housebuilding: new build dwellings (Table 209), MHCLG

The Ministry for Housing, Communities and Local Government has today published its latest data on house building in the United Kingdom. The graph shows the number of dwellings completed by financial year in England. Data is also available for the other home nations. However, Neighbourhood Planning is a feature of the English planning system only.

In 2017/18, there were more than 160,500 new homes constructed. - the highest rate of development since the financial crisis of 2007-08. As illustrated in the graph, the data shows a steady increase in number of homes built each year since the low-point of 2012-13, where less than 108,000 homes were built. 

The rate of development in 2017/18 is comparable to the period 2004 - 2006. Assuming this trend of increasing development rates continues into the current financial year, the number of homes constructed in 2018/19 could po…

Neighbourhood Plan Review: Plans made in July 2019

Neighbourhood Plans provide a bespoke planning framework for the local area. No two plans are alike, although many have similar characteristics and address common themes. This post provides a short summary of those Neighbourhood Plans which successfully passed referendum in July 2019, highlighting the elements which make each plan locally specific and unique.

The purpose of this post is to celebrate the achievement of those communities in successfully preparing their Neighbourhood Plans, and to share the interesting ideas and policies for the benefit of others who are currently writing their plans. Links to the Neighbourhood Plans are provided throughout the post.
Navigate this post using the map July was a busy month, with a whopping 24 Neighbourhood Plans successfully passing referendum. To  make it easier to navigate this post, the location of the areas covered by each new Neighbourhood Plan are shown on the interactive map. Click on a marker to reveal a link to the plan's su…

Just how big is an infill site? Appeal decision: Chinnor, Oxfordshire

An appeal decision initially caught my eye due to its surprising interpretation of 'infill development' -  but also raises some concerning issues around how Neighbourhood Plan policies are applied during the decision-making process.

The appeal relates to an application for the construction of up to 140 dwellings, new public open space, associated landscaping and site infrastructure on a 3.9ha site at Chinnor, Oxfordshire. The application was made by Persimmon Homes and initially refused by South Oxfordshire District Council. The appeal was allowed, meaning the Planning Inspector went against the district council's decision grant planning permission for the scheme. Details of the appeal can be found using the following reference APP/Q3115/W/17/3187058. Neighbourhood Plan & Development Plan Chinnor is a large village in Oxfordshire. The Chinnor Neighbourhood Plan (CNP) was 'made' in October 2017. When the appeal commenced, the Neighbourhood Plan was less than one…

Putting Health & Wellbeing at the Heart of Neighbourhood Planning

The planning system's origins can be traced back to public health policies from the nineteenth century. Increases in population and the growth of towns created public health problems, and early legislation focused on creating sanitary conditions.

There is a sense that in recent decades planning has lost its way with health, yet our modern environments continue to have profound effects on our health and well-being. In the blog post What stops us from creating healthier places? author Rachel Toms notes that overall, the planning system has done a good job of designing infectious diseases out of the places in which people live, but has "inadvertently contributed to sedentary lifestyles, mental distress and social isolation".

Whilst the planning system has cured the public health problems of the industrial revolution, it faces a new set of public health challenges for the modern era.

In this post, I make the case for prioritising health and wellbeing through Neighbourhood P…

Appeal granted in countryside despite Five Year Land Supply - Shinfield Neighbourhood Plan

Through a recent appeal decision, a Planning Inspector has granted outline planning permission for up to 55 dwellings and 'Suitable Alternative Natural Greenspace' (SANG) at land at Parklands, east of Basingstoke Road, Spencers Wood, Wokingham.

The decision was issued on 28th February 2019, under appeal reference APP/X0360/W/18/3204133.

The appeal site is located between two villages, Three Mile Cross and Spencers Wood. The scheme proposes two areas of development adjoining each of the villages, separated by an area of open space - a 'SANG'.
Shinfield Neighbourhood Plan The Shinfield Neighbourhood Plan (SNP) was made in February 2017. Policy 1 of the SNP addresses the location of development:

In Shinfield Parish, development within the Development Limits..., will be supported; development adjacent to the Development Limits will only be supported where the benefits of the development outweigh its adverse impacts. 

'Development limits' are a very common planning …

Neighbourhood Planning and Community Health and Wellbeing - Briefing Note for NALC

I have teamed up with the National Association of Local Councils (NALC) to author a briefing note on Neighbourhood Planning and Community Health and Wellbeing.

The briefing note illustrates how Neighbourhood Plans can actively contribute to improving health and wellbeing in their communities, and draws on recent examples of neighbourhood plan policies. Neighbourhood Plans can tackle issues of health and wellbeing in lots of different ways, as explained in the briefing note, and is something I will be making the case for in future blog posts.

A pdf version of the briefing note is available to view and download below. Further advice on neighbourhood planning is also available from NALC's website.

Neighbourhood Plan Review: Plans Made in September 2019

This post explores Neighbourhood Plans which successfully passed referendum in September 2019, highlighting elements which make each plan locally specific and unique. The following Neighbourhood Plans passed referendum in September 2019:
Bawtry Neighbourhood Plan (Doncaster Council)Brackenfield Neighbourhood Plan (North East Derbyshire District Council)Chelford Neighbourhood Plan (Cheshire East Council)Congresbury Neighbourhood Plan (North Somerset Council)Glentworth Neighbourhood Plan (West Lindsey District Council)Hanslope Neighbourhood Plan (Milton Keynes Council)Hullavington Neighbourhood Plan (Wiltshire Council)Huntingdon Neighbourhood Plan (Huntingdonshire District Council)Misterton Neighbourhood Plan (Bassetlaw District Council)Moreton, Bobbingworth and the Lavers Neighbourhood Plan (Epping Forest District Council)Sedgefield Neighbourhood Plan (Durham County Council)Sedgeford Neighbourhood Plan (Kings Lynn & West Norfolk District Council)Sid Valley Neighbourhood Plan (Sidmo…

Essential reading for Neighbourhood Planners

Through my site I have attempted to explain the neighbourhood planning process, and provide regular blog posts on the latest issues affecting neighbourhood planning. But where can you go to find out more?

In this article I attempt to summarise where you should go for the most useful information and guidance, and where you can find funding and support for writing a Neighbourhood Plan.
Locality Toolkits and Guidance Locality administer the government's current programme of support for neighbourhood planning groups, and Locality's site should be your first port of call when writing a Neighbourhood Plan.
Locality has produced an excellent series of 'toolkits & guidance' on a range of issues to assist the preparation of neighbourhood plans. It is difficult to understate how valuable Locality's guides are for budding neighbourhood planners. Be sure you don't miss: The Neighbourhood Plans Roadmap 2018 by Dave …

Secretary of State overturns Planning Inspector's decision due to density concerns

Normally, planning appeals are determined by Planning Inspectors, but in some circumstances appeals may be 'recovered' for determination by the Secretary of State (SoS). The current SoS for Housing, Communities and Local Government is James Brokenshire MP.

In December 2018, the SoS issued a decision on a recovered appeal at Woburn Sands, Buckinghamshire. The proposal for residential development of up to 203 dwellings, a doctor’s surgery, open space and landscaping, together with pedestrian, cycle and vehicular access, was initially refused by Milton Keynes Council, and following appeal, granted permission by a Planning Inspector. However, the SoS recovered the appeal and overturned the Inspector's decision, dismissing the appeal.

Details of the case are available on the Planning Inspectorate's website, using case reference: APP/Y0435/W/17/3169314.
Appeal site & Neighbourhood Plan The appeal site is a 15.2 hectare, greenfield site, located outside the development bo…