by Ed Dade
Posted on Jan. 9, 2019
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.
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:
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.
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.
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.
A new piece of legislation came into force on 28 December 2018, The Conservation of Habitats and Species and Planning (Various Amendments) (England and Wales) Regulations 2018.
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.
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".