WHY IS PLANNING LIKE THIS?
MITIGATION MEASURES
Abstract
1. This paper is written as a companion piece to a podcast on the origins of various mitigation measures implemented for the protection of European sites. For the podcast, I was asked to discuss the following matters:
a. Exclusion zones;
b. The Dilly Lane and Wealden cases; and
c. Nutrient neutrality.
European sites
2. The focus in the podcast is on protected sites that have been designated in England and Wales pursuant to the implementation of EU law on nature conservation.
Definition
3. Regulation 8 of the Conservation of Habitats and Species Regulations 2017, which at the time of recording is retained post-Brexit, defines “European sites” as:
“(1) Subject to paragraph (2), in these Regulations a “European site” means—
(a) a special area of conservation [known as SACs];
(b) a site of Community importance which has been placed on the list referred to in the third sub-paragraph of Article 4(2) of the Habitats Directive before exit day [known as SCIs];
(d) an area classified before exit day pursuant to Article 4(1) or (2) of the old Wild Birds Directive or the new Wild Birds Directive or classified after exit day under the retained transposing regulations.”
4. Areas classified pursuant to Article 4 of the Wild Birds Directives are referred to as “special protection areas” (‘SPAs’).
5. Exit day is defined in section 20(1) of the European Union (Withdrawal) Act 2018 as “31 January 2020 at 11.00 p.m.”
6. The Joint Nature Conservation Committee (‘JNCC’) calculated that there were 340 SACs1 and 105 SPAs2 in England and Wales as of April 2023.
Origin
7. EU law on nature conservation traces back to 1979 and the signing of the Bern Convention on the Conservation of European Wildlife and Natural Habitats (the ‘Bern Convention’). The Bern Convention is an international treaty adopted under the auspices of the Council of Europe to which many European States are a party, including the UK. It has also been adopted by the EU as an international organisation.
8. Article 1 of the Bern Convention indicates that it has the following principal aims:
d. To conserve wild flora and fauna and their natural habitats;
1 See: <https://jncc.gov.uk/our-work/special-areas-of-conservation/>.
2 See: <https://jncc.gov.uk/our-work/special-protection-areas/>.
e. To promote cooperation between States; and
f. To give particular attention to endangered and vulnerable species including migratory species.
9. Of particular note for our purposes is Article 4, which indicates that:
“1. Each Contracting Party shall take appropriate and necessary legislative and administrative measures to ensure the conservation of the habitats of the wild flora and fauna species, especially those specified in the Appendices I and II and the conservation of endangered natural habitats
2. The Contracting Parties in their planning and development policies shall have regard to the conservation requirements of the areas protected under the preceding paragraph, so as to avoid or minimize as far as possible any deterioration of such areas
3. The Contracting Parties undertake to give special attention to the protection of areas that are of importance for the migratory species specified in Appendices II and III and which are appropriately situated in relation to migration routes, as wintering, staging, feeding, breeding or moulting areas.
4. The Contracting Parties undertake to coordinate as appropriate their efforts for the protection of the natural habitats referred to in this Article when these are situated in frontier areas ”
10. In light of the aim of contracting parties to “cooperate”, the implementation of the Bern Convention by EU member states proceeded in a harmonised way. The EU adopted two directives: Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (the ‘Old Wild Birds Directive’) and Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (the ‘Habitats Directive’).
11. One way in which the Directives sought to protect European wildlife and their habitats was through the designation of SPAs and SACs, which together formed part of the network of protected sites across the EU known as ‘Natura 2000’.
12. The Directives were then implemented in the UK through the Wildlife and Countryside Act 1981 and the Conservation of Habitats and Species Regulations 1994 (‘CHSR 1994’).
13. Since that time, amendments have been implemented at the EU and UK level through the following acts:
a. Council Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (the ‘New Wild Birds Directive’)
b. The Conservation of Habitats and Species Regulations 2010 (‘CHSR 2010’); and
c. The Conservation of Habitats and Species Regulations 2017 (‘CHSR 2017’).
Exclusion zones
14. The ways in which EU member states must protect and manage their Natura 2000 sites are set out in Article 3 of the New Wild Birds Directive and Article 6 of the Habitats Directive.
15. In relation to SPAs, Article 3 of the Birds Directive indicates that: “1. Member States shall take the requisite measures to preserve, maintain or re-establish a sufficient diversity and area of habitats for all the species of birds referred to in Article 1”.
16. Article 3(2) explicitly states that the requisite measures include:
a. The creation of protected areas;
b. The upkeep and management in accordance with the ecological needs of habitats inside and outside the protected zones;
c. The re-establishment of destroyed biotopes; and
d. The creation of biotopes.
17. Similarly, with regard to SACs, Article 6(1) of the Habitats Directive states that:
“1. Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures.”
18. The European Commission Notice on Article 6 further explains that:
a. statutory measures often take a form prescribed in law and set requirements in relation to activities that can be allowed, restricted or prohibited in an area;
b. administrative measures make provision for the adoption of conservation measures or the authorisation of activities in the area; and
c. contractual measures involve establishing contracts or agreements between management authorities and landowners or users in the area.
19. A number of mitigation measure have been introduced in England and Wales, including “development exclusion zones”. Development exclusion zones are areas in which there is a presumption against development. They are different to “zones of influence”, in which a development may be permitted subject to mitigation.
20. By way of example, there is a 500m exclusion zone around the Chiltern Beechwoods SAC in which residential development is not permitted.3 There is also a 12.6-kilometre zone of Influence which imposes a requirement on new development to make provision for a new Suitable Alternative Natural Greenspace (‘SANG’) or contribute towards the maintenance of a suitable SANG project elsewhere.4
Mitigation measures at the screening stage
21. In order to determine whether mitigation measures are required, Article 6(3) of the Habitats Directive requires authorities to undertake an “appropriate assessment” of the implications of plans or projects which are “likely” to have a significant effect on a European site.
22. The step of determining whether or not an appropriate assessment is required, referred to as “the screening stage”, resulted in a line of case law which sought to clarify whether and when existing mitigation measures should be taken into account.
Hart District Council v Secretary of State for Communities and Local Government [2008] EWHC 1204 (Admin)
23. Hart District Council v Secretary of State for Communities and Local Government [2008] EWHC 1204 (Admin) concerned four appeals relating to the development of land off Dilly Lane, Hartley, Wintney which involved the construction of 170 houses and the provision
3 See: <https://www.dacorum.gov.uk/docs/default-source/strategic-planning/chilterns-beechwoods-sac-500metre-exclusion-zones.pdf?sfvrsn=f982079e_4>.
4 See: <https://www.dacorum.gov.uk/docs/default-source/strategic-planning/zone-of-influences.pdf? sfvrsn=e982079e_4>.
of SANGs.
24. In 2005, Thames Basin Heaths was classified as a SPA for three species listed in Annex 1 to the Old Wild Birds Directive: the nightjar, the woodlark, and the Dartford warbler. The SPA covered around 8,400 ha in total.
25. The application site was located approximately 1.5km south of the nearest point of Hazeley Heath, a heathland site of Special Scientific Interest (‘SSSI’) and an area of the Thames Basin Heaths SPA. It was also less than 5km from two other areas of the SPA, namely the Bramshill SSSI and the Castle Bottom to Yateley and Hawley Commons SSSI.
26. Natural England "Thames Basin Heaths Special Protection Area: Mitigation Standards for Residential Development" had sought to provide strategic guidance on the incombination impact of housing development within 5km of the SPA and was the subject of considerable debate during the Examination in Public into the South East Plan.
27. The question arose as to whether mitigation measures such as the SANGs could be taken into account when screening of a plan or project to determine whether it was likely to have significant environmental effects.
28. The High Court held that there was no absolute legal rule that mitigation measures should be disregarded in assessing whether the project was likely to have significant effects on the SPA: at [51]. There was also no sensible reason why features which are incorporated into a project should be ignored at the initial assessment stage merely because they are directed at combating the likely effects of the project on the SPA: at [55].
Case C -323/17 People Over Wind v Coillte Teoranta ECLI:EU:C:2018:244
29. Around 10 years later, the question in Hart finally reached the Court of Justice of the EU (‘CJEU’) in Case C-323/17 People Over Wind v Coillte Teoranta ECLI:EU:C:2018:244. The case concerned An Bord Pleanála’s decision to grant planning permission for works to lay a cable that would connect a wind farm to the electricity grid.
30. In carrying out the development, there was a risk that suspended solids would be released into the habitat of the protected River Nore Pearl Mussel. The consultants who carried out a screening opinion for the developer took account of the protective measures that were built into the project in concluding that an appropriate assessment was not required. The question referred to the CJEU was whether and, if so, in what circumstances mitigation measures could be considered when carrying out screening for appropriate assessment under Article 6(3) of the Habitats Directive.
31. Unlike in Hart, the CJEU found that the very presence of a mitigating measure in a proposal “presupposes that it is likely that the site is affected significantly and that, consequently, such an assessment should be carried out”: at [35]. Thus, at [37], the CJEU concluded:
“Taking account of such measures at the screening stage would be liable to compromise the practical effect of the Habitats Directive in general, and the assessment stage in particular, as the latter stage would be deprived of its purpose and there would be a risk of circumvention of that stage, which constitutes, however, an essential safeguard provided for by the directive.”
32. The principle of primacy in EU law meant that the decision in People Over Wind effectively overruled Hart
Canterbury City Council v Secretary of State for Housing, Communities and Local Government [2019] EWHC 1211 (Admin)
33. Not long after, in Canterbury City Council v Secretary of State for Housing, Communities and Local Government [2019] EWHC 1211 (Admin), the High Court revisited the question in light of the decision in People Over Wind. Dove J concluded at [77] that: “The position of the CJEU on the proper interpretation of Article 6(3) of the Directive is clear … taking account of mitigation measures at the screening stage is illegitimate.”
Case study: The Wealden cases
34. A series of cases concerning Ashdown Forest, part of a complex of heathlands in Southern England that is designated both as a SPA and a SAC, serves as a useful case study of the unique challenges that the protection of European sites pose for the planning system.
Wealden District Council v Secretary of State for Communities and Local Government and Knight Developments Limited [2016] EWHC 247 (Admin)
35. Wealden District Council v Secretary of State for Communities and Local Government and Knight Developments Limited [2016] EWHC 247 (Admin) involved a challenge brought by Wealden District Council against a decision of an inspector to allow an appeal against its decision to refuse planning permission for residential development and associated works.
36. Wealden District Council refused the application on the basis that the development, both alone and in-combination with other plans and proposals, would have an adverse effect on the integrity of protected areas in Ashdown Forest, the edge of which is approximately 2.4km from the site.
37. The inspector subsequently allowed an appeal by the developer on the understanding that its contributions towards projects contained in a Strategic Access and Management and Monitoring Strategy (‘SAMMS’) would mitigate likely significant effects on the SAC arising from nitrogen deposition. In fact, the SAMMS did not contain any scheme for the reduction of nitrogen deposits.
38. The inspector’s decision was ultimately quashed by the High Court. Lang J held that the inspector made a factual mistake in assuming that a scheme to mitigate nitrogen deposits was part of the SAMMS projects to be funded in part by the proposed contributions.
Wealden District Council v Secretary of State for Communities and Local Government, Lewes District Council [2017] EWHC 351 (Admin)
39. Wealden District Council v Secretary of State for Communities and Local Government, Lewes District Council [2017] EWHC 351 (Admin) involved a challenge again brought by Wealden District Council of the Joint Core Strategy 2010-2030 (‘JCS’) adopted by Lewes District Council and South Downs National Park Authority. It related to the manner in which impacts on the Ashdown Forest SAC had been assessed, as the SAC is sensitive to NO2 pollution from traffic.
40. Natural England had advised that if the JCS would (i) give rise to an expected increase in Annual Average Daily Traffic (‘AADT’) flows of less than 1,000 cars per day or 200 HGVs per day or (ii) less than a 1% increase in traffic compared to that predicted at the end of the Core Strategy period, then it would have no likely significant effect on the SAC
and no appropriate assessment would be required.
41. The JCS was predicted to give rise to 190 AADT on the A26 road (close to the SAC) and so, based on Natural England’s advice, Lewes District Council and South Downs National Park Authority concluded that it would not be likely to have a significant effect on the SAC. However, that conclusion did not account for a neighbouring plan (the previously adopted Wealden Core Strategy) which predicted an increased AADT of 950 on the same road.
42. The High Court ruled that, in assessing the JCS, the increased AADT flows predicted under each plan should have been considered and combined. Overall, the increased AADT flows would have exceeded the screening threshold and an appropriate assessment would have been required. As a result, the High Court quashed certain policies adopted in the JCS.
Nutrient neutrality
43. Nutrients such as nitrogen and phosphorus provide nutrition to plants and animals and are required for them to grow. Although nutrients occur naturally in the environment, human activities can increase their presence. For example, excess nutrients can enter the natural environment through outfalls from wastewater treatment works and agricultural run-off in rainfall. Excess nutrients in the natural environment can lead to eutrophication and algal blooms in rivers and lakes.
44. In 2019, there was a landmark ruling by the CJEU in Joined Cases C-293/17 Coöperatie Mobilisation for the Environment UA, Vereniging Leefmilieu v College van gedeputeerde staten van Limburg, College van gedeputeerde staten van Gelderland and C-294/17 Stichting Werkgroep Behoud de Peel v College van gedeputeerde staten van NoordBrabant ECLI:EU:C:2018:882 (‘CME’). The ruling established that the impact of nutrients in water bodies had to be assessed at the time that permission was given to the relevant plan or project.
45. In light of CME, Natural England issued advice to 74 local planning authorities (‘LPAs’) in England in 2019 and 2022 to highlight that a number of European sites in their area were in unfavourable condition due to excess nutrients. Natural England advised LPAs that new development should achieve nutrient neutrality.
46. “Nutrient neutrality” is a means of ensuring that a plan or project does not add to existing nutrient burdens so there is no net increase in nutrients as a result of the plan or project. 5 Where nutrient neutrality is properly applied and the existing land use does not undermine conservation objectives, Natural England considers that an adverse effect on integrity alone and in combination can be ruled out.6
47. The aim of nutrient neutrality is to avoid impacts, rather than compensate for impacts after they have occurred7, but neither is straightforward. In order to offset the additional nutrient burden from residential development, developers have resorted to acquiring productive agricultural land and repurposing that land for other uses. However, that approach creates conflict with national policy on protecting the best and most versatile
5 Natural England, ‘Technical Information Note TIN186: Nutrient Neutrality Principles’ (August 2022), p.5: <https://publications.naturalengland.org.uk/publication/5031421117988864#:~:text=Nutrient%20neutrality%20is %20a%20means,of%20the%20plan%20or%20project.>.
6 Ibid.
7 Ibid.
agricultural land.8
48. In an attempt to provide an alternative solution, Natural England established the Nutrient Mitigation Scheme in July 2022. Under the scheme, developers can buy nutrient credits. At the time of writing, the scheme extends only to the Teesmouth and Cleveland Coast SPA and Ramsar site.
49. More recently, a solution was proposed in the form of an amendment to Levelling Up and Regeneration Bill 2022-23. The amendment would have required LPAs to assume that the nutrients in wastewater from new development would not adversely affect European sites. Ultimately, the amendment was not enacted as part of the Levelling Up and Regeneration Act 2023.
8 Paragraphs 180 and 181 of the National Planning Policy Framework.
8 JANUARY 2024
JESSICAALLEN