A recent decision by the European Court of Justice (CJEU) has thrown the planning process into a spin and gives rise to an issue that needs resolving before the new NPPF is published. The judgement can be found here.
What has the CJEU concluded?
The judgement is that mitigation measures cannot be taken into account when considering screening plans or projects to determine if there is a likely significant effect on a European site. The screening stage of a Habitats Regulations Assessment (HRA) is the high-level stage before a more detailed appropriate assessment (AA) would be undertaken.
What has the Planning Inspectorate said about this?
PINs (the Planning Inspectorate) has issued an advice note that guides Planning Inspectors, when considering local plans and applications that have not been reported on before 12 April 2018 (the date of the CJEU decision), to consider whether the completed HRA screening exercises take proper account of the CJEU judgement. If not, the process may have to be re-done.
How does this affect recent screening assessments?
In many cases this is likely to delay approval of plans and applications whilst the HRA screening is amended to remove consideration of mitigation measures from the screening report. This could lead to a requirement to complete more detailed AA. Although this leads to more work and potential delay, if it ultimately allows the competent authority to conclude that there will be no adverse effect on the integrity of the European site, the plan or project would be likely to satisfy the AA. This would be expected if the mitigation was sufficient to screen out a likely significant effect in the first place.
What has PINS said about the NPPF?
The PINS advice note also makes it clear that under paragraph 119 of the NPPF any plan or project that progresses to the appropriate assessment stage will no longer benefit from the presumption in favour of sustainable development (NPPF paragraph 14). This made sense when the NPPF was written because then it was possible to take account of mitigation measures at the HRA screening stage, and to conclude “no significant effect” on a European site where harm was unlikely to occur.
It looks likely that there will also be implications for local plans that promote new residential development in areas close to European sites where avoidance (mitigation) strategies have been developed – for example the area around the Thames Basin Heaths.
How will this be reflected in the draft revised NPPF?
The question is, will there be a response in the revised NPPF to this clarification of the HRA process by the CJEU? If the relevant paragraphs of the revised NPPF are left as they are, the bar is raised significantly for the test of sustainable development. There would have to be a conclusion of “no likely significant effect” before mitigation measures are considered. This is not how the existing NPPF viewed the test of sustainable development before the CJEU judgement was issued. In our view this is an unsatisfactory situation, and one that ignores the legitimate role that mitigation has to play in the evolution and design of projects that would otherwise harm European sites.
The logical response would be to modify the NPPF to reflect the situation arising from the CJEU judgement, and once again make it possible to take the effects of avoidance and reduction (mitigation) into account when considering whether plans or projects can be viewed as sustainable development.
We wait to see which way the Government will jump, but the implication of not amending the draft NPPF appropriately is that only projects that have no likely significant effect before consideration of mitigation will be presumed to be sustainable. If plans or projects have to rely on mitigation at the AA stage then even though they will ultimately have no adverse effect an SAC or SPA, they won’t be viewed as sustainable development by the NPPF. How this sits with the Government’s description of sustainable development is not clear at this stage.