Appropriate assessment of plans in England

Environmental Impact Assessment Review 29 (2009) 261–272

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Environmental Impact Assessment Review j o u r n a l h o m e p a g e : w w w. e l s ev i e r. c o m / l o c a t e / e i a r

Appropriate assessment of plans in England☆ Riki Therivel ⁎ Oxford Brookes University, 28A North Hinksey Lane, Oxford OX2 0LX, UK

a r t i c l e

i n f o

Article history: Received 20 December 2007 Received in revised form 13 January 2009 Accepted 15 January 2009 Available online 9 March 2009 Keywords: Appropriate assessment Habitats Regulations Assessment Special Protection Areas Special Areas of Conservation Habitats Directive

a b s t r a c t ‘Appropriate assessment’ of plans and projects is required under the European Habitats Directive. It assesses whether a plan or project, ‘in combination’, could affect the ‘integrity’ of sites of international nature conservation importance in Europe. It is very precautionary: plans or projects that could affect site integrity may not be adopted unless a series of stringent requirements—testing of alternatives, proof of overriding need, and provision of compensation—are met. Appropriate assessment of plans began to be carried out in England in early 2006. Since then, various guidance documents have been published, but there is still considerable debate about just what methodology should be used, how to test impacts on site ‘integrity’, what avoidance and mitigation measures are adequate, who should be responsible for these measures etc., and even about what the process should be called. The first legal challenges based on appropriate assessment of plans are emerging. Appropriate assessments are showing that many English plans could affect European sites, either directly through land take, or indirectly by, for instance, reducing water levels or increasing recreational disturbance. The question now is how to respond to the clash between people's aspirations for new homes and economic growth, and wildlife conservation. This article discusses the legal requirements and emerging guidance on appropriate assessment of plans in England, how it relates to strategic environmental assessment, the current status of these assessments, and emerging issues. © 2009 Elsevier Inc. All rights reserved.

1. Introduction This article describes the first three years' practice of applying appropriate assessment (or Habitats Regulations Assessment) to plans in England. The Habitats Directive has required European Member States to carry out appropriate assessment of plans since 1992, but relatively little information exists about how this has been done in practice; different European Member States vary significantly in how they carry it out (and whether they carry it out at all); and some Member States (e.g. the UK and Ireland) are in the early days of its practice. This article discusses some of the emerging approaches to appropriate assessment of plans in England, and issues raised by it, as an input to the evolution of the wider practice of appropriate assessment. Section 2 describes what appropriate assessment of plans is; Section 3 discusses its status in England; Section 4 discusses the methodology used to underpin this article; Section 5 describes how guidance is affecting appropriate assessment practice in England; Sections 6–8 discuss how the main stages of appropriate assessment are carried out in England; and Section 9 discusses issues raised by appropriate assessment practice to date. ☆ The author is very grateful to Steve Smith, Orlando Venn, Jo Hughes, James Riley, Jeremy Owen and Taran Livingston, without whose ‘in combination’ ideas and inspiration this article would not exist; and to the very helpful reviewer of a draft of this article. ⁎ Tel./fax: +44 1865 243488. E-mail address: [email protected]. 0195-9255/$ – see front matter © 2009 Elsevier Inc. All rights reserved. doi:10.1016/j.eiar.2009.01.001

2. What is appropriate assessment/Habitats Regulations Assessment? ‘Appropriate assessment’ of plans and projects is required by the European Habitats Directive1 which provides legal protection for habitats and species of European importance. Article 2 of the Directive requires the maintenance or restoration of habitats and species of European Community interest, at a favourable conservation status. Articles 3–9 provide the legislative means to protect these habitats and species. Article 6(3) of the Directive establishes the requirements for appropriate assessment, and Article 6(4) goes on to discuss alternative solutions, the test of ‘imperative reasons of overriding public interest’ and compensatory measures. Figs. 1 and 2 show annotated versions of these articles. The Habitats Directive requires appropriate assessment for: • Special Protection Areas (SPAs) for birds, designated under the European Birds Directive, • Special Areas of Conservation (SACs) for habitats and species, designated under the European Habitats Directive, • candidate SACs, and • European offshore marine sites designated under the Habitats Directive. 1 Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora, http://europa.eu.int/comm/environment/nature/nature_conservation/eu_nature_legislation/habitats_directive/index_en.htm.

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a plan located some distance away from a European site could still have significant effects on the site and could still require AA.

significance is judged in relation to the features for which the site was designated and the site’s conservation objectives

a European ‘site’ is an SPA or SAC. Ramsar (wetland) sites and European offshore marine sites are also typically treated as European sites in AA

6.3 Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives... the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned..

‘in combination’ can also include underlying trends, e.g. changes in car use, air pollution levels

the term ‘appropriate assessment’ is used both for the assessment process and for the statement which says whether a plan would, or would not, affect a European site

Fig. 1. Article 6(3) of the Habitats Directive, annotated.

UK government policy (ODPM, 2005) is to treat Ramsar wetland sites and potential SPAs like SPAs and SACs, so appropriate assessment also applies to them. All of the UK guidance documents on appropriate assessment of plans (CLG, 2006; Natural England, 2007; Scott Wilson et al., 2006; Dodd et al., 2007) refer to these sites jointly as ‘European sites’, and this article also uses that term. Appropriate assessment is very precautionary: plans or projects that could affect site ‘integrity’—the reason why that site has been designated as a European site—may not be adopted unless a series of stringent requirements—testing of alternatives, proof of overriding public interest, and provision of compensation—are met. Because of these stringent requirements, appropriate assessment is really a decision-making rather than a decision-informing tool. Appropriate assessment promotes a hierarchy of: • avoidance: prevent significant impacts on European sites from happening in the first place; • mitigation: reduce the impact to the point where it no longer has the risk of an adverse impact; and • if necessary, then put in place compensatory measures. The European Commission (2001) has published guidance which explains how appropriate assessment can be carried out in up to four steps, with the findings of each step determining whether the next step is needed: 1. Screening: Determine whether the plan, ‘in combination’ with other plans and projects, is likely to have a significant adverse impact on a European site. 2. Appropriate assessment: Determine the impact on the integrity of the European site of the plan, ‘in combination’ with other projects or plans, with respect to the site's structure, function and conservation objectives. Where there are adverse impacts, assess the potential mitigation of those impacts. Where there aren't, then the plan can proceed as it is. 3. Assessment of alternatives solutions: Where the plan is assessed as having an adverse effect (or risk of this) on the integrity of a European site, examine alternative ways of achieving the plan objectives that avoid adverse impacts on the integrity of the European site. 4. Assessment where no alternative solutions remain and where adverse impacts remain: Assess compensatory measures where, in the light of an assessment of imperative reasons of overriding public interest, it is deemed that the plan should proceed. The fact that the term ‘appropriate assessment’ has been used for both the entire process and for one stage in that process has led to

some confusion in England. As a result, the term ‘Habitats Regulations Assessment’ (HRA) is now generally used—and will be used in this article—to describe the entire process. 3. HRA status in England European Directives do not generally apply directly in Member States, but rather need to be transposed by each Member State through its own legislation. Section 6.3 of the Habitats Directive requires appropriate assessment of “any plan or project”. However, although appropriate assessments of projects had been carried out in England since the Habitats Directive came into force in the mid1990s, assessments of plans had not. In response to a legal challenge about this, the European Court of Justice ruled in October 2005 that the UK had not fully implemented Articles 6.3 and 6.4 of the Directive as they pertain to land use plans (ECJ, 2005). In February 2006, the English Office of the Deputy Prime Minister (now Communities and Local Government) sent a letter to all planning officers, stating that appropriate assessment of land use plans would henceforth be required, and that implementing legislation would be published in September 2006. In August 2007, the UK Government published amendments to the Habitats Regulations (UK Government, 2007) that require, amongst others, HRA of plans. Since then, separate and at times inconsistent draft guidance on HRA of plans have also been published: • A brief document by Communities and Local Government (2006), the government department responsible for spatial planning, discusses the need for HRA, its possible links to sustainability appraisal and strategic environmental assessment, and the main HRA steps that should be followed. However it gives no indication of what the resulting reports should look like, nor does it discuss issues that might be faced when carrying out HRA; • A guidance document by Natural England (2007), the government body responsible for nature conservation, presents a clear HRA methodology, including information on how some contentious issues should be treated. It focuses on England's eight Regional Spatial Strategies, but its approach has also been used for other types of plans. It was publicly available for about a year, but no longer is, although copies remain in circulation. • A guidance document by four consultancies who had carried out some early and prominent HRAs of plans (Scott Wilson et al., 2006) and separate guidance by the Royal Society for the Protection of

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6.4 only applies if the appropriate assessment of 6.3 identifies that the plan is likely to have a significant impact on a European site Alternative solutions could include alternative locations, processes etc.; and could be outside the authority the ‘IROPI test’ is difficult to pass: avoid getting this far if at all possible

6.4 If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected... compensatory measures aim to offset the negative impacts of the plan in a way that corresponds precisely to the negative effect on the species of habitat concerned. They must be in place before the plan’s negative impacts occur. Fig. 2. Article 6(4) of the Habitats Directive, annotated.

Birds (Dodd et al., 2007) are also detailed and practical, but are not government documents, and at some points propose significantly different approaches from the government documents. Box 1 summarises the relevant regulation and guidance. By late 2008, HRAs had been carried out for all eight Regional Spatial Strategies in England, several dozen local authority Core Strategies, a range of county council waste and minerals plans, and some other spatial plans (e.g. Area Action Plans, National Parks plans). The Environment Agency has carried out appropriate assessment of some of its plans for years, for instance for consents to abstract water or discharge wastewater to rivers. No plan HRA in England has yet progressed to Stage 3 assessment of alternative solutions, although some are heading towards that stage. 4. Methodology This article particularly focuses on the application of HRA to land use/spatial plans in England. These comprise:

Box 1

AA regulation and guidance • Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (Habitats Directive) • The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007, S.I. 2007 No. 1843, http://www.opsi.gov.uk/si/ si2007/uksi_20071843_en_4. (see Part IVA, regulations 85A– 85E). • European Commission (2000a) Managing Natura 2000 Sites. • European Commission (2001) Assessment of plans and projects significantly affecting Natura 2000 sites. • Communities of Local Government (August 2006). Planning for the Protection of European Sites: Appropriate Assessment— Guidance for Regional Spatial Strategies and Local Development Documents. • Natural England (March 2007). Draft Guidance: The Assessment of Regional Spatial Strategies and Sub-Regional Strategies Under the Provisions of the Habitats Regulations. • Scott Wilson et al. (September 2006) Appropriate Assessment of Plans. • Dodd et al. (August 2007) The Appropriate Assessment of Spatial Plans in England: a guide to why, when and how to do it.

• Regional Spatial Strategies (RSS)—one for each of eight regions plus London—which set out a broad spatial strategy for how a region should look in 15 to 20 years; and • Local Development Frameworks—one for each of the 387 English local authorities—which will be folders of documents that outline the spatial planning strategy for the local area. Local Development Frameworks must include a core strategy which sets out the general spatial vision and objectives for its delivery. The article is based on personal experience of carrying out five appropriate assessments in England; significant involvement in eight more (including in Wales); discussions with several dozen government officials and consultants involved in appropriate assessment in England, Wales, Northern Ireland and other European Member States; an analysis of 40 English HRA reports, legal challenges to date related to appropriate assessment, and six ‘schedules of changes’ for Regional Spatial Strategies; supervision of two MSc dissertation on appropriate assessment; and preparation of guidance on appropriate assessment. The 40 HRA reports analysed represent a range of spatial scales and different locations in England.2 The analysis of the HRA reports aimed to determine: • what guidance documents they cited, and whether their approach reflected that of any specific guidance document (whether they cited that document or not); • what approaches they used at the Stage 1 screening and Stage 2 appropriate assessment stages; and • how they dealt with issues such as the avoidance— mitigation hierarchy, and the links between HRA and strategic environmental assessment. The analysis of the six ‘schedules of changes’ or ‘schedules of reasons’3 aimed to determine whether HRAs or strategic environmental assessments had been more influential in the plan-making process. Schedules of changes 2 The authorities whose reports were analysed were Alnwick, Blyth Valley, Bracknell Forest, Cambridge, Cambridgeshire and Peterborough (minerals/waste), Cheshire (minerals), Chelmsford, Chorley, Croydon, Dartmoor, Doncaster, Durham, East Midlands (draft RSS), Halton, Havant, Huntingdon West, Islington, King’s Lynn and West Norfolk, Leicestershire (minerals/waste), Merseyside (transport), Mid Sussex, North East (RSS), North East Lincolnshire, North Northamptonshire, (Northamptonshire County Council, 2007), North York Moors, Northamptonshire (minerals/waste), Oldham, Plymouth, South West (draft RSS), Sunderland, Surrey (waste), Surrey Heath, Sutton, Swindon (minerals/waste), Teignbridge, Warrington, Waverley, Wiltshire and Swindon (minerals/waste), Windsor and Maidenhead, and Worcestershire (Longbridge). The author was not directly involved in carrying out any of these HRAs. 3 For the RSSs for the East of England (January 2008), North East (May 2008), South East (July 2008), South West (July 2008), West Midlands (January 2008), and Yorkshire and Humber (May 2008).

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are emphemeral documents used only for consultation purposes, in which the Government Offices that are proposing changes to the draft RSSs explain the reason for these changes. 5. Multiple guidance documents, multiple HRA approaches A key finding of this work is that the multiplicity of guidance documents in the UK is leading to a wide variety in HRA practice. Although many aspects of the four guidance documents are compatible, depending on the situation some may not be. At times, HRA practitioners have to choose between two or more conflicting approaches; and at times the resulting variation and uncertainty may lead to threats of legal challenges. Assuming that practitioners ascribe weight to guidance documents in relation to whether they are produced by government, are perceived as leading to legally compliant results, and are detailed/practical, then three of the four guidance documents carry roughly the same amount of weight for practitioners. The CLG (2006) guidance is uncontroversial but not detailed enough to provide much support to the HRA practitioner. The Natural England (2007) guidance is by a government body, but has been challenged as not being Directive compliant and is no longer publicly available, “possibly because of the criticisms that have been levelled at that document by those reviewing the Habitats Regulations Assessment for the East of England Plan on behalf of the Regional Assembly” (Owen, 2007). The other two documents (Scott Wilson et al., 2006; Dodd et al., 2007) are detailed and have not been challenged, but are not government reports; of the two, the consultants' report has been available for longer, and has been actively promoted by the consultancies. The analysis of 40 HRA reports confirmed that three guidance documents reports are given roughly equal weight. The analysis considered whether a given HRA report 1. cited a guidance document, and 2. used the methodology advocated by the guidance document. The Natural England (2007) methodology is distinctive in that it proposes seven screening questions to help eliminate from further consideration those plan policies unlikely to have a significant impact on the integrity of European sites. It is thus possible to determine whether a given HRA uses the Natural England approach by checking whether it uses those screening questions. The consultants' guidance (Scott Wilson et al., 2006) is distinctive in recommending that factors that support the integrity of European sites should be identified, and supporting a ‘topic’ rather than ‘site’ based approach. Again, it is possible to determine whether a given HRA uses the consultants' approach by seeing whether it follows these steps. The other two guidance documents do not have such a clearly distinguishable approach, so their application could not be tested. The CLG guidance was cited in 17 HRAs. The Natural England guidance was cited in nine HRAs and used in nine (not all the same). The consultants' guidance was cited in seven and used in eleven. Ten HRAs used none of these approaches. Perhaps because of the confusion, some practitioners are reverting to the original European Commission (2001) guidance, which focuses more clearly on projects than plans but is accepted Europe-wide. This guidance is distinctive in listing six types of possible changes/impacts to European sites that should be considered at the screening stage. The EC guidance was cited in 14 HRAs and used in six. Some of the repercussions of this problem of multiple guidance are dealt with in the following sections. 6. Stage 1 screening HRA reports in England vary considerably in length, structure and the conclusions they reach. Roughly, for the screening phase, the reports contain the following information: 6.1. Identification of European sites potentially affected by the plan European sites can be affected by a plan in different ways. For instance if a plan leads to a road being built through a European site,

the resulting impact is clear and direct. However most plans' impacts are indirect: for instance, they lead to more homes being built, increasing water abstraction, and possibly lowering water levels in a wetland site; or they increase the number of people visiting a site whose wildlife is sensitive to disturbance. The Natural England guidance recommends consideration of “all international sites in and around [the] RSS area”. The CLG guidance refers to “European sites within and outside the plan area potentially affected.” The consultants' guidance recommends consideration of all European sites in the authority, and consultation with Natural England and others about other European sites. It notes that a plan could affect European sites well outside an authority's boundary, for instance where a distant reservoir that is an SAC acts as a water supply for the local authority. The median distance from the authority boundary considered in the 40 HRAs analysed was 15 km, with other HRAs using 2, 5, 10, 20 and 25 km. 6.2. Why the European site has been designated and its conservation objectives European sites are designated for specific ‘qualifying interest features’, for instance because they host sensitive habitats (e.g. beech woodland) or species (e.g. Barbastelle bats), or large groups of migrating birds at particular times of year. The HRA reports all explain what the qualifying interest features are. The reports are more variable in whether and how they report: • the current condition of the qualifying interest features; • what environmental factors support site integrity (e.g. reasonably good air quality for beech woodlands; no roost disturbance and maintenance of sheltered flight paths for bats); • what impacts the sites are vulnerable to (e.g. dredging in the Dee Estuary Ramsar site, water abstraction for golf courses at Sefton Coast SAC); and • management aspirations (‘conservation objectives’) for the sites. 6.3. Likely effect of the plan on the qualifying features At this point the HRA reports start to vary significantly depending on which guidance document they follow. The Natural England (2007) guidance recommends a form of triage which eliminates from further analysis those sections of the plan (‘plan policies’) that will have no negative effect on a European site: those that do not lead to development; that protect the natural environment; that aim to conserve or enhance the environment and where enhancement measures will not have a negative effect on a European site; and that steer development away from European sites. Controversially, it also recommends that those plan policies for which there are safeguards ‘down the line’ should be screened out: those that do not themselves lead to development but are implemented through other, more detailed policies; that propose a broad quantum/type of development but where the development location is to be selected through lower tier plans; and (with some exceptions) that steer development towards urban areas. For these latter types of policies, the guidance recommends that a caveat be included in the policy which states that development that could affect the integrity of any European site would not be in accordance with the plan. After this triage, any remaining plan policies would be assessed in more detail for their effect on site integrity. The North York Moors National Park Authority's (2007) HRA is an example of this approach. None of the other guidance documents recommend this approach. Instead, they emphasise the need to consider the indirect nature of some plan impacts and the ‘in combination’ effects of all of a plan's policies (for instance that a plan could increase both traffic and recreational disturbance at a European site). Northamptonshire County Council's (2007) HRA is an example of this approach.

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6.4. Likely ‘in combination’ effect on European sites

7.1. Impact types, European sites and development types

This considers the effects that other plans and projects would have ‘in combination’ with those of the plan in question. Again, the guidance documents and resulting HRA reports take different approaches. Natural England (2007) refers to “other projects that have been given consent but which are not yet completed, projects that are subject to applications for consent, and ongoing projects subject to regulatory reviews... [and] other plans that are subject to assessment under the Habitats Regulations”. Dodd et al. (2007) refer to “The totality of all of the effects of the plan's policies and allocations... all development plans [for an area];... relevant projects inside and outside the plan area that have been applied for, consented and not implemented, and partially implemented [and] other relevant plans, either inside or outside the plan area.” Scott Wilson et al. (2006) recommend that existing conditions and background trends should also be considered in the ‘in combination’ analysis, for instance the fact that many European sites are already subject to air pollution above their carrying capacity. For the HRA for the Regional Spatial Strategy (RSS) for the South East—the first regional-level HRA to be carried out in England—the HRA team ran screening workshops with local authority planners and ecologists. These helped to ensure that the ‘in combination’ impacts with other plans and projects were adequately considered and that a good understanding on site vulnerability was reached, and also to raise awareness of the HRA process amongst local-level planners (SEERA, 2006). This approach was only taken in one other region: some RSSs are less contentious and involve fewer European sites, and some RSSs (and thus HRAs) are at a stage where no organisations other than the planning authority can legally be involved in planmaking. Most of the 40 HRAs analysed for this article summarise their screening processes in tables, such as those of Tables 1 and 2. The former is an example of a table organised by sections of the plan, similar to the format of many sustainability appraisal tables. The latter is organised by the factors that maintain the integrity of the European site; this ‘site-focused’ approach is probably more in keeping with the spirit of the Habitats Directive. At the end of the screening process, any plan that could have a significant ‘in combination’ effect on a European site is subject to Stage 2 appropriate assessment. Given the range of screening approaches described above, it is quite possible that a plan could be shown to have no significant ‘in combination’ effects using one approach, but significant effects using another approach. For instance, the Teignbridge HRA argues that Stage 2 appropriate assessment is not needed despite the potential impact of proposed new housing (leading to more people, leading to recreational pressure) on the dune habitats of Dawlish Warren SAC, so long as “it is clear that urban regeneration at Dawlish would have regard to European sites”. The HRA notes that “the implementation of the Exe Estuary Management Plan would assist with managing additional pressure on the estuary resulting from increasing population. Substantial work would be needed to reach agreement... on the best means of funding the implementation of the [management plan].” This uncertainty—can urban regeneration take place without affecting the SAC? will the management plan be fully implemented?—was acceptable according to the Natural England guidance, but the consultants' approach would be more precautionary and would probably lead to Stage 2 appropriate assessment.

Where a plan could affect multiple European sites, for instance most Regional Spatial Strategies, Stage 2 appropriate assessments have often focused on the impact types rather than the European sites for the majority of the analysis. For instance, a plan's housing proposals could lead to increased wastewater discharge or air pollution, each of which could affect multiple European sites. In practice, plans seem to lead to a relatively limited number of impact types, typically some combination of air pollution, disturbance (recreational, shipping, aircraft, car, wind turbine), land take, changes to water levels, water pollution, and urbanisation impacts such as increased arson, litter and invasive species. The baseline analysis, ‘in combination’ assessment, and avoidance/mitigation measures for each of these impacts would often be the same from European site to European site. As such, it is often more efficient for appropriate assessments, particularly for Regional Spatial Strategies, to focus primarily on (few) impact types rather than (many) European sites. Such assessments have a separate chapter on each impact type, and then a final chapter or an appendix which brings together these analyses for the individual European sites. The HRA for the Hampshire minerals plan (Land Use Consultants, 2007) is an example of this approach. HRAs for smaller areas, such as that by Bracknell Forest Borough Council (2007), instead often keep their focus on the sites. Different types of development can lead to similar types of impacts. For instance, ports, airports, roads and wind turbines can all disturb birds, as can recreational activity related to more homes. Water levels and hydrology can be affected by coastal defence works, dredging related to port development etc., as well as by water abstraction for housing and employment development. However, very little information exists about the links between different developments' impacts: for instance whether some dredging plus some sewage effluent would have significant ‘in combination’ impacts on water quality, or whether reduced recreational disturbance could be a mitigation measure for increased disturbance by shipping.

7. Stage 2 appropriate assessment The purpose of Stage 2 appropriate assessment is to conclude, where Stage 1 screening has identified the possibility of significant ‘in combination’ effects, whether the plan would have such effects. Essentially it involves the collection of further information up to the point where such a conclusion can be drawn. This stage also involves the identification of impact avoidance and mitigation measures.

7.2. Source–pathway–receiver approach One approach to identifying impacts and avoidance/mitigation measures could be that of source–pathway–receiver. The plan is the impact source, the European site is the receiver, and there may be multiple pathways from the former to the latter. For instance a plan which promotes more housing in an area near a European site which hosts ground-nesting birds could increase disturbance to the birds by 1. increasing visitor numbers to the site or 2. increasing the number of cars. The HRA can then investigate whether it is possible to reduce the magnitude and likelihood of each of these ‘pathways’, for instance by providing alternative recreational sites for new residents (magnitude), or diverting roads that pass by the European site (likelihood). Many HRAs use a partial version of this technique by identifying, for each impact type, which European sites would be sensitive to that impact type and which would not, and focusing only on the latter. For instance the Desmoulin's whorl snail lives on wet logs and is really only sensitive to removal or drying out of the logs, so it would not be sensitive to, for instance, air pollution or moderate recreational disturbance. This allows many impact pathways to be eliminated from further consideration. The full source–pathway–receiver approach has, to date, been formally used only rarely, for instance for the East of England RSS (GOEE, 2007). This considers, the likelihood that certain activities would result from the plan; the distance between proposed development sites and European sites; the time of year when impacts would occur (e.g. residents walking along the shore in winter, when sensitive migrating birds use the site); and whether it

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Table 1 Example of HRA screening table focusing on impact of plan policies. Plan policy

Implications of policy to pSPA

Possible impacts to pSPA

Likely significance of negative impact or positive effect

Potential control / mitigation

Policy 3: Connecting the urban core This policy sets out the approach to transport connections within X

The policy contains requirements for new development to be served by appropriate road access. This may include roads to the south of the proposed urban extension east of Wellingborough linking to the A45. These are likely to be in close proximity or coinciding with the pSPA

New roads associated with the urban extension at Wellingborough may have a direct impact on the pSPA, with proposed routes crossing the pSPA from the extension to the A45 Rushend junction, involving habitat loss and fragmentation.

Moderate/high

Policy 4: Enhancing local connections This policy covers very local connections, around urban areas and to and from rural villages to service centres

There are unlikely to be any impacts of this policy, although achieving a modal shift away from car use may help protect air quality

Air quality improvements may have positive implications for the pSPA, habitats and species

Low

New roads will be subject to Habitats Regulation Assessment in the same way as other project specific development. This should be carried out in detail of all proposed roads that may impact on the pSPA... Additional wording or policy may be suitable in the [plan] to reflect the importance of protecting the integrity of the SPA, and undertaking Habitats Regulation Assessment where necessary No action

Based on extract from North Northamptonshire Joint Planning Unit (2007).

would be possible to prevent ‘pathway’ impacts (e.g. fencing a European site) or ‘target’ impacts (e.g. signage, blocking some paths through the site). One of the HRA authors described the approach as being ponderous but effective. 7.3. Avoidance, mitigation and offsetting Avoidance and mitigation are defined at Section 2. Yet another category—‘neutralising’ or offsetting measures—could include situations where certain negative impacts are allowed to occur but are balanced out by comparable benefits, in advance and as part of the plan. An example of this would be ‘water neutral’ development, where water abstraction for a new development is counterbalanced by the installation of water efficiency measures in existing development. The HRA for the East of England RSS controversially argues that the expected future reduction in air pollution due to tightening European vehicle emission legislation can be used to offset the RSSs' negative impacts on air quality: “The results of the appropriate assessment suggest that the limit value for annual mean NOx concentrations is likely to be exceeded at locations within Portholme SAC, Epping Forest SAC, Breckland SAC and Breckland SPA in the forecast year with the [plan]. However at all

sites, predicted annual mean NOx concentrations are considerably lower in 2021 with the [plan] than compared with existing concentrations as reductions in emissions of NOx associated with improvements in vehicle technologies more than offset the predicted increases due to the increased number of vehicles” (GOEE, 2007). Table 3 summarises the types of avoidance and mitigation measures proposed in 40 HRA reports. In eight cases no significant impact on European sites were identified, and in five cases a screening process identified the need for further assessment. Twelve HRAs recommended requiring HRA for lower-tier plans or projects, or for specific types or locations of projects. An example of this is: “In relation to the Thursley, Ash, Pirbright and Chobham SAC, it was concluded that the [plan], in combination with other plans and projects, might adversely affect the integrity of the SAC through vehicle emissions. To avoid the adverse effect, it is essential that individual development applications and site allocations be subject to the AA process” (Royal Borough of Windsor and Maidenhead, 2006). Six HRAs recommended that their plans' nature conservation policies should be strengthened. For instance, Blyth Valley Borough

Table 2 Example of HRA screening table focusing on impact on European sites. Qualifying features

Key environmental Possible impacts features and factors from the plan that support site integrity

Possible impacts from trends, other plans and projects

Likely effect on Possible measures to site integrity alleviate impacts

SAC1. Coastal lagoons

Topography, salinity, drainage

North Norfolk District Local Development Framework; Norfolk Coast Area of Outstanding Natural Beauty Management Plan; Shoreline Management Plans

–

None identified within [plan]

–

Coordinate with AONB and Shoreline Management Plans

Coastal processes, SAC2. Perennial relative tranquillity vegetation of stony banks

SAC 1 and 2

As above

Housing distribution and affordable housing in the [Area of Outstanding Natural Beauty] policy options (6, 10): Impacts from infrastructure/roads as well as housing—increased traffic, noise, human disturbance, habitat fragmentation, pollution risk, lighting, informal recreation. Impacts may be insignificant compared with those from increased tourism

Promoting tourism policy option (25)—Growth of Hunstanton As above as a centre for tourism may have indirect in-combination negative impacts on SAC habitats through increased informal recreation, disturbance, trampling, erosion, dog walking

Based on extract from Kings Lynn West Norfolk Borough Council (2007).

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Council's policy on the natural environment and resources was amended to include the clause “the Local Development Framework will ensure the protection and enhancement of internationally and nationally important sites and species (including the Northumbria Coast SPA...)” (Blyth Valley, 2007). Fourteen HRAs recommended changes to the plan that would affect the environmental conditions underlying the European sites. Examples include:

achieve, particularly since different planning authorities have different planning timeframes. The first authority may well be left to struggle alone, trying to mitigate their contribution to ‘in combination’ impacts. In other cases, cross-authority measures may be laboriously achieved: Box 2, for instance, describes the highest-profile HRA case in the UK, which involves 15 local authorities. However even these may well be challenged by authorities who feel that the proposed measures could put them at a disadvantage.

• “CS11 Newton Abbot Direction of growth—add reference to protection of horseshoe bat features under green infrastructure section of policy... CS16 Add reference to... bat features in this policy for the Rural Areas.” (Teignbridge District Council, 2007) • “Site allocations for dwellings in Hartlepool, Stockton on Tees, and Redcar and Cleveland should be directed to areas where the overall risk to the Teesmouth and Cleveland SPA/Ramsar site from domestic and transport related air pollutants can be minimised.” (GONE, 2006)

8. Towards Stage 3 assessment of alternative solutions

Other examples of changes to plans resulting from HRAs include: • Inclusion of plan policies on air pollution and water quality, which state that pollution levels will be monitored, will progressively decrease, and that housing numbers will be reconsidered if they don't; • Caps on housing numbers in some locations, particularly where the additional sewage effluent from the housing would overload the capacity of a wastewater treatment plant; • Requirements that, in some locations, housing should be pet free, or retirement housing or student housing only, to minimise the impact of pets (e.g. fertilization of habitats by dog faeces, disturbance by dogs, predation by cats) or recreational impacts on a nearby European site; • Provision of new recreational space as part of housing developments; • Inclusion of a plan policy on ‘mitigation banking’ to ensure that there is no loss of bird feeding habitat where European sites are designated for particular bird species but these birds also feed offsite; • Removal of proposed sites for mineral extraction from a minerals plan; and • Requirement for water efficiency measures that exceed the national standard in new housing in specific areas. Collaborative development and implementation of avoidance and mitigation measures is likely to be needed in many cases. For instance, residents of multiple local authorities walk, sail, dig bait etc. at the Mersey Estuary SPA, and only the joint effort of all those authorities can ensure no significant impact on the site. However this is difficult to

If HRA shows a plan to have a significant impact on site integrity, then Stage 3 assessment of alternative solutions is required. Only if there are no alternatives to a plan can Stage 4 assessment of Imperative Reasons of Overriding Public Interest and proposed compensatory measures be invoked. It is extremely unlikely that no plan alternatives exist. For instance, the European Commission (2001) guidance states that: “Crucial to the assessment of alternative solutions is the inclusion in the assessment of the ‘do nothing’ alternative. Possible alternatives solutions may include variants of locations or routes; scale or size; means of meeting objectives (e.g. demand management);... scheduling and timescales...”. This suggests that plan alternatives could include different development locations, different housing numbers, and phasing of development (for instance not building or widening roads until background air pollution levels are low enough so that the additional traffic caused by the roads would not make air pollution at European sites exceed the sites' critical loads). Many English plans have, by now, survived the HRA process and been adopted with no problems. However at least one plan was deemed to be ‘unsound’ because it proposed a location for large-scale development that could have affected an SPA (Morgan, 2007). Other plans—notably the current tranche of Regional Spatial Strategies—are nearing the end of Stage 2 appropriate assessment with some significant ‘in combination’ impacts still unresolved. For instance, several RSSs are proposing significant port developments in or near sensitive estuarine European sites; several propose significant increases in offshore wind power, which would affect marine and estuarine European sites; several would significantly increase recreational impacts at some European sites; and several could lead to water level and/or water quality issues. One of the most intractable problems for several HRAs, interestingly, is the limited capacity of some riverine European sites to absorb effluent from sewage treatment plants, combined with technical limits to how thoroughly sewage can be treated at some wastewater treatment plans. In theory, wastewater could be pumped to another river which is not a European site or which has extra capacity.

Table 3 Avoidance and mitigation measures proposed in HRA reports. Type of avoidance or mitigation measure No avoidance or mitigation measures • No significant impacts: no avoidance/mitigation needed • Screening process identifies need for full appropriate assessment, which is still to come ‘Devolution’ of HRA requirements • HRA required for lower-tier plans • HRA or environmental impact assessment required for projects (generally) • HRA required for specific types of projects or projects in specific areas • Addition of caveats, e.g. development only allowed if it will not adversely affect site integrity General policies protecting nature conservation interest • Strengthening of existing nature conservation policies • Reference in development policies to existing nature conservation policies HRA-specific policies or policy changes • New policy on protection of European sites • New policy on air quality for European sites • New policy to provide alternative recreational land to reduce recreational pressure on European sites (SANGS) • Topic-specific changes to policies (e.g. to protect bats, reduce water abstraction, prevent recreational disturbance)

No. HRA reports recommending measure (n = 40) 8 5 4 2 6 5 4 2 2 1 3 8

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Box Box22

An example of HRA mitigation: SANGS at the Thames Basin Heaths SPA The Thames Basin Heaths SPA is a network of heathland sites covering about 8400 hectares in south-east England. It is designated for three species of ground-nesting birds which are all sensitive to recreational disturbance, particularly from dog walkers: woodlark, nightjar and Dartford warbler. The SPA is potentially affected by housing proposals in 15 local authorities, all of which are subject to significant development pressures. English Nature (now Natural England), the government agency responsible for nature conservation, drafted a ‘delivery plan’ of mitigation standards for residential development near the SPA (English Nature, 2006) . This consisted of a combination of development-free buffer zone and provision of Suitable Accessible Natural Green Space (‘SANGS’) which aimed to draw dog walkers to the SANGS and away from the SPA: • Zone A: within 400 m of the SPA, no new housing would be permitted; • Zone B: between 400 m and 2 km, 16 ha of SANGS would need to be provided per 1000 new population; and • Zone C: between 2 km and 5 km, 8 ha of SANGS would need to be provided per 1000 new population. SANGS would be easily accessible, near centres of population, semi-natural with varied topography, allow for dogs to roam off the lead, accommodate walks of about 2.5 km, and where possible have a feeling of ‘peace and quiet’. The draft delivery plan raised a host of objections from affected local authorities and developers, including: • whether pet-free development would be acceptable within 400 m of the SPA through restrictive covenants or by only permitting nursing homes, student accommodation etc. (raising the intriguing possibility of birds being protected by a 400 m wide buffer of very young and very old people) • whether a development that is 4.8 km from the SPA in a direct line but 5.2 km away by road should have to provide SANGS • whether enough SANGS land was available within each authority, either in public ownership or in private ownership with a reasonable potential for conversion • whether the SANGS ‘rules’ would allow new development only in rural areas quite far away from amenities, i.e. in locations that were otherwise unsustainable. These points were debated at the Enquiry in Public for the South East of England Regional Spatial Strategy. An inspector for the inquiry recommended a variant on the ‘delivery plan’ (Burley, 2007). Zone A would remain development-free unless such development would not lead to further recreational use of the SPA or otherwise have a significant effect on its integrity. Development between 400 m and 5 km from the SPA would require SANGS at 8 ha per 1000 population if that development met some other criteria (e.g. schemes of more than 10 dwellings); and development of over 50 houses between 5 km and 7 km from the SPA might require SANGS provision under certain circumstances. The inspector also recommended that all new developments should pay into a fund that would be used to identify and manage SANGS. The South East RSS has included most of Inspector Burley's recommendations in a policy specifically about the Thames Basin Heaths SPA. The principle of buffer zones and provision of alternative open space is already being implemented by some of the 15 local authorities, and is also considered by authorities near other similar SPAs.

However this would change river levels in both rivers, possibly affecting the European site(s) through changes in hydrology. It could also lead to a degradation of non-European riverine habitats. Preventing further development in some areas may be the only way forward that avoids Stage 3 consideration of plan alternatives, but is politically unpalatable. In response to national government pressure, many spatial plans promote rapid housing and economic growth. This is particularly the case in the south and east of England where there is the greatest pressure for development. However, it is also there that environmental limits are closest to being breached (or being breached), and that many wealthy, well-informed and vocal people live who are keen to maintain their quality of life. As such, these RSSs are particularly contentious. An example of this is the East of England RSS. The first HRA for this RSS was withdrawn by the regional authority after it was criticised as being potentially not Directive compliant (Owen, 2007). A second HRA (GOEE, 2007) was much more robust. However a judicial review of the RSS has now been mounted by one of the local authorities in the region, which challenges in part the adequacy of the RSS's sustainability appraisal (not of the HRA), and in part whether the Ryemeads wastewater treatment plant can be expanded to cope with the additional housing proposed in the RSS. The latter issue had been raised in the second HRA. No clear, legally robust tests have yet been devised for when a plan can be said to not have a significant impact on the integrity of European sites and therefore not require Stage 3 assessment. However a report for Friends of the Earth (Levett-Therivel, 2007) suggests some principles/tests, based on European Commission guidance on appropriate assessment (EC, 2001) and the precautionary principle (EC, 2000b), and UK government guidance on appropriate assessment and plan ‘soundness’ (ODPM, 2004a,b4): A. The plan is supported by a robust evidence base: “Effective mitigation of adverse effects on Natura 2000 sites can only take place once those effects have been fully recognised, assessed and reported” (EC, 2001). B. The plan tries first to avoid impacts on European sites altogether and then reduce/mitigate them: for instance it includes policies for reducing the use of water as well as for providing water in a way that will not affect the integrity of European sites; C. The avoidance/mitigation measures are proportional to the desired level of protection (i.e. strong, given the Habitat Directive' precautionary approach): • the proposed measures relate to the conservation objectives for the qualifying features of the European site rather than just provide a generic protective caveat; and • the wording of the measures in the plan is strong and clear. D. There is evidence that the avoidance/mitigation measures will succeed: • the plan's implementation will not be counteracted by national government policy (e.g. on housing or ports), individuals' behaviour etc.; • if the avoidance/mitigation measures rely on other organisations' plans (for instance water companies' plans for infrastructure provision), those plans are likely to be fully implemented and provide the level of protection needed; and • if the avoidance/mitigation measures were implemented in full, they would fully protect the integrity of the European site in question; E. If the mitigation fails, measures are in place to rectify this: • a monitoring system is set up to identify impacts on European sites; and 4 This has since been superseded by CLG (2008), but the tests of ‘soundness’ that apply below remain fundamentally the same.

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• it would be possible to retrofit some kind of other solution if the proposed one fails. For instance, if there is too much effluent from a sewage treatment work and it is possible to pump that effluent elsewhere, then a solution can be retrofitted. In contrast, if a port is built, it won't be removed and the disturbance impacts of shipping could not be rectified; F. The plan policies are consistent with one another. Policies that avoid and mitigate impacts on European sites would not be contradicted or counteracted by other policies in the plan; G. The plan is realistic. The proposed avoidance/mitigation measures are 1. economically/technically viable, and 2. in the remit of the plan. The report suggests that a plan might fail several of these tests and still not have a significant impact on the integrity of European sites. However it notes that tests C, D and E seem central to ensuring site integrity; and test A is a necessary precursor to the other tests. 9. Issues HRA is evolving rapidly in England, and leading to significant changes to plans. However, as the previous sections have highlighted, there are many remaining unresolved issues. These are interesting not only from an HRA perspective: they also have implications for other forms of impact assessment. Five are discussed here: 1. links between HRA and other types of assessment, 2. avoidance v. mitigation, 3. who is responsible for impact avoidance and mitigation, 4. links to national-level policy and actions, and 5. environmental limits. 9.1. HRA and SEA The European Strategic Environmental Assessment Directive5 requires SEA for plans and programmes that require appropriate assessment. It also requires environmental reports to include an analysis of existing environmental problems at relevant SPAs and SACs. The opposite is not necessarily the case: SEA does not automatically trigger appropriate assessment. In the UK, both SEA and sustainability appraisal (SA) are already required for plans, and the two processes are typically carried out jointly for the sake of efficiency and integration. Clearly an issue is whether HRA can also be integrated with SA/SEA or whether it should be a separate process. There are significant differences between HRA and SA, with SEA lying roughly in between in terms of emphasis, level of detail, and skills required (see Table 4). The various guidance documents all recommend some linkages between the processes: that HRA should be undertaken ‘in conjunction’ with SA/SEA (CLG, 2006), ‘embedded’ in SA/SEA (Natural England, 2007), or carried out in parallel with SA/ SEA (Dodd et al., 2007). A close link between HRA and SA/SEA processes would help to promote joined-up thinking and reduce duplication of work, but also has disadvantages: • Joint SA/SEAs is already perceived as potentially diluting the environmental emphasis of SEA; joint SA/SEA/HRA could also be perceived as diluting the strong protection element of HRA; • Conversely, the strong emphasis of HRA on European sites could unbalance SA, and lead to neglect of non-European sites; • Very different skills are required, particularly for SA and HRA; and • SA has the potential to lead to incremental development and incremental solutions which go counter to HRA's objectives.

5 Directive 2001/42/EC on the assessment of the effects of plans and programmes on the environment, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0042:EN:NOT.

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For the current tranche of regional plans at least, HRA seems to be leading to significantly more changes than strategic environmental assessment / sustainability appraisal. It is difficult to provide definitive evidence for this. However the six ‘schedules of changes’ for Regional Spatial Strategies mentioned sustainability appraisal 47 times, and HRA (or its equivalent) 92 times. The East of England document reflected changes made to the RSS specifically to comply with Habitats Directive requirements, and mentioned HRA 16 times but sustainability appraisal only once. Even removing this outlier, HRA is referred to significantly more frequently than sustainability appraisal. This may be different for local level plans or plans whose HRA processes have started earlier in the plan-making process. Nevertheless, it suggests that the legal ‘teeth’ of HRA are effective. 9.2. Avoidance v. mitigation HRA practice in England has highlighted some of the complexities surrounding the use of avoidance and mitigation measures. One issue has been about whether mitigation measures can be considered during the HRA screening stage. All the guidance documents agree that the use of avoidance measures should precede the use of mitigation measures in HRA. The European Commission (2001) guidance recommends that “the screening assessment should be carried out in the absence of any consideration of mitigation measures that form part of a project or plan... To ensure the assessment is as objective as possible, the competent authority must first consider the project or plan in the absence of mitigation measures.” The CLG (2006) guidance does not mention the consideration of mitigation until Stage 3 assessment of alternative solutions, although it does recommend a continuous cycle of developing, assessing and revising plan options.

Table 4 HRA, SEA, SA.

Habitats Regulations assessment

Strategic environmental assessment

Aim of process is to...

Maintain the integrity of the Natura 2000 network & its features

Provide for a high Promote sustainable level of protection of development the environment

Emphasis of process is on...

Preventing development that could harm European sites

Providing information on environmental impacts, consultation, documenting decisions

Consideration (and where necessary balancing) of social, economic and environmental impacts

‘Protection led’

‘Baseline led’

‘Objectives led’

Whether the plan would have significant impacts on the integrity of European sites

Whether the right The ‘soundness’ of the reports have been plan written and the right people consulted

Legal ‘bite’: court cases hinge on...

Level of detail, quantification depth, rigour, focus of

Sustainability appraisal

HRA: narrow focus on few sites, detailed SEA: focus on environment, ‘rebalancing in favour of the environment’

analysis SA: broad coverage of social, economic and environmental issues, ‘balancing’ breadth of analysis

Skills needed Ecological expertise; understanding of potentially affected sites and impacts on them

Data collection, developing alternatives and assumptions, impact prediction and mitigation

Knowledge of planning system, local area, political factors, broad sustainability considerations

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The other guidance documents recommend first avoidance and then mitigation, both at Stage 2 appropriate assessment. A recent, high-profile court case in England was about whether a housing development accompanied by Suitable Accessible Natural Green Space (see Box 2) as mitigation for its recreational impacts on ground-nesting birds could be said at the screening stage to not have a significant impact on the Thames Basin Heaths SPA. The judge ruled that avoidance or mitigation measures forming part of a plan or project can be considered at the screening stage and, more tellingly, that “the provisions in the Habitats Directive are intended to be an aid to effective environmental decision making, not a legal obstacle course”. These conclusions give a strong steer to authorities carrying out HRAs of their plans, as well as to developers carrying out project assessments. Box 3 provides more information on this case. In practice, it may also be difficult to distinguish between avoidance, mitigation and compensation measures. For instance Porter (2007) interviewed six HRA practitioners, asking whether they considered certain measures to be avoidance, mitigation or compensation, and received conflicting answers, as can be seen at Table 5. This suggests that, in practice, it may be difficult to first consider avoidance measures and then mitigation. 9.3. Responsibility for avoidance and mitigation Probably the most contentious issues in HRA in England at the moment is who is responsible for ensuring that impacts on European sites are avoided and mitigated. Roughly phrased, here are the main arguments put forward by regional and local level authorities in discussions about HRA mitigation measures, using diffuse air pollution as an example. Regional level authority: “In our Regional Spatial Strategy, we are required to state how many houses will be built and roughly where. However we don't know precisely where the houses will go in relation to European sites and employment sites (which will influence transport patterns); where traffic from the houses—the main cause of air pollution—will go; how energy efficient the houses will be; or where their energy will come from. We have few possible avoidance/mitigation measures for diffuse air pollution within our control: they are the remit of national government (e.g. building regulations and petrol prices), local authorities (precise location of development) and individuals (e.g. choices about journeys and transport modes). As such, the best we can reasonably do is to add a caveat to our housing numbers saying that the housing should not have a significant effect on European sites. That will give a clear framework for local level authorities, who are the ones who should be dealing with this.” Local level authority: “Our plans are expected to be in conformity with the Regional Spatial Strategy. We need to plan for only a few thousand homes. However air pollution can travel great distances, so air pollution from our homes could affect European sites far away; and those European sites could also be affected, ‘in combination’, by pollution from many other local authorities. The number of houses proposed in the Regional Spatial Strategy will definitely, ‘in combination’, lead to increased levels of diffuse air pollution. By relegating to the local level the need to show that housing will not have a significant effect on European sites, the regional level authority is leaving us in an impossible position. Either we conclude that our plan will not have a significant ‘in combination’ impact and leave ourselves vulnerable to a legal challenge; or we

Box 3

Mitigation measures at the HRA screening stage: the ‘Dilly Lane’ case The ‘Dilly Lane’ case refers to a proposed development of 170 houses on a greenfield site in Hart District Council, which would be accompanied by a contiguous piece of land to act as a SANGS mitigation measure (see Box 2). The district council and a planning inspector rejected the planning application for the development, in part because only an HRA Stage 1 screening exercise had been carried out for it. The screening concluded that the housing development plus SANGS would not lead to significant recreational impacts on the nearby Thames Basin Heaths SPA. The inspector felt that, although the SANGS would attract some recreational users, the SPA's unique character and wider range of recreational opportunities meant that it would still attract some recreational visits from the new residents. The inspector concluded that a Stage 2 appropriate assessment should be carried out; that this was unlikely to conclude that the development would have no significant impact on the SPA; that this conclusion would trigger a Stage 3 assessment of alternatives; and that alternative sites were available. Despite these findings, the Secretary of State approved the housing in April 2007. Hart District Council legally challenged this decision, arguing that any conditions and restrictions on planning consent can only be considered at the appropriate assessment, not the screening stage. This would imply that avoidance measures can be taken into account at the screening stage, but mitigation measures can only be taken into account during appropriate assessment. In his ruling of May 2008,6 the judge ruled that: “avoidance or mitigation measures forming part of the plan or project can, as a matter of law, be considered at the screening stage... [I]f the competent authority is satisfied at the screening stage that the proponents of a project have fully recognised, assessed and reported the effects, and have incorporated appropriate mitigation measures into the project, there is no reason why they should ignore such measures when deciding whether an appropriate assessment is necessary... The provisions in the Habitats Directive are intended to be an aid to effective environmental decision making, not a legal obstacle course... [T]here is no legal requirement that a screening assessment... must be carried out in the absence of any mitigation measures that form part of a plan or project. On the contrary, the competent authority is required to consider whether the project, as a whole, including such measures, if they are part of the project, is likely to have a significant effect on the SPA.”

conclude that it will have a significant impact, but we have neither the expertise nor the coordinating capacity to come up with reasonable avoidance and mitigation measures. Either situation is inefficient if every local authority needs to do this. The regional level authority should be dealing with this.” Some steer on this issue is provided by the European Court of Justice (2005) ruling. This noted that HRA of English plans cannot be deferred to the project level because, although plans may not directly authorise development to be carried out, they do have considerable

6 Hart District Council v. Secretary of State for Communities and Local Government, Luckmore Limited and Barratt Homes Limited, [2008] EWHC 1204, http://www.epr. uk.com/eprnews/Dilly_Lane_files/Dilly%20Lane%20Judgement.pdf.

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Table 5 Avoidance, mitigation or compensation? Examples of measures

Avoidance

Development free buffer around European site Sustainable transport strategies Access management at the European site Water efficient measures in new development Amending size and scale of development Fencing around European site Creation of new habitats

4

Avoidance but uncertain

1 2 1 4

Mitigation 5 4 1 3 2 1

Mitigation but uncertain

Either

Depends/Unsure

1

1 1

Compensation

1 1 1

2 1 5

Questionnaire responses (Porter, 2007).

influence on development decisions and thus on the impacts that European sites are subject to. The same argument can apply to RSSs, since local authority plans are expected to be ‘in general conformity’ with the RSS (CLG, 2008). It seems logical, at the regional level, to ask: “could the RSS be implemented at the local level without a significant impact on European sites?”. In some cases, the answer is ‘no’: for instance it may be impossible to significantly expand operations at a specific port without affecting the nearby European site, so the RSS would need to be changed or subject to stage 3 assessment of alternatives. In other cases, the answer is ‘yes’: for instance where sewage from a housing site could be treated at several possible wastewater treatment plants, at least one of which would not have a significant impact on European sites. In such cases, the RSS policies could stand. 9.4. Tiering of decision-making The issue of who is responsible for avoidance and mitigation of impacts on European sites is not specific to the regional and local levels, but carries on further up and down the plan- and decisionmaking hierarchy. Key decisions about airports, ports and highways are made by the national-level Department for Transport; about wind farms and oil/gas extraction by the Department for Energy and Climate Change; and about charging mechanisms (water, petrol etc.) by various other national government agencies. Individuals make decisions about how they travel, where they go, and how they use their homes, all of which more or less directly affect European sites. Many plans note that they cannot achieve water, waste or air pollution reduction targets unless people change their behaviour. However to date neither national- nor individual-level decisions have been subject to HRA. Table 6 shows the scale at which the key decisions for certain sectors and related impacts are made in England: many are not made at the regional and local level, although it is at these levels that HRA currently takes place and avoidance/ mitigation is being developed. Should the level which makes the key decisions be responsible for organising avoidance and mitigation for ‘its’ sectors and/or impacts? Certainly there seems to be a need for more national-level leadership on avoidance and mitigation of some types of impacts on European sites: • “There is limited scope for the Plan to influence climate change [n.b. managing air pollution involves very similar issues]. Much of the required action must take place at national and international levels, particularly in driving behavioural change” (Swain et al., 2006); • “no increase in traffic or aircraft movements arising as a result of the draft RSS... would be difficult to achieve given current central Government transport policy” (EMRA, 2007). • “The Draft RSS does not provide regulatory control for water resources and thus a number of avoidance or mitigation measures are not deliverable through the RSS” (SWRA, 2007).

• “The required [water] efficiency can only be secured by a rigorous and co-ordinated framework at national level. In our view only a national approach has the ability to deliver what is required in the South East” (Swain et al., 2006). 9.5. Environmental limits HRAs are also raising some fundamental issues of environmental limits. For instance the HRA for the North East RSS suggests that “European sites are already being adversely affected and that their environmental limits are exceeded in terms of air pollution” (GONE, 2006). That for the South East RSS highlights the plan's “significant environmental costs, to the point of potentially approaching environmental limits [including] problems in ensuring that the integrity of sites of international nature conservation importance is not significantly affected” (GOSE, 2008). Privately, local authorities talk about racing against other local authorities to get houses built (and fulfil their regionally-apportioned housing allocations) before the capacity of a shared wastewater treatment plant is reached and further housing construction is stopped. Table 6 Scales at which key decisions are made (dark grey shading = key decisions).

Spatial scale

National

Regional

Scale at which key decisions are made related to: airports shipping traffic water abstraction wastewater treatment housing numbers/location energy production/efficiency minerals climate change flooding, coastal squeeze recreation ... and so scale at which key decisions are made related to: air pollution (traffic, air, ship) air pollution ( housing, employment) water levels water quality climate change, coastal squeeze recreational disturbance, urbanization other disturbance (traffic, air, ship, energy) habitat loss/fragmentation

Local

Project/ individual

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10. Conclusions After a long period of inadequate application, HRA has made a major splash in the English plan-making system over the last three years. The lack of clearly agreed guidance is leading to a wide range of HRA approaches at the moment, with no clear end in sight and in some cases paralysis due to the threat of legal action based on HRA. HRA is an important tool in a small, densely populated country which also hosts many internationally-important nature conservation sites. It is helping to identify environmental limits, and in some cases is leading to some creative solutions that may not only protect the European sites but also lead to the kind of sustainable development that we need for our own species' long-term health and wellbeing. References7 Blyth Valley Borough Council. Blyth Valley Borough Council Local Development Framework: Information to inform the appropriate assessment of the core strategy and development control policies development plan document; 2007. http:// www.blythvalley.gov.uk//pdf/bvbc%20aa%20final%20report_revised.pdf. Bracknell Forest Borough Council. Thames Basin Heaths SPA, Technical background document to the core strategy DPD; 2007. http://www.bracknell-forest.gov.uk/ environment/env-planning-and-development/env-planning-guidance/envthames-basin-heaths-spa/env-spa-technical-background.htm. Burley P. Report to the Panel for the Draft South East Plan Examination in Public on the Thames Basin Heaths Special Protection Area and Natural England’s Draft Delivery Plan; 2007. http://www.eipsoutheast.co.uk/news/story.aspx?id=49. Communities and Local Government. Planning for the protection of European Sites: appropriate assessment—guidance for regional spatial strategies and local development documents; 2006. http://www.communities.gov.uk/index.asp?id=1502244. Communities and Local Government. Planning policy statement 12 local spatial planning; 2008. http://www.communities.gov.uk/documents/planningandbuilding/pdf/pps12lsp.pdf. Dodd AM, Clearly BE, Dawkins JS, Byron HJ, Palframan LJ, Williams GM. The Appropriate Assessment of Spatial Plans in England: a guide to why, when and how to do it, Royal Society for the Protection of Birds. Sandy; 2007. http://www.rspb.org.uk/ Images/spatialplansengland_tcm9-168180.pdf. East Midlands Regional Assembly. Habitats Regulations Assessment of the Draft East Midlands Regional Plan, Draft final report, prepared by Land Use Consultants; 2007. http://www.emra.gov.uk/files/draft-habitats-regulations-assessment-reportapril07.pdf. English Nature. Thames Basin Heaths Special Protection Area: mitigation standards for residential development; 2006. http://www.english-nature.org.uk/About/teams/ Init.asp?Id=5. European Commission. Managing Natura 2000 Sites; 2000a. http://europa.eu.int/ comm/environment/nature/nature_conservation/eu_nature_legislation/specific_articles/art6/pdf/art6_en.pdf. European Commission. Communication from the Commission on the Precautionary Principle; 2000b. http://eur-lex.europa.eu/LexUriServ/site/en/com/2000/com2000_0001en01. pdf. European Commission. Assessment of plans and projects significantly affecting Natura 2000 sites; 2001. http://europa.eu.int/comm/environment/nature/nature_conservation/eu_nature_legislation/specific_articles/art6/pdf/natura_2000_assess_en.pdf. European Court of Justice. Commission of the European Communities vs. United Kingdom of Great Britain and Northern Ireland Case C-6/04, ECR I-9017, para. 51–56; 2005. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62004J0006:EN: HTML. Government Office for the East of England. Draft revision to Regional Spatial Strategy for the East of England: Habitats Directive Assessment: Recreation, Tourism and Access Technical Report; 2007. http://www.gos.gov.uk/goee/docs/193657/193668/ Regional_Spacial_Strategy/recreation1. Government Office for the North East. Appropriate assessment screening: regional spatial strategy for the North East, prepared by Treweek Environmental Consultants; 2006. http://www.gos.gov.uk/nestore/docs/planning/rss_documents/m.pdf.

7 n.b. HRAs often accompany consultation versions of plans and are later removed from the authority’s websites. All of the web-links below were correct as of 17 July 2008 but many will probably disappear rapidly.

Government Office for the South East. Regional spatial strategy for the South East: sustainability appraisal and habitats regulations assessment/appropriate assessment of the Secretary of State's Proposed Changes, prepared by Scott Wilson and Levett-Therivel; 2008. http://gose.limehouse.co.uk/portal/rss/pcc/consult. King s Lynn and West Norfolk Borough Council. Appropriate assessment for the King's Lynn & West Norfolk Core Strategy Development Plan Document; 2007. http:// www.west-norfolk.gov.uk/pdf/Appropriate%20Assessment%2018sep06.pdf. Hampshire County Council. Hampshire Minerals Plan: habitats regulations assessment, final report, prepared by Land Use Consultants; 2007. http://www3.hants.gov.uk/ planning/mineralsandwaste/planning-policy/development-framework/sitesplans/regulation_26/minerals-plan.htm. Levett-Therivel. Review of the further proposed changes to the East of England Plan, report for Friends of the Earth, London; 2007. Morgan S. Report on the examination into the Core Strategy Development Plan Document, report to Chichester District Council; 2007. http://www.chichester.gov. uk/index.cfm?articleid=7648. Natural England. Draft guidance: The Habitats Regulations Assessment of Regional Spatial Strategies and Sub-Regional Strategies, Peterborough; 2007. North Northamptonshire Joint Planning Unit. Habitats regulations assessment. Supplementary report to sustainability appraisal of submission version core spatial strategy of the North Northamptonshire Local Development Framework, prepared by Baker Associates; 2007. http://www.nnjpu.org.uk/docs/Habitats%20Regulations%20Assessment.pdf. North York Moors National Park Authority. Appropriate assessment report: core strategy and development policies; 2007. http://www.visitnorthyorkshiremoors. co.uk/content.php?nID=45;id=6470. Northamptonshire County Council. Habitats Regulations Assessment: Screening; 2007. http://www.northamptonshire.gov.uk/NR/rdonlyres/AA5C526E-4ED9-45CB98D6-FAB03F861E3D/0/070215DDraftAAScreeningreportPDF.pdf. Office of the Deputy Prime Minister. Planning policy statement 11: regional spatial strategies; 2004a. http://www.communities.gov.uk/documents/planningandbuilding/pdf/147423. Office of the Deputy Prime Minister. Planning policy statement 12: local development frameworks; 2004b. http://www.communities.gov.uk/documents/planningandbuilding/pdf/147429. Office of the Deputy Prime Minister. Planning policy statement 9: biodiversity and geological conservation; 2005. http://www.communities.gov.uk/documents/ planningandbuilding/pdf/147408.pdf. Owen R. European Nature Conservation Sites and the appropriate assessment of plans and programmes. report presented to the Joint Planning Law Conference, New College, Oxford, vol. 15. 2007. September. Porter CW. Avoidance and mitigation measures in appropriate assessment, MSc dissertation, Oxford Brookes University, Oxford; 2007. Royal Borough of Windsor and Maidenhead. Core strategy and policies development plan document submission document. Draft Appropriate Assessment Report, Maidenhead; 2006. Scott Wilson, Levett-Therivel, Treweek Environmental Consultants and Land Use Consultants. Appropriate assessment of plans; 2006. http://www.landuse.co.uk/ Downloads/AppropriateAG.pdf. South East of England Regional Assembly. Appropriate assessment of the Draft South East Plan, prepared by Scott Wilson and Levett-Therivel; 2006. http://www. southeast-ra.gov.uk/southeastplan/key/appropriate_assessment.html. South West Regional Assembly. Habitats Regulations Assessment of the Draft Regional Spatial Strategy for the South West, Final Report, prepared by Land Use Consultants; 2007. http://www.southwest-ra.gov.uk/nqcontent.cfm?a_id=2655. Swain C, Travers M, Shaw M. The South East Plan Examination in Public; 2006. http:// www.gos.gov.uk/gose/planning/regionalPlanning/southEastPlan/?a=42496. Teignbridge District Council. Habitats Regulations Assessment of the Teignbridge Local Development Framework; 2007. http://www.teignbridge.gov.uk/media/pdf/b/a/ PEC_Background_evidence_Habitat_regs_screening_report.pdf. UK Government. The Conservation (Natural Habitats, &c.) (Amendment) Regulations 20 07, S.I. 20 07 No. 1843; 20 07. http://www.opsi.gov.uk/si/si20 07/ uksi_20071843_en_4. Dr. Riki Therivel is a partner at Levett–Therivel sustainability consultants and a visiting professor at Oxford Brookes University's School of the Built Environment. She has collaborated on some early, high-profile Habitats Regulations Assessments (HRAs) in England, including for the South East Plan, North West Regional Spatial Strategy, and Liverpool and Horsham Core Strategies. She has co-authored guidance on HRA, compiled a list of recommended HRAs, and runs training courses on HRA.