{"id":43,"date":"2020-06-30T14:42:22","date_gmt":"2020-06-30T13:42:22","guid":{"rendered":"https:\/\/blogs.ncl.ac.uk\/nelrn\/?p=43"},"modified":"2020-07-08T11:33:03","modified_gmt":"2020-07-08T10:33:03","slug":"development-impact-assessment-screening-in-the-wake-of-people-over-wind","status":"publish","type":"post","link":"https:\/\/blogs.ncl.ac.uk\/nelrn\/2020\/06\/30\/development-impact-assessment-screening-in-the-wake-of-people-over-wind\/","title":{"rendered":"Development impact assessment screening in the wake of People Over Wind"},"content":{"rendered":"\n

Anna McClean<\/h3>\n\n\n\n
\"\"<\/figure><\/div>\n\n\n\n

The requirement that the impacts of certain development be assessed\nbefore planning permission can be granted is an established part of the\nplanning process in the UK, and there are two key pieces of legislation which\ndeal with this.<\/p>\n\n\n\n

The Town and Country Planning (Environmental Impact Assessment)\nRegulations 2017 require the environmental impacts of certain major development\nprojects to be assessed. Some types of development, often referred to as\nSchedule 1 development, will always require an EIA. Other specific types of\ndevelopment, such as some agricultural development and infrastructure\ndevelopment, referred to as Schedule 2 development, may require an EIA but only\nif the proposed development is likely to\nhave significant effects<\/em> on the environment. <\/p>\n\n\n\n

The Conservation of Habitats and Species Regulations 2010 apply to\ndevelopment which may impact on a site designated as a Special Area of\nConservation or a Special Protection Area under European law (\u2018European\nsites\u2019), and require that where a development is likely to have a significant effect <\/em>on a European site an\nassessment of its impacts on the site must be carried out before planning\npermission can be granted.  <\/p>\n\n\n\n

So whether or not an impact assessment needs to be carried out under\nboth the Habitats Regulations and Schedule 2 of the EIA Regulations depends\nupon the likely significant impacts of the proposed development. Prior to the\n2018 landmark case, People Over Wind v\nCoillte Teorante <\/em>Case C323\/17, it was settled law that when looking at what\nthe likely significant impacts of a proposed development under either set of\nregulations, any mitigation measures which the developer had included in their\nproposal in order to avoid or reduce the harmful effects of the development\ncould be taken into account, at least so far as those measures were\nsufficiently specific, available and effective. Such an approach was generally\nregarded as advantageous as it encouraged developers to consider mitigation\nmeasures at an early stage.<\/p>\n\n\n\n

However, the Court of Justice of the EU\u2019s decision in the People Over Wind<\/em>, appears to have\nchanged this. The case was a Habitat Regulations assessment case concerning the\npotential impacts of a wind turbine connection cable on freshwater pearls in a\nEuropean site, and the Court ruled that in deciding whether a proposed\ndevelopment is likely to have a significant effect on the site concerned and\ntherefore whether a Habitats Assessment is required, it is not appropriate to\ntake account of mitigation measures. <\/p>\n\n\n\n

This decision has gained academic attention for seeming to contradict\nprevious decisions, but it has also been suggested that it may not be as out of\nkilter with previous decisions as it initially seems. As explained above, prior\nto People Over Wind, <\/em>mitigation\nmeasures were required to have a degree of precision and effectiveness before\nthey could be taken into account in deciding whether an impact assessment was\nrequired, and the type of mitigation measures which were taken into account\noften formed an integral part of the development. Although the Court of Justice\nof the EU made no reference to any distinction between types of mitigation\nmeasures, in People Over Wind<\/em> the\ndetails of the proposed mitigation measures were to be agreed with the LPA\nafter the planning permission had been granted and contained within a\nConstruction Management Plan. The decision could therefore be interpreted as\nfollowing previous decisions regarding the type of mitigation measures that\ncould be taken into account. <\/p>\n\n\n\n

The subsequent High Court case of Langton\nv Secretary of State for Environment, Food and Rural Affairs and Natural\nEngland <\/em>could be seen to support this. This case concerned a judicial\nreview of various decisions by Natural England to grant badger culling\nlicences. The culling areas included or were near to a number of SPAs. Natural\nEngland\u2019s decisions (which predated the People\nOver Wind <\/em>decision) were challenged on the basis that in deciding that granting\nthe licences was not likely to have significant effects on the SPAs and no\nHabitats Assessment was therefore required, Natural England had taken into\naccount mitigation measures. The High Court, rejected this argument, taking the\nview that the mitigation measures concerned were not of the type in the People Over Wind, <\/em>but were integral\nfeatures of the development proposal. It held that not only was Natural England\nentitled to take them into account, but that it would have been \u2018contrary to\ncommon sense\u2019 not to.  The applicant\nappealed this decision on a number of grounds, one of which was that the High\nCourt had been wrong to find that the mitigation measures in question were of a\ntype that could be taken into account in deciding whether a Habitats Assessment\nwas required. The Court of Appeal, however, declined to address this point on\nthe basis that it was purely academic given that Natural England had by then\nchanged its practice. <\/p>\n\n\n\n

Neither was the position clarified in the case of R (oao Wingfield) v Canterbury City Council<\/em>, decided in July 2019.\nIn this case, an application for outline planning permission had been made in\n2015 for a development in respect of which a Habitats Assessment was potentially\nrequired. The application for outline planning permission contained details of\nmitigation measures which would be used to address some potential adverse\neffects of the development and in 2017 outline planning permission was granted\nwithout a Habitats Assessment having been carried out. In September 2018,\nfollowing the ruling in People Over Wind<\/em>,\nthe LPA required that a Habitats Assessment be carried out at the reserved\nmatters stage. The Habitat Assessment was duly undertaken and concluded that\nthe proposed development would not have an effect on the integrity of the\ndesignated sites, and planning permission of the reserved matters was granted\nin February 2019. A local resident brought a judicial review claim challenging\nthe 2019 decision to grant approval for the reserved matters on the grounds\nthat the original grant of outline planning permission was unlawful because\nmitigation measures had been taken into account at the outline stage when\ndeciding that a Habitats Assessment was not required. Although the claim was\ndismissed on a number of grounds, in particular that the error did not nullify\nthe decision to grant outline planning permission and that the LPA had taken\nsteps to remedy its error by requiring a Habitat Assessment to be undertaken at\nthe reserved matters stage, the court was clearly of the view that the decision\nto grant outline planning permission would have been challengeable by the\nclaimant had they brought a claim within the time frame for challenging that\ndecision. However, it is noteworthy that in Wingfield,\n<\/em>like in People Over Wind<\/em>, the\ndetail of the mitigation measures was finalized after the decision that no\nHabitats Assessment was required had been made and therefore did not form an\nintegral part of the development proposal although, as was the case in People Over Wind, <\/em>the court made no\nreference to any distinction between different types of mitigation measures. This\nfailure of the court in People Over Wind <\/em>to\nconsider the issue of integral mitigation measures and if and when they can be\ntaken into account has led to the decision being criticized for being a little\ntoo black and white and there consequently remains a significant amount of\nuncertainty regarding this point.<\/p>\n\n\n\n

The decisions in People Over Wind<\/em>\nand Wingfield <\/em>have come under\nadditional criticism for not only having removed the incentive for developers\nto consider and incorporate mitigation measures at an early stage, but also\nhaving thrown into question the legality of strategic mitigation systems that\nhave previously been put in place to protect European sites. However, the other\nside of the argument, and the position that the court appears to have taken in People Over Wind, <\/em>is that the question\nof whether an impact assessment is required should be based on a very low, de\nminimis, threshold and just be used to filter out those cases where there is\nclearly no risk of adverse effects. According to this argument, the assessment\nitself then provides the opportunity for there to be a detailed and expert\nevaluation of the development and any adverse effects it will have on the integrity\nof the European site, and at this stage any measures to mitigate the effects\ncan be taken into account. <\/p>\n\n\n\n

In any event, it is likely that there will be further cases regarding\nthe question of integral mitigation measure and when they can be taken into\naccount, as well as the question of whether the People Over Wind <\/em>decision applies to EIA Regulation cases as well\nas the Habitat Regulations. Until these questions have been fully considered by\nthe courts, any decisions regarding whether a Habitats Assessment or EIA is\nrequired ought to be approached with caution and in the knowledge that, for the\nmoment, there is a greater risk of them being challenged. <\/p>\n\n\n\n

Anna McClean is a PhD Researcher at Newcastle Law School. <\/h3>\n","protected":false},"excerpt":{"rendered":"

Anna McClean The requirement that the impacts of certain development be assessed before planning permission can be granted is an established part of the planning process in the UK, and there are two key pieces of legislation which deal with … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3730,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[4],"class_list":["post-43","post","type-post","status-publish","format-standard","hentry","category-uncategorised","tag-planning-law"],"_links":{"self":[{"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/posts\/43","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/users\/3730"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/comments?post=43"}],"version-history":[{"count":4,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/posts\/43\/revisions"}],"predecessor-version":[{"id":59,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/posts\/43\/revisions\/59"}],"wp:attachment":[{"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/media?parent=43"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/categories?post=43"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/tags?post=43"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}