06 NOVEMBER 2018
EDP welcomes MHCLG’s recent consultation on proposed changes to NPPF paragraph 117, which would provide much needed clarification on the spirit of the policy and stop penalising sites simply for following appropriate assessment procedures required in light of the People over Wind judgement.
April’s ruling of the European Court of Justice on case C323/17 (People over Wind, Peter Sweetman v Coillte Teoranta), has exercised the minds of many of involved in planning and development for the past 6 months. As a reminder, this ruling challenged the standard approach to Habitats Regulation Assessment which had prevailed in the UK for many years, whereby avoidance or mitigation measures were taken into account when screening for likely significant effects on European Sites such as SPAs and SACs. Such measures can no longer be taken into account, requiring the assessment to progress at least as far as ‘Appropriate Assessment’ (also known as HRA Stage 2). At the very least, this is requiring appropriate assessments to be undertaken for Local Plan policies and for individual development proposals on a far more frequent basis than was previously the case, and is delaying a number of Local Plans which are at examination stage.
However, this ruling also has significant implications for development proposals being taken to appeal, in particular those whose case is based on a housing land supply shortfall. This is because even in the updated NPPF the requirement for an appropriate assessment means that the presumption in favour of sustainable development does not apply (paragraph 117). As currently worded, even if the appropriate assessment concludes that there would not be a significant effect on a European Site, the fact that an appropriate assessment was required to demonstrate this is enough to disengage the presumption in favour of sustainable development (i.e. the ‘Tilted Balance’). Now that the bar for requiring an appropriate assessment is so much lower, many more sites than before are losing their ‘sustainable development’ status with reference to national planning policy, thereby introducing a new barrier to the delivery housing.
Fortunately this hasn’t escaped the attention of the Ministry of Housing, Communities and Local Government. Whilst it was not able to complete a consultation on this matter before NPPF 2 was published it has recently opened a consultation which, among other things, proposes a change to the wording of paragraph 117 as follows:
“117. The presumption in favour of sustainable development does not apply where the plan or project is likely to have a significant effect on a habitats site (either alone or in combination with other plans or projects), unless an appropriate assessment has concluded that there will be no adverse effect from the plan or project on the integrity of the habitats site.”
EDP fully supports this proposed change which would prevent sites for which an appropriate assessment is now required, but for which is it clear that harmful effects can be avoided or mitigated, from being unfairly penalised. The consultation runs from 26 October to 7 December 2018.
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