New twists in Habitat Regs law to slow down NDP progress?

As a result of a finding by the European Court* it seems that ‘likely significant effects’ (LSE) of NDP proposals on European level designated habitat and wildlife sites, such as SACs and SPAs, cannot now be ‘screened out’ at the HRA Stage 1 by mitigating controls which avoid, compensate for or reduce the harmful effects.

Following the judgement, it is only at HRA stage 2, ‘appropriate assessment’ by the competent authority, that such controls can be accepted, and then only where a ‘full and precise analysis of the measures capable of avoiding or reducing any significant effects on the site concerned’ is carried out.

Previously most NDPs that have proposals, such as housing allocations, that could impact on SACs and SPAs could have screened out the LSE at a stage 1 assessment. That is now not possible and a more costly time-consuming Stage 2 assessment would be required.

Fortunately, if the NDP can be seen to be delivering proposals that have already been covered by the higher Local Plan and its ‘appropriate assessment’ then there should not be an issue. If outside this umbrella then a two stage HRA is necessary. The Locality/MHLG grant scheme for NDPs can provide a technical assistance package to cover HRA in most cases. However additional NDP process time will still be required.

A second ECJ judgement** adds to the complications. The Court found that when the mitigation measures are designed only to compensate for a plan’s negative effects, rather than reducing or avoiding them, approval can only be granted if the competent authority is satisfied that there are “imperative reasons of overriding public interest” for the Plan going ahead. Such a strict test will be tough for Local Plans, and even tougher for NDPs.

*People Over Wind and Sweetman v Coille Teoranta

**Grace and Sweetman v An Bord Pleanala