Call of the wild
24 April 2006
The Government's housing policy objectives for the South East are being thwarted by three bird species protected by Europe - the nightjar, woodlark and Dartford warbler - which are indisposed to nesting anywhere but on the ground. Developers and local planning authorities and the relevant statutory bodies have been left scratching their heads in despair as large areas, most notably the Thames Valley, are fast becoming 'no-go areas' for housebuilders.
In 1979 the European Economic Community (EEC) became a signatory to the Bern Convention on the Conservation of European Habitats and Species. In order to meet its treaty obligations, the EEC adopted Council Directive 79/409/EEC (the Wild Birds Directive) and Council Directive 92/43/EEC (the Habitats Directive). In the UK, these are transposed into national legislation by means of the Habitats Regulations 1994. The regulations provide a detailed legal framework for the protection of European sites of conservation interest. In particular, Regulation 48 requires an appropriate assessment of a development proposal, both alone and in combination with other development projects, upon the integrity of a European site's conservation objectives if the proposal is likely to have a significant effect on the site.
Securing appropriate mitigation to offset the effects of a development is, however, very different from compensating for the effect of a development after the event. In the case of Commission v Austria (2003),the European Court of Justice (ECJ) held that Austria had failed in its obligations under the Habitats Directive in imposing conditions to planning consent for a new golf course in circumstances where the local protected corncrake population would be placed in jeopardy in the absence of 'up-front' mitigation measures.
Planning applications for sizeable residential or commercial developments inevitably entail implications in terms of transportation impact and population movement. Most European sites comprise open countryside, which allows some degree of public access and whose central conservation interest is ground-nesting bird populations, such as the Thames Basin Heaths Special Protection Area (TBHSPA) on the borders of Surrey, Hampshire and Berkshire.
Increased public access as a result of new residential or commercial development will inevitably have a negative impact, unless the proposal can demonstrate that they will 'consume their own smoke' through the provision of alternative space upon which residents and/or workers can exercise for leisure. On large development sites such alternative open space may be, within normal commercial limits, readily available. However, for brownfield or small sites, such land may quite simply be non-existent.
The problems posed by the proper application of Regulation 48 have become the subject of numerous conflicting inspectors' reports and court decisions and, in light of the resultant uncertainty, this has played into the hands of development-adverse local authorities, which have been able to place an embargo upon new developments within their administrative areas while they await the Government and English Nature's resolution to the problem.
The ECJ recently made the situation more complicated with its decision in Commission v UK (2006), concluding that the Habitats Regulations 1994 had incorrectly transposed the Habitats Directive into UK law and should have properly required an appropriate assessment of development plan policies prior to their adoption by local planning authorities.
It had been the UK Government's stance that development plans, insofar as they affected the likely use of land which might have a significant effect upon the integrity of the conservation objectives of a European site, were immune from the need for appropriate assessment.
Such argument was rejected by the ECJ, which preferred the application of a precautionary approach by local planning authorities in their consideration of local planning policy. If local planning policies were themselves likely to pose significant issues with regards the future use of land that would effect a European site, then the plan properly triggered the requirement for an appropriate assessment.
The implications for regional planning are clear. Wherever a planning authority, be it at the regional or local level, is about to, or is in the process of, reviewing a Regional Spatial Strategy (RSS) or Local Development Framework, the authority must carry out an appropriate assessment of any policies likely to have a significant effect on a European site. In the short term, this includes the South East Regional Assembly currently undertaking the review of regional planning policy in the form of RSS-9. Normally, this would occur as part of the Strategic Environmental Assessment process. The consequent delay for the adoption of policies concerning the number and allocation of housing units and other development within the South East is now uncertain.
English Nature has recognised that the current impasse cannot continue. It is developing a delivery plan, in consultation with key stakeholders, for development proposals within the proximity of the Thames Basin Heaths. The document aims to clarify the circumstances in which appropriate assessments should be undertaken and seeks to build a consensus as to what might constitute suitable mitigation where alternative on-site public access land is scarce.
However, it is heavily debatable that the key proposal of English Nature, for a sinking fund into which developers pay so that local planning authorities can mitigate development proposals on a catchment-wide basis to meet the requirements of Regulation 48, is lawful, unless delivery of any mitigation can be guaranteed prior to the occupation of any permitted development. Meanwhile, many of the 11 local authorities affected by the TBHSPA are currently refusing to determine planning applications for even the most minor development proposals.
Case law proves that nobody with an interest in development in the South East can now ignore the effects of the Habitats Regulations 1994. The development industry must increase its awareness if it is to have any chance of crystallising development opportunities, both large and small, close to European conservation sites.
Douglas Evans is a partner and Gary Sector is an associate at Addleshaw Goddard