Republished August 2022 (version 9)
Status of this Advice Note
This version of advice note 10 supersedes all previous versions and includes revisions made in response to emerging best practice.
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Summary of this Advice Note
2. The HRA Process
3. The Applicant’s HRA and the Pre-application Stage HRA Process
4. Acceptance and the Examination
5. Other Considerations
6. Presentation of Information
7. Terms and abbreviations used in this advice note
Summary of this Advice Note
This Advice Note seeks to:
- provide a brief description of the legal context and obligations placed on both the decision maker and the Applicant under the Habitats Regulations;
- identify the stages of the Habitats Regulations Assessment (HRA) process and clarify the information to be provided with a DCO application with respect to HRA at each stage of the Planning Act 2008 (PA2008) process; and
- briefly touch on other matters relating to the PA2008 process and their relationship with the HRA process.
This advice note should be read in conjunction with the Conservation of Habitats and Species Regulations 2017 (as amended by The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019) and the Conservation of Offshore Marine Habitats and Species Regulations 2017 (the ‘Offshore Marine Regulations’) (for plans and projects beyond UK territorial waters (12 nautical miles), also as amended). For ease of expression, both sets of regulations are covered by the term ‘Habitats Regulations’ in this advice note, unless otherwise stated.
It should also be read in conjunction with: the PA2008; relevant Government Planning Policy, such as the relevant National Policy Statements (England and Wales), National Planning Policy Framework (NPPF) (England), Planning Policy Wales and Technical Advice Note 5 (TAN 5): Nature Conservation and Planning (Wales); Government Circulars such as ODPM Circular 06/2005: Biodiversity and Geological Conservation – statutory obligations and their impact within the planning system; and recognised Government and European Commission guidance, including the Department for Environment, Food & Rural Affairs (DEFRA), Natural England, Welsh Government, and Natural Resources Wales (2021) Habitats Regulations Assessments: Protecting a European site, and Planning Practice Guidance: Appropriate Assessment.
Applicants may also find it helpful to consult the following advice: European Commission (2021) Assessment of plans and projects in relation to Natura 2000 sites – Methodological guidance on the provisions of Article 6(3) and (4) of the Habitats Directive 92/43/EEC; European Commission (2018) Managing Natura 2000 Sites – the Provisions of Article 6 of the ‘Habitats’ Directive 92/43/EEC; Opinion of the Commission (2007/2012) Guidance Document on Article 6(4) of the Habitats Directive 92/43/EEC – Clarification of the concepts of: Alternative Solutions, Imperative Reasons of Overriding Public Interest, Compensatory Measures; European Commission (2011) Guidance Document on Wind Energy Developments and Natura 2000; and European Commission (2011) Guidance Document – The Implementation of Birds and Habitats Directives in Estuaries and Coastal Zones: with particular attention to port development and dredging.
The above documents are mentioned in this advice note to assist Applicants, but it is the Applicant’s responsibility to ensure that all relevant and current policy, legislation and guidance has been considered.
1.1 In relation to applications for Nationally Significant Infrastructure Projects (NSIPs), the relevant Secretary of State is the Competent Authority for the purposes of the Habitat Regulations.
1.2 The Habitats Regulations provide for the designation of sites for the protection of certain species and habitats. These are collectively termed ‘European sites’ and form part of a network of protected sites across the UK known as the ‘national site network’ (NSN). For ease of expression, this advice note uses the term ‘European site’ for both European sites and European offshore marine sites. European sites protected by the Habitats Regulations include Special Areas of Conservation (SACs) and Special Protection Areas (SPAs ). Additionally, it is a matter of UK Government policy and guidance that the following sites should also be subject to a HRA, where affected by a plan or project: proposed SACs; potential SPAs; and Ramsar sites (both proposed and listed); and areas secured as sites compensating for damage to a European site.
1.3 Under the Habitats Regulations, a Competent Authority must consider whether a development will have a likely significant effect (LSE) on a European site, either alone or in combination with other plans or projects. Where LSE are likely and a project is not directly connected with or necessary to the management of that site(s), an appropriate assessment (AA) is required of the implications of the plan or project for that site(s) in view of its conservation objectives.
1.4 Further to this, where an AA has been carried out and results in a negative assessment (ie where Adverse Effects on Integrity (AEoI) of European site(s) cannot be ruled out, despite any proposed avoidance or reduction (mitigation) measures), consent can only be granted if: there are no alternative solutions; there are Imperative Reasons of Overriding Public Interest (IROPI); and Compensatory Measures have been secured. These latter stages are known as the ‘derogations’. For the purposes of this note, the Planning Inspectorate is using the term ‘HRA’ to describe all the steps in the assessment process, including that required by Regulation 63 (an AA) and consideration of AEoI and Regulations 64 and 68 of the Habitats Regulations (the derogations), where applicable.
Consideration of transboundary effects of energy developments on European Sites
1.5 The Department for Business Energy and Industrial Strategy (BEIS), formerly the Department of Energy and Climate Change (DECC) released guidelines, which specify that the Secretary of State, when considering whether to consent energy projects, will apply the principles of the Habitats Directive to any energy development where significant effects on European Union (EU) Natura 2000 sites (the network of European sites outside the UK) or candidate sites in European Member States are likely. BEIS expects that this will be most relevant to the development of offshore wind farms.
1.6 Applicants seeking consent for energy developments likely to have a significant effect (either alone or in combination) on a Natura 2000 site in another Member State should obtain and provide all relevant information, as reasonably practicable with their DCO application. The Secretary of State for Business, Energy and Industrial Strategy (SoSBEIS) will then be able to consider the likely effects of their proposals on such sites before deciding whether or not to grant.
2. The HRA process
2.1 HRA is a multi-stage process which identifies LSE, assesses any AEoI of a European site, and considers the derogations (as appropriate). The joint Defra, Welsh Government, Natural England and Natural Resources Wales guidance (2021) ‘Habitats regulations assessments: protecting a European site’ (hereafter referred to as the ‘joint guidance’) identifies a three stage process, as set out below. It may not be necessary to complete all stages, depending on what conclusion is reached at each stage. The stages are:
- Stage 1. Screening – check if the proposal is likely to have a significant effect on the European site(s)’s conservation objectives, both alone or in combination with other plans or projects. At this stage, and in accordance with case law (People Over Wind and Sweetman v Coillte Teoranta (Case C-323/17)), mitigation measures proposed for the purpose of avoiding or minimising risk to a European site should not be taken into account. If a conclusion of no LSE is reached for all European sites and their qualifying features considered, it is not necessary to proceed to the next stages of HRA.
- Stage 2. Appropriate assessment (AA) – assess the implications of the proposal for the qualifying features of the European site(s), in view of the site(s)’ conservation objectives, and identify ways to avoid or minimise any effects.
- Stage 3. Derogation – consider if proposals that would have an AEoI of a European site(s) qualify for an exemption. There are three tests to this stage to be followed in order: consider alternative solutions; consider IROPI; and secure compensatory measures. Each test must be passed in sequence for a derogation to be granted.
3. The Applicant’s HRA and the Pre-application Stage
3.1 Anyone applying for development consent for a NSIP must, in accordance with the Habitats Regulations, provide the Competent Authority with such information as may reasonably be required ‘for the purposes of the assessment’ or ‘to enable them to determine whether an appropriate assessment is required’. This information to be submitted with the DCO application normally takes the form of a No Significant Effects Report (NSER), where only Stage 1 screening has been undertaken and a conclusion of no LSE on a European site(s) has been reached, or an ‘information to inform HRA Report’(hereafter referred to as an ‘HRA Report’ in this advice note) , which includes various stages of the HRA process, such as the information to inform an appropriate assessment and derogations (as relevant).
3.2 Where Applicants’ have concluded that there are no pathways which could lead to effects on a European site(s) from the Proposed Development, the Planning Inspectorate still expects Applicants to confirm this in a statement to be submitted with the application, and clearly signpost this statement from the DCO application form.
3.3 Applicants should be aware that if insufficient information is submitted with an application, then it may not be accepted for Examination. Applicants are therefore strongly advised to use the pre-application consultation process to obtain assurances from the appropriate nature conservation body(ies) (ANCB) as defined in the Habitats Regulations, and other bodies as appropriate, that all potential effects have been appropriately considered and in sufficient detail before an application is submitted. Evidence of the outcome of this consultation should be appended to the NSER, HRA Report or statement of no effect pathway (as relevant). It is advisable that such consultation responses are up-to-date at the point of submission. This will be key to the acceptance stage and the decision-making process, as under the Habitat Regulations and The Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 (the APFP Regulations) the Applicant must provide the Competent Authority with such information as reasonably required for the purposes of the assessment and the Competent Authority must consult the ANCB and have regard to any representations made by them.
3.4 Applicants are strongly advised to make use of the Evidence Plan process. An Evidence Plan is a way to agree and record upfront the information the Applicant needs to supply to the Planning Inspectorate when applying for a DCO so that a HRA of the application can be efficiently carried out. It is available to all Applicants for proposed NSIPs that are in England, or England and Wales.
3.5 Agreed Evidence Plans and/or signed Statements of Common Ground (SoCG) with ANCB submitted with the DCO application could include statements in relation to the European sites and qualifying features identified and considered in the NSER/HRA Report, the baseline data, methodology adopted, the stage of the HRA process reached, and the conclusions reached with regard to likely significant effects and/or effects on site integrity, as appropriate. The Evidence Plan/SoCG could also document where the ANCB agrees that effects on European site(s) can be wholly excluded because there are no pathways of effect, where relevant.
3.6 The Applicant’s NSER/HRA Report should provide the reasoning and evidence behind its conclusions. This is likely to be supported by the information presented in the Environmental Statement (ES) for the DCO application. The Applicant’s NSER/HRA Report must show how the information gathered has been applied to the HRA and the tests applicable to the Habitats Regulations. Further advice can be found in the ‘Relationship with environmental impact assessment (EIA)’ section of this advice note.
3.7 Applicants are also referred to the Planning Inspectorate’s ‘Prospectus for Applicants’, which explains the service offered by the Planning Inspectorate to Applicants at the pre-application stage, including reviewing draft application documents. Applicants may wish to consider submitting draft NSER/HRA Reports to the Planning Inspectorate prior to submission of the DCO application for comment. Applicants should discuss the timing of sharing such drafts with the Inspectorate in order to achieve as much benefit as possible from their review. Applicants are also advised to submit draft documents to the relevant ANCB, with a view to addressing any comments those bodies may be able to make prior to submitting the DCO application.
3.8 The approach contained within this advice note forms a key component of the preparation of a DCO application and has been designed to help Applicants to submit robust HRA information with the DCO application, so that as few outstanding issues as possible are taken forward into the Examination.
HRA Stage 1: Screening
3.9 HRA Stage 1 establishes whether the Proposed Development alone or in combination with other plans or project will result in a LSE. It is advised that in relation to this stage the Applicant commences consultation with the relevant ANCB and any relevant non-statutory body(ies) at the earliest point in the pre-application process. Whilst this is the Applicant’s responsibility during the pre-application stage of the process, in due course the Competent Authority will need to be satisfied whether it agrees with the Applicant’s conclusions. The views of the ANCB and relevant non-statutory body(ies) will likely be of interest in doing so.
3.10 The Stage 1 assessment should give careful consideration to the characteristics of the Proposed Development and whether there are any potential pathways that could lead to effects on a European site. It should consider whether there is a real risk or possibility of LSE based on the evidence. If the risk of the proposal alone having a LSE cannot be ruled out, HRA Stage 2 will be required.
3.11A conclusion may be reached that the Proposed Development alone may have an effect on a European site(s) that is not significant. In this situation, the Applicant must then consider if this effect could combine with any other plan or project that affects the same European site(s) and qualifying feature(s), that on its own also does not have a significant effect. If, in combination, the Proposed Development could have a significant effect on the European site, HRA Stage 2 will be required.
3.12 Whilst there is no legal definition of what constitutes a plan or project for the purposes of the Habitats Regulations, the Planning Inspectorate advises that the following should be considered for the HRA in combination assessment (please note this list is not exhaustive) :
- projects that are under construction;
- permitted application(s) not yet implemented;
- submitted application(s) not yet determined;
- all refusals subject to appeal procedures not yet determined;
- projects on the Planning Inspectorate’s National Infrastructure Programme of Projects; and
- projects identified in the relevant development plan (and emerging development plans – with appropriate weight being given as they move closer to adoption) recognising that much information on any relevant proposals will be limited and the degree of uncertainty which may be present.
3.13 The Applicant should also consider future European site designations or amendments to qualifying features that may be affected by the Proposed Development. These are ones which, once consultation has been initiated, would be considered a European site under policy. The Planning Inspectorate encourages early engagement and discussion with ANCB to agree the approach and the relevant sites and qualifying features. In so doing, Applicants should make clear in their reports, the current status of such European sites and qualifying features.
3.14 The general approach taken to HRA throughout preparation of the DCO application should be iterative to ensure that a robust screening for LSE is carried out. Consultation on LSE should develop throughout the pre-application stage and as the likely outcomes of the process emerge. However, to avoid confusion, a single final version of the Stage 1 screening information should be submitted.
3.15 Case law (European Court of Justice (ECJ) in Case C-323/17, ‘People Over Wind’) has established that it is not appropriate at the HRA Stage 1: Screening stage to take account of measures intended to avoid or reduce harmful effects. These mitigation measures need to be considered at HRA Stage 2: AA. Applicants may wish to assert that measures are embedded/ integral/ incorporated within the DCO application. Whilst this position is feasible and open to the Applicant as an approach, Applicant’s may instead opt to take a precautionary approach and progress any such measure to the HRA Stage 2. If there is confidence in the efficacy of the measure(s) proposed, considering such measure(s) at HRA Stage 2 should not result in a noticeable additional level of effort, but will reduce the need for scrutiny of the procedure followed.
3.16 At HRA Stage 1: Screening, in relation to each European site and qualifying feature, the Applicant will need to conclude from evidence gathered and any ANCB consultation responses received that either:
- There would be no conceivable effect on/no potential effect pathways to any European site and its qualifying features as a result of the Proposed Development. A statement to be provided within the application documents to this effect; or
- LSE on European site(s) as a result of the Proposed Development, alone or in combination with other plans or projects, can be excluded and therefore this is no need to progress to HRA Stage 2. An NSER to be provided within the application documents to this effect; or
- LSE on European site(s) and qualifying features are considered to exist, either alone or in combination with other plans or projects, and an AA by the Competent Authority is likely to be required. The Applicant should move to HRA Stage 2 and document the HRA Stage 1 screening findings in an HRA Report.
HRA Stage 2: Appropriate Assessment
3.17 HRA Stage 2 AA is required where LSE on a European site(s), either from the Proposed Development alone or in combination with other plans or projects, cannot be discounted. The Applicant needs to consider whether those LSE will adversely affect the integrity of the European site(s) in view of its conservation objectives. The conservation objectives for each European site considered at HRA Stage 2 must be provided with the HRA Report.
3.18 The Applicant’s HRA Report should clearly identify which European site(s) and qualifying features are being taken forward to HRA Stage 2: AA and which European site(s) and qualifying features have been screened out of further assessment.
3.19 At HRA Stage 2, the Applicant should consider ways to avoid or reduce (mitigate) any potential for an AEoI on a European site(s). Mitigation measures relied upon must be adequately secured through the DCO or other means. Information should be provided on how they would be implemented and monitored, including the timescales involved. The efficacy of the measures should be stated, together with how long it will take for the measures to take effect and the level of success expected. It is recommended that advice be sought from the ANCB on the mitigation measures proposed.
3.20 The HRA Report should conclude on whether an AEoI on a European site(s) and qualifying features can or cannot be ruled out. This information should be ‘identified in the light of the best scientific knowledge in the field’. All reasonable scientific doubt that the Proposed Development would not have an AEoI must be ruled out, both alone or in combination with other plans or projects, otherwise the Applicant’s assessment will need to move to HRA Stage 3: Derogations.
3.21 As stated previously, it is highly recommended that the relevant ANCB be consulted on the HRA Report and their views be sought.
HRA Stage 3: Derogations
3.22 In certain circumstances, where AEoI cannot be excluded, a proposal can go ahead under what is known as a derogation. There are three legal tests to this stage and each needs to be passed in order for a derogation to be granted. If during the pre-application stage, ANCB indicate that the Proposed Development is likely to adversely impact a European site(s), Applicants should include with their DCO application such information as may reasonably be required to assess potential derogations under the Habitats Regulations. This information can be provided with the DCO application ‘without prejudice’ to the Secretary of State’s final decision on whether the derogations are engaged. Whether determined by the Applicant or recommended by the ANCB, Applicants should follow the recommendations provided below.
Test 1: Assessment of Alternative Solutions
3.23 Where an Applicant identifies AEoI on a European site(s) and its qualifying feature(s), the Applicant should provide an assessment to identify and assess the alternative solutions that have been considered. The Applicant should clearly define what it believes to be the objectives of the Proposed Development and why the Proposed Development may adversely affect the European site(s). It is useful for the Applicant to compare the alternative solutions considered against the ‘do nothing’ option. Alternative solutions could include a Proposed Development of a different location, a different route across a site, or a different scale, size, design, method or timing.
3.24 Although it is for the Competent Authority (in this case the relevant Secretary of State) to decide whether there is an absence of alternative solutions, it is in the interests of the Applicant to provide the evidence to enable the Competent Authority to reach a conclusion.
3.25 An alternative solution is acceptable if it:
- achieves the same overall objective as the original proposal;
- is financially, legally and technically feasible; and
- is less damaging to the European site and does not have an AEoI of this or any other European site.
3.26 The joint guidance also identifies examples of alternatives that may not meet the original objective and as such would not need to be considered, such as proposals that offer nuclear instead of offshore wind energy; rail instead of road transportation; or imports freight in a different way instead of increasing port capacity.
Test 2: Consideration of IROPI
3.27 Where it can be demonstrated that there are no feasible alternative solutions to the Proposed Development that would have a lesser effect or avoid an adverse effect on the integrity of the European site(s), the Proposed Development may still be carried out if the Competent Authority is satisfied that it must be carried out for IROPI.
3.28 Although it is for the Competent Authority to consider whether there are IROPI to grant a derogation, Applicants should provide with their HRA Report the evidence and arguments justifying the Proposed Development, despite the harmful effects it will or could have on the European site(s). The case for IROPI in the HRA Report should explain the reasons for it being:
- imperative – essential that it proceeds for public interest reasons;
- in the public interest – that it has benefits for the public, not just benefits for private interests; and
- overriding – that the public interest outweighs the harm, or risk of harm, to the integrity of the European site(s) as predicted by the AA.
3.29 Guidance identifies that National strategic plans, policy statements and major projects are more likely to have a high level of public interest and be able to show they are imperative and overriding. Plans or projects that only provide short-term or very localised benefits are less likely to be able to show IROPI.
3.30 Applicants must make clear if the qualifying feature(s) affected is a priority habitat or species, as in such cases the IROPI justification must normally only consider reasons of public interest that relate to human health; public safety; or beneficial consequences of primary importance to the environment. If other reasons of overriding public interest are being considered, such as social or economic benefits, the Competent Authority must seek the opinion of the relevant national government in England (Defra SoS) or Wales (Welsh Ministers), as applicable. Although it is for the Competent Authority to seek such an opinion, as noted above, Applicants should provide evidence and justifications of their reasons for the IROPI case, including whether or not other reasons are being considered where priority habitats and species would be affected.
Test 3: Compensatory Measures
3.31 In the event that the Applicant is proceeding under HRA Stage 3: Derogations, suitable Compensatory Measures must be identified. The HRA Report should describe the measures and how their delivery would be secured. The measures need to fully compensate for the adverse effects of the Proposed Development such that the coherence of the NSN is maintained. The joint guidance specifies appropriate considerations for the Compensatory Measures, including:
- technically feasibility;
- financial viability;
- how it will be undertaken, managed and monitored; distance from affected site; and
- how long it would take for the Compensatory Measures to achieve the required quality and amount of habitat.
3.32 Compensatory Measures should be in place and effective before the negative effect on a European site(s) could occur.
3.33 The Secretary of State as the Competent Authority, will need to be satisfied that all necessary arrangements for securing the compensatory measures are in place before consent could be given for the Proposed Development to proceed. The Applicant should provide information relating to the legal, financial and technical arrangements, together with proposed monitoring, as required to provide/deliver the compensatory measures.
3.34 Applicants are strongly encouraged to work with the relevant ANCB (and landowners, where applicable) to identify the Compensatory Measures as early as possible during the pre-application stage.
4. Acceptance and the Examination
4.1 A summary of the process following submission of a DCO application is provided on the National Infrastructure Planning website and also in Advice Note 8.
4.2 At the Acceptance stage, it is important to note that the Planning Inspectorate is not able to request further information to supplement the DCO application. Applicants should therefore be aware that there is a significant risk that the application for development consent may not be accepted for Examination if it is concluded that insufficient information for the HRA has been provided.
4.3 Acceptance of a Proposed Development does not however, preclude the ExA requiring additional information on HRA matters during the Examination.
4.4 At any time during the Examination stage, the ExA may require the Applicant to provide additional information, which it considers is reasonably required in order for the Competent Authority to undertake its assessment. If such information, cannot be produced and consulted on within the Examination period, the ExA may have to consider either recommending that the Secretary of State refusing consent, or consider seeking an extension to the timetable.
4.5 If the ExA thinks that the information is needed in order to make the submitted ES comply with the requirements for an ES contained in the relevant EIA Regulations, the ExA must suspend consideration of the application until the information is provided (for further information see ‘Relationship with environmental impact assessment (EIA)’ below). However, Applicants should note that the suspension of the Examination does not affect the overall maximum timetable of six months within which the ExA must complete the Examination of the application. This emphasises the importance of seeking and reaching agreement at the pre-application stage with the relevant ANCB that sufficient information has been provided in the application documents, to reduce the risk that further information is requested by the ExA, which the Applicant cannot provide within the statutory six months Examination
The Report on the Implications of European sites (RIES)
4.6 During the Examination stage, and where a Proposed Development has engaged with the Habitats Regulations, the Planning Inspectorate on behalf of the ExA may produce a Report on the Implications of European sites (RIES). This report compiles, documents and signposts information relating to HRA, as may have been provided within the DCO application and submitted during the Examination by the Applicant, the ANCB and Interested Parties, up to a specified Examination deadline. The RIES will also identify whether a case for Alternatives and IROPI has been discussed in the Examination (where relevant).
4.7 The RIES will identify the position, at the point of its issue, with respect to HRA of the Applicant, ANCB, and other relevant Interested Parties. It will highlight the issues that have been the focus of the Examination and identify any issues which remain in dispute or where uncertainty remains, often to seek clarity on these points.
4.8 The RIES is also issued during Examination to facilitate specific comment from the relevant ANCB on Habitats Regulations matters. This process may be relied on by the Secretary of State for the purposes of Regulation 63(3) of the Habitats Regulations and/or Regulation 28(4) of the Offshore Marine Regulations.
4.9 The timeframe for consultation on the RIES will be determined by the ExA and can be discussed during the Preliminary Meeting. A minimum of 21 days will normally be allowed by the ExA within the timetable to enable ANCB and all Interested Parties to review the RIES and to respond to the consultation on it.
4.10 Following consultation, the responses will be considered by the ExA in making their recommendation to the Secretary of State and made available to the Secretary of State along with their recommendation report. The RIES is not revised following consultation.
5. Other Considerations
Relationship with Environmental Impact Assessment (EIA)
5.1 The majority of NSIP proposals are likely to require both HRA and EIA. Although the HRA and EIA are separate and distinct elements of the DCO process, both are integral to it. The EIA will assess effects on European sites and will include an assessment of effects on flora and fauna (as defined in The Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (as amended) (the ‘EIA Regulations’). This is information which is likely to inform the Applicant’s HRA Report. The EIA Regulations require the Secretary of State or relevant authority, where appropriate to co-ordinate HRA and EIA; however, the EIA and HRA do not have to be presented in a single document. If the Applicant choses to combine the information in to a single document, they should take care to ensure that the information relevant to the HRA and its conclusions is clearly discernible.
5.2 The need to make the distinction between the conclusions of the EIA and HRA processes flows from the different requirements of the EIA Regulations and the Habitats Regulations. While the outcome of the EIA as reported in the ES identifies likely significant environmental effects from the Proposed Development, these do not preclude the decision maker from granting authorisation; whereas significant effects resulting in AEoI to a European site(as) identified through the HRA process may do so.
Co-ordinating parallel consents and other AA
5.3 NSIPs, by virtue of their scale and complexity, are likely to require separate licences or permits under other regulatory regimes. Activities requiring consent not included, or not capable of being included in an application for development consent under the PA2008, may also have a significant effect on a European site(s) and may also require AA by a different decision maker (Competent Authority) under other regulatory regimes before it can be authorised.
5.4 Applicants are encouraged to consult other Competent Authorities about the level of information those Competent Authorities will require in order to undertake their AA, where required. Applicants should confirm with those Competent Authorities whether they are likely to wish to adopt the reasoning or conclusions of the AA carried out by the Competent Authority (the relevant Secretary of State) under the PA2008 process.
5.5 The Applicant’s HRA Report should make clear that any LSE of the Proposed Development, which may be regulated by other Competent Authorities, have been properly taken into account in the Applicant’s HRA for the DCO application.
5.6 If the Applicant decides or needs to apply for consents under other regulatory regimes which themselves require an AA, the DCO application should include information about the likelihood of the other licence consent(s) being authorised. The Applicant should also consider the timing of the application for other consents and the likely timetable for the Competent Authority’s decision for such consents, and the impact this may have on the Examination of the DCO application and the preparation of its AA. For example, where an NSIP requires an Environmental Permit from the Environment Agency and has the potential to affect European site(s), Applicants are strongly advised to submit Environmental Permit application(s) to the Environment Agency at least 6 months prior to DCO submission. If the DCO and Environmental Permit application(s) are not appropriately coordinated, there is a risk that the Environment Agency will be unable to comment on detailed technical matters raised by the Examining Authority during the Examination of the DCO. Furthermore, failure to resolve such matters prior to the end of examination may also prevent the ANCB and the Environment Agency from being able to provide comprehensive advice to the decision-maker regarding the potential for AEoI and the scale of any mitigation or compensatory measures required.
5.7 Further advice regarding working with the Environment Agency is provided in Annex D to Advice Note 11. It is also recommended that Applicants submit with the DCO application, the relevant comments/views of other Competent Authorities obtained during pre-application consultation.
European Protected Species (EPS) and Wild Birds
5.8 Obtaining a DCO after satisfying the requirements for HRA does not obviate the need for any licence that may also be required eg for impacts on European Protected Species or wild Further advice regarding working with Natural England and Natural Resources Wales is provided in Annex C and Annex A (respectively) to Advice Note 11.
6. Presentation of Information
6.1 Applicants should provide the following HRA information with their application:
- A summary table of all European sites and qualifying features and each pathway of effect considered at each HRA Stage (screening, AA/IROPI, and the derogations, as applicable), for each phase of the Proposed Development (construction, operation, decommissioning, as relevant);
- A copy of the citation/Natura 2000 data sheet for each European site;
- A copy of the conservation objectives for all European sites for which LSE have not been excluded and have been carried forward to HRA Stage 2;
- a plan of the European site(s) potentially affected in relation to the Proposed Development (as required to be submitted with the DCO application in accordance with Regulation 5(2)(l)(i) of the APFP Regulations);
- a statement which identifies (with reasons) whether significant effects are considered to be likely in respect of European sites in devolved administrations or within EEA States;
- evidence (such as Evidence Plans, copies of correspondence, agreement logs, or SoCG) of agreement between the Applicant and relevant ANCBs (including those in devolved administrations and/or relevant bodies in EEA States, where applicable) on the scope, methodologies, interpretation, and conclusions of the screening assessment; and
- cross references to relevant draft DCO requirements, development consent obligations and any other mechanisms proposed to secure measures relied upon in the AA and derogation cases (as applicable), including the identification of any factors that might affect the certainty or efficacy of their implementation.
Terms and abbreviations used in this Advice Note
|AA||An appropriate assessment|
|AEoI||Adverse Effects on Integrity|
|ANCB||Appropriate Nature Conservation Body(ies)|
|APFP Regulations||The Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009|
|BEIS||Business Energy and Industrial Strategy|
|Competent Authority||In the case of NSIPs the competent authority, the decision-maker, is the relevant Secretary of State|
|Criteria/Criterion||The specific reason for the listing of a Ramsar as a wetland of international importance under the Ramsar Convention. The criteria for each Ramsar are identified on the Ramsar Information Sheet. There are nine specific criteria for identifying wetlands of international importance under the Ramsar Convention.|
|DCO||Development Consent Order|
|DECC||Department of Energy and Climate Change|
|Derogations||Regulations 64 and 68 of the Habitats Regulations|
|EEA||European Economic Area|
|EIA||Environmental Impact Assessment|
|EIA Regulations||The Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (as amended)|
|European offshore marine sites||European sites designated under the Conservation of Offshore Marine Habitats and Species Regulations 2017 (the ‘Offshore Marine Regulations’). They include SPAs and SACs located wholly (or partly) beyond the 12 nautical mile limit of UK territorial waters.|
|European site||This term is used in this advice note to describe both European sites and European offshore marine sites (unless otherwise stated). It includes SACs, SPAs, proposed SACs, potential SPAs, Ramsar sites (both proposed and listed), and areas secured as sites compensating for damage to a European site|
|Evidence Plan||A way to agree and record upfront the information the Applicant needs to supply to the Planning Inspectorate when applying for a DCO so that a HRA of the application can be efficiently carried out. See Annex H to Advice Note 11.|
|Habitats Regulations||For ease of expression, the term ‘Habitats Regulations’ is used to refer to both The Conservation of Habitats and Species Regulations 2017 (as amended by The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019) and the Conservation of Offshore Marine Habitats and Species Regulations 2017 (the ‘Offshore Marine Regulations’) (also, as amended), unless otherwise stated|
|HRA||Habitats Regulations Assessment – HRA is used in this advice note to describe all the steps in the assessment process, including that required by Regulation 63 (the AA and consideration of AEoI) and Regulations 64 and 68 of the Habitats Regulations (known as the ‘derogations’)|
|IROPI||Imperative Reasons for Overriding Public Interest|
|Joint guidance||The joint Defra, Welsh Government, Natural England and Natural Resources Wales guidance (2021) ‘Habitats regulations assessments: protecting a European site’|
|LSE||Likely significant effect|
|Natura 2000 sites||The network of European sites outside the UK|
|NSIP||Nationally Significant Infrastructure Project|
|NSN||National Site Network – the network of European sites within the UK|
|Offshore Marine Regulations||Conservation of Offshore Marine Habitats and Species Regulations 2017 (as amended)|
|PA2008||Planning Act 2008|
|Qualifying feature||The feature(s) for which the European site is designated and to be protected and managed for conservation
In respect of Ramsar, the qualifying feature is the reason for the listing of a Ramsar as a wetland of international importance under the Ramsar Convention and is identified as Criterion/Criteria (see definition above)
|Ramsar||A wetland site of international importance as listed under the Convention on Wetlands of International Importance 1971 (as amended in 1982 and 1987)|
|RIES||Report on the Implications for European Sites|
|SAC||Special Area of Conservation|
|SoCG||Statement of Common Ground|
|SPA||Special Protection Areas|