National Planning Framework 4: habitats regulations appraisal

2. The HRA Process

Overview

2.1 The Habitats Regulations do not prescribe a particular methodology for carrying out an appraisal of plans. NatureScot recommend an approach, as described in SNH (2015), which is outlined as a series of thirteen steps. However, with cognisance of recent case law, for the HRA of NPF4 this was revised to constitute eleven stages (see Diagram 1). Further guidance published by NatureScot on HRA (SNH, 2014a) also sets out the methods for assessing whether plans will affect a European site.

Consultation

2.2 An HRA Steering Group was established at the commencement of the HRA of NPF4. This comprised representatives from AECOM, Scottish Government and NatureScot.

2.3 All deliverables prepared during the HRA process (as described in Section 1) were submitted to NatureScot for review and comment, with feedback and recommendations addressed and/or incorporated as necessary.

2.4 NatureScot were also consulted in relation to the appropriate assessment of all of those National Developments screened into appropriate assessment. General feedback was incorporated into this version of the HRA Record.

2.5 In discussion with NatureScot and Marine Scotland the initial appropriate assessment of the Energy Innovation Development on the Islands, in particular on the potential inclusion of quay and handling facilities for ultra large container ships in Scapa Flow under this National Development concluded that it was not possible to conclude that development of this type would not result in adverse effects on the integrity of several European sites, including Orkney Mainland Moors SPA, Scapa Flow SPA and Hoy SPA. For this reason, the class of development 'Quay and handling facilities for ultra large container ships in Scapa flow' was removed from the Energy Innovation Development on the Islands National Development in the revised Draft NPF4.

2.6 NatureScot advised that, due to the presence of the Firth of Tay and Eden Estuary SAC immediately adjacent to the entire coastal area encompassed by Dundee Waterfront, land reclamation progressed under this National Development would in their view have adverse effects on the integrity of this European site (and potentially others including Firth of Tay and Eden Estuary SPA). The conclusion of the initial appropriate assessment of March 2022 was therefore that, with land reclamation for port expansion included as a development class, a conclusion of no adverse effect on site integrity could not be reached for this aspect of the Dundee Waterfront proposal. As a consequence, the class of development 'Land reclamation for port expansion' was deleted from the Dundee Waterfront National Development in the revised Draft NPF4.

The Habitats Regulations

2.7 As a consequence of the UK's exit from the EU, it was necessary for various amendments to be made to the Habitats Regulations. These changes were required to ensure that Scotland continues to maintain the same standard of protection afforded to European sites. The Habitats Regulations remain in force, including the general provisions for the protection of European sites and the procedural requirements to undertake HRA.

2.8 Scottish Government published guidance on the changes to the Habitats Regulations in December 2020 (Scottish Government, 2020). This guidance was considered when preparing this document. However, as made clear by Scottish Government, the procedural requirements for HRA remain unchanged.

2.9 Although the UK is no longer part of the EU, a series of prior rulings of the Court of Justice of the European Union (CJEU) were considered when carrying out the HRA of NPF4:

• People Over Wind and Sweetman v Coillte Teoranta (C-323/17)
• Sweetman v An Bord Pleanála (C-258/11)
• Waddenzee (C-127/02)
• Commission of the European Communities v UK (C-6/04)
• Holohan and Others v An Bord Pleanála (C-461/17), and
• T.C. Briels and Others v Minister van Infrastructuur en Milieu (C-521/12).

2.10 The implications of this case law for HRA in Scotland are discussed in NatureScot guidance (SNH, 2014a; SNH 2015; SNH, 2019).

HRA Activities

2.11 In accordance with the process recommended by NatureScot shown in Diagram 1, the relevant case law listed above, and following the agreed HRA methodology for NPF4 set out in AECOM (2020), the HRA of NPF4 adopted a methodology comprising four broad activities:

• HRA Activity 1 – scoping and data gathering (the HRA Methodology (AECOM, 2020) and Baseline Information Report (AECOM, 2021a) describe the work done in relation to scoping and data gathering)
• HRA Stage 2 – HRA screening (the test of likely significant effects, reported in the Initial HRA Screening Record (AECOM, 2021b))
• HRA Activity 3 – appropriate assessment, and
• HRA Activity 4 – avoidance and mitigation.

2.12 This HRA Record is primarily concerned with HRA Activities 3 and 4. However, a summary of the appraisal required during each of the four activities is provided under the following sub-headings.

HRA Activity 1 – Scoping and Data Gathering

2.13 The HRA Methodology (AECOM, 2020) was prepared to provide a written record of the methods to be adopted and deliverables to be provided throughout the HRA of NPF4. It was reviewed and agreed by the HRA Steering Group and was designed to ensure that a scientifically-robust, legally-compliant HRA of NPF4 was carried out.

2.14 Having established the HRA method, a data gathering exercise was conducted and is reported in the Baseline Information Report (AECOM, 2021a). This built on work done for the HRA of National Planning Framework 3 (NPF3) and did not seek to replicate information provided in relevant associated documents produced at that time, other than to update that information, where necessary.

2.15 One of the main aims at this stage was to establish which European sites may be relevant to the HRA. All European sites designated and proposed in Scotland since the publication of NPF3 in 2014 were therefore identified. In addition, as the impacts of NPF4 could extend beyond Scotland, European sites designated and proposed in northern England and Northern Ireland since the publication of NPF3 were also identified.

2.16 In addition, the following information was also presented in the Baseline Information Report:

• any changes to European sites included in the HRA of NPF3 which have been made since its publication (e.g. changes to their Conservation Objectives, changes to qualifying features etc.)
• a list and details of all plans and strategies which have been considered as part of the in-combination assessment of effects on European sites relevant to NPF4
• a review of all new and potentially relevant research conducted since the publication of NPF3, and
• a review of the species-specific buffer areas which were subsequently applied during the HRA screening, based on available information from contemporary research.

HRA Activity 2 – HRA Screening

2.17 Following baseline data gathering the next stage is to determine whether there may be likely significant effects from the plan on European sites. This is shown as Stage 5 on the NatureScot process illustrated on Diagram 1 and is often referred to as 'HRA screening' or the 'test of likely significant effects'.

2.18 The purpose of HRA screening is to determine, in view of best available scientific knowledge, whether a plan (or project), either alone or in-combination with other plans or projects, could have likely significant effects on the qualifying features of a European site. For this purpose 'likely' is taken to mean 'possible'. Moreover, a 'significant' effect is one which could undermine the Conservation Objectives of a European site (SNH, 2015).

2.19 In relation to NPF4, the objective was therefore to 'screen out' those elements of the plan – including policies and National Developments – for which it could be stated, without any detailed appraisal, that significant effects are unlikely on any European site.

2.20 Where it was identified that there were likely significant effects, or if there was reasonable scientific doubt, then a policy or National Development would be 'screened in' and the next stage in the process initiated and a detailed appropriate assessment undertaken.

HRA Activity 3 – Appropriate Assessment

2.21 Where it is determined that a conclusion of 'no likely significant effect' cannot be drawn, the analysis must proceed to the next stage of HRA, known as 'appropriate assessment'. Case law has clarified that 'appropriate assessment' is not a technical term. Whilst there are no particular analyses, or level of technical analysis, that are classified by law as belonging to appropriate assessment rather than determination of likely significant effects, the assessment is undertaken to the extent possible on the basis of the precision of the plan and the statutory framework within which it sits.

2.22 By virtue of the fact that it follows the screening process, there is a clear implication that the analysis will be more detailed than completed at the previous stage. One of the key considerations during appropriate assessment is whether there is available mitigation that would entirely address the potential effect(s). In practice, the appropriate assessment would take any policies or National Developments that could not be dismissed following the HRA screening stage and assess the potential for an effect in more detail, with a view to concluding whether there would actually be an adverse effect on site integrity (in other words, disruption of the coherent structure and function of the European site, in the view of its Conservation Objectives).

HRA Activity 4 – Avoidance and Mitigation

2.23 Where necessary, measures are recommended for incorporation into NPF4 in order to avoid or mitigate adverse effects on European sites. There is considerable precedent concerning the level of detail that a national planning document needs to contain regarding mitigation. The implication of this precedent is that it is not necessary for all measures that will be deployed to be fully developed prior to adoption of the plan, rather that the plan must provide an adequate framework within which these measures can be delivered.

A Proportionate Assessment

2.24 HRA of projects (as opposed to plans) often requires bespoke survey work and novel data generation in order to accurately determine the significance of effects. At project-level, it is necessary to look beyond the risk of an effect to a justified prediction of the actual likely effect and to the development of avoidance or mitigation measures.

2.25 Advocate General Kokott^[8] has commented regarding HRA in a multi-tiered planning system that "it would…hardly be proper to require a greater level of detail in preceding plans [rather than planning applications] or the abolition of multi-stage planning and approval procedures so that assessment of implications can be concentrated on one point in the procedure. Rather, adverse effects on areas of conservation must be assessed at every relevant stage of the procedure to the extent possible on the basis of the precision of the plan. This assessment is to be updated with increasing specificity in subsequent stages of the procedure" [emphasis added].

2.26 There is, therefore, a tacit acceptance that HRA can be tiered and that all impacts are not necessarily appropriate for consideration to the same degree of detail at all tiers, as illustrated in Diagram 2. The fullest level of detail would be necessary for planning applications as that is the last level at which impacts on European sites can be investigated. In contrast, detailed surveys would be disproportionate at national plan level, given that European sites can be protected in the absence of such surveys by having a strong policy dictating the need for further investigation and prohibiting development until such surveys are completed.

In-combination Assessment

2.27 In-combination (i.e. cumulative) effects can result from individually insignificant but collectively significant actions taking place over a period of time or concentrated in a location (CIEEM, 2019).

2.28 It is a requirement of the Habitats Regulations that the impacts of any plan are not considered in isolation but in-combination with other plans and projects that may also affect the European site(s) in question.

2.29 When undertaking this part of the assessment it is essential to bear in mind the principal intention behind the legislation – to ensure that those projects or plans, which in themselves may have minor impacts, are not simply dismissed on that basis but are evaluated for any cumulative contribution they may make to an overall significant effect.

2.30 Consideration was therefore given to the potential for the plans, programmes and strategies in Scotland, Northern Ireland and the north of England listed in the Baseline Information Report (AECOM, 2021a) to act in-combination with any policies or National Developments of NPF4 to result in significant effects.

2.31 In addition, the in-combination assessment considered the potential for different elements of NPF4 that were screened out individually to act cumulatively with each other to result in significant effects. Those elements of NPF4 which were screened out individually because of the absence of any linking impact pathway, or because that element of the plan is too general in nature, were not included in the in-combination assessment, since they will clearly have no cumulative effects, or at least any effects cannot be identified until a lower tier of the planning system.