Marine licensing and consenting: Habitats Regulations Appraisal

HRA is the process through which a competent authority assesses the impact of a proposed plan or project on a European site (Special Area of Conservation or Special Protection Area). Marine Directorate - Licensing Operations Team (MD-LOT) must be satisfied that there will be no adverse effect on the integrity of a European site before issuing any authorisation, including marine licences and section 36 consents.

When submitting an application for a project within, or with potential connectivity to a designated site, including European sites, you should provide enough information to inform the HRA. More information on HRA requirements can be found on the NatureScot website which you may find helpful in the preparation of your application.

The HRA process initially consists of three steps:

Step one

Is the plan or project directly connected with or necessary for site management for nature conservation? If the answer is no, then you will proceed to step two.

Step two

Is the plan or project likely to have a significant effect on the site? If the answer is yes proceed to step three.

Step three

Can it be ascertained that the plan or project will not adversely affect the integrity of the site? This step requires an Appropriate Assessment (AA) to be carried out.

MD-LOT will consult the relevant statutory nature conservation body on applications and they will advise us on the HRA process. This includes whether or not the plan or project has the potential to have a likely significant effect on any European sites.

If a likely significant effect is identified, MD-LOT must carry out an AA. MD-LOT must be satisfied that the project will not adversely affect the integrity of any European site before granting any authorisation. Consideration must be given to the project alone and in combination with other plans or projects.

If it cannot be ascertained that a project will not adversely affect the integrity of a European site then the derogations process can be followed to determine whether it can progress. A project must meet a further three tests:

Test one

There must be no satisfactory alternatives.

Test two

There must be imperative reasons of overriding public interest that the project goes ahead.

Test three

Necessary compensatory measures must be taken to ensure the overall coherence of the UK site network is protected.

Marine Directorate has produced a guidance note for prospective applicants for offshore wind projects and parties acting on their behalf (‘The Framework to Evaluate Ornithological Compensatory Measures for Offshore Wind’). It provides a process to be followed when considering the design and delivery of ornithological compensatory measures at the individual project level in accordance with the Habitats Regulations. The aim of the guidance is to increase consistency and minimise delay in decision making.

The 2021 framework is still current, however it does not reflect a final position as the Marine Directorate will be undertaking further work to produce updated guidance and advice for offshore derogations later this year. This further work will take into account the legislative reforms currently being progressed by the UK Government via the Energy Bill.

A copy of the framework and associated documents can be requested from MD-LOT. The associated documents that can be requested are:

• Scottish guidance on the principles underpinning the assessment of compensatory measures in relation to ecology, monitoring and socio-economics
• compensatory measure advice note: enhancing breeding success through the use of artificial nesting platforms’

Relevant publications

• NatureScot guidance on HRA
• NatureScot guidance on handling of mitigation following People Over Wind judgement
• Habitats Regulations Appraisal (HRA) - Environmental assessment - gov.scot (www.gov.scot)

Relevant legislation

• Conservation (Natural Habitats, & c.) Regulations 1994 (for projects within 0-12nm excluding section 36 consents)
• Conservation of Habitats and Species Regulations 2017 (for projects within 0-12nm applying for section 36 consents)
• Conservation of Offshore Marine Habitats and Species Regulations 2017 (for projects within 12-200nm)