Habitats Regulations Assessments can often seem like a minefield for developers, public utilities and local authorities. Chris Walsh, Principal Consultant, Middlemarch, explains why they have such a strong position within the UK planning system.
Habitats Regulations Assessments can be the fastest ‘kill switch’ for a planning application in this country.
If a development does not pass a Habitats Regulations Assessment when it is required, then the development cannot take place, even if it’s a piece of national infrastructure like a new motorway.
But what are Habitats Regulations Assessments, and why do they have such a strong position within the UK planning system?
Protecting nature through Habitats Regulations Assessments
Around 900 sites in England, Scotland and Wales make up part of an international network of ‘European sites’. This means they’re internationally significant locations for habitat and species, and receive special protection from the Conservation of Habitats and Species Regulations 2017, known as the ‘Habitats Regulations’. This is UK legislation, not European, and we have seen this legislation be further strengthened since Brexit. We are now considering how development and land-use changes affect these sites more frequently and considering a greater range of possible impacts than ever before.
Under these regulations, it is illegal to cause harm to a European site.
The only way that you can legally harm a European site (even temporarily) is if you have previously received special permission from the Secretary of State in the UK Government, which shows that they have decided to make a special exception and ‘eased the laws’ in this specific instance, which is referred to as derogation. However, to get this permission you have to overcome a very high bar, displaying that there are no other options (no matter how expensive), that there is an overriding public interest in the project going ahead and that any harm will be fully compensated for. Therefore, it’s very rare to be granted a derogation.
The legal responsibility for carrying out a Habitats Regulations Assessment falls to what’s called the ‘Competent Authority’ – often a local or county council for a particular location – which ultimately must decide if a plan or project proposal could cause a significant impact to one or more European sites, and if this impact can be fully avoided or mitigated so it can go ahead.
Middlemarch typically gets involved when the duty falls upon our client to provide the information the authority needs to make that decision, starting from the assumption that the work will have an adverse impact on a European site unless it can be proven otherwise.
Direct or indirect impact
To further complicate things, the impact can be direct and obvious, for example if someone wants to build on a European site or dig it up, but it can also be indirect and therefore less obvious.
For example, one of Middlemarch’s specialisms when handling Habitats Regulations Assessments is identifying the potential impact of air pollution caused by a proposed development near a European site, perhaps resulting from extra vehicle movements in the vicinity.
Or imagine a scenario where you want to extract water from an underground source for a new house in a rural area, but there’s an internationally-significant wetland nearby that’s sustained by an underwater aquifer. As part of a Habitats Regulations Assessment, you would have to demonstrate that your water extraction scheme would not change the level of water feeding the wetland.
In addition, a European site may be many kilometres away from the location you want to develop or cover a large area, for example when a nearby river eventually feeds into a marine habitat on the coast. In one notable case, we worked on a Habitats Regulations Assessment for a proposal that was 78 kilometres away from a European site.
The Habitat Regulations also make it a legal requirement to determine if there are any in-combination impacts. This means even a very small development (for example, one new home) many kilometres away from a European site may be illegal as its considered part of a wider scheme in combination with hundreds or thousands of other new homes that are also being built in areas surrounding the European site.
Supporting your Habitats Regulations Assessment
Middlemarch has helped a number of clients to navigate the minefield of Habitats Regulations Assessments.
We work with them on proposals where we can confidently demonstrate that a development will do no harm to a European site, or that we can successfully mitigate any impacts.
These clients are typically developers with a potential scheme near to a European site, public utilities such as water companies or local and county councils planning a big infrastructure project like a bypass, new flood defences or preparing their Local Plans for examination.
As the UK’s largest natural environment consultancy owned by a Wildlife Trust, Middlemarch is in a unique position to balance the needs of nature with the understandable benefits that development can bring to the local and national economy.
Pragmatic approach
When it comes to Habitats Regulations Assessments, we pride ourselves on adopting a pragmatic approach to meeting our clients’ needs, while adhering to the Wildlife Trusts’ ethical and moral charter.
This means we do not support proposals that we know will harm wildlife, protected species or habitats. But we do support proposals where we believe there’s a significant net gain and benefit that can be achieved through sustainable development.
From a single source of supply, we can provide Habitats Regulations Assessments covering a range of direct and indirect impacts on European sites with marine, aquatic, terrestrial, species-driven or habitat-driven significance.
In the past few years, we’ve supported around 100 Habitats Regulations Assessments, handling discussions with the Competent Authority, appearing at public consultations, successfully defending our work at public inquiries, and putting forward solutions that would mitigate any concerns.
I’m proud to say that all but one of these Habitats Regulations Assessments has been brought to a positive conclusion, both for nature and for our client.
Find out more
- Email us for an initial conversation about your Habitats Regulations Assessment and how we can help at hello@middlemarch.eco.
- Click here to find out more about Habitats Regulations Assessments.
