The Ministry of Housing, Communities and Local Government (MHCLG) has published updated Planning Practice Guidance on Appropriate Assessments to bring English law into line with EU law
Under the Habitats Directive (92/43/EEC), a competent authority must undertake an assessment of plans and projects that are likely to have a significant effect on a protected habitats site. As we have seen in an earlier post, the recent European Court of Justice (ECJ) decision in People Over Wind and another v Coillte Teoranta (Case C-323/17)changed the approach previously established by domestic case law, which had permitted mitigation measures to be taken into account at the screening stage (which is when the competent authority decides whether an appropriate assessment is needed).
The Guidance states that competent authorities may now only take account of mitigation measures intended to avoid or reduce the harmful effects of a plan or project as part of the appropriate assessment itself (and not during the earlier screening stage). When deciding whether measures should not be considered at the screening stage, the authority can consider whether they have been included primarily to mitigate the likely habitats-related effects on the site. If they have, this may suggest that an appropriate assessment is required.