Under the Habitats Regulations in England and Wales, and separate Regulations in Scotland, the potential impact that a development could have on European designated sites (principally Special Protection Areas (SPAs), Special Areas of Conservation (SACs) and Ramsar sites) must be considered before planning permission can be granted.

This is achieved through a Habitats Regulations Assessment (HRA).

Competent Authorities, such as Local Planning Authorities (LPAs), will determine if a proposal (either alone or in combination with other plans or projects) would be likely to adversely affect the protected features of a designated site.

The process can have up to three stages, depending on the outcome of each stage: 

1. Screening – a check to see if a proposal, without mitigation, is likely to have a ‘significant’ effect on conservation objectives. Importantly, even small/modest effects can be classified as ‘significant’. If no significant effects are likely, then stages 2 and 3 are not required. 
2. Appropriate Assessment (AA) – if screening concludes there is a risk of significant effects, an AA is undertaken to assess what they are likely to be and identify mitigation measures to avoid or minimise them. Consultation with the relevant statutory nature conservation bodies (such as Natural England, Natural Resources Wales or NatureScot) must be undertaken. Taking account of mitigation, the AA will determine whether or not there are residual adverse effects on the integrity of the designated site. If residual adverse effects are ruled out, then the proposal can be approved. If not, then the Competent Authority should not grant consent, subject to whether a derogation applies. 
3. Derogation – where the AA identifies residual adverse effects, the applicant may request a derogation, which allows for exceptions that may be granted if three legal tests can be passed. The tests must be applied sequentially - if the proposal passes all three tests, it may be allowed. The legal tests are:

a. There are no feasible alternative solutions that would be less damaging or avoid damage;

b. There are Imperative Reasons of Overriding Public Interest; and

c. The necessary habitat compensation measures can be secured.

A multi-disciplinary approach is required to assess a proposal against these tests. The relevant Secretary of State has the final say where the Competent Authority intends to grant consent.  

Implications for developers

HRA is triggered at the planning application stage and will need to be passed before planning permission is granted. To avoid unnecessary delays, consideration should be given to the location of designated sites and screening undertaken at an early stage in the planning process. A precautionary approach is adopted at each stage of the process.

Developers/applicants usually provide the Competent Authority with information to inform the HRA in the form of a Shadow HRA Report. It is usual for a developer to appoint a specialist ecologist to undertake this work.  

HRA is a necessarily rigorous process to ensure that the overall integrity of a protected site is maintained. This is a complex process, but if started early in the project, delays and risks can be significantly reduced.

Further information

Contact Simon Fife

Savills Planning