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Annex 2: Letter of 7 April 2006 from the Chief Planner
Structure plans and local plans currently being prepared: The implications of the ecj ruling on the habitats directive
In his letter of 6 December 2005 John O'Brien informed you of the ECJ Ruling relating to the appropriate assessment of development plans and the possibility of changes to the Conservation (Natural Habitats, &c.) Regulations 1994.
In light of John's letter I expect planning authorities will have been seeking their own legal advice on the implications of this ruling for their development plans. While it is a matter for planning authorities to consider what steps they should take, I am writing concerning plans which are currently in preparation and what Scottish Ministers will be expecting to happen for plans that will be submitted to them under the provisions of the Town and Country Planning (Scotland) Act 1997. I am also writing to let you know what action the Scottish Executive is taking to see what practical assistance it can give to planning authorities in implementing this ruling.
As regards structure and local plans currently in preparation, the Scottish Ministers will not be able to approve structure plans (including alterations) or allow planning authorities to adopt local plans (including alterations) unless:
1) there has been a determination by the planning authority based on objective information that there is no potential or risk that the provisions of the plan would impact on a European Site: or
2) an appropriate assessment has been carried out in respect of the provisions of the plan in line with the requirements of Article 6 of the Habitats Directive.
The responsibility for carrying out these assessments rests with planning authorities. In undertaking assessments, you will wish to consider what level of assessment is "appropriate" for your structure or local plan. Planning authorities will need to consider what action they need to take and when, including the need for further consultation The advice below should be helpful in this regard. Any plans submitted to the Scottish Ministers where it is not clear that step one and, if necessary, step two have been undertaken will normally be sent back to the planning authority. However, where a plan is submitted to Scottish Ministers after authorities receive this letter and no such assessment has been undertaken, the Scottish Ministers will not make a decision on the plan until the planning authority provides a view that a plan is not likely to have a significant effect on Natura Sites in the plan area or provides them with an appropriate assessment.
Action
It is therefore advisable for you to consider every plan as a candidate for appropriate assessment, determine whether one is required and if so carry it out either before it is submitted to the Executive or provide a written view after it has been submitted. For plans which are currently before the Executive we are also advising each authority separately, based on the level of consideration already given to natural heritage interests. If you have or will be undertaking a Strategic Environmental Assessment it should provide a good source of information and evaluation for the appropriate assessment but the separate statutory requirements for each assessment have to be satisfied. We are working with Scottish Natural Heritage on this matter and planning authorities should seek their advice as appropriate.
Sources of Advice
There is some useful advice and guidance available to understand the issues and the requirements of Article 6 of the Habitats Directive. This advice, which has been published by the European Commission, is entitled Managing Natura 2000 Sites: The Provisions of Article 6 of the Habitats Directive 92/43/ EEC. It can be found at: http://ec.europa.eu/comm/environment/nature/nature_conservation/eu_nature_legislation/specific_articles/art6/pdf/art6_en.pdf . The Scottish Executive is preparing interim guidance and this will be issued shortly.
Workshop
In order to understand better the main issues and the implications for practice and advice to planning authorities, we intend to arrange a workshop as soon as possible. As well as representatives from planning departments we also think it would be useful to involve local authority legal advisers, SNH and SEPA.
I hope this is helpful in demonstrating how we are taking forward what is a complex issue.
I am copying this letter to SNH for information.
Yours sincerely
James G Mackinnon
Chief Planner
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