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Habitats and Bird Directives: June 2000

Annex E, Appendix A: CONSIDERATION OF DEVELOPMENT PROPOSALS AFFECTING SPAs AND SACs¹

The planning authority must first establish: (1) whether the proposed development is directly connected with or necessary to site management for nature conservation; and (2) whether it is likely to have a significant effect on a European site either individually or in combination with other plans or projects. The authority should take account of advice from SNH. If initial consideration of these issues is inconclusive, an analysis in more depth will be needed to establish the effects of the proposed development of the site.

If the planning authority concludes that a proposed development unconnected with site management is likely significantly to affect a European site, it must then carry out an appropriate assessment of its implications in view of the site's conservation objectives (i.e. the reasons for which the site was classified), so as to ascertain whether or not it will adversely affect the integrity of the site. The advice of SNH (as required by Regulation 48(3)) and the citation issued by it saying why the site was classified will need to be carefully considered, since the implications for significant occurrences of all Natura interests on the site must be assessed. The integrity of a site is the coherence of its ecological structure and function, across its whole area, which enables it to sustain the habitat, complex of habitats and/or the levels of populations of the species for which it was classified. The scope and content of what constitutes an appropriate assessment will depend on the location, size and significance of the proposed project. SNH will advise on a case-by-case basis.

According to the nature conservation value of the site, SNH will identify whether particular aspects such as hydrology, disturbance or landtake should be specifically addressed. In the simplest terms, a general statement from SNH of the impact of the development may suffice. The assessment required under the Habitats Regulations is that which is necessary to determine the likely impact of a development proposal on the conservation interest(s) for which a European site has been classified. An assessment made under the Habitats Regulations does not exempt prospective developers from their obligations under the Environmental Impact Assessment (Scotland) Regulations 1999 and related legislation to undertake an Environmental Impact Assessment (EIA) for certain types of project. However, in cases where EIA is required in order to comply with those Regulations, it will be appropriate to use the information assembled for the purposes of the EIA also for the assessment required by the Habitats Regulations.

If the planning authority ascertains that the proposed development will adversely affect the integrity of the site, and this effect will not be removed by conditions attached to the planning permission, it must not grant planning permission except in the following closely defined circumstances. It must first be satisfied that there are no alternative solutions. It should consider whether there are or are likely to be suitable and available sites which are reasonable alternatives for the proposed development, or different, practicable approaches which would have a lesser impact. It should bear in mind the advice of SNH. In their own interests applicants should demonstrate that they have fully considered alternative solutions.

If there is no alternative solution, and the site does not host a priority natural habitat type or species defined in the Habitats Directive, planning permission must not be granted unless the proposed development has to be carried out for imperative reasons of overriding public interest, including those of a social or economic nature.

Such reasons would need to be sufficient to override the ecological importance of the classification.

If the site hosts a priority habitat or species, and there is no alternative solution, the only considerations which can justify the grant of planning permission are those which relate to human health, public safety, or beneficial consequences of primary importance to the environment (unless the European Commission is of the opinion that there are other imperative reasons of overriding public interest - any such consultation with the Commission must be carried out by the Scottish Executive).

This process is represented in Appendix B.

If planning permission is granted for a development which would adversely affect the integrity of a SPA or SAC, Regulation 53 requires the Scottish Ministers to secure that any necessary compensatory measures are taken to ensure that the overall coherence of the Community-wide network of SPAs and SACs know as Natura 2000 is protected (see paragraphs 27-28 of the main circular).

Except bryophytes in Annex II(b)

Excluding planning permissions deemed to be granted by virtue of Section 57 of the Town and Country Planning (Scotland) Act 1997 in respect of developments authorised under the Pipelines Act 1962 or for which consent has been given under the Electricity Act 1989. Such reviews will be carried out by Scottish Ministers (see Regulation 55(3)). The planning authority must identify any other permissions deemed to have been granted under Section 57 which they consider fall to be reviewed and refer the matter to the Scottish Executive. If the Executive agrees with the planning authority on this, it must review the permission accordingly (see Regulation 55(4)). See also paragraph 41 below regarding permissions granted by Development Orders and Simplified Planning Zone and Enterprise Zone schemes, which are also excluded from review (Regulation 55(2)) refers.

¹ See also paragraphs 14 and 30 regarding potential SPAs and SACs, and Ramsar sites.

2 Priority habitats and species are indicated by an asterisk in Annexes I and II of the Habitats Directive. The citation saying why the site was classified will show whether it hosts a priority habitat or species.

3 Regulation 52(4) requires a "competent authority", other than the Scottish Ministers, in determining whether to agree to a development on grounds of overriding public interest, to seek and have regard to the views of any other competent authorities involved.

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