New Legislation – relating to the conservation of habitats and species (28/12/2018) …

The following 1 new Statutory Instrument (SI) comes into force on 28/12/2018:

New Legislation:

  • December 2018: SI 2018 No. 1307 - The Conservation of Habitats and Species and Planning (Various Amendments) (England and Wales) Regulations 2018 (pdf) (link).


  • The above SI 2018 No. 1307 includes amendments to the following SIs:
    - Brownfield Land Register Regulations 2017.
    - Neighbourhood Planning (General) Regulations 2012.
    - Permission in Principle Order 2017.
  • The "Explanatory Memorandum" (link) to the above SI includes the following information:
    - "When the Habitats Directive was transposed into national law (primarily through the Conservation (Natural Habitats, &c.) Regulations 1994 which were subsequently consolidated with various amending instruments and modified in the Conservation of Habitats and Species Regulations 2010, and then again in the 2017 Regulations) a number of provisions were drafted on the basis that it would be permissible, when screening a plan or project, to take into account any measures built into the plan or project to avoid or remove likely significant effects (‘mitigation measures’). That approach was supported by a settled interpretation of the Habitats Directive in domestic law which allowed for mitigation measures to be taken account of at the screening stage (see, R (on the Application of Hart District Council) v Secretary of State for Communities and Local Government [2008] EWHC 1204 (Admin)).".
    - "Part 6 of the 2017 Regulations set out the general rules for the assessment of relevant plans and projects. Within that part, provisions were made in Chapter 2 in relation to certain ‘planning tools’ (special development orders, local development orders, neighbourhood development orders, simplified planning zones, enterprise zones and cycle tracks) stating that planning permission may not be granted (or deemed to be granted) for development which is likely to have a significant effect on a European site. Similar provisions were made in other secondary legislation for neighbourhood development plans, applications for permission in principle and inclusion on Part 2 of the brownfield land register.".
    - "European case law has superseded domestic case law, with the effect of restricting use of these planning tools, even where suitable mitigation strategies are available to avoid adverse effects on European sites. In April 2018 the Court of Justice of the European Union clarified in case C-323/17 People Over Wind & Sweetman v Coillte Teoranta that it is not appropriate at the screening stage to take account of mitigation measures. The judgment reserves consideration of mitigation measures for the appropriate assessment stage. The judgment has led to uncertainty among stakeholders as to how the 2017 Regulations should be applied. It is therefore considered necessary to amend these Regulations and other affected secondary legislation to ensure that the planning tools are available in accordance with their original policy intent and consideration can be given to mitigation measures when considering whether to grant consent.".

Other Sources of Information:

  • December 2018: Explanatory Memorandum to SI 2018 No. 1307 (pdf) (link).

Updates to the Planning Jungle website: