PRINCIPLES
FOR GOOD PRACTICE APPROPRIATE ASSESSMENT OF PLANS UNDER ARTICLE 6(3) HABITATS
DIRECTIVE: DRAFT
International Workshop on Assessment of Plans
under the Habitats Directive
These draft
principles for good practice appropriate assessment of plans under Article 6(3)
of the Habitats Directive (subsequently described as Habitats Directive
Assessment, or HDA) were devised at a two-day workshop attended by 35 experts
from 14 European Member Stages. For more
information, please see www.levett-therivel.co.uk/IW.htm. Please send any comments to Jo.Hughes@scottwilson.com,
orlando@treweek.co.uk or riki@levett-therivel.co.uk before
A Ensuring
that HDA effectively influences the plan
1. The HDA should go beyond basic legal/procedural
compliance to focus on the aims of the EC Habitats Directive. The primary aim of the Habitats Directive is
to promote the maintenance of biodiversity by requiring Member States to take
measures to maintain or restore natural habitats and wild species at a
favourable conservation status, introducing robust protection for those
habitats and species of European importance.
2. HDA should be carried out by
assessors with a strong understanding of ecological integrity and ecosystem
functions. The use of a system of
qualified assessors, as applied in the
3. The HDA should be started early: HDA should not be an ‘audit’ at the end of
plan development.
4. Collaborative working is very
important to the effectiveness and efficiency of HDA: close working between the assessment team and
those developing the plan is important in ensuring that the findings of the HDA
are well integrated in to the plan. Workshops
involving all stakeholders can help to ensure both a high level of
understanding of N2K site sensitivities and a comprehensive analysis of ‘in
combination’ impacts on them.
5. There should be an independent formal
review of both the quality of the HDA process and the HDA report, including a
formal ‘sign off’ of both the assessment process and its findings.
6. There should also be a higher level
adjudication, including a formal check that the findings of the HDA have
influenced the plan effectively. To
assist in this process, a clearly documented audit trail should be prepared of
the changes that have been made to the plan as a consequence of the
recommendations of the HDA process.
B Site
integrity, the N2K network and data provision
1. Site integrity is well defined by UK
and EC guidance; it is the “coherence of the site’s ecological structure and
function, across its whole area, or the habitats, complex of habitats and/or
populations of species for which the site is or will be classified”; and an adverse
effect on integrity is thus one which prevents the site from making the same
contribution to favourable conservation status for the relevant feature as it
did at the time of its designation.
2. The wider N2K network comprises more
than just a collection of individual N2K sites.
The coherence of the network should be considered more fully in HAD in
cases where there are potential impacts at this level.
3. Adequate, good quality and trustworthy
data are required for each N2K site. These
should include comprehensive and consistent conservation objectives for each
target habitat or species at each site. Currently,
efficient HDA is hampered in many Member States by the absence of much of this
information.
4. Where N2K sites overlie pre-existing
national or regional designated sites, the HDA process should focus on the target
(or qualifying) features of the N2K site.
5. Additional emphasis should be placed
on species or habitats for which a particular region or country has a
disproportionate responsibility [not
universally agreed – comments welcomed].
6. In order to facilitate the continuous
evolution of coherent best practice, a single European database should be kept
of screening reports, assessment reports, relevant information on mitigation
etc.
C Dealing
with uncertainty
1. HDA of plans essentially identifies
the degree of risk to N2K sites. In
cases of risk or uncertainty, the precautionary principle should be used: impacts should be assumed to occur
until/unless it can be shown that they will not occur.
2. Where there is uncertainty at the
screening stage, appropriate assessment (AA) should be carried out.
3. At the screening (or scoping) stage,
agreement should be reached on the methodology, references etc. to be used at
the AA stage, and what will constitute ‘enough certainty’ at that stage. The agreement should be between the assessor,
the plan proponent and the relevant regulatory authorities.
4. The use of approved assessors helps
to avoid uncertainty due to bias.
5. Where there is uncertainty about the
impacts of development, monitoring data from the implementation of other plans,
other scientific evidence (possibly primary research) and other forms of
cross-authority information exchange should be sought.
6. Where there is uncertainty at the AA
stage due to lack of data about N2K sites and their target (or qualifying)
species/habitats, additional data often need to be collected in order to remove
or reduce the degree of uncertainty. The
extent to which potentially time-consuming and costly research should be
undertaken in association with HDA of plans, and who should pay for this, remain
unresolved issues in most Member States: some believe the plan proponent should
pay whilst others believe that the necessary research should be undertaken by
the government agency responsible for the N2K network.
7. The ‘uncertainty test’ needs an
element of reasonableness. In some
Member States, it is informally recognised that HDA of plans should proceed on
the best scientific information available as the planning system does not allow
for time-consuming and costly applied ecological research. However the short turn-around period for
various HDA stages specified in some Member States is not always consistent
with legally compliant HDA processes.
8. Where there is uncertainty at the AA
stage due to lack of detail about projects/proposals in plans, which is often
the case with strategic plans, it may be appropriate to devolve some AA
decisions to lower tiers of decision-making.
Where issues are devolved to lower tiers of decision-making, it is
crucial at each level to ask: does the plan have the potential to be
implemented without impacts on N2K sites, i.e. could potential impacts be
avoided or mitigated? If the answer is
‘no’ then the plan must be amended to avoid such a conclusion[1].
9. The plan wording should reflect the
level of uncertainty in the HDA; where there is more uncertainty in the HDA and
where issues have been devolved to lower tiers of decision-making, the plan
should be flexible in relation to these proposed developments or activities: there should, for example, be a commitment to
re-consider the quantum of any development that could potentially have impacts
on N2K sites.
10. Resilient habitats and species may
be able to ‘afford’ more uncertainty than those that are not resilient.
D Screening
1. Member States define the screening process differently. Some screen the plan overall and some include a secondary level of screening (i.e. they screen individual elements of the plan and individual N2K sites). The former approach is favoured: screening should be a short answer to the question ‘Is the plan likely to have a significant effect on the integrity of any N2K sites, either on its own or in combination with other plans?’
2. If the screening process becomes complicated, then assume AA is required!
3. For those Member States where the screening stage is considered to include secondary screening or scoping, many contributors suggested that separation of the screening process and the subsequent appropriate assessment process was frequently blurred and was probably important more in terms of presentation than process. In such cases, avoidance of impacts may be considered at the screening stage, but not mitigation.
4. All sites for which there is a
pathway of impact should be considered in the screening process.
5. Screening should always consider the
wider N2K network.
6. As plans can change dramatically through development, screening should be re-visited throughout the plan development if the original finding was that there were no likely significant effects.
7. Some Member States use broad zones both within and outside N2K sites to assist in the screening process. The use of zoning in screening is generally considered to be inappropriate if the zones (or buffers) are not related to site integrity and substantiated by scientific research.
8. Where plans are ‘screened out’ of HDA, there should be a formal statement setting out a reasoned justification for the decision.
E In-combination
1. The in-combination assessment should
consider cumulative effects on N2K sites caused by underlying influences and environmental
pressures, whether caused by mankind or natural processes; and all plans and
projects that have been consented, along with any major applications that are
pending.
2. Focusing on the sensitivity of a N2K
site to particular impacts will help identify the potential in-combination
effects that can arise from different sectors. Engagement with stakeholders can
also help to identify the effects correctly.
3. Other HDAs that have been undertaken
in the locality should be referred to when assessing in-combination effects.
Centralised collection of screening reports and appropriate assessments would
assist in this task.
4. In-combination effects must be
considered even if – and perhaps especially
if - the plan itself is considered unlikely to have a significant effect [comments are particularly welcomed on this].
F Mitigation
1. Particularly with more strategic
plans, the aim should always be to avoid
impacts on N2K sites, rather than to mitigate
impacts.
2. Any essential mitigation measures need
to be mandatory and binding.
3.
Mitigation needs to be practical and
deliverable. Long-term funding and management may be required. The
AA must be confident that the mitigation measures will be effective and
enforceable.
4. The plan may include policies on the
protection of N2K sites, but these policies alone should not be assumed to
protect the sites.
5. Mitigation measures should have a level of precision that matches that of the plan.
6.
Where a given N2K site may be affected by
impacts from multiple plans and projects, all at different plan-making stages
and with the potential for drip-feed in-combination impacts, consistent
‘mitigation rules’ oriented around the integrity of the N2K site could be
sought, rather than separate measures that aim to mitigate for the impacts of
individual development proposals (plans, projects or both). This usually requires mitigation to be
delivered by authorities working together. [comments
are particularly welcomed on this].
7. The plan should include a statement
noting that any project in the plan must still go through HDA (i.e. that inclusion
of a project in a plan is not carte
blanche to go forward with that project), and that the project must adhere
with the finding of its HDA.
8. Post-adoption monitoring and
enforcement of mitigation measures should be carried out.
G Relationship
between SEA and HDA
1. HDA and SEA can be combined
procedures as long as their uniqueness is maintained (e.g. AA may be a separate
chapter within the SEA report). Member
States vary in their level of integration between SEA and HDA. Full integration in reporting potentially
downgrades the effectiveness of the HDA recommendations because they are of
greater legal significance than those of the SEA.
2. The post-adoption SEA statement
should incorporate an HDA statement.
3. As SEA requires consideration of
effects of the plan on N2K sites, there should be consistency between SEA and HAD,
and HDA should inform SEA especially with respect to environmental limits.
4. Monitoring proposals for the HDA
should be included the SEA monitoring strategy.
5. There needs to be more clarity in
the assessment of ‘alternatives’ to the plan in SEA and HDA. For HDA there is no requirement to consider
alternatives during the assessment, except where a) such alternatives provide
means to avoid or mitigate identified impacts and b) the HDA identifies adverse
impacts that cannot be avoided or mitigated and so a move towards application
of Article 6(4) is being considered.
6. The focus of both assessments must
be changes to the plan, rather than simple compliance with the process required
by the relevant Directives.
Generally,
more guidance specifically on HDA of plans and programmes is required. This is because the HDA of plans/programmes
needs to be distinguished from both the HDA of projects and the SEA of
plans/programmes. Such guidance
should address issues where there is confusion and inconsistency, such as what
should be included in the screening stage of the assessment, appropriate
mitigation, relationship with SEA etc.
[1]
This is based on the
assumption that strategic land-use plans would never pass the ‘no alternatives’
test and so Article 6(4) and the IROPI test would never apply.