Habitats regulations HRGN 3 guidance note

1 HRGN No. 3 English Nature November 19991 The Determination of Likely Significant Effect underThe Conservation (Natural Habitats &c) regulations 19941. in applying the requirements of theHabitats Directive, and in interpreting theConservation (Natural Habitats &c) Regulations1994, is important for all the country agencies intheir casework on international sites. One of the key procedures is under regulations 48-53, theconsideration of plans and projects affecting theNatura 2000 series. If a plan or project is notconnected with or necessary for the management ofthe site and is likely to have a significant effect,the competent authority is required to carry out anappropriate assessment to determine whether it willhave an adverse effect on site note provides guidance to staff on how todecide whether or not a plan or project is likely tohave a significant effect.

2 It applies also to the otherparts of the Conservation regulations where thesame test is used ( regulations 20, 24 & 60). the courts can provide authoritativeinterpretation of the regulations , but these noteshave been developed in the light of practicalexperience and a close examination of theRegulations, the Habitats Directive and centralgovernment guidance , particularly PPG The purposes of the test of significance test acts as a coarse filter for allproposed plans and projects which are not directlyconnected with or necessary to the management ofthe site (whether or not the effect is likely to beadverse or beneficial)

3 So directing attention to thosewhich require further assessment. The importanceof the international conservation interest of the siteshould be at the forefront of attached flow chart provides a step by stepapproach to recording a decision on likely significanteffect in all cases. It includes provision for a fullerconsideration to justify the decision in cases wherethe qualifying feature is directly or indirectly affectedbut the effect is not considered likely to be significantand therefore there is no need for an of principles in judging significant effect The test of significant effect ( significance test )must be made by the competent authority , butexchange of advice between the competent authorityand the country agency is strongly encouraged.

4 The significance test is a coarse filter intended toidentify which proposed plans and projects requirefurther assessment. It is the first stage of theprocess, and is distinct from the appropriateassessment of adverse effect on integrity thatfollows (see section 1). Consideration of likely significant effect will havepractical and legal consequences and must be basedon sound judgement and bear scientific or expertscrutiny (section 2). Judgements of likely significant effect should bemade in relation to the features for which theEuropean site was designated and their conservationobjectives - (Regs 20, 33 and 48); judgements shouldbe made on a case-by-case basis (section 3).

5 Proposals having no, or de minimis, effects can beprogressed without further consideration under theHabitats regulations although reasons for reachingthis decision must be justified and recorded (section4). Some cases require more systematic evaluation ofrisk, but if a clear judgement cannot be made on thebasis of available information, then an appropriateassessment will be required (section 5). In all cases, the reasons for reaching the judgementmust be recorded by the competent authority and bythe country agency when advice is given (section 6). country agencies must clearly distinguish theiradvice on likely significant effect, from that given on theeffects on site integrity which competent authorities are 3 HRGNH abitats regulationsguidance noteHRGN No.

6 3 English Nature November 19992required to obtain during an appropriate assessment(Reg. 48(3)). The separate stages in this processare explained in other guidance such as PPG9,Circular 6/1995 (Scotland) and TAN5 (Wales). However, as explained in the flow chart (Annex A),there may be circumstances where a fuller, more indepth level of consideration may be needed in orderto determine whether significant effects are Implications of the test of judgements about significance need to be fullydocumented and dealt with in a systematic mannerby all competent authorities including conservationagencies. A judgement that a plan or project is likelyto have a significant effect can have financialimplications for developers.

7 For example it bringsdevelopment which is otherwise permitted under theTown and Country Planning (General PermittedDevelopment) Order 1995 (in England and Wales)and Town and Country Planning (General PermittedDevelopment) (Scotland) Order, 1992 (in Scotland),under the scrutiny of the local planning authority. Conversely, the opinion (under Regulation 61(3)ofthe Habitats regulations ) of the country agenciesthat a permitted development is not likely to have asignificant effect is conclusive and cannot beamended. Agencies will be held accountable for theadvice given and will need to be able to justifydecisions both for and against a significant effect.

8 Judgements of likely significant effect significant effect is, in this context, any effectthat may reasonably be predicted as a consequenceof a plan or project that may affect the conservationobjectives of the features for which the site wasdesignated, but excluding trivial or likely scale of impact is important. In somecases the decision that no significant effect is likelywill be obvious. Very short lived impacts wouldgenerally require only minimal further considerationunder such conditions, provided there were nopersistent, cumulative effects from repeated orsimultaneous impacts of the same nature.

9 Even herethere will be exceptions, however. For examplevery brief disturbance to a seabird colony may havea lasting effect on the population (as determined bycareful monitoring), even though activity mayappear (through casual observation at the time) toreturn rapidly to the other extreme, some cases will very clearly belikely to have a significant effect. Any proposalwhich would require an environmental assessmentunder the Environmental Assessment Directive(85/337/EEC) (as amended) on account of itseffects, among others, on a European site, can bejudged as being likely to have a significant effect,although reasons for this must still be recorded.

10 Thiswill then require an appropriate assessment underthe Habitats regulations , which may be addressed bythe competent authority alongside or as part of thewider environmental some cases the judgement about a likely significanteffect will be less clear cut and it will be necessary tolook particularly at the nature of the effect and itstiming, duration and reversibility, taking into accountany readily available information on the site, andespecially its conservation reductions in habitat area or speciespopulations are likely to be significant unless they arevery small scale. In the case of certain sites a lossof, say, a few square metres of the site area may notbe considered significant (for example, there may becircumstances when this might apply in the case ofestuarine SPAs which are selected for their birdinterest), in others, such as limestone pavement, anyfurther loss of the area of qualifying interest may beunacceptable.