Para. 119 of the NPPF.
119. The presumption in favour of sustainable development (paragraph 14) does not apply where development requiring appropriate assessment under the Birds or Habitats Directives is being considered, planned or determined.
I highlight planned as Para. 14 also covers plan making – are the requirement that plans meet objective needs.
The section was drafted against the background of English case law which stated that you didn’t need an AA if the screening found any negative impacts could be mitigated against through SANGS etc. You can find a summary on Simon in the City.
That is no longer the case – as the EJUE case of ‘People Over Wind’ we blogged on last week found that you can’t consider mitigation in determining whether an AA was needed.
The problem is that most local plans concerning large scale devlopment will effect Natura sites to some degree although that effect can be mitigated against. Good examples are Central Beds Local Plan and the combined plan for Norther Essex Garden Communities.
Hence the NPPF is out of date. it implies no presumption in favour of development and no requirement to meet objective needs for any development plan impacting Natura sites even if that impact is capable over being fully mitigated.
What the NPPF needs to say at the end is something like ‘…and where any harmful impact found in the appropriate assessment is not capable of being mitigated against in accordance with the relevant European directives (footnote)” or some such i’m not a lawyer.
In the mean time any imminent plan decisions (such as North Essex next week) need to be very carefully worded in terms of OAN. It would be wise to say something like (if teh letter was positive) ‘ There is no presumption in favour of development in this case as an appropriate assessment is required. However as the Aa has shown any negative impacts can be mitigated against it is possible here both to meet OAn and comply with the relevant European Habitate Directives’… etc. etc.