Jen Hawkins and George Hobson, from LexisPSL, describe a High Court ruling that a planning condition can rule out the need for a Habitats Directive assessment
Under the Conservation of Habitats and Species Regulations 2010, which transpose the Habitats Directive (92/43/EEC) in England and Wales, a project that could have an adverse effect on a special area of conservation (SAC) must carry out an appropriate assessment of the implications for the site’s conservation objectives.
In Feeney v Secretary of state for transport [2013] All ER (D), the secretary of state made an order under the Transport and Works Act 1992, permitting works to be carried out on an existing railway and for a new length of track to be constructed.
The railway ran close to an SAC, which included a hay meadow habitat considered a site of special scientific interest (SSSI).
At inquiry, Natural England argued that further survey work was required to satisfy the requirements of the 2010 Regulations and the Habitats Directive.
A condition was included in the planning consent stating that, before a particular part of the development could start, further assessment of air quality on the relevant parts of the SAC had to be approved.
As a result, any deposition of nitrogen oxide on the SAC would be monitored, and, if necessary, mitigation measures implemented. The purpose of this condition was to assess, and then eliminate, any lingering uncertainty over whether the development would harm the conservation area, though that outcome was considered unlikely.
The uncertainty in the predictive data could not have been eliminated by an assessment before the railway came into operation, said the court, dismissing the application to overturn the granting of consent.
