2. The HRA Process

2.1. Legislative Context

  1. The EU Habitats Directive (92/43/EEC) on the conservation of natural habitats and of wild fauna and flora, protects habitats and species of European nature conservation importance. Together with Council Directive (2009/147/EC) on the conservation of wild birds (the ‘Birds Directive’), the Habitats Directive establishes a network of internationally important sites, designated for their ecological status. This network of designated sites is comprised of the following:
  • SACS, which are designated under the Habitats Directive and promote the protection of flora, fauna and habitats; and
  • SPAs, which are designated under the Birds Directive in order to protect rare, vulnerable and migratory birds.
  1. SACs are designated for the conservation of Annex I habitats (including priority habitat types which are in danger of disappearing) and Annex II species (including diadromous fish and marine mammals). SPAs are designated for the conservation of Annex I birds and other regularly occurring migratory birds and their habitats. The habitats and species that a European site is designated for are referred to as its ‘qualifying interest features’. The conservation objectives of a European site are set for each qualifying interest feature of each site.  and aim to ensure that a qualifying habitat or species is maintained or restored in a favourable conservation status (FCS) .
  2. As introduced in section 1.2, although the UK is no longer an EU Member State, the Habitats Directive as implemented by the Habitats Regulations continue to provide the legislative backdrop for HRA in the UK. The HRA process implemented under the Habitats Regulations continues to apply (subject to minor changes effected by the EU Exit Regulations) and the UK is currently bound by HRA judgments handed down by The Court of Justice of the European Union (CJEU) prior to 31 December 2020.
  3. In addition to sites formally defined as European sites in the Habitats Regulations, Scottish Planning Policy acknowledges that Ramsar sites are afforded the same protection where they are also designated as a European site (Scottish Government, 2020). The Scottish Government also states that authorities should afford the same level of protection to proposed SACs and SPAs (i.e. sites which have been approved by Scottish Ministers for formal consultation but which have not yet been designated) as they do to sites which have been designated (Scottish Government, 2020).
  4. Under the Habitats Regulations, before granting approval (i.e. planning permissions, licenses and consents) for a development that is likely to have a significant effect on a European site, an Appropriate Assessment must be made by the Competent Authority. This assesses the proposed plan or project’s potential for adverse effects on integrity of the site in view of that European site’s conservation objectives.

2.2. European Sites (Post EU Exit)

  1. The National Site Network  is comprised of European sites in the UK that already existed (i.e. were established under the Habitats or Birds Directives) on 31 December 2020 (or proposed to the European Commission before that date) and any new sites designated under the Habitats Regulations under an amended designation process.

2.3. The HRA Process

  1. The HRA process is generally recognised as a progressive, multi-stage process built around the wording of Articles 6(3) and 6(4) of the Habitats Directive, with the outcome at each stage defining the requirement for, and scope of the next. These stages are summarised in Figure 2.1   Open ▸ .
  2. Article 6(3) of the Habitats Directive requires that: “Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and if appropriate, after having obtained the opinion of the general public”.
  3. Therefore, Article 6(3) provides a two-stage process:
  • the first stage, which involves a screening for LSE2; and
  • the second stage arises where, having screened the Array, the relevant competent authority determines that an Appropriate Assessment is required, in which case it must then carry out that Appropriate Assessment ( Figure 2.1   Open ▸ ).
  1. This RIAA is concerned with the second stage of the process (i.e. the Appropriate Assessment), which seeks to assess and decide whether a plan or project, alone or in combination with other projects or plans, will have an adverse effect on the integrity of a European site. This RIAA also summarises the conclusions of the Array HRA Stage One LSE2 Screening Report (appendix 1A), and updates made to the screening conclusions, since this was published in March 2023, to account for feedback received from stakeholders during consultation.
  2. Article 6(4) is the third stage of the HRA process which provides for a derogation from the strict protection of European sites in certain circumstances. Where the RIAA has concluded that an adverse effect on the integrity of a European site cannot be excluded, the project will proceed to the third stage. The third stage derogation process comprises three tests which must be passed in sequence for consent to be granted  (see Figure 2.1   Open ▸ ):
  1. The documents prepared regarding Test 3 of the Derogation, i.e. the proposed compensation measures in relation to the Array are presented as part of the Derogation Case which includes:
  • Appendix 1: Ecological Evidence Report;
  • Appendix 2: Compensation Plan;
  • Appendix 2, Annex A: Compensation Stakeholder Consultation; and
  • Appendix 3: Compensation Implementation and Monitoring Plan.
  1. The EU-Exit Regulations establish management objectives for the National Site Network. These are called the network objectives. The objectives in relation to the National Site Network are to:
  • maintain or restore Annexed habitats and species listed in the Habitats Directive to FCS; and
  • contribute to ensuring the survival and reproduction of certain species of wild birds in their area of distribution and to maintaining their populations at levels which correspond to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements.

Figure 2.1:
Stages in the HRA Process (adapted from the European Commission (2021))

Figure 2.1: Stages in the HRA Process (adapted from the European Commission (2021))

 

2.4. Guidance

  1. Following the UK’s departure from the EU, reference to EC guidance on the interpretation of HRA concepts continues to apply. The EU Exit Habitats Regulations in Scotland state that in the longer term, guidance may be updated and/or new guidance may be produced, to replace guidance by the European Commission (Scottish Government, 2020). However, at the time of writing, existing guidance continues to apply and should still be used. Therefore, this RIAA is undertaken in accordance with the following guidance documents:
  • “Habitats Regulations Appraisal (HRA) of Local Development Plans (LDPs) - Guidance for planning authorities in Scotland” (NatureScot, 2023);
  • “European Site Casework Guidance: How to consider plans and projects affecting Special Areas of Conservation (SACs) and Special Protection Areas (SPAs)” (NatureScot, 2022);
  • “The Habitats Regulations Assessment Handbook” (Tyldesley et al., 2021);
  • “Assessment of plans and projects in relation to Natura 2000 sites - Methodological guidance on Article 6(3) and (4) of the Habitats Directive 92/43/EEC” (European Commission, 2021);
  • “Guidance document on wind energy developments and EU nature legislation” (European Commission, 2020);
  • “Guidance Note: The handling of mitigation in Habitats Regulations Appraisal – the People Over Wind CJEU judgement” (Scottish National Heritage (SNH, now NatureScot) (2019));
  • “Managing Natura 2000 sites. The provisions of Article 6 of the 'Habitats' Directive 92/43/EEC” (European Commission, 2018);
  • “Habitats Regulations Appraisal (HRA) on the Firth of Forth A Guide for developers and regulators” (SNH (2016));
  • “Marine Scotland Consenting and Licensing Guidance for Offshore Wind, Wave and Tidal Energy Applications” (Scottish Government, 2018);
  • “HRA Advice Sheet 1 (Version 1) - Aligning Development Planning procedures with Habitats Regulations Appraisal requirements” (Scottish Government, 2012);
  • “Guidance document on Article 6(4) of the 'Habitats Directive' 92/43/EE. Clarification on the Concepts of: Alternative Solutions, Imperative Reasons of Overriding Public Interest, Compensatory Measures, Overall Coherence, Opinion of the Commission” (European Commission, 2007); and
  • “Nature and Biodiversity Cases Ruling of the European Court of Justice” (European Commission, 2006).
  1. This RIAA has also been undertaken in accordance with the following publications that seek to explain the changes made to the Habitats Regulations from 1 January 2021:
  • “EU Exit: The Habitats Regulations in Scotland” (Scottish Government, 2020);
  • “Department for Environment, Food and Rural Affairs (Defra) Policy Paper - Changes to the Habitats Regulations 2017” (Defra, 2021); and
  • “Habitats Regulations Assessments: protecting a European site” (Defra et al., 2023)
  1. The Statutory Nature Conservation Bodies (SNCBs) have produced conservation advice for European sites under their statutory remit. This conservation advice provides information on sites and features and guidance on how to achieve FCS. Conservation advice is discussed further, where relevant, in Part 2 and Part 3 of the RIAA.