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04/03/2014

Blog: How to navigate habitats regulations

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Man with a towel around his neck - Planning professionals know a cold towel is often needed to get their heads around navigating the habitats restrictions
Planning professionals know a cold towel is often needed to get their heads around navigating the habitats regulations. 
 
But that cold towel needs more iced water owing to the lack of a guide to the defining characteristics of a mitigation or remedial measure, as opposed to a compensation or offset measure, when submitted as part of an application for a European protected habitats site.
 
A High Court case in 2013, Champion v North Norfolk District Council, gives a useful summary of the line of cases that now clearly confirm that mitigation or remedial measures can be taken into account in deciding whether an appropriate assessment is needed for a development affecting a European protected site. It has long been established that they can be taken into account as part of an appropriate assessment. 
 
Compensation measures can only be taken into account if the integrity of the site is adversely affected, and only then if there are imperative reasons of overriding public interest (IROPI). Offset measures are regarded as equivalent to compensation measures in the pilots forming part of the government’s consideration of a potential biodiversity offsetting system. 
 

"There are questions about whether an ecological enhancement measure is properly a mitigation or remedial measure"

 
So the distinction between mitigation or remedial measure and a compensation or offset measure is of great importance in navigating the habitats regulations and in any biodiversity offsetting system. Yet there is little substantive guidance on the defining characteristics of such measures.
 
European Commission Guidance (January 2007) says mitigation measures are integral to the specifications of a project, whereas compensation measures are “independent of the project (including any associated mitigation measures)”.
 
Case law does not define a remedial measure but the natural meaning of remedial measures is a means of “counteracting anything undesirable”. Lack of guidance means that there are questions about whether an ecological enhancement measure is properly a mitigation or remedial measure.
 
Take an example where a small area of a Special Area of Conservation, which is designated because of a protected species of flora on the site, is being harmed by the development.
 
If the developer provides within the same application site a new equivalent or larger area of the same species, and that measure reduces the harm to the Special Area of Conservation, shouldn’t such a measure be regarded as a mitigation or remedial measure?
 
More guidance on this would be helpful. 
 
Richard Ford is a partner and head of planning and environment at Pinsent Masons
 

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