The Conservation of Habitats and Species Regulations 2017

CHAPTER 8 U.K. Land Use Plans

Land use plans U.K.

Assessment of implications for European sites and European offshore marine sites U.K.

105.—(1) Where a land use plan—

(a) is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects), and

(b) is not directly connected with or necessary to the management of the site,

the plan-making authority for that plan must, before the plan is given effect, make an appropriate assessment of the implications for the site in view of that site's conservation objectives.

(2) The plan-making authority must for the purposes of the assessment consult the appropriate nature conservation body and have regard to any representations made by that body within such reasonable time as the authority specifies.

(3) The plan-making authority must also, if it considers it appropriate, take the opinion of the general public, and if it does so, it must take such steps for that purpose as it considers appropriate.

(4) In the light of the conclusions of the assessment, and subject to regulation 107, the plan-making authority must give effect to the land use plan only after having ascertained that it will not adversely affect the integrity of the European site or the European offshore marine site (as the case may be).

(5) A plan-making authority must provide such information as the appropriate authority may reasonably require for the purposes of the discharge by the appropriate authority of its obligations under this Chapter.

(6) This regulation does not apply in relation to a site which is—

(a) a European site by reason of regulation 8(1)(c), or

(b) a European offshore marine site by reason of regulation 18(c) of the Offshore Marine Conservation Regulations (site protected in accordance with Article 5(4) of the Habitats Directive).

[F1 (7) See regulation 110A for the assumptions about nutrient pollution standards to be made in certain circumstances.]

Textual Amendments

F1 Reg. 105(7) inserted (26.12.2023) by Levelling-up and Regeneration Act 2023 (c. 55), s. 255(6), Sch. 15 para. 13 (with s. 247)

Assessment of implications for European site: neighbourhood development plans E+W

106.—(1) A qualifying body which submits a proposal for a neighbourhood development plan must provide such information as the competent authority may reasonably require for the purposes of the assessment under regulation 105 or to enable it to determine whether that assessment is required.

(2) In this regulation, “qualifying body” means a parish council, or an organisation or body designated as a neighbourhood forum, authorised for the purposes of a neighbourhood development plan to act in relation to a neighbourhood area as a result of section 61F of the TCPA 1990 (authorisation to act in relation to neighbourhood areas) M1 , as applied by section 38C of the 2004 Planning Act (supplementary provisions) M2 .

(3) Where the competent authority decides to revoke or modify a neighbourhood development plan after it has been made, it must for that purpose make an appropriate assessment of the implications for any European site likely to be significantly affected in view of that site's conservation objectives; and regulation 105 and paragraph (1) apply with the appropriate modifications in relation to such a revocation or modification.

[F2 (3A) See regulation 110A for the assumptions about nutrient pollution standards to be made in certain circumstances.]

(4) This regulation applies in relation to England only.

Textual Amendments

F2 Reg. 106(3A) inserted (26.12.2023) by Levelling-up and Regeneration Act 2023 (c. 55), s. 255(6), Sch. 15 para. 14 (with s. 247)

Marginal Citations

M1 Section 61F was inserted by the Localism Act 2011 (c. 20), Schedule 9, paragraphs 1 and 2. It is prospectively amended by the Neighbourhood Planning Act 2017 (c. 20), section 5, from a date to be appointed.

M2 Section 38C was inserted the Localism Act 2011 (c. 20), Schedule 9, paragraphs 5 and 7.

Considerations of overriding public interest U.K.

107.—(1) If the plan-making authority is satisfied that, there being no alternative solutions, the land use plan must be given effect for imperative reasons of overriding public interest (which, subject to paragraph (2), may be of a social or economic nature), it may give effect to the land use plan notwithstanding a negative assessment of the implications for the European site or the European offshore marine site (as the case may be).

(2) Where the site concerned hosts a priority natural habitat type or a priority species, the reasons referred to in paragraph (1) must be either—

(a) reasons relating to human health, public safety or beneficial consequences of primary importance to the environment; or

(b) any other reasons which the plan-making authority, having due regard to the opinion of the [F3 appropriate authority], considers to be imperative reasons of overriding public interest.

(3) Where a plan-making authority other than the Secretary of State or the Welsh Ministers desire to obtain the opinion of the [F4 appropriate authority] as to whether reasons are to be considered imperative reasons of overriding public interest, it may submit a written request to the appropriate authority—

(a) identifying the matter on which an opinion is sought; and

(b) accompanied by any documents or information which may be required.

[F5 (4) In giving its opinion as to whether the reasons are imperative reasons of overriding public interest, the appropriate authority must have regard to the national interest, and provide its opinion to the competent authority.]

[F6 (4A) Before giving its opinion as to whether the reasons are imperative reasons of overriding public interest, the appropriate authority must consult the following, and have regard to their opinion—

(a) the Joint Nature Conservation Committee;

(b) where the appropriate authority is the Secretary of State, the devolved administrations;

(c) where the appropriate authority is the Welsh Ministers, the Secretary of State and the other devolved administrations; and

(d) any other person the appropriate authority considers appropriate.]

(5) Where a plan-making authority other than the Secretary of State or the Welsh Ministers propose to give effect to a land use plan under this regulation notwithstanding a negative assessment of the implications for the site concerned it must—

(a) notify the appropriate authority; and

(b) not give effect to the land use plan before the end of the period of 21 days beginning with the day notified by the appropriate authority as that on which its notification was received, unless the appropriate authority notify it that it may do so.

(6) Without prejudice to any other power, the appropriate authority may give directions to the plan-making authority in any such case prohibiting it from giving effect to the land use plan, either indefinitely or during such period as may be specified in the direction.

Textual Amendments

F3 Words in reg. 107(2)(b) substituted (31.12.2020) by The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/579), regs. 1, 26(2); 2020 c. 1, Sch. 5 para. 1(1)

F4 Words in reg. 107(3) substituted (31.12.2020) by The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/579), regs. 1, 26(2); 2020 c. 1, Sch. 5 para. 1(1)

F5 Reg. 107(4) substituted (31.12.2020) by The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/579), regs. 1, 26(3); 2020 c. 1, Sch. 5 para. 1(1)

F6 Reg. 107(4A) inserted (31.12.2020) by The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/579), regs. 1, 26(4); 2020 c. 1, Sch. 5 para. 1(1)

Co-ordination for land use plan prepared by more than one authority E+W

108.—(1) The following provisions apply where two or more local planning authorities prepare a joint local development document under section 28 (joint local development documents) or a joint local development plan under section 72 (joint local development plans) of the 2004 Planning Act M3 .

(2) Nothing in paragraph (1) of regulation 105 requires a local planning authority to assess any implications of a joint local development document or plan which would be more appropriately assessed under that provision by another local planning authority.

(3) The appropriate authority may issue guidance to local planning authorities for the purposes of regulation 105(1) as to the circumstances in which a local planning authority may or should adopt the reasoning or conclusions of another local planning authority as to whether a joint local planning document or plan—

(a) is likely to have a significant effect on a European site or a European offshore marine site; or

(b) will adversely affect the integrity of a European site or a European offshore marine site.

(4) The local planning authorities concerned must have regard to any such guidance.

(5) In determining whether a joint local development document or plan should be adopted under regulation 107, a local planning authority must seek and have regard to the views of the other local planning authorities concerned.

Marginal Citations

M3 Section 28 was amended by the Local Democracy, Economic Development and Construction Act 2009 (c. 20), Schedule 5, paragraphs 12 and 16; and the Neighbourhood Planning Act 2017 (c. 20), section 9(1) and (5) to (7). It is prospectively amended by the Localism Act 2011 (c. 20), Schedule 8, paragraphs 7 and 11, and Schedule 25, Part 16, from a date to be appointed.

Compensatory measures U.K.

109.  Where in accordance with regulation 107 a land use plan is given effect notwithstanding a negative assessment of the implications for a European site or a European offshore marine site, the appropriate authority must secure that any necessary compensatory measures are taken to ensure that the overall coherence of Natura 2000 is protected.

Planning Act 2008 E+W+S

National policy statements E+W+S

110.—(1) This Chapter applies—

(a) in relation to a national policy statement under Part 2 of the Planning Act 2008 (national policy statements) M4 as it applies in relation to a land use plan, and

(b) in relation to the Secretary of State when exercising powers under Part 2 of that Act as it applies in relation to a plan-making authority,

with the modifications specified in paragraphs (2) and (3).

(2) Any reference in this Chapter to giving effect to a land use plan, in relation to a national policy statement, is to be taken to be a reference to the designation of a statement as a national policy statement or an amendment of a national policy statement under Part 2 of the Planning Act 2008.

(3) Where this Chapter applies by virtue of paragraph (1)—

(a) regulations 105(5), 107(3) to (6) [F7 , 108 and 110A] do not apply; and

(b) in regulation 109, the reference to the appropriate authority is taken to be a reference to the Secretary of State.

Textual Amendments

F7 Words in reg. 110(3)(a) substituted (26.12.2023) by Levelling-up and Regeneration Act 2023 (c. 55), s. 255(6), Sch. 15 para. 15 (with s. 247)

Marginal Citations

M4 2008 c. 29.

[F8 Assessments under this Chapter: required assumptions E+W+S

110A.— (1) This regulation applies where—

(a) a plan-making authority makes a relevant decision in relation to a land use plan relating to an area in England,

(b) the authority is required to make a relevant assessment before the decision is made,

(c) waste water from the area to which the plan relates could be dealt with by a plant in England that, at the time of the decision, is—

(i) a nitrogen significant plant, or

(ii) a phosphorus significant plant, and

(d) the decision is made—

(i) where the plant is a non-catchment permitting area plant, before the upgrade date, or

(ii) where the plant is a catchment permitting area plant, before the applicable date.

(2) In making the relevant assessment, the authority must assume—

(a) in a case within paragraph (1)(c)(i) and (d)(i), that the plant will meet the nitrogen nutrient pollution standard on and after the upgrade date;

(b) in a case within paragraph (1)(c)(ii) and (d)(i), that the plant will meet the phosphorus nutrient pollution standard on and after the upgrade date;

(c) in a case within paragraph (1)(c)(i) and (d)(ii), that the plant will meet the nitrogen nutrient pollution standard on and after the applicable date;

(d) in a case within paragraph (1)(c)(ii) and (d)(ii), that the plant will meet the phosphorus nutrient pollution standard on and after the applicable date.

(3) Paragraph (2)—

(a) is subject to regulation 110B (direction that assumptions are not to apply), and

(b) does not prevent the authority, in making a relevant assessment, from having regard to any outperformance, or expected outperformance, by a plant that is a non-catchment permitting area plant.

(4) In paragraph (1) “relevant decision” means—

(a) a decision whether to give effect to a land use plan, or

(b) a decision whether to modify or revoke a neighbourhood development plan.

(5) In this regulation “relevant assessment”, in relation to a land use plan, means—

(a) in relation to a decision within paragraph (4)(a), where an appropriate assessment of the implications for a site of the land use plan is required by regulation 105(1), that assessment;

(b) in relation to a decision within paragraph (4)(b), where such an assessment is required by regulation 105(1) as applied by regulation 106(3), that assessment.

Textual Amendments

F8 Regs. 110A-110C inserted (26.12.2023) by Levelling-up and Regeneration Act 2023 (c. 55), s. 255(6), Sch. 15 para. 16 (with s. 247)

Direction that assumptions are not to apply E+W+S

110B.— (1) The assumptions in regulation 110A(2) do not apply in relation to a particular plant and a particular nutrient pollution standard if the Secretary of State so directs.

(2) A direction under this regulation may be made in relation to a plant and a standard only if the Secretary of State is satisfied—

(a) where the plant is a non-catchment permitting area plant, that the plant will not be able to meet the standard by the upgrade date;

(b) where the plant is a catchment permitting area plant—

(i) that the plant will not be able to meet the standard by the applicable date, or

(ii) that the first effect described in paragraph (4) will, on the applicable date, be more significant than the second effect described in that paragraph.

(3) The Secretary of State may revoke a direction under this regulation if satisfied—

(a) where the plant is a non-catchment permitting area plant, that the plant will meet the standard by the upgrade date;

(b) where the plant is a catchment permitting area plant—

(i) that the plant will meet the standard by the applicable date, or

(ii) that the first effect described in paragraph (4) will, on the applicable date, be the same or less significant than the second effect described in that paragraph.

(4) For the purposes of paragraphs (2)(b) and (3)(b)—

(a) the “first effect” is the overall effect on the habitats site associated with the catchment permitting area of nutrients in treated effluent discharged by all plants that discharge into the area;

(b) the “second effect” is the overall effect on the site of nutrients in treated effluent that would be discharged by all plants that discharge into the area if—

(i) the upgrade date that applied to nutrient significant plants that discharge into the area was the same as the applicable date,

(ii) the standard concentration (of nutrients) applied to those nutrient significant plants, and

(iii) those nutrient significant plants were (on that basis) meeting the nutrient pollution standard on the applicable date.

(5) In deciding whether to make a direction under this regulation in relation to a plant and a standard, the Secretary of State may, in particular, have regard—

(a) where the plant is a non-catchment permitting area plant, to when the plant can be expected to meet the standard;

(b) where the plant is a catchment permitting area plant, to when—

(i) the plant can be expected to meet the standard, and

(ii) the sewerage undertaker for the plant can be expected to be in compliance with conditions in the environmental permit for the plant imposed in pursuance of section 96G(3)(b) of the Water Industry Act 1991.

(6) Before making or revoking a direction under this regulation, the Secretary of State must consult—

(a) the Environment Agency,

(b) Natural England,

(c) the Water Services Regulation Authority,

(d) any plan-making authority who it appears to the Secretary of State would be affected by the direction or revocation,

(e) the sewerage undertaker whose sewerage system includes the plant, and

(f) any other persons that the Secretary of State considers appropriate.

(7) A direction or revocation under this regulation—

(a) is to be made in writing, and

(b) takes effect—

(i) on the day specified in the direction or revocation, or

(ii) if none is specified, on the day on which it is made.

(8) As soon as practicable after making or revoking a direction under this regulation, the Secretary of State must—

(a) notify—

(i) the Environment Agency,

(ii) Natural England,

(iii) every plan-making authority who appears to the Secretary of State to be affected by the direction or revocation, and

(iv) any other persons that the Secretary of State considers appropriate, and

(b) publish the direction or revocation.

Textual Amendments

F8 Regs. 110A-110C inserted (26.12.2023) by Levelling-up and Regeneration Act 2023 (c. 55), s. 255(6), Sch. 15 para. 16 (with s. 247)

Regulations 110A and 110B: interpretation E+W+S

110C.— (1) In regulations 110A and 110B and this regulation, the following terms have the meanings given by section 96L of the Water Industry Act 1991—

“catchment permitting area”;

“environmental permit”;

“habitats site”;

“nitrogen significant plant”;

“nitrogen nutrient pollution standard”;

“nutrient pollution standard”;

“nutrient significant plant”;

“phosphorus significant plant”;

“phosphorus nutrient pollution standard”;

“plant”;

“sensitive catchment area”;

“sewerage system”, in relation to a sewerage undertaker;

“standard concentration”;

“treated effluent”;

“upgrade date”.

(2) In regulations 110A and 110B and this regulation—

“catchment permitting area plant” means a nutrient significant plant that discharges (or will discharge) treated effluent into a catchment permitting area;

“non-catchment permitting area plant” means a nutrient significant plant that discharges (or will discharge) treated effluent into a sensitive catchment area other than a catchment permitting area.

(3) For the purposes of regulation 110A, “outperformance” by a plant, which is a non-catchment permitting area plant and in relation to a nutrient pollution standard, occurs where—

(a) the plant meets the standard before the upgrade date, or

(b) the total nitrogen concentration (in the case of a nitrogen significant plant), or total phosphorus concentration (in the case of a phosphorus significant plant), in treated effluent that it discharges is less than the concentration specified in section 96F(1)(a)(i) or (2)(a)(i), under section 96C(6)(e) or 96D(5) or by virtue of regulations made under section 96D(11) (as the case may be) of the Water Industry Act 1991 that applies to the plant.

(4) For the purposes of regulations 110A and 110B, the “applicable date”, in relation to a catchment permitting area, is to be determined in accordance with section 96G(6)(a) of the Water Industry Act 1991.

(5) For the purposes of regulation 110B(4)—

(a) a habitats site is “associated” with a catchment permitting area if water released into the area would drain into the site;

(b) “nutrients”—

(i) in relation to an area designated under section 96C(2) of the Water Industry Act 1991, means nutrients comprising nitrogen or compounds of nitrogen;

(ii) in relation to an area designated under section 96C(3) of that Act, means nutrients comprising phosphorus or compounds of phosphorus.]

Textual Amendments

F8 Regs. 110A-110C inserted (26.12.2023) by Levelling-up and Regeneration Act 2023 (c. 55), s. 255(6), Sch. 15 para. 16 (with s. 247)

Interpretation of Chapter 8 E+W

Interpretation of Chapter 8 E+W

111.—(1) In this Chapter—

“the 1999 Act” means the Greater London Authority Act 1999 M5 ;

“the 2004 Planning Act” means the Planning and Compulsory Purchase Act 2004 M6 ;

“the 2005 Order” means the Planning and Compulsory Purchase Act 2004 (Commencement No. 3 and Consequential and Transitional Provisions) (Wales) Order 2005 M7 ;

“land use plan” means—

(a)

the spatial development strategy under section 334 of the 1999 Act (the spatial development strategy);

(b)

a local development document as provided for in Part 2 of the 2004 Planning Act (local development) other than a statement of community involvement under section 18 of that Act (statement of community involvement) M8 ;

(c)

a local development plan as provided for in Part 6 of the 2004 Planning Act (Wales);

(d)

the Wales Spatial Plan under section 60 of the 2004 Planning Act (national development framework for Wales) M9 ;

(e)

an alteration or replacement of a structure plan, unitary development plan, local plan, minerals local plan, or waste local plan under Part 2 of the TCPA 1990 (development plans) M10 to the extent permitted by Schedule 8 to the 2004 Planning Act (transitional provisions); or

(f)

(in England) a neighbourhood development plan as defined in section 38A of the 2004 Planning Act (neighbourhood development plans) M11 .

“plan-making authority” means—

(a)

the Mayor of London when exercising powers under section 341(1) or (2) of the 1999 Act (alteration or replacement);

(b)

an authority which, by virtue of Part 1 of the TCPA 1990 (planning authorities) or an order under section 29(2) of the 2004 Planning Act (joint committees), is a local planning authority;

(c)

the Secretary of State when exercising powers under—

(i)

section 21 or section 27 of the 2004 Planning Act (intervention by the Secretary of State, Secretary of State's default power, respectively); or

(ii)

section 19, section 35A(4) or section 45 of the TCPA 1990 (approval of a unitary development plan, calling in of proposal for approval by the Secretary of State, approval of proposals by the Secretary of State, respectively) M12 to the extent permitted by Schedule 8 to the 2004 Planning Act;

(d)

the Welsh Ministers when exercising powers under—

(i)

section 60(3), section 65 or section 71(4) of the 2004 Planning Act (national development framework for Wales, intervention by Assembly, Assembly's default power, respectively); or

(ii)

section 19 of the TCPA 1990 to the extent permitted by article 4 of the 2005 Order; or

(e)

(in England) the local planning authority when exercising powers under Schedule 4B to the TCPA 1990 (as applied by section 38A(3) of the 2004 Planning Act).

(2) References in this Chapter to giving effect to a land use plan are to—

(a) the approval, under section 21(9) or 27(4) of the 2004 Planning Act, of a local development document;

(b) the adoption, under section 23 of the 2004 Planning Act (adoption of local development documents), of a local development document other than a statement of community involvement under section 18 of that Act;

(c) the publication, under section 341 of the 1999 Act, of alterations of the spatial development strategy or a new spatial development strategy to replace it;

(d) the publication, under section 60 of the 2004 Planning Act, of a revision of the Wales Spatial Plan;

(e) the adoption, under section 67 of the 2004 Planning Act (adoption of local development plan), of a local development plan;

(f) the approval, under section 65(9) or 71(4) of the 2004 Planning Act, of a local development plan;

(g) the adoption, under section 35(1) (adoption of proposals), or approval under section 35A(4) of the TCPA 1990, of an alteration or replacement of a structure plan to the extent permitted by paragraph 2(2) of Schedule 8 to the 2004 Planning Act;

(h) the adoption, under section 15 (adoption of unitary development plans by local planning authority) M13 and that provision as applied by section 21(2) (alteration or replacement of unitary development plans) M14 of the TCPA 1990, of an alteration or replacement of a unitary development plan to the extent permitted by paragraph 4 of Schedule 8 to the 2004 Planning Act;

(i) the approval, under section 19 and that provision as applied by section 21(2) of the TCPA 1990, of an alteration or replacement of a unitary development plan to the extent permitted by paragraph 4 of Schedule 8 to the 2004 Planning Act;

(j) the adoption, under section 43 (adoption of proposals) M15 or approval under section 45 of the TCPA 1990, of an alteration or replacement of a local plan, minerals local plan or waste local plan to the extent permitted by paragraph 9, 10 or 14 of Schedule 8 to the 2004 Planning Act;

(k) the adoption, under section 15 of the TCPA 1990, of a unitary development plan to the extent permitted by article 4 of the 2005 Order;

(l) the approval, under section 19 of the TCPA 1990, of a unitary development plan to the extent permitted by article 4 of the 2005 Order; or

(m) (in England) the holding of a referendum in accordance with paragraph 12(4) of Schedule 4B to the TCPA 1990 (as applied by section 38A(3) of the 2004 Planning Act).

Marginal Citations

M5 1999 c. 29.

M6 2004 c. 5.

M7 S.I. 2005/1229 (W.87) (C.56), amended by S.I. 2005/2722 (W.193) (C.110).

M8 Section 18 was amended by the Planning Act 2008 (c. 29), section 180(1) and (4) and Schedule 13; the Localism Act 2011 (c. 20), Schedule 12, paragraphs 27 and 28; and the Neighbourhood Planning Act 2017 (c. 20), sections 6(1) to (3) and 13(1) and (2).

M9 Section 60 was substituted by the Planning (Wales) Act 2015 (anaw 4), section 3; and amended by the Environment (Wales) Act 2016 (anaw 3), Schedule 2, Part 1, paragraph 8(1) and (2).

M10 Sections 32 to 40 in Part 2 of the TCPA 1990 were substituted by the Planning and Compensation Act 1991 (c. 34), Schedule 4, paragraph; Part 2 of the TCPA 1990 was repealed by the 2004 Planning Act, Schedule 9, subject to transitional provisions contained in Schedule 8 to that Act.

M11 Section 38A was inserted by the Localism Act 2011 (c. 20), Schedule 9, paragraphs 5 and 7.

M12 Section 35A was inserted by the Planning and Compensation Act 1991 (c. 34), Schedule 4, paragraph 17; and repealed by the 2004 Planning Act, Schedule 9, subject to transitional provisions contained in Schedule 8 to that Act.

M13 Section 15(1) was substituted by the Planning and Compensation Act 1991, Schedule 4, paragraph 6; and repealed by the 2004 Planning Act, Schedule 9, subject to transitional provisions contained in Schedule 8 to that Act.

M14 Section 21 was amended by the Planning and Compensation Act 1991, Schedule 4, paragraph 12 and Schedule 19; and repealed by the 2004 Planning Act, Schedule 9, subject to transitional provisions contained in Schedule 8 to that Act.

M15 Section 43 was amended by the Planning and Compensation Act 1991, Schedule 4, paragraph 19(1); and repealed by the 2004 Planning Act, Schedule 9, subject to transitional provisions contained in Schedule 8 to that Act.