Advice to Able UK
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- From
- Able UK
- Date advice given
- 28 July 2011
- Enquiry type
The IPC provided advice concerning the applicants Draft Habitats Regulations Assessment (HRA) Report.
Advice given
Thank you for sending us your draft Habitats Regulations Assessment (HRA) report for comment. As we have explained, we are not able to comment on the outcome or conclusions of the assessment or the merits of the scheme and any mitigation proposed, but welcome the opportunity to raise issues relevant to our process and these are set out below.
Please note that the following advice is not intended to be prescriptive. It is for developers to review their work and satisfy themselves that they have complied with relevant legislation and had regard to relevant guidance. If it is considered necessary, you should obtain your own legal advice on which you can rely. You should also note that the decision whether or not to accept an application will be taken by a Commissioner who has had no involvement in the pre-application stage for this proposal. All advice the Commission provides at this stage does not prejudice or pre-judge the decision of the Commissioner regarding acceptance or non-acceptance of an application.
Draft Habitats Regulations Assessment Report As we have explained, at the pre-application stage the IPC does not undertake a formal review of draft HRA Reports. Our initial comments do not prejudice the position of the IPC at further stages of the DCO process including determining whether ?sufficient information? as required under Regulation 5(2)(g) of the Infrastructure Planning (Applications: Prescribed Forms and Procedures) Regulations 2009 has been provided to the IPC when the application for development consent is submitted. In determining the relevant elements/information needed to support an HRA report the IPC would refer you to the forms in the Appendices to Advice Note 10 (Habitat Regulations Assessment relevant to nationally significant infrastructure projects). The relevant forms should be completed and submitted by developers at point of application.
General Comments The IPC has previously issued advice within the EIA Scoping Opinion regarding survey work and methodology. In particular the IPC notes the importance of ensuring that survey work is comprehensive, relevant and up to date. The IPC has also previously expressed the importance of agreeing the approach to assessment with the relevant consultees. The draft HRA report makes cross reference to information included in the environmental statement (ES). This approach is acceptable provided the cross references are clear to enable the information to be identified easily as well as to ensure that the reader is directed to the correct information. Screening: Information on the international sites and their qualifying interest features Reference has been made to the qualifying interests of the Humber Estuary SPA, SAC and Ramsar site (paragraph 4.1.2). The report does not set out the framework by which decisions have been made regarding the extent of the study area and the sites required for consideration. Therefore, it is unclear on what basis this site and no others have been selected. If the Humber Estuary alone was identified through agreement with the Statutory Nature Conservation Bodies (SNCB) then information supporting this should be provided and appended to the HRA Screening Report. There is no prescribed maximum distance from a proposed site boundary beyond which proposals can be dismissed as having no effect. It should be noted that if a proposal is capable of affecting a Natura site it should be screened for significant effects? irrespective of the distance from the Natura site. The report should set out the framework by which decisions have been made regarding the extent of the study area and the sites required for consideration.
Annexes B and C set out screening assessment conclusions in relation to habitats and non-bird fauna, and birds respectively. However, they do not present information in the same way. The last column of Annex B appears to include conclusions on both the judgement of likely significant effect and the effect on the integrity of the site, which follows appropriate assessment. The last column in Annex C only considers the significant effect test. It is suggested that the title of the annexes makes it clear what stages of the assessment they cover, the conclusions on each of the two tests, ie likely significant effect and the effect on integrity, are separately identified, and the information is presented in a consistent format in both annexes.
Baseline Information and Methodology Consideration should be given to providing the citations for the site(s) concerned as this would be helpful to the examining authority. This should include maps of the site(s) in relation to the proposed project and the spatial extent of the qualifying features. Details should be provided as to the methodologies used and the process and evidence base for the assessments. It is reiterated that following the steps and completing the forms in the appendices to Advice Note 10 would assist developers in ensuring that the relevant information is provided. You should carry out the necessary preparatory work and assemble the evidence to a level of detail that will enable the competent authority to meet its duties under the Habitats Regulations 2010 (as amended). Note, if there is no relevant national policy statement in relation to an application, the IPC itself will not be the competent authority but will be required to ensure that sufficient information is provided to enable the relevant Secretary of State to meet their duties as competent authority. Habitats and Species
Within the section on European sites and likely significant effect (Chapter 4), the focus seems to be on species, birds in particular, over habitats. In addition, there are references to grey seals, river and sea lamprey and natterjack toads in Chapter 4, but little explanation is provided there or in the Annex B Screening Assessment for the conclusions of no likely significant effect on grey seals and toads. There should be a justification for this approach. In any event sufficient information should be provided for the competent authority to undertake the assessment.
Consultation
The IPC?s Advice Note 10 emphasises the importance of consultation with relevant SNCBs In particular developers are advised to use the pre-application consultation process to seek assurances from SNCBs that all potential impacts have been properly addressed in sufficient detail before the application is submitted.
The IPC notes that there is evidence of consultation being carried out and quotes from certain responses received are provided. The IPC advises that relevant responses are included in full within the report to allow complete understanding of the consultation response and to assist the examining authority to consider whether any matters need further examination.
The competent authority will also consult the relevant SNCBs for the purposes of the assessment.
In-combination assessment
The meaning of paragraph 4.4.17 is not clear. It seems to imply that if a proposed development alone will have a limited impact that there is no further requirement to consider whether there are likely to be any in-combination impacts. An impact may become significant when considered in-combination with impacts from other plans and projects and Regulation 61(1)(a) requires a competent authority to consider whether a project is likely to have a significant effect either alone or in combination with other projects.
The IPC also notes the wording at paragraph 4.4.17 of the draft report:
? ? where a likely significant effect has been identified on a qualifying interest habitats or species ?? these is no need for consideration of in-combination effects??.
The IPC considers that when carrying out the appropriate assessment the competent authority will want to take into account the in-combination effects before ascertaining whether the project will adversely affect the integrity of the European site(s) and will want to consider the compensation to be provided which corresponds to any negative effects identified. For example, the habitat loss (for which compensation must be provided) and adverse effects on species may be worsened because they are exacerbated by the effects of other development in combination with the effects of the NSIP. We cannot however comment on what or how extra compensation should be provided, apportioned and secured.
Consideration should be given to revising this section and to providing information within the HRA report which will enable the competent authority to consider these matters properly.
You may also wish to use EC guidance Managing Natura 2000 Sites: The provisions of Article 6 of the Habitats Directive (see section 4.4.3) for advice about which plans and projects would be within the scope of the combination provision in Article 6 (3) - this includes projects which are complete; approved but uncompleted; or not yet proposed.
Compliance with conditions or other restrictions
The draft document does not appear to consider explicitly whether compliance with conditions or other restrictions would enable it to be ascertained that the proposal would not adversely affect the integrity of the site, as required by the Habitats Regulations.
Imperative Reasons of Overriding Public Interest (IROPI)
The competent authority will require information to justify there is a compelling case for overriding public interest. Where the site does not host a priority species or habitat the reasons may be of a social or economic nature. In cases where there are priority natural habitats or species the IROPI justification must relate to either human health, public safety or beneficial consequences of primary importance to the environment, or any other imperative reasons of overriding public interest having sought a prior opinion of the European Commission.
The reasons as set out in the draft report are:
? decarbonise the means of energy production ? secure energy supplies from indigenous sources ? manufacture large scale offshore generators ? grow manufacturing in the UK; and ? regenerate the Humber sub-region.
The competent authority will need to satisfy itself that these reasons meet the requirements of the Directive to demonstrate IROPI in relation to priority natural habitats or species and relate to the proposed NSIP or any associated development. The HRA report should provide justification to support these reasons and if necessary you may wish to obtain your own legal advice in this regard. Compensation Measures
The assessment should clarify any avoidance or mitigation measures which will be implemented to avoid or reduce the level of impact from the proposals. There is reference to Annex 4.2 of the ES regarding mitigation measures for construction impacts, and whilst Annexes B and C of the HRA report take account of mitigation, the details are not specified.
Full details of the compensatory habitat are not provided. The report states that further details are provided in Volume 2 of the ES. The developer should ensure that all the information necessary for the competent authority to undertake an appropriate assessment is submitted. For example, it would be of assistance to explain clearly the way in which other sites are being taken into account and to explain why these apparently unrelated compensatory areas are relevant.
Conclusion
Please note that the issues highlighted above and comments made do not constitute an exhaustive list. It is the developer?s duty to ensure that all documents submitted with the DCO application comply with the relevant legislation and required standards.