In April the ECJ provided a ruling which contradicts the general working practice of habitat protection when dealing with development schemes.
Before the case of People Over Wind the position was that mitigation measures proposed by the developer could be taken into consideration at the screening stage in deciding whether an Appropriate Assessment is required.
Now the position is that these measures CANNOT be taken into consideration which will lead to more developments requiring a full Habitats Regulations Assessment adding to the upfront cost and time spent dealing with the planning application.
Our advice is that any current planning applications should which are near to or adjacent to protected sites which mitigation measures are being proposed to be assessed to ensure that no Appropriate Assessment is required. This will hopefully reduce the risk of any third party challenge to the grant of planning permission.
It should be noted however, that this does not affect those developments which have already obtained planning permission.
The Council in this case has taken proactive steps, but given the ruling and the recent guidance issued by PINS to LPA's to review the position, it is likely we will see more exclusion zones being imposed.
A local authority in Surrey has temporarily halted decisions on residential planning applications in areas within five kilometres of a special protection area (SPA) following a controversial European Court of Justice (ECJ) judgment.