User review

Welcome comments from some of our existing subscribers are shown in the sidebar, but an independent review from one of our subscribers is provided in full below. This review was first published in the UK Environmental Law Association newsletter 'e-law'.

 

"The Habitats Regulations Assessment Handbook : David Tyldesley FRTPI FCIEEM FRSA and Dr Caroline Chapman MCIEEM with legal input from barrister Graham Machin of Ropewalk Chambers Nottingham.  Published by DTA Publications Limited.

 

This is a most welcome Handbook and one to which I have already turned on several occasions since subscribing to the online version in November last year.

 

The authors set out to:

  • improve the understanding and interpretation of the Habitats Regulations; and
  • aid consistency in applying their requirements in respect of plans and projects;

and facilitate change whilst ensuring full compliance with the European Union Directives and protection of internationally designated sites.

 

I believe that they achieve their objective notwithstanding that it is a challenging one!

 

The Handbook is available both in hard copy and online and is to be subject to ongoing revision.  It will be a significant task to maintain the pace set by the first edition in view of the developments in the UK, never mind that the Court of Justice is regularly considering relevant aspects of the Habitats and Wild Birds Directives (a recent search revealed to me that the CJEU has decided in excess of 100 cases on these two Directives since 1986).

 

The first Handbook is for territorial European sites in England and Wales.  Three other versions of the Handbook are being produced for Northern Ireland, Scotland and offshore sites and case work. Encouragingly, there is also going to be a Journal twice yearly to explore some of the issues in greater detail.

 

The Handbook is intended for those unfamiliar with the Habitats Regulations and also experienced practitioners.  I believe that the structure of the Handbook and the manner in which particularly the principles in Part C have been produced (ie with the principles being set out initially and then a more detailed section explaining why and how the principles have been established) means that the Handbook will be valuable to both beginners and also seasoned campaigners!

 

The authors at DTA have substantial experience of the interpretation and application of the Habitats Regulations, having advised in respect of them since they were introduced and been involved in many of the key testing Inquiries such as Dibden Bay, Thames Basin Heaths SPA implications for the South East Plan including the Dilly Lane  proposed residential development and countless others. 

 

DTA are fortunate to have had input from barrister Graham Machin who, like them, has a long track record of advising in respect of the Habitats Regulations.  His presence on the team certainly counts in relation to some of the complex legal issues which are presented by the Habitats Regulations. 

 

The Handbook has a logical format for its purpose and is easy to navigate.  It benefits from the succinct and clear text this reviewer associates with Messrs Tyldesley and Machin.  There is an introduction to the Habitats and Wild Birds Directives, a Part dealing with the overall process of Habitats Regulations Assessment and the important Part setting out the Principles.  Part D covers information required for assessment.  Parts E and F provide practical guidance for the assessment (respectively) of projects and plans under the Habitats Regulations.  Part G explains the position in relation to European marine sites (though as indicated above a further version of the Handbook is to follow specifically addressing offshore marine sites).

 

The Appendices provide the text of the Regulations as revised, the two key Directives and a table of the Commission’s Opinions on Article 6 (4) which is a very handy summary.  There is also a Glossary of Terms and case law references.

 

There is very detailed coverage of the difficult issues arising in respect of land which may at some future stage be, but has not yet been, classified as an SPA or designated as a SAC.  The interplay of legislation, policy and European Court decisions in this respect are complex and of great importance and it is very helpful to see such comprehensive coverage.

 

In the principles section there is consideration of mitigation measures and the question of when additional mitigation measures may be imposed by the competent authority particularly whether such a condition may be imposed at the screening (likely significant effect stage).  There is reference to the High Court decision of James Dingemans QC (as he then was) in Champion –v- North Norfolk DC and Natural England [2013] EWHC 1065 (Admin) which has now been reversed by the Court of Appeal by a judgment handed down on 18th December 2013 [2013] EWCA Civ 1657.  Lord Justice Richards in delivering the judgment of the Court found that the Council was capable of deciding that the additional water quality monitoring conditions were necessary without reaching the view that there would be a likely significant effect on the River Wensum SAC.  Strictly speaking the reasoning of the Court of Appeal has not interfered with the Handbook’s principle that only “incorporated mitigation measures” can be considered at the screening stage.

 

However this decision of the Court of Appeal does seem to follow and apply the decision in the case of Feeney  which the authors of the Handbook take exception to because the condition there deemed lawful was imposed by the Secretary of State against the proponent’s objection.  As such the Feeney decision contravenes the principle that only “incorporated mitigation measures” can be considered at the screening stage.  It is understood that this particular issue may be the subject of an article in the Journal and it seems to be a good topic to be addressed.

 

These decisions illustrate the continued development of the law and understanding of the requirements of the Habitats Regulations.  Certainly it is this reviewer’s experience that project proponents are exploiting every opportunity to screen out their proposals so as to avoid the resource depletion associated with appropriate assessment and the consequential requirements.

 

The Handbook contains a very useful section on the:

  • precautionary principle;
  • polluter pays principle;
  • duty to take preventive action;
  • principle of proportionality;

 

and tackles each of them specifically as they are applied in the context of the Habitats Regulations.  These concepts are familiar but nevertheless frequently difficult to apply in particular circumstances.  The clear and comprehensive guidance provided will aid all those charged with the task of seeking to apply these principles to Habitats Regulations cases in the future.

 

In summary I can commend this Handbook to all those who are concerned with the application of the Habitats Regulations.  I hope that all competent authorities will subscribe and am advising my clients to do so!  Despite the fact that we are closing in on 20 years of Habitats Regulations in 2014 there remain many difficult issues, but these are made as understandable as possible in the Handbook.  In my view readers are treated to good sensible advice informed by ingrained practical experience in this field."

 

Richard Barlow

Partner

Browne Jacobson LLP

6th January 2014

In my view users are treated to good sensible advice informed by ingrained practical experience in this field

" David Tyldesley & Associates have a long experience of involvement in the application of the Habitats Regulations Assessment process and this product usefully draws together the current state of collective understanding"

Janette Ward (Director Regulation, Natural England)

 

 

"Accessible, up to date and expertly written - this is a very useful source of guidance for competent authorities and others involved in assessing both projects and plans"

Adam Cole-King (Senior International Sites Adviser, Natural Resources Wales)

 

 

"This HRA Handbook brings a 20th century piece of legislation into the 21st century for everyone to understand"

Craig Rockliffe (Permitting and Conservation Team Leader, Environment Agency)

 


"This Handbook provides a useful guide to HRA application and case law in English territorial waters" 

Lisa Chilton (Head of Offshore Industries Advice, Joint Nature Conservation Committee)

 


"The MMO is committed to enabling sustainable growth in making decisions about developoments at sea. We use the HRA Handbook to gain an overview of case law and help ensure consistency in our decision making"

Dickon Howell (Head of Licensing, Marine Management Organisation)

 


"A timely and much needed publication from the recognised and respected HRA experts" 

Wyn Jones (Convenor of the Nature Conservation Working Group for the UK Environmental Law Association)

 


"We welcome this detailed guidance and informed discussion on what is a critically important and often complex area of European conservation legislation" 

John Box (CEnv FCIEEM) (President of the Chartered Institute for Ecology and Environmental Management)

News

The Handbook content has been updated to take account of all recent judgments in the CJEU and the EU Exit amendment Regulations (4 January 2021). 

 

We have advised the CIEEM In Practice editor that the approach described in the recent article on ‘A novel approach to quantify and mitigate for biodiversity loss caused by Nitrogen deposition’ is inappropriate.  We believe that what is described as mitigation – offsite buffer area for habitat creation and improvement – is actually compensation for the harm to the habitats in the designated SAC.  We advise that this approach should not be adopted without taking legal advice and consulting Natural England HRA and air quality specialists (12th January 2021).