The now infamous ‘People Over Wind’ case (C323/17) led to a considerable shake up in the practical application of the Habitats Directive when the judgement ruled that mitigation measures cannot be taken into account at the likely significant effect (LSE) screening stage. One of the many problems it created was that much policy and guidance suddenly became out of date and needed to be rewritten. Of particular note was the presumption in favour of sustainable development set out in the National Planning Polity Framework (NPPF). The previous NPPF removed this presumption where LSE could not be ruled out. This was always problematic in my view, why remove this tilt in favour of sustainable development simply because an Appropriate Assessment is required – after all the plan or project may subsequently pass the legal tests with flying colours and no harm is caused. After People Over Wind this became even more problematic as many more projects failed the LSE test and the presumption has to be removed for many more projects even though they would subsequently pass the legal test at the AA stage.
Following consultation, para 177 of the NPPF has now been updated and reads ‘The presumption in favour of sustainable development does not apply where the plan or project is likely to have a significant effect on a habitats site (either alone or in combination with other plans or projects), unless an appropriate assessment has concluded that the plan or project will not adversely affect the integrity of the habitats site.’
The full text of the NPPF 2019 can be found here