The government has opened a consultation on proposed amendments to the NPPF in respect of the implications of the need to carry out Appropriate Assessment. Appropriate Assessment has become increasing required for planning applications following the European Court of Justice judgement, known as People Over Wind, earlier in 2018 which ruled that mitigation cannot be taken into account at the screening stage of a Habitats Regulations Assessment and rather this must instead be included at the subsequent Appropriate Assessment stage. This however has the consequence of engaging paragraph 177 of the NPPF:2018 which sets out that:
“The presumption in favour of sustainable development does not apply where development requiring [sic] appropriate assessment because of its potential impact on a habitats site is being planned or determined”.
As such the presumption in favour of sustainable development is lost and the ‘tilted balance’ does not apply. Within the new consultation however, the government has however clarified that this was not the intention of the policy. As such the government proposes to revise the wording of NPPF paragraph 177 to read:
“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 there will be no adverse effect from the plan or project on the integrity of the habitats site”.
Therefore, under this revised wording, the presumption in favour of sustainable development and the ‘titled balance’ would remain available following Appropriate Assessment, assuming a finding of no effect on any habitats site (SAC / SPA) integrity.
Further details can be found here. The consultation closes on 7 December 2018.