Supplementary memorandum by the Department
of Communities and Local Government
THE HOUSING SUPPLY AND REGIONAL SPATIAL STRATEGIES
This paper responds to the request dated 13
August 2007 from the Communities and Local Government Committee
for a Memorandum dealing with the application of the Habitats
Directive to Regional Spatial Strategies. Four questions were
posed and these are dealt with in turn.
1. What Guidance, and when, has DCLG provided
to Government Offices and/or Regional Assemblies regarding the
application of the Habitats Directive to Regional Spatial Strategies?
The Habitats Directive (more formally known
as Council Directive 92/43/EEC on the Conservation of Natural
Habitats and of Wild Fauna and Flora) aims to protect over 200
habitats and approximately 1000 species across Europe. These habitats
and species are considered to be of European interest, following
criteria given in the Directive.
The Directive established Special Areas of Conservation
which together with the existing Special Protection Areas form
a network of protected sites across the European Union called
Natura 2000 sites (NK2 sites) or European Sites.
For the purposes of the Directive, and this
determination, the Government Offices (GOs) are part of Communities
and Local Government. The GOs are central Government's regional
interface with the local authorities within their respective regions.
On 9 January 2004 action was brought by the
Commission of European Communities against the United Kingdom
of Great Britain and Northern Ireland. This action was on the
grounds that the UK had failed to transpose the requirements of
Council Directive 92/43/EEC on the Conservation of Natural Habitats
and of Wild Fauna and Flora (Habitats Directive) and thereby fulfil
its obligations under that Directive.
In August 2005 reference was made to the pending
ECJ judgment in Government Circular: Biodiversity and Geological
Conservation—Statutory Obligations And Their Impact Within
The Planning System. This circular, jointly produced by the
Office of the Deputy Prime Minister and the Department of the
Environment, Food and Rural Affairs, was circulated prior to the
final judgment.
In 20 October 2005, the European Court of Justice
ruled that the United Kingdom had failed to transpose the provisions
of Article 6(3) and (4) of the Directive 92/43/EEC on the Conservation
of Natural Habitats and of Wild Fauna and Flora (Habitats Directive)
into UK Law in case C-06-/04 (Commission v United Kingdom). The
Court found that, as a result of the failure to make land-use
plans subject to Appropriate Assessment (AA) of their implications
for European Sites, Article 6 (3) and (4) of the Habitats Directive
has not been transposed completely.
The first formal correspondence from the then
Office of the Deputy Prime Minister (ODPM) to all Government Offices
(GOs) on this ruling and the subsequent requirement to consider
the Directive for Regional Spatial Strategies (RSSs) was sent
via an email, from the Department's policy lead on Habitats Matters
on 19 January 2006. (See Attachment 1). This email advised the
GOs of the ruling and that the Department for the Environment
(Defra), in partnership with ODPM, would respond to the infraction
proceedings by revising the Statutory Instrument: The Conservation
(Natural Habitats &c.) (England and Wales) Regulations, and
developing guidance. When the email was sent, it was uncertain
whether the judgment would have immediate implications or whether
it would apply only when the amending regulations were brought
in.
In March 2006, the Department sent a letter
to all local planning authorities and regional planning bodies
in England advising them of the October 2005 ruling and the requirements
to consider the directive in the plan making process. (See Attachment
2) This clarified the implications of the judgement and highlighted
the responsibility of the Regional Planning Body (RPB) and Local
Planning Authority (LPA) to assess whether AA is necessary and
to carry out in the preparation of a Regional Spatial Strategy,
and at a local level a Development Plan Document or Supplementary
Plan Document where it is required.
As a result of the ECJ ruling of October 2005,
the necessary amendments have now been made to the UK Conservation
(Habitats, &c.) Regulations (1994). These amendments were
made on 22 June 2007, laid before parliament on 3 July 2007 and
came into force on 21 August 2007. The relevant provisions of
the Habitats Directive were transposed in Schedule 1 of the Amending
Regulations which inserts a new Part IVA into the 1994 Habitats
Regulations. The Department has also set about producing guidance
on how the Habitats Directive should be applied to Land Use Plans
in England. Draft guidance for the implementation of the Habitats
Directive in preparing Regional Spatial Strategies and Local Development
Documents was circulated for formal consultation between 31 August
2006 and 31 October 2006. It remains in draft form and is still
applicable to RSSs.
2. Has it always been the Government's understanding
that the Habitats Directive applied to RSSs? If not, when and
why did this understanding change and when was it communicated
to Government Offices and Regional Assemblies?
Until the ECJ ruling in October 2005, the Government
understood that the Habitats Directive did not apply to RSSs.
As a result of the judgment, the need to have consideration of
the Directive was advised to Government Offices and Regional Assemblies
in March 2006 (as above). This was the first formal correspondence
from the Government to all authorities on the need to apply the
Directive to Regional Spatial Strategies and Local Development
Documents.
3. Will the Habitats Directive apply to RSSs
in every region? If application varies between regions, what criteria
determined whether the Habitats Directive is applicable?
Implementation of the Habitats Directive applies
to RSSs in every region in England without prejudice. There is
no variation whatsoever.
If the region contains a Special Area of Conservation
or a Special Protection Area (collectively known as Natura 2000
or European Sites) then consideration on the likely significant
effects of the plan or policy on these sites will need to be made.
4. The East of England Region has adjusted
the timetable for publication of its RSS to ensure compliance
with the Directive. Has application of the Directive resulted
in delays in other regions too? What effect will such delays have
on future housing delivery?
In addition to the Eastern region the other
region that has incurred a delay to its RSS revision because of
the Habitats Directive has been the draft RSS Phase One Revision—the
Black Country in the West Midlands. The proposed changes of
the first phase were due to be published in July but are now expected
in September 2007, allowing for Habitats Directive requirements
to be taken into account before the proposed changes are consulted
on.
Approved RSSs already exist in each of the regions,
forming part of the statutory Development Plan. They set out the
housing requirements for each region. The Development Plan is
the starting point in the consideration of planning applications
unless material considerations indicate otherwise. These considerations
include updated housing figures in RSS revisions, local priorities
and needs, and relevant national policy.
The flexibility of this underlying process should
ensure that delays incurred in a draft RSS revision do not prevent
decisions on the delivery of housing being taken.
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