European Site Casework Guidance: How to consider plans and projects affecting Special Areas of Conservation (SACs) and Special Protection Areas (SPAs)

Please note the following when considering which part of the Habitats Regulations confers the requirement for consideration of proposals under the Article 6.3 assessment process (Habitats Regulations Appraisal).

• Regulations 48-53 of the Habitats Regulations outline the procedures which must be carried out when considering all plans or projects.

• Regulation 47 of the Habitats Regulations outlines specific functions detailed in regulations 53A-85 which must also be considered when dealing with:

• Control of operations requiring consent (regulation 53A)
• Grant of planning permission and review (regulations  54-59)
• Permitted development (regulations 60-63)
• Highways, roads and cycle tracks (regulations 69-70)
• Core and other paths (regulation 69A)
• Transport and works (regulations 79-82D)
• Authorisations under Part I of the Environmental Protection Act 1990 (regulation 83)
• Waste management licences (regulation 84)
• Permits under the Pollution Prevention and Control (Scotland) Regulations 2000 (regulation 84A)
• Abstraction works (regulation 84B)
• Discharge consents (regulation 85)

• Regulations 85A-E  of the Habitats Regulations outline the specific provisions for assessment of all land use plans (specifically defined in these regulations as strategic development plans, local development plans, and associated supplementary guidance).  The statutory requirement to consider these plans was introduced by The Conservation (Natural Habitats, &c.) Amendment (Scotland) Regulations 2007.   For guidance on the Habitats Regulations Appraisal process for plans, particularly land use plans, please contact the Protected Areas team in the Protected Areas, Innovation and Data Activity. 

• Regulation 47(1)(b) of the Habitats Regulations, which was introduced by The Conservation (Natural Habitats, &c.) Amendment (No.2) (Scotland) Regulations 2007, means that authorities must make the same considerations, as are specified in regulation 48 and 49, to “all other plans and projects.”

For further advice on what specific provisions of the Habitats Regulations, 2017 Regulations, or the Offshore Regulations apply in relation to competent authority functions please contact the Protected Areas, Innovation and Data Activity.

It is important that all appraisals undertaken and decisions made, between consultation and response, be logged fully and in a systematic manner.  The benefits of such an approach include:

• there is provision of a formal record of the steps taken, and the factors which influenced each step;
• the structured, step-by-step approach is more likely to produce a response which is consistent with NatureScot policies and practices, and which is ‘correct’ (i.e. has a rational basis);
• the handling of the case can be more readily reviewed (e.g. should there be a later query as to either the outcome or any of the factors considered);
• lessons learned can be more easily abstracted and applied to other cases; and
• continuity is more efficiently achieved should there be staff changes.

The above requires that advice sought and received, informal discussions, all meetings and all important phone calls, and all draft letters commented on should be well documented.  This in turn requires the back-up of an efficient filing system.

For each case the following should be filed:

• consultation information
• site information
• proposal information
• consideration of stages 1- 9, as relevant, as in the guidance note
• internal/external advice sought and received, with appraisal of advice received
• memos etc. including internal approval
• identification and appraisal of mitigation measures and conditions
• conclusions/decisions
• draft letters plus comments (if not saved as part of the response letter audit trail in objective)
• response letter
• follow-up correspondence, memos etc.

The HRA proforma (see Annex 2B) should be used to record how you have dealt with any individual items of casework involving European sites.  This sits as a standalone document on the Protected Areas, Innovation and Data Activity specialist work SharePoint pages and can be added to the Casework Management System (CMS) as a supporting document for the relevant case.  The proforma provides a useful check-list of what needs to be considered in a systematic way, and it should help staff to come to a considered opinion which fulfils the requirements of the Habitats Regulations.  It also provides a transparent audit trail which is becoming increasingly important. 

An internal version of the Habitats Regulations Appraisal Proforma should be used to record NatureScot’s Habitats Regulations Appraisal when NatureScot is a competent authority.  It should also be used to record our appraisal of a plan or project when NatureScot is providing advice to a competent authority. 

While NatureScot uses an HRA proforma to record appraisals there is no standard format for recording an HRA.  A proforma that has been adapted for external use is available on the HRA pages of our website and may be helpful in guiding competent authorities through the HRA process.

Before you respond to a piece of casework that could affect a European site you need to ensure that you understand the steps described in stages 1 to 5 above (and be aware of the steps outlined in stages 6 to 9).  This is to ensure that we apply the steps correctly and we respond appropriately and consistently to European site casework within NatureScot. 

The Habitats Regulations Appraisal Proforma should be used to help you consider the effects of a plan or project (see Annex 2).  This will record your thinking on the steps described in stages 1 to 5 above and record your conclusions.  You should seek advice from the relevant Advisory Officer or Manager, and Area colleagues where necessary.  The finalised proforma can then be used to write your response letter. 

Guidance on the roles and responsibilities for preparing and signing off HRAs within NatureScot outlines which NatureScot teams are responsible for carrying out or advising on the various stages of HRA. 

When NatureScot is advising a competent authority

The response types and numbered model wording outlined in Part 5 of the Development Management and the Natural Heritage guidance should be used for all NatureScot responses to consultations on plans and projects affecting proposed or designated European sites, or Ramsar sites (when we are not the competent authority).  The model wording is not repeated here to avoid duplication and version control problems when guidance is being updated.  A summary flowchart is however available in a quick guide for staff. 

The Development Management and the Natural Heritage guidance also provides guidance on how to structure response letters (see part 4).  The key section on appraisal of impacts should identify the European site(s) and qualifying interest(s), refer to the legislative and/or policy requirements for European/Ramsar sites (either hyperlinked or in an Annex), and provide an appraisal of the implications of the proposal on the European/Ramsar site in accordance with these requirements. Although there is increasing awareness of the requirements of the Habitats Regulations, they are still widely confused and misunderstood.  In order that NatureScot’s advice is clear, consistent and complete, it is therefore important that the requirements and implications of a proposed or designated European/Ramsar site’s status are clearly set out in all responses, attached either as an Annex, or included via a hyperlink to our website.

The basic format set out in the model responses should be appropriate for most consultations.  However, local circumstances may occasionally require some minor modifications or additions to the model letters in order to accurately reflect a particular situation, especially if it is unusual or complex.  In these cases it is essential that the actual references to the requirements of the Regulations are not amended, even slightly, as these elements of the wording of the model replies have been very carefully constructed to avoid misinterpretation and the possibility of challenge.  For example, use of a phrase such as ‘significant adverse effect,’ which confuses the wording of two separate tests under regulation 48 (‘likely significant effect’ and ‘adverse effect on site integrity’), has the potential to invalidate NatureScot’s position so that it is not defensible should we be challenged. 

The following points should be noted when using the model wording:

Legislative and Policy Requirements

Part 5a of the Development Management and the Natural Heritage guidance includes model wording to be used in all European site responses.  There are two options to choose from depending on whether a proposed or designated European site could be affected. 

The legislative requirements for European sites are laid out fully on the NatureScot website.  The model wording to be used, where a candidate SAC, designated SAC or classified SPA could be affected, includes a hyperlink to this webpage.  For most plans and projects, the 1994 Regulations are applicable in Scotland and Scottish Territorial Waters.  The 2017 Regulations apply in Scotland only in relation to consultations under section 36 and 37 of the Electricity Act 1989, the Pipelines Act 1962, and to other reserved matters (which include defence, and oil and gas).  If further advice is needed please contact a member of the Protected Areas, Innovation and Data Activity – Protected Areas team. 

Where a proposed SPA or SAC could be affected, the Scottish Government policy for proposed SACs and proposed SPAs applies.  The model wording to be used where a proposed SPA or proposed SAC could be affected again provides a hyperlink to this webpage. 

Responses where there are different levels of impact on different qualifying interests on the same site

Determination of whether a proposal is likely to have a significant effect is made on the basis of individual qualifying interests.  In cases where a likely significant effect is determined for one interest and not for another on the same site, it is clear that an appropriate assessment will be required to take into account impacts on the first interest and not on the second.  The model reply is selected on the basis of the interest requiring appropriate assessment and it should be made clear in the letter that no further consideration of the second interest is required.  However, if a likely significant effect is determined for one interest, but is inconclusive for another, the situation is less straightforward. 

Although it may seem logical, an approach which uses a combination of two different responses (i.e. indicating a requirement for appropriate assessment for one interest and also a requirement for additional information to determine whether a proposal is likely to have a significant effect for another interest on the same site) should in most cases be avoided.  An exception might be in circumstances where a likely significant effect can be very easily determined by requesting simply obtained information.  However, mixed responses in more complex cases can be confusing and may introduce unnecessary delays.  In these situations a practical solution is to request the information required to determine effects on both interests as part of the same exercise to inform the appropriate assessment.  In practice this will not involve any extra work for the applicant and will save them time. 

Responses for use in limited circumstances

European site model response 3 (insufficient information to determine whether a likely significant effect) must only be used where the question of whether a proposal is likely to have a significant effect can be simply resolved by the provision of easily obtainable information.  For example, a relevant scenario is one in which a proposal may affect an SPA for wintering geese, but the only concern is possible disturbance to the birds during the proposed works and the timing of these works is unknown.  Timing and duration of the proposed works may be easily and quickly ascertained and may make the difference between a conclusion of likely significant effect or not.  Response 3 must not be used if detailed information or analysis is required to determine the scale of the impact of a proposal. In these circumstances, where a connection has already been established between the proposal and the qualifying interests, you should conclude that the proposal is likely to have a significant effect and ask for additional information to inform an appropriate assessment using responses 6a or 6b.

European site model response 4 (likely significant effect that can be avoided) – as detailed above in section 3.3, following a ruling in the European Court of Justice this response should no longer be used in formal responses.  If you think you have a case that meets the situations outlined in the guidance on ‘handling of mitigation in Habitats Regulations Appraisal – the People Over Wind CJEU judgement’ please discuss with the protected areas team in the Protected Areas, Innovation and Data Activity.

Pairs of responses

The two pairs of responses 6a&b and 7a&b are very similar to each other but reflect the position where NatureScot has agreed to carry out the appraisal on behalf of the competent authority by local agreement.  In these cases (6b & 7b) NatureScot is appraising the information supplied by the applicant; NatureScot is not responsible for obtaining this information as it is up to the competent authority to ensure that the applicant supplies any required information.

Ramsar sites

The 4th National Planning Framework (NPF4) sets out current Scottish Government policy on Ramsar sites in policy 4 as follows: “All Ramsar sites are also European sites and/or Sites of Special Scientific Interest and are extended protection under the relevant statutory regimes.”  In the majority of cases in Scotland, Ramsar sites fully overlap with European sites and the interests of the different designations are either the same or are closely aligned. 

In January 2019 Scottish Government provided guidance on how the Scottish Government expects its policy on the protection of Ramsar sites to be implemented. It states “where Ramsar interests coincide with Natura [European site] qualifying interests protected under an SPA or an SAC, as the case may be, the interests are thereby given the same level of (legal) protection as Natura [European] sites”.  For this reason, consideration of the European site qualifying interests will normally be sufficient to ensure the protection of the Ramsar site interest. There is no need to give details of impacts on Ramsar sites separately in consultation responses but the response should refer to the fact that the Ramsar interests have been addressed as part of the European site appraisal. 

The guidance goes on to say that “where Ramsar interests are not the same as Natura [European site] qualifying interests but instead match SSSI features, these receive protection under the SSSI regime”.

Please contact a member of the Protected Areas, Innovation and Data Activity – Protected Areas team if you need further advice.

European Protected Species

Guidance on European Protected Species (EPS) is provided in Development Management and the Natural Heritage guidance and on the NatureScot website.  Where the EPS concerned is also a qualifying interest of an SAC (for example, otter), it must be addressed both as a qualifying interest of the site and separately as an EPS.

When NatureScot is the competent authority

The introductory section of this guidance outlines some situations where NatureScot is a competent authority.  As discussed above, before we can undertake or issue any consent/permission or other authorisation for a plan or project that could affect a European site we need to carry out a Habitats Regulations Appraisal.  It is recommended that we use the Habitats Regulations Appraisal proforma (see Annex 2B) to record our appraisal.  The outcome of this appraisal will inform whether consent can be issued or, for our own plans or projects, whether a proposal can be undertaken.  Table 3 provides a summary of possible HRA outcomes and what that means in terms of the plan or project under consideration.

Model wording that can be included in our response to applicants seeking consent/permission/or other authorisation from NatureScot is provided below.  Although some of the wording is very similar to that in the Development Management guidance it has been adapted for use when NatureScot is the competent authority and should only be used for this purpose.  While the model responses in the Development Management guidance have been numbered this model wording has not been numbered to avoid the risk of any potential confusion.  Depending upon the nature of the consultation, the detailed form of wording may not be appropriate in all circumstances.  For example, a simplified form of wording has been agreed for cases where we are responding to applications for SSSI consent.  This wording has been incorporated into the template SSSI response letters.  Please contact a member of the Protected Areas, Innovation and Data Activity – Protected Areas team if you need further advice about the appropriate wording to use.

Use this wording in all relevant European site responses to introduce your appraisal of effects on a candidate SAC, designated SAC or classified SPA.  These sites have legislative protection:

“The proposal [lies within/ is close to/ could affect] [Name of site] [candidate Special Area of Conservation (cSAC) selected for its [List qualifying interest(s)]/ Special Area of Conservation (SAC) designated for its [List qualifying interest(s)]/ Special Protection Area (SPA) classified for its [List qualifying interest(s)]].

The site’s status means that the requirements of the Conservation (Natural Habitats, &c.) Regulations 1994 as amended (the “Habitats Regulations”) apply. Consequently, Scottish Natural Heritage (NatureScot) is required to consider the effect of the proposal on the [cSAC/SAC/SPA] before it can be consented (commonly known as Habitats Regulations Appraisal). The NatureScot website has a summary of the legislative requirements for European sites.”. 

Only include the following sentence if a Ramsar site may be affected.  For Ramsar sites that have features which do not have an equivalent European site qualifying interest, please check with Protected Areas, Innovation and Data Activity about wording.

“[Name of site] Ramsar site may also be affected but any concerns about the interest of this designation are fully addressed as part of the following consideration of the European site(s).”

Use this wording in all relevant European site responses to introduce your appraisal of effects on a proposed SAC or proposed SPA.  These sites have policy protection:

“The proposal [lies within/ is close to/ could affect] [Name of site] [proposed Special Area of Conservation (pSAC) selected for its [List qualifying interest(s)]/ proposed Special Protection Area (pSPA) selected for its [List qualifying interest(s)].

The Scottish Government has a policy of protecting such sites as if they were designated (see policy 4 of the 4th National Planning Framework (NPF4)). The legal protection afforded to designated European sites is set out in the Conservation (Natural Habitats, &c.) Regulations 1994 as amended (the “Habitats Regulations”). Consequently, Scottish Natural Heritage (NatureScot) is required to consider the effect of the proposal on the [pSAC /pSPA] before it can be consented (commonly known as a Habitats Regulations Appraisal). The NatureScot website has a summary of the Scottish Government policy for proposed SACs and proposed SPAs.”

 Model Wording European site response a

“In our view, from the information available, it appears that in this case the proposal is [either/ both] directly connected with [and/ or] necessary for the conservation management of the site for its qualifying interest(s) [list qualifying interest(s)] in order to [add objective of management]. An appropriate assessment is not therefore required.”

Position relates to one of the scenarios below

Model Wording European site response b

“In our view, from the information available, it appears that in this case the proposal is not connected with or necessary for the conservation management of the site.  Hence, further consideration is required.”  [Continue letter with one of the responses below]

Model Wording European site response

“In our view, it is unlikely that the proposal will have a significant effect on any qualifying interests either directly or indirectly. An appropriate assessment is therefore not required.”

[Provide brief reasons to support this decision – this is particularly important for proposals within sites and for large-scale activities/proposals adjacent to sites]

For use in limited circumstances only - see above for further advice.

Model Wording European site response

“In our view, there is insufficient information to determine whether the proposal is likely to have a significant effect on [name of qualifying interest(s)] of [site]. In order for this to be determined, the following additional information should be provided.”

[Provide details or summary of the information required]

[if required] “Annex [X] contains full details and reasoning of these requirements.”

Model Wording European site response

“In our view, this proposal is likely to have a significant effect on [name of qualifying interest(s)] of [site]. Consequently, Scottish Natural Heritage (NatureScot) has carried out an appropriate assessment in view of the site’s conservation objectives for its qualifying interest(s). The appropriate assessment has ascertained that the proposal will not adversely affect the integrity of the site. 

Model Wording European site response

“In our view, this proposal is likely to have a significant effect on [name of qualifying interest(s)] of [site]. Consequently, Scottish Natural Heritage (NatureScot) has carried out an appropriate assessment in view of the site’s conservation objectives for its qualifying interest(s). The appropriate assessment has ascertained that an adverse effect on site integrity can be avoided by the following [changes/mitigation]:

[Provide detail or summary of the changes/ mitigation needed]

Model Wording European site response

“In our view, this proposal is likely to have a significant effect on [name of qualifying interest(s)] of [site]. Consequently, Scottish Natural Heritage (NatureScot) is required to carry out an appropriate assessment in view of the site’s conservation objectives for its qualifying interest(s). To enable us to carry out the appropriate assessment, the following information is required: [provide detail or summary of the information required]”

[if required] “Annex [X] contains full details and reasoning of these requirements.

Once this information has been provided, we will be able to give further consideration to this proposal”

“In our view, this proposal is likely to have a significant effect on [name of qualifying interest(s)] of [site]. Consequently, Scottish Natural Heritage (NatureScot) has carried out an appropriate assessment in view of the site’s conservation objectives for its qualifying interest(s). The appropriate assessment has not ascertained that the integrity of the site will not be adversely affected and we therefore do not [consent to/permit/authorise] the proposal. [Give specific details of factors covered highlighting where an adverse effect on integrity is expected or where it is not possible to ascertain that there will be no adverse effect.]”

The following glossary helps to define the key terms used within this guidance.  A translation document has also been produced to help explain changes to terminology used in the Habitats Regulations following EU exit.

Alternative solutions

Article 6.4 of the Habitats Directive and regulation 49 of the Habitats Regulations makes provision for certain plans or projects to proceed despite not having ascertained that they would not adversely affect the integrity of a European site, in the absence of alternative solutions, for imperative reasons of over-riding public interest. 

European Commission guidance advises that the ‘zero option’, i.e. the thorough revision or withdrawal of the plan or project adversely affecting the integrity of a site, must be considered at this stage.  Alternative solutions are alternative ways of delivering the stated objective(s) of the plan or project.  They might involve alternative locations or routes, different scales or designs of development, or alternative processes.  See stage 6 of this guidance for further details.

Appropriate assessment

Article 6.3 of the Habitats Directive requires that “any plan or project ... likely to have a significant effect ... shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives".  This requirement applies to all European sites and is carried through into regulation 48 of the Habitats Regulations.  For reserved matters, including consents under the Electricity Act 1989, The Conservation of Habitats and Species Regulations 2017, as amended, apply in Scotland.

An 'appropriate assessment' consists of two parts: an appraisal and a conclusion.  It considers the proposed plan or project and its impact on the qualifying interests, taking into account any possible effects in combination with other plans or projects.  An appropriate assessment must reach a conclusion as to whether it can be ascertained that the plan or project will not adversely affect the integrity of the site in view of the site’s conservation objectives.  See definitions under stage 4 and stage 5 of this guidance.

Article 6(3)

Article 6(3) of the Habitats Directive states “Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public”.

The terms of this Article have been transposed into Regulation 48 of the Habitats Regulations.

Article 6(4)

Article 6(4) of the Habitats Directive states “If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted”.

The terms of this Article have been transposed into Regulation 49 and 53 of the Habitats Regulations.

Compensatory measures

Where a plan or project must be carried out (in the absence of alternative solutions) for imperative reasons of over-riding public interest, Scottish Ministers have a duty to secure compensatory measures necessary to ensure that the overall coherence of the UK site network is protected (regulation 53 of the Habitats Regulations).  Compensatory measures should only be considered in this context. Compensatory measures are distinct from aspects of mitigation arising from the effects of plans and projects within a site. 

The intention is that any loss or impairment of extent or function on a site (that is, an adverse effect on site integrity) arising from a plan or project which proceeds (in the absence of alternative solutions) on grounds of over-riding public interest shall be compensated by measures taken elsewhere, normally (but not always) outwith the site, to ensure that the coherence of the UK site network and contribution to favourable conservation status are maintained.  These measures are independent of the plan or project and could include, for example, the creation of substitute habitat, or the addition of a new site to the network (although not one which should have been included in the first place).  These measures should be in place before the plan or project proceeds, they should relate specifically to the negative impacts on the habitat or species concerned, and they should be of at least the same extent or standard as the areas which will be lost or damaged.  It is anticipated that the areas created as compensatory measures will become new European sites or extensions to existing sites, thus ensuring the coherence of the network.  See section 8.5 of this guidance.

Competent authority

The term derives from the Habitats Regulations and relates to the duties which the Regulations impose on public bodies and individuals.  Regulation 6(1) defines competent authorities as "any Minister, government department, public or statutory undertaker, public body of any description or person holding a public office".  In the context of a plan or project, the competent authority is the authority with the power or duty to determine whether or not the proposal can proceed.

The duties of competent authorities are specified in other parts of the Regulations.  For example, all competent authorities have specifically articulated duties under regulation 48 of the Habitats Regulations, as applied by regulation 47.  In addition to these specific duties, all competent authorities are bound by the requirement in regulation 3(3) to exercise their functions with regard to the requirements of the Habitats and Birds Directives.

Conservation objectives

Article 6.3 of the Habitats Directive and regulation 48 of the Habitats Regulations requires any plan or project to be assessed “in view of the site’s conservation objectives”.  Conservation objectives thus have a legal status.

The conservation objectives should ensure that the obligations of the Directive are met; that is, there should not be deterioration or significant disturbance of the qualifying interests from their condition at the time the site is first given formal Ministerial approval.  This will also ensure that the integrity of the site is maintained and that each of the qualifying interests makes full contribution to favourable conservation status.  Where an interest or its supporting processes require restoration to meet these obligations then the conservation objectives should also set this out.

Since conservation objectives relate to legal obligations that must be met, non-European site concerns (for example objectives relating to non-qualifying interests, landscape, access, interpretation, etc.) cannot be included.

Deterioration and disturbance

Article 6.2 of the Habitats Directive sets out a fundamental obligation on Member States to take appropriate steps in relation to sites, to avoid "the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant".  Regulation 3(1) of the Habitats Regulations requires that “The Scottish Ministers, the appropriate nature conservation body and, in relation to the Scottish marine area, a competent authority must exercise their functions which are relevant to nature conservation, including marine conservation, so as to secure compliance with the requirements of the Directives”, and so including Article 6(2).  Articles 6.3 and 6.4 (and regulations 48 and 49 of the Habitats Regulations) set out a process for assessing new plans and projects designed to help achieve this obligation.  The obligation also relates to ongoing activities which, if likely to cause deterioration or significant disturbance, may require modification.  Conservation objectives should be designed to achieve, as a minimum, the obligation in Article 6.2. 

The baseline for assessing 'deterioration' is normally the condition of the interest at time of formal identification of the site.  However, for both natural and man-induced reasons, fluctuation in the population levels of qualifying species on sites very often occurs, particularly for birds.  In these circumstances deterioration would be considered in relation to the contemporary population, while using the population at the time of the site’s formal identification as a reference point and to judge trends.  Although qualifying habitats are less liable to significant short-term fluctuation in terms of their extent, the same approach is valid.  The key components of an interest which require maintenance to avoid deterioration are helpfully defined by the components of favourable conservation status as incorporated in the conservation objectives. 

What is 'significant disturbance'? Note that this particular factor is qualified by “significant”.  Not all disturbance will be significant and therefore the test is whether the disturbance is serious enough to adversely affect the species present, in particular their numbers, distribution, and capacity to maintain themselves on the site.  Disturbance which is trivial, short term, or easily reversible will not be significant.

European site

A European site is defined in regulation 10 of the Habitats Regulations (as amended) as:

• a Special Area of Conservation (SAC);
• a Special Protection Area (SPA);
• a site of Community importance which has been placed on the list referred to in the third sub-paragraph of Article 4(2) of the Habitats Directive before exit day; or a site which before exit day was included in a list of sites proposed to the European Commission (known as candidate SACs in the UK). 

The definition does not include proposed Special Protection Areas (pSPA), proposed Special Areas of Conservation (pSAC) or Ramsar sites.  The main importance of European site status is that virtually all of the Habitats Regulations relating to sites are activated by a site reaching this stage.  Prior to sites becoming European sites the majority of Regulations do not apply in Scotland and therefore pSPA and pSAC are protected through Government policy and guidance rather than by application of the Regulations.  Note that some aspects of the Regulations cannot be applied through policy (e.g. removal of permitted development rights, amendment of existing consents) and are dependent on the site becoming a European site.  However, it is sometimes possible to achieve similar results for pSAC and pSPA through other existing legislation.

Favourable conservation status (FCS)

Favourable conservation status (FCS) is defined within the Habitats Directive.  It relates to the long term distribution and abundance of the populations of species in their natural range, and for habitats to the long-term natural distribution, structure and functions as well as the long-term survival of its typical species in their natural range. It describes a situation in which individual habitats and species are maintaining themselves at all relevant geographical scales and with good prospects to continue to do so in the future. The main aim of the Habitats Directive is to promote the maintenance, and where necessary, the improved status of biodiversity. FCS should be interpreted in this light.

FCS is clearly intended to apply at the European Union level.  We interpret FCS at UK level as ‘making a contribution' to achieving FCS throughout the natural range of the habitat or species (natural range in the EU is usually taken to mean the Biogeographic region, i.e. for UK this is the Atlantic and Marine Atlantic regions).  The status of a habitat or species within the UK site network will contribute to achieving FCS.  For further details please refer to the joint UK statutory nature conservation bodies statement on the relevance and application of favourable conservation status.

Imperative reasons of overriding public interest

Article 6.4 of the Habitats Directive (and regulation 49 of the Habitats Regulations) makes provision for certain plans or projects to proceed despite not being able to ascertain that they will not adversely affect the integrity of a European site (both SAC and SPA) and where there are no alternative solutions.  Such plans can only proceed if there is a valid argument of "imperative reasons of over-riding public interest, including those of a social or economic nature".  Where priority qualifying interests are involved these reasons can only relate to human health, public safety, or to beneficial consequences of primary importance for the environment.  Other imperative reasons of overriding public interest may be considered in these circumstances, subject to an opinion from the Scottish Ministers.  See stages 8 and 9 of this guidance for further details. 

Habitats Regulations Appraisal

The term commonly used to describe the process of assessment under regulation 48 of the Habitats Regulations. 

In combination

Article 6.3 requires that “Any plan or project ... likely to have a significant effect... either individually or in combination with other plans or projects shall be subject to an appropriate assessment".  This applies to all European sites, both SAC and SPA.  This requirement is carried through into the Habitats Regulations.

While an individual project is self-explanatory, it is less clear what factors can be taken into account when determining 'in combination with'. The 2019 European Commission guidance gives helpful advice in this matter.  They advise that the underlying intention of this provision is to take account of cumulative impacts.  Cumulative impact can consist of projects undertaken over a period of time or several plans or projects all at the same time, or both.

Integrity of a site

Regulation 48 of the Habitats Regulations requires that any proposed plan or project can only be agreed to by a competent authority after having ascertained "that it will not adversely affect the integrity of the European site".  See stages 4 and 5 of this guidance. 

Likely significant effect

See definition given under stage 3 of this guidance.  In essence this means that where there is doubt over whether a significant effect is likely or not, and there is clear connectivity between the proposed plan or project and the qualifying interest(s) of the European site in terms of the conservation objectives, an appropriate assessment should be carried out.

Mitigation

The term 'mitigation' does not occur either in the Directives or the Habitats Regulations.  'Mitigation' relates to the consideration of plans and projects under Article 6.3 of the Habitats Directive and regulation 48 of the Habitats Regulations.  Where a plan or project could have an adverse effect on the integrity of a European site, but this can be eliminated by modifications to the proposal, or by insertion of conditions (for example, timing of implementation), then these fall under the term of 'mitigation'.  Such mitigation can occur within or outwith the site. Points to consider when assessing potential mitigation options are outlined in section 4.3. Not to be confused with compensatory measures. See section 8.5 of this guidance.

Plan or project

The 2019 European Commission guidance and caselaw indicates that the definition of a plan or project should be given a broad interpretation.  The Habitats Directive and Habitats Regulations do not limit the scope of either plan or project by reference to particular categories. 

The term ‘project’ should be taken to include both construction works and other interventions in the natural environment.  For example, a significant intensification of agricultural use could constitute a project under this interpretation.

Similarly, the term ‘plan’ has a very broad meaning.  Of obvious relevance are land use plans, both those which have direct legal effects for the use of land, and those which are applied indirectly.  An example of the latter would be a regional spatial plan which could form the basis for more detailed plans, or serve as a framework for development consents. 

Sectoral plans, such as transport network plans, waste management plans and water management plans, also come within the scope of regulation 48, again in so far as they are likely to have a significant effect on a European site.

General policy statements should not generally be considered as plans or projects, especially if any initiatives deriving from such statements must pass through the intermediary of a land use or sectoral plan.  However, where the link between the content of such an initiative and likely significant effects on a European site is very clear and direct, regulation 48 should be applied.

Priority habitats and species

Article 1 of the Habitats Directive sets out the purpose of the Directive.  It identifies at 1(d) priority natural habitat types as those "in danger of disappearance ... and for the conservation of which the Community has particular responsibility".  Priority species are also defined in Article 1(h) as endangered species for the conservation of which the Community has particular responsibility.

There are no priority species occurring as qualifying interests of any SAC in Scotland.  No bird species, including those listed on Annex I of the Birds Directive, has priority status in the context of the Habitats Directive. Priority habitats which occur as qualifying interests in SACs in Scotland can be found in a list of priority habitats in Scotland.

In cases where it has not been possible to ascertain that a plan or project will not adversely affect the integrity of a European site there may be certain instances where the proposal may proceed for imperative reasons of overriding public interest (regulation 49 of the Habitats Regulations).  Regulation 49 states that where a site hosts a priority habitat or species, the only considerations which may be raised relate to human health or public safety; beneficial consequences of primary importance to the environment; or other imperative reasons agreed with the Scottish Ministers.  See stage 7 and stage 9 of this guidance for further details.

Review of consents

This is not a specified requirement of the Directives.  However, given the obligation upon Member States in Article 6.2 of the Habitats Directive, there may be certain ongoing activities which were permitted prior to the site being identified which, if allowed to continue, are likely to adversely affect the integrity of a site.  Accordingly, the Habitats Regulations make provision for review of consents in certain circumstances.

All competent authorities are required to review consents for which they are responsible.  The main duty to review existing decisions and consents is set out in regulation 50 of the Habitats Regulations.

UK site network

The UK site network is a network of protected areas made up of SPAs and SACs.  Since EU exit SPAs and SACs in Scotland are no longer considered to form part of the EU Natura 2000 network.