In Scotland, a proposed Special Area of Conservation (pSAC) or proposed Special Protection Area (pSPA) are sites that have been approved for consultation by the Scottish Government but are not yet designated/classified.
The Scottish Government has a policy of protecting such sites as if they were designated. This policy is set out in paragraphs 207 to 210 of Scottish Planning Policy. The UK Government has a similar policy1 which applies in relation to reserved matters2 in Scotland.
The legal protection afforded to designated European sites3 is set out in the Conservation (Natural Habitats, &c.) Regulations 1994 as amended (‘the Habitats Regulations’), or for reserved matters, the Conservation of Habitats and Species Regulations 2017 (the ‘2017 Regulations’).
Accordingly, when a plan or project has the potential to affect a pSPA or pSAC competent authorities should apply the procedural requirements of Regulation 48 of the Habitats Regulations or, with respect to reserved activities, regulation 63 of the 2017 Regulations.
This means that the competent authority should:
- determine whether the proposal is directly connected with or necessary to site management for conservation; and, if not,
- determine whether the proposal is likely to have a significant effect on the site either individually or in combination with other plans or projects; and, if so, then
- make an appropriate assessment of the implications (of the proposal) for the site in view of that site's conservation objectives
(This consideration is commonly known as Habitats Regulations Appraisal (HRA) and extends where appropriate to plans or projects outwith the boundary of the site in order to determine their implications for the interests protected within the site.)
If significant effects are unknown or likely, the competent authority can only agree to the proposal if it can be ascertained by means of the appropriate assessment that the proposal will not adversely affect the integrity of the site and having first consulted and had regard to any representations made by SNH (NatureScot).
If it is not possible to ascertain that the proposal will not adversely affect the integrity of the site and there are no alternative solutions, the proposal can only be allowed to proceed if there are imperative reasons of overriding public interest for doing so (and having obtained any necessary compensatory measures).
Where a priority habitat4 is affected reasons of overriding public interest can relate only to human health, public safety, beneficial consequences of primary importance for the environment or other reasons subject to the opinion of the Scottish Ministers. Where no priority habitat is affected imperative reasons of overriding public interest can include those of a social or economic nature.
If a competent authority proposes to approve a plan or project on the grounds of imperative reasons of overriding public interest then regulation 49 of the Habitats Regulations5 states that the competent authority must inform Scottish Ministers (or the Secretary of State) and must not issue approval for a period of 21 days after receipt by Scottish Ministers (or the Secretary of State) unless notified otherwise6.
If proposals are allowed to proceed in accordance with regulation 495 then it should be noted that regulation 537 requires that Scottish Ministers (or the Secretary of State)5 shall secure that any necessary compensatory measures are taken to ensure that the overall coherence of the UK site network is protected.
1 Ministry of Housing, Communities and Local Government (2019). The National Planning Policy Framework. Ministry of Housing, Communities and Local Government, London (paragraph 176)
2 Reserved matters (within the meaning of Schedule 5 of the Scotland Act 1998) include: activities consented under sections 36 or 37 of the Electricity Act 1989; activities consented under the Pipelines Act 1962; matters related to the exploration for, and exploitation of, deposits of oil and natural gas; and matters related to defence of the realm.
3 In Scotland, European sites are defined in regulation 10 of the Habitats Regulations and include candidate SACs, designated SACs and classified SPAs.
4 Priority habitats (within the meaning of the Habitats Directive and the Habitats Regulations) which occur as qualifying interests in SACs in Scotland can be found in a list of priority habitats in Scotland. Priority habitats are not qualifying interests of SPAs and there are no European sites designated for any priority species in Scotland.
5 Or regulation 64, as modified by regulation 67(3)(c), of the 2017 Regulations for reserved matters.
6 Scottish Ministers are the competent authority in relation to considerations under regulations 49 and 53 of the 1994 Habitats Regulations. Scottish Ministers are also the appropriate authority in relation to regulations 64 to 68 of the 2017 Regulations for activities consented under sections 36 or 37 of the Electricity Act 1989 and activities consented under the Pipelines Act 1962. For reserved matters other than Electricity and Pipelines, the appropriate authority in relation to these provisions is the Secretary of State (Westminster).
7 Or regulation 68, as modified by regulation 69(3)(c), of the 2017 Regulations for reserved matters.
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