The Conservation (Natural Habitats, &c.) Regulations 1994

[F1 [F2 PART IVA E+W+S APPROPRIATE ASSESSMENTS FOR LAND USE PLANS

Textual Amendments

F1 Regulations revoked (E.W.) (1.4.2010 except so far as relating to the revocation in relation to W. of reg. 36 and specified words in reg. 3(3)) by The Conservation of Habitats and Species Regulations 2010 (S.I. 2010/490), regs. 1(2)(4)(b), 133(3) (with regs. 125, 134)

F2 Pt. 4A inserted (S.) (15.2.2007) by The Conservation (Natural Habitats, &c.) Amendment (Scotland) Regulations 2007 (S.S.I. 2007/80), reg. 2, sch. 1

Interpretation E+W+S

85A.— (1) In this Part—

“the 1997 Planning Act” means the Town and Country Planning (Scotland) Act 1997;

[F3 “land use plan” means a strategic development plan or local development plan or supplementary guidance as provided for in Part 2 of the 1997 Planning Act;]

“plan making authority” means—

(a)

a planning authority;

(b)

the Loch Lomond and the Trossachs National Park Authority and the Cairngorms National Park Authority;

(c)

[F4 the Scottish Ministers when exercising powers under section 13 (approval or rejection of strategic development plans), 20 (constitution of local development plans) or section [F5 23B] (default powers of the Scottish Ministers) of the 1997 Planning Act];

“planning authority” has the meaning given in section 1 of the 1997 Planning Act.

(2) References in this Part to giving effect to a land use plan are to—

(a) the adoption by a planning authority, the Loch Lomond and the Trossachs National Park Authority or the Cairngorms National Park Authority of [F6 a local development plan under section 20] of the 1997 Planning Act;

[F7 (aa) the adoption of supplementary guidance under section 22 of the 1997 Planning Act;]

(b) the approval by the Scottish Ministers of [F8 a strategic development plan under section 13 or a local development plan under section 20] of the 1997 Planning Act.

Textual Amendments

F3 Words in reg. 85A(1) substituted (S.) (28.2.2009) by The Planning etc. (Scotland) Act 2006 (Development Planning) (Saving, Transitional and Consequential Provisions) Order 2008 (S.S.I. 2008/427), arts. 1(1), 8(2)(a)

F4 Words in reg. 85A(1) substituted (S.) (28.2.2009) by The Planning etc. (Scotland) Act 2006 (Development Planning) (Saving, Transitional and Consequential Provisions) Order 2008 (S.S.I. 2008/427), arts. 1(1), 8(2)(b)

F5 Word in reg. 85A(1) substituted (S.) (16.11.2009) by The Town and Country Planning (Miscellaneous Amendments) (Scotland) (No. 2) Regulations 2009 (S.S.I. 2009/343), regs. 1, 2(2)

F6 Words in reg. 85A(2)(a) substituted (S.) (28.2.2009) by The Planning etc. (Scotland) Act 2006 (Development Planning) (Saving, Transitional and Consequential Provisions) Order 2008 (S.S.I. 2008/427), arts. 1(1), 8(3)(a)

F7 Reg. 85A(2)(aa) inserted (S.) (28.2.2009) by The Planning etc. (Scotland) Act 2006 (Development Planning) (Saving, Transitional and Consequential Provisions) Order 2008 (S.S.I. 2008/427), arts. 1(1), 8(3)(b)

F8 Words in reg. 85A(2)(b) substituted (S.) (28.2.2009) by The Planning etc. (Scotland) Act 2006 (Development Planning) (Saving, Transitional and Consequential Provisions) Order 2008 (S.S.I. 2008/427), arts. 1(1), 8(3)(c)

Assessment of implications for European site E+W+S

85B.— (1) Where a land use plan—

(a) is likely to have a significant effect on a European site in Great Britain [F9 or a European offshore marine site] (either alone or in combination with other plans or projects); and

(b) is not directly connected with or necessary to the management of the site,

the plan-making authority for that land use plan shall, before the plan is given effect, make an appropriate assessment of the implications for the site in view of that site's conservation objectives.

(2) The plan-making authority shall for the purposes of the assessment consult the appropriate nature conservation body and have regard to any representations made by that body within such reasonable time as the authority may specify.

(3) The plan-making authority shall, if it considers it appropriate, take the opinion of the general public, and in doing so, shall take such steps for that purpose as it considers appropriate.

(4) In the light of the conclusions of the assessment, and subject to regulation 85C (considerations of overriding public interest), the plan-making authority shall give effect to the land use plan only after having ascertained that it will not adversely affect the integrity of the European site [F10 or the European offshore marine site (as the case may be)].

(5) A plan-making authority other than the Scottish Ministers shall provide such information as the Scottish Ministers may reasonably require—

(a) to enable the Scottish Ministers to determine whether an assessment under paragraph (1) is required; or

(b) for the purposes of an assessment under paragraph (1).

[F11 (6) This regulation does not apply in relation to a site which is—

(a) a European site by reason of regulation 10(1)(c); or

(b) a European offshore marine site by reason of regulation 15(c) of the 2007 Regulations.]

Textual Amendments

F9 Words in reg. 85B(2) inserted (S.) (21.8.2007) by virtue of The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007 (S.I. 2007/1843), regs. 2(1), 5(51)(a) (with reg. 9)

F10 Words in reg. 85B(4) inserted (S.) (21.8.2007) by virtue of The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007 (S.I. 2007/1843), regs. 2(1), 5(51)(b) (with reg. 9)

F11 Reg. 85B(6) substituted (S.) (21.8.2007) by virtue of The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007 (S.I. 2007/1843), regs. 2(1), 5(51)(c) (with reg. 9)

Considerations of overriding public interest E+W+S

85C.— (1) If the plan making authority is satisfied that, there being no alternative solutions, the land use plan must be given effect for imperative reasons of overriding public interest (which subject to paragraph (2), may be of a social or economic nature), it may give effect to the land use plan notwithstanding a negative assessment of the implications for the European site [F12 or the European offshore marine site (as the case may be)].

(2) Where the site concerned hosts a priority natural habitat type or a priority species, the reasons referred to in paragraph (1) must be either—

(a) reasons relating to human health, public safety or beneficial consequences of primary importance to the environment; or

(b) any other reasons of overriding public interest provided the competent authority has had regard to the opinion of the European Commission in satisfying themselves that there are such reasons.

(3) Where a plan-making authority, other than the Scottish Ministers, desires to obtain the opinion of the European Commission as to whether reasons are to be considered imperative reasons of overriding public interest, it shall submit a written request to the Scottish Ministers—

(a) identifying the matter on which an opinion is sought; and

(b) accompanied by any documents or information which may be required.

(4) The Scottish Ministers may seek the opinion of the European Commission and shall transmit the opinion to the plan-making authority.

(5) Where a plan-making authority other than the Scottish Ministers proposes to give effect to a land use plan under this regulation notwithstanding a negative assessment of the implications for [F13 the site concerned], it shall notify the Scottish Ministers.

(6) Having notified the Scottish Ministers under paragraph (5), the authority in question shall not give effect to the land use plan before the end of the period of 21 days beginning with the day notified to it by the Scottish Ministers as that on which the notification was received by them, unless the Scottish Ministers notify the authority that it may do so.

(7) Without prejudice to any other power, the Scottish Ministers may give directions to the plan making authority prohibiting it from giving effect to the land use plan, either indefinitely or during such period as may be specified in the direction.

Textual Amendments

F12 Words in reg. 85C(1) inserted (S.) (21.8.2007) by virtue of The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007 (S.I. 2007/1843), regs. 2(1), 5(52)(a) (with reg. 9)

F13 Words in reg. 85C(5) substituted (S.) (21.8.2007) by virtue of The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007 (S.I. 2007/1843), regs. 2(1), 5(52)(b) (with reg. 9)

Co-ordination for land use plan prepared by more than one planning authority E+W+S

85D.— (1) This regulation applies where two or more planning authorities prepare [F14 a strategic development plan under section 4 or a joint local development plan under section 16] of the 1997 Planning Act.

(2) Nothing in regulation 85B(1) requires a planning authority to assess any implications of [F15 a strategic development plan or a joint local development plan] which would be more appropriately assessed under that provision by another planning authority.

(3) The Scottish Ministers may issue guidance to planning authorities for the purposes of regulation 85B(1) as to the circumstances in which a planning authority may or should adopt the reasoning or conclusions of another planning authority as to whether [F16 a strategic development plan or a joint local development plan]—

(a) is likely to have a significant effect on a European site [F17 or a European offshore marine site], or

(b) will adversely affect the integrity of a European site [F18 or a European offshore marine site].

(4) The planning authorities involved shall have regard to any guidance issued under paragraph (3) in discharging their functions under regulation 85B(1).

(5) In determining whether [F19 a strategic development plan or a joint local development plan] should be adopted under regulation 85C(1) a planning authority shall seek and have regard to the views of other planning authorities involved.

Textual Amendments

F14 Words in reg. 85D(1) substituted (S.) (28.2.2009) by The Planning etc. (Scotland) Act 2006 (Development Planning) (Saving, Transitional and Consequential Provisions) Order 2008 (S.S.I. 2008/427), arts. 1(1), 8(4)(a)

F15 Words in reg. 85D(2) substituted (S.) (28.2.2009) by The Planning etc. (Scotland) Act 2006 (Development Planning) (Saving, Transitional and Consequential Provisions) Order 2008 (S.S.I. 2008/427), arts. 1(1), 8(4)(b)

F16 Words in reg. 85D(3) substituted (S.) (28.2.2009) by The Planning etc. (Scotland) Act 2006 (Development Planning) (Saving, Transitional and Consequential Provisions) Order 2008 (S.S.I. 2008/427), arts. 1(1), 8(4)(b)

F17 Words in reg. 85D(3)(a) inserted (S.) (21.8.2007) by virtue of The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007 (S.I. 2007/1843), regs. 2(1), 5(53) (with reg. 9)

F18 Words in reg. 85D(3)(b) inserted (S.) (21.8.2007) by virtue of The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007 (S.I. 2007/1843), regs. 2(1), 5(53) (with reg. 9)

F19 Words in reg. 85D(5) substituted (S.) (28.2.2009) by The Planning etc. (Scotland) Act 2006 (Development Planning) (Saving, Transitional and Consequential Provisions) Order 2008 (S.S.I. 2008/427), arts. 1(1), 8(4)(c)

Compensatory measures E+W+S

85E.   Where in accordance with regulation 85C a land use plan is given effect, notwithstanding a negative assessment of the implications for a European site [F20 or a European offshore marine site], the Scottish Ministers shall secure that any necessary compensatory measures are taken to ensure that the overall coherence of Natura 2000 is protected.]

Textual Amendments

F20 Words in reg. 85E inserted (S.) (21.8.2007) by virtue of The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007 (S.I. 2007/1843), regs. 2(1), 5(54) (with reg. 9)

National Policy Statements E+W+S

F21 85F.   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F21 Reg. 85F revoked (1.4.2010) by The Conservation of Habitats and Species Regulations 2010 (S.I. 2010/490), regs. 1(2), 133(2)(f) (with regs. 125, 134)