The government has published guidance about national infrastructure planning which applicants, members of the public and other parties should read. See the National Infrastructure Planning Guidance Portal. The guidance should be read alongside the Planning Act 2008 (the Planning Act). 

This advice is non-statutory. However, the Planning Inspectorate’s advice about running the infrastructure planning regime and matters of process is drawn from good practice and applicants and others should follow our recommendations. It is intended to complement the legislation, regulations and guidance issued by government and is produced under section 51 of the Planning Act. 

This advice should be read together with government guidance on the Planning Act process.  

What is a Habitats Regulations Assessment?  

The Conservation of Habitats and Species Regulations 2017 (as amended) and The Conservation of Offshore Marine Habitats and Species Regulations 2017 (for plans and projects beyond UK territorial waters (12 nautical miles)) (hereafter collectively referred to as the ‘Habitats Regulations’) provide for the designation of sites in England that are important for protecting certain species and habitats. These sites are known as ‘European sites’ or ‘Habitats sites’ and form part of a network of protected sites across the UK known as the ‘National Site Network’. 

‘European site’ refers to protected sites across the United Kingdom, and for ease of reading is used in this advice to describe both European sites and European offshore marine sites.  

These sites include:  

• Special Areas of Conservation (SAC) 
• Candidate Special Areas of Conservation (cSAC) 
• Special Protection Areas (SPA) 

Government policy also requires other protected sites to be treated as if they are designated European sites: 

• proposed SACs 
• potential SPAs 
• Ramsar sites - wetlands of international importance (both listed and proposed) 
• areas identified or required to compensate for damage to a European site 

The Habitats Regulations establish several stages of assessment to determine if a plan or project may affect the protected features of a European site before a Competent Authority decides whether to undertake, permit or authorise it.  

The relevant Secretary of State is the Competent Authority for the purposes of the Habitat Regulations. The term ‘HRA’ is used to describe the steps in the assessment process, which are screening for likely significant effects, appropriate assessment and applying derogations where required. 

If a proposed development is likely to have a significant effect on a European site, either from the proposed development alone or in combination with other plans or projects, an appropriate assessment is required (regulation 63).  

Where an appropriate assessment has been carried out and results in a negative assessment (where adverse effects cannot be ruled out), consent can only be granted if the following tests known as ‘derogations’ (regulations 64 and 68) are met:  

• there are no alternative solutions 
• there are Imperative Reasons of Overriding Public Interest (IROPI) 
• compensatory measures have been secured 

Legislation and Guidance 

Applicants should be aware of: 

• The Conservation of Habitats and Species Regulations 2017 (as amended) 
• The Conservation of Offshore Marine Habitats and Species Regulations 2017 (as amended) The Planning Act 2008 
• relevant National Policy Statements (England and Wales) 
• National Planning Policy Framework (England) 
• Planning Policy Wales   
• Technical Advice Note 5 (TAN 5) Nature Conservation and Planning (Wales)  
• Government Circulars such as ODPM Circular 06/2005: Biodiversity and Geological Conservation – Statutory Obligations and their Impact within the Planning System 
• The Department for Energy Security and Net Zero (successor body to the Department of Energy and Climate Change) Guidelines on the assessment of transboundary impacts of energy developments on Natura 2000 sites outside the UK  
• Habitats Regulations Assessments: Protecting a European site (2021) issued jointly by the Department for Environment, Food & Rural Affairs (Defra), Natural England, Welsh Government, and Natural Resources Wales 
• Ministry of Housing, Communities & Local Government Planning Practice Guidance on Appropriate Assessment 

Applicants may also find the following guidance helpful:  

• European Commission (2021) Assessment of plans and projects in relation to Natura 2000 sites – Methodological Guidance on the Provisions of Article 6(3) and (4) of the Habitats Directive 92/43/EEC 
• European Commission (2018) Managing Natura 2000 Sites – the Provisions of Article 6 of the ‘Habitats’ Directive 92/43/EEC 
• Opinion of the Commission (2007/2012) Guidance Document on Article 6(4) of the Habitats Directive 92/43/EEC  
• European Commission (2020) Guidance Document on Wind Energy Developments and EU Nature Legislation 
• European Commission (2018) Guidance on Energy Transmission Infrastructure and EU Nature Legislation 
• European Commission (2011) Guidance Document – The Implementation of Birds and Habitats Directives in Estuaries and Coastal Zones  

It is the applicant’s responsibility to ensure their NSIP application complies with all relevant policy, legislation, case law and guidance. 

The Habitats Regulations Assessment process 

Guidance by Defra, Welsh Government, Natural England and Natural Resources Wales on Habitats regulations assessments: protecting a European site (the ‘joint guidance’) explains the different stages of the HRA process. Applicants may not need to complete all the stages; this will depend on what decisions are reached at each stage.  

The stages are (in order): 

• screening – to check if the proposal is likely to have a significant effect on the site’s conservation objectives, alone or in combination with other plans or projects 
• appropriate assessment/consideration of effects on site integrity – to assess the implications of the proposal for the qualifying features of the European site or sites, in view of the site’s conservation objectives, and identify ways to avoid or minimise any effects 
• derogation – to consider if proposals that would have an adverse effect on the integrity of a European site qualify for an exemption

The derogation stage involves (in order): 

• the consideration of alternative solutions 
• consideration of IROPI 
• securing compensatory measures which would maintain the coherence of the UK National Site Network 

Each test must be passed in sequence for a derogation to be granted. 

An Applicant’s Habitats Regulations Assessment  

Applicants applying for development consent must provide the Competent Authority with such information as reasonably required for the purposes of an appropriate assessment or to enable it to decide if an assessment is required. If insufficient information is submitted with an NSIP application then it may not be accepted for examination. 

This information can take the form of: 

• a brief statement confirming that there are no pathways that could lead to effects on a European site from the proposed development, or 
• a No Significant Effects Report (NSER), where screening shows, on the basis of objective scientific evidence, that likely significant effects on European sites would not occur, or 
• an HRA Report where significant effects on European sites cannot be excluded. Where applicable, the HRA Report should also include information on meeting the derogation tests 

If the information provided with the NSIP application is insufficient, the application may not be accepted for examination.  

At the pre-application stage, applicants should get advice from the appropriate nature conservation body, or bodies, (ANCB) as listed in the Habitats Regulations (and other stakeholders if needed), to ensure that all potential effects have been considered and in enough detail before the NSIP application is submitted. Evidence of the consultation outcome should be attached to the NSER or HRA Report.  

Applicants may find it helpful to use the Evidence Plan process to agree and record at an early stage the information to be provided to the Planning Inspectorate where the proposed development may have likely significant effects on a European site or sites.  

An Evidence Plan is a way for applicants to agree with the ANCBs and possibly other stakeholders on the information to be included in the HRA Report, such as the scope of the assessment, any surveys required, and the methodology. 

Evidence Plans, Principal Areas of Disagreement Summary Statements (PADS) or signed Statements of Common Ground (SoCG) with ANCBs submitted with NSIP applications, could include statements relating to:  

• the European sites and qualifying features identified and considered in the NSER or HRA Report (or both) 
• the baseline data 
• chosen methodology 
• stage of the HRA process reached 
• conclusions on the likely significant effect or adverse effects on integrity (AEoI) on the site (or both)  
• where the ANCBs agree that effects on European sites can be wholly excluded 

Applicants may want to submit draft NSER or HRA Reports to the Planning Inspectorate for comment before an NSIP application is made. Applicants should be aware that the Planning Inspectorate’s capacity to provide comments will depend on staff availability.  

Applicants should discuss with the Planning Inspectorate when to share draft documents to get the most benefit from its pre-application service. Applicants should also share draft documents with the relevant ANCB and address any comments received. 

Stage 1: Screening for likely significant effects 

Screening confirms whether the plan or project itself or in combination with other plans or projects, will result in a likely significant effect. Screening considers the characteristics of the proposed development and whether there are any potential pathways that could lead to effects on a European site. 

The Competent Authority will need to be satisfied that it agrees with the applicant’s conclusions. The views of the ANCB and a relevant non-statutory body, or bodies, may be relevant to this process and should be obtained early by the applicant during the pre-application stage. If the risk of the proposal alone having a likely significant effect cannot be ruled out on the basis of objective scientific evidence, an appropriate assessment will be required. 

If the effect from a proposed development alone is not significant, the applicant must still consider the effects of other plans or projects affecting the same European site or sites and qualifying feature or features. If, in combination with other plans or projects, the proposed development could have a likely significant effect, an appropriate assessment will be required. 

There is no legal definition of what constitutes a plan or project for the purposes of the Habitats Regulations. The Planning Inspectorate advises that the following should be considered for the HRA in combination assessment (this is not a complete list): 

• projects under construction 
• permitted application or applications not yet developed 
• submitted application or applications not yet decided   
• refused plans or projects subject to an appeal but not yet decided 
• projects on the Planning Inspectorate’s national infrastructure programme of projects 
• projects identified in the relevant development plan (and emerging development plans – with appropriate weight being given as they move closer to adoption) 

Applicants should consider future European site designations or amendments to qualifying features which could be affected by the proposed development. These are sites which are likely to qualify as European sites under government policy. Applicants should seek the advice of the relevant ANCBs to identify any such sites. The current status of the European site should be clearly explained in the NSER/HRA Report.  

The Court of Justice of the European Union’s judgment in People Over Wind and Sweetman v Coillte Teoranta (Case C-323/17) clarified that Competent Authorities when making screening decisions cannot take into account measures intended to avoid or reduce harmful effects.  

If it is decided that no likely significant effect could occur to European sites and their qualifying features without such measures being delivered, it is not necessary to proceed to the next stages of HRA.  

Applicants may consider and that measures are integral or incorporated within the NSIP application and not intended specifically to avoid or reduce effects on any European site. However, applicants are encouraged to take a precautionary approach and progress any such measure to HRA Stage 2.  

Screening outcomes 

The general approach to assessment should be iterative and should evolve through the pre-application project phase as the project develops so the final version of the screening is robust. To avoid confusion however, a single final version of the Stage 1 screening should be submitted with the Development Consent Order (DCO) application. 

Applicants need to conclude from evidence gathered and any ANCB consultation responses received that one of the following applies: 

• no possible effect on/ no potential effect pathways to any European site and its qualifying features from the proposed development (set out in a statement provided with the NSIP application), or 
• likely significant effects on a European site or sites because of the proposed development, alone or in combination with other plans or projects, can be excluded so there is no need to progress to HRA Stage 2 (a NSER provided with the NSIP application), or 
• the existence of likely significant effects on a European site or sites and qualifying features cannot be excluded, either alone or in combination with other plans or projects, and an appropriate assessment by the Competent Authority is likely to be required  

Stage 2: Appropriate Assessment - the ‘integrity test’ 

Appropriate assessment is required where likely significant effects on a European site or sites from the proposed development alone or in combination with other plans or projects, cannot be ruled out.  

Applicants need to consider whether these likely significant effects will adversely affect the integrity of the European site or sites in view of its conservation objectives. The conservation objectives for each European site considered at HRA Stage 2 must be provided within the HRA Report. 

At this stage, the applicant’s HRA Report should: 

• summarise the findings of the HRA Stage 1 Screening, including listing those European sites and qualifying features that have been screened out of further assessment 
• provide a clear description of the proposed development, including all elements that may lead to likely significant effects or a cross reference to the project description in any environmental statement included in the application documents 
• identify which European sites and qualifying features are being subject to an appropriate assessment, including information on their current conservation status (if known) and site condition 
• provide an assessment of how elements of the proposed development would result in a likely significant effect to the European site or sites and qualifying features, alone or in combination with other plans or projects, in view of the conservation objectives and based on the best scientific knowledge in the field 
• identify the projects or plans considered in the in-combination assessment, as applicable 
• identify any mitigation measures relied upon and how these are secured through the draft Development Consent Order (or other mechanisms) 
• provide information on how the measures will be implemented and monitored, their effectiveness, and timescales for implementing them fully 
• include any advice from relevant ANCBs on the applicant’s assessment, including the conclusion and any measures proposed 
• provide a clear conclusion on whether an AEoI of a European site can be ruled out, alone or in combination with other plans and projects  

Stage 3: Derogations 

Where AEoI of a European site cannot be ruled out, a proposal may be able to go ahead through a derogation under the Habitats Regulations. There are 3 legal tests which must be met and each needs to be passed for a derogation to be granted (see below).  

Applicants should also follow the advice on derogations in the NPS relevant to their project. Where required by the relevant NPS, if during the pre-application stage, an ANCB indicates that the development is likely to adversely impact a European site, applicants must include with their DCO application the information necessary to assess potential derogations under the Habitats Regulations.  

This information can be provided with the DCO application on a ‘without prejudice’ basis to the Secretary of State’s final decision on whether the derogations are engaged. 

The 3 tests are: 

Test 1: Assessment of Alternative Solutions 

The applicant should provide an assessment which: 

• identifies and assesses the alternative solutions that have been considered 
• defines the objectives of the proposed development 
• explains how the proposed development may adversely affect a European site  
• includes a comparison of the Proposed Development and any alternative solutions considered against the ‘do nothing’ option 

Alternative solutions could include a different site, route across a site, or a different scale, size, design, method or timing of the proposed development. Applicants should provide the evidence to enable the Competent Authority to reach its conclusion. 

An alternative solution is acceptable if it: 

• achieves the same overall objective as the original proposal 
• is financially, legally and technically feasible 
• is less damaging to the European site and does not have an AEoI of this or any other European site 

The joint guidance provides examples of alternatives that may not meet the original objective and as such would not need to be considered, for example proposals that offer nuclear instead of offshore wind energy, rail instead of road transportation, or imports freight in a different way instead of increasing port capacity. 

Test 2: Consideration of Imperative Reasons of Overriding Public Interest (IROPI) 

Where no feasible alternative solutions exist, the proposed development may still be allowed if the Competent Authority is satisfied that it must be carried out for IROPI. 

Applicants should provide with their HRA Report the evidence and arguments justifying the Proposed Development, despite the harmful effects it will or could have on the European site or sites. The case for IROPI in the HRA Report should explain the reasons for it being: 

• imperative – essential that it proceeds for public interest reasons 
• in the public interest – that it has benefits for the public, not just benefits for private interests 
• overriding – that the public interest outweighs the harm, or risk of harm, to the integrity of the European site as predicted by the appropriate assessment 

The joint guidance identifies that national strategic plans, policy statements and major projects are more likely to have a high level of public interest and be able to show they are imperative and overriding.  

Applicants must make it clear in the HRA Report if the qualifying feature or features affected is a priority habitat or species. In such cases, the IROPI justification can normally only consider reasons of public interest that relate to human health, public safety, beneficial consequences of primary importance to the environment.  

If other reasons of overriding public interest are being considered, such as social or economic benefits, and a priority habitat or species would be affected, the Competent Authority must get the opinion of the Appropriate Authority (who is usually the Secretary of State or Welsh ministers, as defined in the Habitats Regulations) 

Test 3: Compensatory Measures 

If there are no feasible alternative solutions and it has been shown that there are imperative reasons of overriding public interest, the appropriate authority (usually the Secretary of State) must ensure that any compensatory measures are taken to protect the overall coherence of the National Site Network.  

The compensatory measures need to fully offset for the adverse effects of the Proposed Development. The joint guidance specifies appropriate considerations for the compensatory measures, including: 

• technical feasibility 
• financial viability 
• how it would be undertaken, managed and monitored  
• distance from the affected European site 
• how long it would take for the compensatory measures to achieve the required quality and amount of habitat 

The joint guidance advises that compensatory measures should be in place and effective before the negative effect on a European site or sites begins. 

Compensatory measures relied on by the applicant should be outlined in the HRA Report, including as much information as possible on the likely legal, financial and technical arrangements and any monitoring proposals. This will help to reduce delays in deciding whether a DCO should be granted for a project. The applicant should explain how their proposals would ensure that the coherence of the national site network would be maintained. 

Acceptance and Examination 

A summary of the process following submission of an NSIP application is provided in the Planning Inspectorate’s Advice for Members of the Public. 

The Planning Inspectorate is not able to request further information to supplement the NSIP application during the acceptance stage. Applicants should be aware that there is a risk that the NSIP application may not be accepted for examination if the information for the HRA provided is inadequate. 

The Examining Authority may require the applicant to provide additional information during examination of the NSIP application if it is reasonably required for the Competent Authority to undertake its assessment. If this information cannot be provided during the examination, the Examining Authority may recommend that the Secretary of State refuses consent or consider requesting an extension to the timetable. 

The Report on the Implications for European Sites (RIES) 

During the examination, a Report on the Implications of European Sites (RIES) may be published by the Examining Authority. This report compiles, documents and signposts information relating to HRA up to a specified examination deadline. It is produced to highlight the HRA issues that have been the focus of the examination and identify any issues which remain in dispute or where there is uncertainty at the time it is issued.  

The information may be drawn from the DCO application or from representations by the applicant, the ANCB and interested parties. The RIES also identifies whether the derogations has been discussed in the examination. 

The RIES may contain questions for the ANCB, applicants and/or other interested parties to help the Examining Authority clarify any areas of uncertainty. The publication of the RIES may be relied on by the Secretary of State to meet the Competent Authority’s consultation duties (regulation 63(3) of the Habitats Regulations and/or regulation 28(4) of the Offshore Marine Regulations). 

The time allowed for consultation on the RIES will be decided by the Examining Authority as part of the examination timetable. The responses from the ANCBs, applicants and interested parties to the consultation are published and will be considered by the Examining Authority in making its recommendation to the Secretary of State. The RIES is not revised following consultation. 

Other Considerations 

Relationship with Environmental Impact Assessment (EIA) 

Most NSIP applications are likely to require both HRA and Environmental Impact Assessment (EIA). The EIA will assess effects on European sites and will include an assessment of effects on flora and fauna (as defined in The Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (as amended) (the EIA Regulations). This information is likely to inform the applicant’s HRA Report.  

The EIA and HRA processes are distinct from each other, as they stem from different requirements in the EIA Regulations and the Habitats Regulations. But they also coexist.  While the outcome of the EIA as reported in the Environmental Statement identifies likely significant environmental effects from the proposed development, these do not stop the decision maker from granting authorisation. Whereas significant effects resulting in AEoI to a European site identified through the HRA process may do so. 

The EIA Regulations require the Secretary of State or relevant authority, where appropriate, to co-ordinate HRA and EIA. If applicants choose to combine the information in a single document, they should ensure that the information relevant to the HRA and its conclusions is clearly defined. 

Co-ordinating parallel consents and other appropriate assessment 

NSIP applications are likely to require separate licences or permits under other regulatory regimes. Activities requiring consent not included, or not capable of being included, in an NSIP application may also have a significant effect on a European site. It may also require an appropriate assessment by a different Competent Authority before the application can be authorised. 

Applicants should consult other Competent Authorities about the level of information those authorities will require to undertake an appropriate assessment. Applicants should confirm with those Competent Authorities whether they want to adopt the reasoning or conclusions of the assessment carried out by the relevant Secretary of State under the Planning Act 2008 process. 

It should be clear that any likely significant effect of the proposed development regulated by other Competent Authorities, has been taken into account in the applicant’s HRA Report. 

If the applicant needs to apply for consents under other regulatory regimes which require an appropriate assessment, the NSIP application should include information about the likelihood of the other licence consent or consents being authorised.  

The applicant should consider the timing of the application for other consents and the likely timetable for the Competent Authority’s decision for such consents, and the impact this may have on the examination of the NSIP application and preparation of its appropriate assessment.  

For example, where an Environmental Permit is needed for appropriate assessment cases, applicants are strongly advised to submit their permit application or applications to the Environment Agency at least 6 months before submitting their NSIP application.  

Failure to resolve matters prior to the end of examination may prevent the ANCB and the Environment Agency from providing advice to the decision-maker on the potential for AEoI and the scale of any mitigation or compensatory measures required. Further advice on working with the Environment Agency is provided in the Planning Inspectorate’s Advice on Working with Public Bodies. 

European Protected Species (EPS) and Wild Birds 

If a proposed development is likely to lead to impacts on European Protected Species then applicants may have to obtain other licences, in addition to completing an HRA. Further advice regarding working with Natural England and Natural Resources Wales is provided in the Advice on Working with Public Bodies. 

Presentation of Information 

Applicants should provide the following HRA information with their application: 

• a summary table of all European sites and qualifying features and each pathway of effect considered at each HRA Stage (screening, appropriate assessment/AEoI, and the derogations, as applicable), for each phase of the proposed development (construction, operation, and decommissioning, as relevant); 
• a copy of the citation/Natura 2000 data sheet for each European site; 
• a copy of the conservation objectives for all European sites for which likely significant effects have not been excluded and have been carried forward to HRA Stage 2; 
• a plan of the European site or sites potentially affected in relation to the proposed development (regulation 5(2)(l)(i) of the APFP Regulations); 
• a statement which identifies (with reasons) whether significant effects are likely in respect of European sites in devolved administrations or within EEA States; 
• evidence (such as Evidence Plans, copies of correspondence, agreement logs, PADSS or SoCG) of agreement between the applicant and relevant ANCBs (including those in devolved administrations and/or relevant bodies in EEA States, where applicable) on the scope, methodologies, interpretation, and conclusions of the screening assessment 
• cross references to relevant draft DCO requirements, development consent obligations and any other mechanisms proposed to secure measures relied upon in the appropriate assessment and derogation cases (as applicable), including the identification of any factors that might affect the certainty or effectiveness of their implementation