REPORT TO: East Lothian Council MEETING DATE: 11 September 2018 BY: Depute Chief Executive (Partnerships and Community Services) SUBJECT: East Lothian Local Development Plan 2018: Update on Habitats Regulation Appraisal 1 PURPOSE 1.1 To inform the Council that the Scottish Ministers have extended until 27 September 2018 the period for their final review of the local development plan the Council intends to adopt – i.e. the East Lothian Local Development Plan 2018 (ELLDP 2018) as Council decided on 29 May 2018; 1.2 To advise the Council: of the outcome of a recent European Court of Justice (ECJ) ruling in the case of People Over Wind/Sweetman -v- Coillte Teoranta (Case C-323/17) issued on 12 April 2018 and whether it has any effect on the Council’s Habitats Regulations Appraisal (HRA) and Appropriate Assessment (AA) of the ELLDP 2018; that in light of the above ECJ ruling, as a precautionary measure and in collaboration with Scottish Natural Heritage (SNH), a review of the ELLDP 2018 HRA Record (the document that ‘records’ the Council’s approach to HRA and AA) has been completed; that the outcome of the joint review with SNH of the ELLDP 2018 HRA Record and Appropriate Assessment is an Updated ELLDP 2018 HRA Record and Appropriate Assessment (as set out at Annex 1 of this Council Report). For the avoidance of doubt, this review has not resulted in any change in the overall conclusions of the Habitats Regulations Appraisal or Appropriate Assessment - i.e. the East Lothian Local Development Plan 2018 will either have no likely significant effects on European sites, or will not adversely affect the integrity of European sites, either alone or in combination with other plans or 1 projects. Consequently, no changes to the ELLDP 2018 are required. This Updated ELLDP 2018 HRA Record therefore confirms that the above ECJ ruling does not effect the content of ELLDP 2018 and SNH agrees with this conclusion; 1.3 To request that the Council agrees with and accepts the conclusions of the Updated ELLDP 2018 HRA Record including Appropriate Assessment (as set out at Annex 1 of this Council Report) before deciding whether to finally adopt the ELLDP 2018, in accordance with the Conservation (Natural Habitats, etc.) Regulations 1994 (Habitats Regulations); 1.4 To request that the Council agrees to submit the Updated ELLDP 2018 HRA Record including Appropriate Assessment to the Scottish Ministers for information only. 2 RECOMMENDATIONS 2.1 That the Council agrees with and accepts the outcome of its joint review with SNH of the ELLDP 2018 HRA Record including Appropriate Assessment as well as the findings of the Updated ELLDP 2018 HRA Record and Appropriate Assessment (as set out at Annex 1 of this Council Report) that has the full support of SNH; 2.2 That the Council, having taken account of and accepted the conclusion of the Updated ELLDP 2018 HRA Record and Appropriate Assessment (as set out at Annex 1 of this Council Report) in accordance with the Conservation (Natural Habitats, etc.) Regulations 1994, reaffirms that ELLDP 2018 should be adopted in the format the Council intends it to be adopted as the Council originally decided on 29 May 2018; 2.3 That the Council agrees to submit the Updated ELLDP 2018 HRA Record including Appropriate Assessment (as set out at Annex 1 of this Council Report) to the Scottish Ministers for information only. 3 BACKGROUND 3.1 The Council received the proposed LDP Report of Examination on 12 March 2018. The Town & Country Planning (Scotland) Act 2006 (as amended) requires that the Council submits the LDP it intends to adopt to the Scottish Ministers within three months of receiving the Report of Examination. On 29 May 2018, the Council decided by approving recommendation 2.4 and 2.5 of the relevant Council report that: it intends to adopt the proposed LDP as modified following examination in public, namely the East Lothian Local Development Plan 2018 (ELLDP 2018); 2 if the Scottish Ministers (following their period of review of the ELLDP 2018) provide clearance to the Council such that it may adopt the ELLDP 2018, on provision of such clearance from the Scottish Ministers the ELLDP 2018 would become constituted as the adopted East Lothian Local Development Plan 2018; Only if the Scottish Ministers decide to issue a direction to the Council to modify the ELLDP 2018 would the ELLDP 2018, having been modified in accordance with any such direction, be returned to the Council to decide whether it will adopted the plan. 3.2 Having taken these decisions, the Council submitted the ELLDP 2018 to the Scottish Ministers for their final review on 7 June 2018. 3.3 The Scottish Ministers have now extended their review period until 27 of September 2018, as Section 20 of the Town & Country Planning (Scotland) Act 2006 (as amended) allows them to do. The Habitats Regulations in Plan-making 3.4 The requirement for Habitats Regulation Appraisal (HRA) and Appropriate Assessment (AA) is set out in the Conservation (Natural Habitats, &c) Regulations 1994 (Habitats Regulations). 3.5 Broadly, HRA is an assessment mechanism that is used to assess the effects of plans and projects on international nature conservation objectives and a network of European Sites that are, or are in the process of being, designated to support those objectives. HRA is conducted by the competent authority (in this instance, East Lothian Council). 3.6 The term ‘Habitats Regulation Appraisal’ describes the whole process of considering whether a plan or project will give rise to likely significant effects (LSE) upon a European Site, deciding which European Sites should be considered, which aspects of a plan or proposal may give rise to LSE (known as ‘screening’), and the subsequent Appropriate Assessment (AA) of the implications on these effects upon the integrity of European Sites. 3.7 Essentially, through HRA, all the elements of a plan need to be considered in case they would give rise to LSE, either alone or in combination with other projects and plans. Those elements of the plan that would generate LSE must be considered for their implications upon European Sites (either alone or in combination with other projects and plans) on that site’s integrity. This is known as Appropriate Assessment. 3.8 Under the Habitats Regulations, the key ‘test’ for the Appropriate Assessment is that permission for a plan or project should only be given where it has been determined that it will not have, either alone or in combination with other projects or plans, an adverse effect upon the integrity of the European Site (AESI). Before making any decision, the Council should consult with Scottish Natural Heritage (SNH), the statutory conservation advisor and have regard to their advice. 3 3.9 During the stages of plan preparation the Council has followed published SNH guidance as well as case specific advice provided by SNH on how that guidance should be interpreted and applied in respect of the HRA of the ELLDP 2018. It has also drawn on advice published by the Scottish Government. SNH has agreed at each stage of preparing the ELLDP 2018 that the Council’s HRA and Appropriate Assessment work has been completed in a manner and has reached conclusions that would allow the ELLDP 2018 to be adopted whilst ensuring that the Council, in taking such a decision, would satisfy the requirements of the Habitats Regulations. 3.10 The approach to HRA that the Council has followed in respect of the ELLDP 2018 is set out in the HRA Record (the document that ‘records’ the Council’s approach and conclusions during the HRA). The purpose of the HRA Record for the ELLDP 2018 is to ensure the Council can explain how it completed the HRA work before taking decisions on the ELLDP 2018 during its developmental stages and at the point of adoption. 3.11 At proposed LDP stage and for the version of the proposed LDP as modified following Examination in Public the HRA work carried out by the Council was in line with SNH guidance and advice and was also supported by SNH, as demonstrated via the relevant correspondence provided by SNH at both of these stages. 3.12 Importantly, the Habitats Regulations and SNH Guidance are clear that the approach to Habitats Regulations Appraisal, and if necessary Appropriate Assessment, is to be iterative – e.g. during plan-making the approach can continue to develop the HRA up to the point a final decision is taken to adopt a plan. This is to ensure the HRA is up-to- date at the point of a final decision to adopt a plan; it is at this key stage that the ‘test’ set out within the Habitats Regulations (as described at paragraph 3.9 above) must be fulfilled. 3.13 Under the Habitats Regulations, there is no requirement to consult the public while the HRA is being carried out, only a requirement that the HRA Record once complete is available for public inspection. Overall, before an LDP can finally be adopted, a suitable up-to-date Habitats Regulation Appraisal, and if necessary Appropriate Assessment, must be in place. This is therefore also true in terms of how the Council must take its final decision to adopt the ELLDP 2018. 3.14 The SNH Guidance does not anticipate a situation when at a very late stage of LDP preparation a change in circumstance may prompt the Council as competent authority to review and update its HRA work including Appropriate Assessment, and thus the HRA Record, for a local development plan it intends to adopt.