2 responses from Mr Nigel Pilling, Natural England
1. Mr Nigel Pilling, Natural England : 20 Dec 2017 09:57:00
Before completing this online representation please tick the box to show that you have read the guidance notes accompanying this consultation.
I have read the guidance notes.
Policy Reference
DM1 - General Requirements for all development
1.3 Do you consider the DM DPD to be sound?
No
1.4 If NO, please indicate the ground(s) on which you consider the DPD to be unsound.
The DPD is not justified
1.5 Please give details of why you consider the DPD is not legally compliant or is unsound or fails to comply with the Duty to Cooperate. Please be as precise as possible.
If you wish to support the legal compliance or soundness of the DPD or its compliance with the Duty to Cooperate, please also use this box to set out your comments.
2.1 Policy DM1 – General Requirements for all Development
Point 6 – ‘For designated assets harm will only be allowed in exceptional circumstances’.
Natural England’s view is that this wording is misleading for developers and in its current form is not Habitat’s Regulation compliant.
1.6 Please set out what modification(s) you consider necessary to resolve your objection and make the DPD legally compliant or sound, having regard to the matter(s) you have identified above. (Please note that any non-compliance with the Duty to Cooperate is incapable of modification at examination). You will need to say why this modification will make the DPD legally compliant or sound. It will be helpful if you are able to put forward your suggested revised wording on any policy or text. Please be as precise as possible.
Recommendation: The above wording should be removed and replaced. The following wording would be appropriate. ‘Harm to the integrity of designated sites will not be allowed except where it has been established by the competent authority that there are no alternative solutions that would have a lesser effect on the integrity of the site (known as the Imperative Reasons of Over-riding Public Interest IROPI test).
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Please notify me.
2. Mr Nigel Pilling, Natural England : 20 Dec 2017 10:00:00
Before completing this online representation please tick the box to show that you have read the guidance notes accompanying this consultation.
I have read the guidance notes.
Appendices, Glossary or other
Other - misc
1.3 Do you consider the DM DPD to be sound?
No
1.4 If NO, please indicate the ground(s) on which you consider the DPD to be unsound.
The DPD is not justified
1.5 Please give details of why you consider the DPD is not legally compliant or is unsound or fails to comply with the Duty to Cooperate. Please be as precise as possible.
If you wish to support the legal compliance or soundness of the DPD or its compliance with the Duty to Cooperate, please also use this box to set out your comments.
- Table 4, Potential Impact Pathways. This table shows the screening out, at an early stage, of potential impacts which may reasonably affect the European Sites listed. There is not sufficient detail within the table or the report to show how this decision was reached.
- For example, in appendix 3, in relation to Morecambe Bay and the Duddon Estuary SPA; air quality threats are identified alongside a list of qualifying features. This list includes features which could be impacted by poor air quality arising from development and Map 3 shows development sites in close proximity to the European Site; however, air quality effects on the SPA (and SACs) have been screened out in Table 4. The reasoning behind this decision is not given in the table or in the supporting text. It would be surprising to screen out air quality impacts on these sites at this early stage where a source, pathway and at risk interest features may exist.
Recommendation: The reasoning behind the screening out of sites at this stage of the process should be given or these impacts should continue to determination of LSE. The table should be reviewed to ensure that no other impacts which should have proceeded to determination of LSE have been screened out incorrectly.
Natural England has two comments on the way that likely significant effect (LSE) has been screened within the HRA document:
1) The authority has not consistently followed up on the recommendations contained within ‘Table 6 LSE Screening’ of the HRA. For example under DM6 the HRA clearly states ‘recommendation not incorporated’.
Recommendation: HRA recommendations should be incorporated within the DPD or taken to Appropriate Assessment, otherwise the DPD will not be Habitat Regulations compliant.
2) There are several references within Table 6 which suggest that text has been amended from the draft document and/or additional wording inserted into the final version of the DPD document to enable the authority to determine no LSE. However, it is not clear upon reading the HRA or on reviewing the changes between the draft and final versions which sections have been amended in this way, for this specific purpose and what the changes are. This makes it very difficult to adequately assess the changes made.
Recommendation: The paragraphs and text changes made which enable an assessment of no LSE should be referenced in the HRA as part of table 6.
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Please notify me.
