Meanwhile, at DEFRA: Changes to Habitats Regulations Assessments Guidance proposed

Last week, DEFRA launched a consultation which is both significant in its own right, and a potential sign of things to come.

The consultation, which can be accessed here, seeks views on significant changes to DEFRA’s guidance on how Habitats Regulations Assessments should be carried out. It runs until 19 May 2026.

The change in tone between the current guidance, and the proposed new drafting is a marked one. The proposed new guidance seems to take a much more pragmatic and outcomes focused approach than the current iteration.

By way of example, the “Follow HRA Principles” section of the guidance (set out below):

Appears to have been replaced by a section on “Principles to follow in the HRA process” (copied below), which has a very different purpose to its predecessor.

Principles to follow in the HRA process

Throughout the HRA process competent authorities should:

• work with applicants constructively to find a way to allow plans and projects, if possible, while still complying with legal obligations
• consider opportunities to work strategically across a number of projects where there are common issues
• consider opportunities to use innovative approaches where these have potential to resolve issues more effectively
• use and understand the conservation objectives, and any relevant supplementary advice, published by the SNCBs for the habitats sites affected, and make an assessment in view of the conservation objectives
• make judgements based on the facts of the individual situation and the ecological condition of the site’s features
• consider talking to relevant experts or specialists as early as possible and use the best objective and scientific information available to make informed decisions
• only ask applicants for information that’s relevant to the site’s conservation objectives and proportionate to what is being assessed and needed to carry out the HRA
• agree ways of working with applicants to encourage timely sharing of information
• consider evidence gaps early in the HRA process – gather further evidence, or if none is available, seek ways to address the implications of this uncertainty in the HRA
• consider as early as possible whether a derogation is likely and, if so, engage with applicants and the relevant SNCB to agree an approach to derogation
• make sure the HRA is complete and has precise conclusions
• keep a detailed written record of the HRA and give clear reasons and evidence for decisions
• decide whether it is necessary to consult the public on the HRA”

There is a new section expressly with when a competent authority should re-use all or part of an existing HRA – as opposed to insisting upon a new one. In addition to express guidance that:   

• A Competent Authority is not required to assess any implications of a plan or project that it would be more appropriate for another Competent Authority to assess  
• When considering likely significant effects, a Competent Authority is not required to consider hypothetical risks, only real risks  
• When considering likely significant effects in combination with other plans and projects, a Competent Authority is not required to consider every proposed plan and project that is likely to affect the site that is being assessed   
• A Competent Authority does not have to consider effects if it can be demonstrated the likely impact of the effect is so minor, there would be no credible risk of a significant effect even in combination 
• A Competent Authority does not have to consider evidence provided by an applicant if it is excessive or irrelevant

All of which is intended to make the guidance “clearer and more usable, focusing especially on areas where applicants and decision makers face uncertainty, and to encourage the efficient application of the regulations”*

Whilst the consultation is significant in its own right, it cannot and should not be viewed in isolation.

This consultation has been published:

• Barely a month after DEFRA announced that Natural England and the Environment Agency had been given a new “mandate to prioritise outcomes over process, speeding up decision-making while maintaining high environmental standards.” 
• In the middle of the roll out of part 3 of the Planning & Infrastructure Act (which creates both Environmental Delivery Plans and the Nature Recovery Fund), and
• Shortly after MHCLG’s announcement that intend to transition from Environmental Impact Assessments to Environmental Outcomes Reports (set out in LURA) over the next year.

And in light of the fact that both the new EOR regime and Part 3 of the Planning & Infrastructure Act involve making tweaks or amendments to the operation of the Habitats Regulations**, in a number of ways.

When looked at in context, it seems fair to say that this government’s reforming zeal is not limited to planning reform. It looks as if environmental regulation is also firmly in the spotlight – starting, of course, with those aspects which are most likely to impact on the Country’s ability to develop homes and large-scale infrastructure projects.

So, its probably quite handy that we have a seminar on the topic next week!

*quote taken from the consultation document itself

**Edd Long will be talking more about this at our joint event with Cornerstone next week. If you would like to come, sign up details can be found here