News & Insights

Appropriate Assessment and the Presumption in Favour – Clarification from MHCLG


Today saw the release of a new technical consultation on updates to the National Planning Policy Framework (NPPF) from the Ministry of Housing, Communities and Local Government. Among other things, this provided some much needed clarification in relation to the presumption in favour of sustainable development, and specifically its relationship with plans or projects with the potential to effect European designated wildlife sites.

Paragraph 177 of the NPPF states that, “The presumption in favour of sustainable development does not apply where development requiring Appropriate Assessment because of its potential impact on a [European site] is being planned or determined.” However, in the light of case law arising from the Court of Justice for the European Union this year (‘People over Wind’, April 2018) many more plans and projects than was previously the case are now in the position of requiring an Appropriate Assessment. By many interpretations, the present wording of the NPPF disengages the presumption in favour in these circumstances. The implications of this were discussed in a recent CSA opinion piece, available here.

However, today’s consultation from the MHCLG clarifies that it was “not the intention of the policy” to disengage the presumption in favour, for sites subject to Appropriate Assessment, where mitigation is provided to ensure that there will be no adverse effect on the integrity of the European site concerned. Sensible changes to the wording of Paragraph 177 are proposed, to avoid further confusion on this matter.