The position with regard to the Epping Forest Special Area of Conservation is that the Local Plan Submission Version, December 2017 was accompanied by a Habitats Regulations Assessment "the HRA 2017", which assessed the impact of new development on the integrity of the Special Area of Conservation. The HRA 2017 was based on legal precedent and traffic and air quality modelling results as they stood at the time.
However, since December 2017, additional case law, including People Over Wind, Peter Sweetman v Coillte Teoranta has clarified that under the EU Habitats Directive, consideration of mitigation measures must be deferred to the appropriate assessment stage of the HRA process. In their Regulation 20 representations objecting to the Local Plan Submission Version (LPSV), Natural England confirmed that they considered an appropriate assessment of the LPSV to be necessary and required extensive updating of the traffic and air quality modelling undertaken for Epping Forest SAC, which has now been extensively updated, following a methodology agreed with Natural England.
The Council set out a position statement which is on the website explaining the effect of the Natural England advice and the work that the Council was undertaking in order to address the issue. http://www.eppingforestdc.gov.uk/planning-and-building/planning-policy/epping-forest-special-area-of-conservation-sac
The Council therefore considered it necessary to update the HRA 2017 and commissioned AECOM to produce the January 2019 HRA report including appropriate assessment the HRA 2019, which comprehensively updates the air quality work for Epping Forest SAC. The 2019 HRA entirely replaces the HRA 2017 and can be found on the Epping Forest District Local Plan Examination website:
Following screening of the LPSV, the two issues which are addressed in the HRA 2019 are:
(i) Recreational impact;
(ii) Air Quality
The HRA 2019 includes the appropriate assessments of these two issues and confirms that mitigation measures and strategies are required to support their implementation.
The Mitigation Strategy will therefore comprise two elements as follows:
(iii) Addressing recreational impacts; and
(iv) Addressing the air quality impacts.
The approach to the mitigation of recreational pressures, by way of access management projects, is set out in the Interim Approach to Managing Recreational Pressure adopted by the Council on 18 October 2018. http://www.efdclocalplan.org/wp-content/uploads/2019/01/EB134-Interim-Approach-to-Managing-Recreational-Pressure-on-the-Epping-Forest-Special-Area-of-Conservation-Oct-2018.pdf
With regard to air quality impacts, the strategy will build on existing national and international initiatives, which in their own right will contribute to an improvement in air quality over the course of the Plan period. The methodology used to undertake the most up-to-date Air Quality Modelling work to support the Appropriate Assessment of the air pollution impact pathway is set out in the HRA 2019, which Natural England is now in the process of reviewing. The Mitigation Strategy, has yet to be finalised, will address the two issues that require mitigation measures and strategies to support their implementation. In order to provide the sufficient degree of confidence necessary to bring development forward within the District, it is proposed that, effectively, there will be two timescales, as follows:
(i) For air quality, the Council anticipates that this will be completed by the end of April 2019, although this date will be dependent on securing Natural England's support and the formal agreement by the Council and completion of any necessary Council endorsement processes;
(ii) For recreational pressures it is anticipated that this will be completed by December 2019. The final strategy will be determined by the completion and analysis of a further Visitor Survey to be undertaken in the summer of 2019 followed by any necessary review of the projects set out in the current Interim Approach. This will then need to be agreed by key stakeholders, including Natural England and the Conservators of Epping Forest and the completion of any necessary Council approval processes.
The situation in summary is that the Interim Approach for managing recreational pressures has been agreed by Natural England on the basis of an Appropriate Assessment and the Council has agreed a strategy which will result in a financial payment being secured from development within 3km of the Special Area of Conservation. However, the payment of this financial contribution will not address the issue of air quality impacts on the SAC.
The Appropriate Assessment for air quality impacts in Chapter 6 of the HRA 2019 makes clear that new development, will have a significant adverse impact on the SAC. Therefore, unless and until Natural England approves the Council's proposed Mitigation Strategy, as it relates to air quality impacts, planning permission cannot, as a matter of law, be granted for new development in the District.
Without Natural England's approval of the Mitigation Strategy as it relates to air quality impacts the Council cannot lawfully grant planning permission.