On April 13th the Court of Justice of the European Union published its ruling in the Case C323/17 with regards to the Habitats Directive. Since the ruling, the industry has been trying to get to grips with what is one of the most unhelpful and contradictory rulings that I have had to deal with in 15 years of working on the Habitats Directive.
It has been standard working practice for plans or projects that may affect European nature conservation sites such as Thames Basin Heaths to include incorporated mitigation measures from the initial stages of the Habitat Regulations Assessment (HRA) process. In many cases this screening stage (or Likely Significant Effects) negates the need for projects to proceed onto a full appropriate assessment. Projects such as housing ensure strategic mitigation measures are incorporated into the planning proposals to prevent likely significant effects upon these high value sites. This approach is also consistent with the Environmental Impact Directive, previous HRA case law (Waddenzee) and domestic case law (Hart).
However, the People Over Wind case has ruled that mitigation cannot be taken into account when considering the screening test for Likely Significant Effects. Therefore, many developments cannot now be screened out of requiring a full appropriate assessment, which requires more time and involves more consultation than would previously be spent on a ‘screening request’. Furthermore, it throws into question the legality of many strategic mitigation systems that have been put in place to protect sites such as the Dorset Heaths and Thames Basin Heaths.
This ruling has major implications for developments where a Habitats Regulations Assessment may be required. In order to comply with this ruling and avoid legal challenge we are advising that any current applications be reviewed to ensure that the HRA process has been followed and is compliant with this judgement.
The People Over Wind case involved mitigation measures to prevent sediment affecting freshwater pearl mussels due to installation of a wind turbine connection cable.
The conclusion of the ruling is: “Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora must be interpreted as meaning that, in order to determine whether it is necessary to carry out, subsequently, an appropriate assessment of the implications, for a site concerned, of a plan or project, it is not appropriate, at the screening stage, to take account of the measures intended to avoid or reduce the harmful effects [mitigation] of the plan or project on that site” [my emphasis].
For those involved in the HRA process this a significant shift in emphasis, which will result in many more projects failing the first of the HRA legal tests of whether the plan or project will give rise to Likely Significant Effects. Previously, domestic case law has allowed mitigation measures to be taken into account at the ‘screening test’, avoiding the need to progress onto a full appropriate assessment. However, this ruling means that this approach is now no longer valid.
This issue had been addressed in the English courts in 2008 in the Hart District Council case where it was ruled that “As a matter of common sense, anything which encourages the proponents of plans and projects to incorporate mitigation measures at the earliest possible stage in the evolution of their plan or project is surely to be encouraged.
I am satisfied that there is no legal requirement that a screening assessment under Regulation 48(1) [now Regulation 63 (1)] must be carried out in the absence of any mitigation measures that form part of a plan or project. On the contrary, the competent authority is required to consider whether the project, as a whole, including such measures, if they are part of the project, is likely to have a significant effect on the SPA If the competent authority does not agree with the proponent’s view as to the likely efficacy of the proposed mitigation measures, or is left in some doubt as to their efficacy, then it will require an appropriate assessment because it will not have been able to exclude the risk of a significant effect on the basis of objective information.”
Previously some practitioners have made the distinction between mitigation measures that are additional to the project (not taken into account at the screening stage), and mitigation measures that are ‘incorporated mitigation measures’ (integral part of the plan or project and should be taken into account). The new judgement does not address this distinction, however the proposed mitigation in the case in question (involving potential impact of sediment pollution from installation of a wind turbine connection cable on freshwater pearl mussels) was to be agreed with the planning authority post-consent and detailed in a ‘Construction Management Plan’. It is therefore questionable whether the mitigation was an integral part of the project as envisaged by the Hart judgement. The logic behind the ruling is that a more detailed examination of the effectiveness of mitigation measures is needed, and by considering mitigation at the screening stage a higher level of scrutiny may otherwise by circumvented under an appropriate assessment. However the lack of detail within the ruling means that the overall conclusion is somewhat blunt and does not take into account how well thought out the mitigation measures may be, or whether they are tried and tested techniques where the efficacy can be considered certain to prevent harm to the site.
My view is that the ruling is entirely misjudged and I very much hope that Member States use this opportunity to seek clarification on this ruling. In the Hart Case it was said that “…the provisions in the Habitats Directive are intended to be an aid to effective environmental decision making, not a legal obstacle course”. This unfortunate decision has created many more hurdles within the already complex and lengthy Habitat Regulations Assessment process.