In April, a landmark ruling by the European Court of Justice (ECJ) on habitat regulation assessments (HRAs) sent shock waves through the planning and development worlds. HRAs are required for new developments and local plans in or close to special protection areas (SPAs) or special areas of conservation (SACs) safeguarded under the European Union’s Habitats Directive. The HRA process is split into two stages, with an initial screening stage followed by a more comprehensive "appropriate assessment" where necessary.
Until this spring, it was standard practice for planning authorities to consider proposals to mitigate any negative wildlife impacts arising from a proposed project or plan at the screening stage. Where such measures were considered sufficient, full appropriate assessment was deemed unnecessary and planning permission could be granted or plans passed. But April’s ruling in a case from the Irish Republic, People Over Wind and Sweetman v Coille Teoranta, stated that "a full and precise analysis of the measures capable of avoiding or reducing any significant effects on the site concerned must be carried out not at the screening stage, but specifically at the stage of appropriate assessment". Commentators said the decision meant that far more plans and projects would have to go through the more onerous appropriate assessment process (Planning, 14 June 2018).
But just as developers and planning authorities were starting to adjust to this judgement, the ECJ issued another ruling on HRAs, also from Ireland, at the end of July. While the first case confirmed that mitigation measures cannot be used as a means to avoid the need for an appropriate assessment, Grace and Sweetman v An Bord Pleanala dealt with the question of what mitigation measures can be taken into account as part of an appropriate assessment. The case concerned a decision to grant permission for a wind farm project in an SPA in County Tipperary that is home to the endangered hen harrier.
The ECJ found that where mitigation measures are designed to compensate for a development’s negative effects - as opposed to merely reducing or avoiding harm to a habitat – then approval can only be granted if the planning authority is satisfied that there are "imperative reasons of overriding public interest" in the scheme going ahead. If a project would have a permanent or temporary negative impact on a protected habitat, the court said, it would have to meet this overriding test. The ruling applies equally to plan-making. "If a local plan is relying on compensatory measures to address any adverse impacts on protected sites, then it will need to meet the requirements before it can be found sound and adopted," said Trevor Ivory, UK head of planning at law firm DLA Piper.
According to Stuart Andrews, head of the national planning and infrastructure consenting team at law firm Eversheds Sutherland, the ruling "simply confirms current law". Indeed, in justifying its ruling, the ECJ pointed to article 6(3) of the Habitats Directive, which states: "The competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned." The judgment also referred to article 6(4), which contains the overriding public interest test. Even so, Andrews that the strict interpretation of the directive suggested in the latest judgment could have unintended consequences, potentially preventing schemes that would provide a net environmental gain from achieving permission or even coming forward in the first place. "Where you’ve got development that affects a protected habitat in any way, even if ultimately it’s enhancing and not reducing the area of habitat, you’ll find yourself in breach of the directive unless you can identify overriding interests," he said.
According to Ivory, what constitutes an overriding public interest will be "a matter of planning judgement in any given case", but he adds that "it is a high bar". Andrews agreed, recalling his work on the application for a container terminal at Dibden Bay, an SPA near Hythe in Hampshire, which was refused by a government inspector in 2004 on environmental grounds. "The overriding interest test is immensely difficult to overcome," he said. "At Dibden Bay, the process of demonstrating overriding interest required us to look at every other bay and determine whether another port could take the development. It just isn’t that straightforward."
With 931 SPAs and SACs across the UK, commentators were reluctant to speculate on how frequently projects would be affected by the ruling. But Andrews said: "It happens quite often. The Thames Basin Heaths SPA is a classic example. Virtually everything in the Thames corridor is affected, including urban areas." For environmental lawyer Richard Buxton, the judgment is a timely reminder for all sides. "It does not change the legal position, but it should make developers and authorities understand the Habitats Directive better," he said. "Its effect should be to make development proposals more considered. As I see it, it does not permit so-called mitigation measures to allow projects to succeed unless they genuinely have the effect of reducing the impact to insignificant."