Court stiffens habitats protection, by Angus Walker

Two recent cases in the EU Court of Justice - People Over Wind and Sweetman v Coillte Teoranta and Sweetman v An Bord Pleanála, both relating to sites in Ireland - will affect all projects that have habitats implications.

Protected habitats, also known as Natura 2000 sites, have the highest level of environmental protection in EU law. Compared with ordinary environmental impact assessment, which balances harm and benefits, harm to these habitats is almost (but not entirely) to be avoided in absolute terms. Screening a project and finding that it does no harm to a Natura 2000 site is therefore quite a desirable outcome, because it avoids the trickier stages of the habitats assessment process – known as "appropriate assessment".

The issue that has come up in these cases is around the concept of "mitigation". Promoters have long said that if you take their project and include the mitigation of adverse effects that is on offer, then there will be no harm to the Natura 2000 site, so appropriate assessment is not necessary. If it is decided that there may be harm, then "compensation" must be provided that more or less replaces the harmed habitat with new habitat of an equivalent amount. The implications can be significant – I have heard anecdotally that an issue with building a barrage all the way across the Severn Estuary would be having to build another Severn Estuary somewhere else! Not only is compensation tricky to provide, but it must be accompanied by showing that there are imperative reasons of overriding public interest for the project to go ahead. You can see why developers aren’t keen on having to do all that and instead rely on mitigation.

The People Over Wind case established, however, that mitigation could not be taken into account before deciding whether harm to the site was possible and so appropriate assessment should be undertaken. The Sweetman case reiterated this, and the judgement contains some stronger language such as: "Article 6 of the Habitats Directive does not contain any reference to ‘mitigating measures’" and "the effectiveness of the protective measures provided for in Article 6 of the Habitats Directive is intended to avoid a situation where competent national authorities allow so-called ‘mitigating measures’ – which are in reality compensatory measures – in order to circumvent the specific procedures laid down in Article 6(3) of the directive".

Ouch. In my view the court is edging towards declaring that mitigating measures are a fiction invented by member states and shouldn’t be allowed at all. What to do?

This is still a developing area of law and things could change, but it seems to me that designing out the harm to the Natura 2000 site (or sites) as an intrinsic part of the project is the way to go. In that way there is no risk that mitigation is not delivered and that harm therefore occurs. Easier said than done, of course, but if the middle ground of mitigation becomes unavailable then there may be no choice.

Angus Walker is a partner at Bircham Dyson Bell


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