European Court clarifies what schemes in nature conservation areas must address

Appropriate assessments of development plans affecting European conservation areas must identify and examine the implications for habitats and species to be found outside the boundaries of that site, according to the latest European Court of Justice ruling on how European habitats protection rules should be interpreted.

Protected area: the River Nore, Ireland. Pic: Robert Lindsell, Wikipedia
Protected area: the River Nore, Ireland. Pic: Robert Lindsell, Wikipedia

The ruling, made on Wednesday last week, follows a reference made last year by the High Court of Ireland, which sought to clarify aspects of the EU Habitats and Environmental Impact Assessment Directives.

The case concerns plans to extend a ring-road around Kilkenny in south-east Ireland. The 1.5km-long stretch would cross two Natura 2000 sites, protected under the Habitats and Birds Directives respectively. Although it was cleared in 2015 by An Bord Pleanála, the statutory appeals board for planning decisions made in Ireland, four local residents sought to obtain an order to annul the decision, concerned about the road’s impact on the sites. They also own land that would be subject to compulsory purchase for the development.

Their lawyers claimed that board did not properly consider the environmental effects of the main alternatives to the development and argued that the appropriate assessment was deficient in several respects. The road was approved despite one of the board’s inspectors finding that the environmental impact statement and appropriate assessment was inadequate.

But the Dublin court decided that the questions raised, such as whether an assessment must address impacts on protected species and habitats outside a special area of conservation, should be resolved by the judges in Strasbourg.

The judgment states that:

  1. 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 an ‘appropriate assessment’ must, on the one hand, catalogue the entirety of habitat types and species for which a site is protected, and, on the other, identify and examine both the implications of the proposed project for the species present on that site, and for which that site has not been listed, and the implications for habitat types and species to be found outside the boundaries of that site, provided that those implications are liable to affect the conservation objectives of the site.
  2. Article 6(3) of Directive 92/43 must be interpreted as meaning that the competent authority is permitted to grant to a plan or project consent which leaves the developer free to determine subsequently certain parameters relating to the construction phase, such as the location of the construction compound and haul routes, only if that authority is certain that the development consent granted establishes conditions that are strict enough to guarantee that those parameters will not adversely affect the integrity of the site.
  3. Article 6(3) of Directive 92/43 must be interpreted as meaning that, where the competent authority rejects the findings in a scientific expert opinion recommending that additional information be obtained, the ‘appropriate assessment’ must include an explicit and detailed statement of reasons capable of dispelling all reasonable scientific doubt concerning the effects of the work envisaged on the site concerned.
  4. Article 5(1) and (3) of, and Annex IV to, Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, must be interpreted as meaning that the developer is obliged to supply information that expressly addresses the significant effects of its project on all species identified in the statement that is supplied pursuant to those provisions.
  5. Article 5(3)(d) of Directive 2011/92 must be interpreted as meaning that the developer must supply information in relation to the environmental impact of both the chosen option and of all the main alternatives studied by the developer, together with the reasons for his choice, taking into account at least the environmental effects, even if such an alternative was rejected at an early stage.

A decision on whether the road should go ahead now falls back to the High Court of Ireland. A date for the hearing has not been set.

The decision follows two other important European rulings related to environmental assessments in Ireland.

This news story is partly based on an article published on the website of Planning's sister publication the ENDS Report.

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