Why the latest European Court habitats ruling further raises the bar for planners

The latest European Court ruling on protected habitats indicates that developers and planners should take a broader approach to assessing the impacts of plans and projects on such zones, though experts are divided on the significance of the ruling.

The European Court of Justice
The European Court of Justice

New legal rulings on the European Union (EU) Habitats Directive keep on coming. In April this year, the European Court of Justice (ECJ) issued a landmark ruling on habitat regulation assessments, which plans or projects in or near EU-designated special areas of conservation or special protection areas must undergo. Before the ruling, many projects which proposed mitigation measures to address their environmental impact had merely to pass an initial lighter-touch screening test rather than a full-blown habitats assessment. This process was insufficient, ruled the court, dictating that mitigation measures could only be considered as part of a more onerous ‘appropriate assessment’.

Three months later, the ECJ tightened the rules further for both developers and plan-makers. The court ruled that mitigation measures designed to compensate for a development’s impact - rather than reducing or avoiding harm - can only be considered sufficient in cases where there are "imperative reasons of overriding public interest" in allowing a scheme to go ahead. The two rulings "really upset the apple cart," said Ben Kite, managing director at ecological consultancy EPR. "Processes established for years in the UK were simply upended."

Then came a third ruling. In November, the ECJ gave its verdict on environmental rules in relation to plans to extend a proposed ring road around the town of Kilkenny in south-east Ireland, which objectors were trying to block. The 1.5km-long road extension would cross the rivers Barrow and Nore that form an EU special area of conservation. This latest ruling appeared to broaden the scope of ‘appropriate assessments’ by dictating that the process must consider implications for habitats and species outside, as well as inside, a protected site - if the external habitats and species affect those within the site itself.

Expert opinion differ on the significance of the latest ruling. Stuart Andrews, head of planning at law firm Eversheds Sutherland, says: "The ruling provides some helpful guidance on the correct approach to assessment, but doesn’t change the law or have any interplay with the decisions from the ECJ earlier this year." However, Dr Stephanie Wray, chair at ecological consultancy Biocensus, said the latest ECJ verdict sets a legal precedent, with particular implications for projects affecting roaming species such as bats and birds - requiring developers to consider factors beyond the boundaries of EU protected habitats. "This really is the first time that’s been recognised," she said.

Wray says such an approach is established good practice for ecological consultants, but adds that the ECJ ruling will prevent examples of bad practice from slipping through the net. "There hasn’t [previously] been a legal basis that would make this a necessary approach," she says. Likewise, Kite says: "This judgment will be very useful for people like Natural England and other competent authorities when they are trying to address examples of bad practice."

Of course, translating court rulings into good planning practice will require practitioners to get to grips with what is becoming a steady stream of significant ECJ decisions. Nicky Linihan, spokeswoman for the Planning Officers Society, which represents public sector planners, said: "We would really encourage the Department of Environment Food and Rural Affairs and Natural England to provide some advice as soon as possible on how the rulings should be interpreted from both a local planning authority and an applicant’s perspective."

At the national level, changes to the National Planning Policy Framework in light of the April ECJ ruling are currently out for consultation. Kite said the latest judgment serves to clarify the law and is therefore unlikely to require material changes to policy. However, even before it was published, planning policy guidance, such as the 2005 circular 06/2005 on biodiversity and geological conservation, was in dire need of an update, he said. "That guidance will have to be picked up and shaken because it’s very, very old now," he added. In addition, Kite said one can never be sure when the next groundbreaking habitats judgment will come along: "There’s a lot of cases working their way through the system," he warned.


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