Stuart Andrews mulls over the effect of two ECJ rulings on habitat regulation assessments in the determination of development projects
Key points
■ Authorities cannot take account of measures intended to avoid or reduce the harmful effect of the plan or project
■ This substantially increases the standard by which any proposed mitigation measures must now be identified as part of this assessment process
■ The presumption in favour of sustainable development does not apply where development requires appropriate assessment
This year has seen two significant rulings in the European Court of Justice (ECJ) relating to the interpretation and application of habitat regulation assessments (HRA) in the determination of development projects.
Both of these cases relate to development schemes in Ireland (Case C-164/17 Grace and Sweetman v An Bord Pleanála and Case C-323/17 People Over Wind, Peter Sweetman v Coillte Teoranta) and concern the approach to be taken in the provision of appropriate assessments and the interpretation of Article 6 of the Habitats Directive 92/43/EC, which is transposed into UK law by virtue of the Habitat Regulations 2017.
People Over Wind
In short, the decision in People Over Wind makes clear that mitigation measures, being measures which are intended to avoid or reduce the effects of a plan or project on a European site, cannot be taken into account at the screening stage.
This decision departs from and is inconsistent with the established practice in the UK, where the courts have taken a common sense approach to mitigation and allowed such measures to be considered at the screening stage to determine whether there is likely to be a significant effect on a designated European site.
If no such risk remained, there would be no need to undertake an appropriate assessment.
People Over Wind also makes clear that the screening stage must be undertaken on a precautionary basis without regard to any measures that are intended to avoid or reduce any direct adverse effects. This is distinct from “integral features”, which when properly characterised can be taken into account.
Where the likelihood of significant effects cannot be excluded, on the basis of objective information the competent authority must proceed to carry out an appropriate assessment to establish whether the plan or project will affect the integrity of the European site.
Grace and Sweetman
While People Over Wind had provided guidance on when mitigation measures should be taken into account, Grace considers what measures can be treated as protective measures and therefore be considered under Article 6(3) at the appropriate assessment stage and those that are in fact compensatory measures and would only be relevant under Article 6(4) when considering alternative solutions and against the very high tests of there being “imperative reasons of overriding public interest”.
The court clarified in Grace that a distinction did have to be drawn between protective and compensatory measures.
This reiterated previous rulings of the court that protective measures can be taken into account only at the appropriate assessment stage when it is “sufficiently certain that a measure will make an effective contribution to avoiding harm, guaranteeing beyond all reasonable doubt that the project will not adversely affect the integrity of the area”.
Where a measure is aimed at compensating for the negative effects of a project, it cannot be taken into account as part of the appropriate assessment and should be considered, if necessary, under Article 6(4).
Combined effect
The combined effect of these two recent cases is that, first, competent authorities cannot take account of measures intended to avoid or reduce the harmful effect of the plan or project at the HRA screening stage when considering whether the plan or project is likely to have an adverse effect on a European site.
Secondly, if a plan or project is likely to have a significant effect, or such effect cannot be excluded, and an appropriate assessment is carried out, only measures that guarantee beyond all reasonable doubt that the project will not cause adverse effects can be taken into consideration.
The practical impact of these judgments would on first examination appear to be an inconvenience rather than a major point of frustration. This is on the basis that the ECJ ruling now means that all development that may adversely impact a European site would now have to be the subject of an appropriate assessment, whereas previously such adverse effects could have been screened out for assessment purposes once mitigation measures were taken into consideration. This is an outcome which would typically result in a contribution being paid for mitigation works.
However, on further examination the issues associated with these rulings run far deeper.
When carrying out an appropriate assessment under Article 6(3), the ECJ has reiterated that the assessment must contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the proposed works on the protected area.
The ECJ has also confirmed that it would be permissible for mitigation measures to be taken into account under Article 6(3) only if the effects of the mitigation strategy could be foreseen with a high degree of certainty.
In this context, the ruling in Grace confirms that any positive effects of the future creation of new habitat, which is aimed at compensating for the loss of area and quality of a habitat type, are very difficult to forecast with any degree of certainty.
Put simply, this substantially increases the standard by which any proposed mitigation measures must now be identified as part of this assessment process.
Effect of NPPF change
The added sting in the tail is that the recently published update to the National Planning Policy Framework confirms
“The presumption in favour of sustainable development does not apply where development requiring appropriate assessment because of its potential impact on a habitats site is being planned or determined.”
This policy guidance was drafted before the ECJ judgments were issued and, until amended, now ensures that development schemes that are subject to appropriate assessment will find it far harder to obtain planning consent, especially where the proposed development is not identified in an up-to-date development plan.
Stuart Andrews is head of planning and infrastructure consenting at Eversheds Sutherland (International) LLP
