PP 2010/29

Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (the Habitats Directive) was transposed into domestic law by the Conservation (Natural Habitats, etc) Regulations 1994 (1994 Regulations). Article 6 of the Habitats Directive imposes general obligations with regard to the conservation of sites designated as special areas of conservation (SACs) and provides a form of development regime stipulating when and on what basis “plans and projects” with negative effects on a SAC may or may not be permitted. In particular, article 6(3) provides that any “plan or project” not directly connected with or necessary to the management of the site but likely to have significant effects on it should be subject to an appropriate assessment of its implications for the site in view of the site’s conservation objectives. What qualifies as a “plan or project” for the purposes of the Habitats Directive and the 1994 Regulations was considered in R (on the application of Akester and another (on behalf of the Lymington River Association)) v Department for Environment, Food and Rural Affairs [2010] EWHC 232 (Admin); [2010] PLSCS 50. Wightlink Ltd (W) operates ferries between Lymington and Yarmouth, Isle of Wight, using three vessels. In February 2009, it introduced a replacement class of vessel that was substantially larger and more powerful. The salt marshes and mudflats of the Lymington estuary are part of a SAC. The claimants, on behalf of a local amenity body, sought a number of declarations, including that W had acted unlawfully in introducing the replacement class of vessels. They contended that this amounted to a “plan or project” for the purposes of the Habitats Directive and the 1994 Regulations and that it had not been subjected to an appropriate assessment of its implications for the site, as required by article 6(3) of the Habitats Directive and regulation 48(1) of the 1994 Regulations. The judge stated that neither “plan” nor “project” is defined in the Habitats Directive, but the European Court had previously considered their meaning and given guidance. That guidance dictated that both words should be given a very broad definition and meaning. The European Court had also made it clear that article 6(3) should be interpreted in the light of its broad objective, namely a high level of protection of the environment. The court held that the introduction of the replacement class of ferries was a project for such purposes, and accordingly made the declaration sought. John Martin is a freelance writer