Blowing Hot & Cold on Mitigation

July 20, 2018

A recent landmark decision by the Court of Justice of the European Union (“CJEU”) in People Over Wind & Anor v Coillte Teoranta (Case C-323/17), means that measures intended to avoid or reduce the harmful effects of a proposed project on a European site may no longer be taken into account by competent authorities at the Habitat Regulations Assessment (“HRA”) “screening stage” when judging whether a proposed plan or project is likely to have a significant effect on the integrity of a European designated site. Since the ruling, industry has been trying to get to grips with what some are suggesting a contradictory ruling.

It has been standard working practice for plans or projects that may affect European nature conservation sites to include incorporated mitigation measures from the initial stages of the HRA process. In many cases the screening stage negates the need for projects to proceed onto a full appropriate assessment.

However, in People Over Wind the CJEU has ruled that mitigation cannot be taken into account when considering the screening test for Likely Significant Effects. The reason that this decision is significant is because it runs in sharp contrast to the practice currently exercised in Northern Ireland as well as in Great Britain and the Republic of Ireland.

Background

Council Directive 92/43/EEC (more commonly known as the “Habitats Directive”) requires EU member states to protect certain natural habitats, known as European sites, and certain fauna and flora, known as European protected species. It includes protection for Special Protection Areas (“SPAs”), which are designated under the Birds Directive, and for Special Areas of Conservation (“SACs”), which are designated under the Habitats Directive.

Article 6(3) of the Habitats Directive requires that, where a plan or project is likely to have a significant effect on an SPA or SAC, the relevant authority must undertake an “appropriate assessment” to assess if it will have a negative effect and whether there is an alternative solution.

People Over Wind had been referred to the CJEU by the High Court in Dublin. Under Irish law, certain “exempted development” projects (which would include the laying of underground mains, pipes, cables or other apparatus by an authorised undertaker to provide an electricity service) would not require planning consent under the Planning and Development Acts unless an appropriate assessment under Article 6(3) of the Habitats Directive is required. Similar development in NI and GB is generally referred to as “permitted development”.

People Over Wind, a community group based in the Irish Midlands, and Peter Sweetman, an activist who has successfully challenged Irish planning decisions previously, brought proceedings against Coillte Teoranta (“Coillte”), the Irish forestry service, relating to the works necessary to lay a cable connecting a wind farm which it was developing to the electricity grid.

Coillte, as a public authority, instructed consultants to prepare a HRA screening report to determine whether it was necessary to carry out an appropriate assessment. The screening report conceded that in the absence of protective measures there was the potential for release of suspended solids into waterbodies along the cable route including directional drilling. Coillte subsequently concluded that no appropriate assessment was required (and as such, the cable could be considered exempted development where no planning consent would be required) in light of recommendations drawn up based on the screening report, which took into account “protective measures”.

The Irish High Court requested a preliminary ruling by the CJEU on whether, or in what circumstances, mitigation measures can be considered when carrying out appropriate assessment screening under the Habitats Directive. The CJEU found that:

“Article 6(3) of the Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora must be interpreted as meaning that, in order to determine whether it is necessary to carry out, subsequently, an appropriate assessment of the implications, for a site concerned, of a plan or project, it is not appropriate, at the screening stage, to take account of the measures intended to avoid or reduce the harmful effects of the plan or project on that site.”

Implications

The CJEU’s judgment seems to be inconsistent with established practice in the UK, and with wellestablished case law such as R (Hart District Council) v Secretary of State for Communities and Local Government & Ors [2008] EWHC 1204 (Admin). In Hart, Sullivan J (as he then was) found that mitigation measures should be taken into account in screening proposals under the Habitats Regulations and the Habitats Directive.

It seems that the difference between Sullivan J in Hart and the CJEU in People Over Wind is the interpretation and application of the word “project”:

  • Sullivan J accepted that certain facets of a project, which are intended to avoid or reduce negative impacts on a European site, can still be regarded as “incorporated into the project” if they are promoted that way by the developer;
  • However, the CJEU appears to consider that measures intended to avoid or reduce impacts on a European site cannot at the same time be regarded as part of the “project”.

The main reason given in the latter case was that “a full and precise analysis of the measures capable of avoiding or reducing any significant effects on the site concerned must be carried out not at the screening stage, but specifically at the stage of the appropriate assessment.

The People Over Wind judgment has caused some consternation in environmental circles as it has overturned an issue that had been thought settled. Although it doesn’t necessarily mean projects being more likely to be refused, it does mean they may have to go further along the appropriate assessment flowchart before they can get consent which may add to cost and time.

While this change will place a greater burden on applicants, statutory nature conservation bodies and the relevant decision-makers; it is unlikely to change the overall position reached for most developments as mitigation measures can continue to be relied upon for appropriate assessment.

This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Planning and Environment Team at Cleaver Fulton Rankin for further advice or information.

Brendan Martyn, Associate Solicitor, Planning and Environment Team, Cleaver Fulton Rankin, Solicitors.

This article has been publicised in the Royal Town Planning Institute Summer Newsletter.