The European Court of Justice (ECJ) in People Over Wind and another v Coillte Teoranta (Case C-323/17) has recently stated that measures to mitigate the impact of proposed developments effecting Natura 2000 sites (Special Protected Areas (SPAs) and Special Areas of Conservation (SACs)) should not be included in the initial screening stage required by the EU Habitats Directive. The Directive is implemented in England under the Conservation of Habitats and Species Regulations 2017.
In brief, there are four main stages to the required environmental impact assessment on Natura 2000 sites under the Habitats Directive. These are:
- Stage 1: Screening – this identifies the likely impacts of a project on Natura 2000 sites and whether the impacts are likely to be significant, which triggers Stage 2
- Stage 2: Appropriate assessment – detailed assessment of the impacts on the integrity of the Natura 2000 site by the project with regard to the site's structure, function and conservation objectives. Where there are adverse impacts, an assessment of mitigation options will be undertaken. If these mitigation options cannot avoid adverse effects, then development consent can only be given if Stages 3 and 4 are followed.
- Stage 3: Assessment of alternative solutions – alternative ways of achieving the objectives of the project are assessed to establish whether there are solutions that would avoid, or have a lesser effect on, the site.
- Stage 4: Imperative reasons of overriding public interest (IROPI) – Where no alternative solution exists, and where adverse impacts remain, an assessment must be undertaken as to whether the project is necessary for IROPI. If so, an assessment will be undertaken as to the potential compensatory measures needed to maintain the overall coherence and/or integrity of the site or integrity of the site.
The Facts
Coillte Teoranta is a forestry company owned by the Irish State, and they proposed to lay cables connecting a wind farm to the electricity grid through two river SACs that are habitats for the Nore pearl mussel (a protected species listed under the Habitats Directive). ‘People over Wind’ (an environmental NGO) contended that such work would pollute the rivers and negatively impact on the Nore pearl mussel. Under Irish planning law, planning consent is not required for the scheme unless a Stage 2 ‘appropriate assessment’ is needed.
Coillte Teoranta obtained from consultants a screening opinion which determined that there would be an impact on the Nore pearl mussel from the scheme but that proposed protective measures would mitigate such impact. Therefore, the scheme (with the protective measures) would not have a significant effect on the river SAC and no Stage 2 ‘appropriate assessment’ was necessary (and as a result no planning consent was necessary).
The Decision
The ECJ was asked by the High Court of Ireland: ‘Whether, or in what circumstances, mitigation measures can be considered when carrying out screening for appropriate assessment under Article 6(3) of the Habitats Directive?’
Applying the EU precautionary principle, the ECJ ruled that the Habitats Directive should be interpreted as meaning it was not appropriate to include mitigation measures that were intended to avoid or reduce the harmful effects of the project on the Natura 2000 site when carrying out the Stage 1 ‘screening’. The court pointed out that the obligation for a Stage 2 ‘appropriate assessment’ was dependent upon whether the project was likely to have a significant effect on the site, and the fact mitigation measures are being considered presupposes that such condition was fulfilled.
Practical Impacts of the Decision
The decision of the ECJ is contrary to the established practices in the UK. In the decision of the English High Court in Hart District Council, R (on the application of) v Secretary of State for Communities & Local Government & Ors [2008] EWHC 1204, Sullivan J found that mitigation measures could be included in the projects impact assessment at the Stage 1 ‘screening’.
Accordingly, while the end result may not change for a project, the revised approach directed by the ECJ will likely force more projects to include a Stage 2 ‘appropriate assessment’ where previously one was not required. This will cause additional delay and costs to projects (which commonly affects Development Consent Orders (DCOs) and emerging local development plans).
Lesson: Where a Stage 1 ‘screening’ is required under the EU Habitats Directive for a project effecting a Natura 2000 site, any mitigation measures to address an environmental impact should not be considered at such first stage.
