EU habitats directives: The importance of appropriate assessments
The EU’s Habitats Directive 1992 and Wild Birds Directive 2009 (‘the directives’) protect the conservation of a wide range of rare, threatened or endemic animal and plant species. The directives were implemented into English law by the Conservation of Habitat and Species Regulations 2017 (‘the habitats regulations’).
The habitats regulations require a competent authority to secure compliance with the directives’ requirements. This is done through a four step process called the Habitat Regulations Assessment (HRA). Screening only need take place where activities affect Sites of Special Scientific Interest (SSSI), Special Areas of Conservation (SAC), Special Protection Areas (SPA), Sites of Community Importance (SCI) and potential Special Protection Areas and Ramsar Sites (wetland sites of international importance) known collectively as ‘European sites’.
Any plan or project at the screening stage which is likely to have a significant effect either individually or in combination with other plans or projects on a European site, is required by Article 6(3) of the directives to have an ‘appropriate assessment’ of the site in view of the site’s conservation objectives.
An appropriate assessment is a detailed assessment of the “effect of the proposals on the integrity of the site” in light of the best scientific knowledge. It must produce certainty beyond all reasonable doubt that it will make no adverse impact.
The project cannot proceed if an adverse effect on the site’s integrity cannot be ruled out or where there are no alternative solutions except where there is overriding public interest and all compensatory measures possible can be secured.
Article 6 interpretation and conflicting case law
In June 2019, the High Court heard the case of R (on the application of Preston) v Cumbria County Council June 2019. Cumbria County Council (the competent authority) undertook an appropriate assessment into the construction of an outfall pipe into a special conservation area river. They granted planning permission on the basis that the Environment Agency would perform a similar habitat regulation assessment on the operation of the outfall pipe.
Although the County Council did perform an appropriate assessment, it was relying on input from a second competent authority, in this case the Environment Agency. The High Court quashed the planning permission that it had granted on the grounds that competent authorities cannot rely on a secondary competent authority to carry out other, vital parts of the assessment.
Although it is important to note that competent authorities can ‘adopt’ another authorities’ assessment work they just cannot grant planning with only a partial assessment.
In May 2018, the Court of Justice of the European Union (CJEU) heard the appeal case of People Over Wind and Sweetman. A competent authority had granted planning permission for the laying of cables across two special areas of conservation connecting a wind farm to the electricity grid. There were concerns around the project’s impact on the near-extinct protected species of freshwater pearl mussel. This was despite the plan embedding protective measures to mitigate the project’s impact on the species.
The court ruled that it is not appropriate for a competent authority to consider measures intended to avoid or reduce the harmful effects of the plan or project on the site at the screening stage.
This was in direct conflict with domestic case law and now means that projects are unable to progress where screening identifies a likely significant effect in spite of proposed mitigation. Instead there now needs to be a distinction between impact mitigation measures designed to avoid or reduce harmful impacts on the site and those not related to the integrity of the European site.
The former must be ignored at screening stage and therefore more plans and projects are likely to trigger a more involved appropriate assessment.
Brexit and environmental legislation
How Brexit will affect domestic environmental legislation is still unclear. We do know that much of our environmental legislation has originated from decades of EU law. Some will say the break with Brussels will lower standards of environmental quality in the UK at a time when the challenge of halting and reversing loss of biodiversity is arguably at its toughest.
On a positive note, we do have some domestic policy such as our National Planning Policy Framework (NPPF) which provides protection for SSSIs at paragraph 118. Others will look to the Government’s statements that “the EU (Withdrawal) Bill will ensure that existing EU environmental law continues to take effect in UK law after exit.” Many will hope that this pledge will ensure that EU environmental law will be automatically and successfully converted into domestic legislation whenever we exit.
How Rix & Kay can help
If you operate in the private or public sector and require specialist legal advice on an environmental or planning matter please to contact Joanna Bryan or Oliver Bussell who are part of our Planning & Environment team.