Thames Valley planning news, June 2018

A recent decision by the European Court of Justice (‘ECJ’) is likely to lead to changes in the way that the Habitats Directive is interpreted for plans and projects.

People over Wind, Peter Sweetman v Coillte Teoranta ruled that Article 6(3) of Council Directive 92/43/EEC ('the Habitats Directive') must be interpreted as meaning that mitigation measures (i.e. measures to reduce or avoid effects) cannot be taken into account at the initial screening stage and should only be assessed within the framework of an Appropriate Assessment (‘AA’). This is contrary to case law established in England and Wales (Hart DC V SSCLG, Luckmore Limited & Barratt Homes Ltd.) that had established that avoidance or reduction measures could be taken into account when considering whether a plan or project would be likely to have a significant effect on a European Site. If the risk of significant effect could be excluded on the basis of objective information at the screening stage, then a full AA (with associated time and consultation requirements) did not need to be undertaken.

The ECJ case relates to grid connection works associated with the Cullenagh wind farm in Co. Laois, Republic of Ireland. Planning permission for the wind farm itself was granted by An Bord Pleanala in June 2014 but did not include the laying of a cable connecting the facility to the electricity grid. Whilst the laying of such a cable would usually be considered ‘exempted development’ not requiring consent, in this case the route of the works had a relationship to two special areas of conservation (‘SAC’) designated under Natura 2000. If the works impacted on the designations, then an AA would be required and the scheme could not be considered exempted development. To determine whether AA was required, the applicant, Coillte, instructed the preparation of a screening pursuant to the requirements of the Habitats Directive. The screening document submitted took account of various ‘protective measures’ to avoid possible impacts in the form of the release of suspended solids into the water bodies that form part of the SACs and that could, if released, negatively impact on the Nore Pearl Mussel (margaritigera durrovensis), which is also protected under the Habitats Directive. Taking the protective measures into account, it was determined that AA was not required in this situation.

This decision was challenged by People over Wind and Peter Sweetman; the High Court determined in March 2017 that the matter should be referred for consideration by the ECJ, noting as it did so that whilst Coillte had suggested that Hart had been ‘incorporated “lock, stock and barrel” into the Irish legal system’, the Court did not see that there had been an ‘unqualified endorsement by the Irish High Court of the reasoning in Hart’.

The ECJ decision concludes that if measures are required to be taken into account at the screening stage to avoid or reduce the harmful effects of a plan or project on the site concerned then ‘it is likely that the site is affected significantly and that, consequently, such an assessment [i.e. an AA] should be carried out’. The decision goes onto state that:

‘Taking account of such measures at the screening stage would be liable to compromise the practical effect of the Habitats Directive in general, and the assessment stage in particular, as the latter stage would be deprived of its purpose and there could be a risk of circumvention of that stage, which constitutes, however, an essential safeguard provided for by the directive.’

Given the implications of the decision on the approach to be taken where a proposed plan or project is subject to Habitats Regulation Assessment, the Planning Inspectorate issued PINS Note 05/2018 on 9 May 2018; it recommends that for both plan making and in casework, screening decisions already made that have taken into account mitigation measures should be re-examined and AA conducted where necessary. The Government may also write to the ECJ to confirm the implications of its decision in the UK.