Skip to main content
CLOSE

Charities

Close

Corporate and Commercial

Close

Employment and Immigration

Close

Environmental, Social, and Corporate Governance

Close

Fraud and Investigations

Close

Individuals

Close

Litigation

Close

Planning, Infrastructure and Regeneration

Close

Public Law

Close

Real Estate

Close

Restructuring and Insolvency

Close

Energy

Close

Entrepreneurs

Close

Private Wealth

Close

Real Estate

Close

Tech and Innovation

Close

Transport and Infrastructure

Close
Home / News and Insights / Blogs / Planning Act 2008 / 796: More appropriate assessments likely after CJEU decision

Today’s entry reports on a recent decision of the Court of Justice of the European Union that will have implications for all nationally significant infrastructure and other projects that could affect protected environmental sites.

Certain sites around the country have a special EU level of protection and are known collectively as Natura 2000 sites, or sometimes by some of their sub-types, Special Protection Areas (SPAs – not obvious from the name but these are related to birds) and Special Areas of Conservation (SACs – which relate to other species and habitats). The latest iteration of transposition of the relevant directives into UK law is the Conservation of Habitats and Species Regulations 2017.

The case, known as ‘People Over Wind v Coillte Teoranta’ (I believe the first word of the defendant is pronounced ‘quill-cha), is an Irish case concerning an electricity cable to connect a wind farm, and its potential to affect two SACs, one of which contains a species of mussel (the Nore pearl mussel) that is at risk of becoming extinct. The full judgment can be found here, but here is a summary.

The mussels need clear water and so the deposit of any sediment was an issue. The developers obtained a screening opinion that this would not be a problem if specified ‘protective measures’ were implemented, set out in a Construction Environmental Management Plan (CEMP). The screening meant that the project did not need to go further along the process of analysing effects on the SPAs known as ‘appropriate assessment’.

The High Court of Ireland referred the following question to the CJEU: ‘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?’

The CJEU answered bluntly 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.’

The main reason given 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’. Not really a reason, but a statement supporting the judgment.

This is at odds with a 2008 English case ‘Hart v Secretary of State for Communities and Local Government‘, where Mr Justice Sullivan said that ‘I am satisfied that there is no legal requirement that a screening assessment under Regulation 48(1) must be carried out in the absence of any mitigation measures that form part of a plan or project.’

The CJEU 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 (eg the one on page 4 of Advice Note 10) which may add to cost and time.

It might be the case that mitigation measures designed into the project in question could still be taken into account at the screening stage, as separate from mitigation measures added afterwards, and it would surely be unhelpful to discourage the incorporation of mitigation into design, sometimes known as ’embedded mitigation’. We shall no doubt see.

The takeaway from this is that if your project has one or more nearby Natura 2000 sites, you may need to take another look at what you took into account to decide whether it needed appropriate assessment – or if you haven’t got that far, you may need to take a slightly stricter approach. If you are opposing a project, then check what was done as it may not have been enough.

Related Articles

Our Offices

London
One Bartholomew Close
London
EC1A 7BL

Cambridge
50/60 Station Road
Cambridge
CB1 2JH

Reading
The Anchorage, 34 Bridge Street
Reading RG1 2LU

Southampton
4 Grosvenor Square
Southampton SO15 2BE

 

Reading
The Anchorage, 34 Bridge Street
Reading RG1 2LU

Southampton
4 Grosvenor Square
Southampton SO15 2BE

  • Lexcel
  • CYBER ESSENTIALS PLUS

© BDB Pitmans 2024. One Bartholomew Close, London EC1A 7BL - T +44 (0)345 222 9222

Our Services

Charities chevron
Corporate and Commercial chevron
Employment and Immigration chevron
Environmental, Social, and Corporate Governance chevron
Fraud and Investigations chevron
Individuals chevron
Litigation chevron
Planning, Infrastructure and Regeneration chevron
Public Law chevron
Real Estate chevron
Restructuring and Insolvency chevron

Sectors and Groups

Private Wealth chevron
Real Estate chevron
Transport and Infrastructure chevron