Mitigation measures cannot be used in Habitats Regulation Screening: TEP Comment

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A recent ruling in the European Court of Justice regarding the Habitats Directive means that many developments cannot now be screened out of requiring appropriate assessment.  That means that planning applications will need to be accompanied by appropriate assessment which takes more time and involves more consultation than would previously be spent on a ‘screening request’

TEP can provide information for appropriate assessment quickly and cost-effectively and has already thought how this can be achieved.

More background and details on the ruling are set out below.

A recent European Court of Justice ruling on the Habitats Directive means that before planning permission can be given, many development projects will require appropriate assessment rather than a more simple ‘screening’ under the Habitats Regulations.
The ECJ ruling on 12th April 2018 that mitigation measures cannot be taken into account at Habitats Regulations screening stages is discussed in an engaging post by lawyer Simon Ricketts.  The ruling was brought following a request from the Irish courts after objections by an environmental NGO People Over Wind to the creation of an electrical grid connection for an approved windfarm.

The electrical cabling works required excavations and use of concrete.  These pose a risk to pearl mussels in the bed of the River Nore and tributaries, which is a Special Area of Conservation (SAC).  The risk would arise from sediments reaching the river bed and smothering the mussel beds.  The project’s promoters recognised the risk and proposed that a Construction Environmental Management Plan would be enforced .  This would prevent works proceeding in a way which could give rise to sediments reaching the river bed.

The ECJ’s ruling means that measures such as a CEMP cannot be taken into consideration at the screening stage of a Habitats Regulation Assessment (under the Conservation of Species and Habitats Regulations, 2017).  HRA applies to any projects that may affect European nature conservation sites, called either Special Protection Areas (SPAs) for birds and Special Areas of Conservation (SACs) for all other species and habitats of European interest.

In the UK, the screening stage is sometimes called an Assessment of Likely Significant Effect (ALSE).  Projects that cannot be screened out proceed to the appropriate assessment stage.

An “appropriate assessment” involves extra paperwork, although the burden can be reduced on smaller projects.  For example, TEP envisages the use of Habitats Regulations Assessment documents with two parts:

Part 1 which screens the project for the possibility of harm to the European site, and identifies preventive measures that would either a) completely avoid harm or b) guarantee that any harm would be completely non-significant.  Projects that cannot be screened out proceed to Part 2;

Part 2 which makes the appropriate assessment of any aspects of the project where further preventive or compensatory measures are required to ensure no adverse effect on the integrity of the European site.

Even so the ECJ ruling will place additional burdens on developers because an increased need for appropriate assessment entails more consultation with statutory nature conservation bodies and possibly public consultation. In England, it also removes the NPPF presumption in favour of sustainable development.
Paragraph 119 of the NPPF provides that the “presumption in favour of sustainable development (paragraph 14) does not apply where development requiring appropriate assessment under the Birds or Habitats Directives is being considered, planned or determined.” (This is carried over into paragraph 174 of the draft revised NPPF.)

TEP’s early advice to clients is to review any projects currently in the planning system where a Habitats Regulation Assessment is being considered.  Any projects that are being screened out of appropriate assessment using the ALSE process should be reviewed to ensure that the decision to screen out relies only on guaranteed avoidance of adverse effect, and reliance on construction-stage management controls at the screening stage is very inadvisable.  Such controls should be carried forward to the appropriate assessment stage.

In the UK, it is standard practice for avoidance and mitigation measures to be considered at screening stages, provided there is a high degree of certainty that these measures can be enforced and will be effective.  This standard practice is based on a UK legal judgement in R (on the application of Hart District Council) v Secretary of State for Communities and Local Government (Sullivan J, 1 May 2008) which was crucial in establishing the practicality of local authorities relying on the funding or provision of Suitable Alternative Natural Greenspace (SANGS) rather than requiring appropriate assessment in relation to each housing project that might lead to an increase in people wishing to use the nearby SPA for recreational purposes:

“…if the competent authority is satisfied at the screening stage that the proponents of a project have fully recognised, assessed and reported the effects, and have incorporated appropriate mitigation measures into the project, there is no reason why they should ignore such measures when deciding whether an appropriate assessment is necessary. Under Regulation 48(2), the competent authority may ask the proponent of a plan or project for more information about the plan or project, including any proposed mitigation, not merely for the purposes of carrying out an appropriate assessment, but also in order to determine whether an appropriate assessment is required in the first place. If for any reason the competent authority is still not satisfied, then it will require an appropriate assessment. As a matter of common sense, anything which encourages the proponents of plans and projects to incorporate mitigation measures at the earliest possible stage in the evolution of their plan or project is surely to be encouraged“.

The People Over Wind ruling suggests that the mere possibility of a risk to an SAC or an SPA arising from a project means there is a “likely significant effect” and the project should therefore proceed to “appropriate assessment” which is the second stage of a Habitats Regulations Assessment.  It is only at this second stage that mitigation and compensation measures should be properly considered.

So, are there any circumstances where mitigation and avoidance can be taken into account during Habitats Regulation screening? Earlier ECJ rulings, referred to in the People Over Wind case, are instructive; notably ECJ C-387/15 and C-388/15 (the Orleans case, notably paragraph 40).

Firstly, a preventive measure complies with Article 6(2) of the Habitats Directive only if it is guaranteed that it will not cause any disturbance likely significantly to affect the objectives of that directive.

Secondly, any assessment must be extremely thorough and well-evidenced. The Orleans case at paragraph 50 states “the assessment carried out under Article 6(3) of the Habitats Directive may not have lacunae and must contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works proposed on the protected site concerned”.

Neither the Habitats Directive, nor the ECJ, use the term “mitigation measures” which is common parlance in the UK. TEP’s view is that the ECJ’s rulings mean that projects can be screened out of the appropriate assesment stage only in three circumstances:

1. Where the project clearly would have no effect on the protected site by virtue of its distance and/or inconsequential indirect effect; however TEP’s view is that the effect of the ECJ’s ruling is that now this will have to be demonstrated on a case-by-case basis, rather than solely by reliance on district-wide approaches such as contributions to SANGs (Suitable Alternative Natural Greenspaces); or,

2. Where it can be guaranteed that any risk is avoided, for example through timing any disturbing activity outside periods where relevant species are breeding or wintering. Again the guarantee will have to be evidenced on a case-by-case basis; or,

3. Where preventive measures are proposed whose effectiveness is “beyond all reasonable scientific doubt”.  This excludes CEMPs because the fact they have to be written pre-supposes a risk that needs to be managed.  However acoustic or visual barriers which form an integral part of the scheme can usually be shown to be effective in all circumstances and should meet the test.

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