The European court confirmed that mitigation cannot be taken into account when screening a project under the Habitats Regulations. It has also clarified between mitigatory and compensatory measures

In April 2018, the European Court of Justice (ECJ) issued a controversial decision in the case of People Over Wind, Peter Sweetman v Coillte Teoranta (C-323/17). The ruling confirmed that proposed mitigation measures cannot be taken into account for the purposes of screening under the UK Habitats Regulations, which give effect to the EU Habitats Directive (92/43/EEC).

A further ruling by the ECJ in July clarified the distinction between mitigatory and compensatory measures and when in the assessment process under the Habitats Directive each should be considered (Grace v An Bord Pleanala (C-164/17)).

A more recent UK High Court ruling in August (R (on the application of Langton) v Secretary of State for Environment, Food and Rural Affairs, Natural England [2018] EWHC 2190 Admin) confirmed that conditions on badger cull licences were not mitigation measures and therefore could be taken into account for the purposes of habitats screening.

The effect of the Sweetman ruling in April is that many projects which would not have previously required a full appropriate assessment will now be required to undertake one. What is mitigation (and should not be taken into account when screening) and what is an integral part of the design (and can be taken into account when screening) is now the subject of debate.

Developers and decision-makers must also keep a clear distinction in their minds between the requirements of Environmental Impact Assessment (EIA) and the requirements of the Habitats Directive. The ruling also potentially provides objectors to a project with another avenue of challenge.

What steps need to be taken under the Habitats Directive?

The Habitats Directive aims to conserve the natural habitats of rare, threatened or endemic animal and plant species by creating an EU wide ecological network of protected areas, known as Natura 2000 sites (referred to here as European sites). The Habitats Directive requires a sequence of steps to be taken to establish whether or not a proposed development can go ahead. These can be summarised as follows:

  1. Screening: the first step is a screening process to identify any potential European sites that may be impacted by the development. Where it is established that a project is likely to have a significant effect on a European site, the relevant authority (e.g. the planning authority or Secretary of State) must undertake an appropriate assessment (Article 6(3) of the Habitats Directive). This has been interpreted as meaning that an appropriate assessment is needed if the risk of significant effects cannot be excluded at the screening stage.
  2. Appropriate assessment: the appropriate assessment is a detailed consideration of the impact of the project on that European site. To support the appropriate assessment, developers are required to provide a report to inform the appropriate assessment (RIAA). If the result is a negative assessment of the implications for the European site and there is no alternative solution, the ‘IROPI’ test must be satisfied if the proposed development is to be allowed.
  3. IROPI test: IROPI stands for imperative reasons of overriding public importance. If there are such reasons then the proposed development can be allowed so long as compensatory measures are taken to ensure the overall coherence of Natura 2000 is protected (Article 6(4) of the Habitats Directive).

Screening and appropriate assessments

Previous law

Prior to the Sweetman ruling in April, case law in England and Wales had established that mitigation measures intended to avoid or reduce the harmful effects of a project could be taken into account at the screening stage when considering whether or not the project was likely to have a significant effect on a European site. If the risk of harm could be excluded by the proposed mitigation measures, there was no need to undertake a full appropriate assessment.

What was the ECJ’s ruling in April?

The court in Sweetman completely changed this well-established approach to screening under the Directive. The case concerned the impact of a proposed electricity cable serving a wind farm on an endangered species of freshwater pearl mussel in the River Nore (a European site) in the Republic of Ireland. The consultants’ screening report found that, while there was potential for the development to have a significant impact on the habitat in question, this impact would be eliminated by protective measures which consisted of a construction methodology to control surface water run-off.

As the proposed protective measures were not as stringent as those required in the planning permission for the wind farm, the Irish High Court referred the case to the ECJ for a ruling on whether or not mitigation measures can be considered when carrying out screening under the Habitats Directive.

In determining this question, the ECJ considered the interpretation of Article 6(3) of the Habitats Directive:

Any plan or project not directly connected with or necessary to the management of the [European] site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site… the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.”

The ECJ interpreted this to mean that if a project is likely to have a significant adverse effect on a European site, it should be subject to an appropriate assessment, regardless of any proposed mitigation measures intended to avoid or reduce the identified harmful effects of the development.

What was the ECJ’s reasoning?

The ECJ reasoned this decision by stating that the very fact that mitigation measures are required in the first place means that there must be a likely significant effect on the site and Article 6(3) requires appropriate assessment where a project is likely to have a significant effect. Article 6 makes no mention of ‘mitigation’ – only conservation, prevention and compensation.

The court stated that ruling out projects at the screening stage because of mitigation measures would undermine the original intentions of the Habitats Directive. This approach allows many projects with mitigation measures in place to bypass any appropriate assessment stage, one purpose of which is to fully and precisely analyse the effectiveness of any proposed mitigation measures.

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 would be a risk of circumvention of that stage, which constitutes, however, an essential safeguard provided for by the directive.” (paragraph 37 of the judgment)

Which projects will require an appropriate assessment?

The immediate effect of this ruling is that many more projects which did not previously require an appropriate assessment will now be required to undertake one. If the scheme relies on mitigation measures to avoid or reduce likely significant effects on a European site, it will now be safer for developers and decision-makers to assume the need for an appropriate assessment. A detailed consideration of the habitats impacts of the project, including the production of a RIAA, is usually intensive in terms of time and resources. Developers will need to factor this into their budgets and timescales accordingly.

How does this compare to the EIA regime?

At the same time, developers and decision-makers need to be aware that the ECJ's ruling means that habitats screening now takes a notably different approach to screening under the Environmental Impact Assessment (EIA) regime. The EIA Directive (2011/92/EU as amended) expressly allows mitigation measures to be taken into account at the screening stage in order to determine whether or not an EIA is necessary. Developers whose projects require screening under both and EIA and habitats regimes will need to take care to distinguish the content of each screening application according to the different rules that are now in place for these regimes.

What are ‘mitigation measures’?

One unfortunate outcome of the ruling is that it creates confusion and uncertainty for developers and decision makers over exactly what constitutes a mitigation measure for the purposes of habitats screening. The PINS guidance note to planning inspectors (PINS Note 05/2018) interprets the ruling as follows:

“The implication of the CJEU judgment is that competent authorities cannot take account of any integrated or additional avoidance or reduction measures when considering at the HRA [Habitats Regulations Assessment] screening stage whether the plan or project is likely to have an adverse effect on a European Site.”

However, as the guidance points out, there is no authoritative definition of what constitutes an integrated or additional avoidance or reduction measure. The note attempts to clarify the issue by stating:

“If a measure is being introduced to avoid or reduce an effect on a European site, then it can be viewed as mitigation. It may be helpful to consider whether a proposal could be considered integral to a plan or whether it is a measure introduced to avoid harm".

According to the guidance, whether or not something constitutes a mitigation measure depends on the purpose for which it was introduced. The guidance draws a distinction between “integrated or additional avoidance or reduction measures” which cannot be taken into account at the habitats screening stage and proposals which could be considered “integral to a plan”. While this analysis is helpful to an extent, what constitutes a mitigation measure it is still very much a grey area and will clearly have to be assessed on a case by case basis.

What next?

Some commentators have pointed out that the Sweetman ruling will discourage developers from considering mitigation measures at an early stage, since this will now be dealt with at a later stage following appropriate assessment. In practice, developers may end up attempting to design mitigation measures in such a way that they also have another purpose within the scheme to enable them to be considered as an “integral” part of a development proposal rather than purely as measures designed for the purpose of avoiding or reducing an effect on a European site.

Interestingly, on 15 August 2018, in the case of Langton, the High court ruled that conditions on badger cull licences preventing badger culling near a Special Protection Area or at certain times of year should not be classed as mitigation measures as described in the Sweetman ruling.

The judge ruled that these licence conditions were properly characterised as “integral features of the project” and could therefore be relied on for the purposes of habitats screening. His reasoning was that it would be "contrary to common sense for Natural England to assume that culling would take place at times and places where the applicants did not propose to do so” because of the conditions on the licence (paras 155-157). This is hopefully a sign that a pragmatic approach to the issue will be taken by the domestic courts in future.

Further clarification on the definition of ‘mitigation measures’ by the ECJ would be helpful.

Appropriate assessment, IROPI and compensatory measures

In July, in the case of Grace v An Bord Pleanala, the ECJ confirmed that measures designed to compensate for known negative effects of the project should not be taken into account for the purposes of the appropriate assessment carried out under Article 6(3) when it was not sufficiently certain that those measures would be effective in avoiding harm to the site.

The case involved the impact of a wind farm on hen harrier habitat at a European site. The developer’s species and habitat management plan included measures to address the potential effects of the wind farm on the habitat and had been taken account of in the appropriate assessment. The ECJ found that these were compensatory not mitigation measures and should be examined at the IROPI stage in accordance with Article 6 (4), to ensure that they provide the necessary protection for the overall coherence of Natura 2000.

The court said that a distinction must be drawn between:

  • protective measures intended to avoid or reduce any adverse effects that the project may have on the site, which are considered in the appropriate assessment required by Article 6(3)
  • measures that are aimed at compensating for the negative effects of the project on a European site, which are required by Article 6(4).

The ECJ pointed out that the appropriate assessment must contain complete and precise findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the development on the site concerned. If an appropriate assessment concludes that the development will adversely affect the site despite any proposed mitigation measures, the plan or project may still be carried out for imperative reasons of overriding public interest (IROPI) under Article 6(4) as long as compensatory measures are considered and adopted.

For small scale projects satisfying the IROPI test is a high hurdle and it is therefore likely that this approach will prevent a number of schemes from being approved.