On 11 April, the European Court of Justice (“ECJ”) handed down its judgment in Case C‑258/11, ruling that endangered habitats may not be damaged, even slightly, for development purposes, except for reasons of overriding public interest. The case could have wide implications for the enforcement of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora habitats.
In 2008, the Irish planning board granted permission for a motorway that would lead to the loss of 1.47 hectares of a 270-hectare area of limestone pavement, a priority habitat. Following an appeal, the Irish Supreme Court referred questions to the ECJ, asking which criteria should be applied in assessing whether a project would have an adverse effect on the integrity of such a site under Directive 92/43 and whether the “precautionary principle” should be incorporated into this assessment.
In reply to those questions, the ECJ stated that Directive 92/43 must be interpreted as meaning that a plan or project not directly connected with or necessary to the management of a site will adversely affect the integrity of that site, if it is liable to prevent the lasting preservation of the constitutive characteristics of the site. It also confirmed that the precautionary principle should be applied for the purposes of that appraisal. As a result, the authority must refuse to authorise the plan or project being considered where uncertainty remains as to the absence of adverse effects on the integrity of the site.
The full text of the ECJ’s judgment is available via the following link: http://curia.europa.eu/juris/document/document.jsf?text=&docid=136145&pageInd ex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=175106