Summary: With Habitats Regulations Assessments and the question of what is mitigation firmly in the judicial spotlight, this blog examines another recent ruling from the CJEU on Article 6 of the Habitats Directive in Grace & Sweetman.
As well as the first High Court judgment to grapple directly with the CJEU’s ruling in People Over Wind, this summer saw a further ruling from the CJEU on Article 6 of the Habitats Directive in Grace & Sweetman. This blog considers this latest ruling and its significance for HRA. (The aforementioned High Court case - R (Langton v Secretary of State for Environment, Food and Rural Affairs & Natural England) - is the subject of my previous blog).
Grace & Sweetman
Like People Over Wind, Grace & Sweetman was a reference by the Irish High Court for a preliminary ruling on the interpretation of Article 6 of the Habitats Directive.
The case concerned a proposed wind farm in a Special Protection Area for the hen harrier, an Annex I species. The development involved the direct loss of habitat but included a species and habitat management plan intended to address the potential effects on the hen harrier’s foraging habitat. The plan included measures to restore areas to blanket bog and to fell and replace different forest areas through the life of the development.
The competent national authority, the An Bord, decided that the development would not adversely affect the integrity of the SPA and granted permission. This was challenged on the basis that the development and its related management plan entailed compensatory measures falling to be considered under Article 6(4), rather than mitigation in accordance with Article 6(3). This was essentially the question referred to the Court of Justice.
In considering the facts of the case, the CJEU noted that, if the project went ahead, some parts of the SPA would no longer be able to provide suitable habitat but that the management plan would seek to ensure that the part of the SPA that could provide suitable habitat would not be reduced and, indeed, may be enhanced. Essentially the SPA was to be managed ‘dynamically’ in order to preserve the hen harrier’s habitat, with the suitable areas varying geographically over time according to how the SPA is managed.
Applying its own previous rulings to these facts (most notably Briels & Others, Orleans & Others and Commission v Germany), the CJEU concluded that these measures were compensatory measures for the adverse effects on the integrity of the SPA which should not be taken into account as part of the appropriate assessment carried out in accordance with Article 6(3). Rather they fall to be considered under Article 6(4) where the competent authority may grant an authorisation only insofar as the conditions therein are satisfied, i.e. where, in spite of an adverse appropriate assessment and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest.
So does the ruling in Grace & Sweetman represent another People Over Wind moment for HRA?
In short, no. Superficially, Grace & Sweetman and People Over Wind have a lot in common: They are both Irish wind farm cases, they both involve the ubiquitous Mr Sweetman, they concern Article 6 of the Habitats Directive and, of course, in both cases the CJEU’s ruling went against the competent authorities/promoters of the wind farms. However, from a domestic perspective, the significance of the CJEU’s ruling in People Over Wind was that it cut across the established approach to HRA screening and the extent to which mitigation can be taken into account at that stage. By contrast, the CJEU’s ruling in Grace & Sweetman contained no such surprises; essentially the CJEU followed its own previous rulings concerning the distinction between mitigation and compensation at the appropriate assessment stage of HRA.
Unlike People Over Wind then, the CJEU’s latest ruling does not necessitate any changes to domestic law/practice around HRA. This is not to say that it is of no relevance; on the contrary, it is a sharp reminder that there is a difference between mitigation and compensatory measures in HRA terms and that this difference has serious consequences – specifically reliance on compensation rather than mitigation will inevitably result in an adverse appropriate assessment and this will, in turn, require the development to meet the high (and, for many proposals, impossible) bar of no alternative solutions and imperative reasons of overriding public interest.
Ultimately, what these two CJEU rulings show together is that HRA and the question of what is mitigation is firmly in the judicial spotlight at the moment. Accordingly, where projects engage the Habitat Regulations, it is critical to understand and appreciate the distinction between integral/design measures, mitigation measures and compensatory measures because of the implications for both the screening and appropriate assessment stages of HRA. And this is not just about managing legal risk either; for promoters/developers it might possibly be the difference between grant and refusal in the first place.