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Mitigation and screening for appropriate assessment

First publishedin Aggregates Business Europe
MayJune2018
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Proposing development on European sites already needs to be approached carefully by aggregates businesses. And that need for careful consideration looks set to increase following a recent European Court of Justice decision. Chris Tofts, head of planning for Stephens Scown LLP, explains the implications of the judgment.

To establish if a development is likely to affect a European site (which includes a Special Area of Conservation under the Habitats Directive and a Special Protection Area under the Birds Directive) a developer needs to follow two steps.

The first stage, commonly known as ‘screening’, is to decide if the plan is likely to have a ‘significant effect’ (either alone or in combination with other plans or projects) on the European site. If that possibility is excluded, there is no need to do anything further.

However, if a ‘significant effect’ cannot be excluded, the second stage is ‘appropriate assessment’ (AA) to determine that the plan or project will not adversely affect the integrity of the site. In making that determination, regard may be had to conditions or limitations on the planning permission.

In respect of screening, some domestic courts have long taken the position that proposed mitigation measures can be taken into account in determining whether there is likely to be a significant effect.

However, the decision of the European Court of Justice in the People Over Wind case on 12 April, casts doubt on this approach in the future.

About the case
People Over Wind objected to a wind farm in County Laois, Ireland, on the basis that it would threaten the future of the Nore freshwater pearl mussel, a species thought to be unique to Ireland and the River Nore region.

People Over Wind challenged a determination by the developers that grid connection works to connect the wind farm to a sub-station did not require a stage-two appropriate assessment under the Habitats Directive.

The issue before the court was whether, or in what circumstances, mitigation measures can be considered when carrying out screening for appropriate assessment under the Habitats Directive.

The court concluded that mitigation measures could not be considered at the screening stage, saying: “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.”

Potential impact
The judgment has already attracted criticism as it imposes an unnecessary regulatory burden. It is likely that the judgment will be seized upon by opponents of schemes where the screening process has taken account of mitigation.

However, where mitigation for a development can be shown at the screening stage to avoid an adverse effect on the integrity of the site, then the need for an AA is logically unnecessary: what does it add to the process if the outcome of the AA is bound to be the same?  This is particularly pertinent in some jurisdictions where the courts may refuse relief, for example, in England and Wales, where “it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”.

This decision could make it difficult for the promoters of plans and projects to screen out the need for appropriate assessment, increasing the time and cost of gaining permission for developments.

Given that regard may be had to mitigation secured through planning conditions or limitations when carrying out an AA, it is unlikely that development schemes which can adequately mitigate their impacts on European sites will fail to gain planning permission as a result of this decision, the real impact most likely being the additional regulatory burden of producing information to assist the local planning authority to make an appropriate assessment.

Companies in this article

Stephens Scown
www.Stephens-Scown.co.uk

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