Transcript Slide 1

Top 10 Habitats Cases
of the last year
James Maurici
Landmark Chambers
Introduction 1
•
•
•
•
•
•
•
•
A subjective selection of cases from CJEU and England & Wales in last
year
In England & Wales the Conservation (Natural Habitats, &c.) Regulations
1994 replaced by The Conservation of Habitats and Species Regulations
2010
Transposing Council Directive 92/43/EEC of 21 May 1992 on the
conservation of natural habitats and of wild fauna and flora
Key aspects:
Reg. 61: significance screening test and AA – “competent authority may
agree to the plan or project only after having ascertained that it will not
adversely affect the integrity of the European site” – transposes Art 6(3)
Reg. 62: IORPI – transposes Art 6(4)
Reg. 53: Licensing re animals and plants
Reg 9(5): a “competent authority, in exercising any of their functions, must
have regard to the requirements of the Habitats Directive so far as they may
be affected by the exercise of those functions.”
Introduction 2
•
•
•
•
Before I get to the cases big year
for habitats
George
Osborne’s
Autumn
Statement 29 November 2011
“And we will make sure that gold
plating of EU rules on things like
Habitats aren’t placing ridiculous
costs on British businesses”
Defra Report of the Habitats and
Wild
Birds
Directives
Implementation Review March
2012
Law Commission Wildlife Law A
Consultation Paper (Consultation
Paper No 206)
Case 1: Cornwall Waste Forum (1)
•
•
•
•
S. 288 challenge to S/S’s grant of PP
on appeal for 2 Energy-from-waste
plants
2 close-by SACs.
Pre-inquiry PINS indicated inquiry
would consider Habitats issues and if
Inspector concluded likely significant
effect would undertake AA
EfWs also needed environmental
permit from EA
–
–
•
•
Pre-inquiry EA indicated minded to grant as
not any adverse effects
Post-inquiry, pre-decision issues consent
EA relied on so called - 1% rule
Inspector and S/S said EA most
appropriate AA and relied on its grant
of permit as showing no need for AA of
permission
Case 1: Cornwall Waste Forum (2)
•
•
•
•
C’s alleged breach of legitimate
expectation
given
pre-inquiry
correspondence saying Inspector
would consider if significant effect
and if so do AA on planning
appeal
C’s said they had at inquiry
criticised 1% rule EA relied on and
Inspector and S/S not considered
that
Collins J. upheld claim and
quashed PP – see celebrations (!)
->
S/S and developer appealed to
the CA
Case 1: Cornwall Waste Forum (3)
•
•
•
•
•
•
CA allowed appeal
Carnwath LJ 3 reasons legitimate
expectation argument fails:
(I) any promise by PINS could not
bind S/S as decision maker
(ii) when promise made need for AA
thought to depend on number of
issues not just emissions from stack
but situation chnaged so only
Habitats issue was re: stack
(iii) on harm from emissions S/S
entitled to rely on EA’s expertise
unless C’s show flawed.
C’s had not in that claim (or other
proceedings)
mounted
legal
challenge to 1% rule
Case 1: Cornwall Waste Forum (4)
•
•
•
•
C’s sought permission to appeal from
the Supreme Court
Argued did not matter not challenged 1%
rule in claim as Court had duty of own
motion to consider its lawfulness: see
Kraaijveld
SC rejected “the [CJEU]’s existing
jurisprudence
already
provides
a
sufficient answer and the answer is so
obvious as to leave no scope for any
reasonable doubt”
– Van Schijndel
– Van der Weerd
provided the party affected had had a
“genuine opportunity” to raise the issue of
EU law, the principle of effectiveness did
not require the Court to take the point of
its own motion where that would have
been procedurally inappropriate
Case 2: Feeney (1)
•
•
•
•
•
•
Challenge to decision of Oxford
CC to adopt a Core Strategy on
ground it would harm Oxford
Meadows SAC
3 Habitats Grounds:
(I) No sufficient finding if CS harm
SAC
(ii) Decision to adopt irrational
since deliverability of policy
dependent on a future negative
AA
(iii) Council failed to carry
our/record own AA
HC decision
Case 2: Feeney (2)
•
•
•
•
•
•
Underlying first two grounds is question of when an AA needs to be made,
in the context of a high-level spatial plan such as a core strategy.
Council’s approach was that in preparing a CS, the role of an AA is to
consider the implications, for the SAC, of the general approach in the core
strategy as to objectives and strategy, rather than considering detailed
“project-level” implications. Such detailed assessment should take place at
the planning application stage.
Supported by A-G Kokott in Commission v UK – para. 49
C argued Council needed to be sure, at the CS stage, that every possible
planning application envisaged by the CS would not have an adverse effect
on the SAC. An AA could not be deferred to a later stage, and a different
level in the planning process.
Policy in CS amended pre-adoption by Council acting with NE to say would
be a later Area Action Plan subjected to further AA and if adverse impacts
no development allowed
Claim struck out, approach of the Council upheld
Case 2: Feeney (3)
•
•
“First, a core strategy is a high level strategic document and the detail falls to be
worked out at a later stage. Subsequent appropriate assessment of specific
proposals is plainly envisaged by, and indeed necessitated under, the regime.
Each appropriate assessment must be commensurate to the relative precision
of the plans at any particular stage and no more. There does have to be an
appropriate assessment at the Core Strategy stage, but such an assessment
cannot do more than the level of detail of the strategy at that stage permits. Adv.
Gen. Kokott expressly recognises this at §49 of her Opinion in Commission v
UK. Secondly, if the use of a "safeguard" condition such as the present was
impermissible, proposals would have to be ruled out altogether at the core
strategy stage, and there could be no scope for subsequent appropriate
assessment at a later stage, as specifically envisaged by Adv. Gen. Kokott. If
the Claimant's argument were correct, a core strategy could never be approved,
where, as is likely, the specific detail of future particular development is not
known. No core strategy could ever involve detailed consideration of the impact
on SAC of specific development”
Para. 92
Case 2: Feeney (4)
•
“First, the adoption of the Core Strategy itself was not made contingent
•
upon there not being a negative appropriate assessment in the future.
Rather, as indicated in paragraph above, the Core Strategy as adopted
itself recognises the possibility of future negative appropriate assessment
and makes provision for what is to happen in that event. I accept that it is
the case that the deliverability of the Northern Gateway CS6 policy as set
out in the Core Strategy is conditional upon a future appropriate
assessment. However, contrary to the Claimant's submission, the Core
Strategy does not represent an irrevocable commitment to the Northern
Gateway project, in the form there set out. Rather, because of the qualifying
wording, it represents a conditional commitment to that project. There is
nothing wrong in approving something in principle which may not happen in
the future, if the condition is not satisfied”
Para. 96
Case 3: Britannia Assets (1)
• S. 289 appeal to HC vs
Inspector’s
decision
on
enforcement notice appeal;
• Habitats issue on ground (a)
appeal;
• The Thames Estuary and
Marshes Special Protection
Area;
• Issue arose: in carrying out AA
could regard be had to a “fall
back” e.g. What happen if PP
refused
Case 3: Britannia Assets (2)
•
•
•
•
C argued that “the assessment under the Directive/Regulations falls to be made by
reference to the integrity of the site in the “actual real world” prior to the initiation of
the plan or project and in the “plan or project world” subsequent to such initiation. He
submits that it is unreasonable to proceed on the basis that such a comparison is not
allowed when a retrospective assessment is being undertaken as is the case here”
D’s argued against
Judge agreed with C on this but refused permission to appeal.
“ ... In my judgment it would be strange, to say the least, if a proposal were refused
planning permission on the grounds of its impact upon a protected site even though
the reality might be that an existing lawful use might have a much greater impact
upon nature conservation interests upon the protected site. In this case, for example,
if the reality was that the Appellant could revert to using this site for the storage and
distribution of petroleum products or for other kinds of storage and distribution falling
within B8 and it could be demonstrated that the trading estate use now in existence
had significantly less effect upon the birds upon the protected site it would be an odd
result, indeed, if the Directive/Regulations required that planning permission be
refused”
Case 4: Elliott, Payne (1)
•
•
•
•
•
•
S. 288 HC challenge to S/S grant of
PP for regeneration of Crystal Palace
Park
Evidence that development result in
loss of trees and that foraging bats
commuted across the park
There was to be an ecological
management plan to mitigate
Inspector considered would be shortterm impacts on bats, but PP justified
in order to effect regeneration, and
longer term would benefit bats
Inspector said S/S may consider
IROPI
S/S not mention IROPI said effects
acceptable given mitigation
Case 4: Elliott, Payne (2)
•
•
•
•
•
Article 6(4) says “If, in spite of a negative assessment of the implications for
the site and in the absence of alternative solutions, a plan or project must
nevertheless be carried out for imperative reasons of overriding public
interest, including those of a social or economic nature, the Member State
shall take all compensatory measures necessary to ensure that the overall
coherence of Nature 2000 is protected. It shall inform the Commission of
the compensatory measures adopted”
C said: (I) desirability of raising money by development however worthy a
public purpose not IROPI; and (ii) S/S failed to consider IROPI expressly
Judge rejected that, although S/S not mention IROPI must have had in mind
Also argued S/S on appeal that S/S had to satisfy self that disturbance of
bats (which would be criminal unless licensed by NE) would be licensed
under reg. 53 of 2010 Regulations transposing Article 12 of the Directive
Judge applied Supreme Court decision in Morge
Case 4: Elliott, Payne (3)
•
•
•
•
•
Judge said S/S not exercising licensing function but planning function, and
duty was that under reg. 9(5) to have regard to requirements of the Habitats
Directive
Key passage in Morge per Lord Brown:
“however I cannot see why a planning permission … should not ordinarily
be granted save only in cases where the planning committee conclude that
the proposed development would both (a) be likely to offend article 12(1)
and (b) be unlikely to be licensed pursuant to the derogation powers. After
all, even if development permission is given, the criminal sanction against
any offending (and unlicensed) activity remains available and it seems to
me wrong in principle, when Natural England have the primary responsibility
for ensuring compliance with the Directive, also to place a substantial
burden on the planning authority in effect to police the fulfillment of Natural
England's own duty.”
See to similar effect in Scotland William Grant (para. 41 of paper)
Permission to appeal to CA being pursued
Case 5: Walton (1)
•
•
•
•
Scottish case, challenge to
decision of Scottish Ministers to
approve the Aberdeen West
Peripheral Route – AWPR following inquiry
Route crossed River Dee, needed
3 span viaduct bridge in
catchment of River Dee SAC
All agreed AA needed
A report to inform the AA
commissioned and concluded no
adverse effect, SNH agreed
Case 5: Walton (2)
•
•
•
•
•
AA said “… the Consultant's Report to inform the Appropriate Assessment
details a range of key mitigation measures that will be implemented. The
mitigation proposed ensures that the conservation objectives for each of the
qualifying species can be maintained in the longer term, therefore an
adverse affect on the integrity of the River Dee SAC can be avoided.” The
assessment, therefore, concluded that the constructional and operational
phases of the AWPR could be undertaken without any adverse affect upon
the integrity of the River Dee SAC.”
Argued not clear that Scottish Ministers applied rigorous standard required
by Habitats Directive
Claim failed before Lord Ordinary, and Inner House
Court said claim “came down to saying that the decision erred in law
because the appropriate assessment, and the decision letter, did not use
the exact language used by the CJEU in Waddenzee.”
Dismissed as “semantic quibble”
Case 5: Walton (3)
•
•
•
– 2 other points:
(I) applied Morge on relationship to
licensing decisions:
“At the time that the decision which is
challenged
was
taken,
the
respondents were not reaching any
conclusion as to whether a licence
should be granted by them or not. …
the only obligation upon them was to
have regard to the requirements of the
Habitats Directive so far as they may
be affected by the exercise of those
functions.”
(ii) Appealed to Supreme Court –
decision this week.
Case 6: Solvay
•
•
•
•
CJEU reference of proceedings brought against the Region of Wallonia
concerning development consents for works relating to the BrusselsCharleroi railway and the Liege-Bierset and Brussels South Charleroi
airports;
Mainly concerned with EIA and Aarhus but 5th question on Habitats
“Must Article 6(3) of [the Habitats] Directive…be interpreted as permitting a
legislative authority to authorise projects ... even though the impact
assessment carried out in that connection has been held by the Conseil
d’Etat, in a judgment given under the emergency procedure, to be
incomplete and has been contradicted in an opinion of the authority of the
Walloon Region responsible for the ecological management of the natural
environment?”
Answer: “Article 6(3) of the Habitats Directive must be interpreted as not
allowing a national authority, even if it is a legislative authority, to authorise
a plan or project without having ascertained that it will not adversely affect
the integrity of the site concerned.”
Case 7: Hargreaves (1)
•
•
•
•
C challenged decision of an Inspector
to grant pp to erect two wind turbines
approximately 5 km from the
Morecambe Bay SPA, Lune Valley
SSSI and Wyre Estuary SSSI.
The SPA hosted a range of bird
species, including the pink-footed
goose, which could commute inland for
up to 10 km from its roosting sites.
There was a risk that up to 50 geese a
year would collide with the wind
turbines.
Applications for planning permission
were refused twice on the basis of the
potential impact on the pink-footed
geese population
Case 7: Hargreaves (2)
•
•
•
3rd application proposed mitigation
in form of additional feeding
grounds – so collision mortalities
offset by increased survival
because of additional feeding
during
winter.
NE
content
adequate.
Alleged no AA;
Issue was this mitigation or
compensation. Agreed mitigation
can be had regard to in assessing
if likely to have significant effect
and hence if AA needed. But
“compensation” comes in only
under Article 6(4) IROPI.
Case 7: Hargreaves (3)
•
“The Habitats Directive and
Regulations are concerned with
likely significant impacts on the
site--that is the SPA--not the
species--that is pink-footed geese.
Once this is understood it
becomes clear that whichever way
the ameliorating elements of the
scheme are understood they are
in substance mitigatory in nature
applying the Managing Nature
2000 Sites definitions because the
adverse effect being addressed is
the possible reduction of the total
number of pink-footed geese overwintering at the SPA.”
Case 7: Hargreaves (4)
•
•
“49 The next issue that then has to be considered is whether taking into account the
mitigating elements of the scheme it was unlawful or irrational to conclude that the
proposed development would not have a likely significant effect upon the SPA. In my
judgment framed in that way the proposition is not arguable. As I have said already
the mitigation elements were integral parts of the proposal and the Inspector was not
merely entitled but bound to take them into consideration when considering the
appeal – see paragraph 37 above. The issue for consideration was not what if any
effect the proposals would have on pink-footed geese but rather what the effect of the
proposal on the geese would have on the SPA. By the time the matter came to be
considered by the Inspector the opinion of NE that was concurred with by both RSPB
and LCC was that subject to the three minor points and the funding issue mentioned
in the factual narrative above, and subject to the formation of a s.106 agreement, “
…the development would no longer pose a likely significant threat to the integrity of
the … SPA … ”. As I have said already, the reliance placed by Mr McCracken on the
apparent confusion in the minds of officials considering the ameliorating elements of
the scheme as to the aim of the scheme is immaterial once it is understood that what
was being addressed was effect on the SPA. Either aim would achieve the same
objective namely neutralising a reduction in the total numbers of geese that over
wintered at the SPA successfully.”
Case 8: Case C-43/10 Nomarchiaki Aftodioikisi Aitoloakarnanias and
Others v Ypourgos Perivallontos, Chorotaxias kai Dimosion ergon and
Others (1)
•
•
•
CJEU reference
Dispute in the main proceedings
concerned a project for the partial
diversion of the upper waters of the
river Acheloos to Thessaly, in order to
construct dams.
CJEU asked to consider whether the
Habitats Directive must be interpreted
as precluding consent being given to a
project for the diversion of water not
directly connected with or necessary to
the conservation of a SPA, but likely to
have a significant effect on that SPA,
in absence of information or of reliable
and updated data concerning the birds
in that area.
Case 8: Case C-43/10 Nomarchiaki Aftodioikisi Aitoloakarnanias and
Others v Ypourgos Perivallontos, Chorotaxias kai Dimosion ergon and
Others (2)
•
“The assessment of any imperative reasons of overriding public interest and
that of the existence of less harmful alternatives require a weighing up
against the damage caused to the site by the plan or project under
consideration. In addition, in order to determine the nature of any
compensatory measures, the damage to the site must be precisely
identified”
•
“ ... it cannot be held that an assessment is appropriate where information
and reliable and updated data concerning the birds in that SPA are lacking”
•
The CJEU also ruled that irrigation and the supply of drinking water
constitute an overriding public interest that can justify a water diversion
project in the absence of alternative solutions.
Case 9: Badger Trust (1)
•
•
•
•
Challenge to S/S policy on bovine
tuberculosis by which farmers
could cull badgers
Policy involved licensing culling
under the Protection of Badgers
Act 1992, s. 10(2)(a) to reduce the
incidence and transmission of the
disease. S. 10(2)(a) allowed
interference with a badger sett for
certain purposes
Argued ultra views as s. 10(2)(a)
allowed license only where
purpose was preventing the
spread of disease
Challenge failed before HC and
CA
Case 9: Badger Trust (1)
•
•
•
•
Big news ...
Court battle on badger cull fails
http://www.bbc.co.uk/news/scienc
e-environment-19563661
Badger cull legal challenge fails
at
court
of
appeal
http://www.guardian.co.uk/environ
ment/2012/sep/11/badger-culllegal-challenge-fails
Badger cull to go ahead this
autumn as last ditch legal
challenge
fails
http://www.telegraph.co.uk/eart
h/wildlife/9536573/Badger-cullto-go-ahead-this-autumn-aslast-ditch-legal-challengefails.html
Case 10: Case 404/09 Commission v Spain (1)
• Reference to CJEU from
Spain, concerns authorising of
3 open cast mines affecting the
Alto Sil SPA
• Protected species included:
capercaillie – population of
regional or national importance
• CJEU again emphasised the
importance of considering
cumulative impact in Habitats
assessments
• Also held could not consider
Article 6(4) before Article 6(3)
assessment carried out