The Court of Justice of the European Union (CJEU) recently clarified the distinction between mitigation measures and compensatory measures under Article 6 of the Habitats Directive. This followed a preliminary request from Ireland’s Supreme Court during proceedings.

What are the criteria?

The reference concerned the interpretation of Article 6(3) and (4) of the Habitats Directive. Article 6(3) relates to:

• Projects/plans not directly connected with or necessary to the management of a special area of conservation but are likely to have a significant effect on the area, alone or in combination with other projects.

Article 6(4) on the other hand relates to:

• Projects that will have negative implications for the site but must be carried out for certain reasons of overriding public interest. Compensatory measures must be taken to ensure the coherence of “Natura 2000” is protected.

Obligations arising under 6(2) - (4) are applicable to special protection areas (SPAs) under the Birds Directive.

The Birds Directive relates to the conservation of all species of naturally occurring birds and the rules which apply. In particular, Article 4 outlines the factors to be taken account of in relation to special conservation measures taken for certain species mentioned in Annex I of the Directive. The Annex I species in this case was the hen harrier.

Background

This request for a preliminary ruling (the Request) was made in proceedings between Ms Grace and Mr Sweetman and An Bord Pleanála (the planning authority). The proceedings centred on the planning authority’s decision to grant permission to ESB Wind Developments Ltd and Coillte for the proposed development of a wind farm in an SPA under the Habitats Directive. The development included a Species and Habitat Management Plan (the Plan) which was to be implemented over a period of five years and included measures to address the potential effects of the wind farm on the SPA.

The planning authority’s decision to grant permission to the developers was upheld in the High Court in 2015. These decisions were later appealed to the Supreme Court by Ms Grace and Mr Sweetman. In February 2017, the Supreme Court gave rulings on two of the three appeal grounds. However, the third ground depended on the interpretation of Article 6(3) and (4) of the Habitats Directive.

Compensatory measures?

The applicants contended that the planning authority should have come to the conclusion that the development and the Plan entailed compensatory measures and should have taken account of the criteria in Article 6(4) when carrying out its assessment.

The planning authority, EBS and Coillte argued that it is necessary to take account of the fact that no part of the wooded sector of the area would remain permanently in a condition allowing it to provide suitable habitat. This needs to be taken into account in determining whether the development was likely to adversely affect the integrity of the SPA within the meaning of Article 6(3) of the Habitats Directive. Extensive areas of land are required for the hen harrier to forage but only small scale areas are required for nesting. The decline of the hen harrier is attributable more to the potential deterioration of the foraging habitat than the nesting habitat. The foraging habitat thrives at a certain stage of the forestry cycle and the failure to actively manage forest plantation would lead to loss of the hen harrier's foraging habitat. This reliance on the forestry cycle means the population of the hen harrier is in constant flux.

The Supreme Court was required to determine whether the planning authority was correct to carry out its assessment solely on the basis of Article 6(3) of the Habitats Directive. The Court stipulated that there was no reference to “mitigating measures” in the Habitats Directive but framed the question whether the fact that “…part of the site that is in fact likely to provide a suitable habitat will not be reduced and indeed may be enhanced may be taken into account for the purpose of the assessment that must be carried out in accordance with Article 6(3) of the directive to ensure that the project in question will not adversely affect the integrity of the site concerned, or whether that fact falls to be considered, if need be, under Article 6(4) of the directive”.

ECJ’s interpretation

The Court of Justice of the European Union summarised case law and stated that, as observed by the Advocate General in his Opinion, there is a “distinction to be drawn between protective measures forming part of a project and intended [to] avoid or reduce any direct adverse effects that may be caused by the project in order to ensure that the project does not adversely affect the integrity of the area, which are covered by Article 6(3), and measures which, in accordance with Article 6(4), are aimed at compensating for the negative effects of the project on a protected area and cannot be taken into account in the assessment of the implications of the project”.

The Court held that it is only when it is sufficiently certain that a measure will make an effective contribution to avoiding harm, guaranteeing beyond all reasonable doubt that the project will not adversely affect the integrity of the area, that such a measure may be taken into consideration when the appropriate assessment is carried out under Article 6(3).

Article 6 of the Habitats Directive must be interpreted as meaning:

• Where it is intended to carry out a project on a site designated for the protection and conservation of certain species, of which the area suitable for providing for the needs of a protected species fluctuates over time, and the temporary or permanent effect of that project will be that some parts of the site will no longer be able to provide a suitable habitat for the species in question, the fact that the project includes measures to ensure that the part of the site that is likely to provide a suitable habitat will not be reduced and may actually be enhanced may not be taken into account for the purpose of the appropriate assessment under Article 6(3).

Instead, these measures can only be considered, if need be, under Article 6(4) of the Directive.

Conclusion

The ruling of the CJEU clarifies that it is only when it is sufficiently certain that a measure will make an effective contribution to avoiding harm, guaranteeing beyond all reasonable doubt that the project will not adversely affect the integrity of the area, that such a measure may be taken into consideration when the appropriate assessment is carried out under Article 6(3).

Measures which are aimed at compensating for the negative effects of the project on a protected area can only be considered under Article 6(4).

For more information on the appropriate test for establishing whether your project will secure planning permission, contact a member of our Planning & Environment team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.