Wed, 09 May 2018
Those promoting and determining development proposals in the area of influence of sites protected under the Habitats Directive (and candidate sites) will need to be aware of the CJEU’s People Over Wind decision (published 12 April 2018, Case C-323/17). This concerned the question of when mitigation measures ought to be taken into account at the “screening” stage for appropriate assessment.
Domestically, the position was settled in the case of R (Hart DC) v Secretary of State for Communities and Local Government  EWHC 1204 (Admin). As Sullivan J said in that case “[i]f the screening assessment should consider all of the other components or characteristics of the proposed plan or project, why should a particular component or characteristic be ignored because it has been incorporated into the project as a mitigation measure?”
Clearly, if the competent authority does not agree with the developer as to the likely effectiveness of any mitigation measure, the competent authority will not be able to exclude the risk, on the basis of objective information, that the project will have a significant effect on the European protected site, and therefore it will require appropriate assessment.
If, on the other hand, the competent authority is certain that the proposed mitigation measures will preclude an identified likely significant effect, then what is the point of going to the time, trouble and expense of devising specific mitigation measures designed to avoid or mitigate any effect on a protected site, and incorporating those proposals into the development proposals, if the competent authority is then required to ignore them when considering whether an appropriate assessment was necessary? In Hart Sullivan J said such an exercise would be “pointless”.
The CJEU hasn't addressed that question in POW. In a very, very brief judgment, without the benefit of an Advocate General’s Opinion (even though the AG in the case was the very able and experienced AG Kokott) the court said: “a full and precise analysis of the measures capable of avoiding or reducing any significant effects on the site concerned must be carried out not at the screening stage, but specifically at the stage of the appropriate assessment” (emphasis added). This was because:
“37. 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.”
Just why that is the case in all circumstances was not explained.
Worryingly, the issue is not limited to sites protected under the Habitats Directive alone. The judgment in Gillespie v Secretary of State for Transport Local Government and the Regions & Ors ( EWCA Civ 400 concerned the same issue in the context of the EIA regime. Although the Habitats and EIA regimes are very different, there is scope for the same argument to be run in relation to the taking into account of mitigation measures at the screening stage of potential EIA development as well. However, ambitious (and risk-tolerant) claimants will have to convince the courts that regulation 6(2(e) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 is wrong to require that requests for screening opinions include “any features of the proposed development or any measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment“ (meaning mitigation measures are clearly intended to be taken into account at the screening stage).
In light of the potential legal minefield, obtaining specialist legal advice at an early stage is essential when contemplating development likely to be affected by the decision in POW. No5 Barristers’ Chambers is already advising clients on the implications for their schemes. For further information please contact firstname.lastname@example.org
Written by Nina Pindham
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