The European Court of Justice is certainly turning the screws this year via various cases in relation to the Republic of Ireland, with now three rulings against its Planning Board, An Bord Pleanála. Following People Over Wind (see my 20 April 2018 blog post EU Court Ruling: Ignore Mitigation Measures In Habitats Screening) and Grace, Sweetman (see the second half of my 18 August 2018 blog post What Is Mitigation?) we now have Holohan (CJEU, 7 November 2018).
In basic summary:
People Over Wind has removed the ability for the competent authority to screen out the need for appropriate assessment, under the Conservation of Habitats Regulations 2017, on the basis that a significant effect on a Special Protection Area or Special Area of Conservation is unlikely, where that conclusion is reliant on proposed mitigation measures. The result has been far more projects and plans requiring appropriate assessment to ascertain that they will not adversely affect the integrity of the relevant SPA or SAC.
Grace, Sweetman has removed the ability for the competent authority to reach a conclusion at appropriate assessment stage that there will be no adverse effect on integrity, where mitigation measures are relied on that in reality amount to compensatory measures for the loss of habitat.
Holohan now imposes more detailed requirements on the competent authority at appropriate assessment stage:
1. […] an ‘appropriate assessment’ must, on the one hand, catalogue the entirety of habitat types and species for which a site is protected, and, on the other, identify and examine both the implications of the proposed project for the species present on that site, and for which that site has not been listed, and the implications for habitat types and species to be found outside the boundaries of that site, provided that those implications are liable to affect the conservation objectives of the site.
2. […] the competent authority is permitted to grant to a plan or project consent which leaves the developer free to determine subsequently certain parameters relating to the construction phase, such as the location of the construction compound and haul routes, only if that authority is certain that the development consent granted establishes conditions that are strict enough to guarantee that those parameters will not adversely affect the integrity of the site.
3. […] where the competent authority rejects the findings in a scientific expert opinion recommending that additional information be obtained, the ‘appropriate assessment’ must include an explicit and detailed statement of reasons capable of dispelling all reasonable scientific doubt concerning the effects of the work envisaged on the site concerned.”
If you are relying on an appropriate assessment in relation to a project or plan, I suggest that you urgently check that it addresses these three requirements. An decision taken in reliance upon an appropriate assessment which does not cover off these points will be susceptible to legal challenge. If caught at the right time, deficiencies should be able to be addressed by some extra work. But it will be too late to rectify matters once the appropriate assessment is reached and the decision taken.
These CJEU rulings are unambiguous in their stated conclusions on the law, very different from our common law approach.
They are also likely to continue to be relevant, regardless of what happens with Brexit. After all, as set out in my 18 September 2018 blog post Planning, Brexit, Michael Gove as Secretary of State for Environment, Fisheries and Rural Affairs has committed that:
“Where environmental principles are contained in specific pieces of EU legislation, these will be maintained as part of our domestic legal framework through the retention of EU law under the EU (Withdrawal) Bill. Any question as to the interpretation of retained EU law will be determined by UK courts in accordance with relevant pre-exit CJEU case law and general principles, subject to the other exceptions and restrictions within the Bill. For example, CJEU case law on chemicals, waste and habitats includes judgments on the application of the precautionary principle to those areas. This will therefore be preserved by the Bill“.
As set out in that blog post, we are still waiting for the draft Bill, required by section 16 of the EU (Withdrawal) Act to be published by Boxing Day 2018, that will set out the environmental principles to be applied post Brexit and the body that will enforce them.
What we now have seen of course is the draft withdrawal agreement published on 14 November 2018. Who knows whether it will be concluded but it envisages that the CJEU will continue to have jurisdiction in any proceedings brought against the UK during the transition period to 31 December 2020.
In the event of the backstop being triggered at the end of the transitional period if the Irish border issue hasn’t been settled, a series of commitments in relation to environmental protection will kick in, as set out in Part 2 of Annex 4 to the Protocol on Northern Ireland/Ireland (pages 356 to 360 of the overall draft agreement). The commitments include:
– Non-regression in level of environmental protection subsisting at the end of the transitional period.
– The principles to be reflected in legislation:
a) the precautionary principle;
b) the principle that preventive action should be taken;
c) the principle that environmental damage should as a priority be rectified at source; and
d) the “polluter pays” principle
– The Joint Committee shall adopt decisions laying down minimum commitments for:
a) the reduction of national emissions of certain atmospheric pollutants;
b) the maximum sulphur content of marine fuels
c) those best available techniques, including emission limit values, in relation to industrial emissions
– Commitment to meet international obligations as to addressing climate change
– Commitment to carbon pricing and trading of allowance consistent with EU system
– Finally, although much of this is already in hand via section 16 of the EU (Withdrawal) Act and/or the subject of other international obligations, a commitment to effective enforcement of environmental laws as well as the following:
“The United Kingdom shall ensure that administrative and judicial proceedings are available in order to permit effective and timely action by public authorities and members of the public against violations of its laws, regulations and practices, and provide for effective remedies, including interim measures, ensuring that any sanctions are effective, proportionate and dissuasive and have a real and deterrent effect.
The United Kingdom shall implement a transparent system for the effective domestic monitoring, reporting, oversight and enforcement of its obligations pursuant to this Article and to Article 2 by an independent and adequately resourced body or bodies…
The independent body shall have powers to conduct inquiries on its own initiative concerning alleged breaches by public bodies and authorities of the United Kingdom, and to receive complaints for the purposes of conducting such inquiries. It shall have all powers necessary to carry out its functions, including the power to request information. The independent body shall have the right to bring a legal action before a competent court or tribunal in the United Kingdom in an appropriate judicial procedure, with a view to seeking an adequate remedy.”
Professor Colin Reid’s 15 November 2018 blog post Environmental Commitments in the Withdrawal Agreement is a very good commentary on all of these provisions.
Finally, fabulous timing on the part of UKELA to have secured for next week’s annual Garner lecture Professor Juliane Kokott, Advocate General at the CJEU (who has been at the centre of so much EU case law, including the People Over Wind and Holohan cases referred to above). It will be fascinating to hear her perspective.
Simon Ricketts, 16 November 2018
Personal views, et cetera
PS David Elvin QC has since reminded me that the CJEU also on 7 November handed down its judgment in the Dutch Nitrogen Deposition case, which also contains important rulings in relation to appropriate assessment, for instance the extent to which agricultural activities amount to a “project”, as well as the extent of certainty required if conservation measures are to be relied upon as mitigation. See James Maurici QC’s blog post.