What Is Mitigation?

If you are asking this in the context of People Over Wind (EU Court of Justice, 12 April 2018), you are asking the wrong question. Whilst the reference to “mitigation” is useful shorthand (as in my 20 April 2018 blog post, EU Court Ruling: Ignore Mitigation Measures In Habitats Screening), the precise position is more complicated and, despite a helpful judgment of the High Court this week, not easy to resolve in a practical way.

The People Over Wind ruling can be summarised very briefly by paraphrasing its final paragraph: In order for a competent authority to determine whether it is necessary to carry out an appropriate assessment of the implications, for a site protected under the Habitats Directive or Birds Directive, of a plan or project, it is not appropriate, at the screening stage, to take account of the measures intended to avoid or reduce the harmful effects of the plan or project on that site.

In that case the measures which the court held could not be taken into account were requirements to be contained in a construction management plan to “provide details of intended construction practice for the development, including … (k) means to ensure that surface water run-off is controlled such that no silt or other pollutants enter watercourses …’.

In referring the case to the EU Court of Justice, the Irish High Court had referred to the requirements as “mitigating measures“. The promoter of the scheme which was under challenge had described them as “protective measures“, but the EU Court of Justice disregarded the distinction:

25     […] Article 6 of the Habitats Directive divides measures into three categories, namely conservation measures, preventive measures and compensatory measures, provided for in Article 6(1), (2) and (4) respectively. It is clear from the wording of Article 6 of the Habitats Directive that that provision contains no reference to any concept of ‘mitigating measure’ (see, to that effect, judgment of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraphs 57 and 58 and the case-law cited).

26      It follows that, as is apparent from the reasoning of the request for a preliminary ruling, that the measures which the referring court describes as ‘mitigating measures’, and which Coillte refers to as ‘protective measures’, should be understood as denoting measures that are intended to avoid or reduce the harmful effects of the envisaged project on the site concerned.

The court’s position was clear: “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.”

So the big question is whether there are any measures which can be taken into account at the screening stage which are not caught as avoidance or reduction measures.

There was a judgment of the High Court this week, R (Langton) v Secretary of State for Environment, Food & Rural Affairs and Natural England (Sir Ross Cranston, 15 August 2018), where this is dealt with briefly in the context of a broader series of challenges arising from DEFRA’s badger culling programme and (more relevant for the purposes of this blog post) decisions in August and September 2017 by Natural England to grant badger culling licences. I only address the latter below, although I may come back in a later blog post to other parts of the judgment in the context of the requirements of a lawful consultation process.

The claimant argued that in granting licences in Special Protection Areas and Special Areas of Conservation, Natural England had not carried out adequate assessment under the Habitats Regulations.

Natural England’s standard form assessments, undertaken in May 2017. “In each case the conclusion to these screening assessments was that the licensed culling of badgers was unlikely to have a significant effect on the qualifying features of the relevant site. In none of the areas was an in-combination assessment considered applicable.” (paragraph 79)

The assessments identified the possible disturbance effects of badger culling as follows:

disturbance to the species (firearm report, lamping, vehicles, humans), physical damage to habitats/species (vehicles, trampling, digging-in of traps), physical damage to non-target species, and “indirect damage to species from an increased abundance of other mammalian predators (in particular foxes) due to reduced badger population density.”” (paragraph 81)

Each of the assessments referred to “mitigation measures” which had been incorporated into the proposal and stated that complying “with the mitigation measures will ensure that there is no significant likely effect alone“.

The measures were various restrictions proposed to be included as conditions on licences, including:

⁃ limiting shooting activities to outside the bird breeding season

⁃ restricting vehicles to existing tracks

⁃ various restrictions on the location of traps and of activities. (paragraph 83)

Sir Ross Cranston sets out the law on Habitats Regulations Assessment at paragraphs 94 to 96 and then addresses the challenge to the validity of the decisions from paragraph 126 onwards.

The claimant argued that Natural England hadn’t adopted a precautionary approach (particularly in relation to the risks arising from a greater proliferation of foxes as a result of badger culling), and as a consequence had not even carried out HRA screening in relation to a number of SACs and SPAs, and that the screening process had improperly taken into account avoidance or reduction measures in breach of People Over Wind.

The court said this on the precautionary principle:

The precautionary principle in this context is fundamental, but “[i]t is for a third party who asserts that there is a risk which cannot be excluded on the basis of objective information to produce credible evidence to the court that the risk is a real one…”: R (on the application of DLA Delivery Ltd.) v Lewes District Council [2017] EWCA Civ 58, [30], Lindblom LJ (with whom Lewison LJ agreed), Boggis v Natural England[2009] EWCA Civ 1061, [37], per Sullivan LJ (with whom Longmore and Mummery L.JJ agreed).” (paragraph 133)

The court considered that “Natural England’s failures, even if only to record that no consideration of the risk was necessary with these close-by sites to cull areas, was a breach of its duty under the Habitats Regulations.” (paragraph 133).

However, it found that, on the evidence, the outcome would not have been substantially different if it had considered fox predation risk arising from granting culling licences

The court then turned to the implications of People Over Wind from paragraph 154 onwards. It referred to the Hart judgment from 2008, approved by the Court of Appeal in Smyth (2015) finding that there was no legal reason why preventative safeguarding measures incorporated into a project should be ignored at the initial screening stage.

It has of course been widely assumed that this approach has been overruled by People Over Wind. It is therefore intriguing how Sir Ross Cranston addresses the issue.

In paragraph 155 he refers to the measures in People Over Wind as measures “which seem to have involved reducing run-off” and indicates that the EU Court of Justice had found that they “should be understood as denoting measures intended to avoid or reduce the harmful effects of the envisaged project on the site concerned“.

He records at paragraph 156 the claimant as submitting that “the conditions which Natural England had attached to the cull licences, following advice to applicants, fell within the People Over Wind ruling and should not have been taken into account at the screening stage. These were that no culling activity would take place in certain locations (e.g., Severn Estuary SPA) or at certain times of the year (e.g., bird-breeding season with Dorset Heathlands SPA and Poole Harbour SPA).”

In the final paragraph of a 76 page judgment he then simply concludes:

In my view the licence conditions which Natural England attached to the licences in Areas 16 and 17 are not the mitigating or protective measures which featured in the People Over Wind ruling. They are properly characterised as integral features of the project which Natural England needed to assess under the Habitats Regulations. I accept Natural England’s submission that it would be contrary to common sense for Natural England to have to assume that culling was going to take place at times and places where the applicants did not propose to do so.”

So what do we take from this? On this basis we have up to date first instance authority (I do not know whether permission to appeal is being sought) for asserting that integral features within a scheme can be taken into account. But how is it to be determined when a condition restricting operations is or is not an integral feature? I can see that conditions that define the temporal and physical limits of a permitted activity can be said to be integral features but there is not always a clear dividing line. Were the construction management plan requirements in People Over Wind so very different?

What I do take from it is the potential willingness of our judiciary (or at least one judge, technically retired – which is why he is not referred to as “Mr Justice Cranston“) to seek to push back against the ruling and seek to retain the traditional, more pragmatic, approach from Hart.

Are our courts going to be able to hold that line? The approach in Langton appears to me to be potentially less restrictive than for instance the Planning Inspectorate’s advice to inspectors (9 May 2018), which states at paragraph 17 that “there is no definition of what constitutes avoidance and reduction measures and what could be viewed as an integral part of a works or development proposal. If a measure is being introduced to avoid or reduce an effect on a European site then it can be viewed as mitigation. This includes measures outlined in SPDs such as the provision of Sustainable Alternative Natural Greenspace and Strategic Access Management and Monitoring as in the Thames Basin Heaths approach. However it can also include ‘embedded mitigation’ such as a commitment within a development proposal to employing standard methods to prevent run-off from vehicles contaminating watercourses.”

Compensatory measures

Aside from the issue arising from People Over Wind as to what are “mitigation” (short-hand for “avoidance or reduction“) measures, which need to be disregarded in the screening process (but can be taken into account as part of appropriate assessment if the need for appropriate assessment is not screened out) there is the issue as to what “mitigation” measures are in fact “compensatory” measures which cannot even be taken into account at the appropriate assessment stage.

This was the subject matter of the latest relevant EU Court of Justice case, which in short-hand I will refer to as Grace, Sweetman (25 July 2018) arising from yet another challenge brought by Irish environmental campaigner Peter Sweetman, this time against the Irish national planning board’s decision to grant permission for a wind farm project on land that stretches from Slieve Felim in Limerick to Silvermines Mountains in Tipperary, that was designated as a Special Protection Area because it hosts the natural habitat of the hen harrier.

The proposal would result in the permanent and temporary loss of habitat (directly through clearance of trees at each turbine location and indirectly on the assumption that foraging hen harriers would not come within 250m of a wind turbine) but a species and habitat management plan was proposed that envisaged the restoration of various areas to blanket bog, particularly suitable for hen harriers, and a ‘sensitive’ management regime that would provide suitable foraging habitat and an ecological corridor between two areas of open bog.

Ms Grace and Mr Sweetman argued that the management plan measures amounted to compensatory measures and therefore could not be taken into account at appropriate assessment stage by the planning board in its ruling that there would be no adverse effect on the integrity of the SPA.

The Irish Supreme Court referred the issue to the EU Court of Justice as to whether Article 6(3) of the Habitats Directive “is to be interpreted as meaning that the measures proposed in the management plan relating to the contested development which seek to ensure that the total area providing suitable habitat will not be reduced and could even be enhanced may, in the circumstances of the present case, be classified as mitigating measures, or whether they must be regarded as compensatory measures within the meaning of Article 6(4) of the Habitats Directive.”

As in People Over Wind, the EU Court of Justice noted that “mitigating measures” is not referred to in the Directive. It indicated that “the Court has previously observed that the effectiveness of the protective measures provided for in Article 6 of the Habitats Directive is intended to avoid a situation where competent national authorities allow so-called ‘mitigating’ measures’ — which are in reality compensatory measures — in order to circumvent the specific procedures laid down in Article 6(3) of the directive and authorise projects which adversely affect the integrity of the site concerned“.

It interpreted the referring court’s question “as asking, in essence, whether Article 6 of the Habitats Directive must be interpreted as meaning that, 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, after an appropriate assessment of the implications of the project has been carried out and throughout the lifetime of the project, the 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.

It noted that “there is a distinction to be drawn between protective measures forming part of a project and intended 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“.

As a general rule, any positive effects of the future creation of a new habitat, which is aimed at compensating for the loss of area and quality of that habitat type in a protected area, are highly difficult to forecast with any degree of certainty or will be visible only in the future.”

It held that the measures were compensatory and could not be taken into account at the appropriate assessment stage. Article 6 was to be interpreted as meaning that, “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, after an appropriate assessment of the implications of the project has been carried out and throughout the lifetime of the project, the part of the site that is in fact likely to provide a suitable habitat will not be reduced and indeed may be enhanced may not 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; that fact falls to be considered, if need be, under Article 6(4) of the directive.”

For some projects this is potentially as problematic a ruling as People Over Wind, given that unless any adverse effect on the integrity of any SPA or SAC cannot be ruled out without relying on measures of this nature, the scheme can only proceed if it can be demonstrated that there are imperative reasons of overriding public interest – a high test.

In conclusion, when dealing with plans and schemes with potential effects on SPAS and SACs, precise analysis is needed of the true nature of any proposed measures being relied upon to “mitigate” (short-hand) the potential harmful effects of the development. The relevant question at screening stage is whether they are measures intended to avoid or reduce those effects or can they be said to be measures which are integral features of the project? The relevant question at appropriate assessment stage is whether they are in fact measures intended to compensate for a reduction in the parts of the site that will be able to provide a suitable habitat for the relevant species?

Simon Ricketts, 18 August 2018

Personal views, et cetera

Image courtesy of http://www.badgerwatchdorset.co.uk

EU Court Ruling: Ignore Mitigation Measures In Habitats Screening

POW, indeed. The People Over Wind ruling (Court of Justice of the EU, 12 April 2018) is short but striking.

The issue is an important one. There are two steps that a decision maker must follow in determining whether a plan or project is likely to affect a Special Area of Conservation under the Habitats Directive or a Special Protection Area under the Birds Directive (given domestic effect by the Conservation of Habitats and Species Regulations 2017).

The first step is what is commonly called “screening”, although it is not a formal procedural process as there is with EIA. At this stage the question is whether the plan or project is likely to have a significant effect on an SAC or SPA (either alone or in combination with other plans or projects). “Likelihood” is a low threshold – as summarised in People Over Wind:

In the light, in particular, of the precautionary principle, such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have a significant effect on the site concerned“.

If the risk of a significant effect can be excluded at this stage, no further work is required under the Birds or Habitats Directive.

If the risk of a significant effect cannot be excluded, “appropriate assessment” is required to determine that the plan or project will not adversely affect the integrity of the SAC or SPA. If the answer at this stage is other than that it will not, the plan or project is in problems as there are only limited circumstances which would then allow it still to proceed.

Screening out the need for appropriate assessment is important to promoters of plans and projects:

⁃ it reduces the amount of work, time and cost spent, particularly in relation to smaller schemes if the screening stage can be relatively standardised for similar types of development (for instance residential developments in the vicinity of SPAs such as the Thames Basin Heaths).

⁃ paragraph 119 of the NPPF provides that the “presumption in favour of sustainable development (paragraph 14) does not apply where development requiring appropriate assessment under the Birds or Habitats Directives is being considered, planned or determined.” (This is carried over into paragraph 174 of the draft revised NPPF).

The English courts have long taken the position that proposed mitigation measures can be taken into account at the screening stage. Indeed Sullivan J’s ruling almost exactly ten years ago in R (on the application of Hart District Council) v Secretary of State for Communities and Local Government (Sullivan J, 1 May 2008) was crucial in establishing the practicality of local authorities relying on the funding or provision of Suitable Alternative Natural Greenspace (SANGS) rather than requiring appropriate assessment in relation to each housing project that might lead to an increase in people wishing to use the nearby SPA for recreational purposes. He held that there was no reason why a commitment to provide mitigation in the form of SANGs could not be taken into account at screening stage:

…if the competent authority is satisfied at the screening stage that the proponents of a project have fully recognised, assessed and reported the effects, and have incorporated appropriate mitigation measures into the project, there is no reason why they should ignore such measures when deciding whether an appropriate assessment is necessary. Under Regulation 48(2), the competent authority may ask the proponent of a plan or project for more information about the plan or project, including any proposed mitigation, not merely for the purposes of carrying out an appropriate assessment, but also in order to determine whether an appropriate assessment is required in the first place. If for any reason the competent authority is still not satisfied, then it will require an appropriate assessment. As a matter of common sense, anything which encourages the proponents of plans and projects to incorporate mitigation measures at the earliest possible stage in the evolution of their plan or project is surely to be encouraged“.

That has remained the domestic law, as can be seen in R (Champion) v North Norfolk District Council (Supreme Court, 22 July 2015), where the reason why the permission was quashed was that at the screening stage the mitigation measures relied upon had not been fully identified.

However, the European Court of Justice has now driven somewhat of a bulldozer through this approach in its ruling this month in relation to a reference from the Irish High Court in relation to proceedings which had been brought by the People Over Wind campaign group and campaigner Peter Sweetman (not his first visit to the Luxembourg court, see Sweetman v. An Bord Pleanala (CJEU, 11 April 2013)) to seek to quash permission for a project to lay a cable connecting a wind farm to the electricity grid, potentially affecting rivers constituting a habitat for the “Nore pearl mussel”. According to the judgment, the consultants’ screening report for the project concluded as follows:

“a)      In the absence of protective measures, there is potential for the release of suspended solids into waterbodies along the proposed route, including directional drilling locations

b)      With regards to [the Nore pearl mussel], if the construction of the proposed cable works was to result in the release of silt or pollutants such as concrete into the pearl mussel population area of river through the pathway of smaller streams or rivers, there would be a negative impact on the pearl mussel population. Sedimentation of gravels can prevent sufficient water flow through the gravels, starving juvenile [Nore pearl mussels] of oxygen.’

18      It is apparent from the file before the Court that ‘protective measures’ were also analysed by that report.

19      Subsequently, on the basis of that report, the following recommendation was drawn up for Coillte by the ‘programme manager’:

As set out in detail in the … appropriate assessment screening report, on the basis of the findings of that report and in light of the best scientific knowledge, the grid connection works will not have a significant effect on the relevant European sites in light of the conservation objectives of the European sites, alone or in combination with the Cullenagh wind farm and other plans or projects, and an appropriate assessment is not required. This conclusion was reached on the basis of the distance between the proposed Cullenagh grid connection and the European sites, and the protective measures that have been built into the works design of the project.’”

The Irish High Court referred the following question to the European Court of Justice for a preliminary ruling:

“Whether, or in what circumstances, mitigation measures can be considered when carrying out screening for appropriate assessment under Article 6(3) of the Habitats Directive?’”

Even for the CJEU the resulting judgment is brief.

…it is settled case-law that Article 6(3) of the Habitats Directive makes the requirement for an appropriate assessment of the implications of a plan or project conditional on there being a probability or a risk that the plan or project in question will have a significant effect on the site concerned. In the light, in particular, of the precautionary principle, such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have a significant effect on the site concerned (judgment of 26 May 2011, Commission v Belgium, C‑538/09, EU:C:2011:349, paragraph 39 and the case-law cited). The assessment of that risk must be made in the light inter alia of the characteristics and specific environmental conditions of the site concerned by such a plan or project (see, to that effect, judgment of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 45 and the case-law cited).”

35      As the applicants in the main proceedings and the Commission submit, the fact that, as the referring court has observed, measures intended to avoid or reduce the harmful effects of a plan or project on the site concerned are taken into consideration when determining whether it is necessary to carry out an appropriate assessment presupposes that it is likely that the site is affected significantly and that, consequently, such an assessment should be carried out.

36      That conclusion is supported by the fact that 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.

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.

38      In that regard, the Court’s case-law emphasises the fact that the assessment carried out under Article 6(3) of the Habitats Directive may not have lacunae and must contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the proposed works on the protected site concerned (judgment of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 50 and the case-law cited).”

It is a frustrating judgment. There are so many unasked and unanswered questions arising from it, for instance:

1. Why does reference to mitigation measures presuppose that without the measures there is likely to be a significant effect?

2. Why is it assumed that there can be no certainty as to the effectiveness of proposed mitigation measures?

3. Why is there no dividing line between mitigation on the one hand and avoidance/reduction on the other (a distinction raised by Sullivan J in Hart, where he didn’t necessarily accept that the SANGs mechanism amounted to mitigation as opposed to avoiding effects in the first place) and where is the dividing line between mitigation and components of the project itself? If an inherent part of the project (say soundproof walls) also serves a mitigation function, surely it is not to be ignored. In which case, what is included in the project and what is mitigation that is not an integral or inherent part of the project is a crucial question.

It is going to be interesting to see how UK practice adapts in relation to the ruling and how soon the issue comes before the courts. Will attempts be made to distinguish it (that is possible) or will plan and project promoters take a more cautious approach of proceeding more frequently to appropriate assessment? Will this be the sort of issue where, post- Brexit, the domestic courts will begin to take an increasingly differing stance to Luxembourg?

There is a potentially wider question, as to whether the same “ignore mitigation” principle will begin to infect the EIA process where, again, the relevance of proposed mitigation measures at screening stage has long been accepted (see eg Gillespie v Secretary of State for Transport Local Government and the Regions(Court of Appeal, 27 March 2003)).

There is no reference to the EIA Directive in People Over Wind but it will be one to watch. It would be quite a step, given that the EIA Regulations specifically require that a negative screening opinion or direction should “state any features of the proposed development and measures envisaged to avoid, or prevent what might otherwise have been significant adverse effects on the environment“!

Lastly, on the subject of screening under the Habitats and Birds Directives, R (Mynnydd y Gwynt Limited) v Secretary of State (Court of Appeal, 22 February 2018) is another recent case worth reading, which demonstrates the difficulties of challenging any decision by a competent authority that appropriate assessment is required. The claimant, promoting a wind farm by way of a DCO, was perhaps entitled to feel rather sore. National Resources Wales had first taken the view that appropriate assessment was not required but then changed its position, saying that more information was required. The examiner was on balance satisfied but in the light of NRW’s concerns advised the Secretary of State that she might decide that an appropriate assessment was necessary, which indeed in due course she did. Back to the drawing board.

The Secretary of State’s determination was challenged, alleging that she had erred by:

“1)  Requiring certainty in relation to each element of the data, instead of using the available information and making a reasoned judgement, always taking the precautionary approach.

2)  Reaching an inconsistent conclusion about the in-combination level of risk to the red kite population in this SPA to those reached in relation to other Mid-Wales windfarm proposals.

3)  Not referencing or showing that she had considered the Appellant’s December 2014 response to NRW’s concerns about survey methodology

The court rejected the challenge:

For this appeal to succeed, it must be shown that the judge was wrong not to have concluded that the Secretary of State’s decision was unlawful on Wednesbury principles – that she had taken account of irrelevant matters or failed to take account of relevant matters, or that her decision was so unreasonable that no reasonable authority could have made it.

For my part, I am not persuaded that the Secretary of State’s decision was unlawful, nor that the judge’s careful review of the decision was wrong. The Secretary of State was required to exercise a judgement at the junction between two important social objectives – renewable energy and species protection. She was faced with a conflict of views between her statutory conservation adviser and her examiner. She asked for further assistance: NRW responded, the Appellant did not. I accept that the Secretary of State might have been persuaded by the arguments that found favour with the examiner, but in the overall circumstances I consider that she was entitled to accept the advice of NRW and conclude that she did not have the information necessary to enable her to grant the application.”

Whilst it may be frustrating for clients and professional teams alike, these cases demonstrate the care that needs to go into the promotion strategy for any scheme (including the definition of the project itself) where there is a potential impact on an SAC or SPA, and the importance of resolving matters with the relevant conservation bodies – as well as the degree of scientific work required, which often feels like an endless search to prove a negative which may ultimately be unprovable. Mitigation or not, life isn’t as certain as the legislation requires it to be.

I just wish I understood the rationale for that People Over Wind ruling. If you do I would be delighted to hear it.

Simon Ricketts, 20 April 2018

Personal views, et cetera