Top 10 Habitats Cases of the last year

1. Top 10 Habitats Cases of the last year James Maurici Landmark Chambers

2. 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.”

3. 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)

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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”

14. 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 short-term 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

15. 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

16. 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

17. 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

18. 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”

19. 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.

20. Case 6: Solvay • CJEU reference of proceedings brought against the Region of Wallonia concerning development consents for works relating to the Brussels-Charleroi 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.”

21. 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

22. 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.

23. 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 over-wintering at the SPA.”

24. 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 inthat 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.”

25. 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.

26. 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.

27. 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

28. Case 9: Badger Trust (1) • Big news ... • Court battle on badger cull fails http://www.bbc.co.uk/news/science-environment-19563661 • Badger cull legal challenge fails at court of appeal http://www.guardian.co.uk/environment/2012/sep/11/badger-cull-legal-challenge-fails • Badger cull to go ahead this autumn as last ditch legal challenge fails http://www.telegraph.co.uk/earth/wildlife/9536573/Badger-cull-to-go-ahead-this-autumn-as-last-ditch-legal-challenge-fails.html

29. 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