Recent Developments in EU Nature Law Screening for Appropriate Assessment

1. Recent Developments in EU Nature LawScreening for Appropriate Assessment Suzanne Murray Barrister-at-Law

2. Screening for Appropriate AssessmentEuropean Law Requirements • Article 6(3) of the Habitats Directive provides as follows Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public. • Article 6(3) of the Habitats Directive provides for an assessment process which consists of a number of stages – only concerned with first two • The outcome of each successive stage determines whether a further stage in the process is required • The assessments required under the Habitats Directive are to be undertaken by the competent authority

3. Screening for Appropriate AssessmentEuropean Law Requirements • No reference to “screening” in article 6(3) • However interpreted as being a two stage test – • Stage 1 screening - first stage • assesses whether a plan or project, which is not directly connected with or necessary to the management of the site as a European Site, in view of best scientific knowledge and in view of the conservation objectives of the site, either alone or in combination with other plans and projects, is likely to have significant effects on the European Site. • outcome of the Stage 1 Screening exercise dictates whether the assessment of the project proceeds to the next stage of the process which is an Appropriate Assessment -“Stage 2 Appropriate Assessment • only if the Stage 1 Screening concludes that there is likely to be a significant effect on the environment or that there is uncertainty, that a Stage 2 Appropriate Assessment is required • Stage 2 Appropriate Assessment • assesses whether a plan or project either alone or in combination with other plans and projects would adversely affect the integrity of a European Site in view of the sites conservation objectives

4. Screening for Appropriate AssessmentNational Law Requirement • Screening requirement is clear in national law - Section 177U(4) of the 2000 Act as amended “The competent authority shall determine that an appropriate assessment of a draft Land use plan or a proposed development, as the case may be, is required if it cannot be excluded, on the basis of objective information, that the draft Land use plan or proposed development, individually or in combination with other plans or projects, will have a significant effect on a European site.” • Purpose of a screening exercise under section 177U is to determine whether it is necessary to carry out a Stage 2 Appropriate Assessment of the implications for a European Site of the proposed project

5. Screening for Appropriate AssessmentThe trigger • The trigger for AA is that the project, either individually or in combination with other plans or projects is “likely to have a significant effect” on the European site • Trigger for AA is very light – mere probability or a risk that the plan or project might have a significant effect is sufficient to trigger requirement for AA (Waddenzee C-127/02; Sweetman C-258/11) • However, while the threshold is low it is still a threshold that has to be met before it is necessary to proceed to a stage 2 AA (Kelly v An BordPleanala [2019] IEHC 84)

6. Mitigation measures and screeningEuropean Case Law Case C 323/ 17 People Over Wind v Coillte • Concept of mitigation measures is not referenced in the Habitats Directive • CJEU held that at the Stage 1 Screening stage no account can be taken of “measures intended to avoid or reduce the harmful effects of the plan or project on that site”. • Question is whether “best practice measures” constitute mitigation measures

7. Question is whether “best practice measures” constitute mitigation measures • Strict controls on sediment generation and other pollutants to be implemented including provision of attenuation measures, silt traps or geotextile curtains to reduce / intercept sediment release to watercourses • Dust suppression measures • Stockpiling of material away from drains and watercourses

8. “Best Practice Measures”Irish Courts interpretation Heather Hill Management Company CLG v An BordPleanala[2019] IEHC 450 • Challenge to a decision of Board to grant planning permission for a residential development at Bearna, Galway • SHD application – 197 residential units • Number of grounds raised in the proceedings • Material contravention of the Development Plan • Failure to comply with Flood Risk Guidelines • Board failed to carry out a proper screening exercise for purpose of Habitats Directive

9. Heather Hill – Factual Background • Application site located in Bearna Village • Stream runs through the site from north to south – Trusky Stream • Stream runs from application site; through village and ultimately enters sea at Bearna Pier – some 700m from boundary of site • Two protected European Sites in Galway Bay – some 1.4km to 1.5km east of Bearna pier • Galway Bay Complex SAC • Inner Galway Bay SPA

10. Heather Hill – Screening Determination • Inspector carried out a screening exercise under section 177U(4) • Concluded that the proposed development would not have a significant effect on the relevant European Sites • Stage 2 Appropriate Assessment was not required • Board “accepted and adopted” its Inspectors screening assessment

11. Heather Hill – Screening Determination • “The development will not be immediately adjacent to these designated sites and will not involve any land take or loss of habitat. The only potential pathways for effects on the SPA and SAC are through hydrological connections, i.e. the Trusky Stream discharging to Galway Bay at Bearna. There will be no run-off from the site directly to the SAC or SPA. Best practice measures will be undertaken to minimise emissions to the Trusky Stream during the construction and operation of the development. These measures will ensure the protection of water quality and fisheries resources in the Trusky Stream. Emissions into Galway Bay at Bearna from the Trusky Stream will be negligibly and any slight emissions that do enter Galway Bay at Bearna will be quickly dissipated by tidal currents. Waste water from the development will be accepted at the upgraded Mutton Island plant in Galway City.” • -Inspector’s Report (quoted at para 133 of judgment)

12. Heather Hill – Legal Issues • Issue was whether the Inspector could have regard to “best practice measures” in screening out the requirement for a Stage 2 Appropriate Assessment • Applicants argued that the Board had regard to measures which were intended to avoid / reduce harmful effects on the European sites – these measures were the “best practice measures” • Court considered two matters: • First, as a matter of general principle does a commitment to comply with “best practice” construction methods represent an avoidance / reduction measure which must be excluded for the purpose of reaching a screening determination • Secondly, on the facts of the case, what are the “best practice measures” referred to in the screening determination – does it include the construction methodology outlined in the ecological report submitted as part of the planning application

13. Heather Hill – Legal Findings • Key determinant of whether a measure is an avoidance / reduction measure is its intended purpose • That can only be ascertained by reference to the predicated impact of the proposed development on a European site and whether the measures are intended to avoid or reduce a potential impact • The nature of the measures themselves will not necessarily be decisive • So cant say that in all cases construction methods will represent avoidance / protective measures • The label that is attached to a particular measure is not dispositive of the issue • The question of whether something is or is not intended to avoid / reduce an impact on a European Site is something which must be determined on an objective basis and not by reference to the subjective views of the parties

14. Heather Hill – Legal Findings “There is an obvious temptation in cases where a detailed construction methodology has been offered by a developer and / or imposed by way of planning condition to pre-suppose that these measures were required precisely because the proposed development would be likely to have a significant effect in their absence. This temptation should be resisted. It is not legitimate to work backwards from the existence of measures and to assume therefrom that ‘but for’ these measures the proposed development would have been likely to have had a significant effect. The emphasis must always be on the intended purpose of the measures.” (para 158) CONTEXT IS EVERYTHING

15. Heather Hill – application to facts • There is a potential hydrological connection between the application site and the European sites via the Trusky stream • Stream enters the sea at Bearna pier – 1.4km to 1.5km to the east of the Galway Bay SAC and SPA • Screening determination also states that emissions into Galway Bay would be quickly dissipated by tidal currents – however the determination did not rest exclusively on that factor • Inspector’s screening determination makes express reference to “best practice measures” being undertaken to minimise emissions to the Trusky Stream during construction and operation • Reference to “best practice measures” refers to those measures identified in the ecological report (para 175 of judgment)

16. Heather Hill - conclusion • Screening determination was invalid in that the Board improperly relied on “best practice measures” in reaching the conclusion that the proposed development would not be likely to have a significant effect on the European Site

17. Kelly v An BordPleanala [2019] IEHC 84 • Issue in that case was whether SUDS was a mitigation measure • Proposals included two soakways – • one to cater for stormwater runoff from the roof • one to cater for stormwater runoff from external pavements • Designed for the purpose of managing storm water runoff and mitigating flooding • Not designed for the purpose of mitigating impacts on European Sites • Inspector had found that • Surface water infrastructure would maintain discharge rates to ‘greenfield’ levels, incorporating SUDS techniques • Run off during construction is likely to be absorbed to ground as there is no watercourse on the site that would act as a pathway to any European site • Due to the separation distance between the site and the River Boyne and River Blackwater SAC and SPA significant effects can be discounted

18. Kelly v An BordPleanala [2019] IEHC 84 • High Court held: • that the inclusion of SUDS measures had not been done with the intention of avoiding or reducing the potentially harmful effect of the development on the European Site • SUDS measures, on the facts of that case, were not “mitigation measures” • Valid Stage 1 Screening Determination

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