The Habitats Directive and Wild Birds Directive protect European sites from the effects of development

The Government has just conducted a review of the implementation of the EU Habitats and Wild Birds Directives in England. Angus Evers and Duncan Field investigate some of the possible outcomes

In his Autumn Statement on 29 November 2011, the Chancellor of the Exchequer, George Osborne MP, told Parliament that he wanted to make sure that “gold plating of EU rules on things like habitats” was not putting “ridiculous costs” on business. Later that day the Government announced a review of the implementation of the EU Habitats and Wild Birds Directives in England. The Government did not set an end date for the review, but invited views and evidence “preferably by early February 2012”.

The review has attracted much interest from both developers and environmental groups – the former raising concerns that the way the Directives are implemented is unnecessarily bureaucratic; the latter (no doubt stirred by the Chancellor’s words) claiming that the review will be detrimental to biodiversity and nature conservation. The reality, however, is probably somewhere between the two.

Protection

The Habitats Directive (92/43/EEC) and the Wild Birds Directive (2009/147/EC) establish measures to protect European sites (such as Special Areas of Conservation and Special Protection Areas) from the effects of development. They are implemented in England by the Conservation of Species and Habitats Regulations 2010 and the Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007.

The Government’s review is unlikely to fundamentally alter the level of protection afforded to habitats and species

The Habitats Directive requires public bodies (known as ‘competent authorities’) to carry out an ‘appropriate assessment’ before undertaking or giving any consent for a plan or project which is likely to have a significant effect on the site and is not connected with or necessary for the management of the site. Only if the appropriate assessment concludes that the plan or project will not adversely affect the integrity of the European site can the competent authority agree to the plan or project proceeding.

However, subject to securing compensatory measures, the competent authority may still agree to the plan or project in such circumstances if there are no alternative solutions and there are imperative reasons of overriding public importance (IROPI) for carrying out the plan or project.

Although the Government’s review has the entirely laudable aim of reducing burdens on businesses, it is unlikely to fundamentally alter the level of protection afforded to habitats and species, or the frequency with which appropriate assessment is required.

Both the Habitats Directive and the Birds Directive have direct effect in the UK and their interpretation by the Courts is led by well-established principles laid down by the Court of Justice of the European Union (CJEU) in cases such as the Waddenzee case and the Basses Corbières case. The UK Government has fallen foul of national Courts and the CJEU over its implementation of the Habitats Directive on a number of occasions and any attempt to try to evade the Directive’s requirements could well result in further legal challenges. At worst, the UK could be fined by the CJEU for failing to properly implement the Directives.

Areas for review

There are a number of areas where the Government’s review could gain some traction in reducing the cost burdens of the Habitats Directive and improving the way in which it is implemented.

• First, revised technical guidance highlighting best practice is much needed. The requirements of the Habitats Directive are better understood then they were even five years ago, but guidance has not caught up.
• Second, guidance on IROPI is also needed. A comparison with other EU Member States suggests that the IROPI test is often applied more rigidly in the UK in relation to, for example, the need for a project, the social or economic bases for IROPI and the range of alternative solutions that need to be considered before proceeding with the plan or project.
• Third, funding is needed for research into certain habitats and species for those cases where an adverse effect on a European site cannot be excluded due to knowledge gaps (although securing such funding is likely to be difficult in the current economic climate).
• Fourth, practical solutions need to be found to the problems that arise through the overlapping responsibilities of different competent authorities in parallel stages of a project. A recent example of this is the case of Cornwall Waste Forum v Secretary of State for Communities and Local Government, in which the Administrative Court quashed the planning permission for a proposed waste to energy plant after a planning inspector failed to consider whether appropriate assessment was necessary on the basis that he considered it a matter for the Environment Agency (which had also failed to carry out appropriate assessment).
• Last (but not least), Defra should seek to persuade colleagues in DCLG to remove from the draft National Planning Policy Framework the presumption that any proposal which has a significant adverse effect on a European site is not ‘sustainable development’ (whether or not it can be justified by IROPI). The protection afforded to European sites through the Habitats Directive is adequate and there is no need for this additional burden.

Angus Evers is a Partner in the Planning and Environment Group at SJ Berwin LLP and Co-Convenor of the UK Environmental Law Association (UKELA) Waste Working Party. Duncan Field is a Partner in the Planning and Environment Group at SJ Berwin LLP and a member of UKELA.