A recent Court of Justice of the European Union (CJEU) decision in the People Over Wind and Sweetman v Coillte Teoranta case (‘the POW case’) has caused a profound shift in how planning can now deal with any plan or project which could affect habitats protected by the European Union Habitats Directive.
The European Union Habitats Directive includes measures to protect sites such as special areas of conservation and special protection areas from the effects of development.
The April decision by the CJEU concerning a proposed electricity cable serving a windfarm in the Republic of Ireland is a departure from previous case law particularly in the UK, with the potential to create significant issues for developers and competent authorities. In many areas, the need for appropriate assessment is regularly screened out based on well-established mitigation measures.
Under relevant Irish legislation, a decision was made that the proposal did not require appropriate assessment for the purposes of the Habitat Directive and in doing so the authority relied upon the “protective measures that have been built into the works design of the project”.
After being challenged by a group of environmental campaigners, it was the court’s view that the existence of mitigation measures in the first place “presupposes that it is likely that the site is affected significantly and that, consequently, such an assessment should be carried out”. Taking account of these measures at the screening stage would be liable to compromise the Habitat Directive in general and the assessment stage in particular.
Moving forward, more projects will need to be subject to appropriate assessment (AA) if mitigation cannot be relied on when screening; placing a greater burden on applicants, statutory nature conservation bodies (SNCBs) and the relevant decision-makers. The need to undertake full HRA of plans and projects is already generating additional resource demands on planning and other competent authorities and will almost certainly cause substantial cost and programme delays for developers.
In early June, Waverley Borough Council said that in the wake of the court ruling, it has suspended planning decisions for new residential developments in the 5km protected zone of the Thames Basin Heaths SPA. In May concerns were expressed by a planning inspector that the recently submitted Central Bedfordshire Council local plan may not be “legally compliant” in the light of the ruling.