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CIEEM comment on recent ECJ ruling

CIEEM comment on recent ECJ ruling

01 May 2018

Responding to the recent People Over Wind and Sweetman ruling, CIEEM President Stephanie Wray says:

"This ruling has potentially-significant implications in the UK, in that it appears to reverse the judgement in the "Dilly Lane" case. (R on the application of Hart DC) v Secretary of State for Communities and Local Government [2008].) 

In the Dilly Lane case, it was concluded that mitigation or compensation measures that were part of the project could be taken into account at the screening stage of the Habitats Regulations Assessment (HRA). If such measures were capable of avoiding or offsetting the effects on the European site, then a finding of "no significant effects" could be made at the screening stage, and a full HRA assessment would not be required. This has allowed projects using Sustainable Alternative Natural Green Space (SANGS) provision to proceed in the UK without full HRA.

In the new judgement (People Over Wind and Sweetman (2018)) the CJEU concluded that mitigation measures could not be considered as part of the project, and thus that the screening stage of HRA should not take account of them. This will undoubtedly be tested further in the courts in coming months and years, but it seems that the issue is whether the mitigation measures proposed can genuinely be considered as part of the project, in that they would happen in any case, irrespective of the European site. If not, then they should be considered mitigation measures, and considered at the appropriate assessment stage of HRA.

The implications of this are that all SANGS projects would be likely in future to need to proceed to full HRA as they would be unlikely to be able to demonstrate an absence of significant effect in the absence of the proposed SANGS provision. In many cases, this would simply be a need to carry out further assessment work. However it could have some implications for the success of schemes in some cases, since the "test" at the appropriate assessment stage is more stringent, being "beyond reasonable scientific doubt" rather than the screening stage test "on the basis of objective information". 

It would appear that proponents of current projects which have returned a "no significant effects" finding at screening stage based on the provision of mitigation measures (that they would not have put in place without the presence of a European site) might be well-advised to seek a legal review of their consenting strategy."

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