The European Court of Justice has handed down a judgment in an Irish case – Holohan and others v An Bord Pleanala (Case C-461/17) (7thNovember 2018)– which reinforces the difficulties faced by developers where there are protected habitats or species involved. The case concerned a road development which crossed to protected sites, one a Special Protection Area (SPA) under the Birds Directive, the other a Site of Community Importance (SCI) adopted as such by the European Commission under the Habitats. Whilst facts are always interesting, it is the legal pronouncements of the Court in the case which have the wider impact for developers and investors.

The ECJ clarified the meanings and extent of certain critical requirements under Article 6(3) of the Habitats Directive and under the Environmental Impact Assessment (EIA) Directive. Article 6(3) of the Habitats Directive requires an “appropriate assessment” by the competent authority of any project that is likely to have a significant effect on an SCI or SPA, to assess whether it will have a negative effect and whether there is an alternative solution. A project that has a negative assessment and where there is no alternative solution can only be undertaken if it is for “imperative reasons of overriding public interest”.The EIA Directive requires member states to ensure that public or private projects that are likely to have significant effects on the environment are subject to an environmental assessment before any development consent is given.

The ECJ made several statements of principle which affect all projects which might affect protected sites. The court ruled that Article 6(3) of the Habitats Directive should be interpreted as meaning that an appropriate assessment (of whether there are any negative effects of the project on the SPA or SCI) must catalogue the entirety of habitat types and species for which a site is protected, setting out complete, precise and definitive findings and conclusions capable of dispelling all reasonable scientific doubtas to the effects of the proposed works on the protected area concerned. It must then identify and examine both the effect of the proposed project for the species present on that site and the effect on habitat types and species to be found outside the boundaries of that site(where those might affect the site). 

The court also stated that, while the relevant authority may grant consent for a project with conditions that leave the developer free to determine certain parameters relating to the construction phase, it must be certainthat the conditions are strict enough to guarantee that those parameters would not adversely affect the integrity of the site, and only those parameters for which there is no scientific doubtthat they might affect the site can be entirely left to be decided later by the developer.

This case, and an earlier ECJ ruling in another Irish case – People over Wind v Teoranta(Case C-323/17) (12 April 2018) – reinforce the need for developers to be careful not to rely on screening opinions that conclude that an “appropriate assessment” is unnecessary. This does potentially expose the development consent to challenge. In the Teorantacase,the screening report had stated that ‘appropriate assessment’ under the Habitats Directive was notrequired because of protective measures that had been built into the design of the project. The ECJ on the other hand ruled that the very fact that mitigation was required evidenced that the project would significantly affect the special protection area, and therefore an assessment should be undertaken so that the adequacy of mitigation measures could be considered with the benefit of a full appropriate assessment, which would provide significantly more information to the decision maker. Unless and until this legal position, and the authority of the ECJ in the UK, alters, the safest course for most developers is to carry out an appropriate assessment.