The High Court has applied a recent ECJ ruling under the Habitats Directive to two developments, with different results in each case, one of which shows the element of discretion the Court can have

 The Habitats Directive (92/43/EC) requires member states to protect certain natural habitats, known as European sites, and certain fauna and flora, known as European protected species. This includes protection for Special Protection Areas (SPAs), which are designated under the Birds Directive (2009/147/EC)and for Special Area of Conservation (SAC), which are designated under the Habitats Directive. Article 6(3) of the Habitats Directive requires that where a plan or project is likely to have a significant effect on a SPA or SAC, the relevant authority must undertake an “appropriate assessment” to assess if it will have a negative effect and whether there is an alternative solution. Article 6(3) is a two-stage process:

  • a “screening assessment” on as to whether a plan or project is likely to have a significant effect on the protected site; and
  • if the screening suggests that a significant effect is likely, a full “appropriate assessment” to determine the plan or project’s implications for the site in view of the site’s conservation objectives.

Permission for the plan or project can only proceed if it would not adversely affect the integrity of the European site.

In two the recent cases – Canterbury City Council v Secretary of State for Housing, Communities and Local Government v Hollamby Estates (2005) Limited and Crondall Parish Council v Secretary of State for Housing, Communities and Local Government, Crondall Developments Limited v Hart District Council [2019] EWHC 1211 (Admin) – judgments on 14th May 2019, the developers had proposed mitigation measures to counter any adverse effects of development at the screening stage under Article 6(3), but in the meantime the European Court of Justice (ECJ) had ruled in a 2018 case – People Over Wind v Coillte Teoranta (C-323/17) – that any mitigation measures at the screening stage of an appropriate assessment had to be disregarded in determining whether a full appropriate assessment was necessary.

Therefore, the High Court ruled that, in cases where a plan or project might have implications for a European site’s conservation objectives, you have to follow the approach of the ECJ and disregard any mitigation measures at the screening stage in determining whether a full appropriate assessment was necessary. Otherwise, this would “pre-empt” or “second-guess” the outcome of an appropriate assessment by taking account of mitigation measures at the screening stage. This was an error in law, as it could lead to circumvention of the appropriate assessment stage and deprive that requirement of the Habitats Directive of its purpose.

However, a different result was applied as between the two developments.

Whether the decisions should stand despite the error in law concerning the appropriate assessments, on account of the fact that the court still has a discretion not to quash an unlawful decision where the decision would have been the same but for the legal error, a principle which has previously been ruled as applying to breaches of EU environmental law (R. (on the application of Champion) v North Norfolk DC [2015] UKSC 52)

In the first case, the Court was certain that the decision would have been the same without the error of law and so should not be quashed. Moreover, the decision-maker, the Secretary of State, had received a wealth of carefully researched evidence in relation to the European sites that might be affected by the proposed development, Natural England had been consulted, there had been a lengthy public inquiry, and the issue of mitigation measures had been uncontroversial. The Court therefore ruled that Article 6(3) had in substance been satisfied, albeit not via an appropriate assessment.

In the second case, the Court found that the error of law concerning the failure to undertake an appropriate assessment had led to an erroneous application of a presumption in favour of sustainable development. Therefore, the court could not be satisfied that the decision would inevitably have been the same, as to reach such a conclusion the court would have to re-evaluate the planning balance without deploying the tilted balance applied by the Secretary of State. Further, unlike in the first case, the mitigation measures were contentious. It followed that the grant of planning permission in the second case had to be quashed.