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The Fall-out of People Over Wind

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Summary: This blog explores how the High Court has taken a pragmatic approach in its first application of the CJEU’s ruling in People Over Wind to what can be regarded as an integral feature of a project and therefore lawfully taken into account at the HRA screening stage.

Introduction

The first High Court judgment has landed that grapples directly with the CJEU’s ruling in People Over Wind and examines what aspects of a proposal can lawfully be taken into account at the screening stage of Habitat Regulations Assessment[1] – specifically Langton v Secretary of State for Environment, Food and Rural Affairs & Natural England (2018).

Why is this of interest?  Well the CJEU’s ruling in People Over Wind - that it is not appropriate at the screening stage of HRA to take account of measures to avoid or reduce harmful effects on a European site - dramatically cut across the established domestic approach to HRA.   Additionally, People Over Wind threw up practical questions around what is mitigation and the degree to which ‘in-built’ mitigation can/should be taken into account at the HRA screening stage. Langton, a case concerning badger culling, provides the first indication of the domestic court’s approach to HRA following People Over Wind

This blog considers both cases and where we are now in practice.

People Over Wind: A Recap

People Over Wind was a reference by the Irish High Court for a preliminary ruling on the interpretation of Article 6(3) of the Habitats Directive.  By way of background:

  • The case concerned works to lay the cables connecting a wind farm to the grid in Ireland.
  • Two SACs were potentially affected by the connection.  One of these was the habitat for Irish subspecies of the freshwater pearl mussel, an Annex II species that is almost extinct.
  • The relevant Irish planning legislation only requires permission to be obtained for the laying of cables if an appropriate assessment is required.
  • The works had been the subject of HRA screening, which had concluded no appropriate assessment was required on the basis of protective measures that were  included as part of the design of the project – specifically measures to reduce adverse effects on the Annex II species.

The CJEU ruled that Article 6(3) must be interpreted as meaning that it is not appropriate, at the screening stage, to take account of the measures to avoid or reduce harmful effects of the project on the European site.   This was based on the following logic:

  • Measures intended to avoid or reduce the harmful effects of a plan/project are taken into account when determining whether it is necessary to carry out appropriate assessment “presupposes that it is likely that the site is affected significantly and that, consequently, such an assessment should be carried out”;
  • This is supported by the fact that “a full and precise analysis of the measures capable of avoiding or reducing any significant effects… must be carried out not at the screening stage, but specifically at the stage of appropriate assessment” and so “taking account of such measures at the screening stage, would be liable to compromise the practical effect of the Habitats Directive in general”; and
  • The assessment carried out “may not have lacunae and must contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the proposed works” on the European site.

This ruling cut across the established domestic approach to presenting information for HRA and discharging the requirements of the Habitats Regulations[2] and created uncertainty as to whether in-built/design mitigation can lawfully be taken into account in HRA screening.

Langton

And so to the Langton judgment, which was handed down in mid-August.

This was a judicial review of various decisions relating to badger culling – first, the Secretary of State’s decision to issue guidance on the licensing of supplementary badger culling and, secondly, various Natural England decisions to grant  badger culling licences. 

The latter were challenged on the basis they were granted in breach of the Habitat Regulations.  Specifically, the culling areas to which the licences related either encompassed, or were near, various SPAs for birds.  The focus of the claimant’s case was on two effects:  That a decrease in the badger population could increase the fox population, and impact on the bird populations in the European sites; and the direct risk of disturbance to the birds from the culling operations themselves. 

Natural England had carried out HRAs for those SPAs in the cull areas and had concluded in that compliance with mitigation measures would ensure no significant likely effects.  Whilst those HRAs – and the grant of the licences themselves – pre-dated People Over Wind, the timing of the CJEU’s ruling (April 2018) meant that the claimant was able to argue that the licence conditions which prohibited culling activity at certain times and locations, fell within the ruling and so should not have been taken into account at the HRA screening stage. 

The High Court rejected this argument as it did not consider the conditions to be the mitigating or protective measures which featured in the People Over Wind ruling; rather, in the Court’s view, they “are properly characterised as integral features of the project which Natural England needed to assess under the Habitat Regulations” and “it would be contrary to common sense for Natural England to have to assume that culling was going to take place at times and places where the applicants did not propose to do so”.

Comment

So where are we now with HRA screening and People Over Wind

It is always dangerous to rely on a sample set of one, particularly when that one could yet be overturned on appeal[3], but the High Court’s judgment in Langton shows a willingness to take a pragmatic approach to the application of People Over Wind.  The key point in the Court’s consideration was whether something can be regarded as an integral measure or not; if so then it can lawfully be taken into account at the HRA screening stage.

But the distinction as to whether something is integral to a project remains unclear/potentially difficult to apply in practice because, what People Over Wind and Langton have in common, is that neither judgment provides any real analysis or guidance around this.  The “extreme facts” of People Over Wind (in the sense that the case concerned a species close to extinction, as well as the HRA screening exercise determining whether planning consent was required) resulted in a CJEU ruling that was clearly expressed but a little too “black and white” when applied to other cases.   The High Court in Langton, on the other hand, seems to have reached a view on the facts of that case that is based as much on “common sense” as anything else. 

As such, it seems almost inevitable that the question of what can lawfully be taken into account as part of HRA screening will be tested further in the Courts and perhaps the only way of drawing a clear line will ultimately be on a case-by-case basis.  In the meantime, whilst Langton suggests an immediate willingness on the part of High Court to adopt a pragmatic approach to the  interpretation of People Over Wind, any proposal requiring HRA screening undoubtedly carries an enhanced legal challenge risk for the time being.

 

 

[1]         HRA screening being the universally adopted short-hand for the first stage of the assessment process required pursuant to (what is now) Regulation 63(1) of the Conservation of Habitat & Species Regulations 2017

[2]         See R (Hart DC) v Secretary of State for Communities and Local Government [2008] EWHC 1204 (Admin)

[3]         We say this with no knowledge as to whether or not an appeal is in progress or with any view as to its likely prospects of success.  However, based on our own experiencing of defending on behalf of the Homes & Communities Agency a judicial review claim brought by this same Claimant on Habitat Regulations grounds – see [2015] EWHC 2648 (Admin) -  we would be surprised if an appeal is not pursued as a matter of course.

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