1. Habitats Protection
_Prof Yvonne Scannell
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2. Why dealing with nature on EU-level?
JOINT ACTION NEEDED!
Major habitats under threat - wetlands in north & west Europe have been reduced by 60% in recent decades
Species also in decline - 45 % of Europe’s butterflies threatened, 38% of Europe’s birds threatened
Transboundary problems - eg. migratory birds
Landuse-impact of other EU-policies - agriculture, transport, fisheries, ...
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3. EU-nature conservation policy
Two main directives:
“Wild Birds Directive” (2009/147/EC)
bird species
“Habitats Directive” (92/43/EEC)
other animal and plant species, habitat types
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4. Policies European Community Biodiversity Strategy (1998)
response to the Convention on Biological Diversity. Supported by the European Community Clearing-House Mechanism (EC CHM) and turned into action via 4 sectorial Biodiversity Action Plans (2001).
Strategy for Integrated Coastal Zone Management: a Strategy for Europe
Focusing on coastal ecosystems, including major wetlands.
European Union Strategy for Sustainable Development
Including proposals focusing on managing natural resources and biodiversity.
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5. International conventions
Washington
Bonn
Beirne
Rio de Janeiro
All deal with biodiversity
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6. Obligations Art 3. Each Member State to designate SACs
Each Member State shall try to improve the ecological coherence of SACs by maintaining and if appropriate developing features of the landscape of major importance to wild flora and fauna
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7. Two types of sites to be protected
Sites for the HABITAT TYPES listed in Annex 1
Sites that are habitats for the SPECIES in Annex 11
Some habitats and species are PRIORITY ones
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8. Natura 2000 network Objective: Maintain or restore the favourable conservation status of certain species and natural habitat types in their natural range
SPA
SCA
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9. Sites to be selected on basis of criteria in Annex 111
And on basis of relevant scientific information
Potential sites to be proposed to the EC Commission
Commission will choose which are to form part of Natura 2000 and agree it with MS. MS must then designate it as an SCA within 6 years.
If MS does not designate a priority site, Commission shall consult with it and if necessary ask Council to adopt it.
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10. Procedure
MS designates all sites of Community interest (endangered, small range or outstanding examples of certain bio-geographical regions)
Sends to Commission
If it omits a priority site, Commission can propose the site and it can be adopted by the Council. Dublin Bay case
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11. Species of community interest to be protected
Rare, endangered, vulnerable, endemic and requiring particular attention
Priority species are marked * in the Annex
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12. Obligations Art. 6
1. Establish appropriate management plans for the sites and appropriate statutory, administrative or contractual measures for them.
Nephin Beg case. French case (State owned but that was not enough)
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13. Art 6 2
Take appropriate steps to avoid in the SAC the deteoriation of natural habitats and the habitats of species as well as significant disturbance of species
Oysters in Dungarvan
This is an obligation on local authorities too!
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14. Art 6 3
Any plan or project not directly connected with or necessary to the management of the site but likely to have significant effects thereon, either individually or in combination with other plans or projects shall be subject to an appropriate assessment of its implications for the site in view of the sites conservation objectives.
Regarding the content of an ‘appropriate assessment’, in Case C-304/05 (paragraphs 56-59), the Court recalls its previous case-law (Case C-127/02 ‘Waddenzee’, paragraphs 34, 56-61, and Case C-239/04 Commission v Portugal (‘Castro Verde’), paragraph and 24):
- Article 6(3) provides for an assessment procedure intended to ensure, by means of a prior examination, that a plan or project which is not directly connected with or necessary to the management of the site concerned but likely to have a significant effect on it is authorised only to the extent that it will not adversely affect the integrity of that site.
- The assessment must be organised in such a manner that the competent national authorities can be certain that a plan or project will not have adverse effects on the integrity of the site concerned, given that, where doubt remains as to the absence of such effects, the competent authority will have to refuse authorisation.
- With regard to the factors on the basis of which the competent authorities may gain the necessary level of certainty, no reasonable scientific doubt may remain, those authorities having to rely on the best scientific knowledge in the field.
The Court further specified that an appropriate assessment must contain complete, precise and definitive conclusions capable of removing all reasonable scientific doubt as to
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15. AA for a “plan or project”?
Anything – draining land, fishing, concerts, flight plans, ship passages, changing fuels
Must be specific to that plan or project
Cumulative effects (windfarms case)
Must it be a specific AA? Or will one in an EIA do?
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16. Appropriate assessment
Prior to development
No scientific doubt (reasonable?)
Complete , precise and definitive conclusions capable of removing all scientific doubt
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17. Art 6.3
The competent authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned, and if appropriate, after having obtained the opinion of the general public unless Art 6.4 applies
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18. Article 6(4)
In the absence of alternative solutions and provided compensatory measures taken, a project or plan may be allowed for reasons of overriding public interest (OPI)
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19. Concept of OPI -Art. 6.4 IN NON PRIORITY SITES
For imperative reasons of overriding pubic interest including those of a social and economic nature
Provided compensatory measures taken
No alternative solutions
Commission informed of compensatory measures
IN PRIORITY SITES
Only allowed are human health and public safety, beneficial consequences to the environment or further to the opinion from the Commission, other reasons of OPI
Compensatory measures must be taken
No alternative solutions
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21. Likely to have significant effects
“….if it cannot be excluded, on the basis of objective information, that it will have a significant effect on that site, either individually or in combination with other plans or projects…. If it is likely to undermine the site’s conservation objectives, it must be considered likely to have a significant effect on that site
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22. Boggis v Natural England
a claimant who alleges that there was a risk which should have been considered by the authorising authority so that it could decide whether that risk could be "excluded on the basis of objective information", must produce credible evidence that there was a real, rather than a hypothetical, risk which should have been considered.
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23. Cases Commission v Germany- Leybucht (obligations are strict)
Commission v Spain
(If it should have been designated, it must be treated as if designated)
Commission v France
(Appropriate measures questioned)
Commission v Ireland
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24. Cases German Federal Adm Ct Interwallonie
Protections apply to sites which should have been designated and were not
Before Directive transposed.
EC v Netherlands -
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25. First Corporate Shipping case
Omits Lappel bank from designation
Alleges allowed to do this by art 2 Habitats
Held no.
Commission v Ireland -Dublin Bay – natural geographic boundaries must be chosen
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26. Where should boundaries be?
Ec v Spain, cannot be smaller than ornithological justified
EC v Spain – too small
EC v UK 26/ too small
EC v Ireland “integral parts of the entire wetland ecosystem cannot be omitted and that the natural boundaries of wetland ecosystem were to be used”
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27. Will Courts/ ECJ decide on the boundaries?
At national level – deference to administrators
At EU level , no. ECJ will prescribe criteria but not the actual boundaries.
EC v Netherlands (could be differences of opinion)
Boundaries must have genuine scientific basis and be the natural boundaries.
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28. Appropriate management plans? Art 6.1
Ireland and France inadequate
Can’t rely on State ownership/contracts with farmers etc
Implication that administrative measures not sufficient.
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29. Art 6.2 Appropriate steps Must be proactive (Sheep farming)
Must achieve objectives of directive
Commission can question the steps taken
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30. Alternatives
location alternatives, either for the entire proposal or for components (e.g. the location of a dam and/or irrigation channels);
process alternatives (e.g. use of waste-minimising or energy-efficient technology)
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31. Morge – a bit of common sense
article 12(1)(b) of the Habitats Directive prohibits on “deliberate disturbance” of the species particularly during the period of breeding, hibernation and migration
This provision of the Directive afforded protection specifically to species and not to habitats. Bats can take a bit of disturbance
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32. Art 16
Article 16 of the Habitats Directive permits certain derogations to the Directive’s provisions on species protection
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33. Competent authorities must prepare an NIR in respect of Land use plans
Competent authorities must prepare an NIR in respect of Land use plans. Applicants for proposed development may or, if directed by the competent authority, must furnish an NIS to the authority.
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34. Screening Section 177U
CAs must screen land use plans and planning applications.
AA required if it cannot be excluded on the basis of objective information that it will have a significant effect on a European site.
Reasons must be given for the decision and NIS or NIRrequired
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35. Local authority development
Where an AA is required in respect of local authority development, Section 177AE requires the local authority to prepare a NIS and to apply to the Board for approval of the development.
Section 177AE also applies to proposed road development other than proposed road development within the meaning of Section 2(1) of the Roads Act by or on behalf of a roads authority.
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36. Exempted development
Section 4 of the 2000 Act (exempted development) has been amended to provide that development which requires an EIA or AA shall not be exempted development. However, the Minister for the Environment and Local Government can make regulations that development which requires an authorisation under any enactment and requires an EIA or AA is exempted development.
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37. See Commission guidelines in practical cases
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