Court docket of Justice confirms Habitats Directive screening applies to temporal extensions of building permits


Case C-254/19 Mates of the Irish Surroundings Ltd

On 9 September 2020 the Court docket of Justice (CJEU) rendered judgment on a preliminary reference from the Irish Excessive Court docket in a case introduced by an environmental NGO, Mates of the Irish Surroundings. The judgement, which follows the Advocate Normal’s opinion (see our evaluation right here), clarified the obligations of Member State authorities below Article 6(3) of the Habitats Directive (92/43) in regard to temporal extensions of building permits.

Background

The case involved the temporal extension of a allow granted by the Irish Planning Board, An Bord Pleanála, for the development of a fuel terminal within the neighborhood of two Natura 2000 websites. The unique allow was granted in 2008 for ten years, pursuant to nationwide laws which didn’t transpose the Habitats Directive correctly. Furthermore, the unique allow was not preceded by an evaluation of its implications for the positioning in accordance with Article 6(3) of the Habitats Directive. For the reason that works had not began by the point of the expiration of the unique allow, in 2018 An Bord adopted a second determination extending the allow by an extra five-year interval. Nonetheless, this allow was issued once more with out finishing up an applicable evaluation below Article 6(3) of the Habitats Directive. Consequently, Mates of the Irish Surroundings challenged the extension allow earlier than the Irish Excessive Court docket, which referred a number of inquiries to the CJEU.

Two phases of the evaluation process

Article 6(3) of the Habitats Directive states that, ”any plan or challenge in a roundabout way linked with or essential to the administration of the positioning however prone to have a major impact thereon, both individually or together with different plans or tasks, shall be topic to applicable evaluation of its implications for the positioning in view of the positioning’s conservation targets. Within the mild of the conclusions of the evaluation of the implications for the positioning and topic to the provisions of paragraph 4, the competent nationwide authorities shall comply with the plan or challenge solely after having ascertained that it’ll not adversely have an effect on the integrity of the positioning involved and, if applicable, after having obtained the opinion of most of the people.”

Because the CJEU has famous, the abovementioned evaluation process consists of two phases:

  • The suitable evaluation – the primary stage requires Member States to hold out an applicable evaluation of the implications of a plan or challenge for a protected website when there’s a chance that there will likely be a major impact on the positioning.
  • ”Settlement” to the plan or challenge – the second stage occurs provided that the suitable evaluation leads to a conclusion that it’ll not adversely have an effect on the integrity of the positioning involved.

So as to decide whether or not the evaluation process required by Article 6(3) of the Habitats Directive ought to have been carried out on this case, the Court docket assessed whether or not a choice extending the interval set within the authentic building allow pertains to a “challenge” inside the which means of Article 6 (3) of the Habitats Directive.

Subsequently, it examined whether or not the choice on temporal extension of the allow could be thought-about as a choice to attain a so-called “single operation” which might not set off the evaluation process below Article 6(3).

Lastly, the Court docket assessed whether or not the choice to increase a interval initially set within the building allow constitutes an “settlement” inside the which means of Article 6(3).

Is a choice to briefly lengthen the allow a “challenge” below Article 6(3) of the Habitats Directive?

For the reason that definition of a “challenge” below Article 6(3) of the Habitat Directive is just not very exact, the Court docket referred to the definition of the time period below the EIA Directive. In line with the CJEU case legislation, the time period “challenge” in Article 1(2)(a) of the EIA Directive refers to work or interventions involving alterations to the bodily side of the positioning.

The choice to increase a interval initially set for the development of a liquefied pure fuel regasification terminal, for which works haven’t began, falls below this definition and should due to this fact be considered regarding a ‘challenge’ inside the which means of the EIA Directive.

Moreover, for the reason that definition of the idea of ‘challenge’ below the EIA Directive is extra restrictive than that below the Habitats Directive, the Court docket held that, if an exercise is considered a ‘challenge’ inside the which means of the EIA Directive, it might represent a ‘challenge’ inside the which means of the Habitats Directive. The choice on temporal extension of the development allow should due to this fact even be considered regarding a ‘challenge’ inside the which means of Article 6(3) of the Habitats Directive and as such it triggers the suitable evaluation process.

The CJEU additionally adopted the Advocate Normal Opinion on whether or not the extension of the allow could be thought-about as a “single operation”, which describes a scenario when sure actions fall inside one and the identical challenge for the needs of Article 6(3) and due to this fact are exempt from a brand new evaluation process. The CJEU confirmed that this was not the case right here as the choice on extension of the allow was not a renewal of the allow for a recurrent exercise, but it surely allowed the execution of a challenge to start out. Subsequently, the Court docket discovered that the query of  whether or not the unique allow was topic to the necessities of Article 6(3) of the Habitats Directive was irrelevant, as the choice on temporal extension requires its personal evaluation process.

Is a choice to briefly lengthen the allow an “settlement” below Article 6(3) of the Habitats Directive?

Though the Habitats Directive doesn’t outline how the authorities “agree” to a given challenge below Article 6(3), the Court docket held that the time period “improvement consent” outlined in Article 1(2)(c) of the EIA Directive, is related. For the reason that authentic allow granted had expired, any new determination extending the allow for one more interval was actually a brand new allow and constituted a brand new “improvement consent” below the EIA Directive. Consequently, it additionally constituted an “settlement” below Article 6(3) of the Habitats Directive, which on the similar time means it ought to have been preceded by the primary stage of the suitable evaluation process required by Article 6(3) (the screening train).

The usual of the suitable evaluation

Answering the query of the Irish Excessive Court docket in regards to the scope of the screening train (i.e. the choice as as to if an applicable evaluation is required as a result of the plan or challenge is prone to have a major impact on the positioning), the Court docket repeated the opinion of the Advocate Normal on this matter.

The Court docket held that it’s for the nationwide authority to determine whether or not an applicable evaluation should be carried out and whether or not it ought to relate to your entire challenge or half thereof. Nonetheless, the CJEU has set out particular standards, which considerably limits its margin of discretion.

On this regard the Court docket recalled its earlier case legislation stating that an applicable evaluation of a challenge’s implications should be carried out the place it can’t be dominated out, having regard to the very best scientific information within the subject, that the plan or challenge may have an effect on the conservation targets of the positioning.

An applicable evaluation should determine the entire points of the plan or challenge which may have an effect on the conservation targets of that website and the nationwide authority can solely authorise it if there is no such thing as a cheap doubt from a scientific viewpoint as to the absence of such results.

Within the context of a temporal extension, because of this a earlier evaluation, carried out earlier than the unique consent for the challenge was granted, can not rule out that danger until a) it incorporates full, exact and definitive conclusions able to eradicating all cheap scientific doubt as to the results of the works; and b) there are not any adjustments within the related environmental and scientific information, no adjustments to the challenge and no different plans or tasks.

Feedback

The judgment confirms that Article 6(3) of the Habitats Directive could be triggered by a temporal extension to a building allow and clarifies the Member States’ obligations, not solely on nationwide authorities issuing selections, but in addition on nationwide courts reviewing such selections. The evaluation process which emerges from the judgment is especially helpful for the next causes.

First, the Court docket’s clarification {that a} nationwide authority should assess whether or not the unique allow (and never a subsequent temporal extension to it) refers to a “challenge” inside a which means of the EIA directive might have a optimistic influence in jurisdictions the place the authorities are vulnerable to skipping the suitable evaluation on the premise {that a} temporal extension doesn’t relate to a “challenge” inside the which means of the Habitats Directive.

Second, the judgment confirms that the duty to conduct an applicable evaluation process below Article 6(3) of the Habitats Directive doesn’t apply to actions that may be thought-about as a “single operation”. On this case it was essential that the development works had not began earlier than the allow expired and the liquefied pure fuel regasification terminal was not but in operation. It is a welcome clarification that may hopefully keep away from such claims by public authorities and buyers in future.

Lastly, the judgment formulates particular standards for the display screen train and the suitable evaluation itself, which can considerably enhance the procedural scenario of the general public involved. Presently, when a nationwide authority refuses to hold out an applicable evaluation, the burden of proof is usually on the general public involved to point out that the allow extension in query is prone to considerably have an effect on the protected website. The CJEU judgment ensures that the burden of proof is on the nationwide authority to point out that it carried out a screening train able to demonstrating that the suitable evaluation was not required.

 

The put up Court docket of Justice confirms Habitats Directive screening applies to temporal extensions of building permits appeared first on ClientEarth.