People over Winds 7 anor v Coillte Teoranta

JurisdictionIreland
JudgeMr Justice Max Barrett
Judgment Date16 March 2017
Neutral Citation[2017] IEHC 171
CourtHigh Court
Docket Number[2016 No. 785 JR]
Date16 March 2017

[2017] IEHC 171

THE HIGH COURT

Barrett J.

[2016 No. 785 JR]

PEOPLE OVER WIND

AND

PETER SWEETMAN
Applicants
– and –
COILLTE TEORANTA
Respondent

Environment, Planning & Construction – Art. 42 of the European Communities (Birds and Natural Habitats) Regulations 2011 (“the Habitats Regulations”) – Council Directive 92/43/EEC (“Habitats Directive”) – Screening for Environment Impact Assessment (“EIA”) – Whether mitigation measures should be counted in screening for appropriate assessment

Facts: The applicants sought an order of certiorari for quashing the determination of the respondent on the basis that it was in contravention of Habitats Directive. The applicants contended that the relevant grid connection works on their own or as a part of the overall wind farm project required stage 2 Appropriate Assessment (A.A.) and the respondent did not carry out that A.A. The respondent contended that the impugned determination complied with the requirements of art. 42 of the Habitats Regulations and art. 6(3) of the Habitats Directive and thus, on the basis of the results of stage 1 assessment, there was no need to carry out the stage 2 AA. The applicants also alleged that the respondent had erred in taking into account the mitigation measures while carrying out the stage 1 screening assessment.

Mr. Justice Max Barrett referred the case to the Court of Justice of European Union (CJEU) and adjourned the present proceedings pending the outcome of the decision of the CJEU. The Court found that the resolution of disputes between the parties was dependent upon the consideration of mitigation measures. The Court, after taking into account a plethora of decisions of Irish Courts, UK Courts and the CJEU came to conclude that there was no consensus and certainty in relation to the consideration of mitigation measures. The Court, therefore, referred the question as to whether the mitigation measures could be considered as a part of screening for appropriate assessment done pursuant to art. 6(3) to the CJEU.

JUDGMENT of Mr Justice Max Barrett delivered on 16th March, 2017.
I. Overview
1

The applicants seek to challenge a determination of Coillte dated 14th July, 2016, made pursuant to Art. 42 of the European Communities (Birds and Natural Habitats) Regulations 2011 (the “Habitats Regulations”) whereby Coillte determined that grid connection works to connect Cullenagh Windfarm to the ESBN substation at Abbeyleix Road in Portlaoise did not require a Stage 2 Appropriate Assessment. The applicants seek, inter alia, an order of certiorari quashing the determination and a declaration that the determination was in breach of Council Directive 92/43/EEC of 21 May, 1992, on the conservation of natural habitats and of wild fauna and flora (O.J. L206/7 22.07.92) (the “Habitats Directive”) and the jurisprudence of the Court of Justice of the European Union and of the European Court of Justice. The possibility of a reference to the CJEU under Art. 267 TFEU has also been mooted.

2

The essence of the applicants' case is that (i) the grid connection works, either on their own, or as part of the overall Cullenagh Windfarm project require a Stage 2 Appropriate Assessment on the basis that the grid connection works, individually or in combination with other plans or projects, are likely to have a significant effect on a European Site; (ii) Coillte erred in taking mitigation measures into consideration when carrying out a Stage 1 Screening Assessment in respect of the grid connection works; and (iii) the mitigation measures proposed were not clearly defined and do not form part of any enforceable development consent.

3

By contrast, Coillte maintains that the impugned determination complies with the requirements of Art. 42 of the Habitats Regulations and Art. 6(3) of the Habitats Directive and that, on the basis of the outcome of the Stage 1 Screening Assessment, there was no requirement to progress to a Stage 2 Appropriate Assessment. Coillte also maintains that mitigation measures, in the form of protective measures which have been applied at the design stage of a proposed development and which form an integral part of the design can be taken into account in the Stage 1 Screening Assessment.

4

As can be seen, the issue of whether or not mitigation measures can, as a matter of law, be considered at the screening stage lie centre-stage in terms of the resolution of the application at hand.

II. Article 6(3) of the Habitats Directive

(i) Some General Principles.

5

Article 6(3) of the Habitats Directive provides, inter alia, as follows:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives.’

6

By way of amplification on this portion of Art. 6(3), the court has been referred in argument to the opinions of the Advocates General and the decisions of the CJEU in the Waddenzee and Sweetman cases. (Cases C-127/02 and C-258/11). It seems to the court that the following principles can be identified from the text of Art. 6(3) and from those opinions and decisions:

(1) There are three “trigger requirements” that prompt the need for an appropriate assessment pursuant to Art. 6(3): (1) there has to be a plan or project; (2) it must be a plan or project that is not directly connected with or necessary to the management of the site; (3) it must be plan or project which is ‘ likely’ to have a significant effect on the site. (Text of Art.6(3)).

(2) The term ‘ likely’ when used in Art. 6(3) does not involve that degree of probability which the ordinary English usage of the word involves. All that is required is that there must be a possibility that there may be a significant effect. ( Sweetman, AG Sharpston).

(3) One does not get through to the appropriate assessment stage unless there has been a conclusion in the screening (Stage 1) assessment that the test as to likelihood of significant effect is satisfied. ( Waddenzee, CJEU).

(4) The threshold at the first (screening) stage of Article 6(3) is ‘ a very low one’ ( Sweetman, AG Sharpston).

(5) The requirement that the effect be ‘ significant’ exists in order to law down a de minimis threshold. Plans or projects that have no appreciable effect on the site are excluded. ( Sweetman, AG Sharpston). (It appears to follow that plans that have an appreciable effect on the site are included).

(6) The decision as to the possibility of significant effect must be decided on a case-by-case basis. ( Waddenzee, AG Kokott/CJEU).

(7) A risk of significant effect exists if it cannot be excluded on the basis of ‘ objective information’ that the plan or project will have significant effects on the site concerned. ( Waddenzee, CJEU).

(8) The phrase used by the CJEU in Waddenzee is ‘objective information’, not “scientific evidence” or “scientific knowledge”. Those latter terms are not employed by the CJEU in respect of the screening for appropriate assessment stage. (Nor, it might be noted, does the decision of the Court of Appeal in People Over Wind, Environmental action Alliance Ireland v. An Bord Pleanála [2015] IECA 272 seek to import such a requirement into the screening for appropriate assessment stage).

(9) In case of doubt as to the absence of significant effect, an appropriate assessment must be carried out. ( Waddenzee, CJEU).

(10) The CJEU's use in Waddenzee of the term ‘ case of doubt’ echoes but, notably, does not mirror the term ‘ reasonable doubt’, as used by AG Kokott in her preceding Opinion. What the CJEU appears to the court to have meant to refer to in this regard is doubt the basis for which is capable of being reasoned, and which, in that limited sense, is “reason-able”, but no more.

(11) It would seem to apply as a matter of logic that the more endangered a species, the easier it must be to cross the ‘ very low’ threshold set by Art. 6(3).

(ii) Mitigation Measures.

a. Overview.

7

One key question not answered in the European case-law to this point is whether mitigation measures can be considered as part of a screening for appropriate assessment. Those bodies and courts that have considered matters have come up with a variety of responses that are considered below.

b. The Approach of the European Commission.

8

The approach to screening contemplated and endorsed by the European Commission to date in its non-legally binding guidance is that effective mitigation of all the adverse effects of a proposed plan/project can only take place once all of those effects have been fully recognised and assessed. Then, and only then, can one determine rationally what type and levels of mitigation are appropriate. Thus in its publication ‘ Assessment of plans and projects significantly affecting Natura 2000 sites’ (2001) (referred to hereafter as the “EU Methodological Guidance”), the European Commission states as follows, at para. 2.6:

‘Project and plan proponents are often encouraged to design mitigation measures into their proposals at the outset. However, it is important to recognise that the screening assessment should be carried out in the absence of any consideration of mitigation measures that form part of a project or plan and are designed to avoid or reduce the impact of a project or plan on a Natura 2000 site. The proponent's notion of effective levels of mitigation may vary from that of the competent authority and other stakeholders. To ensure the assessment is as objective as possible the competent authority must first consider the project or plan in the absence of mitigation measures that are designed into a project. Effective mitigation of adverse effects on Natura 2000 sites can only take place once those effects have...

To continue reading

Request your trial
2 cases
  • Heather Hill Management Company clg v an Bord Pleanála
    • Ireland
    • High Court
    • 21 June 2019
    ...when carrying out screening for appropriate assessment under article 6(3) of the Habitats Directive. See People Over Wind v. Coillte [2017] IEHC 171. 154 The CJEU noted that the concept of ‘mitigation measures’ is not referenced in the Habitats Directive, and that the measures at issue in ......
  • Merriman v Fingal County Council
    • Ireland
    • High Court
    • 21 November 2017
    ...Court of Justice, the position is as was identified by the court earlier this year in People over Wind & anor v. Coillte Teoranta [2017] IEHC 171, paras. 19–21, under the heading ' References to the CJEU': '19. It was contended by counsel for Coillte at the hearing of the within applicatio......
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT