‘Appropriate assesment’ under the Habitats Directive as applied in Sweetman. Basically, avoid the water going under the (limestone) bridge.

In the event of a site classified under the EU’s Habitat directive, in case screening has revealed the possibility or the risk that a planned project may cause significant effects to the site, an ‘appropriate assessment’ will have to be drawn up. Sweetman is unusual in that, to Sharpston AG’s memory, the Court’s previous case-law concerns situations where there has been no appropriate assessment in terms of that provision and the question is whether such an assessment is necessary. Here, by contrast, an assessment was undertaken and there is no suggestion that it was improperly conducted – indeed, all the indications are that it was done with great care. Rather, the issue concerns the conclusion reached as a result of that assessment, on the basis of which the local authority adopted the decision at issue.

The habitat site concerned hosts a number of priority habitats (see here). If a proposed road development proceeds, 1.47 hectares of limestone pavement will be permanently lost.The discussion centres on the impact of this loss for the integrity and survival of the site.

The appropriate assessment stage corresponds to the second sentence of article 6.3 of the Habitats Directive, i.e.

In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national 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.

The aim of the appropriate assessment is to provide an answer to this question, since the protection regime under the Habitats Directive only allows a project to be authorized on condition that it will not adversely affect the integrity of the site concerned, unless the exceptions of article 6.4 are applied.

In Sweetman the Court held that the interpretation of this criterion has to be construed as a coherent whole in the light of the conservation objectives pursued by the Habitats Directive, meaning that the integrity of the site is not adversely affected, in case it is preserved at a favourable conservation status. This entails the lasting preservation of the constitutive characteristics of the site concerned that are connected to the presence of the natural habitat type or the species whose preservation was the objective justifying the designation of the site in the list of SCI’s.

Based on this reasoning, the Court concluded that competent national authorities cannot authorize interventions in a site protected under the Habitats Directive where there is a risk of lasting harm to the ecological requirements of sites which host priority natural habitat types. According to the Court, that would particularly be so where there is a risk that an intervention of a particular kind will bring about the disappearance or the partial and irreparable destruction of a priority natural habitat type present on the site concerned. This risk needs to be assessed in accordance with the precautionary principle.

Previously, the Court had taken a similar approach with regard to the disappearance of priority species in Commission v Spain

In the main proceedings, the Lough Corrib SCI was designated as a site hosting a priority habitat type because, in particular, of the presence in that site of limestone pavement, a natural resource which, once destroyed, cannot be replaced. The natural habitat affected by the proposed road scheme is among the priority natural habitat types, which Article 1(d) of the Habitats Directive defines as ‘natural habitat types in danger of disappearance’ for whose conservation the European Union has ‘particular responsibility’.

The conservation objective, the Court noted,  thus corresponds to maintenance at a favourable conservation status of that site’s constitutive characteristics, namely the presence of limestone pavement. Consequently, if, after an appropriate assessment of a plan or project’s implications for a site, carried out on the basis of the first sentence of Article 6(3) of the Habitats Directive, the competent national authority concludes that that plan or project will lead to the lasting and irreparable loss of the whole or part of a priority natural habitat type whose conservation was the objective that justified the designation of the site concerned as an SCI, the view should be taken that such a plan or project will adversely affect the integrity of that site.

That does not mean that the planned project cannot go ahead – however the procedure for it to be allowed, becomes ever more stringent.

There’s no use crying over spilled milk. Or lamenting water having already gone under the bridge. However faits accomplis have no place in EU habitat protection , especially for priority sites: for once gone, it’s gone: otherwise it would not even be on the list.

Geert.

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