ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
MRS JUSTICE PATTERSON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE KITCHIN
LORD JUSTICE SALES
| Dianne Smyth
|- and -
|The Secretary of State for Communities and Local Government
- and -
Ms Elizabeth Archer Arthur &
Ms Angela Lucie Baker-Mercadal &
Ms Carol Ann Land
(Transcript of the Handed Down Judgment of
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(instructed by Leigh Day Solicitors) for the appellant
Mr James Maurici QC (instructed by The Treasury Solicitor) for the respondent
Mr Rhodri Price Lewis QC (instructed by Ashfords LLP) for the interested parties
Hearing dates: 17 and 18 FEBRUARY 2015
Crown Copyright ©
LORD JUSTICE SALES:
The legislative framework
"(2) Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.
(3) 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. 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."
"122.— Limitation on use of planning obligations
(1) This regulation applies where a relevant determination is made which results in planning permission being granted for development.
(2) A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is—
(a) necessary to make the development acceptable in planning terms;
(b) directly related to the development; and
(c) fairly and reasonably related in scale and kind to the development."
(3) A planning obligation ("obligation A") may not constitute a reason for granting planning permission to the extent that –
(a) obligation A provides for the funding or provision of an infrastructure project or type of infrastructure; and
(b) five or more separate planning obligations that –
(i) relate to planning permissions granted for development within the area of the charging authority; and
(ii) which provide for the funding or provision of that project, or type of infrastructure,
have been entered into before the date that obligation A was entered into."
"8.1 In accordance with the Habitats Regulations, each development project with a likelihood of significant effects upon a European site should be the subject of a more detailed appropriate assessment of the implications of the project for European sites, in light of their conservation objectives. The three authorities are responsible for undertaking appropriate assessments of any development proposals to inform whether permission can be given, and what measures may need to be added to the proposal in order to ensure that European sites are not adversely affected.
8.2 At this point in time, a strategic approach to mitigation is not yet established, which leaves the only option of assessing each proposal on a case by case basis. For larger developments, alternative greenspace will be more easily provided, and should certainly be pursued. For smaller developments, and the on site management element of larger developments, the absence of a mitigation strategy at this stage makes it more difficult to require contributions at the right level to adequately provide appropriate mitigation, although the precautionary approach must always be applied in the absence of further information.
8.3 An interim approach could therefore be to identify particular projects, in partnership with Natural England, that are costed and capable of implementation, and equate to a per house contribution that meets the anticipated level of housing growth within a given period, until a longer term strategy can be put in place. These projects could be a range of alternative greenspace, enhancement of greenspace, on-site access management projects or the funding of wardening staff to start to plan and put in place some of the longer term on site work that staff on the ground would implement.
8.4 It has been recognised by Natural England and Habitats Regulations practitioners that once the need for a large scale approach and comprehensive mitigation strategy has been identified, an initial approach can be implemented having full regard of the precautionary principle in the absence of a more refined approach, until a longer term and more comprehensive approach can be developed. This was the approach taken in the Dorset Heathlands, where an 'Interim Planning Framework' was put in place by a consortium of local authorities, with funding allocated to a set of specific projects, until a more comprehensive approach was embedded into the relevant LDFs.
8.5 Given that it is anticipated that an interim approach would need to be in place for a shorter timescale than that for Dorset Heathlands, a simple and relatively straightforward project or set of projects should be identified. This approach still recognises the need for a case by case assessment, and there may be some development proposals for which adverse effects cannot be ruled out, due to the proximity or nature of the development, and the interim approach does not provide the necessary certainty. With this interim approach suggested, it is now necessary to obtain further input from Natural England as to whether this represents an appropriate and achievable interim solution.
An initial and interim approach could include the identification of projects, in partnership with Natural England, that are costed and capable of implementation, and equate to a per house contribution that meets the anticipated level of housing growth within a given period, until a longer term strategy can be put in place. These projects could be a range of alternative greenspace, enhancement of greenspace, on-site access management projects of the funding of wardening staff to start a plan and put in place some of the longer term site work that staff on the ground would implement. It is advised that the latter may represent the most effective way of implementing and interim approach, and may be of greatest benefit to the longer term strategy.
With this interim approach suggested, it is now necessary to obtain further input from Natural England as to whether this represents an appropriate and achievable interim solution."
"This means that the impacts from the Sentry's Farm proposal are part of an in-combination effect of around 15,000 houses in Teignbridge and a further 28,000 in Exeter and East Devon. This many houses equates to around 2.3 x 43,000 = 98,900 people. The recreational impacts on the SPA and SAC of so many additional people will be large and will constitute a Likely Significant Effect."
"This contribution is to be spent to offset impacts with the [SPA and SAC] themselves, by a variety of visitor management measures; on monitoring of impact; and as a contribution towards a major recreational site to attract people away from the SPA/SAC."
"As a result of this Appropriate Assessment [the Council] concludes that this proposal will have no significant effect on [the SPA and the SAC] subject to the mitigation measures set out [in the assessment]."
"25 The appeal site lies in reasonably close proximity to the Exe Estuary Special Protection Area (SPA) and RAMSAR site and somewhat further away from the Dawlish Warren Special Area of Conservation (SAC). The Council have previously undertaken an initial screening assessment in line with the requirements of the Conservation of Habitats and Species Regulations 2010 (HSR) into whether the proposed development would be likely to result in a significant effect on this site. They concluded from this initial assessment that an Appropriate Assessment (AA) was necessary and consequently undertook such an assessment. The result of the AA was that the Council concluded that the proposed development would have no significant effect on the SPA/RAMSAR site or the SAC.
26 In an email dated 29 June 2011 Natural England confirmed that they agreed with the conclusions of this AA. In a Secretary of State decision regarding Land at Dilley Lane, Hartley Witney, it is made clear that the Secretary of State continues to give great weight to the views of NE as the appropriate nature conservation body in relation to the application of the Conservation (Natural Habitats &c) Regulations 1994 and consequently I give considerable weight to their conclusion relating to the Council's AA. Notwithstanding this however, it falls to me as the 'Competent Authority' to determine whether the proposed development complies with the HSR.
27 The Conservation Objectives for the Exe Estuary SPA are to maintain the following habitats and geological features in favourable condition with particular reference to any dependent component special interest features for which the land is designated. The habitats listed are littoral sediment, supra-littoral sediment, fen, marsh and swamp and neutral grassland and the geological features are coastal cliffs and foreshore. For Dawlish Warren SAC the Conservation Objectives are similar with the habitat types being supra-littoral sediment and littoral sediment, and the geological feature being active process geomorphological.
28 The screening assessment undertaken by the Council identified disturbance of bird populations, physical damage to the habitats and invertebrate communities by recreational users and pollution from discharges of surface water and drains as the potential hazards to the Exe Estuary SPA and Dawlish Warren SAC. They noted that recreational use was already causing significant disturbance to birds and also physical damage to habitats and invertebrate communities. I note however that in the Exe Estuary SSSI condition assessment undertaken by NE there is no mention of recreational use causing disturbance and damage or having an adverse effect on qualifying bird species. The Council also identified that any impacts from the proposed development would be part of a future in-combination effect of about 15000 houses in Teignbridge and a further 28000 in Exeter and East Devon. From this information the Council concluded that there would be a Likely Significant Effect.
29 Consequently an Appropriate Assessment (AA) was undertaken which identified that the proposed public open space on the site would be of too small an area to fully mitigate the impact of the proposed development. In the absence of a robust mitigation package specific to the Exe Estuary and Dawlish Warren, the Council have accepted advice from NE that a Joint Interim Approach to securing recreation mitigation (JIA) would be suitable. Such an approach has been used for the Thames Basin Heaths and Dorset Heathlands Special Protection Areas and was utilised by the Council for a residential development proposal at Secmaton Lane, Dawlish. This approach to securing recreational mitigation is operated jointly with Exeter City Council and East Devon District Council and was adopted in November 2011. The outcome of this approach is that a contribution would be required from residential development, based on the likely number of residents, to be spent on a variety of visitor management measures, on monitoring of the impact of visitors, and towards the provision of a major recreational site to attract people away from the SPA/SAC.
30 During the Inquiry my attention was drawn to an interim report (IR) produced by Footprint Ecology. This report related to strategic planning and impacts from recreation on the Exe Estuary SPA and the Dawlish Warren SAC. The IR indicated that there is a clear relationship between the distance people live from the estuary and how often people visit, and GIE pointed out that the IR suggests that there may be a need for restrictions to be placed on development in close proximity to the most sensitive parts of the European sites. Conversely, the IR also states that proposed options for growth in very close proximity need to be carefully checked to ensure that adequate and appropriate measures can be implemented to prevent an increase in recreational pressure causing further harm to European sites. To my mind that is the very purpose of considering the proposed development against the requirements of the HSR. I also note that the sensitive habitats (intertidal, shore and open water) within the SPA and the SAC are at least 2.5km to 3km from the appeal site.
31 The IR also concludes that in terms of visitors to the Exe, alternative sites and green infrastructure are not likely to be effective alone. However, it goes on to say that such measures may be effective if combined with on-site management measures that may serve to deter visitors, and gives an example of such a measure as dog control orders in certain areas.
32 This is very much the approach taken by the JIA, and as well as the provision of a strategic suitable alternative natural green space (SANGS), I was made aware of a list of schemes that would form part of this approach, including enforcement of exclusion zones, provision of a patrol boat, dog control orders and enhanced signage. Overall, notwithstanding that the Exe Estuary SPA and the Dawlish Warren SAC are estuarine habitats as opposed to heathlands, I consider the JIA and its outcomes to be an acceptable way of achieving the required mitigation.
33 In arriving at this conclusion I am aware that the JIA is an interim measure that tends towards a 'one size fits all approach'. I consider, however, particularly in view of the housing shortage in the district, that it would be inappropriate for planning permission for residential development to be consistently refused until such time as a final mitigation package is produced.
34 The AA undertaken by the Council further noted that the extent to which the on-site public open space would attract every day recreational use away from the SPA and SAC would be dependent on its quality and continuing management, and recommended a variety of landscape features and the division of the area into several small visually contained areas. The AA also noted that full details of the sustainable drainage scheme (SUD) would be needed before the commencement of development. If I ultimately conclude in favour of the appellants, then I consider that it is perfectly acceptable from a legal and planning perspective for the details of the SUD and the landscape features to be approved through a suitable planning condition. This would enable the Council to ensure that no harmful discharges would occur to the SPA and SAC and to have control over the design of the public open space.
35 Evidence produced by the appellants makes the point that the SPA and SAC are not designated on account of breeding birds, but on account of their passage and over-wintering bird populations. The appellants also point to the fact that the Exminster Marshes Nature Reserve is accessible from the appeal site. This reserve has been designed to alleviate pressure from visitors on the SPA site. There are also large expanses of accessible forest about 8km from the appeal site, which may well be preferable for dog walkers. The appellants also point to the fact that much of the SPA is not well suited to public access, comprising mud flats and saltmarsh.
36 Rule 6 parties considered that as the appeal site is within 400m of a European site then mitigation is not possible. However, from the evidence that is available to me it would seem that this approach stems from the delivery plan and guidance associated with the Thames Basin Heaths, and is not strictly applicable to the case before me. The types of habitats involved here differ from a heath, as do the types of species involved and the accessibility, and consequently I am not persuaded that a 400m rule applies.
37 It is acknowledged by both main parties that the on-site public open space (POS) will be smaller than that required to fully mitigate the impact on the SPA and SAC, and will to an extent be compromised by the provision of the SUD. However, this POS is over and above the primary mitigation measure, the contributions under the JIA, and this is not therefore an issue that can be afforded significant weight.
38 Overall, taking into consideration the conservation objectives of the SPA and the SAC, and the proposed mitigation measures and other factors that I have outlined above, I conclude that the proposed development, even when combined with other development, would not be likely to give rise to any significant effects on either the SPA or the SAC. There would therefore be no conflict with the requirements of paragraph 118 of the Framework. This makes clear, amongst other things, that if significant harm resulting from a development cannot be avoided, adequately mitigated, or, as a last resort, compensated for, then planning permission should be refused.
39 My attention has been drawn to paragraph 119 of the Framework, which makes clear that the presumption in favour of sustainable development does not apply where development requiring appropriate assessment under the Birds or Habitats Directive is being considered, planned or determined. Whilst an Appropriate Assessment was undertaken by the Council at application stage, in light of my findings above, I have found no necessity for repeating this process. Consequently, the presumption in favour of sustainable development applies to this determination."
The Habitats Directive Ground
(i) A strict precautionary approach
"69. As regards the degree of probability of significant adverse effect, the wording of various language versions is not unequivocal. The German version appears to be the broadest since it uses the subjunctive "könnte" (could). This indicates that the relevant criterion is the mere possibility of an adverse effect. On the other hand, the English version uses what is probably the narrowest term, namely "likely", which would suggest a strong possibility. The other language versions appear to lie somewhere between these two poles. Therefore, according to the wording it is not necessary that an adverse effect will certainly occur but that the necessary degree of probability remains unclear.
70. Since the normal authorisation procedure is intended to prevent protection areas being affected by plans or projects, the requirements relating to the probability of an adverse effect cannot be too strict. If the possibility of an appropriate assessment were ruled out in respect of plans and projects which had only a 10 per cent likelihood of having a significant adverse effect, statistically speaking one in ten measures precisely under this limit would have significant effects. However, all such measures could be authorised without further restrictions. Consequently, such a specific probability standard would give rise to fears that Natura 2000 would slowly deteriorate. Furthermore, the appropriate assessment is also precisely intended to help establish the likelihood of adverse effects. If the likelihood of certain adverse effects is unclear, this militates more in favour than against an appropriate assessment.
71. In principle, the possibility of avoiding or minimising adverse effects should be irrelevant as regards determining the need for an appropriate assessment. It appears doubtful that such measures could be carried out with sufficient precision in the absence of the factual basis of a specific assessment.
72. On the other hand, it would be disproportionate to regard any conceivable adverse effect as grounds for carrying out an appropriate assessment. Adverse effects, which are not obvious in view of the site's conservation objectives, may be disregarded. However, this can be assessed and decided on only on a case-by-case basis.
73. In that regard the criterion must be whether or not reasonable doubt exists as to the absence of significant adverse effects. In assessing doubt, account will have to be taken, on the one hand, of the likelihood of harm and, on the other, also of the extent and nature of such harm. Therefore, in principle greater weight is to be attached to doubts as to the absence of irreversible effects or effects on particularly rare habitats or species than to doubts as to the absence of reversible or temporary effects or the absence of effects on relatively common species or habitats.
74. Therefore, an appropriate assessment is always necessary where reasonable doubt exists as to the absence of significant adverse effects."
"85. Thus, in principle any adverse effect on the conservation objectives must be regarded as a significant adverse effect on the integrity of the site concerned. Only effects which have no impact on the conservation objectives are relevant for the purposes of Art.6(3) of the habitats directive.
86. The answer to this part of the third question must therefore be that any effect on the conservation objectives has a significant effect on the site concerned."
"i) Appropriate assessment
95. It should first be noted that the habitats directive does not lay down any methods for carrying out an appropriate assessment. In this respect it may be helpful to refer to the relevant documents of the Commission, even though they are not legally binding. The Court can in no way draw up, in abstract terms, a particular method for carrying out an appropriate assessment. However, it is possible to derive certain framework conditions from the directive.
96. Most languages versions, and also the 10th recital in the preamble to the German version, expressly require an appropriate assessment. As the Commission in particular correctly states, it is also clear from the wording of Art.6(3) of the habitats directive that an appropriate assessment must precede agreement to a plan or project and that it must take account of cumulative effects which arise from combination with other plans or projects.
97. This assessment must, of necessity, compare all the adverse effects arising from the plan or project with the site's conservation objectives. To that end, both the adverse effects and the conservation objectives must be identified. The conservation objectives can be deduced from the numbers within the site. However, it will often be difficult to encompass all adverse effects in an exhaustive manner. In many areas there is considerable scientific uncertainty as to cause and effect. If no certainty can be established even having exhausted all scientific means and sources, it will consequently be necessary also to work with probabilities and estimates. They must be identified and reasoned.
98. Following an appropriate assessment, a reasoned judgment must be made as to whether or not the integrity of the site concerned will be adversely affected. In that respect it is necessary to list the areas in which the occurrence or absence of adverse effects cannot be established with certainty and also the conclusions drawn therefrom.
ii) Taking account of the precautionary principle and permissible doubts as regards the authorisation of plans and projects
99. As regards the decision on authorisation, the second sentence of the German version of the second sentence of Art.6(3) of the habitats directive provides that such decision is to be taken only when, in the light of the conclusions of the assessment of the implications for the site, the competent authorities have ascertained that it will not adversely affect the integrity of the site concerned. As the Commission correctly emphasises, the other language versions go further than a mere "ascertainment" in that they require that the competent authorities establish certainty in this respect. Therefore, it must be concluded that the ascertainment required for agreement in the German version can be made only when, in the light of the conclusions of the assessment of the implications for the site, the competent authorities are certain that it will not adversely affect the integrity of the site concerned. Therefore, as regards the decision the decisive factor is not whether such adverse effect can be proven but—conversely—that the authorising authorities ascertain that there are no such effects.
100. This rule gives concrete expression to the precautionary principle laid down in Art.174(2) EC in relation to a protection area covered by Natura 2000. The precautionary principle is not defined in Community law. It is examined in case law primarily in so far as protective measures may be taken, where there is uncertainty as to the existence or extent of risks, without having to wait until the reality and seriousness of those risks become fully apparent. Therefore, the decisive factor is the element of scientific uncertainty as to the risks involved. However, in each particular case the action associated with the protective measures must be proportionate to the assumed risk. In that regard the Commission stated in its communication on the precautionary principle that judging what is an "acceptable" level of risk for society is an eminently political responsibility. Such responsibility can be met only where the scientific uncertainty is minimised before a decision is taken by using the best available scientific means.
101. Accordingly, the rulings of the Court did not concern a "failure to observe" the precautionary principle in abstract terms, but the application of provisions which give expression to the precautionary principle in relation to certain areas. On the one hand, these provisions normally provide for a comprehensive scientific assessment and, on the other, specify the acceptable level of risk which remains after this assessment in each case or the margin of discretion of the relevant authorities.
102. Article 6(3) of the habitats directive constitutes such a rule. In order to avoid adverse effects on the integrity of Natura 2000 sites as a result of plans and projects, provision is first made for the use of the best available scientific means. This is done by means of a preliminary assessment of whether there are likely to be significant effects and then, where necessary, an appropriate assessment is carried out. The level of risk to the site which is still acceptable after this examination is set out in the second sentence of Art.6(3) . According to that provision, the authorising authority can grant authorisation only when it is certain that the integrity of the site concerned will not be adversely affected. Consequently, remaining risks may not undermine this certainty.
103. However, it could be contrary to the principle of proportionality, which is cited by PO Kokkelvisserij, to require certainty as to the absence of adverse effects on the integrity of the site concerned before an authority may agree to a plan or project.
104. It is settled case law that the principle of proportionality is one of the general principles of Community law. A measure is proportionate only where it is both appropriate and necessary and not disproportionate to the objective pursued. This principle is to be taken into account in interpreting Community law.
105. The authorisation threshold laid down in the second sentence of Art.6(3) of the habitats directive is capable of preventing adverse effects on sites. No less stringent means of attaining this objective with comparable certainty is evident. There could be doubts only as regards the relationship between the authorisation threshold and the protection of the site which can be achieved thereby.
106. However, disproportionate results are to be avoided in connection with the derogating authorisation provided for in Art.6(4) of the habitats directive. Under this provision, plans or projects may be authorised, by way of derogation, in spite of a negative assessment of the implications for the site where there are imperative reasons of overriding public interest, there are no alternative solutions and all compensatory measures necessary to ensure that the overall coherence of Natura 2000 have been taken. Thus, in Art.6(3) and (4) of the habitats directive the Community legislature itself set out the relationship between nature conservation and other interests. Consequently, no failure to observe the principle of proportionality can be established.
107. However, the necessary certainty cannot be construed as meaning absolute certainty since that is almost impossible to attain. Instead, it is clear from the second sentence of Art.6(3) of the habitats directive that the competent authorities must take a decision having assessed all the relevant information which is set out in particular in the appropriate assessment. The conclusion of this assessment is, of necessity, subjective in nature. Therefore, the competent authorities can, from their point of view, be certain that there will be no adverse effects even though, from an objective point of view, there is no absolute certainty.
108. Such a conclusion of the assessment is tenable only where the deciding authorities at least are satisfied that there is no reasonable doubt as to the absence of adverse effects on the integrity of the site concerned. As in the case of a preliminary assessment—provided for in the first sentence of Art.6(3) of the habitats directive—to establish whether a significant adverse effect on the site concerned is possible, account must also be taken here of the likelihood of harm occurring and the extent and nature of the anticipated harm. Measures to minimise and avoid harm can also be of relevance. Precisely where scientific uncertainty exists, it is possible to gain further knowledge of the adverse effects by means of associated scientific observation and to manage implementation of the plan or project accordingly.
109. In any event, the decisive considerations must be set out in the authorisation. They may be reviewed at least in so far as the authorising authorities' margin of discretion is exceeded. This would appear to be the case in particular where the findings of an appropriate assessment on possible adverse effects are contested without cogent factual arguments.
110. It is uncertain whether the Netherlands rule on the need for obvious doubt complies with the level of acceptable risk thus defined. It classifies as acceptable a risk of adverse effects which can still give rise to doubts which are reasonable but not obvious. However, such reasonable doubts would preclude the certainty that the integrity of the site concerned will not be adversely affected which is necessary under Community law. The Raad van State's comments on the available scientific knowledge confirms this assessment. It refers to an expert report which concludes that there are gaps in knowledge and that the majority of the available research findings which are cited do not point unequivocally to serious adverse (irreversible) effects on the ecosystem. However, this finding merely means that serious adverse effects cannot be ascertained with certainty, not that they certainly do not exist.
111. In summary, the answer to the fourth question—in so far as it relates to Art.6(3) of the habitats directive—must be that an appropriate assessment must:
— precede agreement to a plan or project;
— take account of cumulative effects; and
— document all adverse effects on conservation objectives.
The competent authorities may agree to a plan or project only where, having considered all the relevant information, in particular the appropriate assessment, they are certain that the integrity of the site concerned will not be adversely affected. This presupposes that the competent authorities are satisfied that there is no reasonable doubt as to the absence of such adverse effects."
"39. According to the first sentence of Art.6(3) of the Habitats Directive, 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, is to be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives.
40. The requirement for an appropriate assessment of the implications of a plan or project is thus conditional on its being likely to have a significant effect on the site.
41. Therefore, the triggering of the environmental protection mechanism provided for in Art.6(3) of the Habitats Directive does not presume—as is, moreover, clear from the guidelines for interpreting that article drawn up by the Commission, entitled "Managing Natura 2000 Sites: The provisions of Article 6 of the 'Habitats' Directive (92/43/EEC) " —that the plan or project considered definitely has significant effects on the site concerned but follows from the mere probability that such an effect attaches to that plan or project.
42. As regards Art.2(1) of Directive 85/337 , the text of which, essentially similar to Art.6(3) of the Habitats Directive, provides that "Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment … are made subject to an assessment with regard to their effects", the Court has held that these are projects which are likely to have significant effects on the environment.
43. It follows that the first sentence of Art.6(3) of the Habitats Directive subordinates the requirement for an appropriate assessment of the implications of a plan or project to the condition that there be a probability or a risk that the latter will have significant effects on the site concerned.
44. In the light, in particular, of the precautionary principle, which is one of the foundations of the high level of protection pursued by Community policy on the environment, in accordance with the first subparagraph of Art.174(2) EC, and by reference to which the Habitats Directive must be interpreted, such a risk 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. Such an interpretation of the condition to which the assessment of the implications of a plan or project for a specific site is subject, which implies that in case of doubt as to the absence of significant effects such an assessment must be carried out, makes it possible to ensure effectively that plans or projects which adversely affect the integrity of the site concerned are not authorised, and thereby contributes to achieving, in accordance with the third recital in the preamble to the Habitats Directive and Art.2(1) thereof, its main aim, namely, ensuring biodiversity through the conservation of natural habitats and of wild fauna and flora.
45. In the light of the foregoing, the answer to Question 3(a) must be that the first sentence of Art.6(3) of the Habitats Directive must be interpreted as meaning that any plan or project not directly connected with or necessary to the management of the site is to be subject to an appropriate assessment of its implications for the site in view of the site's conservation objectives 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.
46. As is clear from the first sentence of Art.6(3) of the Habitats Directive in conjunction with the 10th recital in its preamble, the significant nature of the effect on a site of a plan or project not directly connected with or necessary to the management of the site is linked to the site's conservation objectives.
47. So, where such a plan or project has an effect on that site but is not likely to undermine its conservation objectives, it cannot be considered likely to have a significant effect on the site concerned.
48. Conversely, where such a plan or project is likely to undermine the conservation objectives of the site concerned, it must necessarily be considered likely to have a significant effect on the site. As the Commission in essence maintains, in assessing the potential effects of a plan or project, their significance must be established in the light, inter alia, of the characteristics and specific environmental conditions of the site concerned by that plan or project.
52. As regards the concept of "appropriate assessment" within the meaning of Art.6(3) of the Habitats Directive, it must be pointed out that the provision does not define any particular method for carrying out such an assessment.
53. None the less, according to the wording of that provision, an appropriate assessment of the implications for the site concerned of the plan or project must precede its approval and take into account the cumulative effects which result from the combination of that plan or project with other plans or projects in view of the site's conservation objectives.
54. Such an assessment therefore implies that all the aspects of the plan or project which can, either individually or in combination with other plans or projects, affect those objectives must be identified in the light of the best scientific knowledge in the field. Those objectives may, as is clear from Arts 3 and 4 of the Habitats Directive, in particular Art.4(4), be established on the basis, inter alia, of the importance of the sites for the maintenance or restoration at a favourable conservation status of a natural habitat type in Annex I to that directive or a species in Annex II thereto and for the coherence of Natura 2000, and of the threats of degradation or destruction to which they are exposed.
55. As regards the conditions under which an activity such as mechanical cockle fishing may be authorised, given Art.6(3) of the Habitats Directive and the answer to the first question, it lies with the competent national authorities, in the light of the conclusions of the assessment of the implications of a plan or project for the site concerned, to approve the plan or project only after having made sure that it will not adversely affect the integrity of that site.
56. It is therefore apparent that the plan or project in question may be granted authorisation only on the condition that the competent national authorities are convinced that it will not adversely affect the integrity of the site concerned.
57. So, where doubt remains as to the absence of adverse effects on the integrity of the site linked to the plan or project being considered, the competent authority will have to refuse authorisation.
58. In this respect, it is clear that the authorisation criterion laid down in the second sentence of Art.6(3) of the Habitats Directive integrates the precautionary principle and makes it possible effectively to prevent adverse effects on the integrity of protected sites as the result of the plans or projects being considered. A less stringent authorisation criterion than that in question could not as effectively ensure the fulfilment of the objective of site protection intended under that provision.
59. Therefore, pursuant to Art.6(3) of the Habitats Directive , the competent national authorities, taking account of the conclusions of the appropriate assessment of the implications of mechanical cockle fishing for the site concerned, in the light of the site's conservation objectives, are to authorise such activity only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects.
60. Otherwise, mechanical cockle fishing could, where appropriate, be authorised under Art.6(4) of the Habitats Directive, provided that the conditions set out therein are satisfied.
61. In view of the foregoing, the answer to the fourth question must be that, under Art.6(3) of the Habitats Directive , an appropriate assessment of the implications for the site concerned of the plan or project implies that, prior to its approval, all the aspects of the plan or project which can, by themselves or in combination with other plans or projects, affect the site's conservation objectives must be identified in the light of the best scientific knowledge in the field. The competent national authorities, taking account of the appropriate assessment of the implications of mechanical cockle fishing for the site concerned in the light of the site's conservation objectives, are to authorise such an activity only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects."
(ii) Mitigation measures and compensation measures
"… the application of the precautionary principle in the context of the implementation of article 6(3) of the Habitats Directive requires the competent national authority to assess the implications of the project for [the protected site] concerned in view of the site's conservation objectives and taking into account the protective measures forming part of that project aimed at avoiding or reducing any direct adverse effects for the site, in order to ensure that it does not adversely affect the integrity of the site".
"if the competent authority is satisfied at the screening stage that the proponents of a project have fully recognised, assessed and reported the effects [on a protected site], and have incorporated appropriate mitigation measures into the project, there is no reason why they should ignore such measures when deciding whether an appropriate assessment is necessary."
"it would have been 'ludicrous' for her to disaggregate the difference elements of the package and require an appropriate assessment on the basis that the residential component of the package, considered without the SANGs, would be likely, in combination with other residential proposals, to have a significant effect on the SPA, only for her to have to reassemble the package when carrying out the appropriate assessment."
"… I am satisfied that there is no legal requirement that a screening assessment under Regulation 48(1) must be carried out in the absence of any mitigation measures that form part of a plan or project. On the contrary, the competent authority is required to consider whether the project, as a whole, including such measures, if they are part of the project, is likely to have a significant effect on the SPA. If the competent authority does not agree with the proponent's view as to the likely efficacy of the proposed mitigation measures, or is left in some doubt as to their efficacy, then it will require an appropriate assessment because it will not have been able to exclude the risk of a significant effect on the basis of objective information (see Waddenzee above)."
(iii) Standard of review
(iv) Reliance on expert evidence
(v) Application of the strict precautionary approach in this case
(vi) Miscellaneous additional points under the Habitats Directive Ground
The Policy Ground
"The presumption in favour of sustainable development (paragraph 14 [of the NPPF]) does not apply where development requiring appropriate assessment under the Birds or Habitats Directives is being considered, planned or determined."
The CIL Grounds
The Reasons Ground
LORD JUSTICE KITCHIN:
LORD JUSTICE RICHARDS: