QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of STEPHEN AKESTER and MARC MELANAPHY (on behalf of the Lymington River Association)
|(1) DEPARTMENT FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS
(2) WIGHTLINK LIMITED
(1)LYMINGTON HARBOUR COMMISSIONERS
(3)NEW FOREST DISTRICT COUNCIL
Stephen Tromans QC & Colin Thomann (instructed by DEFRA Litigation & Prosecution Department) for the 1st Defendant.
Richard Drabble QC & Stephen Morgan (instructed by Bircham Dyson Bell LLP) for the 2nd Defendants.
Gregory Jones (instructed by Lester Aldridge LLP) for the 1st Interested Party.
Gordon Nardell (instructed by Grainne O'Rourke, Head of Legal and Democratic Services) for the 3rd Interested Party.
Hearing dates: 14th & 15th December 2009
Crown Copyright ©
Mr Justice Owen:
The Interlocutory proceedings
"ensure greater awareness of the Environmental and Safety impacts and Regulatory facts relating to the proposed new much bigger ferries".
DEFRA is the central government department responsible for ensuring that the UK's obligations under the Habitats Directive are fulfilled.
"5) The decision by Wightlink to introduce a new type of ferry into service on the Lymington to Yarmouth route, which passes through internationally designated nature conservation sites, is unlawful because:
a) It is in breach of the UK Habitats Regulations; the EC Habitats Directive and perverse.
b) In unilaterally introducing the ferries, despite the environmental concerns expressed by DEFRA, Natural England and the Lymington Harbour Commissioners, Wightlink has acted in breach of its statutory nature conservation duties.
c) Wightlink appears to have sought to evade proper compliance with the Habitats legislative regime by narrowing the scope of its initial project to exclude physical development associated with the introduction of the ferries.
6) The UK has failed to properly implement Article 6 (2) of the Habitats Directive. There appears to be no regulatory power available to prevent Wightlink from introducing the ferries despite the fact that the ferries are likely to have significant environmental effects on internationally designated nature conservation sites.
7) To the extent that the Court considers it has no choice but to interpret Regulations 48 and 49 of the Habitats Directive as only applying to plans or projects which require authorisation or consent, the UK has failed to properly implement Article 6 (3) of the Habitats Directive.
8) The UK has failed to properly implement Directive 85/337/EEC on ("the EIA Directive") in that the introduction of ferries weighing more than 1350 tonnes, which are considered likely to have significant environmental effects, escape the requirements of an environmental assessment because they do not constitute physical development or require regulatory consent. The Claimants rely on the direct effect of the Directives in seeking a declaration that the introduction of the ferries, in the absence of an environmental assessment, was unlawful."
" a. The Ferry Service is and was a 'plan or project'
b. The responsibility for deciding whether there should be an Appropriate Assessment and, in the light of that decision, was one for the relevant competent authority which, in the circumstances of this case, was DEFRA or a governmental body answerable to Defra and not for Wightlink
c. There was no such AA or anything which qualified as such before the new service commenced
d. As in February 2009 Wightlink acted unlawfully in commencing the new ferry service
e. As in February 2009 DEFRA/the UK Government had not effectively transposed the Habitats Directive into domestic law
f. The Defendants should pay the cost of the proceedings should any of those declarations be granted"
1. Was the proposal to introduce the W class ferries a plan or project within the meaning of the Habitats Directive? If so
2. Was there a competent authority within the meaning of the Habitats Directive? If so
3. Was there an appropriate assessment of the effect of the introduction of the W class ferries on the protected sites?
So far as DEFRA is concerned, the issue that the claimants seek permission to argue is whether the Habitats Directive was effectively transposed into domestic law as at 25 February 2009.
The Legal Framework
The Habitats Directive
"6.1 For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated with other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites.
6.2 Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats as well as disturbances 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.
6.3 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.
6.4 If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.
Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest."
"23. The Habitats Directive does not define the terms 'plan' and 'project'.
24. By contrast Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (PJ 1985 L 175, p40), the sixth recital in the preamble to which states that development consents for projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of these projects has been carried out, defines 'project' as follows in Article 1 (2)
'- the execution of construction works or other installations or schemes
- other interventions in the natural surroundings and landscape including those involving extraction of mineral resources'
25. An activity such as mechanical cockle fishing is within the concept of 'project' as defined in the second indent of Article 1 (2) of Directive 85/337.
26. Such a definition of 'project' is relevant to defining the concept of plan or project as provided for in the Habitats Directive, which, as is clear from the foregoing, seeks, as does Directive 85/337, to prevent activities which are likely to damage the environment from being authorised without prior assessment of the impact on the environment.
39. According to the first sentence of Article 6(3) of the Habitats Directive, any plan or project not directly connected with or necessary to the management of the site but which could 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 Article 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/E EC)' - 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
43. It follows that the first sentence of Article 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 Article 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 Article 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 Article 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.
53. Nevertheless according to the wording of that provision (Article 6(3)), 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.
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 effect 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 criteria laid down in the second sentence of Article 6(3) of the Habitats Directive integrates the precautionary principle ... and makes it possible effectively to prevent adverse effect on the integrity of protected sites as the result of the plans or project being considered. A less stringent authorisation criteria than that in question could not as effectively ensure the fulfilment of the objective of site protection intended under that provision."
1. The Habitats Directive must be interpreted and applied by reference to the precautionary principle, which reflects the high level of protection pursued by Community policy on the environment – see Waddenzee paras 44 and 58;
2. A competent national authority may only authorise a plan or project after having determined that it will not adversely affect the integrity of the protected site in question – Article 6(3) and Waddenzee paras 56 and 57;
3. Unless the risk of significant adverse effects on the site in question can be excluded by the competent authority on the basis of objective information, the plan or project must be the subject of an appropriate assessment of its implications for the site;
4. If, following an appropriate assessment, doubt remains as to whether or not there will be significant adverse effects on the integrity of the site, the competent authority must refuse authorisation of the plan or project, unless Article 6(4) applies.
5. If in spite of a negative assessment of the implications for the site, and in the absence of alternative solutions, a plan or project must be carried out for imperative reasons overriding public interest (including those of a social or economic nature), the competent national authorities must
"take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected",
and notify the Commission of such measures. (Article 6(4)).
The Habitats Regulations
"3(2) The Secretary of State and nature conservation bodies shall exercise their functions under the enactments relating to nature conservation so as to secure compliance with the Habitats Directive…
3(3) In relation to marine areas any competent marine authority having functions relevant to marine conservation shall exercise those functions so as to secure compliance with the requirements of the Habitats Directive…
3(4) Without prejudice to the preceding provisions, every competent authority in the exercise of any of their functions, shall have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of those functions."
Regulation 48 'Assessment of implications for European site' provides as
"1. A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which;
(a) is likely to have a significant effect on a European site in Great Britain (either alone or in combination with other plans or projects) and
(b) is not directly connected with or necessary to the management of the site;
shall make an appropriate assessment of the implications for the site in view of that site's conservation objectives
2. A person applying for any such consent, permission or other authorisation shall provide such information as the competent authority may reasonably require for the purposes of the assessment.
3. The competent authority shall for the purposes of the assessment consult the appropriate nature conservation body and have regard to any representations made by that body within such reasonable time as the authority may specify.
4. They shall also, if they consider it appropriate, take the opinion of the general public; and if they do so, they shall take such steps for that purpose as they consider appropriate
5. In the light of the conclusions of the assessment, and subject to Regulation 49, the authority shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site
6. In considering whether a plan or project will adversely affect the integrity of the site, the authority shall have regard to the manner in which it is proposed to be carried out or to any conditions or restrictions subject to which they propose that the consent, permission or other authorisation should be given."
"any Minister, government department, public or statutory undertaker, public body of any description or person holding public office. The expression also includes any person exercising any function of a competent authority in the United Kingdom."
Special Nature Conservation Orders
"22 (1) The Secretary of State may, after consultation with the appropriate nature conservation body, make in respect of any land within a European site an order (a "special nature conservation order") specifying operations which appear to him to be likely to destroy or damage the flora, fauna, or geological or physiographical features by reason of which the land is a European site.
(2) A special nature conservation order may be amended or revoked by a further order."
The Conservation (Natural Habitats) (Amendment) (No 2) Regulations amended regulation 22(1) with effect from 1 October 2009 so as to extend its application to a wider range of operations. In its amended form it provides (emphasis added):
"The Secretary of State may, after consultation with the appropriate nature conservation body, make in respect of any land within a European site an order (a "special nature conservation order") specifying operations (whether on land specified in that order or elsewhere and whether or not within the European site) which appear to the Secretary of State to be of a kind which, if carried out in certain circumstances or in a particular manner, would be likely to destroy or damage the flora, fauna, or geological or physiographical features by reason of which the land is a European site."
Regulation 23 was correspondingly amended to widen the provision for service of notices restricting the carrying out of operations, so as to include operations not carried out on land, and operations carried out outside a European site.
"development on operational land by statutory undertakers…in respect of dock, pier, harbour…undertakings, required…(b) in connection with the embarking, disembarking. Loading, discharging or transport of passengers".
"It shall be the duty of a harbour authority in formulating or considering any proposals relating to its functions under any enactment to have regard to –
(a) the conservation of the natural beauty of the countryside and of flora, fauna and geological or physiographical features of special interest:
and to take into account any effect which the proposals may have on the natural beauty of the countryside, flora, fauna or any such feature or facility."
The factual background
"This Order transfers the harbour undertaking at Lymington Pier from Sealink Harbours Limited to Wightlink Limited and provides that, on and after the day of transfer, the latter shall exercise jurisdiction as harbour authority and its piermaster may exercise his powers, within a small water area adjacent to the pier but subject to the overriding jurisdiction of the Lymington Harbour Commissioners and their harbour master."
"… to facilitate berthing of the new vessels which Wightlink have ordered for the Lymington/Yarmouth route.
The works consist of the replacement of fendering and modifications to the linkspan bridge within the main ferry berth and the installation of new fender piles to provide additional standby berthing for the new vessels.
The works constitute essential modifications to existing structures to enable the ferry service to be maintained and such is believed to be covered by Wightlink's permitted development rights."
"two Competent Authorities are currently in the process of producing a joint assessment which will primarily focus on the impact of the larger ferries on the nearby protected European sites."
The letter went on to assert that -
"We are not aware that the introduction of the larger ferries requires the approval of the MFA (Marine and Fisheries Agency), the local planning authority or, as we understand, any other competent authority. In our view therefore, the relevant provisions of the Habitats Directive and regulations are not engaged and an appropriate assessment is not required. Consequently we can see no grounds for taking action, for example by means of an injunction, to prevent the ferries from operating in advance of an assessment being completed. Furthermore, our view is that, for the purposes of operating a ferry service, Wightlink cannot be regarded as a Statutory Undertaker and thus responsible for carrying out an appropriate assessment before the new ferries are introduced.
Nevertheless, as I indicated in my recent statement in the House, Defra officials will explore with DfT and other regulators, including Natural England and the Harbour Commissioners, the implications of Wightlink's proposed actions. We will also consider very carefully any regulatory powers that exist and that might need to be exercised, in order to fulfil the UK's obligations under the Habitats Directive."
"I fully accept that ultimately it is for my Department to ensure compliance with the Habitats Directive and this is a responsibility we take very seriously. However, initially, it is for the MFA, New Forest District Council and the Harbour Commissioners to examine, and if necessary take action on, the advice from Natural England. Until then it would be inappropriate to speculate on what other measures might need to be taken to secure compliance with the Directive."
"seems to have disappeared" (Hansard 19 November 2008 column 336) and inviting him to "initiate a full environmental impact assessment".
"…it cannot be ascertained that the introduction of the W class ferries will not have an adverse effect on the Natura 2000 interest".
"Wightlink confirms that it will not start to operate the W-class ferries until it is satisfied that it has had due regard to the matters set out in paragraphs 2 and 3 above (namely that it and the Commissioners had identical duties with regard to the environment under section 48A of the Harbours Act 1964, and that they were both competent authorities for the purposes of the Habitats Regulations) and until it has provided evidence of its consideration of impact and mitigation to LHC".
"agreed by all parties that the W Class ferry will produce greater under-keel turbulence, backflow, return currents and thrust jet speeds".
This (per paragraph 4.6) "will result in an enhanced loss of mudflat at MLW" particularly at certain points in the river. As they erode (per paragraph 7), the "role of wind waves will become increasingly more important" and accelerate the process of erosion.
"Having considered all the evidence Natural England continues to advise that current evidence suggests that the 'C' class ferry has been a factor in the ongoing deterioration in the extent of mud flats and saltmarshes at Lymington. This deterioration is over and above background changes and the influences of ferries in upstream sections appears to dominate over natural influences. The introduction of the 'W class' ferries can be expected to prolong ferry-induced impacts on inter-tidal habitats and consequently further losses are likely to be attributable to ferry operations, even when mitigated by recent reductions in speed.
The ferry-related effects from the C class vessels since 1998 and the introduction of the W class vessels are estimated to be of the order of 0.4 ha loss of habitat per decade from the inter-tidal at Chart Datum and a detrimental habitat change affecting 1.3 ha per decade. These effects are predicted to continue, albeit at reducing rates, for tens of years.
During the period of ongoing effects of the ferry operation along the navigation channel, the wider designated site will continue to suffer rapid coastal squeeze habitat losses from vegetation die-back and outer wind-wave erosion of around 5-6 ha a year. These effects will substantially change the nature of the estuary over the next 40-100 years.
While habitat losses to the wider designated site are dominated by coastal squeeze rather than the ferries, it has nevertheless been shown that the previous effect of the C class ferry together with predicted effects of the W class ferry would have a further anthropogenic detrimental effect. Consequently it must be concluded that the conservation objectives for the Natura 2000 sites cannot be secured.
Natural England therefore advises that it cannot be ascertained that the introduction of the' W class' ferries will not have an adverse effect on the Natura 2000 interest."
"Once Wightlink has received ABPmer's final report in the light of Natural England's revised advice (version 3 12 February), it will decide whether the W-class ferries would adversely affect the integrity of the European sites concerned, and therefore, whether any mitigation in required. As we have said before, Wightlink will not introduce the W-class ferries unless and until it is satisfied that it would be lawful to do so."
"That assessment should be equivalent in form and scope to the appropriate assessment process that would otherwise have been required had the introduction of the ferries constituted a plan or project. As part of that process, Wightlink should consult Natural England and have regard to any representations it makes. Having done so, Wightlink should only decide to introduce new ferries if it has ascertained that the ferries will not adversely affect the integrity of the Natura 2000 site."
"4 Business of the Meeting
4.1 The Chairman reported that, further to the meeting held by the Board on 23 January 2009, the meeting had been convened to consider whether to introduce the W - class ferries into service on an interim basis pending the determination of the applications relating to the proposed shore works at Lymington Pier…
5 Environmental Obligations
5.1 The Chairman noted that the Company is a Harbour authority in respect of Lymington Pier and therefore has environmental duties under section 48 A of the Harbours Act 1964…
5.2 The Chairman noted that, whilst the ferry service is not operated pursuant to the Company's statutory functions, the proposals to operate the W - class ferries on an interim basis could be regarded as being related to its functions for the purposes of section 48A…
5.3 The Chairman noted that the Company is also a 'competent authority' for the purposes of the Conservation (Natural Habitats etc) Regulations 1994. Regulation 3 (4) of which requires that every competent authority in the exercise of any of their functions shall have regard to the requirements Habitats Directives have as they may be affected by the exercise of those functions…
6. Environmental Assessment
6.1 After due consideration of the legal advice note, IT WAS RESOLVED that the introduction of the W - class ferries did not constitute a plan or project for the purposes of the Regulations and, therefore, did not trigger the requirement for an appropriate assessment under regulation 48.
6.2 Notwithstanding this decision, IT WAS RESOLVED that the Company should have regard (to) the environmental assessment that had been carried out by ABPmer in an equivalent way to an appropriate assessment under regulation 48, and should agree to introduce the W - class ferries only if it is satisfied in the light of that assessment that they would have no adverse effect on the integrity of the designated sites.
6.3 IT WAS FURTHER RESOLVED that by carrying out a process that was equivalent to an appropriate assessment under regulation 48, the Company would have satisfied its environmental obligations under section 48 A of the Harbours Act 1964 and regulation 3(4) of the Conservation (Natural Habitats etc) Regulations 1994.
7 ABPmer Report
7.2 After due consideration of ABPmer's report, and having had regard to Natural England's advice, the Board assessed the impact of the new ferries. Having done so, IT WAS RESOLVED that the interim operation of the W class ferries would not have an adverse affect on the integrity of the inter--tidal mud and salt marsh which were either designated features, or supporting features for the SPA and Ramsar birds.
IT WAS FURTHER RESOLVED that there was no reason to believe that the interim operation of the W class ferries would give rise to any disturbance or damage that was significant in the context of the Habitats Directive to any natural habitats or wild fauna or flora.
9 Introduction of W Class Ferries
9.1 After due and careful consideration, IT WAS RESOLVED that the W class ferries should be introduced into service with effect from Wednesday 25 February 2009, pending the carrying out of the shore works at Lymington Pier."
"Consultation and various detailed studies on the operation and impact of the new ferries are either not complete or nearing completion including independent trials and environmental assessments. Following the extensive research and receipt of expert scientific advice, and in compliance with its statutory obligations, Wightlink is satisfied that the new ferries are safe to operate and have no discernible impact on the environment or the surrounding habitats in the Lymington estuary.
Wightlink acknowledges that concerns have been raised regarding the new ferries and their potential effect on the protected mud and salt marsh habitats at Lymington. Environmental consultants ABPmer have undertaken extensive studies of the effects of the ferries and have engaged in detailed discussions on environmental issues with Natural England, their consultants – HR Wallingford, Lymington Harbour Commissioners and their consultants, Black & Veatch.
All parties have recognised that an assessment of the past and likely future environmental effects of the ferries, both old and new, is unusually difficult. It is particular hard to isolate the effects of the ferries from the natural forces that have been and continue to act upon the mud and salt marshes. Despite this difficulty, all parties have gone to great lengths to try and reach an agreement as to the most reliable data regarding the historical rates and causes of erosion of the protected sites.
Natural England has advised Wightlink that it cannot be ascertained that the new ferries will not have an adverse effect on the protected sites. ABPmer disagrees with HR Wallingford's approach to the data and the conclusions that Natural England has drawn from it, suggesting that insufficient consideration has been given by HR Wallingford to the prospective causes of erosion, other than the ferries. On the basis of clear advice from ABPmer, Wightlink is confident that the new ferries will not have an adverse effect on the integrity of the mud and salt marshes in the Lymington estuary."
"Wightlink have defied the will of all the regulators in deciding to introduce their new ferries before the necessary safety trials are complete and the environmental concerns have been resolved.
They have taken this action despite repeated requests from the LHC and their previous undertaking not to do so. They claim that they are justified because of the needs of the Isle of Wight, but the real problem that has led to the situation is Wightlink's determination to design and build ferries in advance of meaningful consultations with all the regulators. As a result, all subsequent consultations have taken place against the commercial necessity on the part of Wightlink to introduce ferries that had already been paid for.
We have once again requested Wightlink to desist from this action, and are contacting all the relevant Government Departments for support in preventing it…"
"In our view this (Regulation 23(1) in its original form) means an order cannot be use to restrict or prohibit operations being carried out on water that are likely to damage a European site. Nor could the power be used to prohibit operations undertaken outside the European site, but which have a damaging effect on it. However, the Habitats Directive, which these regulations are designed to implement, does not restrict the obligation to prevent damage to sites to operations which take place on land, or within the sites themselves. We are therefore proposing minor changes to the Habitats Regulations to address these issues."
"Natural England and Wightlink are working together to agree mitigation measures which can be taken by Wightlink to avoid the impact which Natural England considers is likely to be caused to the protected sites by the operation of the W class ferries. Such agreement is not yet in place.
It is important to note that in so far as any agreement is reached, it will not be an agreement within the context of an Appropriate Assessment under the Habitats Regulations. Wightlink, as the competent authority, considers that there is no likely significant effect of the operation of the W class ferries and accordingly has not conducted an Appropriate Assessment. However, any agreement which is entered into will (subject to such consents as required being obtained) secure the execution of mitigation works which Natural England consider will avoid the impact which it considers are likely to be caused to the protected sites by the operation of the W class ferries. Furthermore, Natural England consider that the works which are likely to be the subject of any agreement could, if an Appropriate Assessment was ever required in the future, properly be categorised as 'mitigation' measures within the scope of Article 6.3 (as opposed to 'compensation' measures within the scope of Article 6.4).
"(a) whether any measurable harm or damage that would constitute an adverse effect on the integrity of the protected sites did occur in the period between 25 February and 31 October 2009; and
(b) whether any measurable harm or damage that would constitute an adverse effect on the integrity of the protected sites is likely to arise in the period between 25 February 2009 and the date when, in your current estimation, works to mitigate any adverse effect are likely to commence (which we understand will be in the spring of 2011)."
"…we anticipate that Wightlink's delivery of appropriate mitigation measures from the spring of 2011 onwards will avoid any adverse effect on the integrity of the protected sites that would otherwise be likely to occur due to cumulative ferry impacts over the longer term."
"… an appropriate assessment must be made of any plan or program likely to have a significant effect on the conservation objectives of a site which has been designated."
That is also reflected in the guidance given by the Commission in Managing Natura 2000 Sites at paragraph 4.3:
"In as much as Directive 92/43/EEC does not define 'plan' or 'project', due consideration must be given to general principles of interpretation, in particular the principle that an individual provision of Community law must be interpreted on the basis of its wording and of its purpose and the context in which it occurs".
"50. Mr Wolfe submitted that the adoption of tyres as a fuel fell within one or other of these paragraphs. The application was to burn 10 tonnes of tyres an hour, which indicated that the plant had a capacity exceeding 100 tonnes a day.
51. Like my noble and learned friend Lord Hope of Craighead, whose speech I have had the opportunity of reading in draft, I have very considerable doubt as to whether this can be right. The first indent of the definition of "project"- "the execution of construction works or of other installations or schemes"- appears to contemplate the creation of something new and not merely a change in the way existing works are operated. The German version — "die Errichtung von baulichen oder sonstigen Anlagen" — makes this even clearer. "Errichtung" means erection or construction and "Anlage" means an installation or plant. (The French version is "la réalisation de travaux de construction ou d'autres installations ou ouvrages".)
52. The second indent -"other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources"- clearly applies to activities, such as mining or quarrying, or dragging for cockles (Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Case C- 127/02)  ECR-7405 ) which alter or destroy the natural environment. But this concept cannot easily be applied to changing the fuel in an existing installation."
Was there a competent authority within the meaning of the Habitats Directive?
"It is for the competent authorities of a Member State to take, within their sphere of competence, all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are subject to an impact assessment".
The decision related to Directive 85/337 and the requirement for an environmental impact assessment, but as Mr Tromans submitted, it would appear to apply equally to appropriate assessments under the Habitats Directive.
Was there an appropriate assessment of the effects of the introduction of the W class ferries on the protected sites?
"52. As to the concept of "appropriate assessment" within the meaning of Art. 6(3) of the directive, it must be pointed out that the provision does not define any particular method for carrying out such an assessment.
Nonetheless, 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.
Such an assessment, therefore, implied 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…"
"Once Wightlink has received ABPmer's final report in the light of Natural England's revised advice, it will decide whether the W-class ferries would adversely affect the integrity of the European sides concerned and, therefore, whether any mitigation is required".
"…should have regard to the environmental assessment that had been carried out by ABPmer…and should agree to introduce the W-class ferries only if it is satisfied in the light of that assessment that they would have no adverse effect on the integrity of the designated sites."
Secondly the board resolved that
"… the interim operation of the W-class ferries would not have an adverse affect on the integrity of the inter-tidal mud and salt marsh which were either designated features, or supporting features for the SBA and Ramsar birds."
and that …
"there was no reason to believe that the interim operation of the W-class ferries would give rise to any disturbance or damage that was significant in the context of the Habitats Directive to any natural habitats or wild fauna or flora."
Thirdly the minutes record that the board had regard to Natural England's advice.
a. it arrives at a conclusion that is Wednesbury unreasonable,
b. its conclusion is based on a partial (in both senses of the word) assessment of the evidence,
c. the process is unfair in the sense that the decision maker has evidenced bias or a commercial incentive (a fortiori imperative) to reach a particular conclusion,
d. no adequate account is taken of conflicting views, whether they be offered by the Government's statutory nature conservation adviser (Natural England) or members of the general public,
e. there is no adequate consultation of the general public.
The defendants do not, and could not, take issue with those propositions. The question is whether, as the claimants contend, the exercise that Wightlink undertook was flawed in each or any of those respects.
"Natural England does not accept that the various reports produced by ABPmer on behalf of Wightlink amounts to an Appropriate Assessment because Natural England does not consider that the various reports produced by ABPmer properly assess the implications for the site of the project in view of the site's conservation objectives, and conclude no adverse effect also without proper reference to this site's conservation objectives.
ABPmer's final report from February 2009 sets out the site's conservation objectives at page 8 in section 3 within table 2. All of the conservation objectives there listed basically require no change to each of the features, 'subject to natural change'.
Natural England therefore considers that a proper and lawful Appropriate Assessment for this site should assess the anthropogenic implications of this project on the site. Such implications should be properly separated from any natural changes which might occur in the same period and assessed. The assessment of adverse effect should also be assessed in the light of the conservation objectives.
In this case, Natural England considers that this means that the decision about whether or not an adverse effect is caused should be taken without reference to the natural processes of the site (which are specifically referred to in the conservation objectives) i.e. does the project adversely affect the site notwithstanding that this is a dynamic natural site.
ABPmer themselves seem to accept this broad principle and state at page 47 in section 8.4 of their February 2009 report, 'The judgement about the effects of a project on site integrity needs to be taken in the light of the conservation objectives for the site'. However ABP then go on ... to conclude that:
i. "there is no evidence that the current 'C' class ferry operation is having an adverse effect in the context of natural changes"
ii. "based on the predicted changes that are expected from the new vessels it is the conclusion of this assessment that the new 'W' class ferries can be operated in a manner that ensures that they have no greater impact on the designated site compared to the existing 'C' class ferries."
ABPmer are therefore effectively concluding that the current 'C' class ferries cannot be said to have an adverse effect on the site in the context of natural changes, and that as the 'W' class ferries will (in their judgement) have no greater impact than the' C' class ferries, no adverse effect can be said to be occurring.
In Natural England's view this approach is unlawful as it disregards the site's conservation objectives which require no change to the site "subject to natural change". Essentially, the objective is for the site to be allowed to evolve naturally, but to avoid acceleration or changes to that evolution as a result of man's interventions. By ignoring this aspect of the site's conservation objectives, and assessing the impact on the site in light of the ongoing natural change (essentially arguing that compared to the natural change the ferries impact will not be noticeable) ABPmer on behalf of Wightlink have been able to conclude that there are no adverse effects."
Whilst Natural England's views are not determinative of the issues between the parties, they assist as to the nature and extent of the differences of opinion between Natural England and Wightlink's experts.
"If the court is minded to conclude, notwithstanding the views of Natural England, that the assessment undertaken by ABPmer on behalf of Wightlink amounts to an Appropriate Assessment in law, Natural England would like the court to be aware that it maintains its view that the Assessment does not reach a scientifically sound conclusion on the question whether the operation of the ferries will have an adverse effect on the European Site… Natural England's view has not changed following publication of ABPmer's final report, or following consideration of the evidence submitted by ABPmer in this case "
"In the first place, an assessment should be recorded. A corollary of the argument that the assessment should be recorded is the argument that it should be reasoned. Article 6 (3) and (4) requires decision-makers to take decisions in the light of particular information relating to the environment. If the record of the assessment does not disclose the reasoned basis for subsequent decision (i.e. if the record is a simple unreasoned positive or negative view of a plan or project), the assessment does not fulfil its purpose and cannot be considered 'appropriate'." (paragraph 4.5.1)
"4.6.2 When is it appropriate to obtain the opinion of the general public?
Directive 92/43/EEC does not indicate when it is appropriate to obtain the opinion of the general public. However, consultation of the public is an essential feature of Directive 85/337/EEC. Clearly therefore, where the assessment required by Article 6(3) takes the form of an assessment and the Directive 85/337/EEC, public consultation is necessary.
In this context, it is worth mentioning the possible longer-term implications of the Aarhus Convention which emphasises the importance of public consultation in relation to environmental decision-making."
The transposition of the Habitats Directive into domestic law
"Defra is considering making amendments to regulations 22 -- 27 and Schedule 1 of the Habitats Regulations (special nature conservation orders -- SNCO) to make clear that these provisions can be used to restrict operations taking place on water as well as on land, in order to protect European sites…"
The consultation exercise was followed by a letter dated 14 September 2009 from DEFRA to consultees containing the following paragraphs –
"Powers to make special nature conservation orders have existed in legislation for many years. While it is accepted that extended powers to cover operations on water, and operations taking place outside the protected site, have the potential to be significant, (and it is impossible to forecast the future with any certainty), there is no evidence to suggest that the extended powers will result in large numbers of new SNCOs or the introduction of significant new controls. SNCO powers are ones of last resort, and as a result are used infrequently…
On the other hand, a decision not to bolster the transposition of Articles 6(2) and 6(3) of the Habitats Directive, which requires us to take appropriate steps to avoid, inter alia, the deterioration of natural habitats in protected areas, would make it very difficult for us to argue that we have fully and properly transposed the obligations arising under these Articles. This could have very serious implications in the future."
1. the decision taken by Wightlink to introduce the W class ferries on 25 February 2009 was unlawful, being in breach of its duties as competent authority under Article 6(3) of the Habitats Directive and the Habitats Regulations,
2. the Habitats Directive was not fully and properly transposed into domestic law by the Habitats Regulations in its original form.