Council Directive 92/43/EEC on the Conservation of Natural Habitats And

LAND USE CONTROL MEASURES UNDER THE HABITATS DIRECTIVE

THE APPLICATION OF ARTICLES 6(3) AND 6(4) IN IRELAND

INTRODUCTION

Council Directive 92/43/EEC on the conservation of natural habitats and wild fauna and flora (the Habitats Directive) is transposed into Irish law by the European Communities (Natural Habitats) Regulations 1997-2005 (the Habitats Regulations). The Habitats Directive seeks to protect wildlife in two ways. First, there are traditional direct species-protection measures. Second, and more significantly, there is a system of site designation and restrictions on land use that impacts on those designated sites. This is a more effective – and therefore more controversial – means of protecting wildlife. The Directive establishes a network of sites across European known as Natura 2000. This consists of sites designated under the Habitats Directive and of sites classified under Directive 79/409/EEC on the conservation of wild birds (the Birds Directive).

The focus of this paper is the establishment of Natura 2000 and the range of land use controls that apply in respect of Natura 2000 sites. However, readers should be aware of the direct species protection measures contained in Articles 12-16.

THE ESTABLISHMENT OF NATURA 2000

Site Classification under the Birds Directive

Article 4(1) of the Birds Directive simply imposes an obligation on Member States to classify in particular the most suitable territories in number and size as special protection areas (SPAs) for the conservation of the birds species covered by the Annex I of the Directive. Article 4(4) of the Birds Directive requires Member States to take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of the Article. In Case C-355/90 Commission v Spain, the European Court of Justice held that Spain had breached its obligations under Article 4 of the Directive to classify the Marismas de Santona as a special protection area. The Court also held that certain land uses of the marshes (the construction of a road and certain industrial uses)

1 breached the Directive, notwithstanding that the Member State had not actually classified the site. This implies that classifications under the Birds Directive may have some level of direct effect in a Member State: even absent the formal act of classification, the land use restriction controls in the Directive were held to apply to the site that ought to have been classified. Socioeconomic reasons for the construction of the road were not allowed to justify the impact on the marsh.

Site designation under the Habitats Directive

The site classification process for birds remains in place, although the land use control measures have been replaced by the Habitats Directive. Accordingly, the Marismas de Santona case remains of some importance in its own context. However, it is also useful in highlighting a number of particular, contrasting features of the Habitats Directive. The Habitats Directive provides a more collaborative site designation process that involves both the Commission and the Member States. Annex I of the Directive lists a number of natural habitat types found in the Community. Annex II of the Directive lists a number of species types found in the Community. Priority natural habitat types and priority species are marked with an asterisk in the Annexes. A priority natural habitat type is one which is in danger of disappearance and for the conservation of which the Community has a special responsibility by reason of the proportion of the habitat’s natural range that falls within the Community. A priority species is one for the conservation of which the Community has a special responsibility by reason of the proportion of the species’ natural range that falls within the Community. Article 3 of the Directive requires that a coherent European ecological network of special areas of conservation shall be set up, in accordance with the process laid down in Article 4. This network – known as Natura 2000 – shall include the sites classified under the Birds Directive.

Article 4(1) of the Directive requires Member States to propose a list of sites to the Commission on the basis of the scientific criteria laid out in Annex III of the Directive. This was meant to happen by 1994. Article 4(2) of the Directive requires the Commission, having consulted with the Member States, to adopt a list of sites of Community importance (SCIs). This was meant to happen by 1998. As soon as possible and at most within six years of the adoption of a site as an SCI, the Member States is required to designate that site as a special area of conservation (SAC). Article 5 of the Directive requires that, where the Commission considers that a site hosting a priority natural habitat type or species which it considers to be essential for the maintenance of the habitat type or survival of the species has not been submitted by the Member State, the

2 Commission can institute a bilateral consultation process with the Member State. Any dispute is ultimately resolved by a decision of the Council of Minister, acting unanimously.

Site Designation under the Habitats Regulations

The Habitats Directive is silent as to what occurs in the Member State prior to the notification of the list to the Commission. Regulations 3-6 of the Habitats Regulations envisage a process whereby the Minister for the Environment identifies a list of potential sites to transmit to the Commission. This list is notified to relevant landowners, insofar as it is possible to identify them, and there is then a consultation process. The Minister shall consider objections received and make a final decision on which sites to transmit to the Commission, thereby complying with Ireland’s obligation under Article 4(1) of the Habitats Directive. The Directive requires that all decisions in this regard be made on a purely scientific basis (the criteria in Annex III), but it is questionable whether the statutory and extra-statutory processes that have been operated in this regard are sufficient to ensure this.[1]

From this overview, it is clear that the Directive explicitly envisages four types of site: SCIs, SACs, SPAs and Article 5 sites. The Habitats Regulations envisage two other types of site: sites notified by the Minister to landowners for consultations; sites notified by the Minister to the Commission prior to their adoption as sites of Community importance. There are therefore six types of site relevant to the Natura 2000 process, depending on their place in the designation process and the instrument under which they are being designated (Birds Directive or Habitats Directive). To confuse matters somewhat, regulation 2 of the Habitats Regulations, as amended by section 75 of the Wildlife (Amendment) Act 2000 gives an umbrella term “European site” to five of these sites:

‘European site' means—

(a) a site—

(i) notified for the purposes of Regulation 4, subject to any amendments made to it by virtue of Regulation 5, or

(ii) transmitted to the Commission in accordance with Regulation 5(4), or

(iii) added by virtue of Regulation 6 to the list transmitted to the Commission in accordance with Regulation 5(4),

3 but only until the adoption in respect of the site of a decision by the Commission under Article 21 of the Habitats Directive for the purposes of the third paragraph of Article 4(2) of that Directive,

(b) a site adopted by the Commission as a site of community importance for the purposes of Article 4(2) of the Habitats Directive in accordance with the procedure laid down in Article 21 of that Directive,

(d) an area classified pursuant to paragraph (1) or (2) of Article 4 of the Birds Directive;

This definition is also adopted in the Planning and Development Act 2000. It is noteworthy that Article 5 sites are not included within this definition. To confuse matters still further, a practice has developed in Ireland of using neither the statutory definitions in the Habitats Regulations nor the statutory definitions in the Directive, but instead preferring a set of non-statutory appellations. Under this rubric, sites notified to landowners are referred to as proposed candidate SACs (pcSACs). sites notified to the Commission and sites adopted as SCIs are referred to as candidate SACs (cSACs). SACs are called SACs. SPAs are called SPAs. Article 5 sites are not considered.

Finally, there are two other types of site. Sites that ought to have been classified as SPAs but have been officially ignored (as in Marismas de Santona) and sites that ought to have been designated as SACs but have been officially ignored by both the Member State and the Commission.

The table at Appendix A sets out the appellations used at different stages of the process.

LAND-USE CONTROL MEASURES

Introduction

Article 6 of the Habitats Directive is in the following terms:

Article 6

1. For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically

4 designed for the sites or integrated into 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.

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.

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.

Article 6 is the central provision of the land use control scheme established by the Habitats Directive. It has its own logic, but is complicated – partly by reason of the way in which it is cross-referenced in other provisions of the Directive. In this section, I shall outline the main features of Article 6. I shall then address three areas in greater detail: (a) the different sites to which Article 6 applies; (b) the detailed consideration given by the European Court of Justice

5 and other courts to the meaning of the constituent terms in Articles 6(3) and 6(4); (c) the manner in which the requirements of Articles 6(3) and (4) have been transposed in Ireland, highlighting any difficulties of transposition that arise.

The internal logic of Article 6 is as follows. Article 6(1) imposes a positive obligation to manage SACs. The obligation on the Member State is to establish the necessary conservation measures which must include both (a) appropriate management plans (either specifically designed for the sites or integrated into other sites) and (b) appropriate statutory, administrative or contractual measures. There is no obligation on the Member State to establish statutory, administrative and contractual measures, although it is open to a Member State to do so. Article 6(1) is in this way rather vague: it outlines a number of options open to Member States but provides little detail on any of them.[2]

Article 6(2) imposes a general obligation on Member States to avoid the deterioration of habitats and serious disturbance of species. This obligation is similar to that contained in Article 4(4) of the Bird Directive, considered above. It may therefore be open to a similar interpretation to that adopted in the Marismas de Santona case.

Articles 6(3) and 6(4) establish a prior authorisation process for plans and projects. In essence, a number of steps must be taken before a plan or project can be authorised. Where a plan or project not covered by a management agreement is likely to have a significant effect on a site, it must be subject to an “appropriate assessment” of its implications for the site in view of the site’s conservation objectives. Thus “likely significant effect” is the trigger for appropriate assessment. It is important that this trigger is activated not by assessing the likely impact of the plan or project in isolation, but rather its impact in conjunction with all other plans or projects. The competent national authorities must take account of the conclusions of the assessment when deciding whether to agree to the plan or project. However, crucially the conclusions of the appropriate assessment constitute a fetter on the jurisdiction of the competent authority to authorise the plan or project. The plan or project can only be authorised under Article 6(3) where the competent authority ascertains that it will not adversely affect the integrity of the site concerned. If the plan or project does not pass this threshold (which is considered in detail below), the competent authority can only authorise the plan or project if (a) there is no alternative solution and (b) the plan or project must nevertheless be carried out for imperative reasons of overriding public interest. In those circumstances, the Member State must adopt compensatory measures to ensure that the overall coherence of Natura 2000 is protected. What constitutes an imperative reason of overriding public interest varies depending on whether the site concerns hosts a priority natural habitat type or species. If the site concerned does host a

6 priority natural habitat type or specie, the only considerations which may be raised are those relating to human health or public safety or to beneficial consequences of primary importance for the environment. Other imperative reasons of overriding public interest can only be relied on further to an opinion from the Commission. It is unclear from the text of the Directive whether this grants the Commission a right of veto or merely a right of consultation.

The Sites to which Article 6 Applies

On its terms, Article 6 applies only to SACs. However, Article 4(5) provides that as soon as a site is adopted as an SCI by the Commission, it is subject to Articles 6(2), 6(3) and 6(4). Also, Article 7 of the Habitats Directive provides that Articles 6(2), 6(3) and 6(4) replace the obligations under Article 4(4) of the Birds Directive in relation to SPAs. Accordingly, SPAs are now classified under the Birds Directive but protected under the Habitats Directive.[3] Article 5(4) of the Habitats Directive provides that Article 5 sites are subject to the protections of Article 6(2).

The Directive does not explicitly address the status of at least three types of site that could be said to be implicitly envisaged by the Directive: sites that ought to be protected but have never been considered for notification; sites that are in the process of consideration for notification; sites that have been notified to the Commission but not yet adopted as SCIs. In Case C-177/03 Società Italiana Dragaggi, the European Court of Justice considered the third of these scenarios. It rejected a suggestion that Articles 6(2)-(4) applied to sites submitted to the Commission for adoption as SCIs, but held that in any event Member States were obliged to protect such sites:

27 If those sites are not appropriately protected from that moment, achievement of the objectives seeking the conservation of natural habitats and wild fauna and flora, as set out in particular in the sixth recital in the preamble to the Directive and Article 3(1) thereof, could well be jeopardised. Such a situation would be particularly serious as priority natural habitat types or priority species would be affected, for which, because of the threats to them, early implementation of conservation measures would be appropriate, as recommended in the fifth recital in the preamble to the Directive.…

29 It is apparent, therefore, that in the case of sites eligible for identification as sites of Community importance that are mentioned on the national lists transmitted to the Commission and may include in particular sites hosting priority natural habitat types or priority species, the Member States are, by virtue of the Directive, required to take protective measures appropriate for the purpose of safeguarding that ecological interest.

7 The logic of this position suggests that Member States may also be under an obligation to protect sites which it is considering submitting to the Commission or which it ought to have submitted but has – for some reason – neglected to do so. However, given the collaborative nature of the site designation process and the availability of the Article 5 procedure for particularly important sites, it is possible that the European Court of Justice might not carry over the logic of Dragaggi to sites that have not been submitted to the Commission.

In Case C-244/05 Bund Naturschutz in Bayern, the European Court of Justice noted that all sites hosting a priority natural habitat type or species must, by reason of Annex III of the Directive, be adopted by the Commission as SCIs. Bearing this in mind, the Court elaborated on the obligation identified in Dragaggi to “take protective measures appropriate for the purpose of safeguarding that ecological interest”. The Court held as follows:

46 Member States cannot therefore authorise interventions which may pose the risk of seriously compromising the ecological characteristics of a site, as defined by those criteria. This is particularly the case when an intervention poses the risk either of significantly reducing the area of a site, or of leading to the disappearance of priority species present on the site, or, finally, of having as an outcome the destruction of the site or the destruction of its representative characteristics.…

49 As regards the implementation of the protection scheme applicable to the sites concerned, it is for the Member States to take all the measures which are necessary.

50 In that regard, the detailed procedural rules applicable fall within the ambit of the domestic legal order of each Member State, provided that such rules are not less favourable than those governing similar domestic situations of an internal nature and do not render impossible in practice or excessively difficult the exercise of rights conferred by Community law.…

It therefore follows that, even though the detailed prior authorization regime envisaged by Article 6(3) and 6(4) does not apply to sites prior to their adoption as SCIs, Member States cannot (at least in respect of sites hosting priority natural habitat types or species) authorize interventions in sites notified to the Commission which pose the risk either of (a) significantly reducing the area of a site, or of (b) leading to the disappearance of priority species present on the site, or of (c) having as an outcome the destruction of the site or (d) the destruction of its representative characteristics. Although the threshold for approval here is less stringent than that established by Article 6(3) and 6(4) of the Directive, it does appear to require some form of assessment that could scarcely differ too greatly from the “appropriate assessment” required by

8 Article 6(3). Moreover, there does not appear to be any facility to authorize interventions for imperative reasons of overriding public importance. This is probably warranted by the fact that the protection established by Dragaggi and Bund Naturschutz is a holding measure established pending the adoption of the site as an SCI. Once it is adopted or not adopted, the more sophisticated site protection criteria can be applied or not, as the case may be.[4]

Therefore, as a matter of Community law, sites notified to the Commission but not yet adopted as SCIs are not subject to Articles 6(2), (3) and (4) but are nevertheless subject to some restriction on prior authorizations. This discussion is largely, but not entirely, academic from the Irish perspective, however. This is because the Habitats Regulations attach the label “European site” to the sites covered by the Dragaggi and Bund Naturschutz decisions and subject all European sites to most of the land use control and prior authorization provisions in the Regulations. In effect, Ireland has provided the protections of Articles 6(3) and 6(4) to sites that do not require that level of protection under the Directive, thereby more than satisfying the principle laid down by the European Court in Dragaggi and Bund Naturschutz. This is subject to one exception, which is noted here for the sake of completeness. The obligation to apply to the Minister for consent to carry out an operation or activity, under regulations 14-16, only applies with respect to candidate list sites, national list sites, SACs and SPAs. There is no obligation to apply for consent to carry out an operation or activity on an SCI. As all Habitats Directive sites (as distinct from Birds Directive sites, ie SPAs) in the country are now SCIs, this is currently a very significant lacuna. Although the Minister can apply to court to prohibit an operation or activity in an SCI, it is impractical for the Minister to have to resort to that power in relation to all the Habitats Directive sites in the country. That, however, appears to be the current position.

Detailed Consideration of the Terms in Articles 6(3) and 6(4)

Plan or project

The trigger for an appropriate assessment is that a plan or project, whether individually or in combination with other plans or projects, is likely to have a significant effect on a site. The first question that arises, therefore, is what constitutes a plan or project. The meaning of this phrase was considered by the European Court of Justice in Case C-127/02 Waddensee. The Court noted that the term was not defined by the Directive but gave the word “project” the same meaning as that word has under Directive 85/337/EEC (the EIA Directive):

– the execution of construction works or of other installations or

9 schemes,

– other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources.

On that basis, the Court held that mechanical cockle fishing constituted a project for the purposes of the Habitats Directive.[5] It did not need to consider the meaning of the word “plan”, but there is some basis for giving “plan” the same meaning as it carries under Directive 2001/42/EC (the SEA Directive), although that Directive also does not offer a definition. In Case C-6/04, the European Court of Justice held that land use development plans constituted plans for the purposes of Habitats Directive. The United Kingdom had argued that, as development plans could not authorise any activity to take place, they were incapable of having an impact on the site and therefore did not require to be assessed. The Court rejected this contention:

55 As the Commission has rightly pointed out, section 54A of the Town and Country Planning Act 1990, which requires applications for planning permission to be determined in the light of the relevant land use plans, necessarily means that those plans may have considerable influence on development decisions and, as a result, on the sites concerned.

56 It thus follows from the foregoing that, as a result of the failure to make land use plans subject to appropriate assessment of their implications for SACs, Article 6(3) and (4) of the Habitats Directive has not been transposed sufficiently clearly and precisely into United Kingdom law and, therefore, the action brought by the Commission must be held well founded in this regard.

The Court’s reasoning appears to require that any plans which set the framework for future authorization decisions in respect of projects must be open to the possibility of appropriate assessment. This would bring the Habitats Directive’s definition of “plan or project” in line with the two more general Directives on the environment, the EIA Directive and the SEA Directive.

Trigger for an appropriate assessment

An appropriate assessment is required where a plan or project, either individually or in combination with other plans or projects, is likely to have a significant effect on a site. In Waddensee, the Court of Justice also considered the meaning of this phrase:

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

10 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 (see, by analogy, inter alia Case C-180/96 United Kingdom v Commission [1998] ECR I-2265, paragraphs 50, 105 and 107). 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.

It is therefore apparent that there is a relatively low threshold for the carrying out of an appropriate assessment. Given the precautionary principle, an appropriate assessment must be carried out where it cannot be excluded that there might be a significant effect on the site. The Court then emphasized that the touchstone for whether a significant effect was likely was the conservation objectives of the site. The conservation objectives of a site are those measures that are necessary to ensure that the conservation status of the natural habitat or species remains favourable. The Court explicitly held at [47] that where 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.

In Boggis v Natural England [2009] EWCA Civ 1061, the Applicant challenged a decision to designate an area as a Site of Special Scientific Interest on the grounds that it should have been subjected to an appropriate assessment under Article 6(3) as it was a plan or project which was likely to have a significant effect on an SPA (by potentially preventing the replenishment of sacrificial sea defences). The Court of Appeal rejected this argument and, in considering the phrase “likely to have a significant effect” held as follows:

In my judgement, a breach of Article 6.3 is not established merely because, some time after the "plan or project" has been authorised, a third party alleges that there was a risk that it would have a significant effect on the site which should have been considered,

11 and since that risk was not considered at all it cannot have been "excluded on the basis of objective information that the plan or project will have significant effects on the site concerned". Whether a breach of Article 6.3 is alleged in infraction proceedings before the ECJ by the European Commission (see Commission of the European Communities v Italian Republic Case C-179/06, para. 39), or in domestic proceedings before the courts in member states, a claimant who alleges that there was a risk which should have been considered by the authorising authority so that it could decide whether that risk could be "excluded on the basis of objective information", must produce credible evidence that there was a real, rather than a hypothetical, risk which should have been considered.

It is important to note that the trigger for an appropriate assessment does not turn on the project (let alone the plan) occurring within the site in question. The trigger is whether it is likely to have a significant effect on the site in question. This was recognised by the Court of Justice in Case C-98/03 in which the Court considered German legislation (in the context of emissions from industrial installations) which limited the need for an appropriate assessment to impacts likely to occur in a pre-established geographic area:

50 In that connection, it must be held that the system established by German law, so far as it covers emissions within an area of impact, as defined in technical circulars in accordance with general criteria on installations, do not appear to be capable of ensuring compliance with Article 6(3) and (4) of the Directive.

51 In the absence of established scientific criteria, which have not been mentioned by the German Government, which would a priori rule out emissions affecting a protected site situated outside the area of impact of the installation concerned having a significant effect on that site, the system put in place by national law in the field in question is not, in any event, capable of ensuring that the projects or plans relating to installations causing emissions which affect protected sites situated outside their area of impact do not adversely affect the integrity of those sites, within the meaning of Article 6(3) of the Directive.

This judgment did not entirely rule out the provision of spatial limitations on the triggers for an appropriate assessment, implicitly suggesting that it might be permissible if it could be scientifically established in advance that there could never be an adverse impact outside a certain area. However, it is probably unlikely that such a degree of certainty could be achieved in advance.

What constitutes an appropriate assessment

12 The Directive does not define “appropriate assessment”. In Waddensee, the Court of Justice gave the following interpretation:

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 Articles 3 and 4 of the Habitats Directive, in particular Article 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.

In Case C-418/04 Commission v Ireland, Ireland claimed that its transposition of the EIA Directive and the SEA Directive amounted to an adequate transposition of the obligation in Article 6(3) of the Directive to ensure that plans are subject to an appropriate assessment. The Court rejected this contention:

231 Those two directives contain provisions relating to the deliberation procedure, without binding the Member States as to the decision, and relate to only certain projects and plans. By contrast, under the second sentence of Article 6(3) of the Habitats Directive, a plan or project can be authorised only after the national authorities have ascertained that it will not adversely affect the integrity of the site. Accordingly, assessments carried out pursuant to Directive 85/337 or Directive 2001/42 cannot replace the procedure provided for in Article 6(3) and (4) of the Habitats Directive.

This is clearly correct. Articles 6(3) and 6(4) impose substantive restrictions on what projects and plans may be authorised. The EIA and SEA processes merely provide a mechanism for assessing the impacts of projects and plans without imposing fetters. Accordingly, transposition and application of the EIA and SEA Directives does not, of itself, secure compliance with the requirements of Articles 6(3) and 6(4). However, this is not to say that the assessment required by the EIA and SEA Directive cannot constitute an “appropriate assessment” for the purposes of Article 6(3). The issue in Commission v Ireland was the consequences of the assessment.

The Habitats Regulations in the context of projects provide that an EIA is an appropriate assessment. Garrett Simons identifies this as a “potential deficiency in the transposition of this aspect of the Directive.”[6] Simons states that the judgment of the ECJ in Commission v Ireland at [231] highlighted the distinction between the objectives of the two forms of assessment. This

13 does not appear to be correct. At the very least, there is no reason why the different objectives of the two Directives should mean that different types of assessment must be employed. Still less is there any transposition difficulty with the Habitats Regulations in this regard. The Court’s judgment highlighted the difference between the assessment under the EIA and SEA Directives, on the one hand, and the whole procedure under Articles 6(3) and 6(4) of the Habitats Directive, on the other hand. The EIA and SEA procedures are purely about screening and assessment; the Habitats procedure is about screening, assessment and authorisation according to certain criteria. Notwithstanding the views of Simons, therefore, there is no objection in principle to the integration of the assessment conducted for EIA or SEA purposes with that conducted for habitats purposes, provided (a) that the authorisation criteria of Articles 6(3) and 6(4) are subsequently addressed and (b) that the appropriate assessment of the habitats implications is sufficient to address all the issues identified by the Court of Justice at [54] of Waddensee.

Indeed, in its guidance document Managing Natura 2000 Sites (2000), the European Commission at [4.5] specifically envisages that an assessment for the purposes of Article 6(3) may take the form of an assessment for the purposes of the EIA Directive. Where this approach is not taken, however, the Commission recommends that the assessment should be recorded and reasoned. In its guidance document Assessment of plans and projects significantly affecting Natura 2000 sites: Methodological guidance, the Commission at [3.2.1] notes that the competent authority may need to commission its own reports to ensure that the final assessment is as comprehensive and objective as possible. In this document, the Commission also notes that where an appropriate assessment is integrated into an EIA, it should be clearly distinguishable and identified. In passing, it is worth noting that article 103(2) of the Planning and Development Regulations 2001 provides that where a planning application for sub-threshold development is not accompanied by an EIS and the development would be located on or in a European site, the planning authority must decide whether the development would be likely to have significant effects on the environment of such site. In those circumstances, the planning authority must require an EIS. This does not address the situation of off-site impacts but it does mean that there will, in practice, be a large degree of overlap (at least in the context of the planning code) between projects requiring EIA and projects requiring appropriate assessment. It therefore remains appropriate to integrate the two as closely possible, subject to the caveats above.

Adverse effect on the integrity of the site

This is the trigger to move from the Article 6(3) stage of the process to the Article 6(4) stage of the process. The competent authority can only agree to the plan or project under Article 6(3) if it is satisfied that it does not adversely affect the integrity of the site. This appears to be the

14 equivalent of the phrase at the start of Article 6(4) – “a negative assessment of the implications for the site.” The meaning of the “adverse effect” phrase was again considered by the Court of Justice in Waddensee in a passage that requires to be set out at length:

55 As regards the conditions under which an activity such as mechanical cockle fishing may be authorised, given Article 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 Article 6(3) of the Habitats Directive integrates the precautionary principle (see Case C-157/96 National Farmers’ Union and Others [1998] ECR I-2211, paragraph 63) 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 Article 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 (see, by analogy, Case C-236/01 Monsanto Agricoltura Italia and Others [2003] ECR I-0000, paragraphs 106 and 113).

60 Otherwise, mechanical cockle fishing could, where appropriate, be authorised under Article 6(4) of the Habitats Directive, provided that the conditions set out therein are satisfied.

15 61 In view of the foregoing, the answer to the fourth question must be that, under Article 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.

This sets a very high threshold for the authorization of plans or projects under Article 6(3) of the Directive. A plan or project can only be authorized in this way by a competent authority if it has made certain that it will not adversely affect the integrity of the site. This is the case only where no reasonable scientific doubt remains as to the absence of such effects.

The Court applied this test in Case C-239/04 Commission v Portugal:

21 In the present case, the environmental impact study mentions the presence, in the Castro Verde SPA, of 17 species of bird listed in Annex I to Directive 79/409 and the high sensitivity of certain of them to the disturbance and/or the fragmentation of their habitat resulting from the planned route of the section of the A 2 motorway between the settlements of Aljustrel and Castro Verde.

22 It is also apparent from that study that the project in question has a ‘significantly high’ overall impact and a ‘high negative impact’ on the avifauna present in the Castro Verde SPA.

23 The inevitable conclusion is that, when authorising the planned route of the A 2 motorway, the Portuguese authorities were not entitled to take the view that it would have no adverse effects on the SPA’s integrity.

24 The fact that, after its completion, the project may not have produced such effects is immaterial to that assessment. It is at the time of adoption of the decision authorising implementation of the project that there must be no reasonable scientific doubt remaining as to the absence of adverse effects on the integrity of the site in question (see, to that effect, Case C-209/02 Commission v Austria [2004] ECR I-1211, paragraphs

16 26 and 27, and Waddenvereniging and Vogelbeschermingsvereniging, paragraphs 56 and 59).

25 In those circumstances, the Portuguese authorities had the choice of either refusing authorisation for the project or of authorising it under Article 6(4) of the Habitats Directive, provided that the conditions laid down therein were satisfied (see, to that effect, Waddenvereniging and Vogelbeschermingsvereniging, paragraphs 57 and 60).

It is clear from these dicta that the threshold for moving from Article 6(3) to Article 6(4) is low. Put another way, there must be a high degree of certainty before a competent authority can authorize a plan or project under Article 6(3). What is less clear is the attitude that a court should take once a competent authority has decided to authorize a plan or project under Article 6(3). Should any deference be paid to the decision of the competent authority? If so, how much deference should be paid? In Power v An Bord Pleanála [2006] IEHC 454, Quirke J indicated that the Court should be slow to second-guess the decision of the competent authority on such an issue:

Mr. Collins S.C. has argued eloquently that the decision of the Board is invalid because it has been made in violation of the provisions of Article 6 of the Habitats Directive and Regulation 28 of the Habitats Regulations.

However it seems to me that his argument in relation to alleged breaches of the Habitats Directive is based upon the contention that the evidence and material before the Board did not support the Board’s decision.

The fundamental ground relied upon in support of the argument that the applicant should be granted leave to seek to quash the decision is, in fact, based upon that contention.The courts will not intervene by way of judicial review to quash decisions of administrative tribunals (such as the Board) in the absence of evidence of illegality. The function of the court in an application for judicial review is limited to determining whether or not an impugned decision was legal, not whether or not it was correct.

It is decidedly not a function of this court to substitute itself for the Board for the purpose of determining whether it believes that the decision made was the correct one. This court has neither the jurisdiction nor the competence to undertake such an exercise. In the “Notes” attached to its Direction dated 1st December, 2004, the Board specifically noted the Inspector’s concern “…that the development as originally proposed (a) would be likely to have significant adverse effects on the environment, particularly on the

17 aquatic environment of the River Lickey proposed cSAC…”. The grant of approval was made subject to specific conditions intended to eliminate such effects.

It is not contended that the decision of the Board was unreasonable or irrational in the sense outlined by the Supreme Court in “The State (Keegan and Lysaght) v. The Stardust Victims Compensation Tribunal [1986] I.R. 642 and O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39. On the evidence such a contention could not have been sustained.

Absence of alternatives

The public interest reasons in Article 6(4) only come into play if there is an absence of alternative solutions. In 2007, the European Commission published a guidance document on Article 6(4) of the Directive. At [1.3.1], the Commission makes it clear that it considers that Member States must consider the “do-nothing” alternative, ie that Member States must justify the need for the plan or project at all. In Case C-239/04 Commission v Portugal, the Court of Justice implied that not all alternatives need to be considered:

37 In the present case, it is common ground that the Portuguese authorities examined and rejected a number of solutions whose routes bypassed the settlements of Alcarias, Conceição, Aivados and Estação de Ourique but crossed the western side of the Castro Verde SPA.

38 On the other hand, it is not apparent from the file that those authorities examined solutions falling outside that SPA and to the west of the settlements referred to above, although, on the basis of information supplied by the Commission, it cannot be ruled out immediately that such solutions were capable of amounting to alternative solutions within the meaning of Article 6(4) of the Habitats Directive, even if they were, as asserted by the Portuguese Republic, liable to present certain difficulties.

39 Accordingly, by failing to examine that type of solution, the Portuguese authorities did not demonstrate the absence of alternative solutions within the meaning of that provision.

It therefore appears that Member States should consider the “do nothing” alternative but do not need to consider all theoretically available alternatives. It is probably sufficient if all reasonable alternative solutions are considered.[7] The Commission in its opinions under Article 6(4) has on occasion considered the question of alternative solutions. In Kramer’s view, this consideration has rarely been convincing:

18 [T]he examination of alternatives and the environmental impact assessment for these alternatives are, in the context of Article 6(4) of the Habitats Directive, not really taken seriously by Member States. For them, the objective of the alternative examination is to see the original, normally political, decision on the project and its location confirmed, rather than to examine with an open mind the options and to choose the least environmentally negative solution. The Commission has largely accepted this biased interpretation of Article 6(4), despite its own guidance documents for Member States, which state that only environmental factors should be taken into consideration.[8]

Imperative reasons of overriding public importance

Article 6(4) was partially a response to the judgment of the Court in Case C-57/89 Commission v Germany (Leybucht Dams). Interpreting Article 4 of the Birds Directive, the Court was prepared to allow an SPA be impaired in order to protect the coast and prevent against flooding, but not for economic and recreational reasons. The Court’s refusal to allow socioeconomic reasons justify an infringement of a habitat site led the Council of Ministers to introduce into Article 6 the possibility of habitats being impaired for socioeconomic reasons.

In its 2007 Guidance Document, the Commission emphasized that there needed to be a public interest rather than a private interest at issue. The Commission has issued at least 11 opinions assessing whether there are imperative reasons of overriding public importance. In all but one of these, the Commission has given a positive opinion. In a number of cases, the Commission perceived there to be a sufficient overriding public interest in relation to transport development: trains, planes and automobiles, and boats. It also gave a positive opinion in relation to the extension of a coalmine, on the basis of the short-term negative effects of closing the mine. It approved the construction of a reservoir on the basis of the need to increase water flow in a river. The only project in respect of which the Commission is known to have given a negative opinion was a proposal for the creation of a new industrial and commercial area. It considered that several smaller areas could have been developed instead with no significant disadvantages for the regional economy.

Overall, Kramer is highly critical of the Commission’s approach under Article 6(4):

The general conclusion on the 11 cases is that there is hardly one which completely lives up to the requirements of Article 6(4) of the Habitats Directive and the Commission’s own guidance documents. In my opinion, not one of the positive Commission Opinions would, with the reasoning made, successfully survive scrutiny by the Court of Justice.

19 The Transposition of Article 6(3) and (4) in Ireland

Plans

Ireland has not transposed these Articles at all insofar as they apply to plans. This was definitively determined by the European Court of Justice in Case C-418/04 Commission v Ireland. On 15 February 2008, the NPWS issued a circular letter (NPWS 1/2008) to planning authorities effectively instructing planning authorities to use the SEA process to ensure that there was an appropriate assessment of plans as required by Article 6(3) of the Directive and not to approve plans unless the terms of Article 6(3) (no adverse impact on integrity of site) or Article 6(4) (no alternative solutions, imperative reasons of overriding public importance) were met.

In Farrell v Limerick County Council [2009] IEHC 274, McGovern J accepted that the County Manager acted lawfully in refusing to accept a resolution passed by the elected members to rezone land: the resolution itself was unlawful on the ground, inter alia, that the elected Members had not complied with the Council’s obligations under Article 6(3) of the Habitats Directive to subject the plan to an appropriate assessment.

Projects

Ireland’s transposition of the Habitats Directive in relation to projects is rather curious. There are several references to European sites in the Planning and Development Act 2000, but these are not sufficient to ensure that the stringent requirements of Article 6(3) and (4) are satisfied. As a result, it is necessary to rely on the Habitats Regulations 1997-2005. The difficulty is that there is deficient cross-referencing between the Habitats Regulations and other legislation. In particular, in the context of planning, references in the Habitats Regulations are to the Local Government (Planning and Development) Act 1963 as amended. This Act has of course been replaced by the Planning and Development Act 2000 as amended. However, some of the processes in the Planning and Development Act 2000 are quite different from those under the old legislation. Most obviously, An Bord Pleanála has taken on several functions in relation to (for example) roads and EIA that previously belonged to the Minister for the Environment. Accordingly, it can be difficult to translate some of the provisions in the Habitats Regulations into the new legislative regime that applies. For this reason, there is an understandable tendency to fall back on direct interpretation of the Directive rather than the transposing measures.

Bearing these observations in mind, it is possible to outline the manner in which the Habitats Regulations transpose Articles 6(3) and (4) in respect of projects. The Regulations seek to integrate habitats considerations into existing processes for the authorization of land uses, such

20 as planning, IPC licensing, waste management and foreshore licences. Essentially, the requirements of Articles 6(3) and (4) are – by means of regulations 27-32 – integrated into the authorization procedures under various enactments. Then, to ensure that there is no “project” that may fall through the cracks, the Regulations establish a residual category of “operation or activity” for which a ministerial consent is required. Bizarrely, the Regulations do not require a ministerial consent for an operation or activity to be carried out in an SCI, but do require it for all other classes of European site.

Regulations 4 and 14-16 establish a system whereby a landowner must obtain the consent of the Minister to carry on certain restricted land uses notified to the landowner when the land was placed on the candidate list of sites. These uses are generic to the type of habitat or species found on the site concerned. However, this restriction does not apply where the land use concerned is carried out in accordance with a management agreement under Regulation 12. Therefore, if a landowner reaches a management agreement with the Minister, she frees herself from the requirement to seek the Minister’s consent each time she wishes to carry out one of the generic notified land uses.

There are a few difficulties in relation to the transposition of Article 6(3) and (4) concerning projects that require to be identified.

Transposition difficulty: Trigger for assessment: cumulative effect

The assessment obligations in Article 6(3) are triggered where a plan or project “either individually or in combination with other plans or projects” is likely to have a significant effect on a Natura 2000 site. In implementing these obligations, the Habitats Regulations have subdivided both plans and projects. Each type of plan or project that was already regulated under Irish law continues to be regulated under Irish law, but now has habitats considerations integrated into that regulatory regime. Thus development that requires planning permission (unexempted development) continues to be regulated by the planning legislation, but that legislation now takes account of habitats considerations. A new residual category “operations or activities” was created for projects not subject to any regulation in Irish law. Thus unexempted development and operations or activities, although both projects under the Habitats Directive, are subject to different regulatory regimes. Similarly, under the SEA Regulations, development plans and waste management plans, although both plans, are subject to slightly different regulatory regimes.[9] This approach has the benefit of avoiding a duplication of regulatory regimes whereby a developer, for instance, might have to acquire both planning permission and a habitats authorisation. It also ensures that habitat considerations are integrated into general decision-making on the environment and land use. The subdivision becomes problematic,

21 however, where a competent authority has to decide whether to carry out an assessment.[10] Regulation 15(1) illustrates the problem:

Where it appears to the Minister that an application for consent … relates to an operation or activity which-

(a) is neither directly connected with nor necessary to the management of the site, but

(b) is likely to have a significant effect on the site, either alone or in combination with other operations or activities,

the Minister shall cause an assessment to be made of the implications for the site in view of that site’s conservation objectives.

Thus whereas, under the Directive, the likely cumulative effect of any projects triggers an assessment, under the Regulations, only the likely cumulative effect of the same type of project can trigger an assessment. That is, under the Regulations, the likely cumulative effect of an operation or activity and an unexempted development (ie a development that requires planning permission) does not trigger an assessment. This is a clear failure properly to transpose the requirements of the Directive.

Under the SEA regulations, the cumulative effect of a proposed plan outside the planning and development context in conjunction with any other plan (which presumably includes plans inside the planning and development context) does trigger an assessment. Within the planning and development context, however, some plans automatically trigger an assessment. However, local area plans do not automatically trigger an assessment. An environmental report must be prepared where the implementation of the local area plan (or its variation) is likely to have significant effects on the environment. However, the likely cumulative effect of the local area plan with any other plan is not a trigger for an environmental report.

A further problem arises in that Article 6(3) views the cumulative effect of a proposed project and a plan (as well as a proposed plan and a project) as a trigger for an assessment. Nothing in Irish law requires projects and plans to be considered together in this way.

Transposition difficulty: Interaction with other legislation

The Habitats Regulations did not amend the old Local Government (Planning and Development) Acts. Rather, they set up a set of parallel requirements that had to be followed when competent authorities were deciding on development applications that had implications for habitat sites.

22 Regulation 27(1) illustrates the approach adopted:

A local authority when duly considering an application for planning permission, or the Board when duly considering an appeal on an application for planning permission, in respect of a proposed development that is not directly connected with, or necessary to the management of, a European site but likely to have a significant effect thereon either individually or in combination with other developments, shall ensure that an appropriate assessment of the implications for the site in view of the site’s conservation objectives is undertaken.

Regulation 28 took a similar approach in relation to the obligations of the Minister for the Environment in relation to local authority development where an environmental impact statement (EIS) was required. Regulation 29 took a similar approach for self-authorised local authority development.

As noted above, a difficulty arises because regulations 27-32 of the Habitats Regulations referred to legal provisions that have since been repealed and/or amended. Ideally the Planning and Development Act 2000 (and other Acts referred to in the Habitats Regulations) would have incorporated the authorisation procedures set out in regulations 27-32; this approach would have meant that all the relevant legal provisions were, insofar as possible, in the same place. This approach was not adopted. Instead, sections 34 and 175 of the 2000 Act, for example, require planning authorities and an Bord Pleanála, as appropriate, to have regard to European sites when making decisions on planning applications and on local authority applications for approval where an EIS is required. This is clearly inadequate transposition of articles 6(3) and 6(4) of the Directive. Section 179, which deals with local authority self-authorised development, does not refer to habitats considerations at all.

The question that therefore arises is whether the obligations in regulations 27-32 have been carried over to apply to decisions made pursuant to the Planning and Development Acts 2000- 2004. In this regard, section 265(2)(b) of the Planning and Development Act 2000 provides:

The continuity of the operation of the law relating to the matters provided for in the repealed enactments [which include the Local Government (Planning and Development) Acts 1963-1999] shall not be affected by the substitution of this Act for those enactments, and - …

(b) so much of any enactment or document (including repealed enactments and enactments and documents passed or made after the commencement of this Act) as refers, whether expressly or by implication, to, or to things done or falling to be done

23 under or for the purposes of, any provision of the repealed enactments shall, if and so far as the nature of the subject matter of the enactment or document permits, be construed as including, in relation to the times, years or periods, circumstances or purposes in relation to which the corresponding provision of this Act has effect, a reference to, or, as the case may be, to things done or deemed to be done or falling to be done under or for the purposes of, that corresponding provision.

When parsed carefully, this opaque provision appears to be sufficient to interpolate the requirements of regulations 27-32 of the Habitats Regulations into sections 34, 175 and 179 of the Planning and Development Act 2000. Whether it constitutes clarity of transposition is another matter.

This mix-and-match method of transposition causes a number of problems. For instance, under regulation 27(7) there is a procedure for a planning authority or an Bord Pleanála, where it wishes to seek the opinion of the Commission under Article 6(4) of the Directive, to request the Minister for the Environment to seek the Commission’s opinion on its behalf. There is no equivalent procedure in regulations 28, 30, or 31 as the competent authority under those regulations was a Government Minister. However, the authorising functions under regulations 28, 30 and 31 have been transferred to the Board by the Planning and Development Act 2000. Accordingly, there is now no procedure for the Board, if it considered it appropriate, to seek the opinion of the Commission under Article 6(4). It would arguably be an infringement of the Government’s power in relation to external affairs for a statutory body to communicate directly with the Commission without any statutory authorisation under Irish law. This lacuna will need to be addressed.

Transposition difficulty: Protection of Article 5 sites

A further problem relates to Article 5 sites. Under Article 5 of the Directive, where the Commission considers that a Member State has omitted from its national list a site hosting a priority species or habitat type, a consultation process is initiated between the Commission and the member state concerned. If a resolution is not reached, the Council of Ministers of the

European Union takes a decision.[11] While that consultation process is ongoing, the site is subject to the non-deterioration and non-disturbance requirements of article 6(2):

Member States shall take appropriate steps to avoid, [during the consultation period and pending a Council decision], the deterioration of natural habitats and the habitats of species as well as the 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

24 of the Directive.

The main way in which this obligation was transposed into Irish law was through the powers of the Minister, under regulations 17 and 18, to apply to court to prohibit an operation or activity that might adversely affect an article 5 site. However, the European Communities (Natural Habitats) Amendment Regulations 2005 substituted new regulations 17 and 18 which only apply with respect to European sites. As the definition of “European site” does not include an Article 5 site, it follows that the 2005 Regulations have deleted a protection that is required by

Community law. It is difficult to understand why this was done.[12]

CONCLUSION

The requirements of Article 6(3) and (4) of the Directive are complicated but do follow a certain logic. Their transposition in Ireland sought to achieve a number of desirable objectives: (a) clarity that a project did not have to be on-site in order to be subject to the assessment regime; (b) integration of habitats considerations into existing assessment procedures to avoid duplication of regulation. However, given that this integration was achieved by a separate statutory instrument, several lacunae and inconsistencies have emerged. Moreover, the position of plans appears to have been overlooked completely. These problems can best be solved by amending all relevant legislation to incorporate the requirements of Articles 6(3) and (4) into all authorisation processes for plans and projects. This should start with the Planning and Development Acts but should be extended to all legislation listed in the Schedules to the Habitats Regulations. The definition of “European site” should be expanded to include Article 5 sites and should be used as the touchstone for all authorisation regimes that seek to transpose Articles 6(3) and (4). The Habitats Regulations themselves should remain as a more limited instrument focusing on the designation process, the regulation of operations or activities and the management of fully designated SACs.

Oran Doyle[13]

[1] See Oran Doyle, “Ireland” in Jessica Makowiack ed, La Mise en Place du Réseau Natura 2000: Les Transposition Nationales (Pulim, 2004), at 218-9.

[2] A detailed account of how Ireland has transposed Article 6(1) can be found in Oran Doyle, “Ireland” in Christopoulou, Haidarlis and Durousseau eds, La Gestion des Sites Natura 2000 (Presses Universataires de Thessalie, 2006).

[3] In Case C-418/04 Commission v Ireland, the Court of Justice held that sites which ought to have been classified as

25 SPAs but had not been classified continued to be protected under Article 4(4) of the Birds Directive rather than Articles 6(2)-(4) of the Habitats Directive.

[4] This also ensures that a Member State does not gain any advantage by being slow to nominate sites. A greater range of activities will be permissible in designated sites than in sites that are in the process of designation. This is consistent with the Court’s logic in Case C-318/04 (see above) holding that sites that ought to have been classified as SPAs received the absolute protection of Article 4(4) of the Birds Directive rather than the qualified protection of Article 6(3) and (4) of the Habitats Directive.

[5] In Case C-226/08 AG Sharpston has delivered an Opinion suggesting that an ongoing project (in this case river dredging) authorised prior to the notification of the Habitats Directive requires to be subject to the Article 6(3) and 6(4) process where there are further projects or further stages of the project that can be distinguished without artificiality. As of 8 December 2009, the Court has not delivered judgment on this point. If the Court of Justice follows this approach, it could be of particular relevance to quarries in Ireland.

[6] Garrett Simons, Paper Presented to Irish Planning Institute (November 2009).

[7] See Ludwig Kramer, “The European Commission’s Opinions under Article 6(4) of the Habitats Directive” (2009) Journal of Environmental Law – advance access.

[8] Ibid.

[9] Nevertheless the objectives of a waste management plan are deemed by to be part of a development plan; this may encourage – but does not require – the competent authorities to view the two together when considering the possible impact of one or the other.

[10] As already noted, under the SEA Regulations, the competent authority must prepare an environmental report when preparing a development plan, strategic planning guidelines and a planning scheme so this problem does not arise in that context.

[11] Such a decision must be taken unanimously.

[12] Regulation 19 continues to allow the Minister to require the restoration of land within article 5 sites, but this cannot amount to a transposition of the article 6(2) obligation to avoid the deterioration of habitats and the disturbance of species.

[13] Lecturer in Law, Trinity College, Dublin, Barrister-at-law. I am grateful to Rachel Minch and Yvonne Scannell for their assistance in the preparation of this paper.