The Role of Case Law and Increasing Efficiency in Implementing the Birds and Habitats Directives

Introduction

The Fitness Check of the Birds and Habitats Directives has resulted in increased attention being focused on case law at European and national levels concerning the Directives. The Birds Directive was adopted in 1979, with the Habitats Directive following thirteen years later in 1992. Ongoing delays in the transposition and implementation of the Birds and Habitats Directives, combined with high levels of public concern about the state of Europe’s wildlife, have resulted in higher numbers of complaints being sent to the Commission under these Directives than under other EU environmental legislation. Several of these complaints have resulted in infringement procedures against Member States, with eventual referral to the Court of Justice of the European Union (CJEU). This paper seeks to explain the importance of the judgments of the Court for interpreting EU Directives, while clarifying the relationship between these rulings, and the texts of these Directives. The detailed evidence presented in the annexes to this paper are provided by the RSPB but the paper is supported by the 100 organisations from the Joint LINKs.

Importance of CJEU Rulings for implementation of the Birds and Habitats Directives

The European Commission has recognised the importance of CJEU rulings for understanding and interpreting European directives, including the Birds and Habitats Directives.1 Civil society has also acknowledged that the various judgments of the Court are an essential tool in interpreting the Articles of the Nature Directives, and that CJEU rulings should guide their better transposition, implementation and enforcement at the national level.2 Nevertheless, the total number of CJEU rulings concerning the Birds and Habitats Directives is comparatively small. Annex I to this document provides an overview of the total number of CJEU rulings compared to those specifically concerning the Birds and Habitats Directives. Even this small volume of case law has been instrumental in providing certainty in the application of provisions of the Birds and Habitats Directives in all 28 Member States, as in the example of the CJEU’s preliminary ruling in the Waddenzee case3, further described in Annex I to this document.

The implementation of the Nature Directives has been informed not only by CJEU judgments but also by domestic case-law and European Commission guidance, which have together provided greater certainty and confidence around the Nature Directives for governments, as well as for business.

Importance of long-term regulatory stability

The age of the Birds and Habitats Directives means that there has been time for Government and businesses alike to become familiar with, and to develop best practice in, their implementation. Businesses and investors place great value in the certainty that this provides, and their concerns tend to focus on issues associated with:

1 http://ec.europa.eu/environment/nature/info/pubs/docs/others/ecj_rulings_en.pdf 2 http://www.landmarkchambers.co.uk/userfiles/documents/resources/ecj_report_rspb_final.pdf 3 C-127/02 (reference for a preliminary ruling) – “Waddenvereniging and Vogelbeschermingsvereniging”

 A lack of implementation and the associated uncertainty (for example the implications of the failure to identify a coherent SPA and SAC network in UK seas and its implications for marine industries);4  Poor or inconsistent implementation;5  A lack of guidance on, or information to inform implementation (for example the lack of clear conservation objectives for Natura 2000 sites);6  A lack of resource and expertise within Government authorities and regulators to support effective implementation7.

Indeed this point was emphasized by Dr. Elsa Nickel, Director General, Federal Ministry for the Environment, Nature Conservation, Building and Nuclear Safety (BMU), Germany at Green Week 2015. She pointed out that the Nature Directives are just beginning to work for biodiversity, and that governments and businesses have learned how to operate with the Directives, such that they have become a routine part of daily operations. “The EU Nature legislation is absolutely fit for purpose and indispensable – it is the backbone for everything we want to reach, the objectives of the EU biodiversity strategy 2020. We don’t see any reason why we should change it – we should implement better”. Dr Nickel emphasized both the need for regulatory stability for economic players and pointed out that, "This is really about our credibility in Europe - we have to fulfil the obligations from the convention on biodiversity, we have to meet the targets. If Europe does not meet them, who else will?".

Experience with the Nature Directives has enabled progressive businesses to make them a routine part of their daily operations across the EU, while full transposition and implementation has delivered demonstrable positive outcomes for nature.

Annex III provides evidence of the evolution of approaches to implementation of the Birds and Habitat Directives in the UK over time and in response to the development of case law.

Should CJEU jurisprudence be incorporated into the texts of Birds and Habitats Directives?

The Birds and Habitats Directives set out the results that Member States must achieve, without necessarily dictating the means of achieving these results, leaving a certain amount of leeway to Member State governments as to the exact rules to be adopted. CJEU judgments do not qualify or restrict this leeway. Seeking to derive hard and fast rules from such CJEU rulings and to incorporate these into an EU Directive, effectively defining the “correct” approach to implementation, could potentially breach the subsidiarity principle. Annex II to this document provides an overview of how the CJEU operates, and the importance of the Court’s CJEU’s case law for the implementation of EU Directives.

CJEU rulings do not, and are not intended to, prescribe the precise approach all Member States must take to implementing EU Directives. EU CJEU case law provides clarity as to interpretation and confirms whether Member States have acted lawfully in transposing/implementing their requirements. A judgment does not always mean that a particular approach is the only way to achieve compliance.

4 http://www.wcl.org.uk/docs/link_response_to_nature_directives_060212.pdf 5 http://ec.europa.eu/environment/nature/natura2000/management/docs/AA_final_analysis.pdf 6 Review of Favourable Conservation Status and Birds Directive Article 2 interpretation within the European Union (NECR176), Natural England March 2015: http://publications.naturalengland.org.uk/publication/4852573913743360 7 http://www.rspb.org.uk/Images/rspb2ndsubmissiontodefrahrrcasestudycommentaryandanalysis_tcm9-305620.pdf P.18 2

Conclusions

Reporting information compiled for the European Environment Agency’s State of Nature report8 shows that while much of Europe’s nature is still in trouble, we are nevertheless at the beginning of a success story. Scientific data shows that where European laws are being effectively implemented, nature is recovering.

The development of case law and guidance at national and EU levels has been key to developing the consistency of transposition and implementation needed to achieve this. Thirty years of experience and case law has clarified how the processes and procedures set out in the Birds Directive and Habitats Directive apply to situations on the ground. Experience has shown how effective and efficient these measures have been once properly transposed and implemented.

There is no pressing need to incorporate case law and guidance into the texts of the Birds and Habitats Directives - indeed there are strong legal and practical reasons not to do so. Such a move would be likely to fall foul of the EU’s subsidiarity principle, by limiting Member States’ freedom to implement. Any opening of the legislation would also inevitably negate the experience, case law and guidance that have been accumulated. Under that scenario, the whole process of establishing jurisprudence and developing guidance would simpl start again. Experience with CAP reform and other legislative instruments has shown just how far from an initial European Commission proposal the co-decision process can take adopted EU policy instruments. Opening the Birds and Habitats Directives to amendment by the European Parliament and the Governments of the 28 Member States would reset the evolutionary clock in transposition and implementation terms, and return nature conservation and business to the “bad old days” of uncertainty.

This would be bad for nature, as progress towards the EU and global 2020 biodiversity targets would be at best put on hold, at worst set back by decades. It would also be bad for business, as the certainty built up over time would be lost. Finally, it would be disastrous for Europe’s people who, as research has shown, benefit from a multitude of ecosystem services generated by the Natura 2000 network. The Birds and Habitats Directives are an excellent example of EU regulation that is not only smart, effective where transposed and implemented, and efficient, but also highly relevant to the daily lives of Europeans.

8 http://www.eea.europa.eu/publications/state-of-nature-in-the-eu 3

Annex I

Number of CJEU Rulings Concerning the Birds and Habitats Directives

Statistics on the judicial activity of the CJEU, available from the www.curia.europa.eu website, confirm that the court has, over time, significantly increased its levels of activity. However, in the same period the number of rulings relating specifically to the Birds and Habitats Directives has remained low, and relatively stable over time.

Table A: Total Number of New CJEU Cases and CJEU Rulings over time

Year 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014

New Cases 474 537 581 593 562 631 688 632 699 622

Rulings 574 546 570 567 588 574 638 595 701 719

BHD Rulings9 8 8 11 2 3 7 10 7 1

While it is possible to search the CJEU’s case database to identify individual cases concerning the Birds and Habitats Directives, the CJEU does not itself catalogue such cases separately. However, a “Catalogue of case law relating to articles of the EU Birds and Habitats Directives10” has been compiled by the UK Government’s Joint Nature Conservation Committee (JNCC). This catalogue provides accessible and summarised information on environmental case law relating to the EU Habitats Directive (Articles 1 to 7 and 9 to 16) and the EU Birds Directive (Articles 1 to 9). The current version (Version 1.0) includes all relevant cases from courts in the UK and the CJEU up until December 2013 using the Westlaw, Lexis Library, Lawtel and Curia legal databases.

The JNCC catalogue includes details of 101 cases concerning the Birds and Habitats Directives that were dealt with by the CJEU between 1987 and 2013. For comparative purposes, according to the 2013 Annual Report of the CJEU, 138 taxation cases were completed by judgments, by opinions or by orders involving a judicial determination by the Court in 2012 and 2013 alone11.

Plotted against the total number of new CJEU cases and CJEU rulings, taken from CJEU Annual Reports12, it is evident that cases relating to the Birds and Habitats Directives constitute a tiny fraction of the case law dealt with by the Court CJEU. It is also obvious that the number of cases has not increased significantly over time, despite the expansion of the Natura 2000 network and of the EU itself, and progress towards the full transposition and implementation of the Birds Directive and Habitats Directive.

9CJEU rulings concerning the Birds Directive and Habitats Directive 10 http://jncc.defra.gov.uk/page-6780 11 http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-06/qdag14001enc.pdf 12 http://curia.europa.eu/jcms/jcms/Jo2_7015/ 4

Graph 1: New CJEU Cases, CJEU Rulings and CJEU Rulings concerning the Birds and Habitats Directives over time

Nature conservation related rulings are a tiny fraction of the CJEU’s total case load

5

Annex II

The Role of the CJEU

The Court of Justice of the European Union

Since the establishment of the Court of Justice of the European Union in 1952, its mission has been to ensure that "the law is observed" "in the interpretation and application" of the Treaties. As part of that mission, the Court of Justice of the European Union (CJEU): reviews the legality of the acts of the institutions of the European Union, ensures that the Member States comply with obligations under the Treaties, and interprets European Union law at the request of the national courts and tribunals. The CJEU thus constitutes the judicial authority of the European Union and, in cooperation with the courts and tribunals of the Member States, it ensures the uniform application and interpretation of European Union law.

CJEU Rulings

Most CJEU rulings primarily concern failures of individual Member States to fulfil their obligations, or specific national situations13. All CJEU rulings are based on the specific facts presented to the Court. While CJEU judgments are binding on all Member States, not all CJEU rulings give rise to generally applicable rules. Indeed a study on, “The impact of the rulings of the European Court of Justice in the area of direct taxation”, produced for the European Commission noted that;

Any conclusions drawn on the influence of an ongoing process like the case-law of the Court on the direct tax systems of the Member States are necessarily incomplete and provisional. They can indeed only be based on the shifting sands of the judicial process, which resists any attempt to transform a shed of individual decisions into one or more general rules applicable to an indefinite number of situations.

...the Court always decides on the basis of an individual situation: the judgment depends thus on the facts that are presented before it and the only way to be sure that a similar but not identical situation will warrant the same decision is often to submit another question to the Court.14

For example the CJEU’s preliminary ruling in the Waddenzee case15 provided an interpretation of the application of Article 6(2) and 6(3) of the Habitats Directive, including what constitutes a “likely significant effect”, and what an “appropriate assessment” should entail. This interpretation has been instrumental in clarifying the application of these provisions in all 28 Member States. Nevertheless, while this ruling may well have helped clarify these provisions, it has only done so in so far as this was required to decide the individual situation presented to the Court in that case.

While the CJEU’s judgments may help clarify how a particular provision or process applies for all Member States, they are specific to the facts presented before it.

13 http://ec.europa.eu/environment/nature/info/pubs/docs/others/ecj_rulings_en.pdf 14 http://www.europarl.europa.eu/document/activities/cont/201203/20120313ATT40640/20120313ATT40640EN.pdf 15 C-127/02 (reference for a preliminary ruling) – “Waddenvereniging and Vogelbeschermingsvereniging” 6

The CJEU’s jurisdiction is limited to ensuring the uniform implementation and application of EU laws. Its purpose is not to create additional legal obligations, or to modify the provisions of EU legislative instruments. The CJEU cannot go beyond its jurisdiction.

The CJEU applies existing EU laws, it does not make new or amend existing EU laws.

The CJEU’s rulings are based not only on the specific legislation relevant to the case, but also on general EU legal principles of proportionality and subsidiarity, as well as the precautionary principle, the polluter pays principle, the producer responsibility principle, the preventive principle, and the source principle.16,17 Rulings may also be based on guidance issued by the European Commission, as in the Waddenzee case referred to above.

CJEU rulings draw on general principles of EU law and European Commission guidance, as well as the specific provisions of EU legislation.

In the case of the Birds and Habitats Directives the European Commission has produced numerous guidance documents, intended to facilitate implementation of the Directives18,19

This guidance has been drafted by the services of the Environment Directorate-General of the European Commission, following relevant informal discussions held with the nature protection authorities of the Member States, and is non-binding in nature. The Commission states in its guidance document “Managing Natura 2000 Sites”;

The interpretations provided by the Commission services cannot go beyond the directive. This is particularly true for this directive as it enshrines the subsidiarity principle and as such lets a large margin of manoeuvre to the Member States for the practical implementation of specific measures related to the various sites of the Natura 2000 network. In any case, the Member States are free to choose the appropriate way they wish to implement the practical measures, provided the latter serve the general purpose of the directive.20

The Commission is also at pains to point out that the guidance provided is not intended to be exhaustive, and that site-specific questions should be dealt with on a case-by-case basis. Indeed the Commission expects that their guidance will be “complemented with more detailed guidance which should be drawn up by the Member States themselves.”

CJEU Rulings and European Commission Guidance both help facilitate transposition and implementation of the Birds and Habitats Directives, but neither are exhaustive or prescriptive, and neither are intended to limit the Member States’ freedom to choose how to implement the Directives.

The CJEU has adopted a teleological approach to interpreting EU laws, based on the objectives of the law in question, as well as the context of the law and even the date on which the provision in question is to be applied. The CJEU must also take into account that “Community legislation is drafted in several languages and that the different language versions are all equally authentic.” Even where the different language versions are entirely in accord with one another, legal concepts

16 Article 191(2) TFEU defines environmental principles: “Union policy on the environment shall aim at high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay” 17 http://ec.europa.eu/environment/legal/law/principles.htm 18 http://ec.europa.eu/environment/nature/legislation/habitatsdirective/index_en.htm 19 http://ec.europa.eu/environment/nature/conservation/species/guidance/pdf/guidance_en.pdf 20 http://ec.europa.eu/environment/nature/natura2000/management/docs/art6/provision_of_art6_en.pdf 7

do not necessarily have the same meaning in Community law and in the law of the various Member States.21

CJEU judgments are based on the state of evolution of the EU legal order as a whole on the date that the judgment is given, as well as on the intended purpose of the legislation, taking into account differences in language and terminology.

Although the CJEU is, by its very nature, the supreme guardian of Community legality, the courts of each of the Member States are also Community courts in as much as;

 they have jurisdiction to review the administrative implementation of Community law, for which Member State authorities are responsible; and,

 many provisions of the Treaties and of secondary legislation - regulations, directives and decisions – directly confer individual rights on nationals of Member States which national courts must uphold.

To ensure the effective transposition and implementation of Community law and to prevent differences between that application in different national courts from leading to different interpretations of Community law, the CJEU is empowered to provide preliminary rulings in response to requests from national courts, including from courts of first instance against whose decisions an appeal would lie under national law.

National courts are also the guardians of Community law.

Directives set out the results that Member States must achieve, without necessarily dictating the means of achieving these results, leaving a certain amount of leeway to Member State governments as to the exact rules to be adopted. CJEU judgments do not qualify or restrict this leeway. Seeking to define the “correct” approach to implementation, based on CJEU judgments, could potentially breach the subsidiarity principle.

CJEU rulings do not, and are not intended to, prescribe the precise approach all Member States must take to implementing EU Directives. To do so would breach the subsidiarity principle.

CJEU rulings are not the only resource available for interpreting the provisions of the Birds and Habitats Directives. The European Commission has produced numerous guidance documents, intended to facilitate implementation of the Directives22,23

CJEU Rulings and European Commission Guidance both help facilitate transposition and implementation but neither are intended to limit the Member States’ freedom to choose how to implement the Directives.

21 Judgment of the Court of 6 October 1982. - Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health. - Reference for a preliminary ruling: Corte suprema di Cassazione - Italy. - Obligation to request a preliminary ruling. - Case 283/81. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61981CJ0283:EN:HTML 22 http://ec.europa.eu/environment/nature/legislation/habitatsdirective/index_en.htm 23 http://ec.europa.eu/environment/nature/conservation/species/guidance/pdf/guidance_en.pdf 8

Can CJEU Rulings be incorporated into the texts of Directives?

Directives set out the results that Member States must achieve, without necessarily dictating the means of achieving these results, leaving a certain amount of leeway to Member State governments as to the exact rules to be adopted.

CJEU judgments and preliminary rulings, while sometimes creating principles with wider application, clarify whether the approach taken by a particular member state to achieving the results set out in a particular Directive are consistent with the Directive itself, as well as with other EU legislation, and with wider EU principles such as proportionality, the polluter pays principle, and the precautionary principle. They do not qualify or restrict the leeway provided in the Directive for other Member States to adopt a different approach to achieving the required results. Seeking to derive hard and fast rules from CJEU rulings and to incorporate these into an EU Directive, effectively defining the “correct” approach to implementation, could potentially breach the subsidiarity principle.

CJEU rulings do not, and are not intended to, prescribe the precise approach all Member States must take to implementing EU Directives. CJEU case law provides pointers as to interpretation and indicates whether Member States have transposed/ implemented the requirements, not whether a particular approach is the only way.

9

Annex III

Experience with implementation of the Birds and Habitats Directives in the UK: Extracts from the second RSPB submission to the Defra review of the implementation of the Birds and Habitats Directive in England, 2012

The evidence presented below is taken from the RSPB’ second submission to the 2012 Defra Review of Implementation of the Birds and Habitat Directives in England. The full text of this submission is available online. 24

The RSPB has invested considerable resource in seeking to protect internationally and nationally important wildlife sites from damaging developments in pursuit of our charitable objectives to conserve wildlife; a particular focus of this work is engagement with strategic planning mechanisms and the local planning system. In so doing, we seek to work with applicants to achieve win-win solutions that integrate objectives for people and the natural environment, so contributing to the achievement of sustainable development and living within natural limits. We recognise that it may be difficult for a company meeting the Nature Directives for the first time and consequently invest time in helping companies understand the system. As a membership body, with over 1 million members, we are a civil society that helps individuals and communities to access and influence decisions and shape the future.

That said, our involvement in casework or, indeed, the influence of the protected area network in constraining growth should not be overstated. The majority of development proposals responded to by the RSPB arise from the planning system: on average two-thirds (67%) of all RSPB cases in England between 2001 and 2010 related to planning applications (similar to figures for the UK as a whole). Other casework arises from areas such as forestry, flood risk management and access. RSPB Council has defined criteria for engagement, under which we normally only get involved in sites holding species or habitats of international or national importance, whether or not they have been formally designated.

In England, the RSPB responded to a total of 2,177 planning applications between 2001 and 2010, an average of 217 per annum. This compares to a total 5,993,408 planning applications received in England over the same period at an average of 599,341 per annum.

The RSPB therefore commented on approximately 0.036% of all planning applications in England between 2001 and 2010.

The RSPB objects in a relatively small proportion of the cases it makes representations on (10% at a UK level between 2001-2010). We do not object to proposals lightly, but when we do, it is often because of basic flaws in proposals as submitted, for example:

 Insufficient environmental information for the decision-maker to reach an informed decision;  Inadequate or inappropriate survey to base any impact assessment on;  Inadequate mitigation measures to avoid or reduce damage to acknowledged wildlife interests (see Crowthorne (Case Study 15), Hurstleigh (Case Study 28) and Wing Water Treatment Works (Case study 50));  Inadequate justification for a damaging scheme to go ahead in preference to conservation in situ (see Havant Local Plan, Case Study 22);

24 http://www.rspb.org.uk/Images/rspb2ndsubmissiontodefrahrrcasestudycommentaryandanalysis_tcm9-305620.pdf 10

 Inadequate compensatory measures where residual adverse effects are predicted; and in exceptional cases;  When there are unacceptable impacts on acknowledged wildlife interests and we consider it is not in the public interest for the development should not go ahead.

Many of these issues can and have been resolved through positive negotiation with proponents. Sustaining an outright objection is extremely rare and normally falls in to the following categories:

 Unacceptable damage to a Natura 2000 site (See Lewis wind farm (Case Study 32); Dibden Bay Container Terminal (Case Study 16); and Cliffe Airport in Aviation White Paper (Case study 5))  Would set important precedents in the application of the decision-making tests (Dibden Bay Container Terminal (Case Study 16), Bathside Bay Container Terminal (Case Study 7), Hurstleigh (Case Study 28); and Lewis wind farm (Case Study 32))  Raises important policy issues requiring clarification by Government (see Bathside Bay Container Terminal (Case Study 7))

Despite this wide range of possible reasons for objection, the RSPB’s rate of objection on new cases in which it has made representations has remained stable in absolute terms and fallen in relative terms (see figure). Between 2001 and 2010 in respect of those new cases in England (and the UK) affecting SPAs that resulted in an RSPB objection, the annual average remained stable at 26 (c.f. 35 per annum for the UK); as a proportion, the rate of objection in England declined from 20% in 2001 to 6% in 2010 as the number of cases increased overall (a similar rate of decline in the rate of objection was experienced at a UK level).

It supports the RSPB’s qualitative experience that the use of objections has not increased over time, suggesting a maturing decision-making system, and demonstrating the emphasis the RSPB places on working with developers and decision-making authorities to resolve our concerns.

11

Based on our experience this is due to:

 Increased awareness and understanding of the requirements of the Habitats Regulations and the sensitivities of SPAs and SACs over time among developers, competent authorities and nature conservation bodies;  Improving best practice (in terms of early consultation and improved baseline survey) by developers and their consultants, enabling identification and solving of potential problems e.g. through use of avoidance or mitigation measures;  Increasing role of spatial planning to avoid sensitive areas and, where this is not practicable, to identify in advance the issues that should be addressed at project level to avoid conflicts.

Embedding the value of nature in decision-making

The Nature Directives are central to efforts to embed the value of nature in decision-making, both in UK and across the EU: in this respect, they are still a work in progress. The robust level playing field they created both across Member States and between and within land-use sectors represented step changes in the treatment of wildlife in decisions relating to land-use change and management.

The transparent and robust decision-making process introduced (particularly by the Habitats Directive) helped internalise the costs of damage to the natural environment posed by land-use change at a time when such costs were largely ignored. For example:

 In 1981, the Nature Conservancy Council estimated 10-15% of all Sites of Special Scientific Interest (then protected weakly under domestic legislation) were suffering damage each year;25  The extent of semi-natural habitats was greatly reduced e.g. loss of coastal grazing marshes in south and east England26, loss of 94% of lowland raised bogs and 83% of lowland heathland.27

The Nature Directives were introduced against a backdrop of ongoing declines, and with the express purpose of halting and then reversing those declines to restore and maintain Europe’s wildlife at favourable conservation status.28The two Directives are structured in similar ways, with two limbs designed to work together to secure favourable conservation status of the species and habitats they seek to conserve:

 Habitat conservation (protected areas, habitat management inside and outside protected areas, habitat restoration, habitat creation) – the Birds Directive is the most explicit in respect of habitat conservation (see Articles 3 and 4);  Species protection (schemes of general protection from deliberate killing or taking and, for certain species, destruction of eggs and nests or disturbance or deterioration of breeding sites and resting places)

Site protection stems from the protected area provisions of both Directives and is the only habitat conservation measure that can be said to have been implemented in an adequate way in the UK (i.e. SPAs, SACs and the ASSIs/SSSIs that underpin them and help secure their protection and management). The strengthened protected area provision introduced by Birds Directive (through

25 Lowe et al (1986) Countryside Conflicts: the politics of farming, forestry and conservation 26 Williams, G and Hall, M (1987) The Loss of Coastal Grazing Marshes in South and East England, with Special Reference to East Essex, England, Biological Conservation 39, 243-253. 27 HMSO (1995) Biodiversity: the UK Steering Group Report. Volume 2: Action Plans. 28 Dodd, A (2008) EU Nature Directives: rights, responsibilities and results. Environmental Law and Management. 20, 237- 245 12

ASSIs/SSSIs and SPAs) and then supplemented and clarified by the Habitats Directive has been essential to tackle the historic imbalance in treatment of the natural environment in decision making, evident in the decades prior to adoption and manifest in the massive losses of important wildlife habitats recorded.29

The Nature Directives have proved essential in stemming historic losses and embedding the value of nature into decision-making. Without them, it is clear much of what we value in the natural environment would have continued to be destroyed.

The Habitats Directive in particular evolved and clarified decision-making affecting protected areas in the UK. Two key obligations on the UK in respect of the Natura 2000 network are of relevance:

To take appropriate steps to avoid deterioration of SPAs and SACs (Article 6(2))

Ensure plans and projects avoid adverse effects on SPAs and SACs, while recognising that damage can be allowed in exceptional cases where there are no less damaging alternative solutions and the public interest justifies it – in which cases compensation must be provided (Articles 6(3) and 6(4)).

This represented a fundamental cultural change, embedding the precautionary approach to ensure the long-term conservation of Europe’s most important wildlife and ensure that where damage is permitted, it is in the genuine public interest (as opposed to private interest).

Fundamental to understanding the criticisms from the development sector is the fact that the decision-making tests of the Habitats Directives reverse the traditional onus of proof incumbent on the objector to a proposal. Instead, to obtain consent, that burden now falls on the proponent who must:

 First demonstrate there is no (risk of) an adverse effect on SPAs and SACs; and  Second, if damage cannot be ruled out, demonstrate: o No less damaging alternative solutions exist to meet the public interest served by the proposal; o That there are imperative reasons of overriding public interest why the damaging plan or project should proceed; and o Appropriate compensatory measures have been secured.

We consider the regulatory impact of the Nature Directives to be fully justified given the international importance of the Natura 2000 network and the relatively small area of the country that they embrace.

Strategic planning to direct the right development to the right locations and avoid conflict by enabling early engagement

Strategic (spatial) planning is vital to ensuring the effective and democratic shaping of land use and our communities, delivering the right types of development in the right places. The RSPB believes that sound strategic planning should be able to allocate the use of space to avoid important wildlife sites being impacted upon by development, while enabling societal objectives for economic and social development to be met. Done well, strategic planning can provide regulatory certainty and avoid site-specific conflicts at a late stage in the development process (e.g. once a planning application has been submitted), when financial and legal resources have been committed and there is less room for manoeuvre, in terms of where to locate a specific development proposal.

29 See Natural England (2008) State of the Natural Environment 2008 13

The RSPB has been a long-term advocate of the benefits of such integration of nature conservation considerations into strategic planning and the use of strategic assessment techniques.30 However, formal application of the Birds and Habitats Directives to strategic planning only began in 2005 as a result of the ECJ judgment against the UK Government. The RSPB very much welcomed this change for the reasons set out above, given that successive governments had resisted it. The Holton Heath/Purbeck Local Plan case in 2001 (Case Study 26) and Havant Local Plan case in 2005 (Case Study 22) underlined the need for a new approach that prevented unsustainable proposals becoming embedded in strategic plans over many years, raising unrealistic landowner, developer and local authority expectations that damaging schemes could proceed. The success of the RSPB (and English Nature) in these cases highlighted the main benefit in applying the Nature Directives decision-making tests to strategic plans to secure more sustainable patterns of land-use.

The ECJ judgment has had a beneficial impact on a range of strategic plan types from national to local spatial scales where they have a bearing on important sites for wildlife, for example:

 Development plans  Shoreline management plans and flood risk management strategies (see Constructive engagement below)  River Basin and Catchment Flood Management Plans  Coastal access (see Coastal Access in England, Case Study 14)

Below we take a closer look at our involvement in the development plan system and the positive role application of the decision-making tests of the Habitats Regulations has played.

Development plans

Development plans comprise the majority of our work on strategic plans. Between 2001 and 2010 we made representations on 584 development plan documents across the UK, 497 of these in England (see figure below).

30 For example, see Bain, C, Dodd, A and Pritchard D (1990) RSPB Planscan: a study of development plans in England and Wales. RSPB; and Therivel, R, Wilson, E, Thompson, S, Heaney, D. and Pritchard, D. (1992) Strategic Environmental Assessment. Earthscan, London. 14

The most immediate effect of the ECJ judgment was felt by local planning authorities in England, who were in the process of introducing the new Local Development Framework and Regional Spatial Strategy systems.31 There was initial upheaval, delay and uncertainty for plan preparation caused by the overnight application of the ECJ judgment just three months after the Government had issued a Circular stating plan making authorities were not required to apply the Habitats Directive to their development plans.32 For example, difficulties in retrofitting this requirement to nearly completed plans such as Chichester Core Strategy (Case Study 12), or a failure to fully appreciate the extra evidence that this necessitated by some local authorities, such as Rushmoor Core Strategy (Case Study 41) led inspectors to conclude their submitted plans risked being undeliverable and rule them unsound, echoing similar conclusions reached by the inspector in respect of the Holton Heath/Purbeck Local Plan case (Case Study 26). The RSPB recognised the need for constructive guidance to plan-making authorities and, in the absence of any Government guidance, produced its own to disseminate best practice.33

Just over six years on [in 2012], it is clear that we are seeing the predicted benefits from appropriate application of the decision-making tests of the Habitats Directive to strategic plans. Strong examples of best practice have emerged that demonstrate the ability of the Habitats Directive tests to help plan makers adopt plans that put in place robust frameworks designed to avoid, or substantially reduce, project level conflicts between social and economic development and the protection of Natura 2000 sites. Work over the last few years in the Thames Basin Heaths and south-east Dorset (see WCL submission) and through the Breckland Local Development Framework (Case Study 8) represent ground-breaking approaches to plan-making where energy and resources are positively focused on achieving an outcome that safeguards Natura 2000 sites while continuing to meet legitimate social and economic goals with the minimum of conflict.

Each demanded application of cutting edge scientific analysis and impact assessment to better understand the effects of new housing growth and to identify appropriate solutions. These cases share several key elements common to proportionate yet robust application of the Habitats Regulations:

 Using the best available objective science to understand the potential impacts of housing growth on Natura 2000 sites, in particular rare ground-nesting birds;  Applying that science robustly and proportionately to inform impact assessments;  Identifying appropriate spatial and policy solutions to ensure appropriate measures are implemented to avoid or minimise impacts at the project level;  Co-operative working between local planning authorities, Natural England, the RSPB and Wildlife Trusts to ensure economic, social and environmental objectives could be met.

Constructive engagement by all parties in the process

We acknowledge that, for any business meeting the Habitats Regulations for the first time, the requirements are daunting, and may even appear prohibitive. We have been very conscious that lack of understanding and uncertainty may lead to anger and unwillingness to engage with the issues that the Regulations raise. Conversely, familiarity with the Regulations facilitates constructive outcomes, especially where a whole sector such as ports is operating largely within protected areas. The RSPB has invested considerable time in working with companies to assist them through the regulatory process, in the prospect that we can achieve outcomes that are good for business as well

31 Introduced by the Planning and Compulsory Purchase Act 2004 32 ODPM (2005) Circular 06/2005 Biodiversity and Geological Conservation – Statutory obligations and their impact within the planning system. 33 See http://www.rspb.org.uk/Images/spatialplansengland_tcm9-168180.pdf 15

as the natural environment and, that should we end up unable to agree, at least both sides will be doing so from a position of knowledge, and not simply misunderstanding.

We have also noted a cycle in relation to the various industry sectors that we have worked with as they learn how to work with the Regulations. The early phase is marked by generally difficult discussions and often objection/inquiry into specific proposals, is followed by greater understanding and smoother outcomes, as better spatial planning, location or design leads to the integration of development and natural environment objectives.

In this section, we give an example of this process.

Onshore wind

Badly located wind turbines have the potential to impact on bird mortality through collision with turbine blades, displacement of breeding or feeding birds due to their physical presence and damage to habitats through base structures, transmission lines and access roads etc. Where drainage systems are disrupted in hydrologically sensitive habitats, damage may extend beyond the immediate turbine.

The increasing roll-out of wind farms (both onshore and offshore) has inevitably led to growth in the number of cases on which the RSPB makes representations (see figure below).

The RSPB supports the deployment of renewable energy as a vital step in climate change mitigation. We have actively sought to work with the renewable industry to assist the deployment of turbines in a way that minimises damage to the natural environment. We believe that strategic planning has an important role in identifying areas suitable for wind farms, as well as identifying areas of sensitivity. The RSPB has contributed to this process by contributing to the development of sensitivity maps: identifying those areas where deployment of turbines would pose such high risk to birds that the developer should be cautious in their approach. Many companies now seek our views as to location and design of wind farm projects in advance of formal application, with a view to achieving an integrated project. In 2009, the RSPB commissioned a report which compared 16

approaches across the UK and a number of other countries and set out a suggested approach to positive planning for wind energy.34

This approach has been the main reason why the relative number of projects attracting formal objection from the RSPB has fallen dramatically during the last decade, at a time when the number of cases on which the RSPB has made representations has risen steadily (see figure below). Examples of where developers have engaged constructively in achieving solutions with respect to SPAs are Frodsham wind farm (Case Study 20) and Ovenden Moor wind farm (Case Study 39).

34 IEEP (2009) Positive planning for onshore wind expanding onshore wind energy capacity while conserving nature. A report by the IEEP commissioned by the RSPB. 17