#5275 - Nature Conservation - Environmental Law

Birds Directive SPAs:

• BD – 4(1) – Species in Annex I subject of special conservation measures concerning habitats in order to ensure survival and reproduction.

Account shall be taken of: species in danger of extinction, vulnerable to specific changes in habitat, rarity/small populations/restricted local distribution, species requiring particular attention for reasons of specific nature of habitat.

Trends in population levels to be taken into account.

MSs shall classify the most suitable territories in number and size as special protection areas for the conservation of these species.

2 – MSs to take requisite measures to maintain population of species referred to at level corresponding to ecological, scientific and cultural requirements whilst taking account of economic or recreational requirements.

Level of protection – see Art6 HD.

• Ex p Royal Society for the Protection of Birds (Lappel Bank) (1997) – Art4 makes no reference to Art2 considerations of economy + recreation for implementation of special conservation measures (making of SPAs). Thus ecological requirements laid down by 4 do not have to be balanced against interests in 2. Only criteria in 4 itself are to guide and these are ornithological criteria.

• Commission v. Spain (2007) – Spain challenged for insufficient SPAs. Claimed old list of important places for birds is better than new one and so it is abiding by rules since old one was Commission supervised.

Claimed list was nothing to do with EU or public authorities and so unreliable. Commission claimed it relied on good information to define areas appropriate as under 4(1)(2).

MSs required to adopt measures necessary for conservation of relevant species. For that purpose scientific data must be updated, thus necessary to use most up to date data available. Thus in absence of scientific proof to contrary the later data must be used and thus constitutes the basis of reference for decision to designate areas. [Suggests that if any scientific data is available the MS must show contrary with own data if it wants to ignore].

Habitats Directive SACs:

• HD – 4(1) – MS to propose list of sites based on criteria in Annex III (Stage 1) and relevant scientific info indicating which habitats in Annex I and species in Annex II are native to territory. MS to transmit list to Commission within 3 years of notification of directive.

4(2) – Commission shall establish, in agreement with MS, draft list of sites of community importance. MSs who have more than 5% of territory covered by these may apply for criteria in Annex III (Stage 2) to be applied more flexibly.

4(3) – list to be established within 6 years of notification.

4(4) – Once site adopted MS concerned shall designate site as special area of conservation asap, within six years at most, prioritising important sites.

4(5) – once on list in (2) it is subject to 6(2)(3)(4).

• Ex p First Corporate Shipping (2000) – Article 4(1) does not provide for requirements other than those relating to the conservation of natural habitats and of wild fauna and flora to be taken into account when choosing the sites to be proposed to the Commission (as seen in criteria in Annex III). Indeed for the Commission to then go on and produce their list of sites which are of Community importance which is aimed to facilitate the natura 2000 network which is itself a network of habitats. For this to be possible the MS lists must be completely objective and cannot be influenced by economic, social, cultural or other considerations or else the list will not comprise all of the ecologically important sites.

Without such a list from MSs it is not possible to meet objectives of Directive.

• Stadt Papenburg (2010) – Commission under 4(2) to draw up draft list from MSs list, Stage 2 of Annex III gives criteria for Community importance. Those criteria created with need to protect species and habitats in Annex I and II in mind and with objectives of Natura 2000 generally in mind. Indeed 4(2) does not provide for consideration other than these to be accounted for, e.g. not economy etc. A MS can only refuse to give agreement on environmental protection grounds – other reasons would jeopardise objectives of Directive.

• HD – 6(1) – For SACs MS shall establish necessary conservation measures involving appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, admin or contractual measures which correspond to the ecological requirements of the habitats and species protected.

6(2) - Member States shall take appropriate steps to avoid 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.

6(3) – any plan not directly connected with site management but likely to have significant effect shall be subject to appropriate assessment of implications in view of site’s objectives. National authorities shall agree to plan only after having ascertained that it will not adversely affect the integrity of the site, and if appropriate with obtaining public opinion.

6(4) – If, in absence of alternatives, plan must be carried out in spite of implications, for reasons of overriding public interest, including social or economic nature, MS must take all compensatory measures necessary to ensure overall coherence of Natura 2000 is protected. It must inform Commission of compensation.

Where site contains priority habitat or species only considerations of human health, public safety, beneficial consequences of primary importance to the environment, or further to opinion from Commission other imperative reasons of overriding public interest, may be raised.

• Commission v. Spain (2011) [interpretation of 6(2)] – Commission brought claim for failure to prevent mining operations having adverse impact on SPA which was habitat for capercaillie.

Action on 6(2) is well founded if the Commission demonstrates to a sufficient legal standard that the MS has not taken appropriate protective measures, consisting in preventing the operational activities… from producing deteriorations of the habitats of the species and disturbances of that species likely to have significant effects having regard to the objective of that directive consisting in ensuring the conservation of that species. They must show only a probability or risk that the operation will cause significant disturbances – as under 6(3).

• Landellijke Vereniging (2004) [Interpretation of 6(3)] – Art 6(3) established a procedure intended to ensure, by means of preliminary examination, that a plan which isn’t directly connected with the management of the site but likely to have a significant effect on it is authorised only to the extent that it will not adversely effect the integrity of the site.

Art 6(2) established an obligation of general protection.

It is a probability of significant effects, not a certainty, that triggers the duty. On basis of precautionary principle such a risk will be seen to exist if there is not objective information on which it can be excluded as a possibility. This presumption allows us to ensure we are able to achieve objectives of HD.

• Nomarchiaki (2012) [Interpretation of 6(3)] – where there is no information available to objectively ascertain that a plan or project will not be likely to have significant effect on a site then we will have to presume that such an effect is likely. The MS can gain the necessary level of certainty where no reasonable scientific doubt remains and the authority is relying on the best scientific knowledge in the field that is up to date.

[Thus art 6(3) actually duty for decision makers to be informed].

• Solvay and Others (2012) [Interpretation of 6(4)] – Q is whether creation of infrastructure for a private management centre may be regarded as imperative reason of overriding public interest justifying implementation of a plan that will adversely affect integrity of a site.

Art 6(4) must be interpreted strictly - indeed it can apply only after the implications of a plan are studied under 6(3).

Implications of plan in light of conservation objectives of site necessary to weigh against imperative reasons of overriding public interest. Furthermore to calculate compensation the damage must be known. Overriding means that reason outweighs the objectives of the HD.

But in light of considerations above the mere construction of infrastructure for a private management centre is not enough.

Implementation.

Habitats Regulations 2010:

• Reg 61(1) – Authority before allowing plan which (a) is likely to have significant effect on a European site, and (b) is not directly connected with management of site, must make appropriate assessment if implications for that site in view of its objectives.

61(2) – applicant for consent to plan must provide info as reasonably required for purposes of assessment or to determine if assessment required.

61(3) – Authority must consult appropriate nature conservation body and have regard to representations made by them within reasonable time as the authority specifies.

61(4) – If they consider appropriate they must take opinion of public and must take steps to do so as they consider appropriate.

61(5) – May agree only after having ascertained that it will not adversely affect the integrity of the site.

61(6) – In considering adverse effect authority must regard the manner in which it is proposed to be carried out and any conditions or restrictions...