Developments dependent on Habitats Directive

European Commission opinions on the application of Article 6(4) of the Habitats Directive highlight the possibilities of development in the public interest

Aggregates and minerals companies have traditionally steered clear of derogation tests included in article 6(4) of the Habitats Directive, which would allow developments to proceed in protected areas if they meet public interest tests, there is no alternative and environmental compensation is offered.

This article offers an overview of the legislation and a brief review of some recent cases, which show how different member states are applying the law.

The Habitats Directive is one of the cornerstones of Europe’s nature conservation policy. It was adopted in 1992 and is the means by which the 3654 European Union meets its obligations under the Bern Convention. The main aim of the directive (which mirrors the Bern Convention) is to promote the maintenance of biodiversity by requiring member states to maintain or restore natural habitats and wild species, which are listed in the Annexes to the Directive.

The legislation also requires member states to take account of regional characteristics, economic, social and cultural requirements.

The Habitats Directive aims to take account of public interest in developments or projects through article 6(4), which allows plans or projects which may have an adverse effect on the integrity of a European site to go ahead on grounds of “imperative reasons of overriding public interest” (IROPI) where there are no alternative solutions and compensatory measures have been secured.

Case law across Europe has also seen some differences in the way article 6(4) is being applied. Where there is reluctance to engage with the derogation tests in Article 6(4) from member states it has had the effect of making some developers less likely to develop in those countries.

In the UK, the Department for the Environment, Food and Rural Affairs (4358 DEFRA) has recently closed a public consultation into its draft guidance on the implementation of article 6(4). Aggregates businesses will await the outcome of the consultation with interest, as there has been some concern expressed within the industry that Defra’s guidance as originally drafted should have been more positive: that is allowing greater scope to achieve development using the article 6(4) derogation test.

Case law in the UK thus far could be said to be limited in its application of article 6(4).

The Dibden Bay case concerned proposals to build a deep-water container port on the edge of the New Forest in County Hampshire (southern England). The proposal was eventually rejected by the UK Secretary of State who determined that it had not been shown that other ports on the south and east Coasts of the UK were not alternative solutions.

The 1022 European Commission appears to have taken a more holistic approach to the article 6(4) derogation tests in its opinions.

In EC case C(2011)9090, Deepening of the River Elbe from the estuary to the port of Hamburg, in contrast to the Dibden Bay case, it was determined that other ports in Germany were not an alternative.

The Elbe case recited in particular the impact on the economy of Hamburg and the environmental consequences of unloading ships at those other ports. A not dissimilar approach was taken in C(2003)1308 Project Mainport Rotterdam Development Plan where the effect of the competiveness of the port within the Hamburg-Le Harvre range was considered and found to be a contributing factor in IROPI terms to allowing a derogation under article 6(4).

Contact

Chris Tofts is a specialist planning lawyer at 2974 Stephens Scown LLP in the UK. The firm has more than 70 years’ experience representing mining and minerals clients and its mining and minerals team has recently been recognised once again by independent guides to the law Legal 500 and Chambers.

Chris can be contacted on
+44 (0)1872 265100 or
email: %$Linker: 2 Email <?xml version="1.0" encoding="utf-16"?><dictionary /> 0 0 0 oLinkEmail [email protected] [email protected] false mailto:[email protected] true false%>

For more information visit
%$Linker: 2 External <?xml version="1.0" encoding="utf-16"?><dictionary /> 0 0 0 oLinkExternal www.stephens-scown.co.uk www.stephens-scown.co.uk false http://www.stephens-scown.co.uk/ false false%>.Of potentially more direct importance to the aggregates and mineral industry is the case of Operational master plan (“Rahmenbetriebsplan”) of the Prosper Haniel Colliery [Bottrop, Germany] where IROPI and alternative solution factors put forward to the Commission included favourable geological infrastructure conditions; use of the product in the locality; closure of the mine having unacceptable direct and indirect economic and social consequences at the regional level; supply security, and maintaining a leading position in the market.

While the Commission investigated these matters and did not agree with all of the conclusions put forward it still agreed to a derogation on the basis of the potential short-term significant social and economic effects at the local and regional level.

This brief review of case law demonstrates the different approaches to implementation of the Habitats Directive across the European Union. It also shows that there is real scope to achieve development utilising the article 6(4) derogation test.

It is an area to watch with interest as member states continue to issue guidance and develop case law in this area.