In April, the European Court of Justice (ECJ) made a landmark ruling in the ‘People over Wind’ case pertaining to habitat regulations assessments (HRAs) for new developments, contradicting previously established practice and court rulings and attracting strong criticism from all corners.
All developments have an impact on the environment, so it is important to try to avoid, mitigate and, as a last resort, compensate for negative ones. For example, if a planned development would affect animals at a designated wildlife site by impeding a ‘corridor’ between a breeding site and foraging area, the developer could plan a replacement wildlife ‘corridor’. This would be a ‘mitigation measure’, as it would prevent decline of the animal population.
Until recently, UK courts had ruled that planned impact avoidance and mitigation measures could be taken into account from the first stage of the HRA process (known as ‘screening’), if there was sufficient evidence and security of delivery to make the decision-maker confident of their efficacy. Well-planned developments that addressed the environmental impact with evidence-based solutions were rewarded for their foresight with a quick and efficient passage through the HRA process. Less considerate developments had to undertake a second, more onerous, ‘appropriate assessment’ survey.
The People over Wind ruling overturned this precedent, determining, on the basis of at least three incorrect assertions, that impact avoidance and mitigation measures must be entirely disregarded at the initial HRA screening stage and, worse than this, that if developments include such measures, they must by default fail the screening stage. This means that even the most carefully planned development will inevitably ‘fail’ this initial stage and have to undergo the ‘appropriate assessment’.
The People over Wind judgment and a second ECJ ruling known as ‘Grace and Sweetman’, which ‘doubled down’ on its faulty logic, have thrown a spanner in the works of common sense, in which the needs of the property market and those of the environment are productively reconciled. This second judgment also revealed an incorrect understanding by the court of the fundamental difference between mitigation and compensation.
The ECJ rulings reinforce what many have long believed: whether or not we remain in the EU, there is a pressing need for a specialist environmental court qualified to make these decisions, supported by experienced environmental advisers who understand the ‘real-world’ impact of their judgments. As Britain’s exit from the EU moves closer, the urgency of this need increases by the day.