2.5. Relevant Case Law

  1. The case law that defines key assessment parameters (such as the definition of “integrity” and “significance”, the consideration of ex situ effects and the consideration of mitigation measures) are discussed in the sections 2.5.1 to 2.5.3. 

2.5.1. Consideration of Mitigation Measures

  1. In case C-323/17 ‘People Over Wind and Sweetman v Coillte Teoranta’ (April 2018) (Sweetman 2), the CJEU ruled that mitigation measures could not be taken into account at the screening stage. This judgment was taken into account in undertaking the screening exercise for the Array and no mitigation measures (secondary or additional mitigation) were considered in the HRA Stage One LSE2 Screening Report (appendix 1A).

2.5.2. Adverse Effects on the Integrity of European Sites

  1. The European Commission’s guidance on managing Natura 2000 sites (2018) advises that the purpose of the Appropriate Assessment is to assess the implications of the plan or project in respect of a European site’s conservation objectives, either individually or in combination with other plans or projects. The conclusions should enable the relevant competent authorities to ascertain whether the plan or project will adversely affect the integrity of the European site concerned. The focus of the Appropriate Assessment is therefore specifically on the species and/or the habitats for which the European site is designated.
  2. The European Commission (2018) also emphasises the importance of using the best scientific knowledge when carrying out the Appropriate Assessment in order to enable the competent authorities to conclude with certainty that there will be no adverse effects on the integrity of the European site. This guidance notes that it is at the time 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 European site in question.
  3. The CJEU confirmed in its ruling in Case C-258/11 that “Article 6(3) of the Habitats Directive must be interpreted as meaning that a plan or project not directly connected with or necessary to the management of a site will adversely affect the integrity of that site if it is liable to prevent the lasting preservation of the constitutive characteristics of the site that are connected to the presence of a priority natural habitat whose conservation was the objective justifying the designation of the site in the list of SCIs, in accordance with the directive. The precautionary principle should be applied for the purposes of that appraisal”. The European Commission (2018) advises that the logic of such an interpretation would also be relevant to non-priority habitat types and to habitats of species.
  4. The “integrity of the site” can be usefully defined as the coherent sum of the European site’s ecological structure, function and ecological processes, across its whole area, which enables it to sustain the habitats, complex of habitats and/or populations of species for which the site is designated (European Commission, 2018). In Sweetman, Ireland, Attorney General, Minister for the Environment, Heritage and Local Government v An Bord Pleanála) (C-258/11) (Sweetman 1) it was determined that the ecological structure and function of a European site would be adversely affected with reference to the site’s overall ecological functions and “the lasting preservation of the constitutive characteristics of the site.” In a dynamic ecological context, it can also be considered as having the sense of resilience and ability to evolve in ways that are favourable to conservation (European Commission, 2018).
  5. The European Commission (2018) notes that if the competent authority considers the mitigation measures are sufficient to avoid the adverse effects on site integrity identified in the Appropriate Assessment, they will become an integral part of the specification of the final plan or project or may be listed as a condition for project approval.
  6. The European Commission (2020) advises that it is for the competent authorities, in the light of the conclusions made in the Appropriate Assessment on the implications of a plan or project for the European site concerned, to approve the plan or project. This decision can only be taken after they have made certain that the plan or project will not adversely affect the integrity of the site. That is the case where no reasonable scientific doubt remains as to the absence of such effects.
  7. The European Commission (2020) also reaffirms that the authorisation criterion laid down in the second sentence of Article 6(3) of the Habitats Directive integrates the precautionary principle and makes it possible to effectively prevent the European sites from suffering adverse effects on their integrity as the result of the plans or projects. A less stringent authorisation criterion could not as effectively ensure the fulfilment of the objective of site protection intended under that provision. The onus is therefore on demonstrating the absence of adverse effects rather than their presence, reflecting the precautionary principle. It follows that the Appropriate Assessment must be sufficiently detailed and reasoned to demonstrate the absence of adverse effects, in light of the best scientific knowledge in the field.
  8. In accordance with the decision of the CJEU in the Waddenzee (C-127-02), the measure of significance is made against the conservation objectives for which the European sites were designated.

2.5.3. Consideration of Ex situ Effects

  1. The European Commission (2018) advises that Article 6(3) and Article 6(4) safeguards be applied to European sites subject to LSE2s from any development pressures, including those which are external to those European site(s).
  2. The CJEU developed this point when it issued a ruling in case C-461/17 (“Brian Holohan and Others v An Bord Pleanála”) that determined inter alia that Article 6(3) of Directive 92/43/EEC must be interpreted as meaning that an Appropriate Assessment must on the one hand, catalogue the entirety of habitat types and species for which a European site is protected, and, on the other, identify and examine both the implications of the proposed project for the species present on that site, and for which that site has not been listed, and the implications for habitat types and species to be found outside the boundaries of that site, provided that those implications are liable to affect its conservation objectives.
  3. In that regard, consideration has been given at Screening (and where necessary, based on the outcomes of that Screening) in this RIAA to implications for habitats and species located both inside and outside of the European sites with reference to their conservation objectives, where effects upon those habitats and/or species are liable to affect the conservation objectives of the sites concerned.