Directive 92/43/EEC on the Conservation of Natural Habitats and Wild Fauna and Flora – the ‘Habitats Directive’ – provides legal protection for habitats and species of European importance. Article 2 of the Directive requires the maintenance or restoration of habitats and species of European Community interest, at a favourable conservation status. Articles 3 – 9 provide the legislative means to protect habitats and species of Community interest through the establishment and conservation of an EU-wide network of sites known as Natura 2000. Natura 2000 sites are Special Areas of Conservation (SACs) designated under the Habitats Directive and Special Protection Areas (SPAs) designated under the Conservation of Wild Birds Directive (79/409/EEC).
Articles 6(3) and 6(4) of the Habitats Directive sets out the decision-making tests for plans or projects affecting Natura 2000 sites. Article 6(3) establishes the requirement for Appropriate Assessment:
“Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.”
Article 6(4) deals with the steps that should be taken when it is determined, as a result of appropriate assessment, that a plan/project will adversely affect a European site. Issues dealing with alternative solutions, imperative reasons of overriding public interest and compensatory measures need to be addressed in this case.
Article 6(4) states:
“If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member States shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.
Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.”
The Appropriate Assessment Process
The aim of Appropriate Assessment is to assess the implications of a proposal in respect of a site’s conservation objectives.
Appropriate Assessment is an assessment of the potential effects of a proposed plan – ‘in combination’ with other plans and projects – on one or more European sites. The ‘Appropriate Assessment’ itself is a statement which must be made by the competent authority which says whether the plan affects the integrity of a European site. The actual process of determining whether or not the plan will affect the site is also commonly referred to as ‘Appropriate Assessment’.
If adverse impacts on the site cannot be avoided, then mitigation measures should be applied during the Appropriate Assessment process to the point where no adverse impacts on the site remain (European Commission, 2000, 2001).
The conclusions of the appropriate assessment report should enable the competent authority to ascertain whether the proposal would adversely affect the integrity of the site (European Commission, 2000, 2001).
Under the terms of the directive (European Commission, 2000, 2001), consent can only be granted for a project if, as a result of the appropriate assessment either (a) it is concluded that the integrity of the site will not be adversely affected, or (b) where an adverse effect is anticipated, there is shown to be an absence of alternative solutions, and there exists imperative reasons of overriding public interest for the project should go ahead.