The High Court has confirmed in Gladman v SSHCLG [2019] EWHC 2001 (admin) that mitigation measures cannot be taken into account at the screening stage when undertaking a Habitats Regulation Assessment (HRA). This endorses the much publicised CJEU decision in People Over Wind and Sweetman v Coillte Teoranta [C-323/17] (People Over Wind).
The Court determined that People Over Wind was correctly decided and is consistent with subsequent decisions of the CJEU on HRA matters. Importantly, the Court also held that the position is sufficiently clear and that the earlier domestic case law which provided that mitigation measures could be taken into account at the screening stage, such as R (Hart District Council) v SSCLG [2008] EWHC 1204 (Admin), no longer stand as good law.
This case lays to rest (for now at least) the correct approach to mitigation measures and screening, and provides an endorsement not only to People Over Wind but to other CJEU case law on HRA matters. This includes Grace v An Bord Pleanala (case C-164/17), where it was held that compensatory measures which could not be guaranteed as successful should not be considered at the appropriate assessment stage, but at the imperative reasons of overriding public interest (IROPI) stage.
What the case does not do is address what constitutes mitigation measures, although this may be clarified in the pending Court of Appeal decision in R (Langton) v SSEFRA [2019] EWHC 597 (Admin) (Langton). The measures in question in that instance relate to seasonal working restrictions, a common measure in projects that is often controlled by way of a condition.
There has been some comment on this in the Irish Courts recently, with the Court holding in Heather Hill Management Company clg & anor -v- An Bord Pleanála & anor [2019] IEHC 450 that the question of whether a particular measure is an avoidance or a reduction measure falls to be answered by reference to the intended purpose of the measure. The view there was that, if the measure is intended to avoid an impact on a European site, then it is likely to be an avoidance or reduction measure. We will provide an update once the Court of Appeal issues judgment in Langton.
The case law reiterates the direction of travel under HRA, whereby projects which would otherwise have been screened out from the need for an appropriate assessment will now need to go down the appropriate assessment route.
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