Lee Valley Regional Park Authority v Epping Forest District Council

"Schedule 2.1(b) includes water management projects for agriculture where the area of works exceed 1 hectare. The application includes provision and use of water storage ponds in excess of this area and therefore this aspect of the development falls within Schedule 2 and must be assessed under Schedule 3 of the regulations.

Schedule 3 sets out the criteria that should be considered in assessing whether the development is likely to have significant environmental effects and therefore require an EIA.

I have considered the development therefore in relation to Schedule 3 and noted that the site falls within a 'sensitive location', being within 2km of a Special Protection Area under the EC Birds Directive 79/409, Ramsar, and SSSI and Local Wildlife Sites within the Lee Valley Regional Park.

I have therefore assessed whether the provision and use of the proposed storage ponds within the development would be likely to have significant environmental impacts, in relation to this sensitive location. The application included a phase 1 Habitat and Ecological Scoping Report and the information in this report has been taken into account in my assessment.

The proposals include remodelling of an existing lake which although outside any protected area is within 1km of the Lee Valley SPA and Ramsar site. The lake provides habitat suitable for 3 SPA Citation species and has been noted to support 2 of them (Gadwall and Shoveler).

Given that the proposals do not propose removal of the lake but rather include remodelling this lake and creating a new additional storage pond to the north such that there is potential for a net increase in habitat provision for the relevant species, I do not consider that the impact of the development is likely to be significant.

Given the nature of the proposals, the previous and existing uses of the land and the position of the development within the landscape it is not considered that the proposals will have wider significant environmental impacts and therefore the Council considers that the proposed works in totality are not EIA development and an EIA is not therefore required."

"The Lee Valley SPA is located to the north-east of London, where a series of wetlands and reservoirs occupy about 20km of the valley. The site comprises embanked water supply reservoirs, sewage treatment lagoons and former gravel pits that support a range of man-made semi-natural and valley bottom habitats. These wetland habitats support wintering wildfowl, in particular Gadwall Anas strepera and Shoveler Anas clypeata, which occur in numbers of European important. Areas of reedbed within the site also support significant numbers of wintering Bittern Botaurus stellaris...

This site qualifies under Article 4.1 of the Directive (79/409/EEC) by supporting populations of European importance of the following species listed on Annex 1 of the Directive...

Over winter:

Gadwall Anas strepera, 515 individuals representing at least 1.7% of the wintering Northwestern Europe population (5 year peak mean 1991/2 - 1995/6)

Shoveler Anas clypeata 748 individuals representing at least 1.9% of the wintering Northwestern/Central Europe population (5 year peak mean 1991/2 - 1995/6)"

The Lee Valley SPA was classified in June 2000 for its wintering populations of three bird species: Bittern Botaurus stellaris, Gadwall and Shoveler. The small lake on site does provide habitat suitable for the three SPA citation species. During the course of the scoping survey the lake was noted as holding both Gadwall and Shoveler. Although this lake is not part of the SPA it is necessary to consider the importance of this lake in the context of supporting proportions of the SPA populations of both Gadwall and Shoveler and any potential impacts which may arise through the proposed development. The 30 Gadwall recorded during the scoping survey represents 6.6% of the SPA citation population (as based on the 5 year peak mean 1993/4-1997/8 derived from WeBS core count data for the Lee Valley SPA). The 5 Shoveler recorded represents 1.2% of the SPA citation population (as based on the 5 year peak mean 1993/4-1997/8 derived from WeBS core count data for the Lee Valley SPA).

"However the Ecological Survey carried out by RPS has identified that the small lake in the southern part of the proposal site (referred to as a 'splash' by the applicant) is used by birds including Gadwall and Shoveler which are among the interest features for which the Lee Valley SPA is classified and the Lee Valley Ramsar site is listed.

Their survey on 17 March 2011 recorded the presence of 30 Gadwall: which equates to 6.6% of the population of the Lee Valley SPA and Ramsar site at the time of its designation as an SPA and Ramsar site; or 10% of the minimum number required to qualify a site for selection as an SPA. The proposal site is, therefore, undoubtedly of considerable importance as supporting habitat which is used by the SPA bird interest. (This survey also recorded the presence of 5 Shoveler; although this number is not considered to of particular significance in terms of the population of the SPA and Ramsar site).

Therefore, in the opinion of Natural England, and in the absence of mitigation, the proposal is 'likely to have a significant effect on the European site'. Furthermore, Natural England is also of the opinion that, in the absence of mitigation, the proposal does have the potential to 'adversely affect the integrity of the European site'...

Natural England also notes mitigation measures which have been proposed as part of the application, and considers that these measures should be capable of providing an adequate and extent of supporting habitat, in order to ensure that there would not be a detrimental impact upon those bird species which are designated interest features of the Lee Valley SPA and Ramsar site.

Therefore, provided that these mitigation measures are fully implemented and adequately maintained, Natural England considers that they would be sufficient to prevent the proposal having a significant effect upon the European and international site.

Based on the information provided, Natural England has no objection to the proposed development subject to the inclusion of our recommended conditions and the proposal being carried out in strict accordance with the details of the application. The reason for this view is that subject to the inclusion of our recommended conditions, the proposed development, either alone or in combination with other plans or projects, would not be likely to have a significant effect on the Lee Valley SPA and Ramsar site.

The conditions we recommend are:

• No excavation, infilling or noisy construction works (ie those involving heavy machinery, or particularly noise equipment such as angle-grinders, or hammering) are to take place within the southern half of the proposal site during the period from 1 October to 31 March inclusive in any year.

Reason: To avoid disturbance of the SPA bird interest during the winter period.

• The infilling of the northern part of the existing lake or 'splash' shall not commence until after the completion of the excavation works to extend this lake to the east.

Reason: To ensure continuity of extent of supporting habitat for the SPA bird interest.

• The lake and its margins shall be managed in such a way as to maintain the balance of habitats and features as detailed on drawing NK016844_SK035 Revision B.

Reason: To ensure the long-term availability of sufficient suitable supporting habitat for the SPA bird interest.

Informative: This requirement would probably be most appropriately and effectively addressed through a S.106 Agreement."

"Natural England acknowledges that the bird survey data supplied in support of this application fell considerably short of the standard which we would normally expect from any application affecting an SPA or other statutory designated site.

However, in this particular instance, we chose to weigh this concern against the fact that the lake in question did not appear to have been previously identified as being of significant nature conservation importance (it had not, for example, been designated as a Local Wildlife Site). Consequently, we took the view that the information provided by the applicant represented a significant advance over the previous stated knowledge and felt that, subject to appropriate conditions to ensure their delivery, the proposed mitigation measures were both appropriate and proportionate.

In reaching this view, we also took into account the likelihood that the gadwall were probably exploiting the high level of weed growth within a relatively newly created lake and that, in the absence of appropriate habitat management, the current level of bird interest was unlikely to be sustained in the longer term. A S106 agreement in order to secure such management was one of the conditions which we recommended."

"As explained in our letter of 6 July 2011, Natural England is of the opinion that the proposal is 'likely to have a significant effect on the European site'. Furthermore, Natural England is also of the opinion that, in the absence of mitigation, the proposal does have the potential to 'adversely affect the integrity of the European site'.

In responding to this planning application, Natural England considered the potential impacts of the proposed development and, in particular, the effects upon the bird interest of the Lee Valley SPA and Ramsar site. We also took into account the mitigation measures which the applicant had proposed. We concluded that, subject to the attachment of our recommended conditions, the development would not adversely affect the integrity of the SPA and Ramsar site.

From this it is implicit that, in the absence of these conditions, an adverse effect on the integrity of the site cannot necessarily be ruled out (based on the currently available data). Therefore, Natural England would be very reluctant to allow significant increased flexibility with regard to the timings contained within the recommended conditions.

If the applicant is not willing to accept these conditions, then we respectfully suggest that your council should not grant permission and should, instead, request that the applicant provide further more detailed bird survey data (as has been suggested by the RSPB in their objection dated 11 August 2011), in order to provide sufficient information to enable your council to carry out a full formal Appropriate Assessment."

"Issue (i) whether the proposal would be 'inappropriate development' for the purposes of the NPPF and development plan policy.

87,119 sq m of glass house would be for agriculture, one of the very limited exceptions to the construction of new buildings referred to in paragraph 89 of the NPPF. In addition, of course, there would be the associated warehouse area, office space, welfare facilities, large hard-surfaced areas for parking for HGVs and the irrigation tanks. It seems to me that, with the scale of agricultural production envisaged within the glasshouses, these uses, although large floor spaces in their own right, would be essential to the functioning of the agricultural use, and might be regarded as ancillary to the main use. I conclude the proposals would not be inappropriate development for the purposes of national and local planning policy.

Issue (ii) the effect of the development upon the openness of the Green Belt and the purposes of including land within it.

While not inappropriate development, the effect of the development on the openness of the Green Belt is still a material consideration and a potential harm factor to be weighed in the balance. The fact that a development is not inappropriate does not set aside the fundamental Green Belt aim of 'keeping land permanently open'.

The appellant argues that through the implementation of the habitat enhancement and landscaping, supported by the findings of the Landscape and Visual Impact Assessment, the proposals are demonstrated not to have an excessive adverse impact upon the openness, rural character or visual amenities of the Green Belt.

But this cannot be correct; the scheme would involve the construction of 8.7ha - huge on any scale - of new building that is not there at present. Regardless of whether the building would have some landscaping associated with it and/or enhanced habitat creation, the area where the glasshouse would be located would not, any longer, be open; the ground would not be free of solid, tangible development; it would not be being kept 'permanently open'. Such huge additional volume and bulk must diminish the openness of the Green Belt and the purpose of including land within it such as safeguarding the countryside from encroachment. 'Openness' is referred to in the new NPPF; where it is noted that one of the essential characteristics of Green Belts is their openness; I repeat that a policy objective is keeping land permanently open'. The proposal must conflict with national policy as expressed in the NPPF and LP policy; I accord this harm significant weight."

While the existing lake on the site is not part of the Lee Valley Special Protection Area (SPA) and Ramsar site, the ecological report states that during the course of the scoping survey there were 30 gadwall and 5 shoveler noted. The RSPB is of the opinion that the lake is functionally linked to the SPA since species for which the SPA has been designated are dependent on this habitat. It is therefore necessary to consider the ecological importance of the lake habitat in supporting a proportion of these species.

I understand that this lake has only been created in very recent times following the termination of gravel extraction and is part of the restoration work. It is interesting therefore that these species have take so readily to the lake and indicates that, all other circumstances being similar, they might take readily to the re-modelled lake. However, the proposals aim to bring greater numbers of people right up to the water edge and over it on timber walkways. The public footpath would be rerouted immediate (sic) adjacent to it, the picnic area and glasshouses would be within a few metres. The re-modelled lake would not be the relatively secluded and distant body of water it is at present and the species associated with the SPA may not use it to the same extent. While I note that Natural England raise no objection I am not satisfied, on the basis of the evidence I have, that the scheme would not adversely affect the integrity of the European site."

"Statutory nature conservation sites - no objection.

Based upon the information provided, Natural England advises the Council that the proposal is unlikely to affect any statutorily protected sites or landscapes but also refers you to our previous response, you ref EDF/2547/11, issued 06 January 2012."

"Wetland Bird surveys were carried out on a variety of dates between May 2011 and March 2012. The results indicate that the water bird counts in the gravel pit pond (application area) are considerably lower than counts made on Holyfield Lake. There is a notable size difference between the two water bodies and the gravel pit pond is therefore of lower habitat value. The reformation of the gravel pit pond will present a low impact on water bird populations provided that recommendations are implemented and the works are carried out during a period outside the breeding season and at a time which will be the least invasive. In all TWIG, the Consultancy who undertook the survey work, is satisfied that the application demonstrates a low impact on optimal habitat for listed species provided that works take place outside the breeding season and the operations do not disturb bird populations utilising key areas of the site."

"Green Belt

The proposed development is required for the purposes of horticulture and is therefore 'appropriate' in the Green Belt in terms of national guidance and Policy GB2A of the adopted Local Plan and Alterations. The applicant does not therefore need to demonstrate very special circumstances in order to justify the development. The visual impact, and impact on amenity, the environment and on highway safety do however also need to be addressed in accordance with GB7a and GB11 of the Plan and these matters are considered below.

In considering the previous appeal, the Inspector concluded that the development would be harmful to openness of the Green Belt and the purposes of including land within it. The NPPF however, whilst generally setting retention of openness at the heart of its Green Belt Policy, is strangely worded with regard to agricultural buildings. Para 89 states:

'A Local Planning Authority should regard the construction of new buildings as inappropriate in the Green Belt. Exceptions to this are:

• Buildings for agriculture and forestry

• Provision of appropriate facilities for outdoor recreation and for cemeteries, as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it:

• The extension or alteration of a building provided it does not result in disproportionate additions over and above the size of the original building...'

This wording clearly implies that unlike other forms of appropriate development, buildings for agriculture and forestry do not have to preserve openness and can conflict with the purposes of including land within it. This is actually quite logical as many agricultural buildings are by their very nature large and intrusive and will have a significantly adverse impact on openness.

The applicants have submitted with their application Counsel advice with regard to the Inspector's suggestion that despite being appropriate development this does not set aside the fundamental requirement of keeping land permanently open. The Legal Opinion of Peter Village QC is that this is 'fundamentally wrong and legally erroneous'.

This is of course only an opinion and Planning case law is full of examples of opinions and legal precedents which provide conflicting views, on almost any issue but it is in officer's (sic) view a logical interpretation of the wording in the NPPF and despite the fact that the previous appeal inspector placed weight on the openness of the Green Belt, it is not considered that his would be grounds to refuse the application. The Council's Policy GB11 relating to agricultural buildings (and is considered to be in accord with the NPPF) does not require that such buildings maintain openness."

The existing nursery is within an identified E13A Glasshouse Area but the proposed site is not. The development cannot in any way be described as a modest extension and the proposal will have an adverse impact on the open character of the countryside in this location due to its sheer scale. It is therefore clearly at odds with this policy, although it is open to dispute whether the that the (sic) requirement not to have an adverse impact on the 'open' character is in actually (sic) in compliance with the NPPF for the reasons set out in the Green Belt section above.

However, it is acknowledged that the Council's Glasshouse policy is based on a study carried out in 2003 and is therefore not addressing the current needs of the industry; at the time of the previous decision the Council's Study on the Future of the Lee Valley Glasshouse Industry had been commissioned but was at an early stage. This report has since, however, been completed and was adopted in July 2012 as part of the Evidence Base for the New Local Plan."

As before the applicants have satisfactorily demonstrated that there are no suitable sites available for this development within the currently adopted E13 areas. If the Council wishes to continue its support for the glasshouse industry, there has to be a greater understanding of how it is changing with increased pressure for economies of scale, new technology etc, and growing competition from Europe, North Africa and significant sites elsewhere in the UK (notably Thanet Earth). The application reflects these trends and if the decision is to refuse on policy grounds, the consequences may be that the growers will seek to find suitable sites outside the District, leaving the potential problem of a large derelict site, and the loss of employment of 40 full time posts (now) and the potential loss of an additional 40 full time posts. These are important concerns and any decision here has the potential for significantly adverse consequences.

In the light that there is no site within the existing identified glasshouse areas that could meet the needs of the developer it is not considered that this site can be dismissed simply because it is outside the scope of policy E13A. The particular merits of the development in this location therefore need to be looked at in detail."

As such, it is important to establish whether the proposed development is 'sustainable'. The Sustainability Statement accompanying the application outlines the use of CHP that 'will provide significant electricity back to the national grid' and with filtered CO2 exhaust gases being re-circulated within the glasshouses to supplement photosynthesis. Previous years' crops have successfully been pesticide free and where intervention is needed it is specific and targeted. Production under lights at the site will produce no additional carbon to that of conventional nurseries operating without CHP. Production without lights will be virtually carbon neutral; the development will include sustainable principles in its design, construction and end use. Significant attention is being paid to water use and storage. The site is not isolated, it is relatively close to major transport links and it is considered that the scheme generally meets the sustainability policies of the Local Plan.

The previous application was not refused on sustainability grounds, and it is considered that the development is sustainable."

The site is within the Lee Valley Regional Park and pays heed to para (1) of policy RST24, which requires new development in the Park to have regard to the importance of the park for leisure, recreation and nature conservation and make provision, where appropriate, for improved public access and landscaping. The developers have from the outset included habitat provision within the reconfigured lake area and seek to provide access and education at the site through the provision of picnic site (sic), interpretation boards and an outdoor classroom. With the intention of protecting and enhancing wildlife provision while enabling visitors not only to view the wildlife from but also to find out about the Lee Valley Glasshouse industry and showcase the modern development. The intention is to forge links with schools and work with the Council's Countrycare team and the Lee Valley Park to provide facilities appropriate to the location.

It has to be acknowledged, however, that the proposal is contrary to (ii) and (iii) of the policy - i.e. safeguarding the amenity and conserving the landscaping of the Park. The application site is included in a 'Landscape Enhancement Area' in the Park Plan of 2000. The area immediately south of the application site is described thus, 'The positive and attractive landscape character to the south of Langridge Farm to be retained and protected. This strong identity of woodland, wetland and open parkland to be extended north to Nazeing Road... The primary focus is to continue the restoration of degraded land and bring it into use for informal recreation.' Whether this is practical or achievable in the current economic climate is open to question, but this remains the most detailed approach of the Authority to this area of the Park. The action presumably take since this plan was published was to restore the application site to arable use, rather than for informal recreation...

The Park Authority have raised clear objection to the proposal as was set out above and it is clear that the Authority consider that this development would be significantly harmful to the aims of the Park and the development may set a dangerous precedent if approved for other such development within the park boundaries. The 2012 Glasshouse Study referred to above acknowledges that expansion of E13 area within the Park Boundary will be resisted by the Park Authority and the previous appeal decision placed significant weight on the harm to the character and appearance of the Park. Should members determine to Grant Planning Permission the Park Authority will require that the application be referred to the Secretary of State."

Natural England were consulted and based on the information provided consider that the proposal is unlikely to affect any statutorily protected sites or landscapes and referred us to their provisions advice with regard to the previous applications.

The Lee Valley SPA that lies about a km from the site is classified for its wintering bird interest. Natural England has advised that they do not consider that the proposed development is directly connected with or necessary to the management of the site for nature conservation and would not directly impact on the European or Ramsar Site. They are also satisfied that any issues relating to increased surface water run off resulting from the large glasshouse should be capable of being addressed by the provision of the proposed balancing pond. However the small lake at the site has been identified as being used by birds including Gadwall and Shoveler for which the Lee Valley SPA is classified and the Ramsar site is listed. Without mitigation the development would potentially have a significant effect on the European Site and could adversely affect the integrity of the European Site. However the development proposes mitigation as part of the application and Natural England have concluded that these measures should be capable of providing an adequate extent and continuity of habitat in order to ensure that there would not be a detrimental impact. As a result Natural England has raised no objection to the proposed development subject to the imposition of conditions and the development being carried out in strict accordance with the details of the application...

As explained above the development includes significant mitigation in the form of habitat creation and is therefore considered acceptable in terms of its impact on wildlife.

In considering the previous appeal the Inspector felt that by bringing the public into the site with walkways and picnic areas, the lake would no longer be a distant and secluded feature and that the species associated with the SPA may not use it to the same extent, she noted the lack of objection from Natural England but concluded 'I am not satisfied, on the basis of the evidence I have, that the scheme would not adversely affect the integrity of the European Site.'

This leaves us in a difficult position. Natural England is the Statutory Consultee with regard to impact on Statutory Nature Conservation sites and they have concluded from the information provided that there is unlikely to be an adverse impact. The thrust of recent government guidance for dealing with planning applications is to avoid delay in the determination of applications and not to request excessive supporting information. On balance it is considered that despite the concerns raised by the Planning Inspector and the LVRPA with regard to potential impact on wildlife, adequate information has been provided and any likely impact will be suitably mitigated and not so great as to warrant refusal.

It should be noted that the previous applications were not refused on grounds of harm to wildlife or habitats."

"Conclusion

Once again in reaching a recommendation on this development we need to balance a number of competing issues and make a judgement as to which should carry most weight. The previous appeal decision which upheld members' decision to refuse the 2011 application is a material consideration that must be taken into account. Countering this, the applicant has submitted a strong argument that the weight the Inspector placed on maintaining the openness of the Green Belt was erroneous.

The development is clearly contrary to policy E13A which seeks to contain the glasshouse area, but this policy is outdated and the Council will not have a new policy until a new local plan is adopted, which is still some time away. Whilst the study on the future of the glasshouse industry has provided an evidence base it has not, nor was it intended to set out a way forward, this will need to be part of the local plan process.

The argument was previously made and supported on appeal, that to approve the development contrary to the adopted policy could have a significant impact on land use policy and set a dangerous precedent making glasshouses more difficult to resist elsewhere, and changing policy by default rather than through the proper plan process. The Inspector in May 2012 stated, 'In the interests of ensuring that decisions are made locally where possible, it is important that the Council concludes this speedily and resolves the difficult local balance.'.

Now nearly 2 years further on unfortunately despite best efforts, we are still in the same position. This leaves the applicants in a state of complete impasse, with no certainty about how to best ensure the continuation and expansion of their business. Government policy seeks to prevent delay and to push forward suitable sustainable development and the policies of the NPPF are supportive of economic development and the rural economy, it is considered that with the passage of time the ability to resist development on the basis of Policy E13 has been undermined.

On the basis therefore that the openness argument and the E13 argument are not as strong as they were in 2012 we need to weigh up whether the harm from the development is such as to outweigh the presumption in favour of sustainable economic development.

The main harm argued previously was the harm to the Lee Valley Regional Park and the Park Authority are clearly maintaining their objection, however their concern regarding traffic generation was not previously upheld on appeal and the impact on the ecology of the area was not a previous reason for refusal nor is it backed by Natural England. This leaves essentially two related issues; the scale of the development being incompatible with the function of the park and that the glasshouse would adversely affect the landscape setting of the site to the detriment of visitor amenity.

The question is really whether this impact is such that that the use of this area of the park for recreation is undermined. This is open to debate while some may consider that the glasshouse and it's almost industrial nature will significantly impair enjoyment, there is an argument that to be able to see a modern large scale glasshouse development of this kind in the Lea Valley, (which is historically known for its glasshouse industry) will add interest. The provision of suitable educational and information boards not only about the wildlife but also about the glasshouse industry could add to the attraction of the area for some. The Inspector at appeal stated that the experience of walkers would 'simply be a different experience, neither better nor worse'. However the Inspector did place significant weight on the impact of the development when viewed from the LVRP Viewpoint at Holyfield Hall Farm over a km to the south of the site. She states; 'This has been created and promoted as a public viewpoint and looking north-west the new glasshouse would be a significant element in the landscape... There would be significant harm to the character and appearance of the LVRP.' She therefore concluded that the development was contrary to policy RST24.

It is accepted that the development does not enhance the park and that there is harm to the landscape. This is inescapable for a development of this size; however this is just one of the competing factors that need to be balanced.

Officers are of the view that even taking into account the previous appeal decision and that there are policies that could be used to refuse this application, the potential benefits of the development in terms of economic development, and sustainability outweigh the limited harm to the character and amenity of the area and to the LVRP that would result. It is unlikely that a more suitable location, with less visual impact and impact on wildlife, landscape and residential amenity could be found within the District. If the District is to continue to enable the growth of the Glasshouse industry that has been such an important part of its heritage and not push growers to find sites further afield then development of this nature which provides suitable landscaping, ecological mitigation and transport plans and can not be located within E13 areas should be considered favourably. It is acknowledged that this could set a precedent for other large horticultural development in the District but such applications would also need to be considered on their individual merits.

Therefore, particularly in the light of the emphasis in the NPPF that 'significant weight should be placed on the need to support economic growth through the planning system' officers again consider that the balance is in favour of the development. The revised application is therefore recommended for approval subject to the raft of conditions set out in Appendix 1 and subject to the prior completion of a legal agreement covering factors a), b) and c) set out in Para 5 above.

However Members must be aware that the recommendation is contrary to the adopted Policies of the Local Plan and is contrary to the views of the Lee Valley Regional Park Authority. As a departure from the plan, should Members be minded to grant permission for the development, the matter would need to be referred to the Secretary of State. Referral is also required under Section 14(8) of the Lee Valley Regional Park Act. This means that the matter is referred to the Secretary of State to consider whether the application should be called in to be determined by the Secretary of State following a Public Inquiry.

Should Members however maintain their objection to the scheme, it is considered that the revised proposal could still be refused as it is contrary to current adopted policies and does not overcome the previous reasons for refusal 1, 3 and 4 as set out in Para 9 above. We could however face criticism at appeal on the basis that the current plan is not up to date and we have as yet no clear strategy to meet the future needs of the Glasshouse Industry."

Policies

"For decision-taking this means:

• approving development proposals that accord with the development plan without delay; and

• where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:

-- any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or

-- specific policies in this Framework indicate development should be restricted."

Within the overarching roles that the planning system ought to play, a set of core land-use planning principles should underpin both plan-making and decision-taking. These 12 principles are that planning should...

• proactively drive and support sustainable economic development to deliver the homes, business and industrial units, infrastructure and thriving local places that the country needs."

The Government attaches great importance to Green Belts. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green Belts are their openness and their permanence...

As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.

When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. 'Very special circumstances' will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.

A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are:

• buildings for agriculture and forestry;

• provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries, as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it;

• the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building;

• the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces;

• limited infilling in villages, and limited affordable housing for local community needs under policies set out in the Local Plan; or

• limited infilling or the partial or complete redevelopment of previously developed sites (brownfield land), whether redundant or in continuing use (excluding temporary buildings), which would not have a greater impact on the openness of the Green Belt and the purpose of including land within it than the existing development.

Certain other forms of development are also not inappropriate in Green Belt provided they preserve the openness of the Green Belt and do not conflict with the purposes of including land in Green Belt. These are:

• mineral extraction;

• engineering operations;

• local transport infrastructure which can demonstrate a requirement for a Green Belt location;

• the re-use of buildings provided that the buildings are of permanent and substantial construction; and.

• development brought forward under a Community Right to Build Order."

"Policy E13A - New and Replacement Glasshouses

Policy E13B - Protection of Glasshouse Areas.

undermine its policy approach of concentrating glasshouses in clusters to minimise damage to visual amenity and loss of the openness of the Green Belt; and/or

harm the future vitality and/or viability of the Lea Valley glasshouse industry."

"Policy GB7A - Conspicuous Development.

The Council will refuse planning permission for development conspicuous from within or beyond the Green Belt which would have an excessive adverse impact upon the openness, rural character or visual amenities of the Green Belt."

"Policy GB10 – Development in the Lee Valley Regional Park

Policy GB11 – Agricultural Buildings

"Policy RST24

The grounds.

The Law

First, the premise of paragraph 17 [of the Inspector's decision] incorrectly, is that mineral extraction including hydrocarbon exploration cannot be appropriate in the Green Belt. However, any correct analysis of the proviso to NPPF 90, which is not what paragraph 17 purports to provide at all, has to start from the different premise that such exploration or extraction can be appropriate. The premise therefore for a proper analysis is that there is nothing inherent in the works necessary, generally or commonly found for extraction, which would inevitably take it outside the scope of appropriate development in the Green Belt.

As Mr Banner accepted, some level of operational development for mineral extraction, sufficiently significant as operational development to require planning permission has to be appropriate and necessarily in the Green Belt without compromising the two objectives. Were it otherwise, the proviso would always negate the appropriateness of any mineral extraction in the Green Belt and simply make the policy pointless. Extraction is generally not devoid of structures, engineering works and associated buildings. The policy was not designed to cater for fanciful situations but for those generally encountered in mineral extraction.

Secondly, as Green Belt policies NPPF 89 and 90 demonstrate, considerations of appropriateness, preservation of openness and conflict with Green Belt purposes are not exclusively dependent on the size of building or structures but include their purpose. The same building, as I have said, or two materially similar buildings; one a house and one a sports pavilion, are treated differently in terms of actual or potential appropriateness. The Green Belt may not be harmed necessarily by one but is harmed necessarily by another. The one it is harmed by because of its effect on openness, and the other it is not harmed by because of its effect on openness. These concepts are to be applied, in the light of the nature of a particular type of development.

One factor which affects appropriateness, the preservation of openness and conflict with Green Belt purposes, is the duration of development and the reversibility of its effects. Those are of particular importance to the thinking which makes mineral extraction potentially appropriate in the Green Belt. Another is the fact that extraction, including exploration, can only take place where those operations achieve what is required in relation to the minerals. Minerals can only be extracted where they are found. Both those reasons are reflected in the supporting text to MC3, in paragraph 3.45, itself drawing on PPG2, paragraph 3.11.

Green Belt is not harmed by such a development because the fact that the use has to take place there, and its duration and reversibility are relevant to its appropriateness and to the effect on the Green Belt. Whether development, capable of being appropriate for the purposes of the proviso to NPPF 90, is in fact inappropriate, is a more complex question than the consideration of the effect on the Green Belt, where development has already been concluded to be inappropriate. Those considerations are necessarily absent from paragraph 17. It does not address the effect on the Green Belt for the purposes of appropriateness in the proper policy context."

"Each local planning authority delegates its planning functions to a planning committee, which acts on the basis of information provided by case officers in the form of a report. Such a report usually also includes a recommendation as to how the application should be dealt with. With regard to such reports:

In the absence of contrary evidence, it is a reasonable inference that members of the planning committee follow the reasoning of the report, particularly where a recommendation is adopted.

When challenged, such reports are not to be subjected to the same exegesis that might be appropriate for the interpretation of a statute: what is required is a fair reading of the report as a whole. Consequently:

'[A]n application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken' (Oxton Farms, Samuel Smiths Old Brewery (Tadcaster) v Selby District Council (18 April 1997) 1997 WL 1106106, per Judge LJ as he then was).

In construing reports, it has to be borne in mind that they are addressed to a 'knowledgeable readership', including council members 'who, by virtue of that membership, may be expected to have a substantial local and background knowledge' (R v Mendip District Council ex parte Fabre (2000) 80 P & CR 500, per Sullivan J as he then was). That background knowledge includes 'a working knowledge of the statutory test' for determination of a planning application (Oxton Farms, per Pill LJ)."

"Applications which appear to require screening opinion

Where it appears to the relevant planning authority that—

paragraphs (4) and (5) of regulation 5 shall apply as if the receipt or lodging of the application were a request made under regulation 5(1)."

"5(4) An authority receiving a request for a screening opinion shall, if they consider that they have not been provided with sufficient information to adopt an opinion, notify in writing the person making the request of the points on which they require additional information.

An authority shall adopt a screening opinion within 3 weeks beginning with the date of receipt of a request made pursuant to paragraph (1) or such longer period as may be agreed in writing with the person making the request."

as a:

"written statement of the opinion of the relevant planning authority as to whether the development is EIA development."

Where a local planning authority adopts a screening opinion under regulation 5(5), or the Secretary of State makes a screening direction under paragraph (3)—

(a)that opinion or direction shall be accompanied by a written statement giving clearly and precisely the full reasons for that conclusion; and.

(b)the authority or the Secretary of State, as the case may be, shall send a copy of the opinion or direction and a copy of the written statement required by sub-paragraph (a) to the person who proposes to carry out, or who has carried out, the development in question."

"Subsequent applications where environmental information not previously provided.

Where it appears to the relevant planning authority that—

(a)an application which is before them for determination—

(i)is a subsequent application in relation to Schedule 1 or Schedule 2 development;

(ii)has not itself been the subject of a screening opinion or screening direction; and

(iii)is not accompanied by a statement referred to by the applicant as an environmental statement for the purposes of these regulations; and

(b)the original application was not accompanied by a statement referred to by the applicant as an environmental statement for the purposes of these Regulations,

paragraphs (4) and (5) of regulation 5 shall apply as if the receipt or lodging of the application were a request made under regulation 5(1)."

Mr Kimblin and Mr Elvin were in my view right to submit that there was no breach of any relevant provision of the 2011 EIA regulations, and, in particular, no breach of regulation 7. They focused on the opening clause of regulation 7 - 'where it appears to the relevant authority that...' They submitted, and I agree, that implicit in those words there is more than merely a question of fact. Parliament has deliberately provided an element of discretionary judgment for an authority deciding whether a screening process is required. The discretion relates to all three of the matters referred to in paragraph 7(a), (b) and (c), including the question raised in paragraph 7(b) - whether 'the development in question has not been the subject of a screening opinion...' It follows, submitted Mr Kimblin and Mr Elvin, that the Council could properly conclude, as it did, that the development had been the subject of a screening opinion. I agree.

The thrust of this submission, which I accept, is that the concept of a development having been the subject of a screening opinion is broad enough to include previous screening process for an earlier version of the proposal, so long as the nature and extent of any subsequent changes to the proposal do not give rise to a realistic prospect of a different outcome if another formal screening process were to be gone through. This is classically a matter of judgment for 'the relevant planning authority'. It will always turn on the facts of the particular case.

The essential point is that regulation 7 allows the authority to judge whether any changes to a proposal are such as to cast doubt on the continuing validity of the screening opinion for the proposal in its previous form. In principle, and subject to review by the court on Wednesbury grounds, it is open to an authority to conclude that in the screening process it has already conducted the essential characteristics of the site and proposal bearing on the crucial question - whether the development is likely to have significant effects on the environment - have been taken into account and the relevant screening thresholds and criteria applied.

If the result of that process was a screening opinion determining that the project was not EIA development, and if the result of a further screening process for the revised proposal would inevitably be the same, the authority will be able to conclude that its screening opinion is competent for the proposed development in its modified form. The judgment embodied in that screening opinion will be no less valid and effective for the proposal as revised than it was for the proposal as originally conceived. The potential effects of the development will already have been dealt with in a formal screening process. The development will have been 'the subject of a screening opinion' - the concept in regulation in 7(b). The provisions of paragraphs (4) and (5) of regulation 5 will not be engaged. The screening process will not have to be repeated. If it were repeated it would be of no benefit to the authority, no benefit likely to be affected by the outcome, and no benefit to the public interest in the EIA regime being operated with the rigour required."

In the light of the foregoing, the answer to the first question is that Article 4 of Directive 85/337 must be interpreted as not requiring that a determination, that it is unnecessary to subject a project falling within Annex II to that directive to an EIA, should itself contain the reasons for the competent authority's decision that the latter was unnecessary. However, if an interested party so requests, the competent administrative authority is obliged to communicate to him the reasons for the determination or the relevant information and documents in response to the request made."

Thus the positive requirement to provide reasons in regulation 4(7) of the 2011 Regulations is a requirement of domestic law. The EU law requirement is more narrow and is to provide reasons if so requested.

Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.

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."

It follows that the first sentence of Art.6(3) of the Habitats Directive subordinates the requirement for an appropriate assessment of the implications of a plan or project to the condition that there be a probability or a risk that the latter will have significant effects on the site concerned.

In the light, in particular, of the precautionary principle, which is one of the foundations of the high level of protection pursued by Community policy on the environment, in accordance with the first subparagraph of Art.174(2) EC, and by reference to which the Habitats Directive must be interpreted, such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have significant effects on the site concerned (see, by analogy, inter alia Case C-180/96 United Kingdom v Commission [1998] E.C.R. I-2265, paras 50, 105 and 107). Such an interpretation of the condition to which the assessment of the implications of a plan or project for a specific site is subject, which implies that in case of doubt as to the absence of significant effects such an assessment must be carried out, makes it possible to ensure effectively that plans or projects which adversely affect the integrity of the site concerned are not authorised, and thereby contributes to achieving, in accordance with the third recital in the preamble to the Habitats Directive and Art.2(1) thereof, its main aim, namely, ensuring Page 35 biodiversity through the conservation of natural habitats and of wild fauna and flora.

In the light of the foregoing, the answer to Question 3(a) must be that the first sentence of Art.6(3) of the Habitats Directive must be interpreted as meaning that any plan or project not directly connected with or necessary to the management of the site is to be subject to an appropriate assessment of its implications for the site in view of the site's conservation objectives if it cannot be excluded, on the basis of objective information, that it will have a significant effect on that site, either individually or in combination with other plans or projects.

Question 3(b)

As is clear from the first sentence of Art.6(3) of the Habitats Directive in conjunction with the 10th recital in its preamble, the significant nature of the effect on a site of a plan or project not directly connected with or necessary to the management of the site is linked to the site's conservation objectives.

So, where such a plan or project has an effect on that site but is not likely to undermine its conservation objectives, it cannot be considered likely to have a significant effect on the site concerned.

Conversely, where such a plan or project is likely to undermine the conservation objectives of the site concerned, it must necessarily be considered likely to have a significant effect on the site. As the Commission in essence maintains, in assessing the potential effects of a plan or project their significance must be established in the light, inter alia, of the characteristics and specific environmental conditions of the site concerned by that plan or project.

The answer to Question 3(b) must therefore be that, pursuant to the first sentence of Art.6(3) of the Habitats Directive, where a plan or project not directly connected with or necessary to the management of a site is likely to undermine the site's conservation objectives, it must be considered likely to have a significant effect on that site. The assessment of that risk must be made in the light inter alia of the characteristics and specific environmental conditions of the site concerned by such a plan or project...

As regards the concept of 'appropriate assessment' within the meaning of Art.6(3) of the Habitats Directive, it must be pointed out that the provision does not define any particular method for carrying out such an assessment.

None the less, according to the wording of that provision, an appropriate assessment of the implications for the site concerned of the plan or project must precede its approval and take into account the cumulative effects which result from the combination of that plan or project with other plans or projects in view of the site's conservation objectives.

Such an assessment therefore implies that all the aspects of the plan or project which can either individually or in combination with other plans or projects, affect those objectives must be identified in the light of the best scientific knowledge in the field...

It is therefore apparent that the plan or project in question may be granted authorisation only on the condition that the competent national authorities are convinced that it will not adversely affect the integrity of the site concerned.

So, where doubt remains as to the absence of adverse effects on the integrity of the site linked to the plan or project being considered, the competent authority will have to refuse authorisation.

In this respect, it is clear that the authorisation criterion laid down in the second sentence of Art.6(3) of the Habitats Directive integrates the precautionary principle (see Case C-157/96 National Farmers' Union [1998] E.C.R. I-2211, [63]) and makes it possible effectively to prevent adverse effects on the integrity of protected sites as the result of the plans or projects being considered. A less stringent authorisation criterion than that in question could not as effectively ensure the fulfilment of the objective of site protection intended under that provision.

Therefore, pursuant to Art.6(3) of the Habitats Directive, the competent national authorities taking account of the conclusions of the appropriate assessment of the implications of mechanical cockle fishing for the site concerned, in the light of the site's conservation objectives are to authorise such activity only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects."

Article 6(3) of the Habitats Directive establishes an assessment procedure intended to ensure, by means of a prior examination, that a plan or project not directly connected with or necessary to the management of the site concerned but likely to have a significant effect on it is authorised only to the extent that it will not adversely affect the integrity of that site (Waddenvereniging and Vogelbeschermingsvereniging, paragraph 34, and Case C-182/10 Solvay and Others [2012] ECR, paragraph 66).

That provision thus prescribes two stages. The first, envisaged in the provision's first sentence, requires the Member States to carry out an appropriate assessment of the implications for a protected site of a plan or project when there is a likelihood that the plan or project will have a significant effect on that site (see, to this effect, Waddenvereniging and Vogelbeschermingsvereniging, paragraphs 41 and 43).

Where a plan or project not directly connected with or necessary to the management of a site is likely to undermine the site's conservation objectives, it must be considered likely to have a significant effect on that site. The assessment of that risk must be made in the light of, in particular, the characteristics and specific environmental conditions of the site concerned by such a plan or project (see, to this effect, Waddenvereniging and Vogelbeschermingsvereniging, paragraph 49).

The second stage, which is envisaged in the second sentence of Article 6(3) of the Habitats Directive and occurs following the aforesaid appropriate assessment, allows such a plan or project to be authorised on condition that it will not adversely affect the integrity of the site concerned, subject to the provisions of Article 6(4)...

It follows that Article 6(2) to (4) of the Habitats Directive impose upon the Member States a series of specific obligations and procedures designed, as is clear from Article 2(2) of the directive, to maintain, or as the case may be restore, at a favourable conservation status natural habitats and, in particular, special areas of conservation.

In this regard, according to Article 1(e) of the Habitats Directive, the conservation status of a natural habitat is taken as 'favourable' when, in particular, its natural range and areas it covers within that range are stable or increasing and the specific structure and functions which are necessary for its long-term maintenance exist and are likely to continue to exist for the foreseeable future.

In this context, the Court has already held that the Habitats Directive has the aim that the Member States take appropriate protective measures to preserve the ecological characteristics of sites which host natural habitat types (see Case C-308/08 Commission v Spain [2010] ECR I-4281, paragraph 21, and Case C-404/09 Commission v Spain, paragraph 163).

Consequently, it should be inferred that in order for the integrity of a site as a natural habitat not to be adversely affected for the purposes of the second sentence of Article 6(3) of the Habitats Directive the site needs to be preserved at a favourable conservation status; this entails, as the Advocate General has observed in points 54 to 56 of her Opinion, the lasting preservation of the constitutive characteristics of the site concerned that are connected to the presence of a natural habitat type whose preservation was the objective justifying the designation of that site in the list of SCIs, in accordance with the directive.

Authorisation for a plan or project, as referred to in Article 6(3) of the Habitats Directive, may therefore be given only on condition that the competent authorities – once all aspects of the plan or project have been identified which can, by themselves or in combination with other plans or projects, affect the conservation objectives of the site concerned, and in the light of the best scientific knowledge in the field – are certain that the plan or project will not have lasting adverse effects on the integrity of that site. That is so where no reasonable scientific doubt remains as to the absence of such effects (see, to this effect, Case C-404/09 Commission v Spain, paragraph 99, and Solvay and Others, paragraph 67).

It is to be noted that, since the authority must refuse to authorise the plan or project being considered where uncertainty remains as to the absence of adverse effects on the integrity of the site, 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 prevent in an effective manner adverse effects on the integrity of protected sites as a result of the plans or projects being considered. A less stringent authorisation criterion than that in question could not ensure as effectively the fulfilment of the objective of site protection intended under that provision (Waddenvereniging and Vogelbeschermingsvereniging, paragraphs 57 and 58)."

With regard to the concept of 'appropriate assessment' within the meaning of Article 6(3) of Directive 92/43, it should be noted that the directive does not define any particular method for the carrying out of such an assessment (Commission v Italy, paragraph 57).

The Court has, however, held that that assessment must be organised in such a manner that the competent national authorities can be certain that a plan or project will not have adverse effects on the integrity of the site concerned, given that, where doubt remains as to the absence of such effects, the competent authority will have to refuse development consent (see Commission v Italy, paragraph 58).

With regard to the factors on the basis of which the competent authorities may gain the necessary level of certainty, the Court has stated that it must be ensured that no reasonable scientific doubt remains, and those authorities must rely on the best scientific knowledge in the field (see Waddenvereniging and Vogelbeschermingsvereniging, paragraphs 59 and 61, and Commission v Italy, paragraph 59).

Furthermore, knowledge of the effects of a plan or a project in the light of the conservation objectives relating to a given site is an essential prerequisite for the application of Article 6(4) of Directive 92/43, since, in the absence thereof, no condition for application of that derogating provision can be assessed. The assessment of any imperative reasons of overriding public interest and that of the existence of less harmful alternatives require a weighing up against the damage caused to the site by the plan or project under consideration. In addition, in order to determine the nature of any compensatory measures, the damage to the site must be precisely identified (see, to that effect, Commission v Italy, paragraph 83, and Solvay and Others, paragraph 74).

In the light of the foregoing, it cannot be held that an assessment is appropriate where information and reliable and updated data concerning the birds in that SPA are lacking.

That said, where the development consent given to a project is annulled or revoked because that assessment was not appropriate, it cannot be ruled out that the competent national authorities may gather a posteriori reliable and updated data on the birds in the SPA concerned and that they may appraise, on the basis of that data and an assessment thereby supplemented, whether the project for the diversion of water adversely affects the integrity of that SPA and, where necessary, what compensatory measures must be taken to ensure that the execution of the project will not jeopardise protection of the overall coherence of Natura 2000.

Consequently, the answer to the eleventh question is that Directive 92/43, and in particular Article 6(3) and (4) thereof, must be interpreted as precluding development consent being given to a project for the diversion of water which is not directly connected with or necessary to the conservation of a SPA, but likely to have a significant effect on that SPA, in the absence of information or of reliable and updated data concerning the birds in that area."

By its questions, which it is appropriate to consider together, the referring court asks, in essence, whether 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 an SCI, which has negative implications for a type of natural habitat present thereon and which provides for the creation of an area of equal or greater size of the same natural habitat type within the same site, has an effect on the integrity of that site and, if so, whether such measures may be categorised as 'compensatory measures' within the meaning of Article 6(4) thereof...

The assessment carried out under Article 6(3) of the Habitats Directive cannot have lacunae and must contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works proposed on the protected site concerned (see, to that effect, Sweetman and Others EU:C:2013:220, paragraph 44 and the case-law cited).

Consequently, the application of the precautionary principle in the context of the implementation of Article 6(3) of the Habitats Directive requires the competent national authority to assess the implications of the project for the Natura 2000 site concerned in view of the site's conservation objectives and taking into account the protective measures forming part of that project aimed at avoiding or reducing any direct adverse effects for the site, in order to ensure that it does not adversely affect the integrity of the site.

However, protective measures provided for in a project which are aimed at compensating for the negative effects of the project on a Natura 2000 site cannot be taken into account in the assessment of the implications of the project provided for in Article 6(3).

This is the case of the measures at issue in the main proceedings which, in a situation where the competent national authority has in fact found that the A2 motorway project is liable to have – potentially permanent – adverse effects on the protected habitat type on the Natura 2000 site concerned, provide for the future creation of an area of equal or greater size of that habitat type in another part of the site which will not be directly affected by the project.

It is clear that these measures are not aimed either at avoiding or reducing the significant adverse effects for that habitat type caused by the A2 motorway project; rather, they tend to compensate after the fact for those effects. They do not guarantee that the project will not adversely affect the integrity of the site within the meaning of Article 6(3) of the Habitats Directive.

It should further be noted that, as a rule, any positive effects of a future creation of a new habitat which is aimed at compensating for the loss of area and quality of that same habitat type on a protected site, even where the new area will be bigger and of higher quality, are highly difficult to forecast with any degree of certainty and, in any event, will be visible only several years into the future, a point made in paragraph 87 of the order for reference. Consequently, they cannot be taken into account at the procedural stage provided for in Article 6(3) of the Habitats Directive.

Secondly, as rightly pointed out by the Commission in its written observations, the effectiveness of the protective measures provided for in Article 6 of the Habitats Directive is intended to avoid a situation where competent national authorities allow so-called 'mitigating' measures – which are in reality compensatory measures – in order to circumvent the specific procedures provided for in Article 6(3) and authorise projects which adversely affect the integrity of the site concerned.

It is only if, in spite of a negative assessment carried out in accordance with the first sentence of Article 6(3) of the Habitats Directive, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, and there are no alternative solutions, that Article 6(4) of the Habitats Directive provides that the Member State is to take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected."

There is sometimes reference in cases and guidance to a distinction between mitigation measures and compensation measures: see e.g. the European Commission's Guidance Document on Article 6(4) of the Habitats Directive (2007/2012), referred to in the Opinion of AG Sharpston in Case C-521/12, Briels v Minister van Infrastructuur en Milieu [2014] PTSR 1120, at paras. 8-10. One needs to be careful here, because although the concept of "compensatory measures" is used in Article 6(4), no definition is given; and, further, the concept of mitigation is not used in the Habitats Directive itself, and the idea of mitigation is not always a precise one. However, I think that the basic distinction which is relevant for purposes of the application of the Habitats Directive is clear enough. If a preventive safeguarding measure of the kind I have described is under consideration, which eliminates or reduces the harmful effects which a plan or project would have upon the protected site in question so that those harmful effects either never arise or never arise to a significant degree, then it is directly relevant to the question which arises at the Article 6(3) stage and may properly be taken into account at that stage. This view is supported by para. 108 of AG Kokott's Opinion in the Waddenzee case, where, in relation to what may be brought into account as part of an 'appropriate assessment' under the second limb of Article 6(3), she says in terms: 'Measures to minimise and avoid harm can also be of relevance.' The part of the judgment of the Court which corresponds with this part of her Opinion indicates no dissent from her approach. Rather, the wide language used by the Court to indicate what should be brought into account for the purposes of an 'appropriate assessment' under Article 6(3) supports it: an appropriate assessment requires 'all aspects of the plan or project which can, either individually or in combination with other plans or projects, affect [the objectives of the Directive]' to be taken in to account (emphasis supplied), and preventive safeguarding measures which would prevent harm from occurring meet this description...

The CJEU has emphasised that Article 6 is to be read as a coherent whole in the light of the conservation objectives pursued by the Habitats Directive (see Sweetman, judgment, para. 32; Briels, judgment, para. 19). The first, screening opinion limb of Article 6(3) is intended to operate as a preliminary check whether there is a possibility of significant adverse effects on a protected site, in which case an 'appropriate assessment' is required under the second limb of Article 6(3) to consider in detail whether and what adverse effects might arise. Both limbs are directed to the same conservation objectives under the Directive, which explains why the threshold under the first limb has been interpreted as being so low (see para. 49 of AG Sharpston's Opinion in Sweetman). Since it is clear from the relevant case-law that preventive safeguarding measures are relevant matters to be taken into account under an 'appropriate assessment' under the second limb (see the discussion above), there is in my view a compelling logic to say that they are relevant and may properly be taken into account in an appropriate case under the first limb of Article 6(3) as well. In accordance with this logic, on a straightforward reading of para. 108 in AG Kokott's Opinion in the Waddenzee case, set out above, she treats preventive safeguarding measures as relevant to both limbs of Article 6(3).

If the competent authority can be sure from the information available at the preliminary screening stage (including information about preventive safeguarding measures) that there will be no significant harmful effects on the relevant protected site, there would be no point in proceeding to carry out an 'appropriate assessment' to check the same thing. It would be disproportionate and unduly burdensome in such a case to require the national competent authority and the proposer of a project to undergo the delay, effort and expense of going through an entirely unnecessary additional stage (and see in that regard paras. 72-73 of AG Kokott's Opinion in Waddenzee, where she explains that 'it would be disproportionate to regard any conceivable adverse effect as grounds for carrying out an appropriate assessment')."

Ground 1

Ground 2.

Ground 3

Conclusion