In April Aspect Ecology reported on the European Court of Juctice (ECJ) ruling People Over Wind and Sweetman v Coillte Teoranta which requires that mitigation cannot be taken account of at the screening stage of a Habitats Regulation Assessment (HRA) – see here

Further to this ruling the ECJ has now issued a judgement that confirms that in considering Article 6(3) of the Habitats Directive that measures designed to compensate for any harm rather than prevent it cannot lead to permission under this Article and instead the proposal will fall to be considered under Article 6(4), i.e. it will not be permitted unless there are ‘imperative reasons of overriding public interest’.

In these circumstances, where such imperative reasons are present, the member state is required to ensure that all compensatory measures required to maintain the integrity of the protected site are put in place and they must notify the European Commission of the compensatory measures that have been agreed.

From the outcome of People over Wind and this new ECJ case, it is evident that mitigation cannot be taken into account at the screening stage of a HRA, but rather must only be taken into account at the Appropriate Assessment stage and where the mitigation proposed does not avoid harm to the protected site, but instead seeks to compensate for it, the higher bar of ‘imperative reasons of overriding public interest’ must be cleared before permission can be granted.