A recent decision by the Court of Justice of the European Union, namely People Over Wind and Sweetman v Coillte Teoranta (C-323/17), has ruled that mitigation and avoidance measures associated with a project cannot be taken into account at the screening stage of a Habitats Regulation Assessment (HRA).

This is a firm departure from the, until now, key domestic case of ‘Dilly Lane’ (R on the application of Hart DC) v Secretary of State for Communities and Local Government [2008] EWHC 1204 (Admin) Sullivan J, which had previously ruled that measures designed to avoid or mitigate the effect that were ‘incorporated into the project’ or which ‘formed part of the project’ could be taken into account at the screening ‘likely significant effect’ test stage of HRA.

This ruling has potentially far reaching consequences as to date projects including avoidance measures such as Suitable Alternative Natural Greenspace have not been required to carry out an Appropriate Assessment (AA). It is likely now that all such projects will fall under the AA regime.