EU Habitats Directive

Legal assistance paper

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Date produced: 14/09/2016

Could you review the briefing note on new information for a Habitats Regulations Assessment (HRA) of the proposed Port of Falmouth capital dredge?

Advice:

The report written by Dr. Hoskin has made an assessment of the new evidence prepared by the project promoters (Falmouth Harbour Commissioners and A&P Falmouth Ltd) and of the report prepared by the environmental consultant Royal Haskoning DHV. This new evidence has been submitted to the Marine Management Organisation (MMO) for review and comment.

Previously, in 2011, the MMO had rejected an application for consenting a capital dredging in the Special Area of Conservation (SAC) Fal & Helford as the MMO could not “conclude that there would be no adverse effect on the integrity of the SAC” – in accordance with the EU Habitats Directive and the implementing legislation, in fact, the MMO needs to consult with Natural England in order to make sure that the project will not cause an adverse impact on the integrity of the Special Areas of Conservation before it can grant permission for the project.

The report by Dr. Hoskin goes through the relevant parts of the EU Habitats Directive – in particular Arts. 2(2) and 6(3) – in order to reinforce the argument that the proposed project is still likely to have an adverse effect on the integrity of the SAC. In so far as we are aware, the legal analysis made by Dr. Hoskin is sound with regard to both the relevant provisions of the Habitats Directive and the related ECJ case law.

First, with regard to the argument of the unlawfulness of the procedure by which the MMO is available to review and comment the new information (p. 3 of the Hoskin report), it has to be noted that in 2011 the MMO, while rejecting the request for licence, they also stated that “they would be willing to review any further evidence available to demonstrate successful maerl relocation to inform future licensing decisions in relation to this project”. In addition, James Cross, Acting Chief Executive of the MMO, at the time of the rejection of the request stated: “We have met with the developers today, and invited them to come back to us with new proposals that address the environmental issues”. “We welcome further discussion on alternative options to help meet the needs of industry while recognising the importance of vulnerable habitats”.  This is the context in which the option of sending new comments to MMO was offered. However, it remains unclear, as both the Habitats Directive and the 2010 Conservation of Habitats and Species Regulations are silent on this point, whether the project promoters would still be obliged to apply for a new licence or the new assessment made by MMO would still be part of the previous licence request. Therefore, we believe that it could be useful to stress further this legal uncertainty surrounding the review procedure by MMO.

In addition, we believe that the statement as to the “lack of condition assessment for relevant site features, and the uncertainty this introduces” (p. 16 of the Hoskin report) could be reinforced with the consideration that, in application of the precautionary principle and of the high level of protection principle, MMO should be certain that no negative effect will occur and that “no reasonable scientific doubt remain” (e.g. Case C-304/05 Commission v Italy [2007] ECR I-7495, para 59). In lack of condition assessment for the relevant SAC it would be in fact impossible for the national authority to be “certain” as to the potential negative effect.

Finally, as far as the analysis of the case law is concerned, we support the legal argument put forward by Dr. Hoskin as to the relevance of the Sweetman ECJ ruling to the proposed capital dredging because of the existence of a permanent and irreparable loss (pp. 66 ff).