EU Habitats Directive – The advantages of Article6(4)

Galway Outer bypass N6 – The Consequences of the ECJ legal opinion. 

The recent legal opinion (April 2013) given by the European Court of Justice (ECJ) confirms that the proposed Galway Outer bypass breaches the EU Habitats Directive (92/43/EC).

The proposed road scheme involved the permanent loss of land displaying the particular characteristics of an Annex 1 Priority Habitat (limestone pavement) within the Lough Corrib SCI protected under the EU Habitats Directive. In their decision to approve the scheme, An Bord Pleanála considered that while having a localised severe impact on the Lough Corrib candidate Special Area of Conservation, the project would not adversely affect the integrity of this candidate special Area of Conservation.

When a judicial challenge was brought against the An Bord Pleanala decision, a number of questions were submitted by the Supreme Court to the ECJ for the interpretation of Articles 6(3) and 6(4) of the Habitats Directive that would effectively establish whether, having carried out an “appropriate assessment”, An Bord Pleanála was entitled to approve a plan that would damage the Lough Corrib site. 

In its ruling, the ECJ reaffirmed the classification of a priority habitat type and as a natural resource, once destroyed, cannot be replaced. The conservation objective for such designated habitats (as set out in the Habitats Directive) seeks the maintenance at a favourable conservation status of the constitutive characteristics of the designated habitat, namely in this case – the presence of limestone pavement.

Effects and Opportunities of the Opinion

The decision confirms that a plan or project cannot be authorised on the basis where it is not directly connected with or necessary to the management of a site or where (irrespective to the size and extent of impact), it will adversely affect the integrity of that site if it is liable to prevent the lasting preservation of the constitutive characteristics of the site that are connected to the presence of a priority natural habitat whose conservation was the objective justifying the designation of the site in the list of sites of Community importance, in accordance with the directive. 

The provisions of Article 6(4) of the EU Habitats Directive are now being considered by Galway County Council as a means to proceed with this project under the IROPI process thereby presenting potential opportunities to overcome this issue.  

Whilst it could be argued that the road project should have been pursued initially under the IROPI process, it does confirm the need for effective and practical understanding of National and European Planning and Environmental legislation in respect to any development project or plan in such locations.

HRA Planning provides seamless advise and technical services on planning and environmental legislation and the requirements of the EU Habitats Directive and in response to such circumstances. 

Contact us if you wish to discuss this service further.