The Death of the Habitats Directive

The European Habitats Directive was published in 1992, to provide a system of strict protection for sites and species of the highest conservation value at a European level. It was required to be transposed into law in every member state of the EU (EEC in 1992). It has been clarified and if anything reinforced by case law and additional guidance since 1992, but remains unchanged in 22 years. However, in Britain in recent years, following a few cases where the Habitats Directive prevented development from going ahead, it appears that scheme promoters increasingly pay lip service to compliance with the Directive but by and large do not follow due process in assessing projects against its requirements, in particular the criteria to be met for derogation from the prohibitions on damage or destruction of protected species and their resting places. Local planning authorities and inquiry inspectors seem reluctant to hold developers to the letter of the strict protection that is at the heart of the Directive. Case law in Britain has delivered mixed outcomes, but the landmark 'Morge' case in the Supreme Court in 2010 acts as a precedent for cases involving protected species, establishing in particular that the views of statutory nature conservation authorities such as Natural England are paramount in planning decisions and in judgements where legal challenges are made. Yet Natural England is under-resourced to make proper assessments of all planning cases that trigger habitats. Directive appraisals, and as a government-funded body is not regarded as impartial by most campaigners against development proposals: and ultimately is not infallible. A further High Court challenge on the Heysham to M6 Link road, which threatened to destroy or damage the resting places of otters, failed in October 2013, and leave to appeal was refused with the dismissive lines that the case for non-compliance with Habitats Directive was "technical and unmeritorious quibbling". With these words, in the author's view the Habitats Directive lost its effectiveness as a part of the legal framework for development in Britain. This is not to deny that after 22 years the Directive may well be in need of an overhaul: but its core principles and values, as a 'line in the sand' against deterioration and destruction of the most important European sites and species, are as valid and necessary as ever.

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  • Accession Number: 01531863
  • Record Type: Publication
  • Files: TRIS
  • Created Date: Jul 25 2014 8:55AM