United Kingdom
Environmental Impact Assessments, Protected Areas, Forests, Injunctive Relief, Jurisdiction, Permits, Wetlands, Damages, Licences, Biodiversity
The 1985 EC Habitats Directive requires environmental assessments to be undertaken for projects that might harm conservation sites. The present case dealt with the unusual situation where a commercial operator was also “competent authority” for Habitats Directive purposes. It concerned an Isle of Wight ferry route. Ferries run through salt marshes and mudflats at the Lymington estuary that are designated as special areas of conservation under the Habitats Directive. Ferry operator, Wightlink, decided to introduce substantially larger and more powerful ferries along the route. Natural England, the statutory conservation agency, considered the existing ferries had contributed to the deterioration of the mud flats and salt mashes, over and above background changes. It feared the new ferries would cause further losses. In light of Natural England's concerns, the local planning authority decided the application should be assessed under the Habitats Directive and its implementing regulations. Wightlink then dropped the proposals requiring planning permission and wished simply to introduce the new ferries. This appeared to reveal a gap in the existing law: the replacement of a ferry in itself appeared to require no consent from any public authority. Wightlink, though voluntarily undertaking an environmental assessment, felt that in those circumstances, the statutory requirements under the Habitats Directive could not apply. The environment department (DEFRA) accepted there was a potential lacuna in the controls. At the end of last year, it amended the Habitats Regulations to permit the secretary of state to specify operations on water that would have to be notified in advance to the relevant authorities. Wightlink argued that just because an action could potentially have an environmental impact, it did not follow that it must be considered a plan or project for the purposes of the directive. The Judge disagreed:"In my judgment that is precisely the effect of article 6(3), an interpretation supported by the decision in Waddenzee". The next question was whether a competent authority within the terms of the directive existed to carry out the assessment. Now that there was no proposal requiring planning permission, it could not be the local authority and since the Habitats Regulations had not been amended, DEFRA had no explicit jurisdiction. Wightlink itself, however, was the statutory harbour authority in respect of the pier and ferry terminal and a small area of water adjacent to it. But the High Court concluded this was sufficient to make it a competent authority under the terms of the Habitats Directive and implementing regulations. The final key issue was whether Wightlink had in practice carried out an appropriate assessment to satisfy the directive's requirements. The Judge accepted the directive did not lay down any particular form of assessment. Wightlink had in fact commissioned consultants to do an environmental impact assessment, and its board had agreed the new ferries would only be introduced if it was satisfied they would not harm the designated sites. . But Natural England has stated it did not feel the consultants' assessment was robust enough and the court felt that as a statutory conservation body, its advice should have been given considerable weight. In its decision, Wightlink's board did not explain why it rejected Natural England's concerns and had followed the consultant's assessment. Furthermore, the court felt the board had confined its role to considering the consultants' environmental assessment. In contrast, the duty under the Habitats Regulation was for the board itself to carry out that assessment rather than delegate this role. The court also felt that in reality, commercial considerations 'overrode, or at the very least influenced, the discharge by Wightlink of its public duties as competent authority'. In the circumstances, the decision taken was legally unsound and unreasonable.