Development impact assessment screening in the wake of People Over Wind

Posted on 30th June 2020 by Jasmine

Anna McClean

The requirement that the impacts of certain development be assessed before planning permission can be granted is an established part of the planning process in the UK, and there are two key pieces of legislation which deal with this.

The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 require the environmental impacts of certain major development projects to be assessed. Some types of development, often referred to as Schedule 1 development, will always require an EIA. Other specific types of development, such as some agricultural development and infrastructure development, referred to as Schedule 2 development, may require an EIA but only if the proposed development is likely to have significant effects on the environment.

The Conservation of Habitats and Species Regulations 2010 apply to development which may impact on a site designated as a Special Area of Conservation or a Special Protection Area under European law (‘European sites’), and require that where a development is likely to have a significant effect on a European site an assessment of its impacts on the site must be carried out before planning permission can be granted.

So whether or not an impact assessment needs to be carried out under both the Habitats Regulations and Schedule 2 of the EIA Regulations depends upon the likely significant impacts of the proposed development. Prior to the 2018 landmark case, People Over Wind v Coillte Teorante Case C323/17, it was settled law that when looking at what the likely significant impacts of a proposed development under either set of regulations, any mitigation measures which the developer had included in their proposal in order to avoid or reduce the harmful effects of the development could be taken into account, at least so far as those measures were sufficiently specific, available and effective. Such an approach was generally regarded as advantageous as it encouraged developers to consider mitigation measures at an early stage.

However, the Court of Justice of the EU’s decision in the People Over Wind, appears to have changed this. The case was a Habitat Regulations assessment case concerning the potential impacts of a wind turbine connection cable on freshwater pearls in a European site, and the Court ruled that in deciding whether a proposed development is likely to have a significant effect on the site concerned and therefore whether a Habitats Assessment is required, it is not appropriate to take account of mitigation measures.

This decision has gained academic attention for seeming to contradict previous decisions, but it has also been suggested that it may not be as out of kilter with previous decisions as it initially seems. As explained above, prior to People Over Wind, mitigation measures were required to have a degree of precision and effectiveness before they could be taken into account in deciding whether an impact assessment was required, and the type of mitigation measures which were taken into account often formed an integral part of the development. Although the Court of Justice of the EU made no reference to any distinction between types of mitigation measures, in People Over Wind the details of the proposed mitigation measures were to be agreed with the LPA after the planning permission had been granted and contained within a Construction Management Plan. The decision could therefore be interpreted as following previous decisions regarding the type of mitigation measures that could be taken into account.

The subsequent High Court case of Langton v Secretary of State for Environment, Food and Rural Affairs and Natural England could be seen to support this. This case concerned a judicial review of various decisions by Natural England to grant badger culling licences. The culling areas included or were near to a number of SPAs. Natural England’s decisions (which predated the People Over Wind decision) were challenged on the basis that in deciding that granting the licences was not likely to have significant effects on the SPAs and no Habitats Assessment was therefore required, Natural England had taken into account mitigation measures. The High Court, rejected this argument, taking the view that the mitigation measures concerned were not of the type in the People Over Wind, but were integral features of the development proposal. It held that not only was Natural England entitled to take them into account, but that it would have been ‘contrary to common sense’ not to. The applicant appealed this decision on a number of grounds, one of which was that the High Court had been wrong to find that the mitigation measures in question were of a type that could be taken into account in deciding whether a Habitats Assessment was required. The Court of Appeal, however, declined to address this point on the basis that it was purely academic given that Natural England had by then changed its practice.

Neither was the position clarified in the case of R (oao Wingfield) v Canterbury City Council, decided in July 2019. In this case, an application for outline planning permission had been made in 2015 for a development in respect of which a Habitats Assessment was potentially required. The application for outline planning permission contained details of mitigation measures which would be used to address some potential adverse effects of the development and in 2017 outline planning permission was granted without a Habitats Assessment having been carried out. In September 2018, following the ruling in People Over Wind, the LPA required that a Habitats Assessment be carried out at the reserved matters stage. The Habitat Assessment was duly undertaken and concluded that the proposed development would not have an effect on the integrity of the designated sites, and planning permission of the reserved matters was granted in February 2019. A local resident brought a judicial review claim challenging the 2019 decision to grant approval for the reserved matters on the grounds that the original grant of outline planning permission was unlawful because mitigation measures had been taken into account at the outline stage when deciding that a Habitats Assessment was not required. Although the claim was dismissed on a number of grounds, in particular that the error did not nullify the decision to grant outline planning permission and that the LPA had taken steps to remedy its error by requiring a Habitat Assessment to be undertaken at the reserved matters stage, the court was clearly of the view that the decision to grant outline planning permission would have been challengeable by the claimant had they brought a claim within the time frame for challenging that decision. However, it is noteworthy that in Wingfield, like in People Over Wind, the detail of the mitigation measures was finalized after the decision that no Habitats Assessment was required had been made and therefore did not form an integral part of the development proposal although, as was the case in People Over Wind, the court made no reference to any distinction between different types of mitigation measures. This failure of the court in People Over Wind to consider the issue of integral mitigation measures and if and when they can be taken into account has led to the decision being criticized for being a little too black and white and there consequently remains a significant amount of uncertainty regarding this point.

The decisions in People Over Wind and Wingfield have come under additional criticism for not only having removed the incentive for developers to consider and incorporate mitigation measures at an early stage, but also having thrown into question the legality of strategic mitigation systems that have previously been put in place to protect European sites. However, the other side of the argument, and the position that the court appears to have taken in People Over Wind, is that the question of whether an impact assessment is required should be based on a very low, de minimis, threshold and just be used to filter out those cases where there is clearly no risk of adverse effects. According to this argument, the assessment itself then provides the opportunity for there to be a detailed and expert evaluation of the development and any adverse effects it will have on the integrity of the European site, and at this stage any measures to mitigate the effects can be taken into account.

In any event, it is likely that there will be further cases regarding the question of integral mitigation measure and when they can be taken into account, as well as the question of whether the People Over Wind decision applies to EIA Regulation cases as well as the Habitat Regulations. Until these questions have been fully considered by the courts, any decisions regarding whether a Habitats Assessment or EIA is required ought to be approached with caution and in the knowledge that, for the moment, there is a greater risk of them being challenged.

Anna McClean is a PhD Researcher at Newcastle Law School.

Covid-19 and Constitutional Responses to Emergency: Examining Small Island Developing States

Posted on 29th June 2020 by Jasmine

SEAN MOLLOY AND SUE FARRAN

There are fifty-eight ’Small Island Developing States’ (SIDS) listed by the United Nations, thirty-eight of which are members of the UN. In these, as elsewhere across the world, governments had to respond rapidly to the unseen enemy of Covid-19. This post focusses on those SIDS located in the Pacific, many of which were former colonies of Britain, and the legal powers which were exercised to protect their citizens. Specifically, as countries across the globe invoke constitutional provisions allowing for and facilitating a state of emergency, this post considers the legal infrastructures that allow for exceptional measures in response to extraordinary times.

States of Emergency and Covid-19

In the Pacific region there are thirteen SIDS: Fiji, Kiribati, Marshall Islands, Federated States of Micronesia, Nauru, Palau, Papua New Guinea, Samoa, Solomon Islands, Timor Leste, Tonga, Tuvalu, and Vanuatu. In terms of economic wealth, population and land size there is great diversity but one thing they all have in common is a written constitution. In SIDS, many constitutions were enacted following, or just prior to the end of, periods of Colonial rule. For instance, after being governed by a series of countries, Papua New Guinea established its sovereignty in 1975 adopting its constitution in the same year. Vanuatu’s Constitution was created in 1980, following independence movements against Franco-British Condominium rule. Timor Leste became the first independent state of the 21^st century approving its constitution on March 22, 2002. Many of these early constitutions have been subsequently amended or replaced.

Constitutions in newly independent states can serve various purposes. Most basically and like all constitutions, they can define the nature of government (for, example parliamentary democracy, constitutional monarchy), the institutions of the state (for, example, the police, courts, legislature), the separation of powers between different organs (for example, between parliament and the executive, the government and the judiciary) and set out the relationship between the state and citizens.

In contexts emerging from periods of repression or colonial rule, constitutions can also serve another, additional purpose; namely, ensuring that similar power grabs do not occur internally. Upon independence, it is inevitable and, if done in appropriate ways, positive, that different factions emerge to challenge for political leadership. Electoral contests are, arguably, the hallmark of a democracy. Nevertheless, there is always a risk for those that fall short of gaining a seat at the table of politics (and the numerous economic benefits that attach to the status of power) that similar forms of repression and marginalisation suffered under colonial rule will be replaced but replicated by new elites. With this in mind, constitutions enacted after colonial rule may incorporate potential safeguards that seek to limit power imbalances in favour of certain groups over others.

This is important in the context of the current covid-19, particularly when considering how these constitutions balance the need for exceptional measures to respond to crises, while also safeguarding against the conflagration of these powers for personal and party gain. As the virus swept the globe, a number of SIDS, like many other countries, declared a state of emergency. These included Federated States of Micronesia (14 March 2020), Nauru (17 March 2020), Tonga (20 March 2020), Samoa (20 March 2020, Solomon Islands (25 March 2020), Kiribati (26 March 2020), and Fiji (13 April 2020), as examples (others opted not to, for example, Palau see, Statement from the President (17 March 2020).

Declaring a state of emergency (or health emergency as they are often termed in SIDS) allows the authorities, in times of urgent necessity, to take exceptional actions which often bypass rights and legislative processes, in order to safeguard national security, maintain law and order, protect citizens’ lives and property, keep essential public services working, concentrate relief resources and direct them to the areas of greatest need, and in general to restore normality (see Ní Aoláin and Gross, 2006). For instance, pursuant to Art 78(1) of Nauru’s constitution:

During the period during which a declaration of emergency is in force, the President may make such orders as appear to him to be reasonably required for securing public safety, maintaining public order or safeguarding the interests or maintaining the welfare of the community.

In the context of covid-19, the transferring of these powers is justified in light of a health crisis. Nevertheless, such provisions also carry significant risks. For instance, in granting powers to the state that circumvent ‘normal’ legislation, this transfer of power can have adverse effects on the enjoyment of rights to life, a fair trial, liberty and security, and freedom of assembly and association, as examples (see Amnesty International; Joint Committee on Human Rights; Greene). In Fiji, for example, there has been widespread criticism of efforts to stifle the press, while in Samoa there have been concerns raised about the passage of controversial bills at a time when Parliament is not sitting. Moreover, in any given state of emergency, there is the risk that these exceptional powers and permitted restrictions on rights can become normalised.

Because many of the risks associated with declaring a state of emergency are similar to the risks facing newly independent states, it might be expected that constitutions of formerly colonialised SIDSs contain important approaches to the construction of their constitutions (although it should be noted that some SIDS constitutions, such as Tonga, do not include provisions on a state of emergency, relying instead on legislation).

States of Emergency in SIDS Constitutions

Many SIDS constitutions permit the government in question to declare a state of emergency. For instance, under art 77(1) of the Nauru Constitution, the President, if satisfied that a grave emergency exists whereby the security or economy of Nauru is threatened may, by proclamation, declare that a state of emergency exists. In Samoa, Article 105 provides for the making of State of Emergency Orders by the Head of State (O le Ao o le Malö) in consultation with the Cabinet, if he is satisfied that ‘a grave emergency exists whereby the security or economic life of Samoa or of any part therefore is threatened’. Proclamations made under this power have been used and amended as the pandemic has unfolded.

As identified, granting powers such as these risk the normalisation of otherwise exceptional measures. Nevertheless, SIDS constitutions can be seen to include a number of safeguards. For instance, in Nauru, if Parliament is sitting, a state of emergency lapses after seven days. If it is not sitting then the period is 21 days, unless approved in a resolution by a Parliamentary majority. If the reasons presented are unagreeable, parliament can thus refuse to extend the state of emergency in question. Similarly, in Palau, if the President exercises his powers to declare a state of emergency, he must call a meeting of the legislature (Olbiil Era Kelulau) to affirm or disapprove the state of emergency, and he may not exercise emergency powers for more than ten days without ‘the express and continuing consent’ of this body. In Samoa, a Proclamation of Emergency only remains in force for 30 days if not revoked earlier, although subsequent proclamations may be made. Any such proclamation has to be laid before the Legislative Assembly either at the time or as soon as it can be called. Any orders made by the Head of State subsequent to the proclamation of an emergency must also be laid before the legislative assembly. As a final example, in Kiribati, section 16(4) of the Constitution provides that:

A proclamation made under this section, if not sooner revoked, shall cease to have effect at the expiration of 3 days (or, in the case of a proclamation made otherwise than during a meeting of the Maneaba ni Maungatabu, 30 days) from the date of publication unless it has in the meantime been approved by a resolution of the Maneaba, and a proclamation that has been so approved shall remain in force so long as the resolution remains in force and no longer.

These constitutional provisions provide various procedures by which the initial declaration of the emergency, including the context and reasons for doing so, can be scrutinised, rejected or, in some cases, extended.

There are also additional protections offered under SIDS constitutions. As news reports from the UK will have made clear, breaching so-called lockdown rules can result in imprisonment. Arguably, freedom from detention is one of the first liberties to give way during a state of emergency. Some SIDS constitutions, however, include provisions directly addressing the circumstances of detention. For instance, under article 79(1) of Nauru’s constitution, there is to be an advisory board that is to hear representations from those detained during a state of emergency. Similarly, under article 6(b) of Kiribati’s Constitution, anyone detailed by virtue of a law or regulating enacting under a state of emergency shall be notified to the Beretitenti (Office of the President) stating that he has been detained, alongside the particulars of the provisions of law under which his detention is authorised.

As noted above, civil rights are often curtailed in a state of emergency. The constitution of the Federated States of Micronesia attempts to safeguard rights by providing under section 9 (b) that a civil right may be impaired only to the extent actually required for the preservation of peace, health, or safety. This provision appears to place limits on the extent to which certain rights can be undermined, subject only to those measures that are deemed as strictly necessary. Of course, such a provision on its own is worth little, particularly if individual governments reasons are not scrutinised. Thus, it is noteworthy that the same provision stipulates that ‘a declaration of emergency may not impair the power of the judiciary except that the declaration shall be free from judicial interference for 30 days after it is first issued.’ This provision is ambiguous but might be interpreted as saying that not only will the courts be permitted to function during a state of emergency, but they might also, owing to the initial part of this provision, have the scope to scrutinise the extended period of emergency. What is not permitted, it would seem, is questioning the reasons for declaring a state of emergency ab initio. This appears to reflect the position in the UK where courts are being called upon to interpret the laws adopted to give effect to emergency legislation rather than the decision to adopt emergency legislation or the legislation itself.

In addition, some SIDS constitutions can expressly provide for the protection of human rights, a state of emergency notwithstanding. For instance, the Constitution of Papua New Guinea provides under article 233(3) that an emergency law (a) may not alter: (i) Section 35 (right to life); or (ii) Section 36 (freedom from inhuman treatment); or (iii) Section 45 (freedom of conscience, thought and religion); or (iv) Section 50 (right to vote and stand for public office); or (v) Section 55 (equality of citizens); or (vi) Section 56 (other rights and privileges of citizens).

Scope for Future Research

These are, of course, just a number of preliminary observations regarding ways in which SIDS constitutions appear to enable their respective governments to respond to crises such as that of covid-19 while, at least in theory, safeguarding rights. These observations are, at this point, just that but identifying them helps to frame a number of additional questions, which emerge as a result of the partial picture that a textual examination of these respective constitutions presents.

Firstly, and in a general sense, is there anything particularly special about how SIDS constitutions address emergency situations? Are the provisions and mechanisms in place unique to (A) SIDS, (B) SIDS in the pacific vis-à-vis those in Atlantic, Indian Ocean and South China Sea or Caribbean or (C) reflective of how most post-colonial constitutions address states of emergency?

Secondly, what of those SIDS whose power to declare a state of emergency derives not from a constitution but rather legislation (see, for example, the Emergency Powers Act 1978, Solomon Islands, the Public Emergency Act 1979, Niue and the Emergency Powers Act 1958 in Tonga)? What explains the omission from constitutions and what differences emerge from a legislative rather than constitutional approach?

Thirdly, to what extent have the constitutions in question been successful in restricting overly excessive responses? Reports from Asia and Pacific Policy Forum suggest that in the Solomon Islands, security forces have used violent means to enforce the restrictions. Do constitutional protections make any difference at all? Finally, why do some SIDS such as FSM opt to declare a state of emergency while others, such as Palau, do not?

As countries around the world continue to adopt, end or prolong states of emergency, the phenomenon warrants further research. This post has sought to identify one such area, that of SIDS which hitherto have received relatively little attention. By drawing attention to certain constitutional aspects that have underpinned the response of SIDS to covid-19, it becomes clear that scope exists for better understanding the origins, reasons behind, differences between, impacts of and justifications for, the inclusion of emergency provisions in these constitutions.

Dr Sean Molloy joined Northumbria Law School as a Lecturer in July 2020. He was previously a Research Associate at Newcastle Law School. His expertise is in human rights law, public law, transitional justice and peace agreements.

Dr Sue Farran is a Reader at Newcastle Law School. Sue’s research interest lie in the field of human rights and property, encompassing in particular the rights of women, children and indigenous people, and land, natural resources and intellectual property.