Court of Justice of the European Union (CJEU) decisions and Irish law cases relating to Appropriate Assessment under the Habitats Directive have resulted in changes to forestry licensing procedures. The main examples are outlined below.
Case C-323/17 People Over Wind and Peter Sweetman v Coillte Teoranta resulted in the following ruling: “Article 6(3) of [the Habitats Directive] must be interpreted as meaning that, in order to determine whether it is necessary to carry out, subsequently, an appropriate assessment of the implications, for a site concerned, of a plan or project, it is not appropriate, at the screening stage, to take account of the measures intended to avoid or reduce the harmful effects of the plan or project on that site.”
Two recent Irish High Court decisions are also related to this ECJ decision, i.e. Eoin Kelly v. An Bord Pleanála (2019) and Heather Hill Management Company CLG v An Bord Pleanála (June 2019). Both cases reinforced that any measure, including ‘best practice measures’, designed to avoid or reduce the effects on a Natura site cannot be considered during Stage 1 of the process (i.e. AA screening), but instead, can only be evaluated during the AA itself.
As a result, my Department does not consider any relevant protective measure set out in the environmental guidelines or standards, or presented in the proposal itself, when undertaking AA screening of an application to ascertain whether there is a possibility of it having a significant impact on a Natura site, alone or in combination with other plans and projects. This means that a project can only be screened out if no possibility of a significant effect can arise, even if no protective measures were applied.
Case C-461/17 Brian Holohan and Others v An Bord Pleanála resulted in the following rules relating specifically to the AA process:
1. Article 6(3) of [the Habitats Directive] must be interpreted as meaning that an ‘appropriate assessment’ must, on the one hand, catalogue the entirety of habitat types and species for which a site is protected, and, on the other, identify and examine both the implications of the proposed project for the species present on that site, and for which that site has not been listed, and the implications for habitat types and species to be found outside the boundaries of that site, provided that those implications are liable to affect the conservation objectives of the site.
2. Article 6(3) of Directive 92/43 must be interpreted as meaning that the competent authority is permitted to grant to a plan or project consent which leaves the developer free to determine subsequently certain parameters relating to the construction phase, such as the location of the construction compound and haul routes, only if that authority is certain that the development consent granted establishes conditions that are strict enough to guarantee that those parameters will not adversely affect the integrity of the site.
3. Article 6(3) of Directive 92/43 must be interpreted as meaning that, where the competent authority rejects the findings in a scientific expert opinion recommending that additional information be obtained, the ‘appropriate assessment’ must include an explicit and detailed statement of reasons capable of dispelling all reasonable scientific doubt concerning the effects of the work envisaged on the site concerned.
Regarding 1. above, as land use professionals, Registered Foresters are expected to keep abreast of developments impacting on their sector. This includes developments relating to environmental legislation, such as the cited ECJ rulings. To supplement this, a Circular to Registered Foresters (and other stakeholders) has been issued (Circular 08 / 2019, dated 23rd May 2019) to remind relevant parties developing an NIS, to catalogue the qualifying interests and to "identify and examine both the implications of the proposed project for the species present on that [Natura] site, and for which that site has not been listed, and the implications for habitat types and species to be found outside the boundaries of that site, provided that those implications are liable to affect the conservation objectives of the site."
Forestry licences issued by my Department allow for operational flexibility, but only within the confines of the licence itself and its constituent safeguards (including guidelines, requirements, standards and (if relevant) scheme terms & conditions). DAFM is satisfied that licences issued establish conditions that are strict enough to ensure a degree of operational flexibility that will not adversely affect the integrity of the Natura site.
The AA process necessitates the input of various experts, and my Department does not foresee expert input being rejected in relation to any individual file undergoing the process. However, DAFM is aware of this ruling and will comply accordingly, if the described situation arises.
In conclusion, currently, my Department is developing processes and procedures and investing resources to enable the processing and approval of forestry applications, taking according of the above European and national rulings. This includes the development of Standard Operating Procedures, training for District Inspectors and Registered Foresters, investment in ecological expertise (including the recruitment of two addition ecologists for deployment within the Forestry Inspectorate), and the ongoing development of iFORIS, the GIS platform used by Inspectors to process files. A categorisation of files affected by these requirements is also underway in order to best assess further action needed and by whom.
I am fully aware of the concerns of stakeholders in relation to the AA process but we have an obligation for complying fully and completely with environmental requirements. My officials are in regular communication with stakeholders and they have been fully apprised of the issues involved and of my Department’s efforts to address them.
Furthermore, for my part, I have commissioned a consultant to review my Department's processes and procedures on forestry applications and approvals similar to an exercise undertaken in Scotland. I expect to receive this report by the end of November and that it will provide an opportunity to make our processes more effective and efficient going forward.