Abstract
If a plan or project may adversely affect the integrity of a Natura 2000 site, Article 6(4) Habitats Directive must be applied. This provision imposes strict conditions for authorising a plan or project which may adversely affect the nature values of a Natura 2000 site. In this context the obligation to take compensation measures is the ultimum remedium . Initiators of a plan or project try to avoid the application of the strict conditions of Article 6(4) by mitigating the effects of their plan or project so that the conclusion of the appropriate assessment on the basis of Article 6(3) Habitats Directive will be positive. The trick is to find solutions which allow the negative effects of the plan or project, on the one hand, and the positive effects of the nature conservation measures, on the other, to be balanced. Apart from the classic mitigation measures, several creative solutions are applied in the Netherlands in practice and, so far, are also authorised in the jurisprudence of the Council of State. If the nature conservation measures are inextricably linked to the plan or project, these solutions are variations on the theme of mitigating measures, such as nature inclusive design and netting. If the measures are taken independently of the plan or project, they must be classified as autonomous developments. This article discusses the legal aspects of the different solutions.
Highlights
If the competent authority, on the basis of the conclusion of an appropriate assessment under Article 6(3) Habitats Directive, decides that a plan or project, in spite of mitigating measures, may adversely affect the nature values of a Natura 2000 site, the plan or project can only be carried out under the strict criteria of Article 6(4) Habitats Directive
On the basis of the conclusion of an appropriate assessment under Article 6(3) Habitats Directive, decides that a plan or project, in spite of mitigating measures, may adversely affect the nature values of a Natura 2000 site, the plan or project can only be carried out under the strict criteria of Article 6(4) Habitats Directive. These cumulative criteria imply that there is no alternative solution for the plan or project with less adverse effects for the Natura 2000 site, that the infringement can be justified for an imperative reason of overriding public interest and, provided the other two requirements are fulfilled, that the residual adverse effect will be adequately compensated
According to the jurisprudence of the highest administrative court in the Netherlands, the Council of State (Administrative Law Division) (Afdeling bestuursrechtspraak van de Raad van State, hereinafter abbreviated as Council of State or, in the notes, ABRvS5), the imperative reason should outbalance the interest of the protection of the Natura 2000 site.[6]
Summary
This article deals with the implementation in the Netherlands of the obligation under Article 6(4) Habitats Directive[2] to compensate nature values in Natura 2000 sites that are damaged or lost by a plan or project. On the basis of the conclusion of an appropriate assessment under Article 6(3) Habitats Directive, decides that a plan or project, in spite of mitigating measures, may adversely affect the nature values of a Natura 2000 site, the plan or project can only be carried out under the strict criteria of Article 6(4) Habitats Directive. These cumulative criteria imply that there is no alternative solution for the plan or project with less adverse effects for the Natura 2000 site, that the infringement can be justified for an imperative reason of overriding public interest and, provided the other two requirements are fulfilled, that the residual adverse effect will be adequately compensated. The European Commission is of the same opinion.[7]
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