DEVELOPMENTS IN RELATION TO PROTECTED AREAS
Conor Linehan, Environmental Law Unit,
William Fry, Solicitors, Dublin
1.
INTRODUCTION
It is timely to examine where we are at with protected areas in Ireland.
Over the past 20 years or so, an extensive survey and designation exercise has been
undertaken here to give effect to both European and National requirements in this area.
Going back even four or five years, there was still a lot of controversy and concern here about
what designating significant tracts of land and waters would mean for other interests, and as
to how an appropriate balance of interests could be achieved. This was not particular to
Ireland and there was, throughout many Member States, quite a lot of slippage from the
prescribed schedule and timetable set out in the Habitats Directive.1 While the implications
were explained and came to be understood, additional delays, in the case of Ireland at least,
were caused by the need for procedures (over and above those laid down in the Habitats
Directive) in order to meet constitutional requirements, in particular observation of
constitutionally protected property rights. Notably, affected landowners were given the right
to notification and participation to an extent not laid down or envisaged in the Habitats
Directive. It is fair to say that over the past few years a lot has been achieved, in terms of
understanding between the different stakeholders, and in terms of the practicalities of putting
in place the designations and the structures necessary in order to meet their objectives, in
particular Management Plans. Against that measure of progress, it is useful to look at how a
critical aspect of any system of protected areas - a balancing of the different interests involved
- is working, both at European and at National levels.
Nowhere is the term “protected area” in the widest sense (i.e. encompassing more than one
specific type of protected area) defined either in the European Directives or in National
legislation, although the term is used in the Birds Directive.2 A reasonable explanation of the
1
Council Directive 92/43/EEC of 21 May 1992 on the Conservation of Natural Habitats and of Wild Fauna and
Flora.
2
Council Directive 79/409/EEC of 2 April 1979 on the Conservation of Wild Birds.
term is, perhaps, that it connotes any area where human activity is controlled in the
conservation interests of features and organisms of the natural environment, but not just in the
interests of those features and organisms in isolation but, rather, protecting also how they
interact with their environment, and in that sense protected areas are not just environmental
controls but also in the fullest sense ecological controls.
As will be seen, status as a protected area does not always mean that an area will remain
pristine; in fact it usually means an increased – sometimes a significantly increased – level of
planning, development and general control over human activities. In or the words, it involves
the seeking of an appropriate balance of competing interests. In those circumstances, how
effectively our protected areas are working is one useful measure of and insight into how
Sustainable Development is working. To be realistic, it is fairly clear that anthropocentric or
human-centred interpretations of Sustainable Development have precedence and that is likely
to continue and, so, as pressure on the natural environment increases, and as the amount of the
natural environment changed by man increases, protected areas will take on an increasing
importance and value. Thus, we need to understand their role from a variety of perspectives social, ecological and legal. We need to look critically at how protected areas, and the
structures underlying them are working. Are they just holding the line or are they doing more
than that?
2.
SUMMARY
What is presented here is both a snapshot of the different protected area legal basis and
controls in Ireland, and an update on some notable legal developments. It is hoped that this
approach will appeal to an audience with different interests in this area. Hopefully the former
– the snapshot or overview of our legal controls – will also provide some useful context or
background in appreciating the recent developments both in Europe and in Ireland derived
from both case law and legislation.
At the outset, there is a brief “whistle-stop” tour of the development of protected areas in
Ireland over the last 35 years or so, looking at how far we’ve come, and at all the different
types of protected areas that we have.
2
Secondly, I will focus in two types of protected areas in particular – Special Protection Areas
(“SPA”) and Special Areas of Conservation (“SAC”).
These are, perhaps, the most
significant in terms of size, and amount of land in private ownership that is involved and in
terms of examinable jurisprudence. The legal basis for those types of protected area will be
examined, as well as the controls and protections applying to each, both when the
classifications/designations are confirmed and, before that, when they are proposed.
It is worth revisiting one or two of the significant early European Court of Justice (“ECJ”)
decisions that cover the interpretation of key provisions of Birds Directive and Habitats
Directive. Some of these decisions continue to influence developments in this area.
Next, I would propose to briefly look at some of the more recent European cases and a few
Irish contentions that, together, will illustrate how protected area controls are operating.
In relation to other developments, a key focus of the recently passed Directive on
Environmental Liability3 is the protection of biodiversity and the laying down of a framework
for the imposition of liability for environmental damage and costs to prevent and remedy
environmental damage. Amongst the main categories of environmental damage covered by
the Directive is “damage to protected species and natural habitats”. The implications of the
Directive on Environmental Liability for protected areas will be examined.
3.
PROTECTED AREAS: THE PAST 35 YEARS
To fully appreciate the system of protected areas that we have, and how far we have come,
and to put recent efforts into context, it is insightful to go back to about the year 1970. That
was prior to Ireland’s EEC membership. For another European organisation, the Council of
Europe, 1970 was designated as European Conservation Year. That event may be seen in turn
as an outcome of the first phase of the modern environmental movement or consciousness that
emerged in the late 1960’s and early 1970’s. At that stage in Ireland there was just one
National Park. Legislation dealing with nature protection was neither comprehensive nor
3
Directive 2004/35/CE of the European Parliament and Council of 21 April 2004 on environmental liability
with regard to the prevention and remedying of environmental damage.
3
strategic.4 I do not believe there was any one Body or Organisation with overall policy or
strategy responsibility in the area of nature conservation or protected areas, nor any body or
bodies with the range and focus of responsibility that, say, the National Parks Wildlife Service
(“NPWS”) has today.
Jumping forward to 2005, the amount of protected areas that we have of one type or another
has increased exponentially. There are now six National Parks. These total approximately
60,000 hectares in area. These still do not have a basis in legislation5 although this lack of
legislative basis may be related to the fact that in practice the lands involved are usually
acquired uncontroversially by gift or dedication and experience comparatively little pressure
from human activity. Many or most of those areas are located in hilly, mountainous and
remote areas, and in that sense the National Parks are probably the closest we have to pristine
protected areas.
About 20,000 hectares are under 80 or so Nature Reserves. Nature reserves are established
by “Establishment Order” under Section 15 of the Wildlife Act 1976.
Section 15 allows
Nature Reserves to be established over state-owned land, inland waters or foreshore areas that
form the habitat of a species or community of flora or fauna of scientific interest or that is part
of an ecosystem of scientific interest and which would benefit from protection measures.
Upon making a Nature Reserves establishment order, the Minister is obliged to manage the
reserve in accordance with general principles for the protection of the natural environment.
Most Nature Reserves that are established in this way are over state-owned land but a few
have been established, also under Section 15 of the Wildlife Act 1976, under “Recognition
Orders” over privately owned lands with the consent of the landowners concerned.
Under Section 17 of the Wildlife Act 1976, there is power by “Designation Order” to
designate Refuges for one or more species of flora or fauna where it is considered they should
be specially protected and require special protection measures. Section 17 provides for public
4
The first comprehensive piece of wildlife legislation in the form of the Wildlife Act 1976 was still six years
off . The Deer Protection Act 1698 and the Game Act 1787 were still in operation. Other Acts like the Poaching
Protection Act 1862, the Game Preservation Act 1930, the Wild Birds Protection Act 1930 and the Forestry Act
1946 were fragmented and not always adequate to deal with modern threats to wildlife.
5
Except certain lands now part of the present Killarney National Park that were originally dedicated by gift to
the State which established the lands as a National Park under the Bourne Vincent Memorial Park Act 1932.
4
notification, objections and compensation for affected landowners. I am not aware of the
extent to which Designation Orders for Refuges establishing flora and fauna are utilised.
In addition to National Parks, Nature Reserves and Refuges for flora and fauna, the range and
amount of land, marine areas and inland waters covered by protected areas has grown
enormously over the past 20 years with the establishment of or proposals for:
Over 130 Special Protection Areas;

Over 400 Special Areas of Conservation;

Hundreds of Natural Heritage Areas.
In addition, if one takes a broad enough interpretation of the expression “protected areas” one
could include any lands that are the subject of a Management Agreement under Section 18 of
the Wildlife Act 1976. This authorises the State to enter agreements with landowners, for
consideration or not, whereby agreed land management methods and techniques favourable to
wildlife conservation are agreed upon – a type of national forerunner similar in design and
approach to the EU Rural Environmental Protection Scheme (“R.E.P.S.”). A wide
interpretation of protected areas would also embrace areas mentioned in Planning Authority
development plans (whether formerly zoned or not) having a status or description (and usually
tighter planning control) based upon the lands’ natural conditions or amenity values.
Descriptions of such lands tend to differ from one Planning Authority to another but generally
tend to be described by reference to scientific interest and/or natural beauty and/or special
amenity.
4.
SPECIAL
PROTECTION
CONSERVATION
AREAS
4.1
Special Protection Areas – Legal Basis
AND
SPECIAL
AREAS
OF
The ultimate legal basis for Special Protection Areas (“SPAs”) is the Birds Directive. 6 The
preamble to that Directive noted the large number of species of wild birds declining in the
Member States’ territories and the importance of reversing that trend of preserving,
maintaining and restoring “a sufficient diversity and area of habitats … essential to the
6
Council Directive 79/409 EEC of 2 April 1979 on the conservation and wild birds. This may be regarded as
one of the first pieces of European Law concerned with the conservation of species and habitats.
5
conservation of all species of birds”. While the Birds Directive lays down a range of
protective measures for the protection, management of all wild birds7 a key element is habitat
protection. Article 4(1) requires Member States to classify “the most suitable territories in
number and size as Special Protection Areas” for the conservation of certain species of wild
birds. The relevant species for which SPAs must be classified are:

all those species listed in Annex I to the Directive. The common factor here is that these
are that species are considered at any particular time to be endangered, whether in
danger of extinction, or otherwise vulnerable or under threat for reasons to do with
distribution, small population size, habitat change, etc.; and

regularly occurring migratory species whose vulnerability and need for special
protection, as Article 4(2) emphasises, derives from factors such as their breeding and
moulting needs along staging posts and migratory routes. In relation to these regularly
occurring migratory species, Member States are required, in accordance with European
Community support for the objectives of the RAMSAR Convention on Wetlands
8
to
pay particular attention to wetlands and wetlands of international importance.
4.2
SPAs – Implementing Irish Measures
Irish provisions implementing the Birds Directive, both its SPA requirements and its
provisions on hunting, trade, capture, etc. are spread across primary and secondary legislation.
The European Communities (Conservation of Wild Birds) Regulations 19859 designated the
first four SPAs in Ireland (in Counties Wexford, Kerry and Mayo) and this set of Regulations
has been followed by a whole series of Regulations amending the 1985 Regulation by adding
or extending the number of SPAs up to the present number of 130 or so that we have today.
This convenient legislative method of extending the Schedule to the original 1985
Regulations disguises the extensive survey and ornithological work involved in identification
and classification of areas for SPAs, and in reviewing and extending existing SPA boundaries.
Irish provisions dealing with the controls for SPAs are now found mainly in the Regulations
7
Including measures on trade, hunting and capture of wild birds.
The 1971 Convention on Wetlands of International Importance Especially as Waterfowl Habitats.
9
S.I. No. 291 of 1985.
8
6
that implement the Habitats Directive.10 Those Regulations, whilst concerned mainly with
implementing the Habitats Directive, apply various controls to the composite concept
“European Site” (defined as including Special Protection Areas as well as Special Areas of
Conservation) and, in that way, the controls which apply to Special Areas of Conservation
under the Habitats Directive apply also to Special Protection Areas under the Birds Directive.
4.3
SPAs – Controls
The broad structure of European provisions on protected areas is to firstly lay down the
requirement to designate or establish the protected area in question and then to lay down the
particular control or framework for control which is to operate within that type of protected
area.
This was the approach taken with the Birds Directive. That Directive’s original
prescription on how Member States were to look after SPAs was very straightforward
involving a clear, unqualified obligation to avoid pollution or deterioration of the habitats of
SPAs or any disturbance affecting birds within them.11
The result of early case law from the ECJ on the Birds Directive is that Member States cannot
avoid their Article 4 obligations of control through failure or delay in classifying an area as an
SPA. This was established in the case of Commission v. Spain (known as the Santona
Marshes Case).12 This case made it clear that the obligation on Member States to avoid
deterioration of the habitats of bird species protected by the Birds Directive did not depend on
the habitat having first been designated as an SPA. The ECJ reasoning was that the objectives
of the Directive would be completely undermined if the conservation obligations only
operated from whenever an area was formally designated. Central to the ECJ decision was its
finding that the ornithological criteria in Article 4 of the Birds Directive are sufficiently clear
and objective, especially as regards the listing of particular endangered species of birds in
Annex I, to create essentially a direct effect on Member States and to enable a clear
determination to be made in many cases as to whether an area ought to have been designated
as an SPA or not. In the case of the Santona Marshes the position was clear cut – it was home
10
The European Communities (Natural Habitats) Regulations 1997 (S.I. No. 94 of 1997).
Article 4(4) in its original form provided:“In respect of the protection areas referred to in paragraphs 1 and
2 above, Member States shall take appropriate steps to avoid pollution or deterioration of habitats or any
disturbance affecting birds, in so far as they would be significant having regard to the objective of this article.
Outside these protection areas, Member States shall also strive to avoid pollution or deterioration of habitats.”
12
Case C-355/90.
11
7
to the Spoonbill, an Annex I species, and was important also for other migratory species. The
Spanish authorities, by permitting a range of damaging activities in the area (including
licensed clam farming, industrial zones, land reclamation, road construction and untreated
waste water disposal) was in breach of its Article 4(4) obligation to “take appropriate
measures to avoid deterioration of the habitats of SPAs and any disturbance affecting birds
within them”. The fact that the area was not formally designated as an SPA was irrelevant.
Thus, the Santona Marshes’ decision was an early important victory for conservation
objectives and purposes of the Birds Directive.
That original and unqualified obligation on Member States under Article 4(4) the Birds
Directive has since been replaced by a provision which, while largely repeating the original
obligation to avoid “deterioration or disturbance”13 insofar as such matters “ could be
significant” 14, now has added provisions dealing with exceptions to the regime of control on
the grounds of economic and social interests.
The new control provisions will be examined under the heading “Special Areas of
Conservation” below (the new control provisions, with their qualifiers in respect of wider
economic or public interest, are now essentially the same for both Special Protection Areas
and for Special Areas of Conservation). Firstly, though, it is important to examine the
background to that change whereby economic/social interest-based exceptions to the
obligations on Member States came to be added.
The change derives from another early ECJ decision on the Birds Directive, Commission v.
Germany (known as the Leybucht Dykes case).15 There an SPA had already been designated
and the case was concerned with the scope that existed for the relevant German authority to
reduce or modify in size that SPA. The case arose out of a proposal by a public authority in
the Leybucht area of Northern Germany to carry out re-enforcement of a water dyke. The reenforcement was necessary to help prevent flooding – the area was at risk of serious flooding
to the point of endangerment of human life. In executing the works the authorities changed
the line of the dyke to the benefit of nearby Leybucht Harbour. That had the result of
13
The original Article 4(4) obligation related to avoiding “pollution” as well as deterioration, disturbance, etc.
The original Article 4(4) obligation was somewhat differently phrased in that the Member States had to avoid
deterioration, disturbance, etc. that “would be significant”.
15
Case C-57/89.
14
8
reducing the size of the SPA and its importance. The central question in the case was whether
a Member State was entitled to reduce an SPA in size and, if so, for what reasons. The ECJ
considered the relevant provisions of the Birds Directive and in particular the different parts
of Article 4. The Court held that while Article 4(1) afforded a degree of discretion to Member
States in selecting “the most suitable territories in number and size as Special Protection
Areas”, once designated, any further discretion to reduce the SPA in size was extremely
limited. Again, a purposive approach or reasoning was taken with the ECJ finding that the
whole purpose of the regime would be upset if a Member State had a general discretion to
designate areas (which by their own admission in so designating were very important areas
for birds) whilst having at the same time complete freedom to later reduce those same areas in
size. According to the ECJ reduction in size could be justified only on exceptional grounds.
For such exceptional grounds to exist there had to be a public interest superior to the Birds
Directive’s ecological objectives. While on the facts in the Leybucht Dykes case the ECJ
held that such exceptional grounds did exist (on the basis of the need to prevent potentially
catastrophic flooding and endangerment of human life) critically it held that economic and
recreational interests16 could not be taken into account. The Court’s overall interpretation was
that once an SPA was designated or classified it could not be interfered with or reduced in
size or set aside wherever commercial or economic considerations dictated.
5.
SPECIAL AREAS OF CONSERVATION – LEGAL BASIS
As the implications of the decision in the Leybucht Dykes began to be appreciated, political
pressure grew to change the control provisions of the Birds Directive and so when the
Habitats Directive was passed in 1992 the changes were effected and now both the Habitats
Directive and Birds Directive contain provisions that permit, in certain circumstances,
interference with Special Areas of Conservation and Special Protection Areas on the
exceptional public interest grounds including economic and social grounds.
Special Areas of Conversation (SACs) are the creation of the Habitats Directive. 17 Its overall
aim, as part of the contribution to sustainable development, is to ensure restoration or
16
Economic and recreational considerations, whilst mentioned in Article 2 of the Birds Directive, are not
specifically mentioned in respect of Special Protection Area provisions of the Directive in Article 4.
17
Council Directive 92/43/EEC of 21 May 1992 on the Conservation of Natural Habitats and Wild Fauna and
Flora.
9
maintenance of natural habitats and species of Community interest at a favourable
conservation status.
The Directive’s objective is the designation of Special Areas of
Conservation in order to create a coherent European ecological network according to a
specified timetable.18
The procedure leading to designation of Special Areas of Conservation is set out in Article 4
of the Directive. It is a rather convoluted and extended procedure but essentially involves:
Member States proposing to the Commission, on the basis of criteria set out in Annex III
(Stage 1) to the Directive, a list of sites indicating which natural habitat types set out in
Annex I and which species set out in Annex II that are native to its territory each site
hosts;19

On the basis of separate criteria, set out in Annex III (Stage 2) to the Directive, the
Commission then establishes, in agreement with Member States, a draft list of “Sites of
Community Importance” drawn from the Member States’ lists identifying those sites
which host one or more priority natural habitat types 20 or priority species; 21

A list of sites selected as Sites of Community Importance (again identifying those
hosting one or more priority natural habitat types or priority species) is then to be
adopted by the Commission in accordance with the Committee procedure laid down in
Article 21 of the Directive.22
18
Under Article 3 of the Habitats Directive, the coherent European ecological network of Special Areas of
Conservation is set up under the title NATURA 2000. Article 3 also specifies that the NATURA 2000 network
is to include Special Protection Areas classified pursuant to the Birds Directive.
19
Under internal Irish arrangements for compliance with this part of the procedure leading to the designation of
SACs, affected Irish landowners, whose lands it is proposed to place on the list of sites to be given to the
Commission are required under Irish law (particularly that relating to institutional protection of property rights)
to be notified of such a proposal in advance. The requirement for prior notification and the right to object (given
the serious consequences for landowners of designation) was stressed in the case of McPhartalain v.
Commissioners Public Work [1992] I.R. 111. Supreme Court, unreported, 4 May 1993.
20
Defined in the Habitats Directive as Natural Habitat types in danger of disappearance which are present in the
Member States’ territories and for the conservation of which the Community has particular responsibility in view
of the proportion of their natural range which falls within the Member States’ territories and which priority
Natural Habitat types are indicated by an asterisk in Annex I.
21
Defined in the Habitats Directive essentially as endangered species for the conservation of which the
Community has particular responsibility in view of the proportion of their natural range which falls within the
European territory of the Member States and which are indicated by an asterisk in Annex II.
22
That list was to have been established within six years of the notification of the Directive i.e. by 1998.
10

Once a Site of Community Importance has been adopted in accordance with the
Committee procedure under Article 21, the Member State concerned must then
designate that site as a Special Area of Conservation (SAC) as soon as possible and
within six years at most.
5.2
SACs – Controls
As with the Birds Directive regime, the Habitat’s Directive, having set out the procedure for
designation (as SACs) then proceeds to deal with the controls that are to operate within and
near those SACs. In that regard Article 6 of the Habitats Directive sets out the framework of
control that Member States are to apply to SACs.23 In this regard it should be noted that the
key control provisions under Article 6(2), (3) and (4) of the Directive operate not from when
the protected sites are finally designated within Member States as Special Areas of
Conversation at the end of the procedure, but from an earlier stage in the procedure, namely
when they are selected for inclusion on the list of Sites of Committee Importance pursuant to
the Committee procedure set out in Article 21.24
Article 6(1) of the Directive, recognising the conservation is not achieved through designation
alone, requires Member States to establish the necessary conservation measures involving, if
necessary, Management Plans and contractual measures. The reference here to Management
Plans and contractual measures recognises the need for management, the need for a strategic
approach to that management and the need to have landowners involved. It recognises that
effective management ultimately depends on co-operation with the landowners concerned
who will implement the plans in practice.
Management Plans must be tailored to the
ecological requirements of the sites for which they are prepared. 25
23
It is important to
In Ireland these controls find expression in the implementing Irish Regulations, the European Communities
(Natural Habitats) Regulations 1997.
24
Indeed in Ireland the controls operate at an even earlier stage and in that regard Irish arrangements go beyond
what is required by the Habitats or Birds Directives. The European Communities (Natural Habitats) Regulations
1997 which implement mainly the provisions of the Habitats Directive but also, in part, the provisions of the
Birds Directive, use the composite term “European Site” (in respect of which the various controls operate) to
cover (a) Special Protection Areas under the Birds Directive; (b) sites finally designated as Special Areas of
conservation under the Habitats Directive; (c) sites placed on the Commission list of Sites of Community
Importance under Article 21; and also (d) an even earlier stage of the proceeding notably any site which is
subject of a notification to an affected landowner.
25
In Ireland preparation of Management Plans for many of the SACs is well under way. Ireland received EU
LIFE funding to fund preparation of these plans. The major proportion of lands within SACs in Ireland are
privately owned and Management Agreements such as those envisaged under Section 18 of the Wildlife Act
11
remember that while it is necessary to look at legal approaches to conservation and protected
areas and to keep abreast of legal mechanisms to balance conservation and development
interests that conservation itself is, on the ground, achieved through the wide SAC
Management Plans and the implementation of those Plans by landowners.
Article 6(2) contains a general conservation obligation on Member States by requiring them to
avoid, in SACs, the deterioration of natural habitats and the habitats of species as well as
disturbance of the species for which SACs have been designated insofar as such disturbance
could be significant in relation to the objectives of the Directive.26
Articles 6(3) and 6(4) then represent the newer elements of protected area controls, i.e. the
Habitats Directive’s essential efforts to recognise the needs of other compelling economic and
interests and to balance those interests with the conservation objects of the Habitats
Directive.27 As already indicated this represented a significant departure from the unqualified
conservation regime laid down for SPAs in the Birds Directive. As already indicated, the
Habitats Directive extended that changed approach not just to the management and control of
SACs under the Habitats Directive but the management and control of SPAs classified
pursuant to the Birds Directive.28
1976 and farm plans under the EU REPS Scheme provide a method by which to apply the site specific
conservation principles set out in the wider SAC Management Plans.
26
This is more or less a repeat of the wording of the original general obligation on Member States in respect of
SPAs under the Birds Directive.
27
Article 6(3) provides as follows: “Any plan or project not directly connected with or necessary to the
management of the site but likely to have a significant effect thereon, either individually or in combination with
other plans or projects, shall be subject to appropriate assessment of its implications for the Site in view of the
Site’s conservation objectives. In the light of the conclusion of the assessment of the implications for the site and
subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project
only after having ascertained that it will not adversely affect the integrity of the site concerned, if appropriate,
after having obtained the opinion of the general public.”
Article 6(4) provides as follows: “If, in spite of a negative assessment of the implications for the site and in the
absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of
overriding public interest, including those of a social or economic nature, the Member State shall take all
compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall
inform the Commission of the compensatory measures adopted.
Where the site concerned hosts a priority natural habitat type and/or a priority species the only considerations
which may be raised are those relating to human health or public safety, to beneficial consequences of primary
importance to the environment or, further to an opinion from the Commission, to other imperative reasons of
overriding public interest.”
28
Having set out the changed regime in Articles 6(2), (3) and (4) Article 7 of the Habitats Directive then
provides: “Obligations arising under Article 6(2), (3) and (4) of this Directive shall replace any obligations
arising under the first sentence of Article 4(4) of Directive 79/409/EC in respect of areas classified pursuant to
Article 4(1) or similarly recognised under Article 4(2) thereof as from the date of implementation of this
Directive or the date of classification or recognition by a Member State under Directive 79/409/EEC where the
latter date is later.”
12
It is clear that Articles 6(2) and (3) redress the effects of the Leybucht Dykes decision by
handing a significant degree of control back to Member States through requiring assessment
at Member State level of plans or projects that could have serious implications for SACs and
SPAs. Other elements that represent a handing back of control to the Member States and a
move away from the high-point of European nature conservation represented by the Leybucht
Dykes decision include the fact that it is the Member States that largely determine whether a
plan or project will go ahead on the basis of “imperative reasons of overriding public
interest”. It is to be noted that “imperative reasons of overriding public interest” may
include reasons of a social and economic nature, extremely broad categories in themselves.
Even where a priority natural habitat type and/or a priority species is involved and may be
adversely affected then Member States, it appears, still have the say in whether to allow a
project to go ahead on public interest grounds although there are restraints on the powers
given to Member States in this area in that if there is a question of a priority natural habitat
type and/or priority species being affected, economic and social reasons will not qualify as
imperative reasons of overriding public interest - in that case the Member States themselves
may only allow an interference with priority habitat/species on grounds of human health or
public safety (although other imperative reasons of overriding public interest may be allowed
further to an Opinion of the Commission). As a further constraint on Member States, in order
for any overriding interest to justify an adverse interference with an SAC or an SPA (whether
a priority natural type/species is involved or not) has to be a public interest. Purely private
interests or developments will not suffice although, of course the dividing line will not always
be clear and in some cases it may be possible to argue perhaps for a public benefit or interest
deriving from or being associated with, a largely private plan or project. Again though there
is an element of restraint here in that the exceptional interests contained in Articles 6(2) and
(3) have to be overriding interests. In general terms it may be said that in the limited number
of cases that have been referred to the Commission for its Opinion under the new
arrangements where potential destruction to a priority natural habitat type/species is involved
that the Commission has generally been respectful of and slow to interfere with Member
States’ own interpretations of what amounts to an “overriding public interest”.29
29
In an opinion from Germany involving a road building project in the Land of Mecklenburg-Western
Pomerania which was to cross two river valleys that were SPAs and that also contained priority habitat (fenland
and raised bogs) under the Habitats Directive the Commission agreed with the German authorities that
“imperative reasons of overriding public interest” existed. The Commission was influenced by arguments that
the road would advance economic cohesion between more prosperous parts of the former West Germany with
less prosperous parts of the former East Germany and would assist in reducing high levels of unemployment in
the latter. The high value the project had at Bundestag level was influential also as was the fact that Community
13
5.3
The Lappel Bank Case
Another of the early significant decisions from Europe was the reference to the ECJ from the
United Kingdom in R v Secretary of State for the Environment, ex parte RSBP (known as the
Lappel Bank case).30
The Santona Marshes case had decided that Member States were obliged to protect and to
avoid deterioration of areas that ought to be, but had not yet formally been, designated as
Special Protection Areas.
The Leybucht Dykes case decided that while in exceptional cases the ornithological objectives
of SPAs could be overridden by exceptional public interests, those interests could not include
interests of an economic or recreational nature. Leybucht Dykes, we have seen, led to the
opening-up of the Birds Directive and Habitats Directive regimes to the inclusion of
overriding public interests (including of an economic and social nature).
What the Lappel Bank case decided was that while economic/social overriding reasons now
have a place they cannot be taken into account at the stage of designating an SPA i.e. at the
initial stage of defining the boundaries of an SPA. In designating the Medway Estuary SPA
the Secretary of State had excluded an area of inter-tidal mudflat known as the Lappel Bank.
The Bank adjoined the Port of Sheerness and it was feared that its loss would result in a
significant reduction in wader and wildfowl numbers in the estuarine ecosystem. The
reclamation and the development of the Lappel Bank was needed for an expansion of the Port
of Sheerness31. The Secretary of State took the view that the need to maintain the Port’s
viability outweighed the ecological value of the Lappel Bank. The RSBP challenged by way
of judicial review the decision to exclude the Lappel Bank from the Medway Estuary SPA
and the case went to the House of Lords which referred the matter to the ECJ. The Court
applied not just the Santona Marshes decision but also considered the changes introduced to
Structural Funds were being applied to the project. The fact that the road would be an important link in the
Trans-European Road Network also provided the necessary public element. Also influential was the fact that
effective compensatory measures were possible. In the case of one part of the road the route was initially
rejected by the Commission and had to be re-submitted. See OJ 95/C 178 and OJ 96/L 6.
30
Case C-44/95 1997 QB 206
31
The expansion was needed to maintain the Port’s position as the fifth largest port in the UK for freight and
cargo and while the port was a significant employer, the area had a significant unemployment problem.
14
the Birds Directive by Article 7 of the Habitats Directive i.e. the provisions allowing
recognition in certain circumstances of economic and social considerations. The ECJ held
that these considerations do not arise at the SPA designation stage. A SPA designation must
be made and the boundaries defined without reference to economic requirements that may
later constitute imperative reasons of overriding public interest of the kind referred to in
Article 6(4) of the Habitats Directive.
The implications are clearly that economic considerations cannot be used to justify failure to
designate an area which meets the ornithological criteria in the Birds Directive. In the case of
the Lappel Bank however by the time the reference reached the ECJ (the House of Lords
having refused an injunction against the development, which had planning permission) the
Bank had been destroyed.
6.
RECENT ECJ DECISIONS ON THE HABITATS AND BIRDS DIRECTIVES
A series of recent and relatively recent decisions of the ECJ have built upon the purposive and
largely pro-conservation approaches evident from the earlier decisions discussed.
6.1
Commission v France (2000)32
Here the ECJ declared that despite other conservation measures taken by the French
authorities for the protection of bird life in the Basses Corbieres33 by not classifying any part
of the area as an SPA the French government had failed to fulfil its obligations under Article
4(1) of the Birds Directive.
Of particular note from that decision is the importance placed by the ECJ on the IBA
Inventory i.e. the Inventory of Important Bird Areas in the European Community. The Court
approved earlier decisions which held that the Inventory, although not legally binding on
Member States, contains scientific evidence making it possible to assess whether a Member
State has complied with its obligation to classify as SPAs the most suitable territories in
number and size for the conversation of protected species of bird. Thus the IBA continues to
be an important weapon and reference point in the hands of interest groups.
32
33
C-374/98. Judgment delivered 7 December 2000.
In particular the Bonnelli’s Eagle, of which there are only about 20 pairs remaining in France.
15
The decision is also important for highlighting the point that the extension by Article 7 of the
Habitats Directive, to the Birds Directive regime, of the possibility of overriding public
interest exceptions (including economic and social reasons) only applies, on a strict reading of
Article 7, to areas formally classified as SPAs.34 In other words Member States cannot avail
of the overriding public interest exceptions to justify projects in areas not formally classified
as SPAs. In that way Member States have an incentive to go ahead and make the SPA
designations where the ornithological criteria are satisfied.
6.2
Commission v Ireland (2002)35
This is a case which, while not of great jurisprudential significance in this area (being decided
largely on evidential grounds), is nonetheless of interest because in addition to being a case
against Ireland, it concerned the interaction of the over-grazing problem in Ireland
(considered for many years to be one of the most serious environmental degradations in
Ireland) with the Birds Directive regime.
Essentially here Ireland was held in breach of the Birds and Habitats Directives 36 by failing to
take sufficient steps to curb upland overgrazing of heather in the Owenduff-Nephin Beg
complex (the largest SPA in Ireland) the adverse effects of which were causing a marked
deterioration in populations of Red Grouse. Here a 1993 Report of the then Irish Wildbird
Conservancy (“IWC”) was significant in the decision. It claimed that Red Grouse was a
seriously endangered species.
The case is of legal interest though in that the ECJ response to one of the Irish government’s
arguments (disputing the Commission’s view that the Red Grouse was under threat) was that
the obligations on Member States under Article 3 (to maintain a sufficient diversity of habitat
34
Article 7 of the Habitats Directive provides: “obligations arising under Article 6(2), (3) and (4) of this
Directive shall replace any obligations arising under the first sentence of Article 4(4) of Directive 79/409/EEC
in respect of areas classified pursuant to Article 4(1) or similarly recognised under Article 4(2) thereof, as from
the date of implementation of this Directive or the date of classification or recognition by a Member State under
Directive 79/409/EEC where the latter date is later.”
35
C-117/00. Judgment delivered 13 June 2002.
36
In breach of Article 3 of the Birds Directive (failure to maintain a sufficient diversity of habitats) and, given
that the area was designated as an SPA, in breach of Article 4(4) of the Birds Directive and Article 6(2) of the
Habitats Directive.
16
for wild birds) exist before any reduction is observed in the number of birds and before any
risk has materialised of a protected species becoming extinct.
6.3
Commission v Italy (2003)37
This was a wide-ranging infringement action by the Commission against Italy. The complaint
was about the low number (74) of SPAs designated by Italy at the time of the commencement
of the infringement action and about the quality of those areas (the Commission claimed that
many of the areas were not important for bird life). Again the Commission relied on the IBA
Inventory. The case re-emphasises that economic requirements cannot dictate the selection or
the size of SPAs and, in relation to IBA inventory (attacked in that case by the Italian
authorities as being out of date), the ECJ again emphasised the IBA Inventory’s important
role. The ECJ accepted it as the best evidence on ornithology in Italy in the absence of any
better evidence being offered by the Italian authorities.
6.4
Commission v Italy (2003)38
This case concerned the interaction between the Habitats Directive regime and the EC regime
on Environmental Impact Assessment (EIA). The Italian government passed a measure
transposing the Habitats Directive. In relation to the parts of the Habitats Directive requiring
an assessment of plans or projects not directly connected with or necessary to the
management of SACs but likely to have a significant effect thereon, the Italian Government,
in its implementing measure, had excluded projects other than those listed in the Italian
legislation implementing the EIA Directives.39
This approach was held to be a failure to properly implement the Habitats Directive. It
follows therefore that the range of plans or projects potentially requiring assessment under
Article 6(3) of the Habitats Directive is not circumscribed by reference to those plans or
projects listed in the Schedules to the EIA Directives.
37
C-378/01. Judgment delivered 20 March 2003.
C-143/02. Judgment delivered on 20 March 2003.
39
Directive 85/337/EEC as amended by Directive 97/11/EC.
38
17
6.5
Commission v Austria (2004) 40
It is not just in Ireland but throughout the EC that proposals for golf courses have fallen foul
of EC protected area laws. This case concerned two new golf holes being developed in an
SPA that was of critical importance to the corncrake in that part of Austria. Despite a
negative assessment of the project the Austrian competent authority relied on the conditions
attached to the development consent as being sufficient mitigation/avoidance of any potential
adverse affect on the corncrake. The case was largely about the adequacy of those conditions.
Unfortunately by the time the ECJ determined the matter (ruling that there would be a breach
of the Birds Directive) the two new golf holes had been constructed.
6.6
Reference to ECJ from Raad van State (Netherlands) (2004)41
This arose from complaints about the effects of mechanical cockle fishing on SPAs. The ECJ
considered the relationship between Articles 6(2) and 6(3) of the Habitats Directive (which
also cover SPAs). Article 6(2) establishes, according to the ECJ, an “obligation of general
protection” requiring the avoidance of deterioration and disturbance within SPAs/SACs.
Article 6(3) was an entirely separate provision establishing a procedure to ensure by means of
a preliminary examination, that a plan or project not connected nor necessary to the
management of an SPA/SAC but likely to have a significant effect thereon is authorised only
to the extent that it will not adversely effect the integrity of that site.
The ECJ went on to consider the precise meaning of the Article 6(3) requirement for an
assessment of any plan or project not connected with the management of the site but likely to
have a significant effect thereon. The ECJ held that any such plan or project should be
subject to an assessment of its implications for the site “if cannot be excluded, on the basis of
objective information, that it will have a significant effect on that site, either individually or in
combination with other plans or projects”.
According to the ECJ Article 6(3) also requires that such a plan or project is to be authorised
within or near an SPA “only if the Member State’s competent authority have made certain
40
41
C-209/02. Judgment delivered on 29 January 2004.
C-127/02. Judgment delivered 7 September 2004.
18
that it will not adversely affect the integrity of that site”. The ECJ added: “that is the case
where no reasonable scientific doubt remains as to the absence of such effects”.
This decision clearly is significant as it goes beyond merely being precautionary to equating
“ascertaining” the effects of the plan or project with the need to be certain one way or the
another.
7.
SOME RECENT IRISH DECISIONS ON PROTECTED AREAS
Since the Supreme Court decision in Murphy v Wicklow County Council and others
42
(the
litigation arising from the Glen of the Downs protests) there have been other Irish decisions in
which EC and Irish implementing measures on SACs and SPAs have featured.
7.1
Waddington v An Bord Pleanála 43
The Applicant sought by way of judicial review to quash the decision of the Bord to grant
planning for the development of a 60 metre riverside quay extension to it at Drogheda by
Drogheda Port Company. The site of the main quay and the extension was on the boundary
of the Boyne Estuary SPA. The relevant legal provisions included Article 27 of European
Communities (Natural Habitats) Regulations 1997 which, in effect, implement Articles 6(3)
and (4) of the Habitats Directive by requiring planning authorities to carry out an assessment
of the effects on any “European Site” (which includes SPAs and SACs) of development the
subject matter of a planning application where such development is “likely to have a
significant effect” on the European Site concerned.
Here there had been no specific assessment for the quay extension as part of the planning
application although what had been considered in the overall consideration of the planning
application/appeal was an EIS that had accompanied the planning application for the main
quay structure back in 1996.
The Applicant’s claimed that decision to grant planning
permission in those circumstances breached Article 27 of the 1997 Regulations. The claim
failed.
The High Court rejected that part of the applicants claim that was based on
irrationality/unreasonableness. The High Court applied a legal test set out in O’Keeffe v An
42
43
Supreme Court - Judgment delivered on 28 January 2000.
Unreported. High Court. Butler J., 21 December 2000.
19
Bord Pleanála.
44
The High Court accepted the Bord’s arguments that the question of
whether a development was likely to have a significant effect on the SPA was a matter for the
Bord. Only if the planning authority/Bord considered that there would be significant effects
on the European Site was an assessment called for. Here the Bord did not consider there
would be such effects and as its decision was not irrational/unreasonable according to the
O’Keeffe test decision should therefore stand.
It may be observed that this decision was delivered prior to the recent ECJ decision in the
reference from the Netherlands
45
which held that a plan or project should be subject to an
assessment “if it cannot be excluded on the basis of objective information that it will have a
significant effect…”.
7.2
Berra Inshore Fishermans Co-operative Society Limited v Minister for the
Marine and Others 46
Here part of the Applicant’s challenge to the grant of trial licences for aquaculture in the
Kenmare River was a claim that the Minister’s decision was ultra vires and unreasonable in
failing to have regard to the circumstance that the area licensed was within a proposed Special
Area of Conservation. This part of the claim failed when evidence showed that the area had
only been formally proposed as a cSAC shortly after the decision to grant the aquaculture trial
licenses.
The case illustrates that the technical timing of designations or proposed
designations vis-à-vis the timing of impuned development consents can be critical.
7.3
Minister for Arts, Heritage, the Gaeltacht and the Islands v Kennedy and others
47
This case also concerned the European Communities (Natural Habitats) Regulations 1997
which implement the Habitat Directive and, in part, the Birds Directive. Article 17 of the
1997 Regulations gives the Minister wide powers to take proceedings to halt operations or
activities on European Sites (including SACs and SPAs) which are not connected with the
44
1993 1 I.R. 39.
. See paragraph 6.6 above.
46
High Court. Unreported. Finegan J. 28 February 2001.
47
[2002] 2 IRLM 94.
45
20
management with such sites and are likely to have a significant effect thereon. Article 17
entitles the Minister to seek injunctive relief against such operations and activities where an
assessment leads the Minister to consider that the operation will adversely affect the integrity
of the site. Here the Minister sought an injunction under Article 17 to halt the development of
a golf course on a Special Area of Conservation and while he relied on an assessment carried
by Duchas, the exact wording of Article 17 spoke of an assessment being carried out “in view
of the sites conservation objectives”. No conservation objectives had been formulated for the
site at that stage, nor had any Management Plan been prepared for the site.
In the
circumstances Murphy J. held that one of the pre-conditions for the Minister taking injunctive
relief had not been satisfied and relief was refused.
7.4
Leen v Aer Rianata 48
This was an application for a planning injunction under Section 160 of the Planning and
Development Act 2000 to halt operations at Shannon Airport on the grounds that the
conditions attaching to the planning permission for the new Airport extension were not being
complied with. The conditions in question related to the provision of waste water treatment
facilities at the airport. Ultimately the High Court (McKechine J) exercised its discretion to
refuse the planning injunction even though the Court acknowledged that it was clear that the
planning permission conditions were not being observed. The decision is of relevance for
present purposes in that the High Court discussed the wider public interests that should inform
decisions on planning injunctions. Here, in terms of the eventual outcome in refusing the
injunction, what was critical was the catastrophic consequences that would flow from any
closure of the Airport. However the High Court also observed that in planning injunctions the
public interest could also include the potential ecological impact of a development. In this
case the untreated waste water from the Airport was flowing into the Lower River Shannon
SAC and towards the River Fergus SPA. The planning injunction here appears to have been
motivated by the Applicant’s opposition to the use of Shannon Airport as a stop over for US
military aircraft.
48
2003 4 I.R. 394.
21
8.
8.1
THE ENVIRONMENTAL LIABILITY DIRECTIVE AND PROTECTED
AREAS
Environmental Liability Directive - General
A quite notable development relating to protected areas has been the coming into operation in
April 2004 of the new directive on environmental liability.
49
It is a wide-ranging and
overreaching measure, in terms of the wide definition of “environmental damage” and in
terms of its application to the most important sources of Environmental Damage. A brief
summary of the measure follows, with reference to protected areas.
50
In essence, the
Directive seeks to create a common framework throughout the Member States for imposing
liability and costs (based on the “polluter pays” principle) for “Environmental Damage”. In
respect of the Community Directives on the specific areas of air, water, waste, IPPC licensing
etc., these are all specific EC environmental regimes and controls in themselves, but the
Environmental Liability Directive encompasses all of these measures by recognising them as
sources of environmental damage for the purpose of imposition of liability and cost
allocation.
As indicated, the purpose of the Directive is to establish a framework, and to that extent
while Article 3 specifies that it applies to environmental damage or the threat of such damage
that is caused by certain occupational activities, in fact the Directive has quite little to say
substantively about causation or legal causation, presumably that being a matter for the
Member States’ legal systems. 51
The “framework” of the Environmental Liability Directive includes the following key
features:-
49
Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental
liability with regard to the prevention and remedying of environmental damage.
50
For a detailed consideration of the Directive, see “The New European Directive on Environmental Liability:
Substantive Content and Practical Implications”. McIntyre, O., Irish Planning and Environmental Law Journal
– Vol. 11, No. 3. Autumn 2004.
51
The Directive at Article 4(4) excludes from its ambit damages caused by “pollution of a diffuse character”
except where it is possible to establish a causal link between such damage and the activities of an individual
operator. Also at Article 9 it is specified that the Directive is “without prejudice to any provisions of national
Regulations concerning cost allocation in cases of multiple-party causation, especially concerning the
apportionment of liability between the producer and the user of a product”. Generally though, in line with the
framework nature of the Directive, it is not concerned with specific national rules, standards or principles of
causation.
22

It covers, and talks about liability for, not just the occurrence of environmental damage
but also the “imminent threat of damage”. 52

Following from that, the Directive covers both preventive action and remedial action.

The Directive does not give private parties a right of compensation as a consequence of
environmental damage or the threat of such damage.

While the Directive does not give the right of compensation to private parties, there are
provisions on “requests for action” whereby, in addition to Member States’ competent
authorities having the power to request preventive/remedial action from persons causing
damage or the threat of it, certain other parties such as those adversely affected by the
environmental damage or environmental NGO’s can make “requests for action” of the
competent authorities;

8.2
It will only apply to damage occurring after 30 April 2007
Environmental Liability Directive and Protected Areas
The Environmental Liability Directive connects with protected areas in a number of important
respects:
The first type of Environmental Damage that is defined for the purpose of the Directive
is “damage to Protected Species and Natural Habitats, which is any damage that has
significant adverse effects on reaching or maintaining the favourable conservation
status of such Habitats or Species”. Listing damage to Protected Species and Natural
Habitats ahead of other types of environmental damage, such as water or land damage
(although no particular priority is indicated by so doing) represents arguably, an
enhanced status for protected areas. One might have expected to see damage to water
and soil – key environmental media – listed first in the definition, in line with traditional
Community approaches to protection of the environment.
The early reference to
damage to Protected Species and Natural Habitats follows the stark reference in the first
52
Article 2(9) provides: “Imminent threat of damage means a sufficient likelihood that environmental damage
will occur in the near future”.
23
recital to the Environmental Liability Directive to the dramatic acceleration in the loss
of biodiversity throughout the Community in recent decades.

In addition to the increased prominence given to protected area damage (through the
definition of “Environmental Damage”), the Directive gives a degree of increased
protection to protected areas. This is evident from the dual liability approach the
Directive takes. The primary focus of the Directive is on the occupational activities that
are listed in Annex III to the Directive. The common factor here is that all of those
activities are inherently dangerous occupational activities for the environment and tend
to be subject to other EC licensing/control regimes such as IPPC licensing, waste
management licensing and permitting, etc. Only in the case of environmental damage
consisting of damage to Protected Species and Natural Habitats, however, does the
Directive cover non-Annex III occupational activities. So essentially any occupational
activity of any description is covered by the Directive’s regime of control insofar as it
causes damage to Protected Species and Natural Habitats. That extra element of control
in relation to Protected Species and natural habitat applies where the operator has been
at fault or negligent. 53

Having described damage to Protected Species and Natural Habitats as “any damage
that has significant adverse effects on the favourable conservation status of such
Habitats and Species” the Directive takes this a stage further, and, hopefully, beyond
any room for serious argument about whether in any particular case, “adverse effects”
exist or are significant. The Directive provides a mechanism to deal with this by stating
that the significance of effects on Protected Species or Natural Habitats is to be assessed
with reference to the baseline conditions, taking into account the criteria as set out in
Annex I. In turn, Annex I specifies a range of measurable data.

Ultimately, when environmental damage has occurred, conservation can still be served
efficiently through effective and correct choice of remedial measures. Indeed, that is
often the point at which enforcement cases begin to stall - when disputes arise on costs
and methodology. Existing Irish regulations contain little guidance on remediation
53
For the Annex III occupational activities, there is no similar mention of “fault or negligence” indicating, it
would appear, a type of strict liability, but even then a “compliance with authorisation” defence appears to exists
as does a “state of scientific and technical knowledge” defence.
24
measures or standards and, generally in this area tend to equip the Courts with general
powers to “make any order deemed necessary”.
An advantage provided by the
Environmental Liability Directive is that it sets out a common framework to be followed
in order to choose the most appropriate measures to ensure the remedying of
environmental damage. There are particularly detailed criteria and guidelines in the
case of remediation of damage to water or to Protected Species or Natural Habitats. 54

While the “request for action” provision and the watchdog role granted to
environmental NGO’s may not seem a significant development in Ireland given that we
do not have a particularly strong environmental NGO sector here, there are signs that
that is changing.
WF-421773-v1:ik
54
There are detailed provisions on “primary remediation” (what it involves and when required, etc.) and
similarly on “complementary remediation” and, similarly, in the case of “compensatory remediation for interim
losses” resulting from “damaged natural resources and/or services”.
25