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In Gladman v SSHCLG [2019] EWHC 2001 (Admin), handed down on 24 July 2019, Dove J held that the question of whether or not mitigation measures can be taken into account at the screening stage of applying Article 6(3) of the Habitats Directive is acte clair.
Gladman had contended that a reference should be made to the CJEU on this question given that (a) the decision of the CJEU in People Over Wind and Sweetman v Coillte Teoranta [C-323/17] (which held that mitigation measures could not be taken into account in screening) was wrongly decided, and (b) based on contrary domestic case law in the UK (e.g. R (Hart DC v SSCLG [2008] EWHC 1204 (Admin), the issue was not acte clair (i.e. insufficiently clear).
Dove J held that People Over Wind was correctly decided and was consistent with a subsequent judgment in Grace v An Bord Pleanala (case C-164/17), and that the issue was acte clair. The earlier domestic authorities could therefore no longer stand as good law. Although they do not feature in Dove J’s judgment, the decision in People Over Wind is also consistent with more recent decisions from the CJEU in Cases C-293/17 & C-294/17 Coöperatie Mobilisation, and Holohan v An Bord Pleanala (C-461/17).
Dove J’s judgment also rejected a submission that paragraph 177 of the July 2018 version of the NPPF – which dis-applied the presumption in favour of sustainable development where an appropriate assessment was required under Habitats law – meant what it said, notwithstanding the effect of this policy following People Over Wind. The policy had been published at a time when the Government was fully aware of the CJEU’s decision, and the subsequent Technical Consultation to change paragraph 177 in the light of People Over Wind did not affect how paragraph 177 should be applied until the proposed amendment was actually implemented.
The judgment is available here.
