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Advocate General Sharpston has delivered her opinion which concerns the interrelationship of Article 6(3) and Article 6(4) of the Habitats Directive (92/43/EEC) in cases where compensatory habitat is to be provided on-site as part of a proposed development.

The question arose on a reference from a Dutch court considering a challenge by environmental groups to the widening of a motorway which might have adverse effects on a Natura 2000 site covering the natural habitat type ‘molinia meadows’.  The road-widening scheme included a mitigation plan which proposed the creation of an additional area of this habitat type within the protected site.  The referring court asked whether, in these circumstances, there was an adverse effect on the integrity of the site within the meaning of Article 6(3) of the Directive (in which case, the development could only be permitted – if at all – under Article 6(4)).

The Advocate General proposes that this question should be answered in the affirmative:  thus, even where an equal or greater area of the protected habitat is to be created elsewhere within the same site, there is an adverse effect on site integrity so that the project may not be approved in the context of Article 6(3).  But, said the Advocate General, such a project may be approved under Article 6(4) provided its requirements are satisfied and provided further that the creation of the new habitat (i) is specifically linked to the project in question, and (ii) would not otherwise have been implemented in the context of the ordinary management of the site as required by Article 6(1) or (2).

The Advocate General also gives guidance on the circumstances in which a mitigation measure may be taken into account under Article 6(3):  see paragraphs 49 and (especially) 50-51 of the Opinion.

Emma Dixon (instructed by the EU litigation team, Treasury Solicitor’s Department) appeared for the United Kingdom government.

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