// DEVELOPMENTS IN RELATION TO PROTECTED AREAS
This paper written in 2005 gives a snapshot of the different protected area legal basis and controls in Ireland, and an update on some notable legal developments.
It covers Special Protection Areas ("SPA") and Special Areas of Conservation ("SAC"), and European Court of Justice ("ECJ") decisions that cover the interpretation of key provisions of Birds Directive and Habitats Directive .
A brief look is given at some of the more recent European cases and a few Irish contentions that, together, illustrate how protected area controls are operating. The implications of the recently passed Directive on Environmental Liability are also examined.
DEVELOPMENTS IN RELATION TO PROTECTED AREAS
Conor Linehan, Environmental Law Unit,
William Fry, Solicitors, Dublin
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. 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. A reasonable explanation of the 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?
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.
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 Liability 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 strategic. 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 legislation 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 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 AREAS AND SPECIAL AREAS OF CONSERVATION
- 4.1 Special Protection Areas - Legal Basis
The ultimate legal basis for Special Protection Areas ("SPAs") is the Birds Directive. 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 conservation of all species of birds". While the Birds Directive lays down a range of protective measures for the protection, management of all wild birds 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  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 1985 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 that implement the Habitats Directive. 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.
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). 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 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" insofar as such matters " could be significant" , 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). 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 re-enforcement 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 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 interests 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. Its overall aim, as part of the contribution to sustainable development, is to ensure restoration or 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.
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;
- 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  or priority species; 
- 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.
- 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. 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.
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. It is important to 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.
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. 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.
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".
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).
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 Sheerness. 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 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)
Here the ECJ declared that despite other conservation measures taken by the French authorities for the protection of bird life in the Basses Corbieres 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.
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. 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)
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 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 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)
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)
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.
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.
6.5 Commission v Austria (2004) 
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)
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 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  (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 
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 Bord Pleanála.  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  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 
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 
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 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 
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.
•8. THE ENVIRONMENTAL LIABILITY DIRECTIVE AND PROTECTED AREAS
8.1 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.  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.  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. 
The "framework" of the Environmental Liability Directive includes the following key features:-
- It covers, and talks about liability for, not just the occurrence of environmental damage but also the "imminent threat of damage". 
- 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;
- It will only apply to damage occurring after 30 April 2007
8.2 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 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. 
- 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 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. 
- 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.
http://www.ucc.ie/law/events/environ05papers/linehan.doc [accessed 29 November 2007)
 Council Directive 92/43/EEC of 21 May 1992 on the Conservation of Natural Habitats and of Wild Fauna and Flora.
 Council Directive 79/409/EEC of 2 April 1979 on the Conservation of Wild Birds.
 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.
 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 Fores