Poland 28/06/2006 Assessment of plans DI Thomas Knoll Knoll Planung & Beratung Vienna, Austria
Assessment of plans Art.6 (3) of Habitats Directive This chapter is based on Article 6 Paragraph 3 of the Habitats Directive, which requires plans and projects to be subject to an Article 6 assessment. Terms plan and project are not defined Term project : reference can be made to Environmental Impact Assessment (EIA) Directive Term plan : reference can be made to Strategic Environmental Assessment (SEA) Directive Terms can be defined by analogy on the basis of these two related Directives Poland 28/06/2006 2
Basic requirements Source paragraph, article, annex etc, number Periodicity/ date Content EC guidance 2000 Managing NATURA 2000 sites. The provisions of Article 6 of the Habitats Directive 92/43/CEE EC guideline 2001 Assessment of Plans and Projects Significantly Affecting Natura 2000 sites. Methological guidance on the provisions of Article 6(3) and (4) of the Habitats Directive 92/43/EEC Strategic Environmental Assessment Directive Opinion of the Advocate General Opinion of the Advocate General European Court of Justice 2001/ 42/EC 2001-07-21 Directive on the assessment of the effects of certain plans and programmes on the environment C-256/98 1999-09-16 Assessment of Plans and Projects (Commission v France), Art.6 Habitats Directive C-127/02 2004-01-29 Assessment of the implications of certain plans or projects for the protected site (Commission v Netherlands), Art.6 (2) and (3) Habitats Directive C-127/02 2004-09-24 Assessment of implications of certain plans or projects for the protected site (Commission v Netherlands), Art.6 (2) and (3) Habitats Directive Poland 28/06/2006 3
Definition of projects and plans European Commission (2000): The term project should be given a broad interpretation to include both construction works and other interventions in the natural environment. The term plan also has a broad meaning including land-use plans and sectoral plans or programmes, but leaving out general policy statements. Council Directive 85/337/EEC: The term project means the execution of construction works or of other installations or schemes or other intervention in the natural surroundings and landscape including those involving the extraction of mineral resources, which indicates that a broader definition is also envisaged here. Thus plan can refer to the planning of and tendering for and/or award of fishery licences as well as to the preparation of a gravel extraction plan regulating the extraction of gravel in a certain region (European Commission, 2000, cf. subchapter 1.4). Poland 28/06/2006 4
Definition of projects and plans Directive 2001/42/EC: For the purposes of this Directive, plans and programmes shall mean plans and programmes, including those co-financed by the European Community, as well as any modifications to them: which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and which are required by legislative, regulatory or administrative provisions. This means that the term plan under the Habitats Directive refers to legally binding, sovereign plans of a public authority. It does not refer, for example, to private plans or concepts drawn up voluntarily by public authorities. Poland 28/06/2006 5
Definition of projects and plans Project Specific project is known Land consumption is known and can be localised Possible emissions are known Other implications are known Project applicant is known Might be subject to certain conditions Implementation deadline Plan Specific project is not known Land consumption is not known or cannot be localised Emissions are not known Other possible implications can only be roughly estimated Project applicant is not known Not subject to project-specific conditions; conditions can only be related to the particular site in accordance with the respective land-use designation Date of the land consumption is not known Poland 28/06/2006 6
Planning procedures Natura 2000 Is there a general procedure to examine whether a plan must be subject to an assessment required under Article 6 of the Habitats Directive? No Differences in planning culture of EU Member States prevent general statement on the use of plans Helpful questions: Is it a plan which a public authority is obliged to prepare? Is this plan relevant to the SEA Directive? Yes Plan is also relevant to the Habitats Directive Poland 28/06/2006 7
Planning procedures Natura 2000 Which legally binding effects are arising from this plan? Only effects arising directly from the plan will be assessed, Effects in relation to a project will assessed at project level How detailed is the plan and/or is the plan usually followed by a project? Assessment of a plan does not replace assessment of a project, all anticipated effects of the plan or project have to be covered Poland 28/06/2006 8
Mitigation and comensatory measures How are migitation and compensatory measures handled, if the plan is not directed to an individual addressee? Standard addressees of plans: Citizens or subordinate authority Migitation measures: Orders and prohibitions or conditions with regard to the use of certain plots of land Direct migitation measures at project level Compensatory measures: Commission involved both in the planning and the project stages Poland 28/06/2006 9
Assessments - Habitats Directive and SEA Directive What is the relationship between assessments required under Article6 of the Habitats Directive and assessments under SEA Directive? Plans which have to be assessed under Habitats Directive also require a SEA (strategic environmental assessment) A negative assessment under Habitats Directive may result in a rejection of a plan affecting a protected site if there are no alternative solutions and exceptions SEA Directive only requires the results of an environmental assessment to be taken into account during the preparation and before the adoption of plans Article 6 assessment Narrow assessment scope (conservation objectives of the protected site) Obligation of result Strategic environmental assessment (SEA) Broad assessment scope (efffects on the environment) Obligation of procedure Poland 28/06/2006 10
SEA EIA Article 6 assessment What steps are to be taken if an assessment required under Article 6 of the Habitats Directive is required together with an environmental impact assessment (EIA) or strategic environmental assessment (SEA)? The assessments required by Article 6 should be clearly distinguishable and identified within an environmental statement or reported separately (EUROPEAN COMMISSION, 2001) Poland 28/06/2006 11
Assessment methodology for plans and projects TIP: Are there any differences in the assessment methodology for plans and projects? Yes, for example in the sphere of regional planning. Since, in contrast to a project, most aspects of a plan which may affect a site are not known, the best-case principle is applied: A plan (e.g. a zoning plan) is ecologically compatible if it enables a compatible consumption in the context of a specific project An ecologically compatible plan gives rise to projects with or without significant effects Poland 28/06/2006 12
Best-case principle The best-case principle is also applied because A worst-case assessment would result in the exclusion of a large number of subsequent projects A real-case assessment would require all details of the specific project being known already at plan level Poland 28/06/2006 13
Assessment of a plan: 1. Screening Zoning plan: building land residental zone Poland 28/06/2006 14
Assessment of a plan: 1. Screening Identification of relevant protected habitats and species Area of habitat type 9110 Impact by overlap Poland 28/06/2006 15
Assessment of a plan: 1. Screening Description of relevant protected habitats and species Natura 2000 Data Form http://www.noel.gv.at/service/ru/ru5/natura 2000/Wienerwald.pdf Poland 28/06/2006 16
Assessment of a plan: 1. Screening Assessing the significance of any effects on the Natura 2000 Site Potential significant impact: loss of habitat area Poland 28/06/2006 17
Assessment of a plan: 2. Appropriate assessment It is objectively concluded that adverse impacts on the integrity of the site remain Poland 28/06/2006 18
Assessment of a plan: 3. Alternatives Poland 28/06/2006 19
Assessment of a plan: 3. Alternatives ( 2 ROG 1976) Assessment of Alternatives equivalent planning aims, no significant impact Alternatives exist only alternative solution permissible No Alternatives exist Best-Case Assessment compatible consumption has to be possible not possible = reason for denial possible = permission Poland 28/06/2006 20
Assessment of a plan: 3. Alternatives Alternative exists: other location Poland 28/06/2006 21
Assessment of a plan: 3. Alternatives Plan is ecologically compatible, because it enables a compatible consumption in the context of a specific project No alternatives exist: best-case principle Example plan: (hole area) Example project: (only building) Protected Habitat Protected Habitat Building Boundary of the plan Poland 28/06/2006 22
Assessment of a plan: 4. Assessment where no alternatives exist and where adverse effects remain Poland 28/06/2006 23