Mitigation, Compensation and Conservation: Screening for Appropriate Assessment under the EU Habitats Directive

Increasingly, development is facilitated through the provision of mitigation and compensation measures. One reason for this is to get round ever more stringent conservation laws. In this article I consider this general issue through one particular lens: the role and scope of appropriate assessment under the EU Habitats Directive (92/43/EEC). Appropriate assessment is a key part of the Directive's regime for conserving Natura 2000 sites, being the threshold for a relatively stringent public interest test and ecological compensation requirement. One particular issue is how mitigation or compensation measures should be addressed through appropriate assessment. I consider this issue, looking in particular at the only reported case which deals with this: R (Hart District Council) v Secretary of State for Communities and Local Government and others. I suggest that Hart may be seen as wrongly decided at the time, and that more recent case law casts further doubt on its correctness. Drawing on other work, I suggest how decision-makers might answer the question raised in Hart differently and the scope to do this under the Habitats Directive.