Compensation and Mitigation: Tinkering with Natura 2000 Protection Law

Abstract

If a plan or project may adversely affect the integrity of a Natura 2000 site, Article 6(4) Habitats Directive must be applied. This provision imposes strict conditions for authorising a plan or project which may adversely affect the nature values of a Natura 2000 site. In this context the obligation to take compensation measures is the ultimum remedium. Initiators of a plan or project try to avoid the application of the strict conditions of Article 6(4) by mitigating the effects of their plan or project so that the conclusion of the appropriate assessment on the basis of Article 6(3) Habitats Directive will be positive. The trick is to find solutions which allow the negative effects of the plan or project, on the one hand, and the positive effects of the nature conservation measures, on the other, to be balanced. Apart from the classic mitigation measures, several creative solutions are applied in the Netherlands in practice and, so far, are also authorised in the jurisprudence of the Council of State. If the nature conservation measures are inextricably linked to the plan or project, these solutions are variations on the theme of mitigating measures, such as nature inclusive design and netting. If the measures are taken independently of the plan or project, they must be classified as autonomous developments. This article discusses the legal aspects of the different solutions.