Appendix 1: Opinion on the requirement to produce a Natura assessment for Maritime Spatial Plans

Introduction

The Regional Council of Southwest Finland has requested an expert opinion on whether a maritime spatial plan referred to in section 67b of the Land Use and Building Act (132/1999) is a project or plan on which a Natura 2000 assessment referred to in section 65, subsection 1 of the Nature Conservation Act (1096/1996) should be produced. 

The Maritime Spatial Plan covers Finland’s territorial waters and the exclusive economic zone in full, also comprising numerous Natura 2000 sites. The Maritime Spatial Plan includes notations concerning existing activities and potential for new ones which, if they went ahead, would probably have an impact on the ecological values because of which the sites were included in the Natura 2000 network. 

The key legal questions in this matter are, first of all, whether a marine spatial plan is a project or plan referred to in section 65, subsection 1 of the Nature Conservation Act, and secondly, if it is likely to have an adverse effect on the ecological values because of which the sites within the plan’s sphere of influence were included in the Natura 2000 network.

Summary of conclusions

On the grounds described below, I find that there is no need to produce an assessment referred to in section 65, subsection 1 of the Nature Conservation Act in connection with the preparation and approval process of the Marine Spatial Plan.

Such assessments only need to be prepared in connection with the later planning stages of projects and plans that are likely to have significant adverse effects on the ecological values because of which the sites were included in the Natura 2000 network, including planning and permit procedures.

Obligation to conduct Natura assessments under the European law

The following provision is laid down in section 65, subsection 1 of the Nature Conservation Act: 

“If a project or plan, either individually or in combination with other projects and plans, is likely to have significant adverse effect on the ecological value of a site included in, or proposed by the Government for inclusion in, the Natura 2000 network, and the site has been included in, or is intended for inclusion in, the Natura 2000 network for the purpose of protecting this ecological value, the planner or implementer of the project is required to conduct an appropriate assessment of its impact. The same shall correspondingly apply to any project or plan outside the site which is liable to have a significantly harmful impact on the site.”

The obligation to produce an assessment included in the national legislation is based on Article 6(3) of the Habitats Directive (92/43/EEC), the first sentence of which states: 

“[a]ny plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives.”

National legislation uses the terms ‘project’ and ‘plan’ which are identical to the terms used in the Habitats Directive. The definition of a project is supported by the definition included in the EIA Directive (2011/92/EU). Under Article 1(2) of the EIA Directive, a ‘project’ means “the execution of construction works or of other installations or schemes, – other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources”.[1]  Case-law of the Court of Justice of the European Union is available on the types of projects which are subject to the assessment obligation, but without further discussion, it is clear that the Maritime Spatial Plan could be closer to a plan referred to in the legislation than to a project in its nature.

With regard to the definition of plans, the Commission’s interpretation guidelines refer to Article 2(a) of the SEA Directive (2001/42/EC):

“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;”

In the case-law of the European Court of Justice, given the objective of the SEA Directive, which consists in providing for a high level of protection of the environment, the provisions which delimit the directive’s scope, in particular those setting out the definitions of the measures envisaged by the directive, must be interpreted broadly.[2]

The Commission stresses that land use or spatial plans are of obvious relevance under the Habitats Directive even if, rather than direct legal effects, they only have indirect effects if they form the basis for more detailed plans or serve as a framework for development consents.[3] 

The European Court of Justice has also stated that although land-use plans do not always authorise developments and planning permission must be obtained for development projects in the normal manner, they have great influence on development decisions. Therefore the Court finds that such land-use plans must also be subject to appropriate assessment of their implications for the site concerned.[4]  It should be noted in this context, however, that the case in question was about land use plans in the United Kingdom which, in terms of their legal effects, are comparable to zoning plans in the sense that applications for planning permission must be determined in the light of the relevant land use plans.[5]

However, a distinction needs to be made between these plans with indirect impacts and ‘plans’ which are in the nature of policy statements, i.e. policy documents which show the general political will or intention of a ministry or lower authority. The Commission finds that it does not seem appropriate to treat these as ‘plans’ for the purpose of Article 6(3), particularly if any initiatives deriving from such policy statements must pass through the intermediary of a land-use or sectoral plan. The link between the content of such an initiative and likely significant effects on a Natura 2000 site needs to be clear and direct in order for the plan to constitute a plan referred to in Article 6(3) of the Habitats Directive.[6]

The European Court of Justice has ruled that merely alleging the existence of plans or projects is not sufficient grounds for regarding them as documents referred to in Article 6(3) of the Habitats Directive, and sufficiently specific evidence must also be provided to show that they are more than at the stage of preliminary administrative reflection and carry a degree of precision in the planning in question which calls for an environmental assessment of their effects.[7]  Based on the ruling in case Waddenzee, Kallio regards as a precondition for an assessment procedure referred to in Article 6(3) of the Habitats Directive that the project or plan should be associated with a measure that could cause adverse effects on the Natura 2000 network.[8]

Absence of legal effects associated with the Maritime Spatial Plan

While Chapter 8a of the Land Use and Building Act contains provisions on the purpose, content and drafting procedure of a maritime spatial plan, there are no provisions on its legal effects. The preliminary work on this statute states that maritime spatial plans do not have legal effects or other binding effects on permit or other procedures under other legislation.[9]

Regional land use plans, for example, have legal effects particularly associated with the hierarchy of plans, or the steering effect of the regional land use plan when preparing lower-level plans. When planning measures concerning land, authorities shall seek to promote implementation of the regional plan and ensure that taking the measures does not hinder the plan’s implementation (section 32, subsection 2 of the Land Use and Building Act). Designations of areas in the regional land use plan may also result in building restrictions (section 33 of the Land Use and Building Act) or be grounds for a permit to expropriate an area (section 99, subsection 2), and a notation in the regional land use plan is a precondition for, among other things, locating large retail units outside urban centres (section 71c).

Kulla points out that the Land Use and Building Act does not impose on the authorities an obligation to take the Maritime Spatial Plan into account when planning measures concerning land use and making decisions on their implementation as laid down in the provisions on the regional land use plan. National land use objectives can also be considered to have a stronger guiding effect as they seek a balance between the provisions on the objectives of the legislation and requirements concerning plan content, whereas the Maritime Spatial Plan operates in the space between the provisions on objectives and sectoral regulation resulting from other legislation or administrative measures. As Kulla characterises the situation, whereas there is no legal obligation to apply the contents of the Maritime Spatial Plan, its application is likely in political terms, as it can mainly be considered auxiliary material to other administrative activities.[10]

On the requirement to draw up a Natura assessment under the national law

The preliminary work on the Nature Conservation Act cites as examples of projects referred to in section 65, subsection 1 construction projects of different buildings, roads, railways, mining projects, water system interventions and drainage. According to the preliminary work, plans would mean both plans referred to in the Land Use and Building Act and other plans, such as road plans and plans related to forestry.[11]

In terms of plans, the examples of programmes referred to in section 65, subsection 1 of the Nature Conservation Act cited in the preliminary work for the Act are all plans that have legal effects to some extent, as we established above in the context of regional land use plans, among other things.

The policy adopted by the Supreme Administrative Court on regional plans is that decisions on the requirement for an assessment referred to in section 65, subsection 1 of the Nature Conservation Act should be made on a case-by-case basis.

In the decision KHO 9 December 2009 case 3516, the Ministry of the Environment had declined to confirm the regional land use plan for Kymenlaakso with regard to a notation concerning the need for waterborne transport connections, as the preparatory documents of the plan contained no account on the basis of which it could have been decided if an assessment procedure referred to in section 65, subsection 1 of the Nature Conservation Act was required for the plan, and if the plan meets the content-related requirements laid down in section 28, subsection 3 of the Land Use and Building Act, especially for the part of protecting landscapes and cultural heritage.

According to Guide No 10, “Regional plan notations and regulations” published by the Ministry of the Environment, a notation concerning a waterborne transport connection need was used to refer to cases where the need for a connection had been established but where such uncertainties were associated with its location and implementation that showing an indicative or alternative alignment is not possible.

The Supreme Administrative Court found that, as such details as the more precise location of the connection need is not determined until the possible further planning process is initiated, only at that stage will it be possible to examine the requirement for an assessment referred to in section 65 of the Nature Conservation Act and, on the basis of the information available at that time, to assess whether the plan meets the content-related requirements for the regional land use plan laid down in section 28, subsection 3 of the Land Use and Building Act, in particular as regards protecting landscape and cultural heritage. Consequently, the Ministry of the Environment’s decision was revoked.

As an opposite example compared to the ruling mentioned above can be regarded the Supreme Administrative Court decision KHO 20 March 2008 case 591. 

Due to the location of the road and the proximity of a Natura 2000 site, the options for improving main road 12 in the regional land use plan were exceptionally limited. Although the plan had examined the options for improving the road and commented on the impacts of these options, the preparation documents of the plan did not include an assessment of the regional plan’s impacts on the ecological values because of which the site was included in the Natura 2000 network as stated in section 65, subsection 1 of the Nature Conservation Act. This is why the decision to approve the regional land use plan was unlawful for the part of the issue examined in the case.

The obligation to produce an assessment laid down in section 65, subsection 1 of the Nature Conservation Act is applicable if adverse effects on the ecological values because of which the site was included in the Natura 2000 network are likely and significant. Significance refers to the strength of the impacts, whereas likelihood refers to a causal relationship between the impact and the plan, and in part the relationship between the impact and significant adverse effect.[12]

The obligation to produce an assessment may be based either on the specific impacts of the project or plan, or on its accumulated combined effects together with other projects or plans. As the Supreme Administrative Court decisions discussed above show, the existence of the obligation to produce an assessment referred to in section 65, subsection 1 of the Nature Conservation Act related to a regional land use plan is resolved contextually on the basis of the accuracy of the plan and the strength of the notation’s guiding effect, which can be considered to indicate the likelihood of impacts being caused. Although it is not necessary for the plan to have progressed to the permit phase or approval stage it must, however, be detailed enough to allow conclusions to be made on its impacts, and the realisation of these impacts must be highly likely to trigger the assessment obligation under section 65, subsection 1 of the Nature Conservation Act..[13]

Legal assessment

The Maritime Spatial Plan currently under consideration is a very small-scale and general plan for areas in Finland’s territorial waters and exclusive economic zone describing potential locations for various activities in the marine areas. The planning principles concerning the planning notations are described at a very general level in the plan. The Maritime Spatial Plan contains notations which do not aim for implementing the identified potential on the scale suggested in the plan.

The Maritime Spatial Plan has no legal effects whatsoever on permit consideration, land use planning or other administrative activities. Due to its lack of legal effect and the general and strategic nature of the Maritime Spatial Plan, it is not possible to carry out an assessment referred to in section 65, subsection 1 of the Nature Conservation Act on it.

In order for the potential described in the plan to be realised, multi-stage and more detailed decision-making regulated under different statutes will be required, including general zoning and permit procedures. When more detail has been added to these plans, carrying out an assessment referred to in section 65, subsection 1 of the Nature Conservation Act will be possible.

On this basis, it can be considered that an assessment referred to in section 65, subsection 1 of the Nature Conservation Act need not be carried out in connection with the preparation and approval of the Maritime Spatial Plan; these assessments should only be prepared in connection with projects and plans that are likely to have a significant adverse effect on the ecological values because of which the sites were included in the Natura 2000 network.

 

Jussi Airaksinen, MAS

Liability clause

Our opinion is based on the information and instructions received in connection with performing the assignment in question, taking into account the circumstances prevailing during its performance. We assume that all information provided to us is accurate and free of errors, and that the customer has verified the accuracy of the information provided.

The review of the provided material and documents was carried out in the manner we considered appropriate in the light of the scope and purpose of the assignment agreed upon in the tender.

 

We decline any responsibility for updating the document regarding later events (date in the document header).

Sources

[1] A reference to the project definition in the EIA Directive when applying Article 6 (3) of the Habitats Directive can also be found in the European Commission’s interpretation guidelines. Managing Natura 2000 sites. Commission notice C(2018) 7621 final, Brussels 21.11.2018, p. 36.

[2] C-567/10, paragraph 37.

[3] European Commission 2018, s. 37.

[4] C-6/04, paragraph 52.

[5] Ibid., paragraph 55.

[6] European Commission 2018, s. 38.

[7] C-179/06, paragraph 41.

[8] Kallio, Pasi: Terve, ja kiitos simpukoista – luontodirektiivin 6 artiklan tulkintaa EY-tuomioistuimenratkaisun C-127/02 valossa. Ympäristöjuridiikka 1/2006, s. 14.

[9] HE 62/2016 pp, s. 8-9.

[10] Kulla, Inna: Merialuesuunnitelman välilliset vaikutukset alueiden käytön suunnitteluun. Master’s thesis, University of Turku 2018, pp. 58–59.

[11] HE 79/1996 pp, s. 47.

[12] Kokko, Kai: Ympäristöarviointi – SOVA oikeudellisesta näkökulmasta. Edita 2007, p. 45.

[13] Also in Suvantola, Leila: Kuoleman katse – ympäristönkäytön luontovaikutusten selvittämisvelvollisuus. Lakimies 4/2006, pp. 563–564 including references.