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Dealing with delays: Part 2

The abstract is provided once again as refresher; part 2 continues with a highlight of three case histories, a listing of guidance on the implementation aspects of the Habitats Directive and on the good practices for ports.

Abstract

The European Sea Ports Organisation (ESPO) and the European Dredging Association (EuDA) have each assessed within their respective organisations the potential and perceived impact of EU habitats legislation on the port related infrastructure and port operations. Both analyses have been compared, and many findings appeared to be similar. In the paper the main issues will be reviewed.

The problems are caused by a combination of factors: the designation process of the Natura 2000 sites, the decision making procedure under art 6 of the Habitats Directive (HD), the terminology in the Directives and the multiple approaches to transposition in EU member states.

Port development and dredging projects have suffered from the serious delays in the approval process; if no corrective action is taken, this situation is likely to cause significant economic impact. The analyses here have considered existing case law in which ports, estuaries or coastal zones were implied. The different cases have been categorised in function of the outcome. The paper will briefly discuss three typical cases.

On the basis of these findings a list of concerns has been established and good practice recommendations have been formulated for ports concerned by the issue, i.e. ports situated at or near Natura 2000 sites. It is well known that many of the concerns affect also the dredging and marine contracting sector. The paper presents the most robust guidance currently available for the sector.

Three case histories

The outline of the decision-making procedure with the examples amply illustrates that the procedure does not excel in clarity in the way it was written into the European Directives. The uncertainty in applying these Directives is amplified by the next steps in the process: the interpretation by the Commission services, the transposition into national law and the interpretation by national courts as well as the interpretation by the ECJ. It is therefore not surprising that the application of the HD to ports projects has led to delays and disappointments. In this section three case histories are summarised to underline the point. The selection is based on three cases that demonstrate different stages in the decision-making process and illustrate the uncertainties and the resulting delays.

Appropriate assessment: Mainport Rotterdam

The planning for a further expansion of the Port of Rotterdam started in 1998 as a cooperative between the city, the port and the central government. This was necessary, as multiple objectives were defined: rearranging and restoring older sites within the existing port, improving the general environment conditions in and around Rotterdam and creating space for the port by winning land from sea.

The Project Mainport Rotterdam (PMR) focuses on both expansion and on improving the living climate in the entire area and it is subject to the statutory planning procedure which results in a decision by the national government. The planning was supported by a (preliminary) environmental impact assessment, in which the requirements of the HD were fully taken intoaccount. In addition there has been open communication with environmental groups and other stakeholders right from the beginning. The European Commission has been consulted informally to ensure full understanding on the aspects of mitigation and compensation. This resulted in a favourable opinion by the EC (2003) and a formal planning decision (‘PKB’) by the Dutch government. However, the validity of this PKB was challenged by a body representing the interests of fisheries on the grounds that it had not been sufficiently established that the effects on larvae transport to the Waddensea were not significant; consequently there might be an impact on fish stocks.

In terms of the HD the fisheries industry thus claimed that the impact assessment was not ‘appropriate’. The highest Dutch Administrative Court in its judgement agreed on formal grounds with the plaintiff that it had not been demonstrated that the effects in the Waddensea would be insignificant and annulled part of the PKB. This decision was taken on the basis of a strict judicial reading of the HD. The impact assessment had indeed not modelled in detail the effect of an extension of the Maasvlakte on the transport of larvae, rather because the effect was considered to be negligible. The Dutch Court thus ruled that the assessment had not been appropriate. Result: a further delay of two years in the realisation of the project. The main uncertainty in this case concerns the extent (in distance and time) of the required ‘appropriate’ assessment.

Mitigation measures: Vuosaari Port

The Vuosaari port development aims to replace the two cargo ports in the metropolitan area of Helsinki. Planning of this port started back in 1992, well before any nearby sites had been designated as SAC or SPA. The project is socio-economically very profitable and logistically well based. Construction has started in 2003, but the construction of mitigation measures started well before that. In fact a SAC situated near the future port site was proposed only in 1998 and is now part of the Natura 2000 network.

The port authorities have cooperated closely with the environmental authorities to review the impact of this designation. The solution has been to build tunnels under the Natura 2000 site for road and train connections to the port and to construct a 200m rail bridge across a nearby bay that is part of the network. The train goes into a tunnel immediately after the bridge and surfaces at the north border of the Natura 2000 area. These mitigation measures avoid any direct impact on the Natura sites and thus avoid the need for compensation.

The costs associated with this mitigation are very high. Nevertheless, the project has been challenged in 20 administrative procedures before Finnish courts, before the European Commission and even via a petition to the European Parliament.

F. Mink, Senior Advisor, European Dredging Association & R. Hoenders, Policy Advisor, European Sea Ports Organisation, Brussels, Belgium
Edition: Edition 38

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