Investment in Natura areas 2000 compared to making investments in other areas covered by other forms of nature conservation, it may prove to be a time-consuming process and therefore also cost-effective.
In practice, the authority competent to issue, for example, a construction permit, completely unwarrantedly initiates a procedure to verify whether an investment will affect the Natura area 2000. For investors who, for various reasons, depend on the timing of the investment, such a turnaround may prove to be very unfavourable.
Investments that may have harmful effects on nature have certain constraints. Such investments require, inter alia, prior environmental assessment
Nature 2000 - concept
According to Article 5(2b)) Act dated 16 April 2004 on nature conservation (Journal of Laws, item 880, i.e. dated 20 July 2018 Journal of Laws of 2018, item 1614, hereinafter as ‘the Act’), Natura area 2000 it is an area of special protection of birds, a special habitat conservation area or an area of Community importance, established to protect the populations of wild birds or natural habitats or species of Community interest. In addition, according to Article 6 Natural Area Act 2000 is a form of conservation.
Grounds for Nature 2000 are two EU directives - Birds Directive, adopted in 1979 (Directive 2009/147 to 30 November 2009 on the conservation of wild birds) and subsequently replaced by the Directive of 2009 and the Habitats Directive (Habitat) from 1992 (Directive 92/43 dated 21 May 1992 on the conservation of natural habitats and of wild fauna and flora).
The concept of negative action for conservation purposes of the Natura area 2000
Investments that may have harmful effects on nature have certain constraints. Such investments require, inter alia, prior environmental assessment.
Activities which may significantly negatively affect nature conservation objectives are strictly prohibited 2000 (Article 33 Act) i.e. may include:
- • worsen the natural habitats or habitats of plant and animal species for which conservation has been designated Natura area 2000 or;
- • impact negatively on species for which conservation has been designated Natura area 2000, or;
- • worsen the integrity of the Natura area 2000 or its links to other areas.
A catalogue of activities that may significantly affect the Natura area 2000, It's open. For this reason, it is for the body to indicate precisely what it was doing, assessing that the action could negatively affect the Natura area. 2000.
(Provincial Administrative Court in Warsaw in judgment 3 April 2014, IV SA/Wa 165/14 stated that ‘The provisions Article 33(1) The Act speaks of a negative impact on the conservation of nature 2000, it does not talk about any impact, but only about significant negative environmental impacts).
This means that not all negative impacts will prevent the implementation of the project, but only those whose scale, degree and nature of the impact will be considered significant.
According to Article 34(1) If there is a need for overriding public interest, including social or economic requirements, and in the absence of alternative solutions, the local regional director of environmental protection and, in maritime areas, the director of the competent maritime office, may permit the implementation of a plan or actions which may significantly adversely affect the conservation objectives of the Natura area. 2000,ensuring the implementation of the natural compensation necessary to ensure the coherence and proper functioning of the Natura network 2000.W where significant negative impacts concern habitats and priority species, the authorisation in question Under section 1, may be granted for the sole purpose of:
- • the protection of human health and life;
- • ensuring universal security;
- • beneficial consequences of primary importance to the natural environment;
- • resulting from the necessary requirements of overriding public interest, after obtaining the opinion of the European Commission.
In Natura areas 2000, As a general rule, activities related to the maintenance of flood safety equipment and facilities and economic, agricultural, forestry, hunting and fishing activities, as well as amateur fish catch, shall not be restricted unless they have a significant negative impact on the conservation objectives of the Natura area.
2000. Nevertheless, the activities referred to above in Natura areas 2000 which are part of national parks and nature reserves, is only allowed in so far as this does not prejudice the prohibitions in force in those areas.
Environmental impact assessment
Environmental impact assessment, including Natura 2000, Regulations the Act 3 October 2008 making environmental information available and its protection, public participation in environmental protection and environmental impact assessments. (Journal of Laws of 2008, item 1227, hereinafter ‘Information Act’).
The environmental impact assessment of the project is required for (Article 59 Information Act:
- 1) planned projects that can always have a significant impact on the environment;
- 2) a planned project likely to have a significant environmental impact if the obligation to carry out an environmental impact assessment has been established on the basis of Article 63(1). Information Act.
Environmental impact assessment proceedings for projects which can always have significant impacts on the environment (the so-called first group) and potentially have significant impacts on the environment (the so-called second group) shall be carried out within the framework of decisions on environmental conditions.[1].
Whereas the implementation of a planned project other than those specified above requires a different assessment, i.e. Assessment of the nature of the project 2000, if 2 :
- This project can have a significant impact on Natura 2000, and is not directly related to the protection of the area or does not result from that protection;
- obligation to assess the impact of the project on the Natura area 2000 has been established on the basis of Article 97(1). Laws (as a consequence of the Regional Environment Director's determination by provision, the obligation to assess the impact of the project on Natura 2000).
Assessment of impacts on the Natura area 2000, where it is not carried out for a project likely to have significant environmental impacts, it is not bound by environmental impact assessment regulations. It is a separate procedure closely linked to the specific nature of this form of conservation.
Assessment of the impact of the project on Natura 2000 shall be carried out in the framework of the procedure for issuing a decision authorising (or refusing to grant a permit) the undertaking concerned (e.g. a construction permit) (Article 96 Information Act).
Environmental impact assessment, stages of the procedure:
- where the Authority considers that the project may potentially have a significant impact on Natura 2000, the body in the form of a provision requires the applicant to submit to the local environmental director the documentation indicated under Article 96(3) Information Act;
- the regional environmental director following the procedure, depending on the findings made, if it is considered that an impact assessment on the Natura area is necessary in the case in question 2000 requires such an assessment (97 section 1 Information Act). If it is found that such a need does not exist, it shall, by way of a provision, state that there is no need to assess the impact of the project on the Natura area 2000 (97 section 5 Information Act) – in such a case, the competent authority to issue, for example, a construction permit may issue the decision in question;
- the assessment of the environmental impact of the project is a procedure carried out by the authority issuing the decision on environmental conditions or the Regional Director for Environmental Protection;
- if the environmental impact assessment of the project shows that the project may have a significant negative impact on the Natura area 2000, the competent authority for the decision on environmental conditions refuses to approve the implementation of the project unless the conditions referred to are met. Under Article 34 Act dated 16 April 2004 Nature conservation – indicated above. The Regional Environment Director shall issue a decision to agree on the conditions for the implementation of the project for the impact on the Natura area. 2000, if from the impact assessment of the project on the Natura area 2000 it appears that the project will not have a significant negative impact on this area. Upon receipt of the decision, the competent authority for issuing the construction permit may issue the decision in question.
Due to the specific nature of nature conservation issues 2000, as a specific form of nature conservation, the legislator has not strictly defined the restrictions that must be applied in these areas, unlike other forms of nature conservation[3].
Therefore, in the planning phase of the project, steps need to be taken to determine the extent to which the environment is used and whether the investment will not be located in protected Natura areas.
2000, even location of investments outside the Natura area 2000 it will not provide for an exemption from the need to draw up an environmental impact assessment where there is a question of the integrity of the area or of the impact of an undertaking which will have a significant impact on the scope of the protection of that area.
1 Act on making environmental information available and its protection, public participation in environmental protection and environmental impact assessments. Commentary, Legalis 2017
[2] Ibid;
[3] Ibid.
Author: Hanna Żołnierkiewicz
Lawyer in the Legal Department. From 2017 associated with Russell Bedford Dmowski & Partners Law Firm Sp.k. He has experience in legal services to entrepreneurs in terms of merger, division and transformation of companies, bankruptcy, restructuring and capital market law. He runs the day-to-day handling of commercial law companies, including drafting corporate documentation, both in Polish and English. He also represents clients before the general courts in economic and civil law cases.