The aim of the AA process is essentially to answer two basic questions as set out in Legal Notice 311 of 2006. These are:
Whether the proposal is directly connected with or necessary for the management of the SAC/SPA or a habitat or species for which such SAC/SPA has been designated; and
Whether it will likely have a significant impact thereon, either individually or in combination with other plans or projects.
Proposals that are not directly connected with or necessary for the management of the SAC/SPA or a protected habitat / species are assessed in order to identify whether they will have a negative significant impact on a protected site / habitat / species. The information obtained from this assessment allows an informed decision to be taken. If the impact is not considered significant, then the proposal can proceed, if there is a likely or unclear significance but this can be rendered insignificant through the application of mitigation measures then the proposal can proceed; If the mitigation measures are insufficient such that residual impacts would still remain, then the proposal should be refused.
In practice, there are instances where the questions above can be answered directly, others where structured sub-questions are necessary for more detailed probing, while in some cases more detailed studies may be required. When proposals are simple, a ‘basic assessment’ is enough to answer the above two questions. In most cases, this very basic level of assessment is enough for a conclusive position, typically on both extremes of the significance spectrum – e.g. proposals which are not expected to have significant impacts; proposals that are obvious non-starters since will clearly give rise to negative significant impacts. In such instances, the necessary measures which are identified during the basic assessment can be addressed directly (e.g. redesign of project; permit conditions; refusal; etc.).
For more complex cases a direct answer to these questions may not be easily achievable and more detailed investigation may be required. Such assessment also seeks to address the basic questions above, using a structured matrix or similar tools for more detailed probing of technical considerations. Such detailed assessment may sufficiently address the relevant issues and in such instances, the necessary measures which are identified during the assessment can be addressed directly. The underlying reasoning is the same as for that identified in the basic assessment.
If detailed assessment reveals uncertainty, further information may be requested. If following the submission of such information, unclear impacts still cannot be excluded, or if the assessment indicates that potentially negatively significant impacts are likely, then a full-blown technical study is required (on broadly similar lines to a targeted EIA). Once this need is established, the applicant is formally requested to carry out a study which addresses the above issues. Terms of Reference (TORs) are typically issued. These are not meant to dictate how the technical study is to be carried out but rather to act as guidance thus ensuring the study focuses on pending issues. Alternatively, the authority may commission such studies itself. In view of the remit of the AA process, the study is ecology-oriented. Other investigations however (e.g. hydrology) may need to necessary to feed into the ecological assessment. Normally, the applicant is required to engage the relevant expertise and the resulting report is then reviewed by the Environment Protection Directorate for an informed technical opinion.
Upon assessing the submission (irrespectively of the degree/’level’ of AA detail required to arrive at a conclusion), MEPA must decide whether the proposal does, or does not, have a significant effect on the integrity of the Natura 2000 site, protected habitats and species. If it is decided that it does not, then no further action on the AA front may be required albeit essential mitigation measures may still need to be included as part of the development permit conditions. If the AA identifies impacts that cannot be effectively mitigated or avoided, or major uncertainties, further steps arising from Article 6(4) of the Habitats Directive have to be followed, if the proposal is to be considered further. These are outlined below:Upon assessing the submission (irrespectively of the degree/’level’ of AA detail required to arrive at a conclusion), MEPA must decide whether the proposal does, or does not, have a significant effect on the integrity of the Natura 2000 site, protected habitats and species. If it is decided that it does not, then no further action on the AA front may be required albeit essential mitigation measures may still need to be included as part of the development permit conditions. If the AA identifies impacts that cannot be effectively mitigated or avoided, or major uncertainties, further steps arising from Article 6(4) of the Habitats Directive have to be followed, if the proposal is to be considered further. These are outlined below:
The first step in the process is to examine the possibility of resorting to alternative solutions which respect the integrity of the site in question. These could involve alternative locations, different scale or design of development, or alternative processes/technologies, including the ‘zero-option’ (i.e. ‘do-nothing scenario’).
In the absence of alternative solutions, or in the presence of ‘solutions’ having other negative environmental effects on the site concerned, the second step would be to consider "imperative reasons of overriding public interest, including those of a social or economic nature", if any are relevant to the case under investigation.
If no realistic alternatives exist, then one must identify whether the proposal is required for Imperative Reasons of Overriding Public Interest (IROPI). This extreme situation will only be allowed if the proposal in question is considered to be indispensable:
Within the framework of actions or policies aiming to protect fundamental values for citizens’ lives (health, safety, environment);
Within the framework of fundamental policies for the State and society;
Within the framework of carrying out activities of an economic or social nature, fulfilling specific obligations of public service."
If a proposal does not fall within any of these categories, then a refusal is mandatory. The process is more complex in the case of priority species or priority habitat types, i.e species or habitats that are legally protected. In such cases, the only considerations which may be raised are those relating to human health, public safety, or beneficial consequences of primary importance for the environment. Moreover, an independent appraisal by the European Commission is necessary in such cases.
If MEPA deems it appropriate to proceed further with a proposal that will have a negative significant impact in view of imperative reasons of overriding public interest as described above, compensation measures to make up for the negative effects on the species or habitat concerned are required.
The term ‘compensation’ does not refer to financial payment but rather to protective measures that would offset any unavoidable impacts of a development that is considered necessary/inevitable after having exhausted all the earlier steps. Compensatory measures may include, amongst others, the protection of an equivalent area that was previously not legally protected in view of the fact that such an area would contain a habitat or species identical to that being negatively affected by the proposed development. In some instances, both mitigation and compensation measures may be required. This is over and above any already-existing legal obligations that Malta already has, i.e. these cannot in themselves be considered a compensatory or mitigation measure. For example, setting up of a management plan cannot be considered as a compensatory measure. For further detail, one should refer to the guidelines issued by the Commission on compensatory measures. It should be noted that the Commission is to be informed of the measures adopted.
The use of IROPI and compensation must be considered as a ‘last resort’, when the mitigation measures and other safeguards provided for by the Directive are ineffectual or insufficient and the decision has been taken to consider, nevertheless, a project/plan having a negative effect on the Natura 2000 site.
The AA is not a substitute for other environmental assessments or permitting mechanisms (e.g. development consent, EIA, operational permitting, etc.), nor vice-versa. If the development qualifies for both AA and (say) EIA, then both need to be carried out and submitted as free-standing documents (whilst striving to avoid any unproductive duplication of studies).
Criteria for AA relevance
As a rule of thumb, the following criteria are generally adopted to decide which proposals should undergo the AA procedure as outlined above:
Proposals located within SAC, SPA, or both;
Proposals supporting species/habitats listed in the Directive/LN; and
Proposals that are outside SACs/SPAs, but are close to them or within their reasonable area of influence (e.g. further upstream in the immediate valley catchment) such that they may plausibly have a significant impact thereon.
How AA fits into the current development system
Proposed projects generally require a development permit. Where relevant, the development permitting mechanism will include any assessments / evaluations as may be required to address environmental issues. AA is one of these tools. In practice, wherever an AA requirement arises, this is likely to be one of many environmental issues. This is due to the fact that AA-relevant habitats tend to be located within sensitive environments / landscapes.