The application of the Habitats Directive in the UK: Compliance or gold plating?

The implementation of the Birds and Habitats Directives in the UK has caused considerable unease within some parts of industry. Ports in particular have voiced concerns and have argued that the UK Government's interpretation of the Directives is more comprehensive than strictly necessary, likening it to ‘gold plating’. They have argued that this has placed the UK at a disadvantage to other European competitors. This paper explores these contentions and examines case histories to establish the veracity of the arguments.The evidence presented here does not support the contention of ‘gold plating’. European courts have ruled against many Member States, including the UK, for failure to properly interpret the Directives. The UK Government has been required to provide compensatory measures for two port developments that were not consented according to the provisions of the Birds Directive. Challenges by particular ports in the European courts have not been upheld. One reason for perceived ‘gold plating’ may lie in the time taken by some Member States such as Germany and France to transpose the Habitats Directive. This may have given the impression the UK was being more rigorous by responding more quickly.The UK Government, its conservation advisers and the Non-Governmental Organisations (NGOs) have endeavoured to find practical solutions to port development needs. Solutions can be found in most circumstances. There have, however, been delays as a result of the more complex and rigorous assessment processes. But, requirements to address weaknesses in the transport network have led to additional major delays to the biggest projects. These problems are frequently overlooked and yet they are equally significant and would have happened with or without the Birds and Habitats Directives.