Some facts about the area
A private exploiter planned to build 300 dwellings near a golf resort, Ekerum, on the island Öland, in the south of Sweden. The company succeeded in making the municipality interested and the municipality started a program for adopting 12 minor detailed plans for localization of the buildings. In the planning procedure and during the mandatory communication with the County Administrative Board (CAB), it became obvious that this authority regarded that a Natura 2000 area, Halltorp, immediately north of the exploitation area, risked to be affected.
The exploitation plan covered in total an area of 20 hectare (200 000 m2), whereof 7 hectares of broad leaved forest.
The general description of the Natura 2000 area : Mainly a broad-leaved forest dominated by Quercus robur (oak) and Carpinus betulus (beech) located on the sloap of the western coast of Öland. The western part of the area consists of grazed open or semi-open salt meadows. Especially the old Quercus of the site holds several nationally endangered species. The broad-leaved forest of the site can show a long continuity and is a remaining fragment of an earlier widespread habitat in the south of Sweden. Presence of the species : Cerambyx cerdo (the only location in Sweden), Lucanus cervus and Osmoderma eremita.
The purpose of the plan to protect the Natura 2000 area is to preserve the special types of nature and certain species in the area, especially the Cerambyx cerdo and the Osmoderma eremita. In the area there are around 30 oaks, 500 – 700 years old with extremely high nature value. The next generation of oaks are 100 – 150 years old (38 in Halltorp and 29 in Ekerum). These younger oaks has not yet developed the biotope with – dead branches hollows etc. that is a prerequisite to attract the Cerambyx cerdo. Thus, in order to preserve the values in the area, the CAB meant that also older trees outside the protected area must be protected in order to bridge this gap. In the plan to preserve the Natura 2000 area, one ambition is to, outside the Natura 2000 area, have a refuge of reserves of broad leaf forests but also certain solitary trees in order to form a habitat for the endangered species. Through Ekerum and further south there is a passage of more or less valuable stocks of broad leaf forests and oak trees. This passage were regarded as of great importance for organisms bound to oak. The preservation plan covered an area of 50 hectare, whereof 37 oak habitats.
The municipality applied for a permit under the Natura 2000 scheme, meant that most areas did not need a permit, that others did and fulfilled the requirements for such permit. When analyzing the application, the CAB came to the conclusion that of the 12 minor areas, only three were regarded as having a potential negative effect the Natura 2000 area and needed a permit (in total 82 buildings, 23 in area 15, 36 in area 3 and 23 in area 4). Also some minor roads to bind the building areas together needed a permit. All these permits were denied. The CAB reasoned that the oaks in Ekerum were important to fill in the gap between the older (with their special conditions to as a habitat for the vulnerable bugs) and the younger oaks in Halltorp.
The municipality appealed to the Land and Environment Court in Växjö.
The arguments for and against the exploitation :
The Municipality argued :
The zero-alternative is that nothing will be done in the area and the nature will develop freely. This means that the area will not be maintained as the buildings company voluntarily committed to do ; to keep the area between the oaks open and for the sun to shine freely on the trees – prerequisite for the function as a habitat for the bugs and to establish new oaks. - If the permit will be denied, these actions (compensatory measures) will not take place.
To have this strong protection of an area outside Natura 2000 conflicts fundamental principles for the landowner to foresee future limitations in his/her ownership and land use.
The habitats directive does not cover the situation where physical actions are taken outside a Natura 2000 area. Only pollutions as of noise, or emissions to air of certain hazardous substances etc. emanating from operations that may affect the area is to be regarded. Not the exploitation as such.
To build the buildings as planned will not endanger the values of the area. In the proposals for detailed plans, there will be a special condition that you need a permit to cut down trees more than 30 centimeters in circumference.
The CAB on the other hand meant that there is a responsibility for Sweden as a Member State in the EU to make sure that actions are taken to provide a favorable conservative status of the Natura 2000 area. The argued zero-alternative is not relevant.
It is obvious that these kind of operations discussed here are covered by the habitats directive. And in this case the preservation of oaks outside the Natura 2000 area is a prerequisite to maintain a habitat for endangered species.
If you allow the building of dwellings in the area, according to experience you can foresee conflicts between the interest of preserving the area to support the Natura 2000 area and the interest of the habitants to protect themselves and their property to be damaged by falling branches etc.
Some questions :
• What is to regard as the zero alternative in a situation like this ?
• What kind of disturbances outside a Natura 2000 area – affecting that area – can you regard ? – May it mean that you have a protected area outside the specific protected area ?
• Who has the burden of proof regarding risks ?
• Which measures in order to compensate a loss of nature values can you regard in a case like this ? How should you/may you weigh principles of fundamental rights and principles of environmental law ?