European Union – Local government – Planning – Conservation

Morge v Hampshire County Council: SC (Lords Walker, Brown, Mance, Kerr, Lady Hale): 19 January 2011

The appellant objector (M) appealed against a decision ([2010] EWCA Civ 608, [2010] PTSR 1882) upholding a planning permission granted by the respondent local authority.

The local authority’s planning committee had granted permission for a bus route along a disused railway line. M had objected to the scheme because of its potential impact on bats living nearby. Natural England had also objected, but withdrew its objection after the local authority commissioned a survey of the scheme’s impact on the bats. The bats were European protected species. The issues for determination were: (i) the level of disturbance required to fall within the prohibition in article 12(1)(b) of Directive 92/43; (ii) the planning committee’s obligations under regulation 3(4) of the Conservation (Natural Habitats, &c.) Regulations 1994, which implemented the directive.

Held: (1) Broad considerations governed the approach to article 12(1)(b): it afforded protection specifically to species and not to habitats; the prohibition related to species rather than specimens of those species; although the word ‘significant’ was omitted from article 12(1)(b), that could not preclude an assessment of the nature and extent of the negative impact of the activity upon the species and a judgment as to whether that was sufficient to constitute a disturbance; and it was implicit in article 12(1)(b) that activity during periods of breeding, rearing, hibernation and migration was more likely to constitute disturbance than activity at other times. The statement in the European Commission’s guidance to the directive that consideration had to be given to the effect on the species’ conservation status did not imply that only activity that did have an effect on the species’ conservation status was sufficient to constitute disturbance. The guidance explained that, within the spectrum in which the question arose as to whether an activity constituted disturbance, every case had to be judged on its own merits. Competent authorities could also consider the species’ rarity and conservation status, and the impact of the disturbance on the local population of a particular protected species. They could further bear in mind the examples of consequences of disturbing activity given in regulation 41(2) of the Conservation of Habitats and Species Regulations 2010, although other activities having an adverse impact on the species not having those consequences could also offend the prohibition (see paragraphs 19-23 of judgment).

(2) (Lord Kerr dissenting) A planning committee was only obliged under regulation 3(4) of the 1994 regulations to have regard to the directive’s requirements so far as they might be affected by its decision. When the implementation of a planning permission had provided a defence to an offence under regulation 39, the committee would have needed to be satisfied either that the development would not offend article 12(1) or that a derogation from that article would be permitted. As implementation was no longer such a defence, there was no reason why a permission should not ordinarily be granted save where the committee concluded that the development would be likely to offend article 12(1) and unlikely to be licensed pursuant to derogation powers. Even if permission was given, the criminal sanction against any offending activity remained available, and it was wrong, when Natural England had the primary responsibility for ensuring compliance with the directive, also to place a burden on the planning authority to police the fulfilment of Natural England’s duty. Where Natural England said that a development would comply with article 12, the planning authority was entitled to presume that that was so. Regulation 3(4) had not required the committee to decide for itself whether the development would occasion such disturbance to bats as to constitute a violation of article 12(1)(b). Even had the committee thought it necessary to decide that question itself, there was no reason to suppose that it would not have reached the overall conclusion that the impact of the activity could not amount to a disturbance (paragraphs 29-31).

Appeal dismissed.

Charles George QC, Gregory Jones, Sarah Sackman (instructed by Swain & Co) for the appellant; Neil Cameron QC, Sasha White (instructed by in-house solicitor) for the respondent.