Planning committee complied with Habitats Directive, rules Supreme Court

A local authority complied with its obligations to have regard to the Habitats Directive when it granted planning permission for a proposed three-mile roadway that would host a rapid busway service, the Supreme Court has ruled.

In Morge v Hampshire County Council [2011] UKSC 2, the county council had granted permission for the scheme between Fareham and Gosport on 29 July 2009. Mrs Morge, who lived close by, objected to the project.

Critics of the busway scheme argued that its proposed path would run along an old railway line which had become an ecological corridor holding various flora and fauna.

Natural England, the government’s adviser on nature conservation, had objected to the original application for planning permission, principally because of the development’s impact on bats.

Hampshire then provided an updated bat survey, after which Natural England withdrew its objections. The council’s planning committee granted permission by a majority of six to five, with two abstentions.

The survey said no bat roosts had been found on the site. However, removing trees and vegetation would have led to the loss of good quality bat foraging habitats. The busway would have also cut through a bat flight path, increasing the risk of collisions with buses.

Mrs Morge brought a challenge based on environmental objections, but lost in both the High Court and the Court of Appeal.

At stake in the Supreme Court were two issues: first, the level of disturbance required to engage the prohibition in article 12(1)(b) of the Habitats Directive on “deliberate disturbance” of the bat species in question; and second, the scope of the obligation contained in regulation 3(4) of Conservation (Natural Habitats etc.) Regulations 1994 on local authorities to have regard to the requirements of the directive in deciding whether to grant permission.

The Supreme Court rejected Mrs Morge’s appeal by a majority of four to one. Giving the lead judgement, Lord Brown set out the correct approach to article 12(1)(b), namely:

• The article affords protection specifically to species and not to habitats, “although obviously, as here, disturbance of habitats can also indirectly impact on species”
• The prohibition encompassed in article 12(1)(b) – in contrast to that in article 12(1)(a) – relates to the protection of ‘species’, not the protection of ‘specimens of these species’
• Whilst the word ‘significant’ is omitted from article 12(1)(b), "that cannot preclude an assessment of the nature and extent of the negative impact of the activity in question upon the species and, ultimately, a judgment as to whether that is sufficient to constitute a ‘disturbance’ of the species”
• It is implicit in article 12(1)(b) that activity during the period of breeding, rearing, hibernation and migration is more likely to have a sufficient negative impact on the species to constitute prohibited ‘disturbance’ than activity at other times.

Lord Brown suggested that the European Commission’s guidance on the issue was of assistance, and highlighted its emphasis that every case must be judged on its own merits.

Two other considerations could usefully be borne in mind by the competent authorities, the judge said. First, the rarity and conservation status of the species in question and the impact of the disturbance on the local population of that species should be taken into account.

Second, and as enshrined in Regulation 41(2) of the Conservation of Habitats and Species Regulations 2010, disturbance includes “in particular any disturbance likely (a) to impair their ability (i) to survive, to breed or reproduce, or to rear or nurture their young, or (ii) in the case of animals of a hibernating or migratory species, to hibernate or migrate; or (b) to affect significantly the local distribution or abundance of the species to which they belong."

Turning to the second issue, Lord Brown said Lord Justice Ward in the Court of Appeal had put too great a responsibility on the planning committee.

Instead he said he could see no reason why planning permission should not ordinarily be granted save only in cases where the planning committee conclude that the proposed development would both (a) be likely to offend article 12(1) and (b) be unlikely to be licensed pursuant to powers to derogate from the requirements of article 12(1).

“Where, as here, Natural England express themselves satisfied that a proposed development will be compliant with article 12, the planning authority are to my mind entitled to presume that that is so,” Lord Brown added. “After all, even if development permission is given, the criminal sanction against any offending (and unlicensed) activity remains available and it seems to me wrong in principle, when Natural England have the primary responsibility for ensuring compliance with the Directive, also to place a substantial burden on the planning authority in effect to police the fulfilment of Natural England's own duty.”

In this case, Hampshire County Council’s planning committee had had sufficient regard to the requirements of the directive to satisfy regulation 3(4). It had also known that Natural England had withdrawn its objections and that necessary measures had been planned to compensate for the loss of foraging.

Lord Kerr dissented on this second issue. The judge said Natural England had not expressed an explicit opinion on the question of whether there would be a violation of article 12(1). Without such a statement, the planning committee was bound to make the judgement for themselves and this they did not do. Lord Kerr said he would have quashed the planning permission on that basis.