The Supreme Court handed down its second judgment of the year on January 2011 in the case of R (Morge) v Hampshire County Council [2011] UKSC 2. The case concerned: first, the meaning of the obligation imposed on the United Kingdom under article 12(1)(b) of the Council Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora (Habitats Directive) to prohibit the “deliberate disturbance” of certain species of bats; and second, the scope of the obligation in regulation 3(4) of the Conservation (Natural Habitats, etc) Regulations 1994 SI 1994/2716 on planning authorities to have regard to the requirements of the Habitats Directive in deciding whether to grant planning permission, and whether the Council in this case had complied with the obligation.

Hampshire County Council (“the Council”) granted planning permission on 29 July 2009 for a proposed three mile stretch of roadway to provide a rapid bus service between Fareham and Gosport in South-East Hampshire. The appellant, living nearby, objected to the scheme on the grounds that the proposed road ran along the path of an old railway line, which had become an ecological corridor for various flora and fauna, particularly bats. The Council responded by submitting an Updated Bat Survey (UBS), which found that while no bat roosts were found on the site, the removal of trees and vegetation would result in a loss of good quality bat foraging habitats and would have a moderate adverse impact at local level on foraging bats for nine years, the impact thereafter reducing to slight adverse/neutral. In addition the road would sever a bat flight path, increasing their risk of collision with buses.

The Council’s Planning Committee granted planning permission on 29 July 2009, and the Appellant challenged the permission on environmental grounds, including its impact on several species of European protected bats. The challenge failed before the High Court and Court of Appeal, but the Supreme Court granted the Appellant permission to appeal on two issues of general importance. The Supreme Court by a majority of 4 to 1 dismissed the appeal. Lord Brown, delivering the leading judgment, set out the correct approaches to article 12(1)(b) of the Habitats Directive and regulation 3(4) of the 1994 Regulations, and found that the Council complied with the obligation in regulation 3(4). Lord Kerr agreed with the majority on the article 12(1)(b) issue but dissented on the regulation 3(4) issue.

On the first issue, Lord Brown, giving the lead judgment for the majority held that certain broad considerations must govern the correct approach to article 12(1)(b) of the Habitats Directive. First, it is an article affording protection specifically to species and not to habitats. Second, the prohibition relates to the protection of “species” and not “specimens of these species” as in other articles. Thirdly, an assessment is needed of the nature and extent of the negative impact of the activity upon the species and a judgment as to whether that is sufficient to constitute “disturbance” of the species. Fourthly, 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 a “disturbance” than activity at other times.

The European Commission’s guidance document provides assistance as to whether a given activity constitutes disturbance, and explains that every case has to be judged on its own merits. Account should be given to the rarity and conservation status of the species in question and the impact of the disturbance on the local population of the species. Disturbance includes, in particular, that which is likely to impair an animal’s ability to survive, breed, rear its young, hibernate or migrate, and that which is likely to affect the local distribution or abundance of the species.

On the second issue, the majority held that the correct approach to regulation 3(4) is that planning permission should ordinarily be granted save only in cases where the Planning Committee conclude that the proposed development would both be likely to offend article 12(1) and be unlikely to be licensed pursuant to the powers to derogate from the requirements of article 12(1). Where Natural England express themselves satisfied that a proposed development will be compliant with article 12, the planning authority are entitled to presume that that is so. The Planning Committee here had regard to the requirements of the Directive so as to satisfy regulation 3(4); the Committee knew that Natural England’s objection had been withdrawn and that necessary measures had been planned to compensate for the loss of foraging.

Lord Kerr, dissenting on this second issue, observed that Natural England had expressed no explicit opinion on the question of whether there would be violation of article 12(1). Even if that presumption could be made, it does not affect the clear indication in the letter of 17 July 2009 that the matter was still one which required the Committee’s attention. If Natural England had unambiguously expressed the view that the proposal would not breach article 12(1) and the Committee had been informed of that, it would not have been necessary for the Committee to go behind that view. Absent such a statement, it was bound to make that judgment for itself, something which it did not do. Lord Kerr would have allowed the appeal and quashed the planning permission on this basis.