Habitat protection

The case of Morge v Hampshire County Council [2011] UKSC 2 reached the Supreme Court in November, and judgment was given on 19 January. I commented on the Court of Appeal decision in this case on 11 June last year (see “Developing overgrown land”).

This appeal concerned the obligation imposed by the Habitats Directive to prohibit “deliberate disturbance” of certain species of bats, and the corresponding UK legislation designed to meet that requirement. It was contended on behalf of the appellant that the appeal site (a disused railway line) had become a habitat for bats but the developer, Hampshire County Council, had found no evidence that bats roosted on the site. The appeal before the Supreme Court turned on the definition of ‘deliberate disturbance’ as prohibited in Article 12(1)(b) of the Directive and also the degree to which a local planning authority must consider the Habitats Directive when determining a planning application.

By a majority of 4 to 1, the Supreme Court dismissed the appeal (thus upholding the decisions at first instance and in the Court of Appeal). In doing so, the Court explained the correct approach to article 12(1)(b) of the Habitats Directive and to Regulation 3(4) of the 1994 Regulations. The Court noted that Article 12 affords protection specifically to species and not to habitats. The prohibition relates to the protection of “species” and not “specimens of these species” (as in other articles). This requires an assessment 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. Furthermore, it is implicit in Article 12 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 “disturbance”.

Some useful assistance can be found in the European Commission’s own guidance document. It provides illustrations as to whether any given activity constitutes disturbance, but explains that every case must be judged on its own merits. Account should also be taken of the rarity and conservation status of the species in question and the impact of the disturbance on the local population of that species. Disturbance includes in particular something 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.

The Court held that the correct approach to Regulation 3(4) is that planning permission should ordinarily be granted save only in cases where the LPA concludes that the proposed development would not only be likely to offend Article 12(1) but would also be unlikely to be licensed as a derogation from the requirements of Article 12(1). Where Natural England express themselves satisfied that a proposed development will be compliant with Article 12(1), the planning authority is entitled to presume that that is so. In this case, Natural England had originally objected to the development, but had withdrawn that objection when satisfied that necessary measures would be taken to compensate for the loss of foraging.

© MARTIN H GOODALL