Court of Appeal
Published June 22, 2010
Regina (Morge) v Hampshire County Council
Before Lord Justice Ward, Lord Justice Hughes and Lord Justice Patten
Judgment June 10, 2010
A planning authority could take account of indirect effects on a protected species of a proposed development.
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The Court of Appeal so stated in a reserved judgment when dismissing the appeal of Mrs Vivienne Morge from the dismissal by Judge Bidder, QC, sitting as a deputy High Court judge ([2009] EWHC 2940 (Admin)), of her claim for judicial review of a planning permission granted by Hampshire County Council for a bus route along a disused railway track where bats were seen.
The claimant contended, inter alia, that the scheme flouted the requirements of article 12 of Council Directive 92/43/EEC (OJ July 22, 1992 L206/7) on the conservation of natural habitats and of wild fauna and flora, transposed into English law by regulation 39 of the Conservation (Natural Habitats, etc) Regulations (SI 1994 No 2716), as amended by the Conservation (Natural Habitats, etc) (Amendment) Regulations (SI 2007 No 1843).
Mr Charles George, QC and Miss Sarah Sackman for Mrs Morge; Mr Neil Cameron, QC and Mr Sasha White for the council.
LORD JUSTICE WARD said that for the condition as to “deliberate” action in article 12(1)(a) to be met it had to be proven that the actor intended the capture or killing of a specimen belonging to a protected animal species or, at the very least, accepted the possibility of such capture or killing. That definition had to apply equally to article 12(1)(b) which protected species but not habitats.
A disturbance, which could be constituted by indirect effects, need not be significant, but it had to have a detrimental impact so as to affect the conservation status of the species at population level, and that raised the question how the disturbance affected the long-term distribution and abundance of the population of bats.
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On the facts, there was no evidence that the population of the species would not maintain itself on a long-term basis.
Article 12(1)(d) did not concern the species but important parts of their habitats, as it prohibited deterioration or destruction of breeding sites or resting places.
A proposed development had to be judged in the light of whether it would directly or indirectly result in deterioration or destruction. Thus the critical question was whether the proposed development would, directly or indirectly, affect the bats in the sense of deliberately disturbing them under article 12 (1)(b) or in the deterioration or destruction of their breeding or resting place.
In the present case the judge had erred in holding that it was not necessary to have regard to any concept of indirect effect, but the error did not render his decision unsustainable because the indirect effect relied on, that potential roosts would be lost, was not sufficient.
Article 12(1)(d) required the strict protection of defined elements of the habitat, namely the bats’ actual breeding sites and resting places, and it did not cover the loss of a potential site if the ecological functionality was safeguarded, as here.
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Overall, the relevant planning committee had had due regard to the requirements of the Directive and satisfied the duty imposed by regulation 3(4) of the 1994 Regulations, and its decision could not be challenged.
Lord Justice Hughes and Lord Justice Patten agreed.
Solicitors: Swain & Co, Havant; Mr Kevin Gardner, Winchester.