Morge v Hampshire County Council

Planning authorities must engage meaningfully with the protection of European protected species when deciding planning applications. They must obtain sufficient expert evidence, consider direct and indirect effects, and fairly summarise the material conclusions for the decision-maker. Disturbance under article 12(1)(b) of the Habitats Directive requires a certain negative impact likely to be detrimental, assessed case by case and by reference to the species’ conservation status. The presence of a European protected species does not automatically make development EIA development. Whether Schedule 2 development is likely to have significant environmental effects is a planning judgment subject to review for irrationality. Mitigation may be considered at the screening stage. A project should be assessed with other development where it is genuinely part of an inevitably more substantial scheme, but mere aspirations for future development are insufficient.

The claimant sought judicial review of Hampshire County Council’s grant of planning permission for a 4.7 kilometre busway between Fareham and Gosport. The proposed works affected a disused railway corridor containing bats, badgers and nearby designated nature conservation sites.

The challenge alleged breaches of the Habitats Directive and the Conservation (Natural Habitats etc.) Regulations 1994, unlawful screening of the proposal as not being EIA development, and failure to take proper account of harm to badgers. The central issues were whether the proposal involved deliberate disturbance or damage to bat breeding sites or resting places, whether the planning reports fairly informed the committee, and whether the screening decision was legally or irrationally flawed.

1. The application was dismissed. The planning officer’s reports were concise but fair and accurate summaries of extensive ecological and environmental material. Members could be expected to have relevant background knowledge and had access to the underlying reports. A report need not mention every statutory provision or every factual detail unless its overall effect significantly misleads the committee about a material matter.
2. Disturbance under article 12(1)(b) of the Habitats Directive 92/43/EEC and regulation 39 of the Conservation (Natural Habitats etc.) Regulations 1994 did not require further judicial definition. The authority had to consider whether the evidence showed an adverse effect on breeding, rearing, hibernation or migration, indirect as well as direct negative effects, the Commission guidance, and the effect on the species’ conservation status. A certain negative impact likely to be detrimental was required.
3. The updated bat survey, mitigation measures and withdrawal of Natural England’s objection supported the conclusion that the works did not involve deliberate disturbance. Consequently, consideration of the derogation provisions in article 16 and regulation 44 was unnecessary. No bat breeding site or resting place was identified within the works footprint. Article 12(1)(d) did not extend to an indirect obstruction of bats commuting to or from a roost outside the works area.
4. The effect on badgers was a material planning consideration. The development’s residual effect, after mitigation, was assessed as slight adverse. The report gave sufficient information and guidance and the decision was not irrational.
5. Whether Schedule 2 development was likely to have significant environmental effects under regulation 2(1) of the Environmental Impact Assessment Regulations 1999 involved planning judgment and opinion. The presence of European protected species was an important factor but did not automatically trigger an EIA. The authority could consider effective mitigation and was entitled to conclude, on the available evidence, that the proposal was not EIA development.
6. The authority properly considered cumulative effects and the possible wider bus transit scheme. The evidence showed aspirations and possible future routes, rather than a defined wider project capable of practical assessment. There was no unlawful project-splitting.
7. The authority was entitled to distinguish environmental effects from mitigation and to consider temporary, localised and permanent effects separately. Overall environmental benefits could not be used to avoid assessing adverse effects, but the reports did not improperly net those effects off. No error of law or irrationality was established.

First-instance judicial review proceedings. The application for judicial review was dismissed.