Morge v Hampshire CC

On an interim application to vary a restraining order pending an appeal, the court must balance the practical need for works to proceed against their likely environmental harm. It need not determine the substantive merits of an alleged breach of the EC Habitats Directive 92/43/EEC or domestic regulations. Ecological harm is assessed as a matter of degree, having regard to the nature and scale of the effects, available evidence and mitigation. A real risk that delay will defeat the underlying project may outweigh a small and unlikely-to-be-significant impact on wildlife.

Mrs Morge challenged Hampshire County Council’s planning permission for a bus rapid transit scheme, alleging breaches of the EC Habitats Directive 92/43/EEC, the Habitats Regulations and the EIA Regulations 1999. A deputy High Court judge dismissed the judicial review. On 2 December 2009 Sullivan LJ granted permission to appeal and interim relief restraining implementation of the permission.

The Council then applied under the liberty to apply provision to vary the restraint so that specified preparatory works could proceed before the substantive appeal. The central issues were the urgency and practical need for the works, and their likely adverse impact on bats, badgers and habitat.

Application granted. The Court of Appeal treated the application as one concerning whether restraint should continue pending the substantive appeal. It applied a balancing exercise, weighing the need for the works against their likely environmental harm.

1. The Council established a real and immediate funding risk. Community infrastructure funding required completion of the scheme and expenditure of the funds by 31 March 2011. The works programme was realistically 15 months, while only 14 months remained. Refusing variation therefore created a real risk that the project would not proceed even if the Council succeeded in the substantive appeal. The funding conditions gave the Secretary of State power to withhold the grant.
2. The ecological evidence showed no active badger setts within the works area and no direct effect on badgers. No trees there provided potential bat-roosting habitat, and there was no evidence of hibernating bats near the principal works. The works would cause some loss of bat foraging habitat and might affect connectivity, but the loss was extremely small, being little more than 0.2 hectares compared with about 100 hectares remaining along the railway line. Temporary mitigation would also provide a commuting corridor.
3. The court did not determine the substantive issue under the EC Habitats Directive 92/43/EEC. The contention that a likely detrimental impact need not be significant to constitute disturbance under article 12(1) was relevant to the substantive appeal, but the present application concerned interim restraint. The environmental issue was one of degree.
4. The balance of convenience clearly favoured permitting the proposed variation. The Council’s order was made.

1. Court of Appeal (Civil Division): On the Council’s application to vary the interim restraint, the court granted the variation. [2010] EWCA Civ 150
2. Queen’s Bench Division: A deputy High Court judge dismissed the judicial review challenging the planning permission.
3. Court of Appeal (Civil Division): On 2 December 2009 Sullivan LJ granted permission to appeal and interim relief restraining implementation of the planning permission pending the appeal.