Morge, R (on the application of) v Hampshire County Council

Under article 12(1)(b) of the Council Directive 92/43/EEC, deliberate disturbance must have a real adverse impact affecting the conservation status of the protected species at population level. Indirect effects may qualify, but loss of foraging habitat alone does not.

Article 12(1)(d) protects the continuing ecological functionality of actual breeding sites and resting places against direct or indirect deterioration or destruction. It does not protect merely potential sites.

A planning authority must address the Directive and the likelihood of a derogation where a breach may occur. When screening development for environmental assessment, it must exercise its own planning judgment. Expert opinion is important but does not bind it.

Hampshire County Council granted permission to construct a bus route along a disused railway corridor used by protected bats and badgers. It also determined that the project, although Schedule 2 development, did not require an environmental impact assessment.

A local resident sought judicial review, alleging failures to comply with the Council Directive 92/43/EEC, the Conservation (Natural Habitats, &c) Regulations 1994 and the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. A deputy High Court judge dismissed the claim.

The appeal concerned deliberate disturbance under article 12(1)(b), direct and indirect deterioration of breeding sites or resting places under article 12(1)(d), the planning committee’s duty to have regard to the Directive, and the rationality of its environmental-impact screening decision.

1. Appeal dismissed. Ward LJ, with whom Hughes and Patten LJJ agreed, held that the planning permission and screening decision should stand.
2. Article 12(1)(b) of the Council Directive 92/43/EEC protects a species rather than individual specimens or habitat as such. A disturbance need not be significant, but it must exceed the negligible. It must be identifiable, real and adverse. Whether it is detrimental must be assessed by reference to its effect on the species’ conservation status at population level, including its long-term distribution and abundance. Indirect effects, including noise, vibration or light, may constitute disturbance. Deliberate conduct requires an intention to cause the prohibited result or acceptance of its possibility. The evidence did not establish the required effect on the bat population: paras [23]–[45], [73]–[75].
3. Article 12(1)(d) protects actual breeding sites and resting places from deliberate or non-deliberate deterioration or destruction. Both direct and indirect effects are relevant. The deputy judge therefore erred by excluding indirect effects. The provision safeguards the ecological functionality of defined sites, however, and does not protect every potential site where that functionality remains available elsewhere. Nor did a possible collision risk on a commuting route physically degrade a protected site: paras [46]–[59], [76].
4. Under regulation 3(4) of the Conservation (Natural Habitats, &c) Regulations 1994, a planning authority must have regard to the Directive. If article 12 would be breached, it must consider whether Natural England is likely to grant a derogation licence. Permission must be refused if a licence is unlikely or its grant is uncertain. Here the reports, mitigation measures and Natural England’s withdrawal of its objection gave the committee sufficient information. No breach was established: paras [60]–[77].
5. Environmental-impact screening is an exercise of planning judgment. “Likely” means a real risk rather than probability. Significance may be assessed after considering mitigation, and the focus is on adverse effects. A planning authority must give expert evidence substantial weight but remains responsible for the decision and is not bound by an expert’s description of an effect as significant. The committee’s conclusion fell within the range of reasonable judgments: paras [79]–[90].

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously: [2010] EWCA Civ 608.
2. Administrative Court: His Honour Judge Bidder QC, sitting as a deputy High Court judge, dismissed the claim for judicial review on 17 November 2009. The judgment’s citation is not stated.