Morge (FC) v Hampshire County Council

Article 12(1)(b) of the Council Directive 92/43/EEC protects species rather than individual specimens or habitats. Whether deliberate activity amounts to disturbance is assessed case by case by reference to the nature and extent of its adverse impact. Effects on conservation status, rarity, the local population and sensitive stages of the species’ life cycle are relevant. The activity need not imperil favourable conservation status.

Under regulation 3(4) of the Conservation (Natural Habitats, etc) Regulations 1994, a planning authority must have regard to the Directive. It may ordinarily rely on Natural England’s expert view and need not police the applicable criminal offences. Permission should ordinarily be withheld on this ground only where the development is likely to breach article 12(1) and is unlikely to be licensed.

Morge (FC) v Hampshire County Council concerned a judicial review of planning permission for a rapid busway along a disused railway corridor. Several protected bat species used the corridor for foraging and movement. Natural England initially objected because the available surveys were insufficient, but withdrew its objection after receiving an updated bat survey and proposed mitigation measures. The challenge was dismissed by the High Court in [2009] EWHC 2940 (Admin) and by the Court of Appeal in [2010] EWCA Civ 608, [2010] PTSR 1882.

The Supreme Court granted limited permission to appeal on two questions. The first concerned the meaning of deliberate disturbance under article 12(1)(b) of the Council Directive 92/43/EEC. The second concerned whether the planning authority had discharged its duty under regulation 3(4) of the Conservation (Natural Habitats, etc) Regulations 1994 by having regard to the Directive, including through its reliance on Natural England’s advice.

1. Disposition. The appeal was dismissed by a majority of four to one. Lord Brown delivered the leading judgment. Lord Walker, Lady Hale and Lord Mance agreed that both grounds of appeal failed. Lord Kerr agreed on the interpretation of article 12(1)(b) but dissented on the planning authority’s compliance with regulation 3(4).

2. Disturbance of protected species. Per Lord Brown, with all the Justices agreeing on this issue, article 12(1)(b) of the Council Directive 92/43/EEC protects species rather than habitats or individual specimens. Disturbance of habitat may nevertheless affect a species indirectly. The omission of the word significant does not remove the need to assess the nature and extent of the adverse impact before deciding whether it constitutes disturbance.

3. The assessment is species-specific and case-specific. Relevant matters include the effect on conservation status, the rarity and condition of the species, the effect on its local population and whether the activity occurs during breeding, rearing, hibernation or migration. Effects on survival, breeding, reproduction, migration, local distribution and abundance are particularly relevant. The Court of Appeal set the threshold too high by requiring an impact which affected conservation status at population level. An effect on favourable conservation status is relevant but is not a prerequisite to prohibited disturbance.

4. The planning authority’s duty. Per Lord Brown and Lady Hale, with Lord Walker and Lord Mance agreeing, regulation 3(4) of the Conservation (Natural Habitats, etc) Regulations 1994 required the authority to have regard to the Directive. It did not require the authority to decide independently whether the development would breach article 12 or to police the criminal offence created by regulation 39. Natural England had primary responsibility for enforcement and licensing. Where Natural England stated that the proposal was compliant, the authority was entitled to presume compliance. Planning permission could ordinarily be granted unless the authority concluded both that an article 12 breach was likely and that a derogation licence was unlikely.

5. Lady Hale held that reports to elected planning bodies must be sufficiently clear and complete to permit an informed decision, but need not recite every applicable legal obligation. The officers’ reports, Natural England’s withdrawal of its objection and the proposed mitigation demonstrated sufficient regard to the Directive. The majority also considered that an independent application of the correct disturbance standard would not have produced a different conclusion. Lord Kerr would have allowed the appeal and quashed the permission because Natural England had not expressed an unambiguous conclusion on article 12 compliance and the committee had not itself addressed that question.

1. United Kingdom Supreme Court: In Morge (FC) v Hampshire County Council [2011] UKSC 2, the appeal was dismissed by a majority of four to one. Lord Kerr dissented on the second issue.
2. Court of Appeal: The claimant’s appeal was dismissed in [2010] EWCA Civ 608, [2010] PTSR 1882. The Supreme Court disagreed with the Court of Appeal’s interpretation of article 12(1)(b), but upheld the result.
3. High Court: Judge Bidder QC, sitting as a Deputy High Court judge, dismissed the challenge to the planning permission in [2009] EWHC 2940 (Admin).