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06th December 2011

Supreme Court Ruling on the Disturbance of Protected Species

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R. (on the application of Morge) v Hampshire County Council [2011] UKSC 2

The case addressed the meaning of the term “deliberate disturbance” in the EC Habitats Directive and the duties of Local Planning Authorities (“LPAs”) to have regard to the requirements of the Directive in making planning decisions.

Hampshire County Council (“HCC”), through its agent Transport for South Hampshire, applied for planning permission for a rapid bus route. Natural England (“NE”) objected to the application, partly due to concerns about the development’s impact on bats. An Updated Bat Survey, commissioned by HCC, showed no bat roosts on the site but that the removal of trees and vegetation would lead to loss of good quality bat foraging and that the bus route would sever a flight path. Largely as a result of the survey, NE withdrew its objections and HCC, which was also the relevant LPA, granted the permission. Mrs Morge challenged the permission on environmental grounds including the development’s likely impact on several bat species protected under the Directive. Her challenge failed in the High Court and in the Court of Appeal. Mrs Morge was allowed to take her case to the Supreme Court (“SC”) on two issues. Although one judge disagreed with the majority’s decision, the SC dismissed the appeal.

The first issue concerned the interpretation of the term “deliberate disturbance” in Article 12 of the Directive. This Article provides that EU Member States must take measures necessary to protect species listed in the Directive by prohibiting, among other things, the deliberate disturbance of these species, particularly during breeding, rearing, hibernation and migration periods. The Conservation (Natural Habitat, etc) Regulations 1994 gave effect to the Article in UK law and made such a deliberate disturbance a criminal offence.

The meaning of “deliberate” was not at issue but the SC confirmed that disturbance is deliberate if intentional and done in the knowledge that it will or may have a particular consequence.

In relation to the meaning of “disturbance”, the SC made the following points:

1. The Article relates to a species and not to individual specimens or to habitats.

2. Although the Article’s wording might suggest that any level of negative impact is “disturbance” and is prohibited, an assessment of the level of the impact should be made.

3. Activity during breeding, rearing, hibernation migration periods is more likely to amount to “disturbance”.

4. “Disturbance” does not require an impact on the species’ conservation status at the population level or its survival chances.

5. Determining whether the level of disturbance falls within the prohibition requires a case-by-case approach.

6. Consideration should be given to a species’ rarity and conservation status as a disturbance to a rare or declining species can be more harmful than to other species.

The second issue concerned the nature of LPAs’ duties under Regulation 3(4) of the 1994 Regulations. This provides that an LPA must have regard to the requirements of the Habitats Directive in exercising its functions.

The SC held that HC had had sufficient regard to the requirements of the Directive and was not obliged to do anything further. The UK implemented the relevant part of the Directive by making deliberate disturbance a criminal offence. The grant of planning permission would not be a defence to this. NE has primary responsibility to ensure compliance by prosecuting those who committed the offence and the Directive does not place a substantial burden on LPAs to police NE in doing so. As NE had expressed itself satisfied with that the development would be compliant with the Article, HCC could assume that this was so and not assess it for itself.

Conclusion

Disturbance of a protected species can block the ability to obtain a planning consent and can interfere with land management. “Disturbance” relates to species and not to individual specimens. It is judged on a species-by-species basis with greater protection to those in decline than those which are stable or increasing. It is wise to exercise caution where protected species are concerned and to obtain a licence if they will be disturbed. Where development is proposed, the support of Natural England is of key importance. For more information contact Deborah Sharples on deborahsharples@hewitsons.com or 01223 532757