Batty behaviour in Hampshire habitat

21 January 2011 by Rosalind English

Morge (FC) (Appellant) v Hampshire County Council (Respondent) on appeal from [2010] EWCA Civ 608- Read judgment

We cannot drive a coach-and-horses through natural habitats without a bit of soul-searching, says the Supreme Court .

The UK has conservation obligations under EU law to avoid the deterioration of natural habitats and this goes beyond holding back only those developments that threaten significant disturbance to species. Detailed consideration must be given to the specific risks to the species in question. But this consideration can be left to the quangos; planning committees are not obliged to make their own enquiries.

The Supreme Court dismissed by a majority an appeal from the ruling in the court below that sporadic disturbances, without any likely long-term negative impact on a species on a whole, should not be considered as “disturbance” for the purposes of Article 12 of Council Directive 92/43/EEC (the Habitats Directive). Each case must be considered on its merits, but activity during the period of breeding, rearing, hibernation and migration is more likely to have a sufficient negative impact on the species to constitute “disturbance”.

The appeal concerned the meaning of the obligation imposed on the United Kingdom by the Habitats Directive, to prohibit “deliberate disturbance” of certain species of bats. All bats are European Protected Species, falling within Annex IV (a) of the Directive. The precise wording of the obligation may be found in Article 6(2) of the Directive, which states that

Member states shall take appropriate steps to avoid, in the special areas of conversation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.”

In its guidance on Article 12 of the Directive, the EU Commission points out that the prohibition

is not limited to significant disturbances of significant groups of animals

and indeed, this provision “covers all disturbance of protected species.”

The case also dealt with the scope of the obligation in domestic legislation on planning authorities to have regard to the requirements of the Habitats Directive. Article 39 (1) (b) of the 1994 Regulations which forbids the deliberate disturbance of wild animals of a European protected species is in effect the domestic enforcement mechanism for the Directive.

The facts

The respondent County Council granted planning permission in July 2009 for a proposed three mile stretch of roadway to provide a rapid bus service in South-East Hampshire. The supporters of this scheme argued that it would create a new and efficient form of public transport to the benefit of many residents, workers and visitors to the area. Environmental objections arose, however, on grounds that the proposed path of the busway runs along the path of an old railway line, which over the years of desuetude has become an ecological corridor for various flora and fauna.

When the planning application was submitted in March 2009 it was objected to by Natural England (the Government’s adviser on nature conservation) on grounds of the impact of the development on bats. This objection was withdrawn after the Council submitted an Updated Bat Survey (UBS), which recorded that no bat roosts were found on the site. It was acknowledged however that the removal of trees and vegetation would result in a loss of good quality bat foraging habitat; it was also recognised that the busway would increase the risk of collision with buses.

The appellant, a local resident, challenged the permission on environmental grounds, including its impact on several species of European protected bats. The challenge failed before the High Court and Court of Appeal, but the appellant was given limited permission to appeal on two issues of general importance.

1) the level of disturbance required to engage the prohibition in article 12(1)(b) of the Habitats Directive on “deliberate disturbance” of the bat species in question.

2) the scope of the obligation in regulation 3(4) of Conservation (Natural Habitats etc.) Regulations 1994 on local authorities to have regard to the requirements of the Habitats Directive in deciding whether to grant planning permission, and whether the Council in this case complied with the obligation.

Appeal dismissed

Lord Brown gave the lead judgment, setting out the “correct” approach to article 12(1)(b) of the Habitats Directive and regulation 3(4) of the 1994 Regulations

This provision of the Directive afforded protection specifically to species and not to habitats. The prohibition related to the protection of “species” and not “specimens of these species” as in other articles. However, it was not necessary, for the Directive to bite, to establish a significant effect on the conservation status of the species at population level and biogeographic level (which is what Ward LJ in the Court of Appeal had suggested). In Lord Brown’s view it was implicit in the Article that activity during the period of breeding, rearing, hibernation and migration is more likely to have a sufficient negative impact on the species, and therefore to constitute a “disturbance”. Also, taking in to consideration the Commission’s guidance on this issue, account should be given to the rarity and conservation status of the species in question and the impact of the disturbance on the local population of thespecies.

As for the domestic regulations, the planning committee was entitled to rely on Natural England’s conclusion that the proposed development was compliant with the Habitats Directive, and once they had withdrawn their objection the committee did not need to make any further investigations on its own behalf provided that necessary measures had been planned to compensate for the loss of foraging.

Comment

As is so often the case, the kernel of this dispute is to be found in the dissenting judgment (indeed it is quite hard to discern from the majority where they part company with the Court of Appeal). Lord Kerr addresses head on the central difficulty in the case, which lies in determining the level of disturbance required to fall within the prohibition. Although he agreed with the majority view on the case-by-case approach to be taken to Article 12, he would have quashed the planning permission, since he took exception to the fact that Natural England, with all its resources and powers, had failed to advance any proper evidence in support of their bland assertion that there would be violation of the Habitats Directive.

It is implicit in the Habitats directive that the authorities – any competent authority, specialist or not – must give consideration to the potential disturbing effect of an activity it is about to licence. It follows from Lord Kerr’s rather more specific interpretation of the Directive that he did not agree with the majority view that the planning authority had discharged its obligation by following Natural England’s advice.

Regulation 39 of the 1994 Regulations (as amended) provides that: “(1) a person commits an offence if he . . . (b) deliberately disturbs wild animals of any such species [i.e. a European protected species]”. It is Natural England, we are told, who bear the primary responsibility for policing this provision.It used to be the position that the implementation of a planning permission was a defence to a regulation 39 offence. That, however, is no longer so and to my mind this is an important consideration when it comes to determining the nature and extent of the regulation 3(4) duty on a planning authority deliberating whether or not to grant a particular planning permission.

He could not see why, given that interpretation of the Directive, the default position should be that planning permission should ordinarily be granted where the planners are given the nod by another agency. The terms of the 1994 Regulations are uncomplicated and direct. They provide, in short, that: “… every competent authority in the exercise of any of their functions, shall have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of those functions.”

In plain language this means that if you are an authority contemplating a decision that might have an impact on what the Directive requires, you must take its requirements into account before you reach that decision. Of course, if you know that another agency has examined the question and has concluded that none of those requirements will be affected, and if you are confident that such agency is qualified to make that judgment, this may be sufficient to meet your obligation under the regulation.

But this is a dangerous assumption, as Lord Kerr’s own summary of the UBS illustrates (see paragraph 66); you only have to ponder some of its points to realise quite how difficult it is to predict the extent of harm to a species by habitat impairment. The introduction of artificial light in a protected area for example could have catastrophic effects for some species, but benefit the same species in different ways (ie by attracting foodstuff in the form of insects). And the conclusion of the report was that it was probable that there would be a “short term moderate adverse impact on bats”. This short term impact however is likely to continued for 9 years.

So from a cursory reading of Natural England’s letter it would be quite understandable for a committee member to think that the experts had let them off the Habitats Directive hook. Of course the true position was that Natural England had expressed no explicit opinion whatever on that question. True it is, as Lord Brown says, that they knew that Natural England had withdrawn its objection. But that could not substitute, in Lord Kerr’s opinion, for a consideration of the requirements of the Habitats Directive. The implementing regulations, particularly 3(4),

requires every competent authority to have regard to the Habitats Directive in the exercise of its functions. The regulatory committee was unquestionably a competent authority. It need scarcely be said that, in deciding whether to grant planning permission, it was performing a function. Moreover the discharge of that function clearly carried potential implications for an animal species for which the Habitats Directive requires strict protection.

It is encouraging that the Supreme Court is giving serious attention to bats. It is good that planning committees are giving them lip service at all. And we should not be too gloomy about the outcome of this particular case (the bats lost); at least the threshold for disturbance has been lowered from that set by the Court of Appeal.

But, as we point out in our series of recent posts on environmental issues, there is not a great deal to celebrate either. In a small and densely populated part of Western Europe, so dependent on its transport infrastructure, economic interests are always going to trump those of the environment, particularly where the needs of demographic and economic evolution drive nature into retreat. In the words of former DG Commissioner Ludwig Kramer:

With all the delays and difficulties in designating habitats and conserving them, Directive …92/43 constitute[s] the first serious attempt in Western Europe to conserve nature protection sites. As such, they go far beyond what individual Member States had done at national level in this area. [However]… in almost all cases, where economic interests in building a bridge, a port, an airport or a motorway clash with the environmental interests of preserving a habitat, the environmental interests lose. It is not likely that the application of Directive 92/43 will significantly change this situation, all the more as the Commission shows to neglect problems of specific, individual habitats” (Kramer, EC environmental Law, 6th Edition Sweet and Maxwell 2007)

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