In both European and English law, provision for nature conservation is broadly divided into measures for the protection of species and measures for the protection of habitats. This case concerns the application of the species protection provisions of the EC Habitats Directive 92/43/EEC ('the Directive') as transposed in the Conservation Regulations. This is the first case in the English courts to address the species protection pillar of the Direc-tive and was particularly timely because the actions leading to the original judicial review took place just after the Conservation Regulations were amended, for the second time, to comply with the Directive.1 As Sullivan LJ observed when granting permission to appeal, the case raised points of principle of some importance with respect to Article 12( 1 )(b) and (d) of the Directive.
As with most nature conservation cases coming before the courts, the need to balance public socio-economic interests against the protection of biodiversity was at the heart of the dispute. What makes this case unusual is that the judicial review was sought on the grounds of alleged disturbance of species rather than damage to or destruction of habitat and, furthermore, the acts complained of were destruction of vegetation, which would only indirectly amount to disturbance. There has been a long history of disagree¬ment between the UK Government and European Commission over what is disturbance under the Directive and it was hoped that the judgment in this case would provide useful clarification. Unfortunately, one particular fact in the case largely prevented this from happening. This was the decision by Natural England, the body responsible for considering derogation from the disturbance measures, to withdraw its objection to the proposed development. In his judgment, Ward LJ seems to rely on this decision both to assist in interpreting the Directive and Regulations and to provide a justification for Hampshire County Council's planning decision.
FACTS OF THE CASE
The case was concerned with the potential impact of a new rapid transport bus service, the proposed route of which was along a disused railway track that had been left to grow wild since closure of the railway in 1969.3 The new bus line was proposed by Transport for South Hampshire, part of Hampshire County Council, in order to relieve severe congestion on roads in the area. Its construction would involve cutting a swathe of about 8-9 m wide along about 4 km of the vegetation. The old railway cutting and its embankments had become overgrown with shrubs and trees and provided a valuable wildlife habitat not least for several species of bats (all protected species under the Directive) which moved through the area on feeding expeditions and sometimes roosted in the trees. Planning permission was granted by Hampshire County Council and Mrs Morge, a local resident, applied for judicial review to quash the planning permission on the grounds, inter alia,4 that it breached the Habitats Directive. Her application was dismissed5 and she appealed.