Keywords: Habitats Directive, Conservation Regulations, bats, Natural England, deliberate disturbance of species. Habitats Directive, Article 12(l)(b).
FACTS OF THE CASE
Hampshire County Council granted planning permission to its agent. Transport for South Hampshire, for a busway along the route of a disused railway line. In the years since decommissioning of the line, vegetation had grown up and the land became of value for nature conservation principally for its populations of bats and badgers. Although it was not under any protective designation, it was surrounded by designated sites including a Site of Special Scientific Interest and a Special Protection Area. Natural England had originally objected to the proposed development, but withdrew their objection with respect to the bats following the completion of an Updated Bat Survey.'
Mrs Morgc brought judicial review proceedings against the Council on the grounds that it had acted unlawfully in granting planning permission because it had (a) failed to apply the Conservation (Natural Habitats, etc.) Regulations 1994 with respect to the protection of bats; (b) erred in law and/or acted unlawfully in deciding that the proposal was not an EIA development under the Town & Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 because it was unlikely to have significant environmental impacts and did not, therefore, necessitate an assessment, and (c) failed to take account of the harm that would be caused to badgers, which were protected under the Protection of Badgers Act 1992. In the High Court, Judge Bidder QC dismissed her application,2 but Sullivan LJ subsequently granted leave to appeal.
In the Court of Appeal,3 Ward LJ identified four issues raised by the appeal:
(1) The scope of Article 12(l)(b) of the Habitats Directive and what is meant by 'deliberate disturbance' of a protected species.
(2) The scope of Article 12(l)(d) of the Habitats Directive and in particular whether it is necessary to consider indirect as well as direct impact on the deterioration or destruction of the bats' breeding sites or resting places.
(3) Did the Planning Committee have due regard to the Habitats Directive as required by Regulation 3(4) of the Conservation (Natural Habitats, etc.) Regulations, as amended?
(4) Did the Planning Committee act rationally in deciding not to treat the proposal as an EIA development?4
As to the first issue, Ward LJ concluded that 'whether the disturbance will have a certain negative impact which is likely to be detrimental must be judged in the light of and having regard to the effect of the disturbance on the conservation status of the species, i.e. how the disturbance affects the long-term distribution and abundance of the population of bats'.5
Ward U was unequivocal in stating that deterioration or destruction under Article 12(1) (d) does not have to be deliberate6 and that Judge Bidder had erred on this point.7 He went on to conclude that the Article requires strict protection of breeding sites or resting places, i.e. defined sites as opposed to general habitat, and that it does not cover the loss of a potential site if the ecological functionality is safeguarded.