Hilary Term [2011] UKSC 2 On appeal from: 2010 EWCA Civ 608

 

JUDGMENT
Morge (FC) (Appellant) v Hampshire County
Council (Respondent)
before
Lord Walker
Lady Hale
Lord Brown
Lord Mance
Lord Kerr
JUDGMENT GIVEN ON
19 January 2011
Heard on 8 November 2010
Appellant Respondent
Charles George QC Neil Cameron QC
Gregory Jones
Sarah Sackman
Sasha White
(Instructed by Swain & Co
Solicitors)
(Instructed by Hampshire
County Council Legal
Services)
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LORD BROWN
1. This appeal concerns a planning permission granted on 29 July 2009 for a
proposed three mile (4.7km) stretch of roadway to provide a rapid bus service
between Fareham and Gosport in South East Hampshire. The permission was
challenged on environmental grounds including not least its likely impact on
several species of European protected bats inhabiting the general area around the
proposed busway. The challenge having failed before Judge Bidder QC (sitting as
a Deputy High Court judge) on 17 November 2009 – [2009] EWHC 2940 (Admin)
– and before the Court of Appeal (Ward, Hughes and Patten LJJ) on 10 June 2010
– [2010] EWCA Civ 608, [2010] PTSR 1882 – this Court on 27 July 2010 gave
the appellant limited permission to appeal so as to raise two issues of some general
importance.
2. Issue one concerns the proper interpretation of article 12 (1)(b) of the
Habitat’s Directive 92/43/EEC which provides that:
“Member States shall take the requisite measures to establish a
system of strict protection for the animal species listed [the protected
species] in their natural range, prohibiting . . . (b) deliberate
disturbance of these species, particularly during the period of
breeding, rearing, hibernation and migration; . . .”
3. Issue two concerns the proper application of regulation 3(4) of the
Conservation (Natural Habitats, etc) Regulations 1994 SI 1994/2716 (as amended
first by the Amendment Regulations 2007 and then the Amendment Regulations
2009), by which domestic effect is given to the Directive:
“3(4) . . . 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 [the requirements] may be affected by the
exercise of those functions.”
With that briefest of introductions let me turn to the essential factual context in
which these issues now arise, noting as I do so that altogether fuller descriptions of
the facts can be found in the judgments below.
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4. The proposed new rapid busway – the first and larger phase of which is
already substantially under way, applications for interlocutory relief to stay its
continuance having been refused by the Court of Appeal and refused by this Court
on granting leave to appeal – runs along the path of an old railway line, last used in
1991. The scheme provides for buses to be able to join existing roads at various
points along the route. It will create a new and efficient form of public transport to
the benefit of many residents, workers and visitors to the region. Central
Government has committed £20m to it.
5. Although most of the scheme lies within a built-up area, there are a number
of designated nature conservation sites nearby and, unsurprisingly, once the
railway line ceased to be used, the surrounding area became thickly overgrown
with vegetation and an ecological corridor for various flora and fauna. Although,
therefore, the scheme was widely supported, it also attracted a substantial number
of objectors one of whom is Mrs Morge, the appellant, who lives close by.
6. The respondent authority is both the local planning authority for the
relevant area and also the applicant for planning permission through its agent,
Transport for South Hampshire, who submitted a planning application on 31
March 2009. Taking it very shortly, on 30 April 2009 Natural England (the
Government’s adviser on nature conservation) objected to the planning application
in part because of their concerns about the impact of the development on bats (an
objection reiterated on 29 June 2009). As a result the respondent authority
commissioned an Updated Bat Survey (UBS) which was submitted on 9 July 2009.
On 17 July 2009, largely as a result of the UBS, Natural England withdrew their
objections. There then followed a Decision Report prepared by the respondent’s
planning officers, a further letter from Natural England dated 23 July 2009, an
Addendum Decision Report from the officers, and on 29 July 2009 a three hour
meeting of the respondent’s Regulatory Committee which concluded with the
grant of planning permission for the scheme by a majority of six to five with two
abstentions.
7. The UBS is a document of some 70 pages. For present purposes, however,
its main findings can be summarised as follows. No roosts were found on the site.
The removal of trees and vegetation, however, would result in a loss of good
quality bat foraging habitats. This would have a moderate adverse impact at local
level on foraging bats for some nine years, the impact thereafter reducing, because
of mitigating measures, to slight adverse/neutral. In addition the busway would
sever a particular flight path followed by common pipistrelle bats, increasing their
risk of collision with buses (without, however, given the proposed mitigation of
this risk, a significant impact on bats at a local level).
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8. The Officers’ Decision Report (again a lengthy document) included these
passages with regard to the bats:
“3.7 Detailed ecological surveys have been undertaken across the
site over the last eighteen months. . . . A number of bat species roost
and forage along the corridor . . . Accordingly, a strategy to mitigate
the impact on these species has been developed. The main principles
of the strategy [include] enhancement of the habitat of the retained
embankment to provide continued habitat for displaced species. Bat
surveys have also been carried out to enable appropriate measures to
be implemented.
. . .
5.6 Natural England initially raised objections on the grounds that
the application contains insufficient survey information to
demonstrate whether or not the development would have an adverse
effect on bats . . . which are [a] legally protected species. Further
survey work was undertaken in response to this objection and
provided to Natural England. Following receipt of this information
Natural England are now satisfied that the necessary information has
been provided and have withdrawn their objection. They recommend
that if the council is minded to grant permission for this scheme
conditions be attached requiring implementation of the mitigation
and compensation measures set out in the reports.
. . .
Nature Conservation Impact
8.17 . . . the requirements of the Habitats Regulations need to be
considered.
. . .
8.19. . . The surveys also identified the presence of a diversity of bat
species, which are protected, using the trees alongside the track for
foraging. An Updated Bat Survey Method Statement and Mitigation
Strategy has been submitted with measures to ensure there is no
significant adverse impact to them from these proposals.
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. . .
Conclusion
8.24 . . . suitable mitigation measures are proposed for . . . protected
species . . . ”
The Addendum Report dealt specifically with the Habitat Regulations and repeated
that Natural England, having initially objected to the application and required
further survey information regarding protected species, were now satisfied and had
withdrawn their objection.
9. Against this essential factual background I turn now to the two main issues
arising.
Issue 1 – the proper interpretation of article 12(1)(b) of the Habitat Directive
Article 12(1)(b) must, of course, be interpreted in the light of the Directive as a
whole. Included amongst the recitals in its preamble is this:
“Whereas, in the European territory of the member states, natural
habitats are continuing to deteriorate and an increasing number of
wild species are seriously threatened; whereas given that the
threatened habitats and species form part of the Community’s natural
heritage and the threats to them are often of a trans- boundary nature,
it is necessary to take measures at Community level in order to
conserve them”.
10. Article 1 is the definition article and defines “species of Community
interest” in four categories, respectively “endangered”, “vulnerable”, “rare”, and
“endemic and requiring particular attention [for various specified reasons]”. The
six species of protected bats affected by the proposed busway fall variously into
the second, third and fourth of those categories. Article 1(i) defines “conservation
status of a species” to mean “the sum of the influences acting on the species
concerned that may affect the long-term distribution and abundance of its
populations”. It further provides:
“The conservation status will be taken as ‘favourable’ when:
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population dynamics data on the species concerned indicate that it is
maintaining itself on a long-term basis as a viable component of its
natural habitats, and
the natural range of the species is neither being reduced nor is likely
to be reduced for the foreseeable future, and
there is, and will probably continue to be, a sufficiently large habitat
to maintain its populations on a long-term basis”.
Article 2(2) provides that: “Measures taken pursuant to this Directive shall be
designed to maintain or restore, at favourable conservation status, natural habitats
and species of wild fauna and flora of Community Interest.”
11. There then follow articles 3 to 11 under the head “Conservation of natural
habitats and habitats of species”. Within these provisions one should note article
6(2):
“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.”
12. Articles 12 to 16 inclusive then follow under the head “Protection of
species”. I have already set out article 12(1)(b). Article 16 provides for derogation
and so far as material provides:
“16(1) Provided that that there is no satisfactory alternative and the
derogation is not detrimental to the maintenance of the populations
of the species concerned at a favourable conservation status in their
natural range, member states may derogate from the provisions of
articles 12 . . . : . . . (c) in the interests of public health and public
safety, or for other imperative reasons of overriding public interest,
including those of a social or economic nature and beneficial
consequences of primary importance for the environment”.
13. Besides the issues now before us the Court of Appeal had to deal in addition
with challenges based upon article 12(1)(d) of the Directive and upon the
respondent’s decision not to treat the proposal as an EIA development (matters
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upon which this court refused leave to appeal). Ward LJ gave the only reasoned
judgment, one of infinite care and thoughtfulness and, I may add, one of enormous
assistance to this Court in its consideration of this further appeal.
14. As a background to deciding the meaning of article 12(1)(b), Ward LJ
necessarily had regard to the European Commission’s views upon the scope of the
Directive, as set out in a Guidance document issued in February 2007 which
include the following:
“(37) Disturbance (e.g. by noise, source of light) does not necessarily
directly affect the physical integrity of a species but can nevertheless
have an indirect negative effect on the species (eg by forcing them to
use lots of energy to flee; bats, for example, when disturbed during
hibernation, heat up as a consequence and take flight, so are less
likely to survive the winter due to high loss of energy resources).
The intensity, duration and frequency of repetition of disturbances
are important parameters when assessing their impact on a species.
Different species will have different sensitivities or reactions to the
same type of disturbance, which has to be taken into account in any
meaningful protection system. Factors causing disturbance for one
species might not create disturbance for another. Also, the sensitivity
of a single species might be different depending on the season or on
certain periods of its life cycle e.g. (breeding period). Article
12(1)(b) takes into account this possibility by stressing that
disturbances should be prohibited particularly during the sensitive
periods of breeding, rearing, hibernation and migration. Again, a
species-by-species approach is needed to determine in detail the
meaning of ‘disturbance’.
(38) The disturbance under article 12(1)(b) must be deliberate . . .
and not accidental. On the other hand, while ‘disturbance’ under
article 6(2) must be significant, this is not the case in article 12(1),
where the legislator did not explicitly add this qualification. This
does not exclude, however, some room for manoeuvre in
determining what can be described as disturbance. It would also
seem logical that for disturbance of a protected species to occur a
certain negative impact likely to be detrimental must be involved.
(39) In order to assess a disturbance, consideration must be given to
its effect on the conservation status of the species at population level
and biogeographic level in a member state . . .. For instance, any
disturbing activity that affects the survival chances, the breeding
success or the reproductive ability of a protected species or leads to a
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reduction in the occupied area should be regarded as a ‘disturbance’
in terms of article 12. On the other hand, sporadic disturbances
without any likely negative impact on the species, such as for
example scaring away a wolf from entering a sheep enclosure in
order to prevent damage, should not be considered as disturbance
under article 12. Once again, it has to be stressed that the case by
case approach means that the competent authorities will have to
reflect carefully on the level of disturbance to be considered harmful,
taking into account the specific characteristics of the species
concerned and the situation, as explained above.”
No problem arises as to what is meant by “deliberate” in article 12(1)(b). As stated
by the Commission in paragraph 33 of their Guidance:
“‘Deliberate’ actions are to be understood as actions by a person who
knows, in light of the relevant legislation that applies to the species
involved, and the general information delivered to the public, that his
action will most likely lead to an offence against the species, but
intends this offence or, if not, consciously accepts the foreseeable
results of his action.”
Put more simply, a deliberate disturbance is an intentional act knowing that it will
or may have a particular consequence, namely disturbance of the relevant
protected species. The critical, and altogether more difficult, question is what
precisely in this context is meant by “disturbance”.
15. Having, as I too have sought to do, thus cleared the ground and recognised
that the central difficulty in the case lies in determining the level of disturbance
required to fall within the prohibition, Ward LJ rejected the appellant’s contention
that any disturbing activity save only that properly to be characterised as de
minimis – too negligible for the law to be concerned with – constitutes disturbance
within the article. As Ward LJ pointed out, the example given in paragraph 38 of
the Commission’s Guidance (scaring away a wolf from the sheep fold) “must be
an a fortiori, rather than a typical one”. The judgment then continues (and I make
no apology for quoting it at some length):
“35 . . . the disturbance does not have to be significant but, as para
38 of the guidance explains, there must be some room for manoeuvre
which suggests the threshold is somewhere between de minimis and
significant. It must be certain, that is to say, identifiable. It must be
real, not fanciful. Something above a discernible disturbance, not
necessarily a significant one, is required. Given that there is a
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spectrum of activity, the decision-maker must exercise his or her
judgment consistently with the aim to be achieved. Given the broad
policy objective which I explored . . . above [‘to ensure that the
population of the species is maintained at a level which will ensure
the species’ conservation so as to protect the distribution and
abundance of the species in the long term’], disturbing one bat, or
even two or three, may or may not amount to disturbance of the
species in the long term. It is a matter of fact and degree in each
case.
36 [Counsel for the appellant] seizes on the words in para 38 . . . of
the guidance, ‘a certain negative impact likely to be detrimental must
be involved and he elevates this statement into a test for establishing
a disturbance. His difficulty is that that does not answer the critical
question: when does the negative impact become detrimental? Para
39 seems to me to spell out the proper approach, namely to give
consideration to the ‘effect on the conservation status of the species
at population level and bio-geographic level’. This in my judgment is
an important refinement. The impact must be certain or real, it must
be negative or adverse to the bats and it will be likely to be
detrimental when it negatively or adversely effects the conservation
status of the species. ‘Conservation status of a species’ is a term of
art which . . . means the sum of the influences acting on the species
concerned that may affect the long-term distribution and abundance
of its population. That is why the guidance at para 39 makes the
point that the disturbing activity must be such as ‘affects the survival
chances . . . of a protected species’. Furthermore, ‘the competent
authorities will have to reflect carefully on the level of disturbance to
be considered harmful, taking into account the specific
characteristics of the species concerned and the situation’, to quote
the concluding sentence of para 39. The summary in the guidance . .
. has the same emphasis:
‘Disturbance is detrimental for a protected species eg
by reducing survival chances, breeding success or
reproductive ability. A species-by-species approach
needs to be taken as different species will react
differently to potentially disturbing activities.’
37. Having regard to the aim and purpose of the Directive and of
article 16 and having due consideration of the guidance, I am driven
to conclude that for there to be disturbance within the meaning of
article 12(1)(b) that disturbance must have a detrimental impact so as
to affect the conservation status of the species at population level. . ..
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. . .
39. In my judgment 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, ie, how the disturbance affects the
long-term distribution and abundance of the population of bats. I
remind myself that according to the [Commission’s] guidance . . . ,
‘favourable conservation status could be described as a situation
where a . . . species is doing sufficiently well in terms of quality and
quantity and has good prospects of continuing to do so in the future’.
Whether there is a disturbance of the species must be judged in that
light.”
16. Finally, in a passage in the judgment headed Overall Conclusions, Ward LJ,
expressing himself satisfied that the respondent’s planning committee had due
regard to the requirements of the Directive, said this:
“73. I have been troubled by the fact that the conclusion of the bat
survey upon which such reliance was placed is to the effect that no
significant impacts to bats are anticipated. The disturbance does not
have to be significant and this is a misdirection or misunderstanding
of . . . [article] 12(1)(b) . . . of the Habitats Directive. The question
for me is, therefore, whether the conclusions can be upheld. I am
satisfied that the decision of the planning committee should not be
quashed.
74. I reach that conclusion for these reasons. I am satisfied that the
loss of foraging habitat occasioned by cutting a swathe through the
vegetation does not offend article 12(1)(b) which is concerned with
protection of the species not with conservation of the species’ natural
habitats. I am satisfied that that bald statement that the bats have to
travel further and expend more energy in foraging does not justify a
conclusion that the conservation status of the bats is imperilled or at
risk. There is no evidence which would allow the planning
committee to conclude that the long-term distribution and abundance
of the bat population is at risk. There is no evidence that they will
lose so much energy (as they might when disturbed during
hibernation) that the habitat will not still provide enough sustenance
for their survival, or their survival would be in jeopardy. There is no
evidence that the population of the species will not maintain itself on
a long-term basis. There is therefore no evidence of any activity
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which would as a matter of law constitute a disturbance as the word
has to [be] understood.
75. As I have already concluded, the risk of collision cannot amount
to a disturbance and article 12(1)(b) is not engaged in that respect.”
17. Mr George QC submits that the Court of Appeal were wrong to hold that
article 12(1)(b) is breached only when the activity in question goes so far as to
imperil the conservation status of the species at population level i.e. that only then
does the activity amount to a “disturbance” of the species. This, he points out (and,
indeed, Ward LJ himself recognised), puts the threshold for engaging the article
higher than Mr Cameron QC for the respondent put it, Mr Cameron’s main
concern being that such a construction would sit uneasily with article 16 (1) (a
provision which itself necessarily implies that article 12(1)(b) may need to be, and
be capable of being, derogated from notwithstanding that this is only permissible
where it is “not detrimental to the maintenance of the populations of the species
concerned at a favourable conservation status”). The Court of Appeal’s
construction is also, submits Mr George, inconsistent with an Additional Reasoned
Opinion addressed to the UK by the Commission dated 18 September 2008 with
regard inter alia to what was then the new Regulation 39(1), inserted by the 2007
Amendment Regulations, providing for an offence where someone “deliberately
disturbs wild animals of any species in such a way as to be likely significantly to
affect (i) the ability of any significant group of animals of that species to survive,
breed or rear or nurture their young . . .”. The prohibition in the Directive, the
Commission pointed out in their Opinion, “is not limited to significant
disturbances of significant groups of animals”. Article 12(1)(b) of the Directive,
the Opinion later suggested, “covers all disturbance of protected species.”
18. Whilst not actually conceding that the Court of Appeal approach is wrong,
Mr Cameron contends now that the proper approach is to ask whether the activity
in question produces “a certain negative impact likely to be detrimental to the
species having regard to its effect on the conservation status of the species”.
19. In my judgment certain broad considerations must clearly govern the
approach to article 12(1)(b). First, that it is an article affording protection
specifically to species and not to habitats, although obviously, as here, disturbance
of habitats can also indirectly impact on species. Secondly, and perhaps more
importantly, the prohibition encompassed in article 12(1)(b), in contrast to that in
article 12(1)(a), relates to the protection of “species”, not the protection of
“specimens of these species”. Thirdly, whilst it is true that the word “significant”
is omitted from article 12(1)(b) – in contrast to article 6(2) and, indeed, article
12(4) which envisages accidental capture and killing having “a significant negative
impact on the protected species” – that cannot preclude an assessment of the nature
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and extent of the negative impact of the activity in question upon the species and,
ultimately, a judgment as to whether that is sufficient to constitute a “disturbance”
of the species. Fourthly, it is implicit in article 12(1)(b) that activity during the
period of breeding, rearing, hibernation and migration is more likely to have a
sufficient negative impact on the species to constitute prohibited “disturbance”
than activity at other times.
20. Beyond noting these broad considerations it seems to me difficult to take
the question of the proper interpretation and application of article 12(1)(b) much
further than it is taken in the Commission’s own Guidance document. (The
Commission’s suggestion in their September 2008 Additional Reasoned Opinion
that article 12(1)(b) “covers all disturbance of protected species” in truth begs
rather than answers the question as to what activity in fact constitutes such
“disturbance” and cannot sensibly be thought to involve a departure from their
2007 Guidance.) Clearly the illustrations given in paragraph 39 of the Guidance –
on the one hand “any disturbing activity that affects the survival chances, the
breeding success or the reproductive ability of a protected species or leads to a
reduction in the occupied area”, on the other hand “scaring away a wolf from
entering a sheep enclosure” – represent no more than the ends of the spectrum
within which the question arises as to whether any given activity constitutes a
disturbance. Equally clearly, to my mind, the suggestion in paragraph 39 that
“consideration must be given to its effect [the effect of the activity in question] on
the conservation status of the species at population level and biogeographic level”
does not carry with it the implication that only activity which does have an effect
on the conservation status of the species (i.e. which imperils its favourable
conservation status) is sufficient to constitute “disturbance”.
21. I find myself, therefore, in respectful disagreement with Ward LJ’s
conclusion (at para 37) “that for there to be disturbance within the meaning of
article 12(1)(b) that disturbance must have a detrimental impact so as to affect the
conservation status of the species at population level”. Nor can I accept his view
(at para 36) that “the guidance, at para 39, makes the point that the disturbing
activity must be such as ‘affects the survival chances . . . of a protected species’”.
On the contrary, as I have already indicated, para 39 of the guidance uses
disturbing activity of that sort merely to illustrate one end of the spectrum. Rather
the guidance explains that, within the spectrum, every case has to be judged on its
own merits. A “species-by-species approach is needed” and, indeed, even with
regard to a single species, the position “might be different depending on the season
or on certain periods of its life cycle” (para 37 of the guidance). As para 39 of the
guidance concludes: “it has to be stressed that the case-by-case approach means
that the competent authorities will have to reflect carefully on the level of
disturbance to be considered harmful, taking into account the specific
characteristics of the species concerned and the situation, as explained above.”
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22. Two further considerations can, I think, usefully be identified to be borne in
mind by the competent authorities deciding these cases (considerations which
seem to me in any event implicit in the Commission’s Guidance). First (and this I
take from a letter recently written to the respondent by Mr Huw Thomas, Head of
the Protected and Non-Native Species Policy at DEFRA, the Department
responsible for policy with regard to the Directive): “Consideration 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 a particular protected species.
Individuals of a rare species are more important to a local population than
individuals of more abundant species. Similarly, disturbance to species that are
declining in numbers is likely to be more harmful than disturbance to species that
are increasing in numbers.”
23. Second (and this is now enshrined in Regulation 41(2) of the Conservation
of Habitats and Species Regulations 2010 SI 2010/490):
“41(2) . . . disturbance of animals includes in particular any
disturbance which is likely (a) to impair their ability (i) to survive, to
breed or reproduce, or to rear or nurture their young, or (ii) in the
case of animals of a hibernating or migratory species, to hibernate or
migrate; or (b) to affect significantly the local distribution or
abundance of the species to which they belong.”
Note, however, that disturbing activity likely to have these identified consequences
is included “in particular” in the prohibition; it does not follow that other activity
having an adverse impact on the species may not also offend the prohibition.
24. In summary, therefore, whilst I prefer Mr Cameron’s suggested approach to
this article (see para 18 above) than that adopted by the Court below or that
contended for by Mr George, it seems to me in the last analysis somewhat
simplistic. To say that regard must be had to the effect of the activity on the
conservation status of the species is not to say that it is prohibited only if it does
affect that status. And the rest of the formulation is hardly illuminating.
25. Tempting although in one sense it is to refer the whole question as to the
proper interpretation and application of article 12(1)(b) to the Court of Justice of
the European Union pursuant to article 267 of the Lisbon Treaty, I would not for
my part do so. It seems to me unrealistic to suppose that the Court of Justice would
feel able to provide any greater or different assistance than we have here sought to
give.
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Issue Two – The proper application of Regulation 3(4) of the 1994 Regulations (as
amended)
26. I can deal with this issue altogether more briefly. Article 12(1) requires
member states to “take the requisite measures to establish a system of strict
protection for the animal species listed in Annex IV(a) in their natural range”.
Wisely or otherwise, the UK chose to implement the Directive by making a breach
of the article 12 prohibition a criminal offence. 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.
27. 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.
28. Ward LJ dealt with this question in paragraph 61 of his judgment as
follows:
“61. The Planning Committee must grant or refuse planning
permission in such a way that will ‘establish a system of strict
protection for the animal species listed in Annex IV(a) in their
natural range . . .’ If in this case the committee is satisfied that the
development will not offend article 12(1)(b) or (d) it may grant
permission. If satisfied that it will breach any part of article 12(1) it
must then consider whether the appropriate authority, here Natural
England, will permit a derogation and grant a licence under
regulation 44. Natural England can only grant that licence if it
concludes that (i) despite the breach of regulation 39 (and therefore
of article 12) there is no satisfactory alternative; (ii) the development
will not be detrimental to the maintenance of the population of bats
at favourable conservation status and (iii) the development should be
permitted for imperative reasons of overriding public importance. If
the planning committee conclude that Natural England will not grant
a licence it must refuse planning permission. If on the other hand it
is likely that it will grant the licence then the planning committee
may grant conditional planning permission. If it is uncertain whether
or not a licence will be granted, then it must refuse planning
permission.”
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29. In my judgment this goes too far and puts too great a responsibility on the
Planning Committee whose only obligation under regulation 3(4) is, I repeat, to
“have regard to the requirements of the Habitats Directive so far as [those
requirements] may be affected by” their decision whether or not to grant a
planning permission. Obviously, in the days when the implementation of such a
permission provided a defence to the regulation 39 offence of acting contrary to
article 12(1), the Planning Committee, before granting a permission, would have
needed to be satisfied either that the development in question would not offend
article 12(1) or that a derogation from that article would be permitted and a licence
granted. Now, however, I cannot see why a planning permission (and, indeed, a
full planning permission save only as to conditions necessary to secure any
required mitigating measures) should not ordinarily be granted save only in cases
where the Planning Committee conclude that the proposed development would
both (a) be likely to offend article 12(1) and (b) be unlikely to be licensed pursuant
to the derogation powers. After all, even if development permission is given, the
criminal sanction against any offending (and unlicensed) activity remains available
and it seems to me wrong in principle, when Natural England have the primary
responsibility for ensuring compliance with the Directive, also to place a
substantial burden on the planning authority in effect to police the fulfilment of
Natural England’s own duty.
30. Where, as here, Natural England express themselves satisfied that a
proposed development will be compliant with article 12, the planning authority are
to my mind entitled to presume that that is so. The Planning Committee here
plainly had regard to the requirements of the Directive: they knew from the
Officers’ Decision Report and Addendum Report (see para 8 above and the first
paragraph of the Addendum Report as set out in para 72 of Lord Kerr’s judgment)
not only that Natural England had withdrawn their objection to the scheme but also
that necessary measures had been planned to compensate for the loss of foraging.
For my part I am less troubled than Ward LJ appears to have been (see his para 73
set out at para 16 above) about the UBS’s conclusions that “no significant impacts
to bats are anticipated” – and, indeed, about the Decision Report’s reference to
“measures to ensure there is no significant adverse impact to [protected bats]”. It is
certainly not to be supposed that Natural England misunderstood the proper ambit
of article 12(1)(b) nor does it seem to me that the planning committee were
materially misled or left insufficiently informed about this matter. Having regard
to the considerations outlined in para 29 above, I cannot agree with Lord Kerr’s
view, implicit in paras 75 and 76 of his judgment, that regulation 3(4) required the
committee members to consider and decide for themselves whether the
development would or would not occasion such disturbance to bats as in fact and
in law to constitute a violation of article 12(1)(b) of the Directive.
31. Even, moreover, had the Planning Committee thought it necessary or
appropriate to decide the question for themselves and applied to article 12(1)(b)
Page 16
the less exacting test described above rather than Ward LJ’s test of imperilling the
bats’ conservation status, there is no good reason to suppose that they would not
have reached the same overall conclusion as expressed in paras 74 and 75 of Ward
LJ’s judgment (see para 16 above).
32. I would in the result dismiss this appeal.
LORD WALKER
33. For the reasons given in the judgment of Lord Brown, with which I agree,
and for the further reasons given by Lady Hale and Lord Mance, I would dismiss
this appeal.
LADY HALE
34. On the first issue, I have nothing to add to the judgment of Lord Brown,
with which I agree. I also agree with him on the second issue, but add a few
observations of my own because we are not all of the same mind.
35. The issue is whether the Regulatory Committee of Hampshire County
Council (the planning authority for this purpose) complied with their duty to “have
regard to the requirements of the Habitats Directive so far as they may be affected
by the exercise” of their planning functions (Conservation (Natural Habitats etc)
Regulations 1994, reg 3(4); see also Conservation and Species and Habitats
Regulations 2010, reg 9(5)). It is, of course, always important that the legal
requirements are properly complied with, perhaps the more so in cases such as
this, where the County Council is both the applicant for planning permission and
the planning authority deciding whether it should be granted.
36. Some may think this an unusual and even unsatisfactory situation, but it
comes about because in this country planning decisions are taken by
democratically elected councillors, responsible to, and sensitive to the concerns of,
their local communities. As Lord Hoffmann put it in R (Alconbury Developments
Ltd and others) v Secretary of State for the Environment, Transport and the
Regions [2001] UKHL 23, [2003] 2 AC 295, para 69, “In a democratic country,
decisions about what the general interest requires are made by democratically
elected bodies or persons accountable to them.” Democratically elected bodies go
about their decision-making in a different way from courts. They have professional
advisers who investigate and report to them. Those reports obviously have to be
Page 17
clear and full enough to enable them to understand the issues and make up their
minds within the limits that the law allows them. But the courts should not impose
too demanding a standard upon such reports, for otherwise their whole purpose
will be defeated: the councillors either will not read them or will not have a clear
enough grasp of the issues to make a decision for themselves. It is their job, and
not the court’s, to weigh the competing public and private interests involved.
37. It is important to understand the chronology in this case. The planning
application was dated 31 March 2009. Natural England was consulted. Their first
reply is dated 30 April. In it they objected to the application on the ground that
“that the application contains insufficient survey information to demonstrate
whether or not the development would have an adverse effect on legally protected
species”. Specifically, they were concerned about the impact upon bats and great
crested newts. Reference was made to “the impacts of the development and
mitigation upon European Protected Species” and the council were reminded of,
among other things, their duty under regulation 3(4). This objection was
maintained in a letter dated 29 June 2009.
38. Further information on Great Crested Newts and the Updated Bat Survey
were submitted in early July in response to this. Based on this information, Natural
England wrote on 17 July 2009 withdrawing their objection, subject to
recommendations about the conditions to be imposed if planning permission were
granted. This letter also contained comments about common widespread reptiles
and asking that these too be addressed although Natural England was not lodging
an objection in relation to them.
39. Natural England wrote again on 23 July with their “final response” to the
proposal. This dealt, first, with the fact that the site was close to the Portsmouth
Harbour Site of Special Scientific Interest, itself part of the Portsmouth Harbour
Special Protection Area and Ramsar site and gave their advice on the requirements
of regulation 48(1)(a) of the Habitats Regulations. Regulation 48(1)(a) imposes a
specific obligation on planning authorities, among others, to make an “appropriate
assessment” of the implications for a European protected site before granting
permission for a proposal which is likely to have a significant effect upon the site.
The letter advised that, provided that specified avoidance measures were fully
implemented, the proposal would not be likely to have a significant effect upon the
protected sites. Thus they had no objection on this score and permission could be
granted. The letter went on to deal with “Protected species and biodiversity” under
a separate heading, repeated that they had withdrawn their objection subject to the
implementation of all the recommended mitigation, but reminded the council that
“whilst we have withdrawn our objection to the scheme in relation to European
protected species, we have ongoing concerns regarding other legally protected
species on site . . .” A separate paragraph went on to deal with biodiversity.
Page 18
40. The Officer’s Report was prepared for the Committee meeting, which was
due to take place on 29 July 2009, before receipt of the letter of 23 July. It is 31
pages long. The executive summary lists “the main issues raised”, including
“concern at the procedure because this is a County Council scheme” and “nature
conservation impact” (para 1.4). The account of the “Proposals” refers to the
detailed ecological surveys undertaken, including the bat surveys “carried out to
enable appropriate measures to be implemented”; but states that the impact on the
designated sites would be negligible (para 3.7). The section on “Consultations”
includes a paragraph explaining that Natural England had initially objected “on the
grounds that the application contains insufficient survey information to
demonstrate whether or not the development would have an adverse effect on bats
and great crested newts which are legally protected species” but that they had
withdrawn their objection after further survey work was undertaken (para 5.6).
41. The section on “Nature conservation impact” deals first with the proximity
to the protected sites and points out that the requirements of the Habitats
Regulations needed to be considered (para 8.17). This is a reference to the specific
obligation in regulation 48(1)(a). It went on to explain why it was thought that an
“appropriate assessment” was not needed, noting that Natural England had raised
no concerns about any impact on these sites (para 8.18). The report then turns to
the corridor itself, referring to the Environmental Report submitted with the
application, which dealt with badgers, bats, great crested newts, and reptiles; on
bats, it states that “An Updated Bat Survey Method Statement and Mitigation
Strategy has been submitted with measures to ensure there is no significant adverse
impact to them for these proposals” (para 8.19).
42. The report concludes by recommending that no appropriate assessment is
required under the Habitats Regulations (para 9.2); that planning permission be
granted (para 9.3); and that the proposed development accords with the
Development Plan and the relevant Policies, because, among other things “suitable
mitigation measures are proposed for badgers and protected species” (para 9.4).
There is a cross reference to the annexed policy C18 on Protected Species, which
states that “Development which would adversely affect species, or their habitats,
protected by the Habitats Regulations 1994, the Wildlife and Countryside Act
1981 or other legislation will not be permitted unless measures can be undertaken
which prevent harm to the species or damage to the habitats. Where appropriate, a
permission will be conditioned or a legal agreement sought to secure the protection
of the species or their [habitat].”
43. After receiving the letter from Natural England dated 23 July, an addendum
to the report was prepared, dealing with three issues which had arisen since the
report was finalised. Under the heading “Habitats Regulations” it deals first with
the objections raised by Natural England “requiring additional survey information
concerning potential for the presence of great crested newts and bats, which are
Page 19
protected species”. It points out that the survey work was undertaken and Natural
England had withdrawn their objection. In two separate paragraphs, it goes on to
explain that Natural England had now given specific advice on the requirements of
regulation 48(1)(a) (thus reinforcing the recommendation made in para 9.2 of the
main report).
44. It is quite clear from all of this that separate consideration was being given
both to the effect upon European protected species and to the effect upon the
protected sites, that both were being considered under the Habitats Regulations,
and that the applicable Policy on Protected Species, which also refers to the
Habitats Regulations 1994, was being applied. It is true that the report does not
expressly mention either regulation 3(4) or article 12 of the Directive. In my view,
it is quite unnecessary for a report such as this to spell out in detail every single
one of the legal obligations which are involved in any decision. Councillors were
being advised to consider whether the proposed development would have an
adverse effect on species or habitats protected by the 1994 Regulations. That in my
view is enough to demonstrate that they “had regard” to the requirements of the
Habitats Directive for the purpose of regulation 3(4). That is all they have to do in
this context, whereas regulation 48(1)(a) imposes a more specific obligation to
make an “appropriate assessment” if a proposal is likely to have a significant effect
upon a European site. It is not surprising, therefore, that the report deals more
specifically with that obligation than it does with the more general obligation in
regulation 3(4).
45. Furthermore, the United Kingdom has chosen to implement article 12 of the
Directive by creating criminal offences. It is not the function of a planning
authority to police those offences. Matters would, as Lord Brown points out, have
been different if the grant of planning permission were an automatic defence. But
it is so no longer. And it is the function of Natural England to enforce the Directive
by prosecuting for these criminal offences (or granting licences to derogate from
the requirements of the Directive). The planning authority were entitled to draw
the conclusion that, having been initially concerned but having withdrawn their
objection, Natural England were content that the requirements of the Regulations,
and thus the Directive, were being complied with. Indeed, it seems to me that, if
any complaint were to be made on this score, it should have been addressed to
Natural England rather than to the planning authority. They were the people with
the expertise to assess the meaning of the Updated Bat Survey and whether it did
indeed meet the requirements of the Directive. The planning authority could
perhaps have reached a different conclusion from Natural England but they were
not required to make their own independent assessment.
46. But if I am wrong about this, and the planning authority did have to make
an independent assessment in terms of article 12(1)(b), there is absolutely no
reason to think that they would have reached a different conclusion and refused
Page 20
planning permission on this account. They may have reached their decision by a
majority of six votes to five. But the Minutes make it clear that there were a great
many other problems to worry about with this scheme. While the “impact on
nature” was among the many matters upon which members questioned officers,
this was not one of their listed concerns. If this scheme was not going to get
planning permission, it would be because of the local residents’ concerns about the
impact upon them rather than because of the members’ concerns about the impact
upon the bats.
47. I would therefore dismiss this appeal on both issues.
LORD MANCE
48. I agree with the reasoning and conclusions of Lord Brown and Lady Hale
on each of the issues. I add only a few words because the court is divided on the
second.
49. Lord Kerr’s dissent on this issue is, I understand, based on the premise that
(a) Natural England had not expressed a view that the proposal would not involve
any breach of the Habitats Directive, and (b) if it had, the planning committee was
not informed of this: see his paras 73 and 74.
50. For the reasons given in Lord Brown’s and Lady Hale’s judgments, I cannot
agree with either aspect of this premise.
51. I add the following in relation to the suggestion that Natural England was,
in its letter of 17 July 2009, “preoccupied with matters that were quite separate
from the question whether there would be disturbance to bats such as would be in
breach of article 12 of the Directive” or that the letter was “principally taken up
with the question of possible impact on common widespread reptiles” (para 69
below).
52. It is true that the longer part of the text of the letter of 17 July related to the
latter topic, in relation to which Natural England at the end of the letter made clear
it was not lodging an objection, but was only asking that further attention be given
and comments supplied. But the first, and in the circumstances obviously more
significant, aspect of the letter consisted in its first three paragraphs. These
withdrew Natural England’s previous objection made on 30 April and reiterated on
29 June in relation to great crested newts and bats. The withdrawal was in the light
of the information, including the Updated Bat Survey, which the Council had
Page 21
earlier in July supplied. In withdrawing their objection, Natural England
emphasised the importance of the mitigation procedures outlined in section 10 of
the Survey, and added the further recommendation that the Council look closely at
the requirement for night working and keep any periods of such working “to an
absolute minimum”. This confirms the attention it gave to the information
supplied.
53. When making its objection in its letter dated 30 April, Natural England had
said:
“Our concerns relate specifically to the likely impact upon bats and
Great Crested Newts. The protection afforded these species is
explained in Part IV and Annex A of Circular 06/2005 ‘biodiversity
and Geological Conservation – Statutory Obligations and their
Impact within the Planning System’”.
Part IV of Circular 06/2005 stated that the Habitats Regulations Conservation
(Natural Habitats &c.) Regulations 1994 implemented the requirements of the
Habitats Directive and that it was unlawful under regulation 39 deliberately to
disturb a wild animal of a European protected species. Annex A identified all
species of bats as wild animals of European protected species.
54. It is therefore clear that Natural England was, from the outset, focusing on
the protected status of all species of bats under the Directive and domestic law; and
that its withdrawal of its objection on 17 July was directly relevant to the planning
committee’s performance of its role under regulation 3(4) to “have regard to the
requirements of” that Directive in the exercise of its functions. The planning
officer’s first report dated 29 July summarised the position for the planning
committee in accurate terms. Thereafter, as Lord Brown and Lady Hale record,
Natural England’s further letter dated 23 July arrived, reiterating Natural
England’s as position stated in its letter dated 17 July. This too was again
accurately summarised to the committee by the planning officer in his addendum
dated 29 July to his previous report.
55. With regard to the Updated Bat Survey, there is no reason to believe that
Natural England did not, when evaluating this, understand both the legal
requirements and their general role and responsibilities at the stage at which they
were approached by the Council. The Survey repays study as a whole, and I
merely make clear that I do not share the scepticism which Lord Kerr feels about
some of its statements or agree in all respects with his detailed account of its terms
and their effect. The important point is, however, is that Natural England was well
placed to evaluate this Survey, and, having done so, gave the advice they did. This
Page 22
was, in substance, accurately communicated to the planning committee, in a
manner to which the committee was entitled to have, and must be assumed to have
had, regard.
56. In addition to my agreement with the other parts of Lord Brown’s and Lady
Hale’s judgments, I confirm my specific agreement with Lady Hale’s penultimate
paragraph.
LORD KERR
57. As legislative provisions go, regulation 3 (4) of the Conservation (Natural
Habitats, &c.) Regulations 1994 (the Habitats Regulations) is relatively
straightforward. Its terms are uncomplicated and direct. It provides: –
“(4) … 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.”
58. 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. What lies at the heart of this appeal is whether the regulatory
committee of Hampshire County Council, when it came to make the decision
whether to grant the planning permission involved in this case, either had regard
itself to the requirements of the Habitats Directive or had sufficient information to
allow it to conclude that some other agency, in whose judgment it could repose
trust, had done so and had concluded that no violation arose.
59. An old and currently disused railway line runs between Gosport and
Fareham in South Hampshire. A section of this, between Redlands Lane, Fareham
and Military Road, Gosport is some 4.7 kilometres in length. On 31 March 2009
Hampshire County Council, acting on behalf of Transport for South Hampshire,
applied for planning permission to develop this section in order to create what is
described as a “busway”. Transport for South Hampshire is a name used to
describe three local authorities, Hampshire County Council, Gosport Borough
Page 23
Council and Fareham Borough Council. Planning permission was granted on 29
July 2009
60. At present there is serious congestion on the main road between Gosport
and Fareham. It is planned that the busway should operate by allowing buses to
join existing roads at various points along the route and that a fast, efficient and
reliable public transport service will ensue. It will also be possible to cycle on the
route. Local residents will be encouraged to use buses and bicycles in preference to
their private vehicles and it is hoped that the congestion will thereby be relieved.
The busway is to be constructed in two phases, 1A and 1B. Clearance work for the
first of these is already underway and funding is available to complete this phase.
The second phase does not yet have funding. Its future development is not assured.
61. The railway line along which the busway is to be developed was closed as a
result of recommendations made in the Beeching report of 1963. It appears that
closure did not finally take effect until June 1991, however. In that month the last
train ran along the line. Since then the area has become overgrown. It is now
regarded as “an ecological corridor for various flora and fauna”. Several species of
bats fly through and forage in the area but no bat roosts have been found on the
planning application site itself. There are two bat roosts in proximity to the route,
one in Savernake Close, near the southern section of Phase 1A, the other at Orange
Grove which is close to the northern section of Phase 1B
62. All bats are European Protected Species, falling within Annex IV (a) of
Council Directive 92/43/EEC (the Habitats Directive). Article 12 of this Directive
requires Member States to “take the requisite measures to establish a system of
strict protection for the animal species” listed in the annex. The Conservation
(Natural Habitats, &c.) Regulations 1994 were made for the purpose of
implementing the Habitats Directive. The regulations prescribe a number of
measures (most notably in relation to this case, Regulation 39) which seek to
achieve this level of protection. Derogation from these measures is permitted to
those who obtain a licence from the appropriate authority. Natural England is the
nature conservation body specified in the regulations as the licensing authority in
relation to European protected species.
63. Although the issue of a licence is quite separate from the grant of planning
permission, Natural England is regularly consulted on applications for
development where the Habitats Directive and the regulations are likely to be in
play and so it was that in April 2009 a letter was sent by the environment
department of the Council seeking Natural England’s views about the proposal. On
30 April 2009, Natural England replied, objecting to the scheme and
recommending that planning permission be refused.
Page 24
64. Bat surveys had been undertaken in 2008. These considered the suitability
of the habitat for bats; they also examined how bats used the site and which
species of bats were present. Clearly, however, the detail of the information
yielded by these surveys was insufficient to satisfy Natural England’s requirements
for it stated that the application contained “insufficient survey information to
demonstrate whether or not the development would have an adverse effect on
legally protected species”. The letter also recommended that the local planning
authority should consider all the points made in an annex that was attached to the
letter. This provided guidance on survey requirements and on how the authority
should fulfil its duties on “biodiversity issues under [among others] … Regulation
3 (4) of The Conservation (Natural Habitats &c.) Regulations 1994 … to ensure
that the potential impact of the development on species and habitats of principal
importance is addressed.”
65. Amendments to the scheme were undertaken but these did not allay Natural
England’s concerns and their objection to the planning application was repeated in
a letter of 29 June 2009.
66. An updated bat survey (leading to the publication of a report entitled
“Survey Method Statement and Mitigation Strategy”) was carried out on behalf of
the Council. The survey identified two species of bat which had not been detected
in the 2008 survey. Greater levels of foraging and commuting were also recorded
along the disused railway. No roost sites were found but the presence of a common
pipistrelle roost was confirmed approximately 40 metres from planned works. The
report concluded that the works would result in the loss of a number of trees with
low to moderate “roost potential” and approximately seven trees with moderate to
high roost potential. Although no known roosts would be lost, because of the
difficulty in identifying tree roosts, the Bat Conservation Trust recommends that it
should be assumed that trees with high potential as roosts are in fact used as roosts.
On this basis a number of roosts will be lost as a result of the works. Impact on
commuting of bats between foraging habitats was also anticipated. It was felt that
this could be restored in the longer term but, until restoration was complete, at
least four species of bats that had been detected in the area would be affected. It
was concluded that the removal of trees and vegetation would result in the loss of
good quality habitats for foraging. Loss of foraging habitats would have an
inevitable adverse impact on three species of local bats with one of these (Myotis
sp) being more severely affected. This was characterised as a moderate impact at
local level during the time that the vegetation was being re-established, a period
estimated in the survey to be at least seven years. On the issue of the long term
impact of the loss of foraging habitats the report was somewhat ambivalent. At one
point it suggested that there would be a long term “slight adverse to neutral”
impact. Later, it suggested that it was “probable” that the re-creation of good
foraging habitats would result in an eventual neutral impact. The introduction of
artificial lighting would affect the quality of foraging habitat by attracting insects
Page 25
from unlit areas. Although this would favour some species, it would adversely
affect others. Moreover, increased lighting can delay the emergence of bats from
roosts and so reduce foraging opportunities. Lighting also constitutes a barrier to
bats gaining access to foraging areas. Although the report is silent on the duration
of these effects, it must be presumed that they will be permanent. In a somewhat
bland claim, however, the authors assert that “with mitigation to reduce light spill
and the selection of lights with a low UV output, the impact of lighting on bats is
not anticipated to be significant”. Increased noise levels would also have an
adverse impact on some species of bats, the Brown long eared in particular. The
report concludes at this point that is probable that there would be a slight adverse
impact on foraging habitats from operational noise. Again, the report does not
expressly state how long this would last but, since the noise source is the operation
of the busway, it must be presumed to be permanent.
67. The overall conclusion of the report was that it was probable that there
would be a short term moderate adverse impact on bats. (As Lord Brown has
pointed out, this ‘short term’ impact is likely to continue for some nine years). If
planned mitigation measures are successful, the long-term impact of the works was
anticipated to be “slight adverse”. On this basis the authors of the report concluded
that no “significant impacts” to bats were anticipated. This general conclusion
requires to be treated with some caution, in my opinion. There can be no doubt that
effects which could not be described as insignificant will occur for some seven to
nine years at least. Thereafter, while the long term impact may not be
quantitatively substantial, it will be permanent.
68. The bat survey, together with further information, was sent to Natural
England in July 2009. In consequence, the objection to the application was
withdrawn. Natural England considered that planning permission could now be
granted, albeit subject to certain conditions. The letter relaying the withdrawal of
the objection contained the following: –
“Natural England has reviewed the further information submitted
(Great Crested Newt Survey Method Statement and Mitigation
Strategy, June 2009 and Updated Bat Survey Method Statement and
Mitigation Strategy, July 2009) and can now confirm that we are
able to withdraw our objection of 30 April 2009, subject to the
following comments: We recommend that should the Council be
minded to grant permission for this scheme, conditions be attached
requiring implementation of all the mitigation/compensation detailed
within these reports. Particularly at Section 10 of the Bat Report and
Section 6 of the Great Crested Newt Report. We would also
recommend that the Council look closely at the requirement for night
time working and associated flood lighting. Natural England would
not advocate night time working for reasons of
Page 26
disturbance/disruption to the lifecycle of nocturnal wildlife and the
Council should ensure these periods are kept to an absolute
minimum.”
69. The head of planning and development made a report (referred to as “the
officer’s decision report”) to the regulatory committee of the Council which was to
take the planning decision on 29 July 2009. The impact on nature conservation was
one of the issues of concern identified in the report. Lord Brown has quoted in para
8 of his judgment many of the material parts of the report that touch on this issue
and I will not repeat all of those here. It is important, however, I believe, to
understand the context of the statement in para 8.17 (quoted in part by Lord
Brown) that the Habitats Regulations needed to be considered. The full para reads
as follows: –
“The site is not within any designated sites of importance for nature
conservation. However the site is within 30 metres, at its closest, to
the Portsmouth Harbour Special Protection Area (SPA) and
Portsmouth Harbour RAMSAR site. Therefore the requirements of
the Habitats Regulations need to be considered.” (my emphasis)
70. As Lord Brown has pointed out, the report in para 8.19 stated that the
updated bat survey report contained “measures to ensure (emphasis added) there is
no significant adverse impact” to bats from the proposals. This appears to me to be
a gloss on what had in fact been said in the report. The actual claim made (itself, in
my opinion, not free from controversy) was that it was anticipated that there would
be no significant impacts on bats if the mitigation measures succeeded.
71. Two points about the decision officer’s report should be noted, therefore.
Firstly, the enjoinder to consider the Habitats Regulations was made because of the
proximity of the works to sites requiring special protection rather than in relation
to the need to avoid disturbance of bats in the ecological corridor itself. Secondly,
it conveyed to the members of the regulatory committee the clear message that the
updated bat survey report provided assurance that there would be no significant
impact on bats. No reference was made to the moderate adverse impact that would
occur over the seven to nine year period that regeneration of the forage areas
would take nor to the permanent, albeit slight, impact that those measures could
not eliminate.
72. Lord Brown has said that the addendum to the officer’s report dealt
specifically with the Habitats Regulations. It did, but the context again requires to
be carefully noted. In order to do this, I believe that the entire section dealing with
the regulations must be set out. It is in these terms: –
Page 27
“Habitats Regulations
As stated in the report Natural England initially raised a holding
objection to the application, requiring additional survey information
concerning potential for the presence of great crested newts and bats,
which are protected species. This survey work was undertaken and
sent to Natural England, who are now satisfied and subsequently
withdrew their objection.
As also stated in the report the application site lies close to habitats
which form part of the Portsmouth Harbour Site of Special Scientific
Interest (SSSI). This SSSI is part of the Portsmouth Harbour Special
Protection Area (SPA) and Ramsar Site. Under the Conservation
(Natural Habitats etc) Regulations 1994, as amended (‘the Habitats
Regulations’) the County Council is the competent authority and has
to make an assessment of the impacts of the proposal on this
European site, therefore the second recommendation for the
Committee is to agree that the proposal is unlikely to have a
significant impact on the European site. It was implied that by
withdrawing their objection Natural England did not consider there
would be any significant impact, but they did not specifically give
their advice.
Since the report was finalised Natural England have now given
specific advice on the requirements of Regulation 48 (1) (a) of the
“Habitats Regulations”. They raise no objection subject to the
avoidance measures included in the application being fully
implemented and advise that their view is that either alone or in
combination with other plans or projects, this proposal would not be
likely to have a significant effect on the European site and the
permission may be granted under the terms of the Habitats
Regulations.”
73. Regulation 48 (1) (a) requires a competent authority, before deciding to
undertake, or give any consent, permission or other authorisation for, a plan or
project which is likely to have a significant effect on a European site in Great
Britain to make an appropriate assessment of the implications for the site in view
of that site’s conservation objectives. It has nothing to do with the need to ensure
that there is no disturbance of species of bats. The addendum to the decision
officer’s report, therefore, offered no information whatever to the regulatory
committee on the vital question whether the proposal would comply with article 12
of the Habitats Directive. Indeed, it is clear from an examination of the letter from
Natural England of 17 July 2009 that it was preoccupied with matters that were
Page 28
quite separate from the question whether there would be disturbance to bats such
as would be in breach of article 12 of the Directive. The letter was principally
taken up with the question of possible impact on common widespread reptiles. In
so far as the letter dealt with the question of the impact on bats, its tone certainly
did not convey a view that the planning committee need not consider that matter
further. On the contrary, on a fair reading of the letter, Natural England was
making it clear that this issue required to be addressed by the committee, not only
in terms of the conditions to be applied but also as to whether night-time working
would be unacceptable because of disturbance to wildlife.
74. The committee considered the report of the decision officer and the
addendum to it and received an oral presentation from officers of the council. The
minutes of their meeting record the following in relation to the oral presentation: –
“In introducing the report, Officers informed Members that the
proposal formed part of the strategy to improve the reliability and
quality of public transport in South Hampshire and the access to
Gosport and Fareham. A Traffic Regulation Order would be imposed
on the bus way to allow only cycles, buses and emergency vehicles
to use it. Members were advised that an Environmental Impact
Assessment (EIA) was not required as the proposal was a
freestanding project that did not give rise to ‘significant
environmental effects’. Notwithstanding that, the County Council
considered that important nature conservation, amenity and traffic
issues had to be properly addressed and reports on these matters had
been taken into account. The addendum to the report provided
reassurance that Natural England had no objection to the proposals
and confirmed their view that an appropriate assessment under the
Habitat Regulations was not required and provided further
clarification about the application and the Issue of ‘screening’ under
the EIA Regulations.”
75. At best, this had the potential to mislead. A committee member might well
think that Natural England had concluded that there would be no violation of
article 39 (1) (b) of the 1994 Regulations (which forbids the deliberate disturbance
of wild animals of a European protected species) or, more particularly, article 12
of the Habitats Directive. Of course the true position was that Natural England had
expressed no explicit opinion whatever on that question. At most, it might be
presumed that this was its view. Even if that presumption could be made, however,
it does not affect the clear indication in the letter of 17 July 2009 that this matter
was still one which required the committee’s attention. I can find nothing in the
letter which suggests that Natural England regarded this matter as closed. Nor do I
believe that the letter could have been properly interpreted by the committee as
relieving it of the need to consider the issue.
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76. The critical issue on this appeal, therefore, is whether there is any evidence
that the regulatory committee considered at all the duty that it was required to fulfil
under regulation 3 (4) of the 1994 Regulations.
77. In addressing this question I should immediately say that I agree with Lord
Brown on his analysis of the nature of the requirement in article 12 (1) (b) of the
Habitats Directive. As he has observed, a number of broad considerations underlie
the application of the article. It is designed to protect species (not specimens of
species) and its focus is on the protection of species rather than habitats, although,
naturally, if major intrusion on habitats is involved, that may have an impact on the
protection of the species. Not every disturbance will constitute a breach of the
article. The nature and extent of the disturbance must be assessed on a case by case
basis.
78. The European Commission’s guidance document of February 2007 contains
a number of wise observations as to how the application of the article should be
approached. While the word ‘significant’ has not been employed in article 12 (1)
(b), a “certain negative impact likely to be detrimental must be involved”. In
making any evaluation of the level of disturbance, the impact on survival chances,
breeding success or reproductive ability of the affected species are all obviously
relevant factors. Like Lord Brown, I am sanguine about Mr Cameron QC’s
formulation of the test as one involving the question whether there has been “a
certain negative impact likely to have been detrimental to the species, having
regard to its effect on the conservation status of the species”. And also like Lord
Brown, I consider that the Court of Appeal pitched the test too high in saying that
disturbance must have “a detrimental impact on the conservation status of the
species at population level” or constitute a threat to the survival of the protected
species.
79. Trying to refine the test beyond the broad considerations identified by Lord
Brown and those contained in the Commission’s guidance document is not only
difficult, it is, in my view, pointless. In particular, I do not believe that the
necessary examination is assisted by recourse to such expressions as de minimis. A
careful investigation of the factors outlined in Lord Brown’s judgment (as well as
others that might bear on the question in a particular case) is required. The answer
is not supplied by a pat conclusion as to whether the disturbance is more than
trifling.
80. Ultimately, however, and with regret, where I must depart from Lord
Brown is on his conclusion that the regulatory committee had regard to the
requirements of the Habitats Directive. True it is, as Lord Brown says, that they
knew that Natural England had withdrawn its objection. But that cannot substitute,
in my opinion, for a consideration of the requirements of the Habitats Directive.
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Regulation 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.
81. Neither the written material submitted to the committee nor the oral
presentation made by officers of the council referred to the Habitats Directive. The
reference to Natural England’s consideration of the Habitats Regulations, if it was
properly understood, could only have conveyed to the committee that that
consideration had been for a purpose wholly different from the need to protect
bats. It could in no sense, therefore, substitute for a consideration of the Habitats
Directive by the committee members whose decision might well directly
contravene one of the directive’s central requirements. It is for that reason that I
have concluded that those requirements had to be considered by the committee
members themselves.
82. It may well be that, if Natural England had unambiguously expressed the
view that the proposal would not involve any breach of the Habitats Directive and
the committee had been informed of that, it would not have been necessary for the
committee members to go behind that view. But that had not happened. It was
simply not possible for the committee to properly conclude that Natural England
had said that the proposal would not be in breach of the Habitats Directive in
relation to bats. Absent such a statement, they were bound to make that judgment
for themselves and to consider whether, on the available evidence the exercise of
their functions would have an effect on the requirements of the directive. I am
afraid that I am driven to the conclusion that they plainly did not do so.
83. As I have said, Natural England (at the time that it was considering the
Habitats Regulations in July 2009) had not explicitly addressed the question
whether the disturbance of bats that the proposal would unquestionably entail
would give rise to a violation of the directive. The main focus of the letter of 19
July was on an entirely different question. Lord Brown may well be correct when
he says that it is not to be supposed that Natural England misunderstood the proper
ambit of article 12 (1) (b), but the unalterable fact is that it did not say that it had
concluded that no violation would be involved, much less that the planning
committee did not need to consider the question.
84. It is, of course, tempting to reach one’s own conclusion as to whether the
undoubted impact on the various species of bats that will be occasioned by this
development is sufficient – or not – to meet the requirement of disturbance within
the meaning of article 12. But this is not the function of a reviewing court. Unless
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satisfied that, on the material evidence, the deciding authority could have reached
no conclusion other than that there would not be such a disturbance, it is no part of
a court’s duty to speculate on what the regulatory committee would have decided
if it had received the necessary information about the requirements of the Habitats
Directive, much less to reach its own view as to whether those requirements had
been met. Since the planning permission was granted on a vote of six in favour and
five against, with two abstentions, it is, in my view, quite impossible to say what
the committee would have decided if it had been armed with the necessary
knowledge to allow it to fulfil its statutory obligation. Other members of the court
have expressed the view that this is what the committee would have decided. Had I
felt it possible to do so, I would have been glad to be able to reach that conclusion.
As it is, I simply cannot.
85. I would therefore allow the appeal and quash the planning permission.