R (Morge) v Hampshire County Council

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLORD MANCE,LORD BROWN,LADY HALE,LORD WALKER,LORD KERR
Judgment Date19 Jan 2011
Neutral Citation[2011] UKSC 2

[2011] UKSC 2

THE SUPREME COURT

Hilary Term

On appeal from: 2010 EWCA Civ 608

before

Lord Walker

Lady Hale

Lord Brown

Lord Mance

Lord Kerr

Morge (FC)
(Appellant)
and
Hampshire County Council
(Respondent)

Appellant

Charles George QC

Gregory Jones

Sarah Sackman

(Instructed by Swain & Co Solicitors)

Respondent

Neil Cameron QC

Sasha White

(Instructed by Hampshire County Council Legal Services)

Heard on 8 November 2010

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.

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).

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.

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:

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

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