Case Comment: R (Morge) v Hampshire County Council
21 Friday Jan 2011
In a somewhat unusual case, in R (Morge) v Hampshire County Council (heard on 19 January 2011) the Supreme Court heard an appeal concerning a judicial review of a local planning authority’s decision to grant planning permission for a busway development. The ultimately unsuccessful appellant was concerned by the impact of the development on several species of European protected bats which inhabited the relevant area.
The Supreme Court considered the relevant European Council Habitats Directive 92/43/EEC on protection of animal species to determine whether there had been a deliberate disturbance of the bats. This must be judged in the light of and having regard to the effect of the disturbance on the conservation status of the species. The Court also considered the British legislation (Conservation (Natural Habitats, etc) Regulations 1994) which obliges every “competent authority” to have regard to the directive’s requirements.
The Court provided some helpful comments for planning committees of local authorities on the extent to which they have to be satisfied that the directive has been complied with. The Court decided that while the planning authority had to have regard to the directive, that was only so far as the directive’s requirements may be affected by the decision whether or not to grant planning permission. The Court confirmed that Natural England (the Government’s adviser on nature conservation) is the body primarily responsible for policing the relevant directive provision, breach of which is a criminal offence.
Even if planning permission was granted by the planning authority, it could not constitute a defence against any criminal prosecution brought by Natural England for an offending activity. Therefore, if Natural England had expressed itself satisfied that a proposed development complied with the directive, the planning authority was entitled to presume that was so. It would be wrong to place a substantial burden on the planning authority, in effect, to police the fulfilment of Natural England’s own duty. Lord Kerr dissented from some of the Court’s views on this issue.
The judgment will be of particular interest to anyone considering the development of a site inhabited by protected animal species.