New Judgment: Morge v Hampshire County Council  UKSC 2
19 Wednesday Jan 2011
On appeal from:  EWCA Civ 608
This appeal concerns, first, the meaning of the obligation imposed on the UK by the Habitats Directive, to prohibit “deliberate disturbance” of certain species of bats. It concerns, secondly, the scope of the obligation in domestic legislation on planning authorities to have regard to the requirements of the Habitats Directive. Hampshire County Council had granted planning permission for a three mile stretch of road to support a high speed bus link in South East Hampshire. The appellant objected to the scheme as it was scheduled to follow the path of a disused railway that had become an interesting ecological site. Natural England had submitted an objection to the planning application arguing that the proposed development would have a negative impact on the local European protected bat population, for whom the site provided a good source of food. Hampshire County Council argued that there was no evidence any bats roosted on the site.
The High Court and Court of Appeal rejected the challenge. The Supreme Court granted permission to appeal on two questions. Firstly to examine the definition of ‘deliberate disturbance’ as prohibited in art 12(1)(b) of the Directive and secondly, the degree to which local authorities must consider the Habitats Directive when making decisions about planning permission, and whether the council had acted appropriately in this case. The Supreme Court rejected the appeal. It found that the specimens of specific bat species in this context where not sufficient to engage the protection of the Habitats Directive. The Court also found that permission should ordinarily be granted unless the Planning Committee concluded there would be a possible breach of art 12(1) and in this instance, Natural England withdrew their objection and there was little evidence to suggest a breach was likely.