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Supreme Court Makes New Law in Relation to Disturbance of European Protected Species

Gregory Jones QC
Sarah Sackman

In Morge (FC) v Hampshire County Council [2011] UKSC 2, the Supreme Court (Lord Kerr dissenting) dismissed Mrs Morge's appeal, with the result that works on Phase 1A of the South East Hampshire Rapid Transit Scheme can be completed. The case is important in four respects:

1.It provides greater protection for European protected species because the Justices unanimously upheld the appeal against the highly restrictive interpretation of "disturbance" under article 12(1)(b) of the Habitats Directive adopted by a unanimous Court of Appeal [2010] EWCA Civ 608. The Court of Appeal was wrong to decide that disturbance required a detrimental impact so as to affect the conservation status of the species at population level. Rather there has to be a "species-by-species approach", and "an assessment of the nature and extent of the negative impact of the activity in question upon the species and, ultimately, a judgment as to whether that it sufficient to constitute a "disturbance" of the species". It has also been confirmed (on which the Court of Appeal's judgment had been ambiguous) that "disturbance" does not have to be significant and can include disturbance of habitats which indirectly impacts on species (per Lord Brown paras19-21; Lord Walker para 33; Lady Hale para 34; Lord Mance para 48; Lord Kerr paras 77-79).

2."Tempting although in one sense it is", the Justices declined to refer the question of the meaning of "disturbance" to the Court of Justice of the European Union, it being "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" (per Lord Brown para 25; Lord Walker para 33; Lady Hale para 34; Lord Mance para 48; Lord Kerr para 79). This was without any mention of the conventional test for acte clair (that "courts against whose decisions there is no judicial remedy must, as a rule, [emphasis in the original "INFORMATION NOTE on references from national courts for a preliminary reference (2009/C/297/01)"] refer such questions to the Court, unless the Court has already ruled on the point [which was not the case here], or unless the correct interpretation of the rule of law is obvious" [different interpretations were expressed at first instance, in the Court of Appeal and in the Supreme Court].

 3. It establishes that "where... Natural England express themselves satisfied that a proposed development will be compliant with Article 12, the planning authority are... entitled to presume that this is so", and are not "required ...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" (per Lord Brown para 30; Lord Walker para 33; Lady Hale para 45; Lord Mance para 48; Lord Kerr para 82, who, however, did not consider that Natural England "had unambiguously expressed the view").

 4. Obiter (and without expressly citing it) a principal part of the reasoning in R (Simon Woolley) v Cheshire East Borough Council [2009] EWHC 1227 (Admin) has been rejected, namely that local planning authorities need in article 12 cases to consider the likelihood that licences/derogations will be issued. Of the summary of that reasoning, contained in para 61 of the Court of Appeal's judgment and accepted as correct by Counsel for both parties at all stages of the Morge litigation, Lord Brown said (para 29) that it "goes too far and puts too great a responsibility on the Planning Committee whose only obligation under regulation 3(4) [of the Habitats Regulations 1994] 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 planning permission". Lord Brown, however, seems to have considered that permission should be refused "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" (para 29) (also per Lord Walker para 33; Lady Hale para 44; Lord Mance para 48; Lord Kerr expressing no view on this matter). Therefore the actual decision in Woolley (an article 12(1)(d) case, with no likelihood of a derogation) was probably correct.

An intriguing feature of the judgments, perhaps demonstrative of the self-confidence of the Supreme Court, is that only Lady Hale (para 36) cited any decided case (R (Alconbury Developments Ltd) v Secretary of State for E, T & R [2001] UKHL 23), a case not cited by Counsel for either party.

The unsuccessful Claimant was represented by Charles George QC, Gregory Jones and Sarah Sackman, instructed by Swain & Co.