Planning permission – Habitats Directive – Protected species – Local authority granting planning permission for bus route over land occupied by protected bat species – Whether development causing deliberate disturbance of protected species – Correct test of disturbance – Whether planning committee having due regard to directive as required by regulation 3(4) of Conservation (Natural Habitats &c) Regulations 1994 – Appeal allowed
The respondent local authority granted planning permission for the construction of a three-mile stretch of new road along the route of an old railway line in order to provide a rapid bus route. Although much of the scheme lay within a built-up area, the area around the railway line had become overgrown and provided an ecological corridor for wildlife. The construction of the new bus route involved cutting an 8-9m swath through the vegetation and laying new hard surfacing.
The appellant local resident sought judicial review of the permission on the ground that it breached the requirements of Directive 92/43/EEC on the conservation of natural habitats and wild fauna and flora (the Habitats Directive) owing to its likely effect on a protected bat species. The High Court dismissed the claim and the Court of Appeal upheld that decision: see [2009] EWHC 2940 (Admin); [2009] Env LR 26 and [2010] EWCA Civ 608; [2010] JPL 160.
The issues on appeal included: (i) the meaning of “deliberate disturbance” in article 12(1)(b) of the directive, which required member states to take measures to prohibit the deliberate disturbance of protected species; and (ii) whether the respondents had had due regard to the Habitats Directive in reaching their decision, as required by regulation 3(4) of the Conservation (Natural Habitats &c) Regulations 1994. On the first issue, the Court of Appeal considered the guidance on article 12(1)(b) issued by the European Commission in February 2007 and held that the threshold for “disturbance”, in the context of article 12, was that the proposed scheme would have a detrimental effect on the conservation status of the species at population level. It concluded that the loss of foraging habitat for bats occasioned by the scheme would not have that effect. On the second issue, it held that a local planning authority (LPA) should not grant planning permission unless satisfied that the development would not offend article 12(1) or that Natural England would permit a derogation from that article and grant a licence under regulation 44. The appellant appealed.
Held (Lord Kerr dissenting on the second issue): The appeal was allowed.
(1) A deliberate disturbance was an intentional act carried out in the knowledge that it would or might have a particular consequence, namely disturbing the relevant protected species. In determining what amounted to disturbance in that context, it was necessary to take into account various broad considerations relating to article 12(1)(b), namely that: (i) it protected species, not habitats, although the disturbance of habitats could indirectly affect species; (ii) the prohibition that it contained related to the protection of “species”, not specimens of those species; (iii) the absence of the word “significant” from the article did not preclude an assessment of the nature and extent of the negative effect of the activity on the species and a judgment on whether that was sufficient to constitute a disturbance; and (iv) it was implicit that activity during a period of breeding, rearing, hibernation and migration was more likely than at other times to have a sufficient negative effect on the species as to constitute “disturbance”.
Beyond noting those general considerations, it was difficult to take the proper interpretation and application of article 12(1)(b) much further than it was taken in the European Commission’s guidance document. The illustrations given in that document represented no more than the ends of the spectrum within which the question of disturbance arose. The suggestion in the guidance document, namely that consideration should be given to the effect of the activity in question on the conservation status of the species at population level, did not carry with it the implication that only such activity as imperilled the favourable conservation status of the species constituted disturbance. To say that regard must be had to the effect of the activity on the conservation status of the species was not to say that the activity was prohibited only if it affected that status. Disturbance of that kind merely illustrated one end of the spectrum and, accordingly, the Court of Appeal had erred in applying it as the test. Within the spectrum, every case had to be judged on its merits. The guidance made it clear that the competent authorities, using a case-by-case approach, would have to reflect carefully on the level of disturbance to be considered harmful, taking into account the specific characteristics of the species concerned and whether, even within a single species, the position might be different depending on certain periods of its life cycle.
The competent authorities should also take into account the advice of Defra’s head of protected and non-native species policy, which indicated that consideration should be given to the rarity and conservation status of the species and the effect of the disturbance on the local population of a particular protected species. Further relevant considerations were enshrined in regulation 41(2) of the Conservation of Habitats and Species Regulations 2010, by which disturbance of animals included, in particular, any disturbance that was likely to impair their ability to survive, breed or reproduce or rear their young or, in the case of a hibernating or migratory species, their ability to hibernate or migrate. The use in the regulation of the words “ in particular” indicated that other activity having an adverse effect on the species might also offend the prohibition.
(2) In considering the obligations of an LPA under regulation 3(4) of the 1994 Regulations, it was relevant that a grant of planning permission could no longer be raised as a defence on a prosecution for the offence of disturbing wild animals, contrary to the prohibition in article 12(1) of the directive. The primary responsibility for policing regulation 39 and ensuring compliance with the directive lay with Natural England. Since the UK had chosen to implement article 12 by creating criminal offences, it was not the function of LPAs to police those offences. Accordingly, when determining a planning application, LPAs were not obliged to satisfy themselves that the development in question would not offend article 12(1) of the directive or that Natural England would be willing to allow a derogation from the article and grant a licence under regulation 44. That would place too great a responsibility on the LPA, whose only obligation under regulation 3(4) was to “have regard” to the requirements of the directive so far as they might be affected by a decision to grant planning permission. Even if planning permission were granted, the criminal sanction against any offending and unlicensed activity remained available and it would be wrong in principle to place a substantial burden on the LPA to police the fulfilment of Natural England’s duty. Where, as in the instant case, Natural England was satisfied that the proposed development would comply with article 12, LPAs were entitled to presume that that was so. The respondents had had regard to the requirements of the directive and had not been materially misled or left insufficiently informed. They had not been obliged to decide whether the development would or would not occasion such disturbance to bats as in fact and law constituted a violation of article 12(1)(b).
Charles George QC, Gregory Jones and Sarah Sackman (instructed by Swain & So Solicitors) appeared for the appellant; Neil Cameron QC and Sasha White (instructed by the legal department of Hampshire County Council) appeared for the respondents.
Sally Dobson, barrister
