UKSC 2
On appeal from:  EWCA Civ 608
Morge (FC) (Appellant) v Hampshire County Council (Respondent)
JUDGMENT GIVEN ON
19 January 2011
Heard on 8 November 2010
Charles George QC
(Instructed by Swain & Co Solicitors)
Neil Cameron QC
(Instructed by Hampshire County Council Legal Services)
"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(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.
"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receipt of this information Natural England are now satisfied that the necessary information has been provided and have withdrawn their objection.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.
. . .
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.
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".
"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."
"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."
"16(1) Provided that that there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range, member states may derogate from the provisions of articles 12 . . . : . . . (c) in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment".
"(37) Disturbance (e.g. by noise, source of light) does not necessarily directly affect the physical integrity of a species but can nevertheless have an indirect negative effect on the species (eg by forcing them to use lots of energy to flee; bats, for example, when disturbed during hibernation, heat up as a consequence and take flight, so are less likely to survive the winter due to high loss of energy resources). The intensity, duration and frequency of repetition of disturbances are important parameters when assessing their impact on a species. Different species will have different sensitivities or reactions to the same type of disturbance, which has to be taken into account in any meaningful protection system. Factors causing disturbance for one species might not create disturbance for another. Also, the sensitivity of a single species might be different depending on the season or on certain periods of its life cycle e.g. (breeding period). Article 12(1)(b) takes into account this possibility by stressing that disturbances should be prohibited particularly during the sensitive periods of breeding, rearing, hibernation and migration. Again, a species-by-species approach is needed to determine in detail the meaning of 'disturbance'.
(38) The disturbance under article 12(1)(b) must be deliberate . . . and not accidental. On the other hand, while 'disturbance' under article 6(2) must be significant, this is not the case in article 12(1), where the legislator did not explicitly add this qualification. This does not exclude, however, some room for manoeuvre in determining what can be described as disturbance. It would also seem logical that for disturbance of a protected species to occur a certain negative impact likely to be detrimental must be involved.
(39) In order to assess a disturbance, consideration must be given to its effect on the conservation status of the species at population level and biogeographic level in a member state . . .. For instance, any disturbing activity that affects the survival chances, the breeding success or the reproductive ability of a protected species or leads to a reduction in the occupied area should be regarded as a 'disturbance' in terms of article 12. On the other hand, sporadic disturbances without any likely negative impact on the species, such as for example scaring away a wolf from entering a sheep enclosure in order to prevent damage, should not be considered as disturbance under article 12. Once again, it has to be stressed that the case by case approach means that the competent authorities will have to reflect carefully on the level of disturbance to be considered harmful, taking into account the specific characteristics of the species concerned and the situation, as explained above."
No problem arises as to what is meant by "deliberate" in article 12(1)(b). As stated by the Commission in paragraph 33 of their Guidance:
"'Deliberate' actions are to be understood as actions by a person who knows, in light of the relevant legislation that applies to the species involved, and the general information delivered to the public, that his action will most likely lead to an offence against the species, but intends this offence or, if not, consciously accepts the foreseeable results of his action."
Put more simply, a deliberate disturbance is an intentional act knowing that it will or may have a particular consequence, namely disturbance of the relevant protected species. The critical, and altogether more difficult, question is what precisely in this context is meant by "disturbance".
"35 . . . the disturbance does not have to be significant but, as para 38 of the guidance explains, there must be some room for manoeuvre which suggests the threshold is somewhere between de minimis and significant. It must be certain, that is to say, identifiable. It must be real, not fanciful. Something above a discernible disturbance, not necessarily a significant one, is required. Given that there is a spectrum of activity, the decision-maker must exercise his or her judgment consistently with the aim to be achieved. Given the broad policy objective which I explored . . . above ['to ensure that the population of the species is maintained at a level which will ensure the species' conservation so as to protect the distribution and abundance of the species in the long term'], disturbing one bat, or even two or three, may or may not amount to disturbance of the species in the long term. It is a matter of fact and degree in each case.
36 [Counsel for the appellant] seizes on the words in para 38 . . . of the guidance, 'a certain negative impact likely to be detrimental must be involved and he elevates this statement into a test for establishing a disturbance. His difficulty is that that does not answer the critical question: when does the negative impact become detrimental? Para 39 seems to me to spell out the proper approach, namely to give consideration to the 'effect on the conservation status of the species at population level and bio-geographic level'. This in my judgment is an important refinement. The impact must be certain or real, it must be negative or adverse to the bats and it will be likely to be detrimental when it negatively or adversely effects the conservation status of the species. 'Conservation status of a species' is a term of art which . . . means the sum of the influences acting on the species concerned that may affect the long-term distribution and abundance of its population. That is why the guidance at para 39 makes the point that the disturbing activity must be such as 'affects the survival chances . . . of a protected species'. Furthermore, 'the competent authorities will have to reflect carefully on the level of disturbance to be considered harmful, taking into account the specific characteristics of the species concerned and the situation', to quote the concluding sentence of para 39. The summary in the guidance . . . has the same emphasis:
'Disturbance is detrimental for a protected species eg by reducing survival chances, breeding success or reproductive ability. A species-by-species approach needs to be taken as different species will react differently to potentially disturbing activities.'
37. Having regard to the aim and purpose of the Directive and of article 16 and having due consideration of the guidance, I am driven to conclude that for there to be disturbance within the meaning of article 12(1)(b) that disturbance must have a detrimental impact so as to affect the conservation status of the species at population level. . ..
. . .
39. In my judgment whether the disturbance will have a certain negative impact which is likely to be detrimental must be judged in the light of and having regard to the effect of the disturbance on the conservation status of the species, ie, how the disturbance affects the long-term distribution and abundance of the population of bats. I remind myself that according to the [Commission's] guidance . . . , 'favourable conservation status could be described as a situation where a . . . species is doing sufficiently well in terms of quality and quantity and has good prospects of continuing to do so in the future'. Whether there is a disturbance of the species must be judged in that light."
"73. I have been troubled by the fact that the conclusion of the bat survey upon which such reliance was placed is to the effect that no significant impacts to bats are anticipated. The disturbance does not have to be significant and this is a misdirection or misunderstanding of . . . [article] 12(1)(b) . . . of the Habitats Directive. The question for me is, therefore, whether the conclusions can be upheld. I am satisfied that the decision of the planning committee should not be quashed.
74. I reach that conclusion for these reasons. I am satisfied that the loss of foraging habitat occasioned by cutting a swathe through the vegetation does not offend article 12(1)(b) which is concerned with protection of the species not with conservation of the species' natural habitats. I am satisfied that that bald statement that the bats have to travel further and expend more energy in foraging does not justify a conclusion that the conservation status of the bats is imperilled or at risk. There is no evidence which would allow the planning committee to conclude that the long-term distribution and abundance of the bat population is at risk. There is no evidence that they will lose so much energy (as they might when disturbed during hibernation) that the habitat will not still provide enough sustenance for their survival, or their survival would be in jeopardy. There is no evidence that the population of the species will not maintain itself on a long-term basis. There is therefore no evidence of any activity which would as a matter of law constitute a disturbance as the word has to [be] understood.
75. As I have already concluded, the risk of collision cannot amount to a disturbance and article 12(1)(b) is not engaged in that respect."
"41(2) . . . disturbance of animals includes in particular any disturbance which is likely (a) to impair their ability (i) to survive, to breed or reproduce, or to rear or nurture their young, or (ii) in the case of animals of a hibernating or migratory species, to hibernate or migrate; or (b) to affect significantly the local distribution or abundance of the species to which they belong."
Note, however, that disturbing activity likely to have these identified consequences is included "in particular" in the prohibition; it does not follow that other activity having an adverse impact on the species may not also offend the prohibition.
Issue Two – The proper application of Regulation 3(4) of the 1994 Regulations (as amended)
"61. The Planning Committee must grant or refuse planning permission in such a way that will 'establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range . . .' If in this case the committee is satisfied that the development will not offend article 12(1)(b) or (d) it may grant permission. If satisfied that it will breach any part of article 12(1) it must then consider whether the appropriate authority, here Natural England, will permit a derogation and grant a licence under regulation 44. Natural England can only grant that licence if it concludes that (i) despite the breach of regulation 39 (and therefore of article 12) there is no satisfactory alternative; (ii) the development will not be detrimental to the maintenance of the population of bats at favourable conservation status and (iii) the development should be permitted for imperative reasons of overriding public importance. If the planning committee conclude that Natural England will not grant a licence it must refuse planning permission. If on the other hand it is likely that it will grant the licence then the planning committee may grant conditional planning permission. If it is uncertain whether or not a licence will be granted, then it must refuse planning permission."
"Our concerns relate specifically to the likely impact upon bats and Great Crested Newts. The protection afforded these species is explained in Part IV and Annex A of Circular 06/2005 'biodiversity and Geological Conservation – Statutory Obligations and their Impact within the Planning System'".
Part IV of Circular 06/2005 stated that the Habitats Regulations Conservation (Natural Habitats &c.) Regulations 1994 implemented the requirements of the Habitats Directive and that it was unlawful under regulation 39 deliberately to disturb a wild animal of a European protected species. Annex A identified all species of bats as wild animals of European protected species.
"(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 may be affected by the exercise of those functions."
"Natural England has reviewed the further information submitted (Great Crested Newt Survey Method Statement and Mitigation Strategy, June 2009 and Updated Bat Survey Method Statement and Mitigation Strategy, July 2009) and can now confirm that we are able to withdraw our objection of 30 April 2009, subject to the following comments: We recommend that should the Council be minded to grant permission for this scheme, conditions be attached requiring implementation of all the mitigation/compensation detailed within these reports. Particularly at Section 10 of the Bat Report and Section 6 of the Great Crested Newt Report. We would also recommend that the Council look closely at the requirement for night time working and associated flood lighting. Natural England would not advocate night time working for reasons of disturbance/disruption to the lifecycle of nocturnal wildlife and the Council should ensure these periods are kept to an absolute minimum."
"The site is not within any designated sites of importance for nature conservation. However the site is within 30 metres, at its closest, to the Portsmouth Harbour Special Protection Area (SPA) and Portsmouth Harbour RAMSAR site. Therefore the requirements of the Habitats Regulations need to be considered." (my emphasis)
As stated in the report Natural England initially raised a holding objection to the application, requiring additional survey information concerning potential for the presence of great crested newts and bats, which are protected species. This survey work was undertaken and sent to Natural England, who are now satisfied and subsequently withdrew their objection.
As also stated in the report the application site lies close to habitats which form part of the Portsmouth Harbour Site of Special Scientific Interest (SSSI). This SSSI is part of the Portsmouth Harbour Special Protection Area (SPA) and Ramsar Site. Under the Conservation (Natural Habitats etc) Regulations 1994, as amended ('the Habitats Regulations') the County Council is the competent authority and has to make an assessment of the impacts of the proposal on this European site, therefore the second recommendation for the Committee is to agree that the proposal is unlikely to have a significant impact on the European site. It was implied that by withdrawing their objection Natural England did not consider there would be any significant impact, but they did not specifically give their advice.
Since the report was finalised Natural England have now given specific advice on the requirements of Regulation 48 (1) (a) of the "Habitats Regulations". They raise no objection subject to the avoidance measures included in the application being fully implemented and advise that their view is that either alone or in combination with other plans or projects, this proposal would not be likely to have a significant effect on the European site and the permission may be granted under the terms of the Habitats Regulations."
"In introducing the report, Officers informed Members that the proposal formed part of the strategy to improve the reliability and quality of public transport in South Hampshire and the access to Gosport and Fareham. A Traffic Regulation Order would be imposed on the bus way to allow only cycles, buses and emergency vehicles to use it. Members were advised that an Environmental Impact Assessment (EIA) was not required as the proposal was a freestanding project that did not give rise to 'significant environmental effects'. Notwithstanding that, the County Council considered that important nature conservation, amenity and traffic issues had to be properly addressed and reports on these matters had been taken into account. The addendum to the report provided reassurance that Natural England had no objection to the proposals and confirmed their view that an appropriate assessment under the Habitat Regulations was not required and provided further clarification about the application and the Issue of 'screening' under the EIA Regulations."