Case Law >> Supreme planning decision

Colleen Theron and Deirdre Lyons examine a case that provides useful guidance for local authority planning committees on ensuring the EU Habitats Directive (92/43/EEC) is complied with.

In R (Morge) v Hampshire County Council [2010] EWCA Civ 608, the applicant appealed to the Supreme Court concerning a failed judicial review of a local planning authority’s decision to grant planning permission for the development of a three-mile roadway that would host a rapid busway service. The unsuccessful appellant was concerned about the impact of the development on several species of European-protected bats that inhabited the area.

Bats are protected under the EU Habitats Directive (92/43/EEC). The Directive obliges every “competent authority” to have regard to its requirements: in particular, taking steps to avoid disturbing protected species. The Supreme Court allowed the appeal to determine two issues regarding Hampshire County Council’s decision to grant planning permission for the development. The first issue concerned the exercise of the council’s decision and whether there had been a deliberate disturbance of the bats.

The central difficulty in the case lay in determining the level of disturbance required to fall within the prohibition and at what stage negative impact becomes detrimental. The court advised that every case has to be judged on its own merits. A case-by-case approach should be adopted and 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. Even with regard to a single species, the position “might be different depending on the season or on certain periods of its life cycle”.

The second issue concerned the extent to which the planners had to have regard to the criminal provisions – it is an offence for any person to disturb protected species under UK regulations. The court decided that, while the planning authority had to have regard to the Directive, this was only so far as the Directive’s requirements may be affected by the decision whether or not to grant planning permission.

Even if planning permission were granted by the planning authority, it could not constitute a defence against any criminal prosecution brought by Natural England, for example, for an offending activity. Consequently, 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 ask a planning authority, in effect, to police the fulfillment of Natural England’s own duty. The case provides helpful guidance for local authority planning committees on the extent to which they have to be satisfied that the Directive has been complied with.