• Morge case

Morge case

This case relates to interpretation of the ‘deliberate disturbance’ and ‘damage or destruction of a breeding site or resting place’ clauses in regulations 41(1)(b) and 39(1)(d) of the Habitats Regulations 2010.  It also provides guidance on how local planning authorities should discharge their duties with respect to the Habitat Regulations 2010.

The case was instigated by Vivienne Morge who questioned a decision made by Hampshire County Council (CC) to grant planning for a new bus route along a disused railway where bats were known to be present.  The case was subject to judicial review at the High Court, the ruling was then appealed at the Court of Appeal and subsequently the Court of Appeal ruling was commented on by the Supreme Court.  Key points from the case which aid the interpretation of the Habitats Regulations 2010 are given beneath.

‘Deliberate Disturbance’

‘A deliberate disturbance is an intentional act knowing that it will or may have a particular consequence, namely disturbance of the relevant protected species’ according to the Supreme Court statement.

On this basis, where an activity is deemed to have a low risk of disturbance but then disturbance occurs unexpectedly, this is unlikely to be considered ‘deliberate’.  However, if an activity or operation is repetitive or ongoing, if it becomes known that it causes disturbance (or killing) of a protected species, the future undertaking of the activity or operation could lead to ’deliberate’ disturbance (or killing) of a protected species, as this consequence could have been foreseen based on the available evidence.

The Supreme Court has also clarified that provision for protection from disturbance ‘relates to protection of a species (rather than individual animals)’, and that disturbance does not have to be ‘significant’ to comprise an offence.  The Supreme Court also stated that acts that lead to impacts lower than those necessary to impact ‘on the conservation status of the species at population level’ or ‘affect the survival chances of a protected species’ may still constitute an offence.  However, a minimum threshold at which ‘deliberate disturbance’ would constitute an offence has not been set. Instead the Court made the following statements, taken from a letter written by Mr Huw Thomas, Head of the Protected and Non-Native Species Policy at Defra, that we consider to be of most relevance:

• …every case has to be judged on its own merits
• a “species by species approach is needed” and, indeed, even with regard to a single species, the position “might be different depending on the season or on certain periods of its lifecycle”
• consideration should … be given to the rarity and conservation status of the species in question and the impact of the disturbance on the local population of a particular species
• individuals of a rare species are more important to a local population than individuals of more abundant species...
• ...similarly, disturbance of species declining in numbers is likely to be more harmful than disturbance to species that are increasing in numbers.

The Supreme Court ruling does not provide a minimum threshold for where an activity may still be considered to be an offence under the ‘deliberate disturbance’ offence.  However, given the above guidance, the minimum threshold could vary from case to case depending on the species, population size and location of the project within the country. It is understood that the ‘deliberate disturbance’ offence could apply where an activity has a detrimental impact on a species at a local population level and, in the case of rarer species, species at their range extreme or during certain times of a species lifecycle e.g. migration, hibernation, breeding, etc, the impact on single or small numbers of individuals may not be outside of the offence.

'Damage or Destruction of a Breeding Site or Resting Place’

Further to a ruling by the High Court that only direct effects on a breeding site or resting place were relevant to the offence of damage or destruction of a breeding site or resting place, the Court of Appeal has overruled this and ruled that both direct and indirect effects are relevant to the offence.

The Court of Appeal also went on to rule that potential roosts are not protected, particularly where appropriate surveys have previously been undertaken and no bats are recorded by stating ‘art 12(1)(d) required the strict protection of defined elements of the habitat, namely the bats’ actual breeding sites and resting places, and it did not cover the loss of a potential site if the ecological functionality was safeguarded, as here.’

The Court of Appeal also ruled that, in the case of the damage or destruction of a breeding site or resting place offence, interference with a bat commuting route cannot be regarded as a indirect damage/destruction of the roost.  This ruling is important when considering the impacts of developments such as onshore wind turbines.  However, it is understood that development or activities close to a breeding site or resting place which restrict access to such a site could still be considered an offence.

Duty of Local Planning Authorities

In this case, as expected, the Court of Appeal confirmed that local planning authorities, including Hampshire CC, have a duty to assess whether a development proposal would breach the Habitats Regulations with regard to protected species, and if so consider the ‘three tests’ (as set out under ‘the Woolley Ruling’ see below (link)).

The Court of Appeal judgement went on to state that following consideration of the three tests:

• If the planning committee conclude that Natural England will not grant a licence, it must refuse planning permission.
• If … it is likely that Natural England 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.

However, possibly unexpectedly, the Supreme Court has added clarification to how the local planning authority may discharge their duty in assessing whether a development proposal would breach the Habitats Regulations with regard to protected species.  The Supreme Court stated that the Court of Appeal ruling "goes too far and puts too great a responsibility on the planning committee…"

The judgement goes on to say that: "The planning authority were entitled to draw the conclusion that, having been initially concerned but having withdrawn their objection, Natural England were content that the requirements of the Regulations, and thus the directive, were being complied with." In other words, as Natural England had withdrawn its objection (relating to bats) to the development, Hampshire CC could rightfully assume that the Habitats Regulations with regard to protected species would not be breached.

Therefore, when Natural England is consulted and their response is regarded to confirm directly or indirectly, such as the situation above, that no breach of species protection under the Habitats Regulations will occur, then a local planning authority is entitled to rely on Natural England’s view.  Conversely, local planning authorities would be wise to refuse planning permission if Natural England objects.

It is important to note that the above only applies where Natural England is consulted on a planning application.  Where they are not consulted, which can be possible if the development is not within a SSSI, SPA, SAC, Ramsar site, National Park, AONB or requiring EIA, the LPA is still likely to need to consider the Habitats Regulations and whether they would be breached in order to discharge its duty. Furthermore, planning permission should be granted by the LPA unless the LPA conclude that a breach of the Habitat Regulations, and therefore the directive, is likely and that Natural England are unlikely to grant a licence.