Chapter 4: Case Law
The following examples represent some of the founding principles of current legal interpretation.
The Morge Case (England)
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 Habitats 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.
‘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, and 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 bat 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 an 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).
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 concludes that a breach of the Habitat Regulations, and therefore the directive, is likely and that Natural England is unlikely to grant a licence.
Cornwall ruling (England)
Judgement that a planning authority had acted unlawfully by granting planning permission without sufficient information on flora and fauna.
Sometimes planning authorities grant planning permission before some or all ecological surveys have been carried out, making ecological surveys a planning condition, or Section 106 Agreement, under the Town and Country Planning Act 1990. For development that requires an Environmental Impact Assessment this practice was subject to judicial review proceedings in the High Court and it was determined that the planning authority had acted unlawfully by granting planning permission without sufficient information on flora and fauna (known as the Cornwall Ruling because the planning authority in this case was Cornwall County Council). Requiring surveys as a condition of the Section 106 Agreement was not sufficient, as this would exclude the consultation process that is required under the Town and Country Planning (EIA) Regulations (1999).
Dilly Lane (England)
Case involving the Habitats Regulations, which may mean that where mitigation with respect to European sites is incorporated into the design of the development, an appropriate assessment can be avoided.
A court case involving the Habitats Regulations was brought by Hart District Council against Barratt Homes (Southern Counties) and Luckmore Ltd.
The companies proposed to develop 170 new homes on land off Dilly Lane, Hartley Wintney, in Hampshire. This green-field site was located within 5km of the Thames Basin Heaths Special Protection Area, a European Site protected under the Habitats Regulations. The development proposal included the provision of open space, known as Suitable Alternative Green Space (SANG), which was designed to attract dog walkers and other recreational activity away from the heaths and into the open space. The reason for this was to prevent impacts on nesting birds on the heaths as a result of disturbance from people and their animals.
The proponents of the scheme argued that the provision of Suitable Alternative Green Space meant that the development proposals were unlikely to have a significant effect on the Thames Basin Heaths Special Protection Area and therefore an appropriate assessment under the Habitats Regulations was not required. Planning permission was declined by Hart District Council and then rejected by a government planning inspector following a public inquiry in December 2006. However, the Secretary of State for Communities and Local Government went against the planning inspector and granted planning permission for the scheme. This in turn was subject to judicial review, with the outcome that the planning permission was upheld. The case may mean that where mitigation with respect to European sites is incorporated into the design of the development, an appropriate assessment can be avoided.
Woolley ruling (England)
The case described here confirmed that local planning authorities must apply the same three tests as Natural England when deciding whether to grant planning permission when one or more of the European protected species offences under the Habitats Regulations may be committed if a planning permission is granted.
The three tests are:
- the activity must be for imperative reasons of overriding public interest or for public health and safety;
- there must be no satisfactory alternative; and
- favourable conservation status of the species must be maintained.
This judgment clarifies a legal duty which was already in existence although many planning authorities were not applying it correctly. His Honour Judge Waksman QC, in the High Court in June 2010, handed down this ruling in the case of R (on the application of Simon Woolley) v Cheshire East Borough Council concerning a development with a bat roost.
The species protection provisions of the Habitats Directive, as implemented by the Habitats Regulations, contain three ‘derogation tests’ which must be applied by Natural England when deciding whether to grant a licence to a person carrying out an activity which would otherwise lead to an offence under provisions protecting species in the Habitats Regulations: for example, bats, great crested newts, dormice or otters. This licence is usually obtained after planning permission has been granted. This judgment makes it clear that the local planning authority must also apply these three tests when determining a planning application. Planners failing to do so will be in breach of the Habitats Regulations.
The case related to an application for a judicial review of a decision to grant planning permission for a development in Wilmslow where an Edwardian Villa was to be demolished and three luxury apartments built. A bat roost had been identified at the original property following a survey. The bat issue was raised but was not given as a reason for refusal. It was common ground that in order to demolish the building a licence from Natural England was needed. This was granted and the building demolished. The judicial review was brought by Mr. Woolley claiming that, amongst other things, the planning authority had failed in its duty by failing to give consideration to the three derogation tests whilst considering the planning application. The court agreed, confirming that, “…a planning authority…has a statutory duty under Regulation 3(4) to have regard to the requirements of the Habitats Directive in the exercise of its functions when dealing with cases where a European Protected Species may be affected.”
West Thurrock Marshes (England)
In bringing its case against planning permission for the construction and operation of a distribution depot in Thurrock, Buglife relied on statements made in Planning Policy Statement 9 (PPS9) Biodiversity and Geological Conservation and the biodiversity duty under the Natural Environment and Rural Communities Act. The Court of Appeal confirmed that PPS9 should not be regarded as statute and that the planning authority was entitled to rely on the opinion of Natural England.
Thurrock Thames Gateway Development Corporation granted planning permission in 2006 to Rosemound Developments Limited for the construction and operation of a distribution depot on the site of the former power station in Thurrock. The site had developed considerable biodiversity interest during a period of disuse, which included the presence of three species of principal importance for the purpose of conserving biodiversity, and listed in the UK Biodiversity Action Plan (UKBAP).
The planning application was accompanied by an environmental statement that described ecological impacts and mitigation and the planning permission included conditions aimed at reducing the impacts on biodiversity. Natural England initially objected to the developments, but following extensive discussions and negotiations, withdrew its objections.
In February 2008, the planning permission was reviewed in the High Court on behalf of Buglife (a charity which aims to promote the conservation of invertebrates). It was argued firstly that planning permission was granted without first examining possible alternative locations; secondly, the planning authority had failed to satisfy itself whether the desirability of protecting the site for its wildlife was clearly outweighed by the need for the development and, thirdly, the planning authority had failed to ensure that the mitigation measures proposed were subject to and part of the environmental assessment.
The case relied on statements made in Planning Policy Statement 9 Biodiversity and Geological Conservation and the biodiversity duty under the Natural Environment and Rural Communities Act. Buglife lost the case. Significantly, the judge ruled that the planning authority was not required to provide a step-by-step analysis of PPS9. Buglife then took the case to the court of appeal in November 2008, where it was confirmed that PPS9 should not be regarded as statute and that the planning authority was entitled to rely on the opinion of Natural England, which had withdrawn its objection to the scheme. The appeal was therefore dismissed and the planning permission upheld.