Morge, R (on the application of) v Hampshire County Council.

The present Court of Appeal’s decision has clarified the extent of protection afforded to European protected species. The Court of Appeal dismissed an appeal against a decision of a Deputy High Court Judge in which he refused to quash a decision of Hampshire County Council to grant planning permission for a Bus Rapid Transit scheme providing a dedicated bus link between Gosport and Fareham.The Claimant contended that the Council had not fulfilled its obligation to have regard to the requirements of the Habitats Directive when granting planning permission. The Claimant contended that the protection afforded by Article 12(1)(b) of the Directive (deliberate disturbance of these species) was engaged as the proposed scheme would involve the destruction of foraging habitat and would introduce buses in area used by bats for crossing from a roost to foraging area. The Court of Appeal held that the loss of habitat does not itself fall within Article 12. The Court held that the occasional death of a bat should it be unable to take evasive action from large lighted buses will be a trivial disturbance not having a negative impact on the species as a whole so as to have any ecological importance. The Claimant contended that Article 12(1)(d) of the Directive was engaged as potential bat roosts would be destroyed and as bats arriving at a leaving an existing roost would be adversely affected by passing buses. The Court of Appeal rejected those arguments holding that Article 12(1)(d) requires strict protection of defined elements of the habitat namely actual breeding sites and resting places. The Court of Appeal also rejected the Claimant’s challenge to the Council’s decision that the proposal did not amount to EIA development for the purposes of the EIA Directive.