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Habitat Directive Court Ruling

Could you be guilty of deliberate disturbance? The Supreme Court rules on the Habitats Directive


From :- Adas A+

A recent Supreme Court case has helped to clarify what is meant by the Habitats Directive “deliberate disturbance” offence. The case also confirms the obligation of planning authorities to have regard for the requirements of the Habitats Directive when making planning decisions.

The Habitats Directive promotes the maintenance of biodiversity by requiring Member States to take measures to maintain or restore natural habitats and wild species as listed on the Annexes to the Directive at a favourable conservation status, introducing robust protection for those habitats and species of European importance.

The Conservation of Habitats and Species Regulations 2010 (Habitats Regulations 2010) transpose the Habitats Directive into national legislation. Article 12 of the Habitats Regulations contains a range of prohibitions seeking to protect European Protected Species (EPS).

A recent Supreme Court case (Morge v Hampshire County Council) has helped to clarify the meaning of the ‘deliberate disturbance’ offence under the Habitat Regulations. Hampshire County Council granted planning permission for a proposed 3 mile stretch of roadway to provide a rapid bus service. Mrs Vivienne Morge lives close by and objected to the scheme.

The planning application was submitted and objected to by Natural England (NE) because of their concerns about the development on bats. The Council responded by submitting an Updated Bat Survey and as a result NE withdrew their objections, planning permission was then granted. The Updated Bat Survey found no bat roosts on site, but did show that the removal of trees and vegetation would result in loss of good quality bat foraging habitat and in addition the busway would sever a flight path, increasing the risk of collision with buses.

Mrs Morge challenged the planning permission on environmental grounds, including its impact on several bats species which are European Protected Species. The challenge failed before the Court of Appeal, but the Supreme Court granted limited permission to appeal on two issues of general importance. First, the level of disturbance required to engage the Habitats Directive “deliberate disturbance” offence. The second is the scope of the obligation in domestic legislation on Local Authorities to have regard to the requirements of the Habitats Directive in deciding whether to grant planning permission, and whether the Council in this case complied with the obligation. The Court dismissed Mrs Morge’s Appeal. However, in taking this case to the Supreme Court, the interpretation of what constitutes disturbance and whether foraging area is protected can now be better defined.

The European Protected Species ‘Deliberate Disturbance’ Offence

The Supreme Court has confirmed what “deliberate” means:
“A deliberate disturbance is an intentional act knowing that it will or may have a particular consequence, namely disturbance of the relevant protected species.”
This is helpful clarification of the word “deliberate”, and is applicable to all European Protected Species offences which contain this term. Therefore, a person will not commit an offence where they disturb an EPS but do not do so “deliberately”.

The Court has also given its view on the meaning of “disturbance”:
Adopting a more cautious approach than the Court of Appeal, it agreed that the provision relates to the species and not individual specimens of that species, and that the disturbance does not need to be significant to fall within the offence. However it stated the Court of Appeal had set the threshold too high in ruling that “deliberate disturbance” requires an impact on the conservation status at the population level or that affects the survival chances of a protected species. No minimum threshold for triggering the deliberate disturbance offence was set but further comments were made that can be used as guiding principles. Each case should be judged on its own merits, and consideration should be given to the rarity and conservation status of the species as disturbance to a rare or declining species can be more harmful than to a more abundant species.

In conclusion, the “deliberate disturbance” offence is to apply to an activity which is likely to negatively impact the survival or breeding of the species at the local population level. If habitat is adversely affected to the extent that it can be argued the conservation status of a species (breeding, rearing, hibernation and migration) is negatively affected, a development could be challenged in court. Contrary to the Court of Appeal decision, disturbing one or two individuals of a species is not outside the offence because for rare species, a species in decline, or a species at the edge of its range, a small number of individuals could make up a large proportion of the local population.
The Duty of LPAS to “have regard to the requirements of the Habitats Directive” in discharging their functions.

The Court of Appeal decision set out very clearly the way in which planning authorities should discharge their legal duty have regard to the requirements of the Habitats Directive when making planning decisions. It said that the LPA had first to assess whether the development proposal would breach the Habitats Directive “deliberate disturbance” offence. If so, then the LPA had then to consider whether Natural England was likely to grant a EPS licence for the development.

The Supreme Court has thrown doubt on this guidance saying “this goes too far and puts too great a responsibility on the Planning Committee whose only obligation is to have regard to the requirements of the Habitats Directive”.
In the Morge v Hampshire County Council case, the Supreme Court ruled that the LPA had adequately discharged its legal duty under the Habitats Regulations. NE had been consulted, and withdrew its objection subject to the implementation of recommended mitigation. Where Natural England express themselves as satisfied that the proposed development will be compliant with the Habitats Regulations, the planning authority are entitled to presume that that is so and need not assess the position for itself. In this case the Planning Committee had sufficient regard to the requirements of the Habitats Directive. This also implies that if Natural England were to maintain an objection to any application, then the LPA would most likely need to refuse planning permission. The Supreme Court has made clear the planning authority should only refuse planning permission if it believes that a licence is unlikely to be granted by Natural England.

Nicola Darwin
25th May 2011

Source: http://aplus.adas.co.uk/Services/ecology/Could-you-be-guilty-of-deliberate-disturbance-The-Supreme-Court-rules-on-the-Habitats-Directive-.aspx

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