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

This is a case about bats and badgers, Beeching and bus-ways. In 1969 Lord Beeching caused the closure of the 128 year old railway line between Fareham and Gosport in Hampshire. Since then it has become overgrown with trees, shrubs and other vegetation. Bats and badgers have moved in. Now Hampshire County Council has granted Transport for South Hampshire planning permission for a bus route along the old track. A local resident, Mrs Vivienne Morge, challenges that permission asserting that it will disturb the bats and badgers and have a serious adverse impact on the environment. His Honour Judge Bidder Q.C., sitting as a Deputy High Court Judge of the Queen’s Bench Division, dismissed her claim for judicial review but Sullivan L.J. has given her permission to appeal.

Transport for South Hampshire, a creature of the Hampshire County Council, working in conjunction with the adjoining highway authorities is responsible for delivering the transport requirements for the area in order to implement the regional spatial strategy as contained in the South East Plan. At present the main access into the area is by way of a single carriageway which is already extremely congested with traffic and by 2011 it is expected that two thirds of the route will be over-capacity. In order to improve that access, Transport for South Hampshire has sought to provide an alternative form of transport to the private car. An idea to reintroduce a light railway had to be abandoned. The present proposal is to use 4.7 km of the old railway line as a bus-way 6.2 metres wide connected to the present road system by a series of new or altered junctions. If it is completed in its entirety it will provide a rapid bus service and cycle lane as the alternative form of transport to the private car in South East Hampshire.

Whilst that may be environmentally desirable, the scheme may have an environmental disadvantage. Although most of the scheme will lie within a built up area, designated nature conservation sites such as the Portsmouth Harbour Site of Special Scientific Interest and the Oakdene Woods and Fareham Grasslands Site of Importance for Nature Conservation are close by. As already noted, both sides of the old cutting and embankments have become thickly overgrown with shrubs and trees, some of which are now quite mature. This vegetation currently provides amenity value to the surrounding residential and industrial area as a linear green space dividing and softening the surrounding built-up environment. Consisting largely of native species, the area is a useful wildlife habitat and an ecological corridor for various flora and fauna. Of importance in the context of this appeal is the fact that several species of European protected bats and nationally protected badgers live and/or forage in this area. There is concern for them because it will be necessary to cut a swathe approximately 8 to 9 metres wide through this vegetation to allow for the new hard surfacing and associated linear drainage.

The scheme is supported by the Fareham and Gosport Borough Councils. Following extensive consultation in October 2008, the public reaction was mainly positive. There were, however, 291 objections, one of whom is Mrs Morge who lives close to the junction of one of the access roads with the proposed rapid transport road.

On 29th July 2009, after an earlier site visit, the planning committee of the Hampshire County Council met to determine whether or not grant permission for the scheme. The discussion lasted from 10.30 am to 1.30 pm. The committee resolved by a majority of 6 to 5 with 2 abstentions to grant planning permission “in respect of the South East Hampshire Bus Rapid Transit Phase 1 Fareham to Gosport from Redlands Lane, Fareham South by a disused railway corridor to Military Road, Gosport … for the reasons in the report and subject to the conditions in appendix B to the report.” The Committee also resolved by 7 votes to 5 with 1 abstention to adopt a screening opinion that the proposed development was not an Environmental Impact Assessment (“EIA”) development.

Mrs Morge then brought her claim for judicial review to quash the planning permission on grounds that it breached the requirements of the EC Habitats Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (“the Directive”) and the Conservation (Natural Habitats, &c) Regulations 1994 as amended (“the Habitats Regulations”) which transpose the Directive into English law in relation to protection of bats which are strictly protected under European law. She also asserted that the planning committee had acted unlawfully and/or irrationally in deciding that, although it was a schedule 2 development, it was nonetheless unlikely to have significant environmental effects and so it was not necessary to treat the proposal as an EIA development under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (the “EIA Regulations”) . On 17th November 2009 His Honour Judge Bidder Q.C. dismissed her claim for judicial review.

Four main questions arise in this appeal:

Council Directive 92/43/EEC of 21st May 1992 deals with the conservation of natural habitats and of wild fauna and of flora. Its purpose can be gleaned from the preamble which contains these recitals among others:

“Whereas the preservation, protection and improvement of the quality of the environment, including the conservation of natural habitats and of wild fauna and flora, are an essential objective of general interest pursued by the Community …

Whereas in view of the threats to certain types of natural habitat and certain species, it is necessary to define them as having priority in order to favour the early implementation of measures to conserve them …

Whereas it is recognised that the adoption of measures intended to promote the conservation of priority natural habitats and priority of species of Community interest is a common responsibility of all Member States …

Whereas a general system of protection is required for certain species of flora and fauna to complement Directive 79/409/EEC [“the Birds’ Directive”]; whereas provision should be made for management measures of certain species, if their conservation status so warrants, including the prohibition of certain means of capture or killing, whilst providing for the possibility of derogations on certain conditions …”

The aim of the Directive is made clear in Article 2 with the underlining added by me:

“1.

The aim of this Directive shall be to contribute towards ensuring bio-diversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the Member States to which the Treaty applies.

2.

Measures taken pursuant to this Directive shall be designed to maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community interest.

3.

Measures taken pursuant to this Directive shall take account of economic, social and cultural requirements and national and local characteristics.”

Pursuant to Article 1(a)

“conservation means a series of measures required to maintain or restore the natural habitats and the populations of species of wild fauna and flora at a favourable status as defined in (e) and (i)”.

Pursuant to Article 1(i):

“conservation status of a species means the sum of the influences acting on the species concerned that may affect the long-term distribution and abundance of its populations…

The conservation status will be taken as “favourable” when:

- population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats, and

- the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future, and

- there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis.”

By reference to the parts I have highlighted, I abstract this as the general policy and purpose of the Directive: (i) the aim is conservation, in this case the conservation of wild fauna; (ii) conservation will be achieved by taking such measures as are necessary to maintain the population of the species at a favourable conservation status; thus (iii), the measures required are those which will maintain the distribution and abundance of the population of an endangered species on a long-term basis as a viable component of its natural habitat. I will develop this theme in paragraphs 23 et seq.

The dual purpose of conserving not only the natural habitats as such but also the species themselves is reflected in the structure of the Directive. Articles 3 to 11, sometimes referred to as the “1^st pillar” of the Directive, are concerned with “Conservation of natural habitats and the habitats of species” whereas Articles 12 to 16, the “2^nd pillar”, are concerned with “Protection of species”. It is a distinction to bear in mind when construing the scope of the protective measures that have to be taken.

Article 12 provides as follows:

“1.

Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a)

all forms of deliberate capture or killing of specimens of these species in the wild;

(b)

deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c)

deliberate destruction or taking of eggs from the wild;

(d)

deterioration or destruction of breeding sites or resting places.”

The protected species listed in Annex IV include all species of microchiroptera which are the small bats to be found in this area of Hampshire.

No doubt to take account of the economic and social requirements envisaged in Article 1, Article 16 allows for derogation from strict compliance so that:

“1.

Provided that there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range, Member States may derogate from the provisions of Articles 12 …

(c)

in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment; …”.

“Imperative reasons of overriding public importance” passes into the argot beloved by planners as “IROPI”.

The Habitat Regulations transpose the Directive into domestic law. Regulation 3(4) provides for its implementation in this way:

“Without prejudice to the preceding provisions, every competent authority in the exercise of any of their functions, shall have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of those functions.”

It is common ground that the County Council are the competent authority and the planning committee must, therefore, have regard to the Directive when exercising its functions as the planning authority.

Article 12 was transposed by regulation 39 and exceptions were provided by regulation 40. There have been changes since this was first promulgated in 1994. One important amendment was the removal of the defence that covered acts which were the incidental result of a lawful operation, e.g. the grant of planning permission and which could not have been reasonably avoided ( the “incidental result defence”). Due to the removal of many of the defences in regulation 40, the offence in regulation 39(1)(b) of deliberately disturbing an EPS was amended by the 2007 Amendment Regulations so that activities which caused low level deliberate disturbance that might be considered unlikely have the effects covered by the Directive could continue within the law. Thus the 2007 version of regulation 39 was to this effect :

“39(1) A person commits an offence if he –

(a)

deliberately captures, injures or kills any wild animal of a European protected species;

(b)

deliberately disturbs wild animals of any such species in such a way as to be likely significantly to affect –

(i)

the ability of any significant group of animals of that species to survive, breed, or rear or nurture their young; or

(ii)

the local distribution or abundance of that species;

(c)

deliberately takes or destroys the eggs of such an animal; or

(d)

damages or destroys a breeding site or resting place of such an animal.” (I have added the emphasis.)

That was amended by the 2009 Amendment which came into effect on January 30, 2009, a date some months but not very long before the events with which we are concerned. Regulation 39 was changed to read as follows:

“39(1) A person commits an offence if he –

(a)

deliberately captures, injures or kills any wild animal of a European protected species;

(b)

deliberately disturbs wild animals of any such species;

(c)

deliberately takes or destroys the eggs of such an animal; or

(d)

damages or destroys a breeding site or resting place of such an animal.

(1A) For the purposes of paragraph 1(b), disturbance of animals includes in particular any disturbance which is likely –

(a)

to impair their ability –

(i)

to survive, to breed or reproduce, or to rear or nurture their young; or

(ii)

in the case of animals of a hibernating or migratory species, to hibernate or migrate; or

(b)

to affect significantly the local distribution or abundance of the species to which they belong.” (Again I have added the emphasis.)

Two points should be noted about this change. First, under the 2007 regulation the disturbance had to affect a significant group of animals whereas no number is specified in the 2009 regulation and secondly, under the 2007 regulations both the ability to survive and hibernate etc. and local distribution had to be affected significantly but as from 2009 it is only the effect on local distribution that needs to be significant. DEFRA issued a paper of questions and answers to explain the main changes made by the 2009 Regulations. Question 4 asked, “The disturbance offence has been changed. Will trivial disturbance now be caught by the offence?” The answer was:

“Due to the removal of many defences in Regulation 40 in 2007 the offence of deliberately disturbing an European protected species in Regulation 39(1)(b) was amended at that time so that activities that caused low level deliberate disturbance that may be considered unlikely to have the effects covered by the Directive can continue within the law.

The current changes retain the requirement that for the offence to be committed, the result of disturbance must affect important life cycle processes and so low level or inconsequential disturbances (i.e. trivial) that does not have these impacts is not captured by the offence in these Regulations.” (Yet more highlighting by me.)

Question 5 asked, “Doesn’t the removal of a significant group of animals mean that deliberate disturbance of a single animal will now be caught by the offence?” The answer was:

“Removal of reference to ‘a significant group of animals’ ensures that whether the number of animals affected by an action is sufficient for that reaction to be regarded as ‘disturbance’ will be a matter for consideration on a case by case basis. This will depend on the impact on the species in question. In most cases it is not expected that an action which disturbed a single animal or a small number of animals would have sufficient impact to be caught by the offence, although if any of our European protected species become particularly rare, disturbing very few animals could potentially have serious effects,” (my emphasis added).

I must explore the significance of these changes later.

To allow for derogation, regulation 44 provides:

“44(1) Regulations 39, 41 and 43 do not apply to anything done for any of the following purposes under and in accordance with the terms of a licence granted by the appropriate authority.

(2)

The purposes referred to in paragraph (1) are-…

(e)

preserving public health or public safety or other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment. …

(3)

The appropriate authority shall not grant a licence under this regulation unless they are satisfied –

(a)

that there is no satisfactory alternative, and

(b)

that the action authorised will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range.”

The “appropriate authority” for this purpose is Natural England.

The 1994 Regulations are now amended by and replaced by the Conservation of Habitats and Species Regulations 2010 which re-enact, in what is for present purposes substantially though not precisely the same form, Regulations 3(4), 39 and 44 of the 1994 Regulations: see Regulations 9, 41 and 53 respectively of the 2010 Regulations which came into force on 1st April 2010.

A development will be classified as a Schedule 2 development if it is a development for the construction of roads where the area of the works exceeds one hectare. Here it is common ground that the work covers about three hectares and that it is, therefore, a Schedule 2 development. The issue is whether this is an EIA development which is defined by regulation 2(1) of the EIA Regulations in these terms:

“ 2(1) ‘EIA development’ means development which is either –

(a)

Schedule 1(1) development; or

(b)

Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location.”

Regulation 3(2) of the EIA Regulations then provides:

“3(2) The relevant planning authority … shall not grant planning permission … unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so.”

Regulation 4(5) provides:

“4(5) Where a local planning authority or the Secretary of State has to decide under these Regulations whether Schedule 2 development is EIA development the authority or Secretary of State shall take into account in making that decision such of the relevant criteria set out in Schedule 3 as are relevant to the development.”

The criteria in Schedule 3 cover the characteristics of the development, its location and the characteristics of the potential impact. Where an EIA is required, paragraph 4 of Part I to Schedule 4 of the EIA Regulations provides that the environmental statement must include –

“A description of the likely significant effects of the development on the environment, which should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative effects of the development, resulting from

(a)

the existence of the development;

(b)

the use of natural resources;

(c)

the emission of pollutants, the creation of nuisances and the elimination of waste,

and the description by the applicant of the forecasting methods used to assess the effects on the environment.”

At the end of his long and careful judgment Judge Bidder reached these conclusions. First, as to ground one of the claim dealing with the question of disturbance of the bats, he held:

“188.

Here the defendant notified Natural England of the proposals and responded to their specific objections by commissioning the detailed and expert UBS [the Updated Bat Survey]. The detail of the survey shows the careful consideration of potential direct and indirect harm to the EPS [European Protected Species], considering, as the authority is entitled to do, the methods of mitigation which could reduce the potential for harm. The executive summary … makes it clear, in my judgment, that the proposals did not involve deliberate disturbance of this EPS within the meaning of Article 12(1)(b) or regulation 39 of the Habitat Regulations. The officers’ conclusions on that issue were supported, most importantly, by the withdrawal of the objection of Natural England. They were right not to invite the members to consider derogation because the proposals did not involve deliberate disturbance. On this issue I should not consider questions of Wednesbury unreasonableness but the issue of whether Article 12(1)(b) and regulation 39(1)(b) would be contravened by the proposals. I am satisfied that they would not and that the decision of the Defendant on this issue cannot be regarded as unlawful.”

Secondly, as to the second ground dealing with damage or destruction of a breeding site or resting place of bats, the judge decided:

“190.

I do not accept that Article 12(1)(d) is concerned with an “indirect” effect such as the obstruction of bats commuting to and from a roost not within the works’ footprint. Such obstruction does not amount to deterioration or damage or destruction of a breeding site or resting place.”

Thirdly he dealt with the failure to take account of harm caused by the proposal to badgers and held that the planning decision could not be regarded as irrational. There is no appeal against this part of the judgment.

Finally, dealing with the failure to treat the proposal as an EIA development, he held:

“208.

… as the summary to the UBS makes clear, it was not the case that bats were likely to be significantly “adversely affected by the proposals”.”

As for the impact on the badgers, the judge held that the members of the planning committee were provided with sufficient information to allow them to consider whether there was no likely significant effect on the environment as a result of the proposals on badgers since the contents of the DEA [the Detailed Environmental Assessment] were available to the defendants’ officers and “the conclusion of the DEA was that the overall impact would be slight adverse, i.e. not significant.” As for the alleged failure properly to consider the visual, noise and contamination impact of the scheme on the environment, the judge held:

“217.

As the authorities make clear, the decision as to whether a project is EIA is not a question of hard fact but involves an exercise of judgment or opinion. On the issue of local impacts, I am satisfied that there was ample material for the members to make the judgment that they did and they were entitled to reach the conclusion that they did, which conclusion was not, in my judgment, irrational.”

Preserving, protecting and improving the environment including bio-diversity are the essential objectives of general interest pursued by the European Community as provided for in Article 174 of the Treaty. The Birds Directive of 1979 and the Habitats Directive of 1992 are steps towards achieving those aims. Bio-diversity is ensured by the conservation both of natural habitats and of the wild fauna and flora and the measures to be taken include the measures pursuant to Article 12. Article 12 must be interpreted in such a way as to give effect to the purpose of the Directive. As already set out at [9] above, but it is worthy of repetition, it appears to me that the general policy and purpose of the Directive can be broadly stated by these propositions: (i) the aim is the conservation of wild fauna; (ii) conservation will be achieved by taking such measures as are necessary to maintain the population of the species at a favourable conservation status; thus (iii), the measures required are those which will maintain the distribution and abundance of the population of an endangered species on a long-term basis as a viable component of its natural habitat.

It is, however, important that, before I express a concluded view, I have regard to the European Commission’s views on the scope of the Directive. The Commission has issued a “Guidance document on the strict protection of animal species of Community interest under the Habitats Directive 92/43/EEC”, (the “Guidance”) the final version of which was issued in February 2007. Although the Guidance is not binding, it is nonetheless instructive and compelling. “Favourable conservation status” is dealt with at 1.2.2 (p. 9) as follows:

“(14)

The maintenance or restoration of “favourable conservation status” (FCS) is the overall objective for all habitat types and species of Community interest. … In simple terms, FCS could be described as a situation where a habitat type or species is doing sufficiently well in terms of quality and quantity and has good prospects of continuing to do so in future”, (emphasis added by me).

“The natural range of species” is a phrase used in several places in the Directive but it is not defined in Article 1. The Guidance tells that:

“The natural range describes roughly the spatial limits within which the habitat or species occurs.”

Of much greater importance than the Guidance are, of course, the decisions of the ECJ which bind us. In Commission v Greece Case C-103/00 Advocate General Léger added his emphasis to Article 1(i) and said:

“42.

…conservation status is regarded as ‘favourable’ when population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats, that the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future, and that there is, and probably will continue to be a sufficiently large habitat to maintain its populations on a long-term basis.

43.

… the combined effect of those provisions is apparently that a system of strict protection of an animal species of Community interest means a set of co-ordinated measures, of a preventative nature, which ensure in the long term that the population of the species in question is maintained or restored in the type of natural habitat to which it belongs. This assumes that there is a sufficiently large natural habitat for the species in question.”

What seems to him to be important is ensuring the maintenance of the population of the species in its natural habitat in the long term. The Court did not deal directly with the point but did not seem to have dissented from it.

In Commission v United Kingdom Case C-6/04 the Court said:

“Furthermore, as the Advocate General has observed in point 113 of her Opinion, Articles 12, 13 and 16 of the Habitats Directive form a coherent body of provisions intended to protect the populations of the species concerned …”

From these citations one can glean the policy objective. It is to ensure that the population of the species is maintained at a level which will ensure the species’ conservation so as to protect the distribution and abundance of the species in the long-term. Generally speaking (and subject to any specific requirements in Article 12) the measures are aimed at the conservation of the species as a whole, and so not necessarily (but subject to Article 12(1)(a)) at the protection of an individual member of the species. At this level of generality the loss of an individual bat or perhaps even two or three bats may not constitute a danger to the preservation of the bat species on a long-term basis as a viable component of their natural habitat. The question will have to be considered on a case by case basis.

The first point to note is the difference between Article 12(1)(a) and 12(1)(b). Article 12(1)(a) is concerned with the deliberate capture or killing of specimens of the species in the wild. “Specimen” is a defined term meaning any animal of the species listed in Annex IV and Annex V. So deliberately killing one bat is prohibited and a licence under regulation 43 is required to do so. By contrast Article 12(1)(b) is concerned with deliberate disturbance of the species, not with specimens of the species. This is, therefore, a much broader question which is why I have already observed that deliberately disturbing one bat or even more than one bat may not amount to a disturbance of the species which is the activity prohibited by Article 12 (1) (b). The long-term maintenance of the population of the species is obviously more at risk if there is disturbance at vital times of breeding, rearing, hibernation and migration.

What does “deliberate” mean? There is no dispute about this. The question has, after all, been decided by the ECJ in Commission v Spain Case C-221/04 [2005] Env LR 20, a case where the setting of stopped snares endangered the lives of the otter. The Court held:

“71.

For the condition as to "deliberate" action in Article 12(1)(a) of the Directive to be met, it must be proven that the author of the act intended the capture or killing of a specimen belonging to a protected animal species or, at the very least, accepted the possibility of such capture or killing.”

If that definition applies to Article 12(1)(a), it must equally apply to Article 12(1)(b). Whatever the ordinary meaning of “deliberate” as an English word, the meaning given by the ECJ is perfectly easy to understand and it must be applied.

I do not see how I can improve upon that definition and I doubt whether the Guidance adds much. The much more elaborate explanation given at II.3.1, paragraph 33 (p.36) is:

“… “Deliberate” actions are to be understood as actions by a person who knows, in light of the relevant legislation that applies to the species involved, and the general information delivered to the public, that his action will most likely lead to an offence against a species, but intends this offence or, if not, consciously accepts the foreseeable results of his action. In other words, not only a person who fully intends to capture or kill a specimen of an animal commits an offence: an offence is also committed by a person who might not intend to capture or kill a specimen but is sufficiently informed and aware of the consequences his action will most likely have and nevertheless performs the action, leading to the capturing or killing of specimens (e.g. as an unwanted but accepted side-effect), with reckless disregard of the known prohibitions (conditional intent). It goes without saying that negligence is not included in the meaning of “deliberate”.”

At the heart of this appeal lies a difficult question: what is the meaning to be given to “disturbance”? The plain and ordinary meaning of the word may simply be breaking the rest or the calm of the bats or, more generally simply agitating them but it must be remembered that the word has to be given an autonomous meaning across the European board consistent with and informed by the broad aims of the Directive. The European Court of Justice has not ventured any opinion on what is or what is not involved in a deliberate disturbance of the species. Commission v Greece Case C-103/00, an early decision of the Court, did no more than state what was surely obvious, namely:

“34.

It is undisputed that the use of mopeds on a beach used for breeding by the Caretta caretta turtle is, particularly owing to the noise pollution, liable to disturb that species during the laying period, the incubation period and the hatching of the eggs, as well as during the baby turtles' migration to the sea. It is also established that the presence of small boats near the breeding beaches constitutes a source of danger to the life and physical well-being of the turtles.

…

36.

It follows that the use of mopeds on the sand beach to the east of Laganas and the presence of pedalos and small boats in the sea area around Gerakas and Dafni constitute the deliberate disturbance of the species in question during its breeding period for the purposes of Article 12(1)(b) of the Directive.”

So there is little help to be gained from the pronouncements of the Court.

Turning to the Guidance, this is the help we are given at II.3.2(a) (p. 37):

“(37)

Disturbance (e.g. by noise, source of light) does not necessarily directly affect the physical integrity of a species but can nevertheless have an indirect negative effect on the species (e.g. by forcing them to use lots of energy to flee; bats, e.g. when disturbed during hibernation, heat up as a consequence and take flight, so are less likely to survive the winter due to high loss of energy resources). The intensity, duration and frequency of repetition of disturbances are important parameters when assessing their impact on a species. Different species will have different sensitivities or reactions to the same type of disturbance, which has to be taken into account in any meaningful protection system. Factors causing disturbance for one species may not create disturbance for another. Also, the sensitivity of a single species might be different depending on the season or on certain periods of its life cycle (breeding period). Article 12(1)(b) takes into account this possibility by stressing that disturbances should be prohibited particularly during the sensitive periods of breeding, rearing, hibernation and migration. Again, a species-by-species approach is needed to determine in detail the meaning of “disturbance”.

(38)

The disturbance under Article 12(1)(b) must be deliberate (see chapter II.3.1) and not accidental. On the other hand, while “disturbance” under Article 6(2) must be significant, this is not the case in Article 12(1), where the legislator did not explicitly add this qualification. This does not exclude, however, some room for manoeuvre in determining what can be described as disturbance. It would also seem logical that for disturbance of a protected species to occur a certain negative impact likely to be detrimental must be involved.

(39)

In order to assess a disturbance, consideration must be given to its effect on the conservation status of the species at population level and biogeographic level in a Member State (see also chapter III.2.3.a on “Scale of assessment”). For instance, any disturbing activity that affects the survival chances, the breeding success or the reproductive ability of a protected species or leads to a reduction in the occupied area should be regarded as a “disturbance” in terms of Article 12. On the other hand, sporadic disturbances without any likely negative impact on the species, such as for example scaring away a wolf from entering a sheep enclosure in order to prevent damage, should not be considered as disturbance under Article 12. Once again, it has to be stressed that the case-by-case approach means that the 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, as explained above.” (The emphasis is mine.)

The first thing to note is the distinction that has been drawn between Article 12(1)(b) and Article 6(2) which is to this effect:

“Article 6

2.

Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.”

The point to be made is that for Article 12(1)(b) purposes, the disturbance need not be significant.

It is not necessary for the purposes of this judgment to express any view as to whether or not Regulation 39 faithfully and accurately transposes the Directive. It may be that it does not in as much as there is still reference to activity which is likely to affect significantly the local distribution or abundance of the species to which they belong. Since it is the Directive and not the Regulations which must prevail, I need say no more than that the disturbance need not be significant.

That leaves unresolved what the level of disturbance must be to fall within the prohibition. Activity will not amount in law to disturbance at all if it is de minimis, i.e. too negligible for the law to be concerned by it. Mr George Q.C., for the appellant, submits that any activity above that minimal level is disturbance. I do not accept that submission. The example give in paragraph 39 of scaring away the wolf from the sheep fold , must be an a fortiori, rather than a typical one. The disturbance does not have to be significant but, as paragraph 38 of the Guidance explains, there must be some room for manoeuvre which suggests that the threshold is somewhere between de minimis and significant. It must be certain, that is to say, identifiable. It must be real, not fanciful. Something above a discernible disturbance, not necessarily a significant one, is required. Given that there is a spectrum of activity, the decision maker must exercise his or her judgment consistently with the aim to be achieved. Given the broad policy objective which I explored in [27] above, disturbing one bat, or even two or three, may or may not amount to disturbance of the species in the long term. It is a matter of fact and degree in each case.

Mr George seizes on the words in paragraph (38) of the Guidance, “a certain negative impact likely to be detrimental must be involved” and he elevates this statement into a test for establishing a disturbance. His difficulty is that that does not answer the critical question: when does the negative impact become detrimental? Paragraph (39) seems to me to spell out the proper approach, namely to give consideration to the “effect on the conservation status of the species at population level and biogeographic level”. This in my judgment is an important refinement. The impact must be certain or real, it must be negative or adverse to the bats and it will be likely to be detrimental when it negatively or adversely effects the conservation status of the species. “Conservation status of a species” is a term of art which, as I have set out at [9] above, means the sum of the influences acting on the species concerned that may affect the long-term distribution and abundance of its population. That is why the Guidance at (39) makes the point that the disturbing activity must be such as “affects the survival chances … of a protected species”. Furthermore, “the 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”, to quote the concluding sentence of paragraph 39. The summary in the Guidance has the same emphasis:

“Disturbance is detrimental for a protected species e.g. by reducing survival chances, breeding success or reproductive ability. A species-by-species approach needs to be taken as different species will react differently to potentially disturbing activities.”

Having regard to the aim and purpose of the Directive and of Article 16 and having due consideration of the Guidance, I am driven to conclude that for there to be disturbance within the meaning of Article 12(1)(b) that disturbance must have a detrimental impact so as to affect the conservation status of the species at population level. I realise at once that this construction of article 12(1)(b) gives rise to this conundrum: if detriment to the conservation of the species at population level is needed to establish a disturbance, can there ever be a derogation from Article 12(1)(b), Article 16 permitting, a derogation provided that “the derogation is not detrimental to the maintenance of the population of the species at a favourable conservation status.” Mr Cameron Q.C., for the respondent, drew our attention to regulation 44(3)(b) which replicates Article 16 and considered that it carried the implication that disturbance could not be limited to such activity as was detrimental to the maintenance of the population of the species at a favourable conservation status in their natural range. I agree that if regulation 44(3)(b) applied only to derogation/licensing in respect of disturbance, this would follow. But it does not. It applies to all activity otherwise caught by regulations 39 [“Protection of certain wild animals”], 41 [“Prohibition of certain methods of taking or killing wild animals”] and 43 [“Protection of certain wild plants”], and thus (for example) to the deliberate capture, injury or killing of any wild animal or to the damage or destruction of a breeding site. It makes perfectly good sense for regulation 44(3)(b) to impose the overall limitation on licensing that the activity licensed must not be detrimental to favourable conservation status. It does not follow that that limitation is not already present within the meaning of just one of the activities which must be licensed, namely disturbance. Indeed it makes very good sense that it should be. I agree that it follows in most if not all cases an act which constitutes disturbance will not be capable of being licensed, but European Directives are not drafted with the same literal precision as is attempted in English statutes and it is not unlikely there should be an overlap between the concept of disturbance and the provision for derogation.

This concern about the interaction of Articles 12(1)(b) and 16 does not cause me to alter the view I have formed. DEFRA seem to share my opinion. As I set out at [16] above, the Government is of the view that “In most cases it is not expected that an action which disturbed a single animal or a small number of animals would have sufficient impact to be caught by the offence, although if any of our European protected species become particularly rare, disturbing very few animals could potentially have serious effects.”

In my judgment whether the disturbance will have a certain negative impact which is likely to be detrimental must be judged in the light of and having regard to the effect of the disturbance on the conservation status of the species, i.e. how the disturbance affects the long-term distribution and abundance of the population of bats. I remind myself that according to the Guidance quoted at [24] above, “FCS could be described as a situation where a … species is doing sufficiently well in terms of quality and quantity and has good prospects of continuing to do so in the future.” Whether there is a disturbance of the species must be judged in that light.

Mr George contends that, as the Guidance makes clear in paragraph (37), disturbance “does not necessarily directly affect the physical integrity of the species” and he argues that an activity can be liable to disturb the EPS if it has an indirect effect likely to be detrimental to the species. I agree that the indirect effects of the development can constitute a disturbance whether by noise, vibration or light or whatever.

Mr George submits that the relevant disturbance in this case is established by the respondent’s own experts who found in the Updated Bat Survey that there will be up to 9 years of moderate adverse impact on the foraging of bats. In my judgment it is necessary to refine that argument and to distinguish between the loss of foraging habitat and the action taken by the bats to compensate for that loss.

Mr Cameron Q.C., for the Council, advances the powerful argument that Article 12(1)(b) affords protection to species not to habitats. He points out that the “first pillar” of the provisions in Articles 3-11 are concerned with the conservation of the habitat whereas Article 12 in the second pillar is concerned with the protection of the species. If the corridor which is being cut through the vegetation were a special area of conservation (and it is not) then Article 6 might apply but it is not necessary to consider that question. The issue is whether the clearing of the vegetation constitutes a disturbance, directly or indirectly.

In my judgment Mr Cameron is correct. The loss of woodland and scrub vegetation may well result, as paragraph 9.2.4 of the updated Bat Survey suggests, in a reduction in the abundance of invertebrates and a decrease in the quality of the foraging habitat available for bats. That loss is a loss of habitat and is not of itself within Article 12.

The Updated Bat Survey does, however, go on to say:

“This would reduce the carrying capacity of the habitat for bats and any bats in the area would have to travel further and expend more energy during foraging.”

This change in the pattern of life for the bats may amount to a disturbance of their routine and so may constitute a disturbance and I will return to that question later in this judgment.

Mr George also submitted that there was a disturbance of the common pipistrelle bats which roosted in a house adjacent to Titchbourne Way and commuted between the roost and Oakdene Wood. The clearance would result in a partial clearance of vegetation between the roost and Oakdene Wood over the width of the new road and, as set out at paragraph 8 of the updated Bat Survey, this would result “in an increased risk of collision with vehicles for bats commuting between the roost and Oakdene Wood.” The submission that this constituted a disturbance was put in the alternative to the main submission that it constituted a breach of Article 12(1)(d) with which I deal next. In my judgment this argument is very much an afterthought and is wrong. Even if an indirect consequence of the clearance is that the bats fly low over it and are therefore at risk of being struck by the passing buses, there is no evidence whatsoever that the risk is so great that the mortality rate will have any adverse impact on the population of these bats in the long term. 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. Since a motorist could not be prosecuted for breach of regulation 39(1)(a) for deliberately killing a bat, so too it is inconceivable that his driving in an area inhabited by bats could possibly constitute deliberate disturbance of the bats. Still less is the clearing of the vegetation such a disturbance.

The first point to note is that here the deterioration or destruction does not need to be deliberate. The European Court of Justice has accepted the importance of that distinction. In Commission v United Kingdom Case C-6/04, the Court held:

“79.

As regards Gibraltar, suffice it to state that the United Kingdom acknowledges that, by prohibiting only the deliberate damaging or destruction of breeding sites or resting places of the species concerned, the legislation applicable in Gibraltar does not satisfy the requirements of Article 12(1)(d). Accordingly this part of the complaint must be held to be well founded.”

In Commission v Germany Case C-98/03 the Court explained:

“55.

The Court has already held that the acts already referred to in Article 12(1)(d) of the Directive include non-deliberate acts (see Commission v United Kingdom, para 73-79). By not limiting the prohibition laid down in Article 12(1)(d) of the Directive to deliberate acts, which it has done in respect of acts referred to in Article 12(1)(a)-(c), the Community legislation has demonstrated its intention to give breeding grounds or resting places increased protection against acts causing their deterioration or destruction. Given the importance of the objectives of protecting bio-diversity which the Directive aims to achieve, it is by no means disproportionate that the prohibition laid down in Article 12(1)(d) is not limited to deliberate acts.”

The second point to make is that there is a distinction between Article 12(1)(d) and the other prohibitions in Article 12. Paragraph II.3.4 of the Guidance explains:

“Contrary to the other prohibitions of Article 12, it does not concern directly the species but protects important parts of their habitats, as it prohibits deterioration or destruction of breeding sites or resting places.”

The Guidance continues:

“(53)

In the light of the objectives of the Directive, however, breeding sites and resting places may be considered to require strict protection because they are crucial to the life cycle of animals and are very important parts of a species’ entire habitat, needed to ensure its survival. Their protection is directly connected with the conservation status of a species. The provision in Article 12(1)(d) should therefore be understood as aiming to safeguard the ecological functionality of breeding sites and resting places. Thus, Article 12(1)(d) ensures that such sites and places are not damaged or destroyed by human activities so that they can continue to provide all that is required for a specific animal to rest or to breed successfully.

54.

It thus follows from Article 12(1)(d) that such breeding sites and resting places also need to be protected when they are not being used, but where there is a reasonably high probability that the species concerned will return to these sites and places. If for example a certain cave is used every year by a number of bats for hibernation (because the species has the habit of returning to the same winter roost every year), the functionality of this cave as a hibernating site should be protected in summer as well so that the bats can re-use it in winter. On the other hand, if a certain cave is used only occasionally for breeding or resting purposes, it is very likely that the site does not qualify as a breeding site or resting place.” [The bold highlighting is in the Guidance, the italics have been added by me.]

I have added the emphases to show that specific sites are the target of the protection.

The third point is that the proposed development must be judged in the light of whether it would directly or indirectly result in deterioration or destruction. That indirect deterioration or destruction is sufficient was made plain by Advocate General Kokott in Commission v UK:

“74.

The Commission is right in stating that Article 12(1)(d) of the Habitats Directive prohibits not only direct damage but also acts which lead only indirectly to adverse effects on breeding sites and resting places. According to Article 12(1)(d), any deterioration or destruction of breeding sites and resting places is to be prohibited. No distinction is drawn between direct and indirect adverse effects.”

The Court dealt with this issue as follows:

“80.

Third, the Commission states that the United Kingdom legislation is currently drafted to protect breeding sites and resting places only against activities having a direct effect on them, and does not take account of indirect impairment in accordance with the requirements of Article 12(1)(d) of the Habitats Directive.

81.

This argument cannot be upheld. The Commission has adduced no evidence capable of proving that the United Kingdom has failed to fulfil its obligations in this regard.”

In giving directions for the hearing of the judicial review, Walker J. wisely directed the parties to agree propositions of law and Mr George and Mr Cameron helpfully co-operated and submitted their common view that:

“17.

In the present case the critical issue is whether the proposed development would, directly or indirectly, affect the bats in the sense of deliberately disturbing them as set out in 12(1)(b) or in the deterioration or destruction of their breeding sites or resting place.”

Judge Bidder took a different view. He said:

“85.

… while I differ from a proposition of law agreed between the parties with some hesitation, I doubt whether the proposition as drafted [in paragraph [17]] is supported by either the Directive, the Guidance or the cited passage [paragraphs [80]-[81]] from Commission v UK. …

88.

Thus, it seems to me, that contrary to the agreed proposition of law, it is unnecessary to read into 12(1)(d) or 39(1)(d) any concept of “indirect” effect.”

In my judgment the judge fell into error. The only indication in paragraphs 80 and 81 is that the Court was accepting the Commission’s apparent submission that indirect impairment was sufficient and only rejected the Commission’s case because no evidence was adduced to prove the alleged breach. The Court would not have rejected the clear opinion of the Advocate General without expressly saying so. Moreover the United Kingdom did not dispute that interpretation. There is further support from the judgment of the Court in Commission v Greece, the case about the turtles laying their eggs in the sand of the beach. The Court held:

“Finally, there is no doubt that the presence of buildings on a breeding beach such as the one at Dafni is liable to lead to the deterioration or destruction of the breeding site within the meaning of Article 12(1)(d) of the Directive.”

I am satisfied that the judge erred and his conclusions are flawed accordingly.

Mr Cameron properly does not resile from the statement of law he agreed with Mr George and he does not seek to uphold the judgment in this respect. Nevertheless he submits that even if the decision-maker must have regard to indirect effect, the appellant’s case fails as a matter of law.

The appellant’s case in this regard has two aspects to it. The first relates to the bats’ roosting place. The evidence in the Updated Bat Survey is:

“9.2.1.

… The works would result in the loss of a number of trees with low to moderate bat roost potential and approximately seven trees with moderate to high bat potential. No known roost would be lost during the works. Each tree with bat potential to be felled or disturbed during the works is subject to a series of emergence and re-entry surveys between May and June 2009. No bat roosts were identified by these surveys and therefore it is unlikely that any maternity roosts will be affected by the works. Bats that roost in trees move frequently and there is a potential for the trees to be used as roost sites at different times of the year and any works must consider the potential for trees to be used as roost sites. …

Due to the difficulty in identifying tree roosts, the Bat Conservation Trust 2007 recommend that trees with high potential should be assumed to be used by bats at some point during the year or in the future. The surveys indicate that no roost sites will be lost, however, due to the loss of high potential roost sites, the impact is anticipated to be Slight Adverse.”

Whilst accepting that no actual roosts will be destroyed, Mr George submits that potential roosts will be lost as tree felling proceeds and that is enough to fall within Article 12(1)(d).

Mr Cameron relies on paragraphs 53 and 54 of the Guidance which I have set out above and on the summary at p.45 which is as follows:

“Summary: Breeding sites and resting places are to be strictly protected, because they are crucial to the life cycle of animals and are vital parts of a species’ entire habitat. Article 12(1)(b) should therefore be understood as aiming to safeguard the continued ecological functionality of such sites and places, ensuring that they continue to provide all the elements needed by a specific animal to rest or to breed successfully. The protection applies all year round if these sites are used on a regular basis.”

Mr Cameron submits there will be no loss of ecological functionality as the provision of bat boxes will ensure that the same or a greater number of potential roosts are available for the bats.

I agree with Mr Cameron. Article 12(1)(d) requires the strict protection of defined elements of the habitat, namely their actual breeding sites and resting places. It does not cover the loss of a potential site if the ecological functionality is safeguarded as, on the evidence here, it will be. There are plenty of other trees in which the bats can roost in addition to the bat boxes that will be provided. To suggest that because the development will affect a potential breeding site or resting place, that development would breach Article 12(1)(d) goes too far. The loss of potential breeding sites or resting places does not contravene Article 12(1)(d).

The second argument advanced by Mr George is that there is an indirect deterioration of the roosting site of the pipistrelle bat because of the risk of buses colliding with the bats as they swoop low over the road on their way to the foraging habitat of Oakdene Wood. I reject that argument. Article 12(1)(d) is aimed at safeguarding the ecological functionality of the breeding sites and resting places. The risk of collision has no impact on the physical degradation affecting the breeding site itself. If the appellant is right, any action which interfered with a bat commuting route would lead to the perpetrator of that action being prosecuted under Regulation 39(1)(d) of the Regulations, putting every person who drove a car close to a roost at risk of prosecution. That would be absurd.

The proposition of law agreed by counsel is that

“the LPA needs to engage with the provisions of the Habitats Directive in the sense that it needs to consider the protection afforded to EPS and to consider whether the derogation requirements can be met.”

They refer to R (Simon Woolley) v Cheshire East Borough Council [2009] EWHC 1227 (Admin).

It seems to me that the Planning Committee’s duty is prescribed by Regulation 4(3): it must have regard to the requirements of the Habitats Directive so far as they may be affected by the proposed development. The Planning Committee must grant or refuse planning permission in such a way that will “establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range.” If in this case the Committee is satisfied that the development will not offend Article 12(1)(b) or (d) it may grant permission. If satisfied that it will breach any part of Article 12(1) it must then consider whether the appropriate authority, here Natural England, will permit a derogation and grant a licence under Regulation 44. Natural England can only grant that licence if it concludes that (i) despite the breach of Regulation 39 (and therefore of Article 12) there is no satisfactory alternative; (ii) the development will not be detrimental to the maintenance of the population of bats at favourable conservation status and (iii) the development should be permitted for imperative reasons of overriding public importance. If the Planning Committee conclude that Natural England will not grant a licence it must refuse planning permission. If on the other hand it is likely that it 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.

The Planning Committee is assumed to have substantial background and local knowledge but it is otherwise very much dependent upon the planning officer whose duty it is clearly, even if concisely, to provide enough information and give sufficient advice to the Planning Committee to put it in possession of the critical facts relevant to their decision and the crucial directions that will enable it to know how to discharge its statutory and regulatory responsibility.

As for the court’s task, counsel in their agreed note referred to an array of cases such as Oxton Farms v Selby District Council, Court of Appeal 18th April 1997, R v Mendip ex parte Fabre (2000) AP&CR 500, R (Miller) v North Yorkshire [2009] EWHC 2172 (Admin) and Cran & ors v London Borough of Camden [1995] RTR 346. To summarise those authorities the court will not zealously scrutinize every word of the report as if construing a statute: the question is rather one of considering the overall fairness of the report in the context of the relevant legislative and policy requirements and of assessing whether its overall effect significantly mislead or failed properly to inform the Planning Committee.

Although the Planning Committee knew from the Report that there was an Updated Bat Survey and may have had access to it and other material which was posted on the website, they undoubtedly relied significantly on the planning officer’s report. It was a 21 page document containing this material relevant to the Habitats Directive and their duty to have due and proper regard to it. The executive summary informed them among other things that:

“1.5

… There would be no adverse impact for designated sites of nature conservation importance and suitable mitigation measures are proposed for badgers and protected species, and the proposals are acceptable in terms of highway safety and design. The recommendations are that the proposal is not an EIA development, it does not require Appropriate Assessment under the Habitat Regulations and that planning permission be granted subject to conditions in Appendix B.”

The Report also had these relevant passages:

“3.7

Detailed ecological surveys have been undertaken across the site over the last 18 months. This identified a large population of badgers along the railway corridor … A number of bat species roost and forage along the corridor and a number of bird species have also been recorded. Accordingly, a strategy to mitigate the impact on these species has been developed. The main principles of the strategy are implementation of a badger sett exclusion and creation regime, translocation of reptiles, and enhancement of the habitat of the retained embankment to provide continued habitat for displaced species. Bat surveys have also been carried out to enable appropriate measures to be implemented.

…

5.6

Natural England initially raised objections on the grounds that the application contains insufficient survey information to demonstrate whether or not the development would have an adverse effect on bats and great crested newts which are legally protected species. Further survey work was undertaken in response to this objection and provided to Natural England. Following receipt of this information Natural England are now satisfied that the necessary information has been provided and have withdrawn their objection. They recommend that if the council is minded to grant permission for this scheme conditions be attached requiring implementation of the mitigation and compensation measures set out in the reports.

…

Nature Conservation Impact

8.17

… the requirements of the Habitats Regulations need to be considered.

…

8.19

… The surveys also identified the presence of a diversity of bat species, which are protected, using the trees alongside the track for foraging. An Updated Bat Survey Method Statement and Mitigation Strategy has been submitted with measures to ensure there is no significant adverse impact to them from these proposals. [The emphasis is made by Mr George.]

…

Conclusion

8.24

… there would be no adverse impact for designated sites of nature conservation importance and suitable mitigation measures are proposed for badgers and protected species, and the proposals are accepted in terms of highway safety and design.

9.

Recommendations

…

9.4

… there would be no adverse impact for designated sites of nature conservation importance and suitable mitigation measures are proposed for badgers and protected species (policy C14, C16, C17, C18 and R/OS11, R/OS12 , R/OS13 … ”

An addendum to that report was filed dealing specifically with the Habitats Regulations as follows:

“As stated in the report Natural England initially raised a holding objection to the application, requiring additional survey information concerning potential for the presence of great crested newts and bats which are protected species. This survey work was undertaken and sent to Natural England who are now satisfied and subsequently withdrew their objection.”

The addendum then went on to deal with the impact on the habitat and said no more about the protection of species.

The minutes of the meeting record that Members questioned Officers on a broad range of subjects including “the impact on nature”. As I have noted, permission was granted by six votes for, five against, with two abstentions.

The reasons for approval state that “there would be no adverse impact for designated sites of nature conservation importance and suitable mitigation measures are proposed for badgers and protected species.” The development was only permitted to be carried out in accordance with various plans and particulars including the Updated Bat Survey Method Statement and Mitigation Strategy. The Planning Committee referred to policy C18 on Protected Species and the permission recorded that development which would adversely affect species, or their habitats, protected by the Habitats Regulations 1994, the Wildlife and Countryside Act 1981 or other legislation would not be permitted unless measures could be undertaken which prevented harm to the species or damage to the habitat.

The judge’s conclusion was:

“47.

My summary of the points highlighted by the parties from the UBS [Updated Bat Survey], not intended to be comprehensive, should not be taken to minimise the great detail that is contained in the UBS. There can be no doubt that the defendant considered the potential impact on bats most carefully through the investigations contained in their survey. The DR [Decision Report] and ADR [Addendum to the Decision Report] attempted to summarise that material for the members of the regulatory committee. In addition the members would have been aware that the UBS as well as all the other material in connection with the application was placed on the defendant’s internet website.”

He reminded himself of the agreed proposition of law that an application for judicial review will not normally merit consideration unless the overall effect of the report significantly misleads the Committee about material matters.

He noted:

“60.

The significance of [the] withdrawal [of the objections by Natural England] is that it might be confidently expected that Natural England were aware of the terms of the Habitats Directive, the Commission Guidance and the Habitats Regulations, given that they were the authority responsible under the Regulations for drafting licences under Regulation 44 for anything done for the purposes listed in Regulation 44(2) which include “other imperative reasons of overriding public interest”.”

The judge drew attention to the “somewhat tart response” from Natural England in their letter of 13th October 2009 where they wrote:

“We are slightly dumbfounded by the unfounded suggestion in the claimant’s skeleton argument (paragraph 17) that Natural England does not understand the ramifications of the Habitats Directive or the Habitats Regulations (as amended) for EPS. Natural England is the Government’s statutory adviser on such matters. Its officers work on a daily basis with both the European and UK legislation and associated guidance, many are experts in this area, all are more than familiar with the statutory duties and tests that need to be applied when it is consulted in relation to a planning application for development and we would strongly refute any suggestion to the contrary.”

The judge’s conclusions were:

“178.

Having regard to the agreed propositions of law and the guidance in Oxton Farms, Fabre, Miller and Cran, I am not persuaded that the DR and ADR were inadequate, inaccurate, unfair or misleading. In relation to disturbance of bats, given that the conclusion of the bat survey was that: "With successful mitigation, the long-term impact on bats of the works is anticipated to be slight adverse, and no significant impacts to bats are in anticipated” and that Natural England had withdrawn its objection, a fact referred to by the officers, the references in 3.7 of the DR are in my judgement a short but adequate summary of the position.

…

181.

It seems to me to be correct that if the conclusion was correctly drawn by the officers, as a result of their detailed investigations, culminating in the bat survey and as a result of the withdrawal of the objection by Natural England, that there would be no disturbance of the bats, within the meaning of the Habitat Regulations and the Directive, then no question of derogation under Article 16 arose and it was quite unnecessary to make reference to Article 12 of the Directive. Equally, if their conclusion that there was no such disturbance was incorrect, then, patently, the members should have been advised that a derogation should be sought, the DR and ADR would have been inadequate, and there would have been insufficient engagement with the Directive and the granting of planning permission would have been clearly unlawful.

182.

The fundamental issue, therefore, recognised as such by both parties to be a central issue in this case, is whether the proposals did lead, directly or indirectly, to disturbance of bats within the meaning of Article 12.

…

188.

Here the Defendant notified Natural England of the proposals and responded to their specific objections by commissioning the detailed and expert UBS. The detail of the survey shows the careful consideration of potential direct and indirect harm to the EPS, considering, as the authority is entitled to do, the methods of mitigation which could reduce the potential for harm. The executive summary … makes it clear, in my judgment, that the proposals did not involve deliberate disturbance of this EPS within the meaning of Article 12(1)(b) or regulation 39 of the Habitat Regulations. The officers' conclusions on that issue were supported, most importantly, by the withdrawal of the objection of Natural England. They were right not to invite the members to consider derogation because the proposals did not involve deliberate disturbance. On this issue I should not consider questions of Wednesbury unreasonableness but the issue of whether Article 12(1)(b) and regulation 39(1)(b) would be contravened by the proposals. I am satisfied that they would not and that the decision of the Defendant on this issue cannot be regarded as unlawful.”

I must now answer the question posed in the third issue: did the Planning Committee have due regard to the requirements of the Directive? I am satisfied that it did. The Committee knew of the Updated Bat Survey. The Decision Report from which I quoted at [64] above, sufficiently informed the members of the presence of the bats and the need for their protection for which appropriate measures of mitigation were in place. They were aware of Natural England’s original opposition but its later withdrawal of any objection to this scheme. There was ample material before them to lead me to conclude that the Planning Committee did have due and sufficient regard to the requirements of the Directive.

I have been troubled by the fact that the conclusion of the Bat Survey upon which such reliance was placed is to the effect that no significant impacts to bats are anticipated. The disturbance does not have to be significant and this is a misdirection or misunderstanding of Article 12(1)(b) and also of 12(1)(b) of the Directive. The question for me is, therefore, whether the conclusions can be upheld. I am satisfied that the decision of the Planning Committee should not be quashed.

I reach that conclusion for these reasons. I am satisfied that the loss of foraging habitat occasioned by cutting a swathe through the vegetation does not offend Article 12(1)(b) which is concerned with protection of the species not with conservation of the species’ natural habitats. I am satisfied that that bald statement that the bats have to travel further and expend more energy in foraging does not justify a conclusion that the conservation status of the bats is imperilled or at risk. There is no evidence which would allow the Planning Committee to conclude that the long-term distribution and abundance of the bat population is at risk. There is no evidence that they will lose so much energy (as they might when disturbed during hibernation) that the habitat will not still provide enough sustenance for their survival, or their survival would be in jeopardy. There is no evidence that the population of the species will not maintain itself on a long-term basis. There is therefore no evidence of any activity which would as a matter of law constitute a disturbance as the word has to understood.

As I have already concluded, the risk of collision cannot amount to a disturbance and Article 12(1)(b) is not engaged in that respect.

As for Article 12(1)(d), although the judge misdirected himself, in not taking indirect effects into account, already set out, the felling of trees which are potential breeding site or resting place is not enough: what is material is only direct or indirect deterioration or destruction of actual breeding sites or resting places. The risk of collision is not a matter which falls within Article 12(1)(d).

I am reinforced in these conclusions by the very firm response of Natural England. Moreover, if, contrary to my view, this were a disturbance, it is overwhelmingly likely that Natural England would grant a licence for the work to be done and planning permission can be granted accordingly.

In the light of those conclusions the first and second grounds of appeal fail.

Since this development was, as is agreed, a Schedule 2 development for the purposes of the EIA Regulations, the issue was, therefore, whether the development was an EIA development within the meaning of regulation 2(1) of the EIA Regulations, i.e. was the development likely to have significant effects on the environment by virtue of factors such as its nature, size or location? This was a question for the planning authority to answer.

In their propositions of law agreed by counsel for both parties, reference was made to the authorities, for example, R (Jones) v Mansfield DC [2003] EWCA Civ 1408 per Dyson L.J., R (Dicken) v Aylesbury Vale DC [2007] EWCA Civ 851 per Laws L.J., R (Miller) v North Yorkshire CC [2009] EWHC 2172 (Admin) per Hickinbottom J. and Ecologistas en Acción-CODA v Ayuntamiento de Madrid Case C-142/07. Mr Cameron also relied on Commission v UK Case C-508/03. The salient features to draw from those authorities can be very broadly stated as follows. Whether the proposed development is likely by virtue of its size, nature or location to have significant effects on the environment within as well as around the area of the proposed roadway involves an exercise of planning judgment or opinion involving a consideration both of the chance of an effect occurring and also the consequences of it were it to occur. There may well be a range of valid answers to that that question. Being a transposition of the EIA Directive which is wide in scope and broad of purpose, it must be implemented in that spirit. Thus “likely” connotes real risk and not probability. In judging whether the effects are “significant” regard may be had to mitigating measures taken or to be taken to alleviate the harm. The focus is on the adverse effects: environmentally beneficial effects are irrelevant. Importantly for the court reviewing the decision, the test is rationality or in the parlance of the ECJ, manifest error. If the Local Planning Authority ask the right question and arrive at an answer within the bounds of reason and the four corners of the evidence before it, the decision cannot be categorised as unlawful. The question must be considered on a case by case basis. Size is not determinative (cf. the White City development project).

The ground upon which this challenge is mounted by Mr George is that the members of the Planning Committee could not rationally have concluded that the environmental effects on (i) the bats, (ii) the badgers and (iii) the local amenity (having regard to the impact of noise, the construction work and the visual consequences) were not significant when the material in the various reports to which the Committee had access expressly stated that the impacts would be significant. In his oral submission Mr George posed, as a matter “of pure law” the question: in circumstances that expert consultants for the Planning Authority have reported to it that there will be certain significant effects, is it open to the Planning Authority to reach the contrary conclusion? He submits that the Local Planning Authority must be guided by its experts and that it is irrational to disagree with them. This point underpins his whole submission.

It is an attractive but beguiling submission. In my judgment, however, it goes too far. It confuses a conclusion which is reached against the weight of evidence and a conclusion which is unlawful. The foundation of the argument is the assumption that reaching a contrary conclusion constituted an error of law because as a matter of law the Committee must willy nilly accept the experts’ opinions, no other option being available to it. That must be wrong because it would emasculate the members’ duty themselves to decide the question. It is their decision to make, not the experts. Whilst of course they must pay high regard to the evidence before them, they are not bound to follow it. The weight to give the reports is a matter for the members to assess. “Significant” is, after all, a value laden word and views may reasonably differ as to whether an effect truly is significant or not. The members must exercise their independent judgment about the significance of the effects looking at the information overall. I can readily accept that if Mr George had been presenting the evidence to them, he may well have procured some change of view. He may even have persuaded me. But seven members were not persuaded on the day and only five thought that the proposal was an EIA development. That disparity of view makes it in my judgment a case more accurately characterised as one where there is a generous ambit for reasonable disagreement, and not a case where no reasonable member could have concluded that the effects were other than significant. If I am right about this, it may of itself dispose of the third ground of appeal.

Nonetheless let me look at the points made by Mr George in detail. His first challenge relates to the bats. He accepts that the judge was correct to hold in [198] of his judgment that the detrimental effect on the bats was “a weighty factor” for the Local Planning Authority, not a conclusive one. He submits, however, that the judge was wrong to accept that the conclusion to the Updated Bat Survey was that the bats were not likely to be significantly adversely affected by the proposals. He points out that whilst the Executive Summary to the UBS concluded that “with successful mitigation the long-term impact of the works is anticipated to be slight adverse, with no significant impacts … anticipated”, it was also accepted that “it is probable that there will be a short-term moderate adverse impact on bats which can be reduced as slight adverse through mitigation.” Since the full benefit of the mitigating steps will not be felt for up to nine years, he submits that until then the “moderate adverse impact” on bats does mean that the development would have a significant effect.

In addition, the report highlights other moderate adverse impacts for example through the loss of foraging habitat, through light pollution and through noise. He refers again to the increased risk of collision with vehicles for bats commuting between their roost and the Oakdene Wood on the other side of the roadway.

Mr Cameron counters this argument by urging a consideration of the UBS as a whole which would entitle the Planning Committee to arrive at the judgment that the proposed development was not likely to have significant effects on the environment. He points out that no known bat roosts would be lost; only seven trees with moderate to high bat potential would be lost; the loss of foraging habitat even over a period of approximately nine years would have limited impact as the Pipistrelle and Serotin bats are adapted to foraging in an urban environment and only two passes of Myotis sp. bats which prefer the natural habitat for foraging were identified; only brown long-eared bats are affected by noise and few were referred to in the Report; and the loss of vegetation corridors do not have a significant impact on the environment. Consequently Mr Cameron submits that viewed overall the conclusion in the UBS Report and the conclusion of the judge were entirely permissible.

As far as the badgers are concerned Mr George relies upon the fact that the site contains a large population of badgers, some of them needing to be moved and their setts destroyed. Other setts located away from the main construction may be damaged. The Detailed Environmental Assessment suggests that the loss of main setts is likely to cause significant impacts on the local badger population and mitigation is not certain but only probable to result in a reduction of the impact to “slight adverse”. He submits that the Decision Report was defective in failing to present a full and accurate picture of the adverse effects on the badgers.

Mr Cameron draws attention to paragraph 3.10.72 of the Detailed Environmental Assessment that with successful mitigation, including artificial sett construction prior to works, it is probable that the impact would be reduced to slight adverse and therefore not significant impact. Moreover, and importantly, the conclusions to the DEA record at paragraph 3.12.5 that the main ecological impacts as a result of the scheme are anticipated to be a slight adverse overall impact. Thus he submits that the members are entitled to conclude that the overall impact on the badgers would be acceptable and would not have a significant effect upon them.

Mr George’s third attack is on the visual noise and contamination impacts of the proposed development on the environment. The DEA does indeed refer to “significant impacts” in terms of visual, noise and contamination effects. Both temporary and permanent effects are relevant when considering whether an EIA is required (see Schedule 4, Part 1, paragraph 4 of the EIA Regulations). He draws particular attention to the references to operational noise – “37 dwellings … would experience a significant residual adverse noise impact” and the significant adverse visual impact for the majority of the receptors close to the scheme.

Mr Cameron makes the obvious point that the Local Planning Authority is ideally placed to determine whether effects on residential amenity can be described as significant. The fact that the DEA identifies some adverse impact due to noise has to be assessed in the light of the fact that the noise was not so bad as to justify additional noise insulation. It was for the Planning Committee to judge the visual impact.

This brief recitation of the arguments for and against serves only to convince me that the matter was far from clear cut. There was no certain answer. Views may reasonably differ. That is demonstrated by the votes cast. This was quintessentially a matter for the Committee to exercise its planning judgment and form its independent opinion. In those circumstances it cannot be said that the decision was irrational.

I am satisfied that the appeal must be dismissed. I see no reason to refer any question to the European Court of Justice.

I agree.

I also agree.

We recognise that the issues raised on this appeal may be said to be of importance. We certainly accept that they are difficult and we recognise the cogency of the grounds submitted by Mr George Q.C. in support of his application for permission to appeal. Nonetheless, and with a degree of hesitation, we have concluded that the Justices of the Supreme Court must decide whether or not this is an appropriate case for their consideration.

As for the continuation of the injunction, we are persuaded by the arguments of the respondent and accordingly decline to continue that order.