R (Morge) v Hampshire County Council

A deliberate disturbance of a protected species under the Habitats Directive is one that is likely to have a detrimental impact on the conservation status of the species, considered at the level of the population.

Citation
[2011] UKSC 2, [2011] 1 WLR 268
Court
Supreme Court
Year
2011
Subject
Environmental Law
Topic
Nature conservation and habitats

Facts

The council granted planning permission for a busway on a disused railway line, which would affect habitats used by bats, which are a European protected species. Mrs Morge, a local resident, challenged the permission, arguing that the council had not properly considered whether the development would involve the deliberate disturbance of the bats, contrary to article 12 of the Habitats Directive, and whether a licence would be granted by Natural England.

Legal principle

The Supreme Court dismissed the appeal. Lord Brown said that, in deciding whether an activity amounted to the deliberate disturbance of a protected species, the court must consider the nature and extent of the disturbance and its impact on the species, and that a disturbance was likely to be prohibited if it was detrimental to the protected species, having regard to the rarity and conservation status of the species and the impact on its local population. A planning authority must have regard to the requirements of the directive, but where Natural England had raised no objection, the authority was entitled to conclude that the development would not offend article 12.

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