Bat Survey: Is your development “disturbance”?

R (On the application of Vivienne Morge) v Hampshire County Council

Does your development constitute a deliberate disturbance to European Protected Species?

A summary of a case determined in January 2011 is provided for below, along with the author’s interpretation of the judgement:

In 2009, Hampshire granted a planning consent for a new section of highway linking the towns of Fareham and Gosport, approximately three miles apart. Mrs Vivienne Morge objected to the scheme on the grounds that the proposed route of the new highway was along a disused railway line, which had since been colonised by flora and fauna, and provided the local biodiversity with value transport corridors linking between different habitats.

Further, Natural England, the Government’s wildlife and biodiversity advisor and the Statutory Nature Conservation Organisation in England, objected to the scheme because of concerns over the developments impact on bats. Natural England is also the application and issuing body for European protected species licences in England (Wales: Countryside Council for Wales).

Bats are a highly mobile species but require connectivity between their various habitats in order to commute over distances between roosts and foraging grounds. For more information on bat roosts and legal definitions relating to roosts, see here: http://www.arbtech.co.uk/ecology/bat-surveys/, or Google search for “the Woolley case bats”.

Hampshire responded by submitting an updated bat survey report and in consequence, Natural England withdrew their objection to the scheme and a planning committee gave consent to the application. However, the updated bat survey report concluded that the development would result in a net loss of good quality foraging habitat for bats, and that since their flight lines (connectivity) was severed by the new highway, there was a substantially increased risk of legally protected species having the population reduced by collisions with traffic.

Do you need a protected species survey?

Morge challenged the planning consent in the High Court and the Court of Appeal. Both times she failed to have the appeal upheld, however the Supreme Court granted Morge limited permission to appeal further on “two issues of importance” (Supreme Court press summary, 2010). Morge’s challenge to the planning consent failed in the Supreme Court by a majority of 4-1*, however, the case provided valuable interpretation of (i) the EC Habitats Directive and the U.K. legislation which transposes it—the Conservation of Habitats and Species Regulations 2010—and, (ii) the duty of a Local Planning Authority in determining planning applications where impacts upon legally protected species and habitats are a material consideration, as follows;

(i)     “Where Natural England express themselves satisfied that a proposed development will be compliant with article 12(1) [EC Habitats Directive], the planning authority are entitled to presume that that is so.” (Supreme Court press summary, 2010).

(ii)   “Disturbance includes in particular that which is likely to impair an animal’s ability to survive, breed, rear its young, hibernate or migrate, and that which is likely to affect the local distribution or abundance of the species.” (Supreme Court press summary, 2010).

In summary then, the Supreme Court found that planning consent should generally be granted unless the local planning authority considers it possible that a breach of article 12(1) (EC Habitats Directive) was likely to occur. In this instance, after Natural England withdrew their objection, there was little evidence to suggest a breach was likely.

*Interestingly, Lord Kerr would have nullified the planning permission on the basis that Natural England had not unambiguously expressed the view that they were satisfied no violation of the EC Habitats Directive would be implicit by undertaking the proposed development.

R (Vivienne Morge) v Hampshire County Council [2011] UKSC 2 and [2011] UKSC 2

Take home points for developers:

1. Disturbance only has to effect local populations to engage protection under EC Habitats Directive.
2. Planning consent should only be refused where an LPA believes mitigation under licence from Natural England is not likely to be granted.

Download the judgement of the Supreme Court here: http://www.supremecourt.gov.uk/docs/UKSC_2010_0120_Judgment.pdf

Download the Supreme Court’s press summary of the case here: http://www.supremecourt.gov.uk/docs/UKSC_2010_0120_ps.pdf

Arbtech: Ecological Consultants and Bat Surveys for Planning

If you would like to talk to an ecological consultant about protected species and habitats at your deveopment site, or simply need a quote for a survey, why not call us on 08450 176950 and ask to speak with Robert Oates, or write to email@arbetch.co.uk?

Robert Oates Dip FDSC MArborA, Managing Director, Arbtech Consulting Ltd

© Arbtech Consulting Ltd 2011 www.arbtech.co.uk