Morge v Hampshire County Council

Factual and Procedural Background

The Respondent, acting both as local planning authority and as applicant through its agent “Entity B,” sought planning permission on 29 July 2009 for a 4.7 km “rapid busway” along a disused railway corridor in South-East England. The area, now heavily vegetated, functions as an ecological corridor supporting several European-protected bat species.

After initial objections from “Entity A” (the Government’s statutory nature-conservation adviser) regarding insufficient ecological data, the Respondent commissioned an Updated Bat Survey (UBS). On receipt of the UBS, “Entity A” withdrew its objection, recommending conditions to secure mitigation.

Planning permission was granted by the Respondent’s Regulatory Committee (six votes to five, two abstentions). Mrs Morge (“Appellant”), a nearby resident, sought judicial review, alleging breaches of European environmental law. Her claim failed before Judge Bidder QC in the High Court ([2009] EWHC 2940 (Admin)) and the Court of Appeal ([2010] EWCA Civ 608, [2010] PTSR 1882). The Supreme Court granted limited permission to appeal on two issues and, by a majority, dismissed the appeal.

Legal Issues Presented

1. The proper interpretation of Article 12(1)(b) of Council Directive 92/43/EEC (“Habitats Directive”)—specifically, what level of “deliberate disturbance” to a protected species triggers the prohibition.
2. The extent of a planning authority’s duty under Regulation 3(4) of the Conservation (Natural Habitats etc.) Regulations 1994 to “have regard” to the Directive when deciding whether to grant planning permission.

Arguments of the Parties

Appellant's Arguments

• Any disturbance short of the de minimis threshold breaches Article 12(1)(b); the Court of Appeal wrongly required proof of harm to the species’ conservation status.
• The Regulatory Committee failed to discharge its Regulation 3(4) duty because members did not themselves assess whether bats would be disturbed; reliance on “Entity A’s” withdrawal letter was insufficient.

Respondent's Arguments

• Article 12(1)(b) is engaged only where an activity produces “a certain negative impact likely to be detrimental” when viewed against the species’ conservation status; the Court of Appeal’s threshold, though high, was defensible.
• Regulation 3(4) merely obliges the planning authority to consider the Directive; because “Entity A” accepted the mitigation, the Committee was entitled to presume compliance without conducting a separate ecological assessment.

Table of Precedents Cited

Court's Reasoning and Analysis

Issue 1 – Interpretation of Article 12(1)(b)

• The Article protects species, not individual specimens. The term “disturbance” demands a contextual, species-specific assessment.
• The absence of the word “significant” in Article 12(1)(b) does not mean every detectable impact is prohibited; equally, harm need not imperil overall conservation status.
• The majority rejected the Court of Appeal’s high threshold (“must affect conservation status at population level”) as too stringent, but also rejected the Appellant’s de minimis approach.
• Adopting EU Commission Guidance, the Court held that competent authorities must evaluate, case-by-case, whether an activity has a “certain negative impact likely to be detrimental,” considering rarity, seasonal sensitivity, and local population effects.

Issue 2 – Application of Regulation 3(4)

• Regulation 3(4) obliges planning authorities only to “have regard” to Directive requirements; they are not required to police criminal prohibitions under Regulation 39.
• Because “Entity A” (primary enforcement body) withdrew its objection after reviewing the UBS and proposed mitigation, the Committee could reasonably rely on that stance.
• A planning authority need withhold permission only where it concludes both (a) Article 12 is likely to be breached and (b) a derogation licence is unlikely to be granted.
• The majority found no misdirection: the Committee was aware of ecological issues through detailed officer reports and “Entity A’s” correspondence; therefore the Regulation 3(4) duty was satisfied.
• A dissenting opinion (Judge Kerr) argued the Committee failed to engage with Article 12 at all and that reliance on “Entity A” was misplaced.

Holding and Implications

Appeal DISMISSED.

The Supreme Court upheld the planning permission. The majority clarified the meaning of “deliberate disturbance” under Article 12(1)(b) and limited the procedural burden placed on planning authorities by Regulation 3(4). Immediate consequence: the busway construction may proceed, subject to the mitigation measures endorsed by “Entity A.” No new test case was referred to the Court of Justice of the European Union; instead, domestic authorities must apply the flexible, case-by-case approach articulated in this judgment.