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Planning committees do not need to 'decide for themselves' on impact to wildlife

19 January 2011

Council planning committees do not need to “decide for themselves” on the impact of developments on wildlife where they can rely on reports from Natural England, the Supreme Court has ruled.

The case involved Hampshire County Council’s decision to grant planning permission to convert a disused railway line into a bus route through an area inhabited by several protected species of European bat, particularly the common pipistrelle.

Delivering the leading judgment in Morge v Hampshire County Council [2011] UKSC 2, Lord Brown said the disused railway line had become “thickly overgrown with vegetation and an ecological corridor for various flora and fauna”.

He said there were a “substantial number” of objectors to the scheme, including Mrs Morge, who lived nearby.

They challenged the council’s decision on the grounds that it breached article 12(1)b of the Habitats Directive 92/43/EEC and the statutory instrument which gave effect to the directive in domestic law.

Natural England initially objected to the development, but dropped its objections after the council commissioned an updated bat survey, which found no bat roosts on the site but mentioned only the “loss of good quality bat foraging habitats”.

Lord Brown went on: “Where, as here, Natural England express themselves satisfied that a proposed development will be compliant with article 12, the planning authority are to my mind entitled to presume that that is so.”

He said the planning committee clearly “had regard to” the requirements of the directive, and not only had Natural England withdrawn its objections, but measures were planned to compensate for the loss of bat foraging.

Nor was the committee “materially misled or left insufficiently informed” about article 12. He dismissed the appeal. Lords Walker and Mance agreed.

Lady Hale also agreed, adding that, if any complaint was to be made, “it should have been addressed to Natural England rather than to the planning authority”.

She said the conservation body had the expertise to assess the meaning of the updated bat survey and whether it met the requirements of the directive.

“The planning authority could perhaps have reached a different conclusion from Natural England but they were not required to make their own independent assessment.”

Lord Kerr dissented, on the grounds that Natural England had not “unambiguously expressed the view” that the new bus route complied with the Habitats Directive.

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