MORGE V HAMPSHIRE COUNTY COUNCIL 

The Court of Appeal has granted leave to appeal the decision of His Honour Judge Bidder QC (sitting as a Deputy High Court Judge) to uphold a grant of planning permission by Hampshire County Council for a rapid busway scheme. The proposed busway is to be built along a disused railway corridor inhabited by foraging bats which are a European protected species.

The appellant contends that the Council failed to have regard to Regulation 3(4) of the Habitats Regulations 1994, which requires local planning authorities to have regard to the requirements of the European Habitats Directive. "Deliberate disturbance" of protected species and damage to their resting places are prohibited under Article 12 the Habitats Directive. If engaged the Directive would require a derogation by the local authority who would have to seek a licence from Natural England to carry out the construction work.

The meaning of "deliberate disturbance" in this context has not been elucidated either by the domestic or European courts. In granting leave to appeal, Sullivan LJ said that the case raised important points of principle as to what constitutes "deliberate disturbance" for the purposes of Article 12(1)(b) of the Habitats Directive and whether it is necessary to consider direct and indirect effects on protected species breeding and resting places under Article 12(1)(d). The appellant also contends that the Council erred in failing to carry out an environmental impact assessment.

Charles George QC and Sarah Sackman appear for the Claimant instructed by Swain and Co.