Update: environment

The Habitats Directive

In R (Morge) v Hampshire CC [2011] UKSC 2 the court considered two issues, the first of which was the application of article 12(1)(b) of the Habitats Directive (92/43/EEC) which requires member states to take measures to prohibit 'deliberate disturbance' of protected species, particularly during the period of breeding, rearing, hibernation and migration.

Although the court agreed the provision applied to protected species at 'population' rather than individual level, it disagreed with Ward LJ that disturbance within the meaning of article 12(1)(b) must 'have a detrimental effect so as to affect the conservation status of the species at population level'.

Lord Brown stated, relying upon the European Commission 2007 guidance on application of the directive, that each case had to be decided on a case-by-case basis, with the planning authority to consider criteria such as the level of harm, the rarity and conservation status of the species (i.e. whether numbers were increasing or decreasing) and whether the activity complained of was likely to affect the population at a particularly vulnerable time, such as breeding, rearing, hibernation and migration.

The second issue concerned the proper application of regulation 3(4) of the Conservation (Natural Habitats, etc) Regulations 1994 (as amended) by which domestic effect is given to the directive, which requires 'every competent authority in the exercise of any of their functions, shall have regard to the requirements of the Habitats Directive so far as they [the requirements] may be affected by the exercise of those functions'.

The court held that since the government had made a breach of article 12 a criminal offence and the duty to prosecute fell on Natural England, if that organisation was satisfied there would be no breach of article 12 the planning authority would satisfy its duty under regulation 3(4) by relying on Natural England's decision.

A grant of planning permission is no defence to a breach of article 12 and therefore it still would be open to Natural England to prosecute if the development did breach the directive. Natural England had in fact objected twice to the development but withdrew the objection following (among other documents) the production of an updated bat survey which concluded there would be 'short-term moderate adverse impact' on bats but that this would diminish to 'slight adverse' in seven to nine years.

Lord Kerr, dissenting, observed that Natural England in fact expressed no explicit opinion on whether there would be a breach of article 12. Its communications to the planning authority were in much more general terms and were on the whole concerned with issues other than the impact on bat populations. Therefore the question still remained as to whether the planning authority had fulfilled its duty under regulation 3(4) in respect to article 12. Having carefully considered the officer's report and the communications with Natural England, Lord Kerr concluded that the planning authority had not, because 'if Natural England had unambiguously expressed the view that the proposal would not involve any breach of the Habitats Directive and the committee had been informed of that, it would not have been necessary for the committee members to go behind that view. But that had not happened. It was simply not possible for the committee to properly conclude that Natural England had said that the proposal would not be in breach of the Habitats Directive in relation to bats.

'Absent such a statement, they were bound to make that judgment for themselves and to consider whether, on the available evidence the exercise of their functions would have an effect on the requirements of the directive. I am afraid that I am driven to the conclusion that they plainly did not do so.'

The speeches in Morge are likely to have a significant impact on cases involving the Habitats Directive. While the court's observations as to the correct interpretation of article 12 rightly resist the urge to over simplify the process by which a planning authority should consider the directive, Lord Kerr's dissenting speech demonstrates the gloss the majority has put on the role of a statutory consultee such as Natural England.

Practitioners will be aware that statutory consultees often have a very wide range of issues to consider and, depending on the information passed to them, can miss or underemphasise what can potentially be an important consequence of the development. Statutory consultees operate under considerable restraints in relation to the time and resources that can be spent considering each application forwarded to them. The speeches of the majority run the risk of allowing planning authorities (at least in England) to declare that all of their duties under the directive are satisfied as long as Natural England ultimately does not object to the development. While that may be sufficient in relation to article 12 since Natural England has a continuing regulatory role, it may not be in relation to other articles.

In her speech, Lady Hale suggested that if Natural England has come to the wrong conclusion regarding the impact of the development, the complaint (and presumably claim in judicial review) should be of that decision rather than that of the planning authority. But it is not clear what impact such a judicial review would have since even if the decision of Natural England were declared unlawful, that would presumably have no bearing on the grant of planning permission.

The court in Morge also declined to make a reference, holding that although referring the application of 12(1)(b) to the ECJ would be 'tempting', it was unrealistic to suppose that court would provide any greater assistance.

The Supreme Court in R (Edwards & Pallikaropoulos) v Environment Agency and DEFRA [2010] UKSC 57 did, however, realise that the issues there should be referred. Edwards (now) concerns the correct application of article 10a of the EIA directive, which incorporates the requirement of the Aarhus Convention that costs in environmental cases should not be 'prohibitively expensive'.

Mrs Pallikaropoulos argued that an order awarding costs of DEFRA and the Environment Agency against her when the claim failed in the House of Lords was unlawful as it did not consider the question of whether those costs would be prohibitively expensive for her to pay.

Lord Hope ruled that the House of Lords had taken a 'purely subjective' approach to the costs order and, in light of subsequent guidance from the Aarhus Compliance Committee and European Commission that the UK is failing to comply with the directive and the convention and the judgment of the Court of Appeal in R (Garner) v Elmbridge Borough Council [2010] EWCA Civ 1006, this may have been unlawful. There may therefore have been an 'injustice' to the appellant, Mrs Pallikaropoulos, which justified undoing the previous order of the court.

Although the terms of the reference have not yet been agreed, the eventual answer from the ECJ will undoubtedly have a significant bearing on the conduct of environmental litigation (and perhaps other forms of public interest claims if they rely on EU law).

EIA screening

The issue as to what constitutes a lawful screening opinion for the purposes of the EIA directive has been ventilated in the recent Court of Appeal decision in R (Bateman) v South Cambridgeshire District Council & Camgrain [2011] EWCA Civ 157.

The case concerned the expansion of a grain storage facility in a rural area. The proposal is on a vast scale, including the construction of 60 additional grain silos, each 18 metres high and 23 metres in diameter.

The local authority decided in a statement from the senior planning officer that an environmental impact assessment was not required. The claimants, who had been refused permission in the High Court, argued that the planning officer's statement was illogical and irrational and did not include sufficient reasoning to satisfy the requirements of the EIA regulations and directive.

Moore-Bick LJ found that the officer's reasons for deciding an EIA was not required could not be understood or inferred from the statement. In particular, the officer had observed that the 'main impacts' of the development would be an increase in traffic movements, landscape impact and noise disturbance and required assessments of each to be provided with the application, but despite this concluded there would be no likely significant environmental effects.

Moore-Bick LJ concluded that the only remedy to the claim would be to quash the planning permission, and the suggestion by the defendant that it would be sufficient to direct a fresh screening was not open to the court: 'The adoption of a screening opinion, if one is required, is part of a process that leads eventually to the grant or refusal of planning permission. If any step in that process is legally flawed the process as a whole is flawed and the grant of permission must be quashed.'

Given that there remains a tendency to view the EIA process as merely a procedural hurdle, it is refreshing to be reminded that it is integral to the proper consideration of planning applications.

ECJ decisions

In Bund (Case C-115/09), the ECJ is to consider whether it is correct that an environmental NGO does not have standing in German law because it is not maintaining the impairment of a substantive individual right.

In her opinion of 16 December 2010, Advocate General Sharpston QC has taken the view that this rule is incompatible with article 10a of the EIA directive, which has the express objective of widening access to justice to the public. The German approach reduced the role of NGOs to merely standing in for an individual, which could have unintended consequences unrelated to the purpose of the laws on environmental protection '“ for example, standing would be more likely in cases where individuals lived near the source of the complaint (such as in an urban are a rather than a remote wilderness) and through them NGOs could argue their rights were infringed.

Finally, the ECJ in Commission v Ireland (Case C-50/09) has determined that demolition works come within the scope of the EIA directive and therefore due consideration of whether an EIA is required must be carried out before those works. Given that Irish planning law and that of the UK has coincided on the point that demolition does not fall to be considered as EIA development, this judgment should be swiftly taken up in relevant cases. As the effects of demolition are undoubtedly capable of being significant, this is a loophole in the law which is long overdue for correction.