“Whereas the preservation, protection and improvement of the quality of the environment, including the conservation of natural habitats and of wild fauna and flora, are an essential objective of general interest pursued by the Community … Whereas in view of the threats to certain types of natural habitat and certain species, it is necessary to define them as having priority in order to favour the early implementation of measures to conserve them … Whereas it is recognised that the adoption of measures intended to promote the conservation of priority natural habitats and priority of species of Community interest is a common responsibility of all Member States … Whereas a general system of protection is required for certain species of flora and fauna to complement Directive 79/409/EEC [“the Birds’ Directive”]; whereas provision should be made for management measures of certain species, if their conservation status so warrants, including the prohibition of certain means of capture or killing, whilst providing for the possibility of derogations on certain conditions …”
“1. The aim of this Directive shall be to contribute towards ensuring bio-diversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the Member States to which the Treaty applies. 2. Measures taken pursuant to this Directive shall be designed to maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community interest. 3. Measures taken pursuant to this Directive shall take account of economic, social and cultural requirements and national and local characteristics.”
“conservation status of a species means the sum of the influences acting on the species concerned that may affect the long-term distribution and abundance of its populations… The conservation status will be taken as “favourable” when: - population dynamics data on the species concerned indicate that it is maintaining itselfon a long-term basisas a viable component of its natural habitats, and - the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future, and - there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis.”
“1. Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting: (a) all forms of deliberate capture or killing of specimens of these species in the wild; (b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration; (c) deliberate destruction or taking of eggs from the wild; (d) deterioration or destruction of breeding sites or resting places.”
“Without prejudice to the preceding provisions, 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 may be affected by the exercise of those functions.”
“Due to the removal of many defences in Regulation 40 in 2007 the offence of deliberately disturbing an European protected species in Regulation 39(1)(b) was amended at that time so that activities that caused low level deliberate disturbance that may be considered unlikely to have the effects covered by the Directive can continue within the law. The current changes retain the requirement that for the offence to be committed, the result of disturbance must affect important life cycle processes and so low level or inconsequential disturbances (i.e. trivial) that does not have these impacts is not captured by the offence in these Regulations.” (Yet more highlighting by me.) Question 5 asked, “Doesn’t the removal of a significant group of animals mean that deliberate disturbance of a single animal will now be caught by the offence?”
“44(1) Regulations 39, 41 and 43 do not apply to anything done for any of the following purposes under and in accordance with the terms of a licence granted by the appropriate authority. (2) The purposes referred to in paragraph (1) are-… (e) preserving public health or public safety or other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment. … (3) The appropriate authority shall not grant a licence under this regulation unless they are satisfied – (a) that there is no satisfactory alternative, and (b) that the action authorised will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range.”
“ 2(1) ‘EIA development’ means development which is either – (a) Schedule 1(1) development; or (b) Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location.”
“3(2) The relevant planning authority … shall not grant planning permission … unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so.”
“4(5) Where a local planning authority or the Secretary of State has to decide under these Regulations whether Schedule 2 development is EIA development the authority or Secretary of State shall take into account in making that decision such of the relevant criteria set out in Schedule 3 as are relevant to the development.”
“188. Here the defendant notified Natural England of the proposals and responded to their specific objections by commissioning the detailed and expert UBS [the Updated Bat Survey]. The detail of the survey shows the careful consideration of potential direct and indirect harm to the EPS [European Protected Species], considering, as the authority is entitled to do, the methods of mitigation which could reduce the potential for harm. The executive summary … makes it clear, in my judgment, that the proposals did not involve deliberate disturbance of this EPS within the meaning of Article 12(1)(b) or regulation 39 of the Habitat Regulations. The officers’ conclusions on that issue were supported, most importantly, by the withdrawal of the objection of Natural England. They were right not to invite the members to consider derogation because the proposals did not involve deliberate disturbance. On this issue I should not consider questions of Wednesbury unreasonableness but the issue of whether Article 12(1)(b) and regulation 39(1)(b) would be contravened by the proposals. I am satisfied that they would not and that the decision of the Defendant on this issue cannot be regarded as unlawful.”
“190. I do not accept that Article 12(1)(d) is concerned with an “indirect” effect such as the obstruction of bats commuting to and from a roost not within the works’ footprint. Such obstruction does not amount to deterioration or damage or destruction of a breeding site or resting place.”
“208. … as the summary to the UBS makes clear, it was not the case that bats were likely to be significantly “adversely affected by the proposals”.”
“217. As the authorities make clear, the decision as to whether a project is EIA is not a question of hard fact but involves an exercise of judgment or opinion. On the issue of local impacts, I am satisfied that there was ample material for the members to make the judgment that they did and they were entitled to reach the conclusion that they did, which conclusion was not, in my judgment, irrational.”
“(14) The maintenance or restoration of “favourable conservation status” (FCS) is the overall objective for all habitat types and species of Community interest. … In simple terms, FCS could be described as a situation where a habitat type or species is doing sufficiently wellin terms of quality and quantity and has good prospects of continuing to do so in future”,(emphasis added by me). “The natural range of species” is a phrase used in several places in the Directive but it is not defined in Article 1. The Guidance tells that: “The natural range describes roughly the spatial limits within which the habitat or species occurs.” “The natural range describes roughly the spatial limits within which the habitat or species occurs.”
“42. …conservation status is regarded as ‘favourable’ when population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats, thatthe natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future, and that there is, and probably will continue to be a sufficiently large habitat to maintain its populations on a long-term basis. 43. … the combined effect of those provisions is apparently that a system of strict protection of an animal species of Community interest means a set of co-ordinated measures, of a preventative nature, which ensure in the long term that the population of the species in question is maintained or restored in the type of natural habitat to which it belongs. This assumes that there is a sufficiently large natural habitat for the species in question.”
“Furthermore, as the Advocate General has observed in point 113 of her Opinion, Articles 12, 13 and 16 of the Habitats Directive form a coherent body of provisions intended to protect the populations of the species concerned …”
“71. For the condition as to "deliberate" action in Article 12(1)(a) of the Directive to be met, it must be proven that the author of the act intended the capture or killing of a specimen belonging to a protected animal species or, at the very least, accepted the possibility of such capture or killing.”
“… “Deliberate” actions are to be understood as actions by a person who knows, in light of the relevant legislation that applies to the species involved, and the general information delivered to the public, that his action will most likely lead to an offence against a species, but intends this offence or, if not, consciously accepts the foreseeable results of his action. In other words, not only a person who fully intends to capture or kill a specimen of an animal commits an offence: an offence is also committed by a person who might not intend to capture or kill a specimen but is sufficiently informed and aware of the consequences his action will most likely have and nevertheless performs the action, leading to the capturing or killing of specimens (e.g. as an unwanted but accepted side-effect), with reckless disregard of the known prohibitions (conditional intent). It goes without saying that negligence is not included in the meaning of “deliberate”.”
“34. It is undisputed that the use of mopeds on a beach used for breeding by the Caretta caretta turtle is, particularly owing to the noise pollution, liable to disturb that species during the laying period, the incubation period and the hatching of the eggs, as well as during the baby turtles' migration to the sea. It is also established that the presence of small boats near the breeding beaches constitutes a source of danger to the life and physical well-being of the turtles. … 36. It follows that the use of mopeds on the sand beach to the east of Laganas and the presence of pedalos and small boats in the sea area around Gerakas and Dafni constitute the deliberate disturbance of the species in question during its breeding period for the purposes of Article 12(1)(b) of the Directive.”
“Article 6 2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.”
“Disturbance is detrimental for a protected species e.g. by reducing survival chances, breeding success or reproductive ability. A species-by-species approach needs to be taken as different species will react differently to potentially disturbing activities.”
“This would reduce the carrying capacity of the habitat for bats and any bats in the area would have to travel further and expend more energy during foraging.”
“79. As regards Gibraltar, suffice it to state that the United Kingdom acknowledges that, by prohibiting only the deliberate damaging or destruction of breeding sites or resting places of the species concerned, the legislation applicable in Gibraltar does not satisfy the requirements of Article 12(1)(d). Accordingly this part of the complaint must be held to be well founded.”
“55. The Court has already held that the acts already referred to in Article 12(1)(d) of the Directive include non-deliberate acts (see Commission v United Kingdom, para 73-79). By not limiting the prohibition laid down in Article 12(1)(d) of the Directive to deliberate acts, which it has done in respect of acts referred to in Article 12(1)(a)-(c), the Community legislation has demonstrated its intention to give breeding grounds or resting places increased protection against acts causing their deterioration or destruction. Given the importance of the objectives of protecting bio-diversity which the Directive aims to achieve, it is by no means disproportionate that the prohibition laid down in Article 12(1)(d) is not limited to deliberate acts.”
“Contrary to the other prohibitions of Article 12, it does not concern directly the species but protects important parts of their habitats, as it prohibits deterioration or destruction of breeding sites or resting places.”
“74. The Commission is right in stating that Article 12(1)(d) of the Habitats Directive prohibits not only direct damage but also acts which lead only indirectly to adverse effects on breeding sites and resting places. According to Article 12(1)(d), any deterioration or destruction of breeding sites and resting places is to be prohibited. No distinction is drawn between direct and indirect adverse effects.”
“80. Third, the Commission states that the United Kingdom legislation is currently drafted to protect breeding sites and resting places only against activities having a direct effect on them, and does not take account of indirect impairment in accordance with the requirements of Article 12(1)(d) of the Habitats Directive. 81. This argument cannot be upheld. The Commission has adduced no evidence capable of proving that the United Kingdom has failed to fulfil its obligations in this regard.”
“17. In the present case the critical issue is whether the proposed development would, directly or indirectly, affect the bats in the sense of deliberately disturbing them as set out in 12(1)(b) or in the deterioration or destruction of their breeding sites or resting place.”
“85. … while I differ from a proposition of law agreed between the parties with some hesitation, I doubt whether the proposition as drafted [in paragraph [17]] is supported by either the Directive, the Guidance or the cited passage [paragraphs [80]-[81]] from Commission v UK. … 88. Thus, it seems to me, that contrary to the agreed proposition of law, it is unnecessary to read into 12(1)(d) or 39(1)(d) any concept of “indirect” effect.”
“Finally, there is no doubt that the presence of buildings on a breeding beach such as the one at Dafni is liable to lead to the deterioration or destruction of the breeding site within the meaning of Article 12(1)(d) of the Directive.”
“9.2.1. … The works would result in the loss of a number of trees with low to moderate bat roost potential and approximately seven trees with moderate to high bat potential. No known roost would be lost during the works. Each tree with bat potential to be felled or disturbed during the works is subject to a series of emergence and re-entry surveys between May and June 2009. No bat roosts were identified by these surveys and therefore it is unlikely that any maternity roosts will be affected by the works. Bats that roost in trees move frequently and there is a potential for the trees to be used as roost sites at different times of the year and any works must consider the potential for trees to be used as roost sites. … Due to the difficulty in identifying tree roosts, the Bat Conservation Trust 2007 recommend that trees with high potential should be assumed to be used by bats at some point during the year or in the future. The surveys indicate that no roost sites will be lost, however, due to the loss of high potential roost sites, the impact is anticipated to be Slight Adverse.”
“Summary: Breeding sites and resting places are to be strictly protected, because they are crucial to the life cycle of animals and are vital parts of a species’ entire habitat. Article 12(1)(b) should therefore be understood as aiming to safeguard the continued ecological functionality of such sites and places, ensuring that they continue to provide all the elements needed by a specific animal to rest or to breed successfully. The protection applies all year round if these sites are used on a regular basis.”
“1.5 … There would be no adverse impact for designated sites of nature conservation importance and suitable mitigation measures are proposed for badgers and protected species, and the proposals are acceptable in terms of highway safety and design. The recommendations are that the proposal is not an EIA development, it does not require Appropriate Assessment under the Habitat Regulations and that planning permission be granted subject to conditions in Appendix B.”
“3.7 Detailed ecological surveys have been undertaken across the site over the last 18 months. This identified a large population of badgers along the railway corridor … A number of bat species roost and forage along the corridor and a number of bird species have also been recorded. Accordingly, a strategy to mitigate the impact on these species has been developed. The main principles of the strategy are implementation of a badger sett exclusion and creation regime, translocation of reptiles, and enhancement of the habitat of the retained embankment to provide continued habitat for displaced species. Bat surveys have also been carried out to enable appropriate measures to be implemented. … 5.6 Natural England initially raised objections on the grounds that the application contains insufficient survey information to demonstrate whether or not the development would have an adverse effect on bats and great crested newts which are legally protected species. Further survey work was undertaken in response to this objection and provided to Natural England. Following receipt of this information Natural England are now satisfied that the necessary information has been provided and have withdrawn their objection. They recommend that if the council is minded to grant permission for this scheme conditions be attached requiring implementation of the mitigation and compensation measures set out in the reports. … Nature Conservation Impact 8.17 … the requirements of the Habitats Regulations need to be considered. … 8.19 … The surveys also identified the presence of a diversity of bat species, which are protected, using the trees alongside the track for foraging. An Updated Bat Survey Method Statement and Mitigation Strategy has been submitted with measures to ensure there is no significant adverse impact to them from these proposals. [The emphasis is made by Mr George.] … Conclusion 8.24 … there would be no adverse impact for designated sites of nature conservation importance and suitable mitigation measures are proposed for badgers and protected species, and the proposals are accepted in terms of highway safety and design. 9. Recommendations … 9.4 … there would be no adverse impact for designated sites of nature conservation importance and suitable mitigation measures are proposed for badgers and protected species (policy C14, C16, C17, C18 and R/OS11, R/OS12 , R/OS13 … ”
“As stated in the report Natural England initially raised a holding objection to the application, requiring additional survey information concerning potential for the presence of great crested newts and bats which are protected species. This survey work was undertaken and sent to Natural England who are now satisfied and subsequently withdrew their objection.”
“47. My summary of the points highlighted by the parties from the UBS [Updated Bat Survey], not intended to be comprehensive, should not be taken to minimise the great detail that is contained in the UBS. There can be no doubt that the defendant considered the potential impact on bats most carefully through the investigations contained in their survey. The DR [Decision Report] and ADR [Addendum to the Decision Report] attempted to summarise that material for the members of the regulatory committee. In addition the members would have been aware that the UBS as well as all the other material in connection with the application was placed on the defendant’s internet website.”
“60. The significance of [the] withdrawal [of the objections by Natural England] is that it might be confidently expected that Natural England were aware of the terms of the Habitats Directive, the Commission Guidance and the Habitats Regulations, given that they were the authority responsible under the Regulations for drafting licences under Regulation 44 for anything done for the purposes listed in Regulation 44(2) which include “other imperative reasons of overriding public interest”.”
“We are slightly dumbfounded by the unfounded suggestion in the claimant’s skeleton argument (paragraph 17) that Natural England does not understand the ramifications of the Habitats Directive or the Habitats Regulations (as amended) for EPS. Natural England is the Government’s statutory adviser on such matters. Its officers work on a daily basis with both the European and UK legislation and associated guidance, many are experts in this area, all are more than familiar with the statutory duties and tests that need to be applied when it is consulted in relation to a planning application for development and we would strongly refute any suggestion to the contrary.”
“178. Having regard to the agreed propositions of law and the guidance in Oxton Farms, Fabre, Miller and Cran, I am not persuaded that the DR and ADR were inadequate, inaccurate, unfair or misleading. In relation to disturbance of bats, given that the conclusion of the bat survey was that: "With successful mitigation, the long-term impact on bats of the works is anticipated to be slight adverse, and no significant impacts to bats are in anticipated” and that Natural England had withdrawn its objection, a fact referred to by the officers, the references in 3.7 of the DR are in my judgement a short but adequate summary of the position. … 181. It seems to me to be correct that if the conclusion was correctly drawn by the officers, as a result of their detailed investigations, culminating in the bat survey and as a result of the withdrawal of the objection by Natural England, that there would be no disturbance of the bats, within the meaning of the Habitat Regulations and the Directive, then no question of derogation under Article 16 arose and it was quite unnecessary to make reference to Article 12 of the Directive. Equally, if their conclusion that there was no such disturbance was incorrect, then, patently, the members should have been advised that a derogation should be sought, the DR and ADR would have been inadequate, and there would have been insufficient engagement with the Directive and the granting of planning permission would have been clearly unlawful. 182. The fundamental issue, therefore, recognised as such by both parties to be a central issue in this case, is whether the proposals did lead, directly or indirectly, to disturbance of bats within the meaning of Article 12. … 188. Here the Defendant notified Natural England of the proposals and responded to their specific objections by commissioning the detailed and expert UBS. The detail of the survey shows the careful consideration of potential direct and indirect harm to the EPS, considering, as the authority is entitled to do, the methods of mitigation which could reduce the potential for harm. The executive summary … makes it clear, in my judgment, that the proposals did not involve deliberate disturbance of this EPS within the meaning of Article 12(1)(b) or regulation 39 of the Habitat Regulations. The officers' conclusions on that issue were supported, most importantly, by the withdrawal of the objection of Natural England. They were right not to invite the members to consider derogation because the proposals did not involve deliberate disturbance. On this issue I should not consider questions of Wednesbury unreasonableness but the issue of whether Article 12(1)(b) and regulation 39(1)(b) would be contravened by the proposals. I am satisfied that they would not and that the decision of the Defendant on this issue cannot be regarded as unlawful.”