Following our article in the August 2010 edition of Future Perfect?, the Supreme Court has upheld the decision of the Court of Appeal in this case. However, it applied a different and more rigid test to the interpretation of Article 12(1)(b) Habitats Directive to that taken by the Court of Appeal.
In considering the test of whether there had been a "disturbance" within the meaning of the Directive, the Court of Appeal looked at whether the disturbance had a detrimental impact on the conservation status of the species at population level.
By contrast, the Supreme Court held that in considering whether there had been a disturbance, every case was to be judged on its own merits and a "species by species approach" taken. Following the European Commission's guidance on this point, Lord Brown noted that the position of a single species in considering what amount to a disturbance could be very different depending on the season or on certain periods of its life cycle.
Therefore, while the courts are not necessarily saying that the loss of just one or a couple of individuals within a protected species will constitute a disturbance, this will ultimately be a matter of judgment on the individual circumstances in question.
This judgment should highlight to developers and local planning authorities alike how crucial it is to have accurate and detailed ecological surveys and reports available. This will assist local planning authorities in fully understanding the impacts of a proposed development and will allow them to take decisions within the limits that the law allows.