Case No: C1/2009/2589 (A)

Neutral Citation Number: [2010] EWCA Civ 150
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION
(HER HONOUR JUDGE BIDDER QC)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 28th January 2010

Before:

SIR DAVID KEENE

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Between:

	MORGE	
Applicant	
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HAMPSHIRE CC	

Respondent	

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Miss S Sackman (instructed by Swain & Co) appeared on behalf of the Applicant.

Mr J Findlay QC (instructed by Sharpe Pritchard) appeared on behalf of the Respondent.

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Judgment

Sir David Keene:

1.	The claimant in these proceedings sought judicial review of a grant of planning permission on 31 July 2009 by Hampshire County Council (“the Council”) for a bus rapid transit from Fareham to Gosport along a disused railway line about 4.7 kilometres in length.  The line has substantial vegetation along the sides of the old track and it contains in totality a population of badgers and a number of bat species.  The claimant had objected to the grant of planning permission and subsequently she sought judicial review on a number of grounds but particularly on the grounds that there had been a failure to comply with the EC Habitats Directive 92/43/EEC and the Habitats Regulations (“the domestic regulations”) in relation to bats and that the council should have carried out an environmental impact assessment (“EIA”) under the EIA Regulations 1999 to assess the impact on bats, badgers and local amenity.  

2.	The application for a judicial review was dismissed by a deputy High Court judge but Sullivan LJ on 2 December 2009 granted permission to appeal.  He also granted interim relief restraining the council, which was also the applicant for this planning permission, from implementing it or carrying out any works on the site in preparation for the bus rapid transit until the outcome of the appeal is known.

3.	There were certain exceptions made to that restraining order which I need not rehearse and liberty to the council to apply to discharge or modify it on 48 hours’ notice to the appellant’s solicitors.  That restraining order, I believe I am right in saying, was granted ex parte and on the documents without an oral hearing.  The council has now applied under that liberty to apply to vary that order so as to allow certain additional works to be carried out pending the appeal hearing.  The council contends that those works would not have any impact on bats or badgers and that, if they are unable to proceed with those preparatory works pending the appeal hearing, there is a serious risk that they will lose all or part of the £20 million funding for the bus transit.  That is because the funding has a deadline of 31 March 2011 and it is said that the works will take about 15 months to complete.

4.	The hearing date for the appeal itself is provisionally fixed for 9 and 10 March 2010.  The works now proposed would affect in the main about 25 metres of the railway track and about 200 metres of a highway known as Newgate Lane Palmerston Drive.  In more detail they comprise the following.   First, the relocation of a duct and fibre optic cable owned by Global Crossing north and south of Newgate Lane.  Secondly, moving signage within the public highway.  Thirdly, the demolition of a bridge at Palmerston Drive, this being a bridge which carried the old railway track over the road and also widening that road within the existing highway boundary.  It narrows, as photographs which I have been shown vividly demonstrate, where Palmerston Drive passes under the old overbridge.  Fourthly, a temporary diversion to Newgate Lane.  Pausing there, all those works are in one particular locality.  Palmerston Drive and Newgate Lane run roughly parallel to each other something like 20 metres or so apart, both crossing the old railway track at an angle.  There are then three other items of work, which include the clearance of vegetation sufficient to permit access so as to install a boundary fence from the council side of the boundary.  The proposal there is to cut back the vegetation rather than digging it up and then the items include a temporary hardstanding close to Newgate Lane.

5.	Part of the context to this application, as Miss Sackman for the appellant in the substantive appeal has emphasised, is that there has already been a substantial clearance of vegetation in the Palmerston Drive/Newgate Lane area during the period between the deputy High Court judge’s decision on 17 November 2009 and Sullivan LJ’s restraining order on 2 December of that year.  In broad terms that has reduced the amount of vegetation in the area.  Miss Sackman refers to that to indicate that what remains is even more valuable than it might originally have been.  On behalf of the council Mr Findlay’s approach is that this minimises the impact on wildlife which the proposals contained in the present application would have.  

6.	There is no dispute that, on the authorities, there is a balancing exercise required by the court on this application.  The appellant, Mrs Morge, challenges the need for the proposed variation to the injunction to take place before the appeal hearing in March.  Her case also is that the works now proposed would have an impact and indeed a significant impact on the environment.  

7.	Those are in effect the two issues, that is to say the extent of the need for these works to go ahead before March of this year and the extent of the adverse impact of the works particularly on wildlife.  I will take those two issues in that order.  First of all, the needs for the works to start before March.  The evidence on this comes from Mr Samms, the head of the council’s engineering consultancy, who has provided two witness statements on this issue.  He is also the project director for the scheme itself.  His evidence is that the funding for the scheme would be put at risk if the works now proposed in this application cannot go ahead without delay.  In particular, in his second witness statement (that dated 27 January 2010), he spells out the problem.  The scheme, known for the sake of brevity as the BRT scheme, enjoys funding under the Government’s community infrastructure fund (“CIF”) and it is a condition of such funding that the delivery of the Fareham to Gosport phase must be completed and all the funding monies spent by 31 March 2011.  Without that funding, he says, the scheme will not go ahead.  The documents provided indicate the need for the scheme to be implemented (that is to say, in practical traffic relieving terms) subject of course to the appellant failing in her challenge to the planning permission.  

8.	But according to Mr Samms, the judicial review proceedings so far have already caused significant delay to the programme, and the timetable for a finish to the works by 31 March next year is already tight, even if the court were to grant the variation now sought.  Success, he says, by the council at the March appeal hearing would not enable the scheme to be carried out by that deadline if nothing is now allowed, because the programme is estimated to take some 15 months and so the council would be robbed of the fruits of any such victory if this variation were to be refused.  Mr Findlay makes it clear that if this variation is granted the council would not rely on the carrying-out of these works as being any argument for resisting the substantive appeal when it comes to the March hearing.  On behalf of Mrs Morge on this issue, Miss Sackman submits that the council has in effect exaggerated the timing problem.  She says that there is no evidence that the council has approached the Department for Communities and Local Government to notify them of these delays and to request an extension for the funding timescale.  It could have explained what is happening in terms of the judicial review proceedings and sought such an extension.

9.	It is also contended that there is no reason why substantial completion of the works could not be achieved by 31 March next year if the council succeeds on the appeal this March.  I will deal with this issue first before I turn to the environmental impact issue.  I have to say I do not find the submissions by Miss Sackman on this issue persuasive.  There is evidence before me in Mr Samms’ second witness statement that the council has sought to keep the relevant agency which acts on behalf of the department informed of progress or lack of it.  He refers at paragraph 7 to a meeting in October, that is to say after the judicial review proceedings had been begun but before the deputy High Court judge’s decision, a meeting at which the council was told that in order to be certain of funding for the scheme all monies had to be expended by 31 March 2011.  I do not myself find that surprising.  That is the end of most public bodies’ financial year, and the agency and its parent department are not free agents where money is concerned.  They are under the control of the Treasury.  I can well see that if the agency becomes aware by March of this year that the scheme cannot be carried out according to the submitted timetable in the funding grant determination, a formal document, it might well withhold the grant.  It undoubtedly has the power to do that.  Conditions 26 and 27(c) of the grant determination provide ample power for the Secretary of State to take such action.  

10.	As for whether the work could be substantially completed in what would be 12 months rather than 15, I have before me the project programme, which is part of Annexe B to the grant of funding.  That is of interest in particular because it was not prepared with these proceedings in mind.  It antedates them.  The works from “main construction” onwards were scheduled originally to take from October 2009 to the end of March 2011, a period of 18 months.  Even if one omits the final category of works, bus shelters and so on, for which I can see an argument, the programme was even then still one of 15 months.  I can see no reason to question Mr Samms’ evidence on this that 15 months is realistic and indeed incapable of significant shortening.  The current position, of course, is that there are only 14 months now until 31 March 2011.  Consequently I find that the position is indeed very tight and that there certainly is a real risk of this project not going ahead if the variation works now sought cannot begin until March this year, whatever the outcome of the substantive appeal.  

11.	Is that a risk which should be taken?  That must be affected by the degree of harm which will be caused to the environment by the variation works and especially the harm to wildlife.  That takes me to the second issue which I identified earlier.  On this the court has the benefit of evidence from both sides, Mr Masterton, a wildlife consultant on behalf of Mrs Morge, and Mr Mason, an ecologist with Mott MacDonald Limited and the ecological clerk of works for the scheme, have both put in witness statements.  What is striking at the outset is that Mr Masterton makes no reference in his witness statement to any impact on badgers.  His evidence focuses almost entirely on the likely impact on bats, with some very generalised and vague references to other wildlife.  Mr Mason’s evidence is that there are now no active badger setts within the area of the variation works and that badgers would not be directly affected.  I accept that evidence.  So far as the effect on bats is concerned, there is again a modicum of agreement between the two witnesses.  Mr Mason says that no trees in the area in question provide potential roosting habitat for bats.  That accords with his own bat survey of July 2009.

12.	Mr Masterton does not assert to the contrary.  His concern in broad terms is with the availability of food for bats, because removing foliage reduces the number of insects upon which bats feed.  He also refers to a possible reduction in connectivity.  Mr Mason accepts that these works would bring about a loss of foraging habitat but says that it is so small that it is unlikely to have any significant impact on bats.  Moreover temporary mitigation measures will provide a commuting corridor during the carrying out of the works.  Miss Sackman draws my attention on this issue to the EU guidance in respect of the relevant directive.  First of all, there is reference there to disturbance which may occur to hibernating bats through the carrying out of works.  That is something which would amount to “disturbance” within the meaning of the directive.  The problem of course she faces in connection with that aspect of her argument is that there is no evidence before me of hibernating bats anywhere in the vicinity of the principal works with which I am concerned.  Secondly, she draws my attention to paragraph 38 of the same guidance where there is discussion again as to what is meant by the term “disturbance” in the directive, particularly in article 12(1).

13.	She relies upon the fact that impact only needs to be likely to be detrimental in order to amount to disturbance.  The impact, therefore, she submits, need not be significant for it to amount to disturbance within the meaning of the directive.  That may be so, but we are not discussing for the purposes of the present hearing the substantive merits of the appeal.  We are concerned with whether or not the council should be restrained from carrying out the works with which this application is concerned.  It is, in effect, a question as to whether there should be a stay pending the hearing of the appeal.  That, as has been acknowledged from the outset on behalf of Mrs Morge, requires a balancing exercise to be carried out.  It seems to me that this issue is one of degree.  On the evidence I have seen, there is unlikely to be any impact on badgers or on the roosting habitat of bats or indeed upon hibernating bats.  Secondly, there would be some loss of foraging habitat for bats, but I have looked at the bat survey and I have looked at the drawings.  The loss of foraging habitat seems to me to be extremely small relative to such habitat in the area.  We are talking about figures of not much more than 0.2 hectares which would be lost compared to somewhere of the order of 100 hectares or thereabouts that would remain along the railway line elsewhere within the scope of the scheme itself.  I accept Mr Mason’s evidence that the loss is unlikely to have any significant impact on bats. 

14.	That means that the harm to wildlife, the main area of concern, is unlikely to be significant if I allow this variation to Sullivan LJ’s order.  In those circumstances I conclude that the balance of convenience is clearly in favour of granting the variation as now applied for and I will therefore make the order sought by the council.

Order: Application granted.