R (on the application of Morge) v Hampshire County Council [2011] UKSC 2, [2011] All ER (D) 114 (Jan)
The approach to Art 12(1)(b) of the Council Directive (EEC) 92/43 (on the conservation of natural habitats and of wild fauna and flora) (the Habitats Directive) was governed by certain broad considerations.
First, it afforded protection specifically to species and not to habitats, although obviously disturbance of habitats could also indirectly impact on species. Second, the prohibition encompassed in Art 12(1)(b), in contrast to that in Art 12(1)(a), related to the protection of “species”, not the protection of “specimens of these species”. Third, while it was true that the word “significant” was omitted from Art 12(1)(b)—in contrast to Art 6(2) and, indeed, Art 12(4), which envisaged accidental capture and killing having “a significant negative impact on the protected species”—that could not preclude an assessment of the nature and extent of the negative impact of the activity in question upon the species and, ultimately, a judgment as to whether that was sufficient to constitute a “disturbance” of the species. Fourth, it was implicit in Art 12(1)(b) that activity
