Developers will breathe a sigh of relief on reading the recent case of R (on the application of Mrs Vivienne Morge) v Hampshire County Council.  The local authority wished to use 4.7 km. of the path of an old railway as a “rapid transport” bus and cycle route.  This was to alleviate substantial congestion on a single carriageway road.

All the proper authorities were consulted and all of the correct questions were asked of the correct organisations.  Natural England, for example, initially objected to the proposal, but withdrew its objection after receiving the delightfully named Updated Bat Survey Method Statement and Mitigation Strategy.  The council thereafter granted permission.  However, Mrs Morge, a resident who lived close to a junction of a new access road to the proposed rapid transport route objected, and brought a claim for judicial review of the council’s decision.  When that claim failed, she took her case to the Court of Appeal.

The judgment does not say whether her objection was because of her concern for bats, or whether she was using the bats as a cats paw (bats paw?).  Her case was based on the grounds that the council had breached an EC Directive and the regulations which imported that directive into English law, and that the planning committee had acted irrationally in concluding that the development was unlikely to have significant environmental effects.

The council had taken into consideration, as did the Court of Appeal, the fact that the area in question only had “low to moderate bat roost potential”, and the Court of Appeal upheld the decision of the first instance judge in dismissing Mrs Morge’s arguments and deciding that the permission must stand.  Although Darwin is not mentioned in the judgment, the writer cannot help feeling that the judgment is based on sound Darwinian principles and that, unless the Supreme Court decides otherwise, the question posed in the heading of this article is “No – or, at least, not yet…..”.