A price cannot be put on the conservation of rare species and habitats. However, the High Court has ruled that the possible presence of extremely rare bats in a single tree should not result in a six-month delay to the HS2 rail project – at a cost of at least £25 to £50 million.
The case concerned plans to fell 19 trees on a 0.7-hectare site which formed part of an area of ancient woodland. Ecological campaigners, some of whom had camped out on the site, contended that it was home to a number of species of bats that are protected by European conservation rules. In particular, they said that barbastelle bats may be present, a species so rare that only about 5,000 individuals are estimated to live in the UK.
Despite those concerns, High Speed Two (HS2) Limited was in March 2021 licensed by Natural England (NE) to carry out the felling operation. The licence was subject to a raft of monitoring, mitigation and compensation conditions designed to ensure that any bats found on site would continue to thrive.
After one of the campaigners mounted a judicial review challenge to NE’s licensing decision, a judge issued an interim injunction which required HS2 to suspend work on the site pending a hearing of the case. That prompted HS2 to urgently point out that, under the terms of the licence, the felling operation had to be carried out before the end of April.
If the works were delayed until October, after the end of the bat maternity season, there would be a costly delay to the relevant part of the HS2 project. HS2 put that cost at between £60.7 million and £88.8 million, although the Court proceeded on the basis that it would be at least £25 to £50 million, probably substantially more.
Dismissing the campaigner’s challenge as wholly unarguable, the Court noted that, in reaching its decision, NE had assumed that a barbastelle maternity roost was present in one of the trees, although it considered that unlikely. Given the wide-ranging mitigation measures that HS2 was required to take, the evaluative judgment reached by NE could not be faulted.
Discharging the injunction, the Court noted the very high cost of delaying the felling operation and gave considerable weight to the public interest in the continuation of work on the HS2 project without substantial interruption. It was unpersuaded that the maintenance of the favourable conservation status of barbastelle bats depended on, or would be affected by, the retention of the 19 trees.