Forest of Dean Friends of the Earth v Forest of Dean District Council [2014] EWHC 1353 (Admin)

[2014] EWHC 1353 (Admin)

Case No CO/8050/2013

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 01/05/2014

Before

THE HON MR JUSTICE BURNETT

Between

FOREST OF DEAN FRIENDS OF THE EARTHClaimant

FOREST OF DEAN DISTRICT COUNCILDefendant

HOMES AND COMMUNITIES AGENCYInterested Party

Ms J Wigley (instructed by Richard Buxton Solicitors) for Claimant

Mr C Howell Williams QC (instructed by Forest of Dean District Council) for Defendant

Mr J Maurici QC (instructed by Berwin Leighton Painsner ) for Interested Party

Hearing Hearing dates: 6 and 7 March 2014

Judgment

The Hon Mr. Justice Burnett:

Introduction

[1]The claimants challenge the grant of outline planning permission for two sites within the Cinderford area of the Forest of Dean in Gloucestershire. The permissions were granted on 27 March 2013 following a resolution to grant them on 12 February. The Homes and Communities Agency is the beneficiary of the planning permissions. It is a non-departmental government body established by the Housing and Regeneration Act 2008 whose function is to secure regeneration through housing and commercial development. Cinderford is a market town whose residents suffer from high levels of deprivation. The first permission relates to land at Newton Road, Cinderford (“the Forest Vale site”); the second relates to land at the Northern United Depot, Hawkwell Green, Cinderford (“the Northern United site”). The Forest Vale site application is for 2,800 square metres of B1 space and the Northern United site for 11,000 square metres of B1, B2, B8 and D1 use, each with associated development and enhanced access to existing roads. These are stand alone permissions in respect of sites already designated for employment with existing independent access to existing roads. The Forest Vale site is at the southwest corner, and the Northern United site at the northeast corner, of a large area, known as the Northern Quarter, which has been identified for regeneration. Over time it is hoped to build housing and mixed business development together with a new Gloucestershire College. The Forest of Dean Core Strategy [“the Core Strategy”] and the Cinderford Northern Area Action Plan [“the Action Plan”] envisage the two sites being joined by a spine road. It will provide scope for much of that further development. No planning application relating to any other development was before the defendant Council when it resolved to grant the permissions. In particular, no application had been made in respect of the spine road. It is the relationship between the spine road and the two planning permissions which is at the heart of this claim.

[2]Exploratory work has more recently been undertaken in connection with the spine road for which a licence was required from Natural England given its potential impact on newts. At the time of the hearing of this claim an application for planning permission for the spine road was still awaited, although expected soon. The overall plan envisaged the new Gloucester College being built in time to open in September 2015, although whether that is now achievable is questionable.

[3]This part of the Forest of Dean is home to substantial colonies of lesser horseshoe bats. Their interests have been taken into account in the two permissions granted. Indeed, it is not an exaggeration to say that the impact of the proposed development upon bats, and particularly lesser horseshoe bats, has driven consideration of these applications. The claimants challenge the grant of these permissions because they say that the spine road, when built, will disrupt the bats’ flight paths and potential adverse impacts cannot be ruled out. In those circumstances they submit that the Council was obliged to refuse these planning permissions.

[4]The Forest of Dean and Wye Valley Bat Sites Special Area of Conservation is made up of a number of sites which are protected because they house a large proportion of the population of lesser horseshoe bats in England and Wales. The bats spend the winter in disused mines and in the summer use buildings for roosting and as nurseries. Two buildings on the Northern United site (itself a former mine) are used for that purpose. Additionally, there is an artificial roost nearby used for the same purpose. The permissions allow the demolition of the two buildings, with appropriate licenses having been granted by Natural England, but only when alternative new artificial roosts have been built and have been occupied. It is recognised that even once the new artificial roosts have been built it may take a few years before the bats occupy them. Lesser horseshoe bats are very particular about where they roost and also about the paths along which they fly to get to and from the roosts and to forage for food. Once established, they do not deviate from those flight paths. They fly slowly and close to the ground. As a result they are particularly vulnerable to being struck by vehicles if a road is built across one of their flight paths. The lesser horseshoe bat is also very sensitive to light. The impact of artificial light associated with any proposed development close to the flight paths is an important consideration. All of these effects are capable of mitigation. The route of a road can be adjusted to minimise its impact. Culverts can be created under the road to preserve the bats’ flight paths. Alternatively, shrubs and trees can be planted which force the bats to rise above the road and out of harm’s way.

[5]This claim forms part of a concerted legal campaign against the development of this part of the Forest of Dean. The claimants challenged the Council’s adoption in February 2012 of the two development plan documents, that is the Core Strategy and the Action Plan already referred to. The principal issue was whether the Council had complied with its obligations under the Conservation of Habitats and Species Regulations 2010 [“the 2010 Regulations”] which transpose into domestic law the Habitats Directive (92/43/EC). The claimants contended that the Council failed to make a proper assessment of the impact of the proposed development on the special areas. In a judgment handed down on 20 June 2013

[2013] EWHC 1567 (Admin)

Edwards-Stuart J dismissed the claim. The claimants sought permission to appeal. The grounds of appeal were considered ‘diffuse’ and so an oral hearing was directed. Permission to appeal was eventually refused by the Court of Appeal on 24 March 2014 (that is after the hearing of this claim).

[6]The Council later adopted a Master Plan to give guidance on how planning applications within the area should be approached. That too was challenged by the claimants in separate proceedings which came on for an oral permission hearing before Collins J on 27 February 2014. He refused permission.

[7]In the meantime these proceedings were issued on 26 June 2013. The original claimant was Gary Baggus. Natural England was the second defendant. The statement of facts and grounds were described as ‘preliminary’. Nine grounds were advanced against the Council and two against Natural England. They were superseded and recast by a new statement of facts and grounds dated 17 July 2013. That document retained the same number of grounds, albeit they were not entirely the same. In summary:(i) The reasons given for the grants of planning permission were inadequate;

(ii) The Council should have postponed the decision until the legal challenge to the Core Strategy and Action Plan was decided;

(iii) The Council failed to consider alternatives to the two sites and such alternatives could not have been considered in the absence of an application in respect of the spine road. These two planning permissions determined the location of the spine road;

(iv) The Council failed to consider “in-combination” effects. It was unlawful to grant the permissions until the spine road proposal had been prepared and properly scrutinised;

(v) The Council failed to perform an appropriate assessment of the Northern United application under the 2010 Regulations;

(vi) The Council failed to ensure adequate mitigation measures for lesser horseshoe bats;

(vii) The Council granted permission when it was known that the Homes and Communities Agency had not carried out adequate surveys of protected species (not only bats but also dormice and great crested newts);

(viii) The Council failed to impose appropriate conditions on the grants of planning permission dealing with mitigation for interference with the bats’ feeding fly routes by the spine road. It was irrational to leave these to be determined at a later stage when the spine road became the subject of an application;

(ix) The Council should have refused the permissions because the access to existing roads will be different from that envisaged in the Core Strategy and Action Plan.

[8]On 28 March 2013 Natural England, which had been closely involved in the evolution of the proposals, granted the necessary licence for the demolition of buildings on the Northern United site currently used by the bats. It had originally objected to the permissions but had withdrawn its objections. Its decision to grant the licence was challenged. It was alleged that the decision was irrational because it did not provide for suitable protection. The claimants alleged an improper motive against Natural England. They had made a complaint to the police relating to disturbance of newts. They imputed to Natural England the motive of frustrating any police investigation. Additionally, various failures to take account of material considerations were advanced. On 12 September 2013 the then claimant discontinued the claim against Natural England. It was never resurrected.

[9]Collins J refused permission on all grounds against the Council on 18 September 2013. The grounds for renewal identified the fundamental legal issue at the heart of the case as the Council’s “failure to consider the cumulative impacts of the full development including the controversial spine road which was not part of the application before the Council.” The renewed application was heard by Holman J on 21 November. It started at 12.00 and finished at about 19.00. Permission was granted on ground 4 alone. The judge substituted Forest of Dean Friends of the Earth as claimants and directed that there should be no further amendment to the grounds.

[10]In view of the limited grant of leave and the restriction against expanding the claim ordered by Holman J I shall set out ground 4 in full:

“Ground 4: Failure to Consider In-Combination Effects 36. The applications relating to the Northern Quarter have been brought forward piecemeal; this has meant that it has not been possible for the Council to properly assess the cumulative and in-combination impact of the development proposals. Thus it was unlawful for it to grant these permissions. The proper course for the Council was to refuse to grant permission until the spine road application had been prepared and properly scrutinized. 37. This piecemeal approach to the application process was raised as a serious issue a number of times by [Natural England] in their responses to statutory consultation and in the objections raised by [Friends of the Earth] and others. 38. Although each of the [likely significant effects] screening documents relating to the applications purport to consider each application in the light of its cumulative effects with the other and with the proposed spine road (a future application which will clearly form an important part of the overall project) this is a fiction. The proposals to mitigate the latest proposed alignment of the spine road are described in the Environmental Statement Addendum but now appear to be invalid because the route may vary and its consultation is “a long way away” and not sufficiently developed to be considered together at this time with the applications. It has also not gone out to public consultation nor been approved by [Natural England]. Without this information being completed, made available and approved (either through the overarching Masterplan requested by [Natural England] or through a properly evidenced planning application for the spine road) it is impossible for the Council to adequately consider the [likely significant effects] or to conduct an appropriate assessment in relation to either application before it. John’s Associates, the current Ecological Consultant for the proposals, themselves stated … “No Planning Application has as yet been made for the Spine Road so no fully detailed assessment (of in-combination effects) can be, or has been made.”

As a result both decisions were unlawful. 39. [Natural England] withdrew its objection to the application on the basis that the Council had sufficient evidence that the sites were independent of the spine road and could therefore be considered without an application for the road being brought forward. However, [Natural England] wrote to the Council on 30th January 2013 prior to the Council’s approval of the Demolition application stating; “The conclusion of the Local Authority’s Appropriate Assessment is that, with mitigation, significant effects are not expected. It is Natural England’s view that the likely significant effects for the proposed spine road cannot be ruled out as detailed assessments have not yet been made.” In fact the reasons give by Natural England for withdrawing its objection, which included that the applications were independent of the spine road, came after this letter was written. 40. That the spine road cannot be divorced from the two applications is apparent from even a cursory examination of the inter-relatedness of the scheme at Northern United and [Forest Vale] with the rest of the development proposed under the [Area Plan] and the fact that throughout the applications the spine road is referred to as the “link road”. This is because the location of the development necessitates the creation of a spine road to link them and thus the development under either application cannot be considered viable without it. It follows that [the Council’s] statement that there are no [likely significant effects] cannot stand.”

[11]It appeared that the claimants were suggesting that there was a legal obligation to defer consideration of these two applications until the route of the spine road was determined, and associated mitigation measures for the bats worked through. The factual premise upon which that argument was advanced was that the development of the two sites was not viable without the spine road. The suggestion that to say otherwise was ‘a fiction’ questioned the integrity of both the Council and the Homes and Communities Agency. The claimants’ skeleton argument strayed into areas outside the permission granted. For example, it was suggested that the Council erred in relying upon Natural England having withdrawn its objection at the end of a process which involved the further information it had requested being provided. The Council should not have taken the reasons given by Natural England at face value and they were, in any event, “not lawful reasons for the removal of the objection” (paragraphs 83 et seq of the skeleton). This argument seeks to challenge the decision of Natural England to withdraw its objections to the grant of the permissions through the back door and, even then, in a way not originally advanced when Natural England was a party to these proceedings. Be that as it may, in oral argument Miss Wigley distilled the complaint against the Council to a Wednesbury challenge based upon these propositions:

“The Council was not entitled to grant these permissions because no reasonable planning authority could have concluded that Regulation 61(5) of the 2010 Regulations was satisfied; and On the facts of this case it was unlawful to grant the permissions before final plans for the spine road were available.”

[12]Both Mr Howell Williams QC and Mr Maurici QC, for the Council and Homes and Communities Agency respectively, object that the reformulation strays beyond the permission granted by Holman J. They are right to object that the unlawfulness was not identified in ground 4 as ‘irrationality’ nor by reference to Regulation 61(5) of the 2010 Regulations. Irrationality was referred to in Ground 8. Ground 4 merely asserted unlawfulness without developing the root of the alleged illegality. Nonetheless the essence of the complaint was there and both were able to deal comprehensively with the arguments advanced by Miss Wigley.

The Law

[13]The 2010 Regulations There were earlier transposing regulations. transpose into domestic law the Habitats Directive which makes provision for ensuring that proposed development does not adversely affect protected wildlife or its habitats. Article 6(3) is concerned with “plans or projects” not directly connected with an application site but which are likely to have a significant effect thereon. They must be taken into account in considering the application. It has not been suggested that the 2010 Regulations are deficient in transposing the relevant parts of the Habitats Direction. Regulation 61 provides:

“61. Assessment of implications for European sites and European offshore marine sites (1) A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which – (a) is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects), and (b) is not directly connected with or necessary for the management of that site, Must make an appropriate assessment of the implications for that site in view of that site’s conservation objectives. (2) … (3) The competent authority must for the purposes of the assessment consult the appropriate nature conservation body and have regard to any representations made by that body within such reasonable time as the authority specify. (4) … (5) In the light of the conclusions of the assessment, and subject to regulation 62 (considerations of overriding public interest), the competent authority may agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site or the European offshore marine site (as the case may be). (6) In considering whether a plan or project will adversely affect the integrity of the site, the authority must have regard to the manner in which it is proposed to be carried out or to any conditions or restrictions subject to which they propose that the consent, permission or other authorisation should be given. (7) … (8) …”

For the purpose of this regulation, the Council is the competent authority and Natural England is the appropriate nature conservation body. The Forest of Dean and Wye Valley Bat Sites Special Area of Conservation is the European site. (a) is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects), and (b) is not directly connected with or necessary for the management of that site,

[14]The regulation requires the competent authority to decide whether the proposed development is likely to have a significant effect on a European site either alone or in combination with other plans or projects. This is the “likely significant effects” evaluation. In the event that the answer at this stage is “yes”, then the competent authority must carry out an “appropriate assessment” of the development, including in-combination effects if they are in play, and may not grant planning permission unless it concludes that the proposal “will not adversely affect the integrity of the European site” – see R (Akester) v DEFRA

[2010] EWHC 232

at paragraph 15. The words “plan” and “project” are not defined within the 2010 Regulations, nor are they defined in the Habitats Directive. However, there was no dispute between the parties that a ‘project’ concerns a concrete proposal whilst a ‘plan’ is something at a more general level. That is consistent with the approach in ODPM Circular 06/2005 (Biodiversity and Geological Conservation – Statutory Obligations and their Impact within the Planning System) concerned with earlier regulations (the Habitats Regulations 1994). “Other projects” extended beyond those requiring planning permission to “a current application for any kind of authorisation, permission, licence or other consent” (see paragraphs 14 and 16).

[15]The test which the Court of Justice has identified before a competent authority may conclude that proposed works will not adversely affect the integrity of the European site is beyond “reasonable scientific doubt” - see Waddenzee [2004] ECR-I 7405 at paragraph 59 and Sweetman (C-258/11) at paragraph 40. It has also emphasised that an appropriate assessment must not contain gaps or “lack complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to effects of the works proposed” - see Commission v Spain C-404/09 at paragraph 100.

[16]The exercise identified by the Court of Justice is relatively straightforward when a competent authority is faced with a concrete proposal in isolation or even a concrete proposal in combination with other fully worked out plans or projects. But the reality of the planning system is that there are many plans which might come into play for the purposes of regulation 61 which have not been worked through at a high level of specificity. In Commission v United Kingdom [2005] ECR – I 9017 the Advocate General proposed a solution. In paragraph 43 of her opinion she noted that the observations of the Court of Justice relating to scientific certainty were concerned with measures “whose implementation was certain”. In considering the relationship between concrete proposals and plans the detail of which was yet to be determined, she said this:

“49. The United Kingdom is admittedly right in raising the objection that an assessment of the implications of the preceding plans cannot take account of all the effects of a measure. Many details are regularly not settled until the time of the final permission. It would also hardly be proper to require a greater level of detail in preceding plans or the abolition of multi-stage planning and approval procedures so that the assessment of implications can be concentrated on one point in the procedure. Rather, adverse effects on areas of conservation must be assessed at every relevant stage of the procedure to the extent possible on the basis of the precision of the plan. This assessment is to be updated with increasing specificity in subsequent stages of the procedure.”

The case concerned the transposition on the Habitats Directive into domestic law in the United Kingdom and Gibraltar and wide-ranging complaints by the Commission that domestic law was deficient in doing so. It was unnecessary for the Court to comment upon paragraph 49 of the Advocate General’s opinion, although there is no sign of disagreement. An approach of the sort suggested by the Advocate General is clearly necessary to avoid sclerosis of the system. It represents an authoritative statement of the law from which the claimants have not sought to dissent, although not referred to their skeleton argument, and which has been accepted in this jurisdiction: Feeney v Oxford City Council

[2011] EWHC (Admin) 2699

and R (Buckingham County Council) v Secretary of State for Transport

[2013] EWHC 481 (Admin)

[17]In deciding whether a proposal (taken alone or in conjunction with other projects and plans) complies with regulation 61 the competent authority may have regard to mitigating measures as regulation 61(6) itself makes clear.

[18]A competent authority may rely upon the views of Natural England on matters arising under the 2010 Regulations on which they must be consulted and would need cogent reasons to reach a different conclusion – see R (Prideaux) v Buckinghamshire County Council [2013] Env. L.R. 32 at paragraph 116 and cases there cited. In R (Morge) v Hampshire County Council

[2011] UKSC 2

;

[2011] 1 WLR 268

the Supreme Court considered a challenge to planning permission said to breach article 12 of the Habitats Directive, concerning protection of species. Natural England had originally objected to the proposal but at the end of an iterative process that involved the provision of additional bat surveys, it withdrew its objections and the permission was granted. Lord Brown of Eaton-under-Heywood observed at paragraph 30, “Where, as here, Natural England express themselves satisfied that a proposed development will be compliant with article 12, the planning authority are to my mind entitled to presume that that is so.” Baroness Hale of Richmond put it differently at paragraph 45, “The planning authority were entitled to draw the conclusion that, having been initially concerned but having withdrawn their objection, Natural England were content that the requirements of the Regulations, and thus the directive, were being complied with. Indeed, it seems to me that, if any complaint were to be made on this score, it should have been addressed to Natural England rather than to the planning authority.” This reasoning, arising as it did out of a planning application which engaged article 12 of the Habitats Directive, applies in just the same way to an application which is concerned with article 6(3) transposed by regulation 61 of the 2010 Regulations.

[19]Whether the requirements of regulation 61 have been met as regards in-combination effects is a matter of planning judgement for the Council on the basis of the information available to them and the advice of Natural England. Such a conclusion can be challenged on Wednesbury grounds. That presents a high threshold, all the more so when (as here) Natural England withdrew their objection to the grant of the permissions, which had been premised on a failure to provide sufficient evidence to satisfy the regulation 61(5) test.

The evolution of the applications

[20]The Core Strategy and Action Plan were adopted by the Council on 23 February 2012. The Core Strategy proposed the new Northern Quarter for Cinderford. The Action Plan was concerned with the Northern Quarter. One of its features was a proposed spine road joining the southeast and northeast corners. It also envisaged the demolition of the two buildings on the Northern United site which provide summer roosts for lesser horseshoe bats. Policy 15 of the Action Plan is applicable to the spine road. The narrative explaining the policy emphasises the importance of the spine road in delivering the regeneration aims in question. It notes that there is flexibility to adjust the alignment of the road depending on “the findings of future habitat surveys which will be required as detailed design proposals are prepared.” It contains a section entitled “habitat mitigation measures” which refers back to Policy 10 (in part concerned with lesser horseshoe bats). The section explicitly sets out the requirement to identify bat flight routes. It envisages these will be maintained via “green links”. These might include culverts, aerial cross ways achieved by tree planting or green bridges via wires. Other detail is provided designed to take bats across the spine road above the traffic and there is also recognition of the importance of designing lighting in a way which minimises disruption. Policy 15 itself relating to the spine road is in these terms: “In order to unlock the full potential of the Northern Quarter, the Council will require the comprehensive development of the site to be carefully coordinated with the construction of the new spine road. The Council will pursue the following objectives when assessing detailed designs for the road and associated development alongside the route:• The new route should have a street-based character not that of a traffic dominated by-pass; and

• The design of the street section should seek to avoid, minimise, or compensate (in that order) any impact on forest land and protected species.

• The design of the street section must demonstrate to a high standard how the four primary bat corridor routes to/from the roost sites will be maintained and protected during and after the construction of the spine road. Any further primary bat corridor routes that may be identified prior to development will be similarly maintained and protected. Key factors will include: 1. A detailed scheme of vegetation protection and landscaping, including the phasing works demonstrating that woody vegetation structure within and surrounding primary bat corridors will be in place prior to development being undertaken and maintained after development is completed. 2. Artificial lighting must be designed to maintain effective dark flight ways for lesser horseshoe bats within the primary corridors. 3. Minimum surface paths and widths appropriate to the function of the road within primary bat corridor areas to minimise the degree of severance. 4. When needed create new road crossing structures such as culverts and gantries to maintain primary bat corridors designed with suitable expert advice and according to best practice guidance. 5. A detailed programme of monitoring for no less than three summers following the construction in each of the primary bat corridor areas. The programme should specify contingency procedures and responsibility for implementation should the monitoring reveal that the crossings are not being used by numbers of lesser horseshoe bats comparable to those indentified in the baseline surveys on 2010/11. 6. Suitable provision for the long term management and maintenance of all vegetation and road crossing structures that are required to maintain primary bat corridor routes.”

• The new route should have a street-based character not that of a traffic dominated by-pass; and

• The design of the street section should seek to avoid, minimise, or compensate (in that order) any impact on forest land and protected species.

[21]Policy 26 was concerned with European Nature Conservation Designations, including the Wye Valley and Forest of Dean Bat Sites Special Area of Conservation. It noted that development proposals would have to comply with the 2010 Regulations and identified the need for detailed plans for the development of site level mitigation. The importance of these policies is that they lock in consideration of the interests of the bats when proposals for the spine road, or any development along its route, come to be considered.

[22]In September 2012 the Homes and Communities Agency let the contract for geotechnical investigation for the spine road. Work commenced in October 2012 but was suspended on 1 November when the complaint was made to the police that the work breached the 2010 Regulations. In the meantime, on 8 October 2012, the applications for both the Forest Vale and Northern United sites were made. Each was accompanied by an Ecological Impact Assessment. There was a bat Masterplan and a number of bat method statements. These are explained in the witness statement of Jenny Bennett, a specialist environment consultant, with selective extracts from the work undertaken in support of the applications running to hundreds of pages. Jeanette Lambe, the Senior Area Manager of the Homes and Communities Agency explains in her witness statement that the applications for planning permission for development at the Forest Vale and Northern United sites were made as a catalyst to kick start development in the Cinderford area. It is the belief of the Homes and Communities Agency and also of the Council (confirmed in its evidence) that these developments could proceed independently without the need for the spine road. This uncontradicted evidence is of importance because it demonstrates one of the founding premises of the claim to be wrong.

[23]At the time that these applications were made any application in relation to the spine road was necessarily a long way off. That was because the geotechnical investigation had to be undertaken before the plans could be worked up. A consequence of the complaint made to the police was significant delay in proceedings with that investigation and so delay in the finalisation of plans for the spine road.

[24]On 26 October 2012 the Council carried out its screening assessments under regulation 61 of the 2010 Regulations and its appropriate assessment relating to the Northern United site. Natural England was notified of both applications but objected on the basis that the ecological material provided in support was deficient. Natural England wished to see an over-arching ecological Masterplan for the whole of the Action Plan area. On 19 November 2012 the Homes and Communities Agency submitted a Biodiversity Strategy for the whole area. On 27 November Natural England wrote to the Council. It indicated that as the Biodiversity Strategy had only just been produced, the objection would be maintained at least until it could be examined, consulted upon and approved. It remained Natural England’s view that an “agreed over-arching Masterplan is an absolute prerequisite before any applications for new development are approved.” On 3 December Natural England wrote to the Council in connection with the Biodiversity Strategy asking for further information. The letter stated that the Biodiversity Strategy did not meet the requirements of an overarching Masterplan envisaged by Natural England. The objections were maintained. However, it contained a list of further information required by Natural England. Natural England noted the piecemeal nature of the applications and, whilst acknowledging that “most of the aspects of the development should be capable of mitigation”, suggested that the Biodiversity Strategy did not provide enough detail.

[25]On 19 December 2012 DLA Piper, who were advising the Housing and Regeneration Agency, wrote to Natural England having had a discussion with its senior advisor, Mr Wren, about the in-combination issue five days earlier. The letter approached those in-combination effects through the two stage process. It acknowledged that the spine road was a “plan” for the purposes of regulation 61 and explained that further work was being undertaken which should provide complete reassurance regarding those in-combination effects. It also suggested that it was important to appreciate that the Northern United site proposal was not put forward on the basis of its being used for the spine road. This was the “stand alone point”. Natural England had been pressing for a fully worked up scheme for the spine road before approving the discrete applications. DLA Piper argued that the Habitats Directive did not require that. On the following day, 20 December 2012, an addendum to the Environmental Statement and a revised Biodiversity Strategy were provided to the Council. There were also two further Bat Method statements. The Council consulted Natural England about the additional material.

[26]Its response came in a long letter dated 25 January 2013. Natural England expressed the view that these two planning applications and an application for the spine road should have been submitted at the same time so that all aspects of the development could be considered together. It expressed the view that it was “unfortunate” that the planning application for the spine road has not been submitted yet. Having dealt with the question of the new artificial bat roosts it continued, “The Biodiversity Strategy addresses the potential ecological impacts of the spine road and associated mitigation at a high level. Given the high level of assessment, it is Natural England’s view that the ‘high degree of confidence’ in the likely success of those mitigation measures associated with the spine road is premature. Natural England’s advice is that while it may be possible to mitigate for the impacts of the road on bats … mitigation will not be straightforward and is therefore likely to be difficult and potentially costly.” In its conclusion Natural England said:

“Natural England considers the level of information provided by the Biodiversity Strategy in relation to the two developments to be adequate enough to lift its objection set out in the letter of 9th November 2012. However, Natural England advises that the effectiveness of the mitigation measures proposed with these applications could be removed by future projects envisaged in the Area Action Plan. In particular the Council will need to carefully consider the imminent proposal to build the spine road and its relationship and interdependence with these two applications. For example the Council will need to consider the extent to which the proposed mitigation will impact and constrain the design of the spine road. …Whilst we believe that it is possible to mitigate the impact of the proposed spine road on European Protected bat species it is likely to be challenging from an engineering and design point of view and therefore costly. The Council may wish therefore to consider whether it represents sustainable development or of there are alternative options.”

[27]There was a further letter dated 30 January 2013 which dealt with ‘likely significant effects’ of the proposed spine road. It should be noted that ‘likely significant effects’ refers to the first stage of the evaluation required under regulation 61 of the 2010 Regulations, rather than an “appropriate assessment” which follows if such effects are accepted as arising. Natural England expressed the view that significant effects from the spine road could not be ruled out “as detailed assessments have not been made yet”. The Council sought clarification of the responses from Natural England for the purpose of ensuring that the officers’ report to the planning committee accurately reflected its considered opinion. Mr Wren replied on 4 February:

“As you know the current applications fix the end points of the spine road as proposed by the [Action Plan]. This means that, if built, it is likely to cross important flight lines for bats … We appreciate that the Council has taken the decision as competent authority to assess the current schemes as standalone schemes because a) the proposal to build the full spine road is not imminent and consequently there is not enough information to assess and rule out impacts from it and b) the Council has obtained information to give confidence that the two current applications are completely independent of and not reliant upon any other development as set out within the [Action Plan] coming forward, and in particular are not reliant upon the development of the spine road, i.e. both developments could be successfully implemented even if no other proposals in the [Action Plan] came forward. We have removed our objection to the development on this basis. Whilst we have removed our objection …as specialist advisor on HRA matters we continue to advise you that … the impact of a future spine road could be even more significant because the applications for the new mitigation bat roosts place them in a location which will be separated from the [Special Area of Conservation] and the existing artificial roost by the probable route. We have pointed this out because the design and costs implications of bat mitigation for the current developments may remove flexibility and reduce options for the District Council and future developers when they seek to progress other developments (including the spine road). And we consider it sensible to make them aware of this in advance. However, we are not saying that the impact of the spine road on bat flight lines cannot be mitigated, rather that further survey work should be undertaken in order to determine whether impacts can be mitigated for, and what mitigation may be required. In order to help the Council plan the implementation for future elements of the [Action Plan], we have advised that any necessary mitigation for the spine road may be significant and may be fundamental to its overall design.”

The letter went on to advise that mitigation measures attached as conditions to these permissions (if granted) could constrain future developments and also to remind the Council that the destruction of the existing roosts at the Northern United site would necessarily follow the use of the substitutes by the bats for breeding.

[28]The overall message of this communication was that whilst Natural England did not object to the granting of permission for the Forest Vale and Northern United sites, the interests of the bats would continue to be critical when further applications were considered with substantial potential difficulty and costs as a result. The appropriate assessment was revised on 8 February. It considered the effects of the development of the Northern United site in-combination with other developments, including the spine road and “office, residential, industrial and educational development” detailed in the Action Plan. The conclusion was, “Cumulative effects associated with the [Action Plan], specifically in connection with phase 1c of the spine road will be avoided provided that(i) the overall effectiveness of mitigation measures proposed/required for this application resulting in this application alone having no negative impacts; and

(ii) further that as and when the spine road project comes forward for determination (it is currently envisaged as part of the [Action Plan], it will also have to meet the requirements of [Action Plan] policy 26 and may only be permitted where the requirements of Part 6 of the [2010 Regulations] are met. This will include the requirement for a detailed analysis of any impact of any proposed spine route on the mitigation proposed for the Northern United Development. The ES Addendum dated December 2012 (e.g. para 4.254) explains how it is envisaged that possible impacts of a spine road proposal would be mitigated. Planning obligations and conditions will have the effect of legally securing the requirements of this assessment.”

[29]It had been the view of the Council throughout that a combination of the mitigation measures which could be put in place in connection with the potential spine road development and the strictures of the policies attached to the Action Plan, coupled with the legal requirements of the 2010 Regulations provided absolute confidence that there would be no adverse impacts. If appropriate protection could not be provided, the spine road could not be built.

[30]The Claimants questioned the basis upon which Natural England had withdrawn their objections. In a letter to Natural England dated 7 February they asserted that the planning application for the spine road was “imminent” and that it would be “good practice” to defer consideration of the applications in issue until an application for the spine road had been lodged. They asserted that Natural England should maintain its objections, indeed suggested it was their duty to do so. The applications were due to be considered at a meeting on 12 February 2013. Minutes before the meeting was due to start, the Council received a letter from the claimants’ solicitors. That letter suggested (without any evidence) that Natural England had been “subjected to improper outside pressure”. It asked that the decisions should be deferred and threatened legal action in default. The Council nonetheless resolved to grant the permissions later that same day.

[31]In their reply to the solicitors’ letter the Council identified (correctly) the real focus of complaint, namely the merits of the advice received from Natural England. It noted that the Council was entitled to rely on and consider the contents of advice received from Natural England. They were satisfied with its merits.

[32]Natural England remained fully engaged in connection with settling conditions relating to the permissions. At no stage has it sought to question the grants of permission or qualify the position it adopted as statutory consultee for the purpose of regulation 61 of the 2010 Regulations.

Discussion and Conclusions

[33]The heading to Ground 4, “failure to consider in-combination effects”, might be thought to suggest that this aspect of the obligations under the Habitats Directive and regulation 61 was overlooked or ignored. However, that is not in truth the allegation made by the claimants. That is not surprising because the large volumes of papers filed in connection with this claim show that both the Council and the Homes and Communities Agency paid careful attention to the requirements of the Habitats Directive and in-combination effects. The applications stood no prospect of success unless the Council was satisfied as regards in-combination effects and the reality was that Natural England, as consultee under regulation 61(3), also needed to be persuaded. The applications were made with this at the forefront of everyone’s minds. An iterative process developed. The Council updated its assessments in response to comments from Natural England and the Homes and Communities Agency responded to their concerns and requests.

[34]The claimants are critical of the reasons giving by Natural England for withdrawing the objections, but the criticism has no validity on its own terms, quite apart from any legal impact. Natural England throughout expressed the view that it would be better if the spine road application were made at the same time as those relating to the developments of the Northern United and Forest Dean site. The Core Strategy and Action Plan always envisaged that the spine road would run between these two sites.

[35]Natural England gave two reasons for withdrawing its objection. The first related to the absence of a plan for the spine road. The reference in Natural England’s letter of 4 February to the proposal to build the spine road not being “imminent” was linked with the observation that, in consequence, full details were not known. At the time no application had been worked up or made, nor were the details of the spine road known. Over time there had been many different options for the route of the spine road mooted. Its route would depend upon the results of investigations yet to be carried out and also upon the design of satisfactory mitigation measures for the bats. The reference to imminence, linked as it was to knowledge of details of the spine road, was not a crude reference to a period of time. When Natural England and the Council exchanged correspondence at the end of January and beginning of February 2013 the likely timing of an application in respect of the spine road was slipping. In the New Year it had been hoped that the application would be forthcoming in March, but by February the best guess was June. That turned out to be wrong. Relevant licences from Natural England in respect of some of the investigatory work were not granted until the end of August. The application had still not been lodged at the time of the hearing of this claim. The application was not imminent.

[36]The second reason was that Natural England accepted that the two applications were independent of and not reliant upon any other development, in particular they were not reliant upon the development of the spine road. In ground 4 the claimants describe this as “a fiction”. However, the evidence filed by both the Homes and Communities Agency and the Council show that it is not a fiction. There is no dispute that amongst the aims of the Action Plan is that these two sites should form part of an ambitious scheme to regenerate the Northern Quarter and that they should be linked by a spine road. The two ends of the spine road have, in that sense, been fixed since the Action Plan was adopted. However, it is the intention of the Council and Homes and Communities Agency that these two developments should proceed irrespective of what other parts of the Action Plan come to fruition. It may be that the claimants have reasoned from the fact that the development of these two sites forms part of a comprehensive regeneration plan which includes a spine road between them to a conclusion that the two sites cannot be developed independently. In so doing they appear to suggest that both these public bodies have misled Natural England and have continued to rely upon something which is untrue, first in seeking and granting planning permissions and secondly in arguing to uphold those permissions in these proceedings. There is no basis for such a suggestion. It is of a piece with the imputations of bad faith made in the solicitors’ letter of 12 February 2012 against the Council and the Homes and Communities Agency and the clear allegation of bad faith made against Natural England in connection with the complaint to the police over investigations being carried out in the Autumn of 2012. Those concerned should be more careful to ensure that there is a foundation for alleging bad faith before casually doing so.

[37]The argument that the Council could not rationally conclude that the requirements of regulation 61(5) of the 2010 Regulations involves two propositions. The first proposition is that the Council was obliged to defer consideration of the two applications before it until a fully worked up proposal relating to the spine road was available. The claimants were unable to point to any statutory provision which dictated that result, nor any authority, domestic or European. Indeed, such an approach would not sit happily with the obligation of a planning authority to deal with such applications as it receives. Instead they relied upon the European cases cited in paragraph 15 above to support the submission that it has not been demonstrated beyond reasonable scientific doubt that the spine road would not have an adverse impact upon the European site in combination with these applications, and that until an application in respect of the spine road is worked up it is impossible to do so.

[38]The submission did not recognise the flexibility necessarily imported into consideration of in-combination plans which have not been fully worked up reflected in the observations of the Advocate General in Commission v United Kingdom. It is clear that the approach of the Council and the Homes and Communities Authority to the in-combination effects arising from the plan for a spine road accorded with that approach.

[39]The second proposition is that the Council should have ignored the change of position of Natural England, consulted under regulation 61(3) as the expert body in connection with conservation and the Habitats Directive, and rejected the applications. That proposition arises in the context of the Council and the Homes and Communities Agency having been engaged in a process designed to meet any concern advanced by Natural England that the permissions were not compliant with the 2010 Regulations, including producing additional material and information directed to those concerns. That also includes a legal debate over the telephone and in writing with Natural England. Natural England was satisfied that there was no impediment under the 2010 Regulations to the grant of the permissions. It maintained its position in the face of criticism from the claimants.

[40]Wednesbury challenges are rarely easy to get home but this is a very unpromising start. The claimants contend that it was irrational in those circumstances to conclude that regulation 61(5) was satisfied as regards in-combination effects.

[41]Just as the Council and Homes and Communities Agency were alive to the correct approach to in-combination effects under the 2010 Regulations (and Habitats Directive) so too was Natural England. Having recognised that the application relating to the spine road had not been worked up it was concerned with the outline plans which were available. It recognised that suitable mitigation was feasible (if potentially difficult and expensive). On the basis of the detail available there was no reason to object to these permissions. I am unpersuaded that the conclusion of Natural England was wrong in any respect. On the contrary, it was correct. But irrespective of that the Council was entitled to rely upon the decision, indeed entitled to presume that the approach of Natural England was correct – see Morge. There is no substance in this Wednesbury challenge. Furthermore, as Baroness Hale observed the point, if it had any merit, should have been taken against Natural England.

[42]A subsidiary argument was touched upon in the claimants’ skeleton argument and developed during the course of the hearing. The Habitats Directive, as transposed by regulation 62 of the 2010 Regulations, allows a development to proceed if, there being no alternative solutions, it must be carried out “for imperative reasons of overriding public interest” even if it does not comply with regulation 61. Lesser horseshoe bats are not a “priority species” for the purposes of the Habitats Directive. An especially high test is imposed before the public interest can interfere with priority species. But it would nonetheless be necessary for an overriding social or economic reason to be demonstrated and for there to be no alternatives, before an application for the spine road could succeed in circumstances where it would harm the Special Area of Conservation. The claimants appeared to be concerned that the Council might seek to argue on economic grounds that the spine road should be built even if satisfactory arrangements could not be made for the bats. Mr Maurici submitted that such a fear was misconceived, indeed he went so far as to say that the test under regulation 62 could not be satisfied. Given the threshold imposed by regulation 62 in these circumstances one can well understand how difficult it would be to make the argument.

[43]If it is being suggested that it was irrational to grant the permissions because they would make an argument under regulation 62 more tenable, that is clearly unarguable, even if at a generous stretch the argument might fall within Ground 4. The claimants referred to authorities relating to “salami slicing”, a phenomenon associated with unscrupulous developers who make multiple small applications with a view to avoiding the strictures of environmental protection legislation for the whole. There is no evidence, nor can there be any suggestion, that such is the motive of the Homes and Communities Agency of the Council.

[44]On a detailed examination of the circumstances in which the permissions came to be granted by the Council, this claim fails and will be dismissed.

Cited in 1 later judgment

Foster & Anor, R (on the application) v Forest of Dean District Council & Ors 2015