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

The claimants seek permission to apply for judicial review of the decision of the Forest of Dean District Council (“the Council”) of 26 February 2015 to grant planning permission to the Homes and Communities Agency for a mixed use development in the Northern Quarter, Cinderford, Gloucester. Their objections to the development are essentially because of what they claim will be its impact on bats (in particular, the lesser horseshoe bat) and bat roosts nearby.

The Northern Quarter lies within a few kilometres of the Wye Valley and Forest of Dean Special Area of Conservation for bats (“the SAC”), which is a European site for the purposes of the Conservation of Habitats and Species Regulations 2010, SI 2010, No. 490 (“the Habitats Regulations”). The application site includes areas which are used by the bat colonies for foraging and roosting. Former colliery buildings within the application site and the artificial bat roost in the adjacent Hawkwell Inclosure wood support the bat population of the SAC. The planning permission covers outline permission for 195 dwellings, a hotel and employment and non-residential use, and permission for a College and a new link road between the A4136 and Broadmoor Road (the so-called “Spine Road”).

There have already been a number of unsuccessful challenges to the redevelopment proposals for the Northern Quarter: Forest of Dean Friends of the Earth v. Forest of Dean District Council [2013] EWHC 1567 (Admin); Forest of Dean Friends of the Earth v. Forest of Dean District Council [2015] EWCA Civ 683; R (Forest of Dean Friends of the Earth) v. Forest of Dean District Council [2014] EWHC 681 (Admin).

These current applications are a challenge to the Council’s approach towards its assessment under the Habitats Regulations because of the bat SAC. The challenge falls under three heads: (1) the decision to grant the permission was unlawful because the mitigation measures which had been identified as necessary to address the potential recreational impacts of the proposed development on the bats in the Hawkwell Inclosure were not secured, either by way of a condition attached to the permission or in the accompanying section 106 agreement (first claimant); (2) the Council unlawfully failed to ascertain that the proposed development would not adversely affect the integrity of the SAC (second claimant); and (3) the Council failed to take into account “in combination” effects (both claimants). The second claimant abandoned another ground – a failure to consult Natural England – so nothing more need be said about that.

Patterson J rejected these grounds in the following terms:

The factual background regarding bats and bat roosts and the SAC is set out in the Council’s Cinderford Northern Quarter Biodiversity Strategy Technical guidance (“BSTg”), June 2014:

The BSTg dealt with ecological corridors for bats to migrate and disperse at paragraphs 3.17–3.18. It was said that the corridors were critical and their interruption a key issue. There was a risk that development of the Spine Road could result in an increased mortality of bat species as a result of road collisions. The BSTg returned to the issue under the heading “road design scheme”.

Before planning permission was granted there had been correspondence between the Council and Natural England. Natural England made clear that it would oppose the development as then proposed. Natural England raised a number of issues such as impact of the Spine Road on bats and the proposed culverts and flyways to avoid collisions with vehicles. The Council responded with changes in its mitigation measures. After receiving drafts of the Appropriate Assessment, Natural England indicated on 30 September 2014 that (1) the project would not affect the integrity of any European Site alone, subject to the imposition of mitigation measures set out in Tables 1 and 2a-f of the draft Appropriate Assessment; (2) there would be no residual effects and therefore it was deemed unnecessary to assess “in combination” effects with other places and projects; and (3) it had no objection to the application for planning permission. Natural England had stated in relation to mitigation measures, i.e., point (1), that it should be consulted regarding the imposition of these since they would have to be accurately drafted and implemented. During October 2014 there was further correspondence between the Council and Natural England and the Council made further revisions to the mitigation measures. On 27 October, the Council wrote to Natural England, including a revised proposal for condition 20 and also a copy of the draft Appropriate Assessment, which explained that the requisite mitigation measures would be secured through both planning conditions and a section 106 agreement.

On 30 October 2014, Natural England wrote, in response to three questions put to it by the Council.

Natural England emailed the Council again on 3 November 2014 as regards the draft planning conditions, explaining that it was the Council’s responsibility to ensure that they were fit for purpose, but “[i]n general terms we see no matters of significant concern to us…” The Council’s evidence, which I accept, is that Natural England will be consulted again on the detail of the measures when reserved matters applications are received.

The 30 October 2014 version of the final Appropriate Assessment found that the project would not affect the integrity of any European site, subject to the imposition of certain mitigation measures. No residual effects were identified so it was deemed unnecessary to assess the effects of the project in combination with plans and projects. The tables in the draft identified potential impacts and the proposed means by which those impacts would be mitigated. Table 2c referred to road collisions and severance impacts associated with lesser horseshoe bat flyways. The ramifications of the Spine Road were mentioned. Among the mitigation measures to address the uncertainty on residual effects identified was adaptive management measures, secured by conditions and a section 106 agreement. It might include additional landscaping to guide bats to safe crossing points; removal of landscaping to dissuade bats from crossing at unsafe points; additional dissuasive lighting; and walls/fences at hop-overs to increase flight heights and reduce collision risk.

Table 2e referred to “Wye Valley and Forest of Dean Bat Sites SAC – operational disturbance to lesser horseshoe bat roosts”. Mitigation measures were set out in Box B, such as reducing recreational access to the Hawkwell Inclosure. Box D contained additional mitigation measures to address the uncertainty and residual effects identified in Box B. These included:

Measures to dissuade access such as defensive planting;

Measures to further increase secureness of roosts dependant [sic] on nature of vandalism risk assessed.”

The planning permission granted reflects that the development is to be phased. Phase 1 is the Spine Road from Broadmoor Road to the College site and the College (plot E), and phase 2 is the remainder of the Spine Road and the remainder of the development (plots A, B, C, D, F, G and H). Phase 1 was set out in detail, along with the remainder of the Spine Road in phase 2, the remainder of the development in phase 2 being submitted in outline. Planning condition 1 sets out those areas subject to detailed planning permission. Condition 2 sets out outline areas where detailed matters are reserved for consideration through further applications, up to 10 years hence. Conditions 13–15 control the demolition of the two roosts at the Northern United Colliery site. The conditions require that, in addition to the existing purpose built roost, two new day roosts are to be constructed and in use to an agreed level with Natural England before these can be closed and demolished. (The new roosts are called RR1 and RR2b). A European Protected Species licence would also be required prior to demolition. The Spine Road connection cannot be completed until such time as the buildings can be demolished. (In evidence are photographs of the two new additional roosts, which were substantially completed in March 2015. The three purpose built roosts are on land let on 50 year leases by the Council from the Forestry Commission.)

Condition 18 and its relevant part reads:

A description and evaluation of features to be retained, managed and enhanced within the relevant plot…

Constraints and opportunities (including biodiversity enhancement);

Aims and objectives for management;

Appropriate management options for achieving aims and objectives;

Prescriptions for management;

A strategy to demonstrate how management will address the potential disturbance to the surrounding key ecological components as identified in the Biodiversity Strategy Technical Guidance;

Work schedule (including an annual work plan capable of being rolled forward over a five year period);

Review arrangements, monitoring and remedial measures;

Responsibilities for implementation.

Condition 19 provides that, within six months of the opening of the College on plot E1, a Biodiversity Management Plan shall be submitted to and approved in writing by the Council.

Condition 21 reads, in part:

Condition 23 provides:

Cover the full length of the Spine Road and development areas as shown on drawing [ ] including its bat culverts, bridges as shown on drawing [ ] and dark corridors including that shown on drawing [ ].

Cover major and minor lesser horseshoe flyways as shown in Fig 7.4 (Lesser Horseshoe Bat flight lines) of the Addendum to the Environmental Statement Volume 3: Figures and Appendices (June 2014).

Cover the Main Office, Bath House, Canteen as shown on figure 6, page 17 of Appendix 7.4 (Bat Survey Report) of the Addendum to the Environmental Statement Volume 3: Figures and Appendices (June 2014) and existing artificial roost and replacement roosts RR1, RR2 as shown in figure 7.5 (Development phases and mitigation proposals) of the ES Addendum Volume 3: Figures and Appendices (June 2014) and two night roosts as required pursuant to condition 13;

Identified adaptive management options that may include: Removal of landscaping to dissuade bats from crossing at unsafe points, additional dissuasive lighting and walls/fences at hop-overs that could be implemented if monitoring shows that measures are ineffective or not reaching stated aims and objectives.

The section 106 agreement, clause 8.7, contains a covenant between the HCA and the Council that the HCA will “implement or procure the implementation of the monitoring of the Bat Roost Replacement Works as more particularly set out in Schedule 5”. Clause 8.8 is the HCA’s covenant to implement or procure the implementation of the Phase 1a and Phase 1b General Mitigation Creation and associated General Mitigation Management and Monitoring tasks set out in Schedules 1, 2, 4 and 5 (Phase 1a mitigation relates to Phase 1 of the development; Phase 1b mitigation relates to the development of the remainder of the Spine Road in phase 2). Clause 10.5 is the covenant:

Schedule 5, “Mitigation Monitoring”, provides that mitigation monitoring is to be carried out for the appropriate phase of development and mitigation areas as set out in Table 2. Under the heading “Monitoring requirements”, Table 2 reads:

The Habitats Regulations implement the Habitats Directive 92/43/EEC. Tracking Article 6 of the directive, regulation 61 provides:

Mitigation measures can be taken into account in making the regulation 61 assessment, R (Champion) [2015] UKSC 52; [2015] 1 W.L.R. 3710, [48]–[53]. Natural England is the appropriate nature conservation body for the purposes of regulation 5(1)(b)(i) of the Habitats Regulations. Its views deserve great weight: see the case law collected by Lindblom J in R (on the application of Prideaux) v. Buckinghamshire County Council [2013] EWHC 1054 (Admin); R (on the application of Forest of Dean Friends of the Earth) v. Forest of Dean District Council [2014] EWHC 1353 (Admin) at [18], per Burnett J; [2015] EWCA Civ 683, [20], per Sales LJ with whom Longmore LJ and Hildyard J agreed. See also Smyth v. Secretary of State for Communities and Local Government [2015] EWCA Civ 174, [85], per Sales LJ.

At a very late stage, Ms Wigley for the second claimant raised an issue of European law, even suggesting that the matter needed to be referred to the Court of Justice of the European Union (“CJEU”). It turns on a paragraph in Case C-258/11 Sweetman v. An Bord Pleanála (Galway County Council intervening) [2014] PTSR 1092, where the CJEU said this about the assessment required by the Habitats Directive:

To my mind there is an air of unreality about this submission. The CJEU could not have been suggesting that, as Ms Wigley submitted, national courts themselves must decide when the assessment has lacunae, whether it contains complete, precise and definitive findings, and whether its conclusions are capable of removing all reasonable scientific doubt as to the effects of the works proposed on the protected site concerned. Judges may be clever, but not that clever. The submission also misunderstands the role of courts in European societies. To my mind the CJEU was simply stating that the national court had to evaluate the assessment in the ordinary way, not become the primary decision-maker.

In any event, the submission is contrary to authority binding on me, despite the different context. In Smyth v. Secretary of State for Communities and Local Government [2015] EWCA Civ 174, [79]–[80], Sales LJ rejected a submission that in applying the Habitats Directive the national court must apply a more intensive standard of review, in effect making its own assessment afresh. Sales LJ rejected the submission, reaffirming earlier authority that the standard of review is the Wednesbury standard, which is substantially the same as the relevant standard of review of “manifest error of assessment” applied by the CJEU in equivalent contexts: see [80].

As well, the question whether or not any cumulative effect with other developments ought to be assessed at all is a matter of fact and judgment for the decision-maker: R (on the application of Larkfleet Ltd) v. South Kesteven District Council [2014] EWHC 3760 (Admin); [2015] Env LR 16 per Lang J at [76] to [78], citing the decisions of the Court of Appeal in Bowen-West v. Secretary of State for Communities and Local Government [2012] EWCA Civ 321; [2012] Env 22 and Brown v. Carlisle City Council [2010] EWCA Civ 523; [2011] Env LR 5.

There is European Commission Guidance on the implementation of the Birds and Habitats Directives in estuaries and coastal zones, 2011. At paragraph 3.3 it states that:

In succinct and cogent submissions, Mr Turney contended for the first claimant that, under the planning permission, there was no obligation to discourage additional access to the Hawkwell Inclosure and the consequent disturbances, nor for requirement (ii) of Box D of Table 2e of the Appropriate Assessment. Condition 18 was incapable of discouraging such access. The requirement under it was to submit a Biodiversity Management Plan for each plot, but such plans were concerned with the management of land within each plot, not with the management of the Hawkwell Inclosure which is outside any of the plots. Yet the inclosure is capable of being directly accessed from those plots via public highways and rights of way. Thus the requirement in condition 18 is incapable of preventing people resident or working in those plots from causing disturbance to it. Moreover, the requirement in condition 18 does not relate to all parts of the development. As to the requirement in condition 19 to submit a Biodiversity Management Plan in respect of the College, plot E1, that only arises after the College there has been constructed and open for 6 months. Further, there is no provision to ensure the effectiveness of any measures in any particular plan.

As to condition 21, Mr Turney submitted that it relates to management of specific areas as each comes forward for development and is not concerned with measures to prevent recreational disturbance. Condition 23 does not secure any mitigation measures. Thus Mr Turney contended that there was nothing in the conditions nor in the section 106 agreement to require any measures to be taken at the Hawkwell Inclosure roost, which was not within any of the development plots. The reference to the “Bat Roost Replacement Works” as required in the section 106 agreement was misplaced since these works relate to the new replacement roosts, i.e., RR1 and RR2.

In my view, Patterson J was correct in concluding that none of this is arguable. As regards requirement (ii) – measures to be submitted discouraging additional access to the Hawkwell Inclosure – condition 18 relates to reserved matters plots, plots (D and H) bordering the inclosure, and requires that a Biodiversity Management Plan be submitted for the Council’s written approval at the same time as details of reserved matters are submitted for approval. The plan’s requirements include as the sixth bullet point a strategy to demonstrate how management will address the potential disturbance to the Hawkwell Inclosure. Measures could include planting (as a barrier), layout, and recreational areas within the plots. However, condition 18 could have effect beyond the ambit of the plots themselves. Measures not confined to the plots could include additional planting, say, elsewhere. Thus condition 18 secures requirement (ii).

Condition 21 offers reinforcement in providing that prior to the development of any of the reserved matters plots or of phase 2 of the Spine Road, a scheme of implementation of biodiversity mitigation must be submitted for the Council’s written approval. The scheme must incorporate the Appropriate Assessment and must be implemented with the approved details and maintained after that. Some of the mitigation areas referred to in condition 21 falls within the Hawkwell Inclosure. The upshot of condition 21 is that the related development plots cannot be brought forward until the Council has approved an applicable scheme meeting requirement (ii). I accept the Council’s submission that mitigation measures must be considered as a whole. That, in part, meets the timing point raised about condition 19 and the College: condition 19 must be read in conjunction with other conditions such as condition 23, examined shortly. Moreover, the phasing of the development is such that the Spine Road, perhaps the easiest access to the inclosure, will not be completed until after the College.

As regards requirement (iv) in Table 2e, Box D, conditions 21 and 23, backed by the section 106 agreement, provide the answer. In particular condition 23 tracks the wording of requirement (iv) with the bat monitoring strategy being required to cover the Hawkwell Inclosure roosts. It expressly covers mitigation measures, which can be compelled if approval is to be granted. Adaptive measures which can be required are not limited to what is referred to there. The aspects of requirement (iv) not covered – measures dissuading access and vandalism – are covered by condition 21, in as much as the requisite schemes of implementation of biodiversity mitigation must incorporate the Appropriate Assessment. The section 106 agreement also demands bat roost monitoring, in particular through Schedule 5, Table 2. On my reading, it is not as limited, as was suggested, in its application.

Ms Wigley developed her submission for the second claimant that no reasonable competent authority could have concluded, to the legally required standard, that the findings and conclusions in the Appropriate Assessment were capable of removing all reasonable scientific doubt as to the absence of effects of the proposed development on the SAC. On the face of the assessment itself there were uncertainties and doubts as to the likely effectiveness of the mitigation, in particular in relation to the impact on the bats of the new Spine Road between the existing and new roosts, RR1 and RR2. There was the early warning monitoring system to identify problems with the mitigation, but what was proposed was only more of the same, doubtfully successful measures. There could be no confidence that they would overcome the earlier problems. Ms Wigley spent time canvassing the uncertainties, and their open-ended nature, referred to in both the Appropriate Assessment and in Natural England’s correspondence. An aspect was the positioning of the culverts and the flyways allowing bats to pass between the roosts. At this point, it is unknown whether the bats, or how many, will use the culverts and flyways. In the presence of those uncertainties, she submitted, it was irrational to conclude that the requirements of the Habitats Directive were met. This issue was plainly arguable on conventional Wednesbury review principles.

In my view the second claimant did not come close to establishing that the Council’s conclusion met the applicable Wednesbury threshold. First, the Council carried out an Appropriate Assessment and it applied the relevant test of whether the proposed development would adversely affect the integrity of the site. The conclusion was that with the mitigation measures in the conditions and the section 106 agreement, including the adaptive management requirements, no adverse effect would arise from the project on its own. The European Guidance recognises the legitimacy of relying on adaptive management. In my view it is simply not arguable that it was irrational for the Council to conclude that the conditions and section 106 agreement together would provide the requisite assurance that there would be no residual effects from the proposed development and thus no adverse effects upon the integrity of the SAC.

Secondly, Natural England agreed with the Council. All the earlier correspondence from Natural England, on which Ms Wigley built a considerable part of her case, is beside the point because Natural England finally accepted in its letters of 30 September and 30 October 2014 that there would be no residual effects from the proposed development. That, of course, was subject to the imposition of the mitigation measures as set out in the 30 October 2014 version of the Appropriate Assessment, including the early warning management scheme. As we have seen, the authorities require that Natural England’s conclusion in this regard be given great weight. The issue of the culverts and flyways was classically an issue of judgment. The Council’s decision was against the background that Natural England had accepted that an early warning system could work as could the movement pathways. Taken together, it cannot be said that the Council and Natural England acted irrationally.

Mr Turney realistically conceded that if the Council’s finding that there were no residual effects for bats was sound, it was an uphill struggle to contend that this issue was arguable. It is certainly too late at this point to attempt to undermine the Council’s finding by raising residual effects not previously identified. Ms Wigley’s submission on this point was that it was wrong for the Council and Natural England to conclude that there were no residual effects: that was not a valid conclusion given the uncertainties.

The fact is that the conclusion of the Appropriate Assessment was that there were no residual impacts as a consequence of the development, that conclusion was supported by Natural England, and it was not arguably irrational for the Council’s decision to base planning permission on it. There is no basis to carry out an assessment of in combination effects when there are no effects to take into account.

Accordingly I refuse permission to apply for judicial review.