Forest of Dean Friends of the Earth v Forest of Dean District Council

For staged land-use plans, an appropriate assessment may be undertaken at the lower-tier stage where the higher-tier and lower-tier plans are being progressed together and the higher-tier plan can still be altered in light of the assessment. Where plans may have effects in combination, their joint impact must be assessed. The statutory question is whether the authority has ascertained that the plans will not adversely affect the integrity of the European site. Mitigation measures incorporated into the plan may support that conclusion, and future monitoring does not itself show that the conclusion lacks a reasonable scientific basis. A failure to provide consultation material within a reasonable time may breach the consultation duty, but relief remains discretionary and proportionality must be considered.

The claimant environmental organisation challenged the Council’s adoption of the Forest of Dean Core Strategy and the Cinderford Northern Quarter Area Action Plan under section 113 of the Planning and Compulsory Purchase Act 2004. The plans contemplated development and a spine road near bat roosts associated with European Special Areas of Conservation.

The central issues were whether the Council had unlawfully deferred an appropriate assessment to the lower-tier plan, whether the assessment applied the correct statutory test and was adequately informed, and whether the public had been given a reasonable opportunity to comment on late assessment material and amendments.

1. The claim was dismissed. The Council was entitled to adopt both development plan documents, and the court declined to quash them.
2. Where a planning process is staged, assessment may ordinarily be deferred to the implementing or lower-tier stage if the effects are not identifiable earlier. That principle is qualified where the higher-tier approval is deferred and the plans are progressed in parallel. In that situation the higher-tier plan can still be altered in light of the lower-tier assessment. Where both plans may affect a European site, regulation 102 required their effects to be considered together, including effects in combination (paras [38]–[47]).
3. The appropriate assessment applied the correct test. Read as a whole, it concluded that the proposed policy changes would avoid adverse effects on the integrity of the sites. The court rejected the criticism that references to reducing likely significant effects showed that the wrong test had been applied. Mitigating provisions in a plan may support a conclusion that adverse effects are not likely, and the Council was entitled to give substantial weight to Natural England’s subsequent endorsement (paras [72], [80]–[81], [97]).
4. The proposed monitoring requirement did not demonstrate that the Council lacked a reasonable belief that adverse effects would be avoided. Monitoring was a means of ensuring compliance with the required standards after construction, rather than evidence that the plan was unlawful (paras [96]–[99]).
5. The Council had failed to comply with regulation 102(3). Important material, including the appropriate assessment and changes concerning the spine-road alignment, was supplied too shortly before the examination. A reasonable consultation period would ordinarily have required materially earlier disclosure. The Inspector’s opportunity for supplementary written submissions partly mitigated the breach (paras [112]–[119]).
6. Despite that breach, quashing was neither appropriate nor proportionate. The claimants and others ultimately had an opportunity to make representations, and those views were considered. The Council was required to implement strictly the mitigation and monitoring measures incorporated into the plans (paras [120]–[123]).