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

Under regulation 61 of the Conservation of Habitats and Species Regulations 2010, a competent authority must assess a proposal’s likely significant effects, alone or in combination with other plans or projects. The assessment must reflect the level of detail available at the relevant stage. A later-stage project need not be fully worked up before an earlier, sufficiently independent proposal is determined, provided the authority addresses the foreseeable in-combination effects and secures appropriate mitigation. The authority may rely on the expert advice of Natural England, although the ultimate decision remains its own. A conclusion under regulation 61(5) is reviewable on ordinary Wednesbury grounds. Where Natural England has withdrawn an objection after an iterative exchange of information, a high threshold applies to a challenge based on the authority’s reliance on that advice.

The claimant sought judicial review of the Council’s grant of outline planning permission for employment development at the Forest Vale and Northern United sites in Cinderford. The sites formed part of a wider regeneration scheme whose proposed spine road was intended to connect them, and which could affect lesser horseshoe bats and the Forest of Dean and Wye Valley Bat Sites Special Area of Conservation.

Permission to proceed was granted on one ground only: alleged failure to consider in-combination effects under regulation 61 of the Conservation of Habitats and Species Regulations 2010. The central issue was whether the Council had to defer the two applications until a detailed spine-road application, including its mitigation measures, was available.

1. Claim dismissed. The Council had considered the in-combination effects of the two applications, the proposed spine road and other development contemplated by the Action Plan. The complaint was therefore not a failure to consider those effects.
2. Regulation 61 requires a staged assessment. The authority must assess a proposal’s likely significant effects, alone or in combination, and, where appropriate, conduct an assessment capable of removing reasonable scientific doubt as to adverse effects on the integrity of the European site. But the necessary level of detail depends on the precision of the plan or project at the relevant stage. Following Commission v United Kingdom, assessment must occur at each relevant stage and be updated with increasing specificity.
3. There was no statutory rule or authority requiring the Council to wait for a fully worked-up spine-road proposal. The Council could assess the two applications on the information available, including their asserted independence from the future road, while leaving the road to later assessment under regulation 61 if and when it came forward.
4. The Council was entitled to have regard to mitigation under regulation 61(6). The planning policies, conditions and obligations preserved the requirement for effective bat mitigation. If the spine road could not satisfy the statutory protection required, it could not lawfully be built.
5. Natural England had withdrawn its objection after an iterative process involving further ecological information and consultation. Applying R (Morge) v Hampshire County Council [2011] UKSC 2, the Council was entitled to presume that Natural England’s conclusion was correct. The conclusion that regulation 61(5) was satisfied was not irrational. Any substantive challenge to Natural England’s expert view should have been directed against Natural England.
6. The separate suggestion that granting permission would facilitate reliance on regulation 62, or amounted to unlawful “salami slicing”, was unsupported and failed. The claim was dismissed.