Forest of Dean (Friends of the Earth), R (on the application of) v Forest of Dean District Council

Article 6(3) of the Habitats Directive permits a staged assessment of a series of development projects. Where a first project will not itself harm a protected site, and the strategic development plan has been appropriately assessed, the planning authority need not assess a future project in full when granting permission for the first project.

It must ensure that a later project is assessed when brought forward and that mitigation is imposed, or permission refused, if necessary to prevent adverse in-combination effects. A standalone permission creates no presumption in favour of a later project under Article 6(4).

The claimant challenged outline planning permissions granted by the Council for development at the Northern United and Forest Vale sites in the Forest of Dean. The sites formed part of a wider regeneration area for which a future spine road was contemplated. The claimant contended that the Council had to assess the possible effect of that road on a Special Area of Conservation, including lesser horseshoe bats, before granting the two site permissions.

Burnett J dismissed the judicial-review claim: [2014] EWHC 1351 (Admin). The claimant appealed. The central issue was whether Article 6(3) of the Habitats Directive required an appropriate assessment of possible in-combination effects with a later, separately proposed spine road.

1. Appeal dismissed. Sales LJ, with whom Hildyard J and Longmore LJ agreed, held that the Council lawfully granted the standalone permissions without first carrying out an appropriate assessment of the future spine road.

2. Article 6(3) requires a strict precautionary approach where a particular development may harm a protected site, including through in-combination effects. But the Directive permits a staged approach to a series of projects. Where the relevant strategic options have been assessed at development-plan level, a first project may be permitted if it is innocuous on its own and if the authority will later assess the next project, require adequate mitigation, or refuse permission if protection of the site so requires. This approach was supported by Smyth, [2015] EWCA Civ 174, and was compatible with Commission v United Kingdom, Case C-6/04.

3. The two permissions did not depend on construction of the spine road. They neither harmed the Special Area of Conservation on their own nor created a relevant in-combination effect at that stage. The Council could therefore defer assessment of effects associated with the road until an application for that road was made.

4. The permissions did not strengthen any later case for authorisation of the road under Article 6(4). They created no presumption that the road was necessary. In any event, a later proposal would require consideration of mitigation to safeguard the bats and the protected site.

5. The Council was entitled to give weight to Natural England's expert view that later consideration would adequately address any in-combination effects. Its approach complied with Article 6 and was not irrational.

• Court of Appeal (Civil Division): Dismissed the claimant's appeal: [2015] EWCA Civ 683.
• High Court, Planning Court: Burnett J dismissed the judicial-review claim challenging the two planning permissions: [2014] EWHC 1351 (Admin).