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

In assessing a project under Conservation of Habitats and Species Regulations 2010, a competent authority may take proposed mitigation and adaptive management into account. The court’s role is supervisory. It applies the Wednesbury standard and does not re-make the ecological assessment or act as the primary decision-maker. Whether cumulative effects require assessment is ordinarily a matter of fact and judgment for the authority. Mitigation measures secured through planning conditions and a section 106 agreement must be read as a whole. Where the authority has undertaken an appropriate assessment, obtained the nature conservation body’s views, and rationally concluded that no residual effects remain, a separate in-combination assessment is unnecessary.

The claimants sought permission to bring judicial review proceedings against the Council’s grant of planning permission for a mixed-use development at Cinderford’s Northern Quarter. The site was near the Wye Valley and Forest of Dean Special Area of Conservation, and the development potentially affected lesser horseshoe bats and their roosts.

The challenges concerned whether mitigation for recreational disturbance had been secured, whether the Council had lawfully ascertained that the development would not adversely affect the SAC’s integrity, and whether it had considered in-combination effects. Patterson J had previously rejected the grounds relied upon.

1. Permission refused. The proposed grounds were not arguable.
2. Mitigation measures could be taken into account in the regulation 61 assessment. The planning conditions and section 106 agreement had to be read together. Conditions 18 and 21 secured measures addressing access and disturbance at Hawkwell Inclosure, while conditions 21 and 23, supported by the agreement and its monitoring provisions, secured the monitoring and adaptive management measures identified in the Appropriate Assessment.
3. The Council had undertaken an Appropriate Assessment and applied the correct question: whether, subject to the mitigation measures, the project would adversely affect the integrity of the SAC. Reliance on conditions, contractual obligations and adaptive management was recognised as legitimate by the European Commission guidance and was not irrational.
4. The court rejected the submission that European law required it to conduct a fresh ecological assessment. The national court evaluates the assessment in the ordinary supervisory way and does not become the primary decision-maker. The applicable standard was Wednesbury review, substantially equivalent in this context to the CJEU’s manifest-error standard.
5. Natural England’s final conclusions that there would be no residual effects, subject to the specified mitigation, were entitled to great weight. The uncertainties concerning culverts and bat flyways involved matters of judgment and did not make the Council’s conclusion irrational.
6. The question whether cumulative effects required assessment was a matter of fact and judgment. Since the Council had rationally concluded that the project produced no residual effects, there were no effects requiring an in-combination assessment.

Permission to apply for judicial review was refused.

This was a first-instance application for permission to apply for judicial review. The judgment records that Patterson J had rejected the same grounds in an earlier decision.