England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
PLANNING COURT
MR JUSTICE BURNETT
CO80502013

		Royal Courts of Justice Strand, London, WC2A 2LL
		9th July 2015

Lord Justice Sales:

Introduction

1. This is an appeal against the judgment of Burnett J (as he then was) dismissing the Appellant's claim for judicial review of the grant of planning permission for development of two sites within the Forest of Dean: [2014] EWHC 1351 (Admin). Burnett J provides a summary of the factual background which I gratefully adopt:

"1. The claimants challenge the grant of outline planning permission for two sites within the Cinderford area of the Forest of Dean in Gloucestershire. The permissions were granted on 27 March 2013 following a resolution to grant them on 12 February. The Homes and Communities Agency is the beneficiary of the planning permissions. It is a non-departmental government body established by the Housing and Regeneration Act 2008 whose function is to secure regeneration through housing and commercial development. Cinderford is a market town whose residents suffer from high levels of deprivation. The first permission relates to land at Newton Road, Cinderford ("the Forest Vale site"); the second relates to land at the Northern United Depot, Hawkwell Green, Cinderford ("the Northern United site"). The Forest Vale site application is for 2,800 square metres of B1 space and the Northern United site for 11,000 square metres of B1, B2, B8 and D1 use, each with associated development and enhanced access to existing roads. These are stand alone permissions in respect of sites already designated for employment with existing independent access to existing roads. The Forest Vale site is at the southwest corner, and the Northern United site at the northeast corner, of a large area, known as the Northern Quarter, which has been identified for regeneration. Over time it is hoped to build housing and mixed business development together with a new Gloucestershire College. The Forest of Dean Core Strategy ("the Core Strategy") and the Cinderford Northern Area Action Plan ("the Action Plan") envisage the two sites being joined by a spine road. It will provide scope for much of that further development. No planning application relating to any other development was before the defendant Council when it resolved to grant the permissions. In particular, no application had been made in respect of the spine road. It is the relationship between the spine road and the two planning permissions which is at the heart of this claim.

2. Exploratory work has more recently been undertaken in connection with the spine road for which a licence was required from Natural England given its potential impact on newts. At the time of the hearing of this claim an application for planning permission for the spine road was still awaited, although expected soon. The overall plan envisaged the new Gloucester College being built in time to open in September 2015, although whether that is now achievable is questionable.

3. This part of the Forest of Dean is home to substantial colonies of lesser horseshoe bats. Their interests have been taken into account in the two permissions granted. Indeed, it is not an exaggeration to say that the impact of the proposed development upon bats, and particularly lesser horseshoe bats, has driven consideration of these applications. The claimants challenge the grant of these permissions because they say that the spine road, when built, will disrupt the bats' flight paths and potential adverse impacts cannot be ruled out. In those circumstances they submit that the Council was obliged to refuse these planning permissions.

4. The Forest of Dean and Wye Valley Bat Sites Special Area of Conservation is made up of a number of sites which are protected because they house a large proportion of the population of lesser horseshoe bats in England and Wales. The bats spend the winter in disused mines and in the summer use buildings for roosting and as nurseries. Two buildings on the Northern United site (itself a former mine) are used for that purpose. Additionally, there is an artificial roost nearby used for the same purpose. The permissions allow the demolition of the two buildings, with appropriate licenses having been granted by Natural England, but only when alternative new artificial roosts have been built and have been occupied. It is recognised that even once the new artificial roosts have been built it may take a few years before the bats occupy them. Lesser horseshoe bats are very particular about where they roost and also about the paths along which they fly to get to and from the roosts and to forage for food. Once established, they do not deviate from those flight paths. They fly slowly and close to the ground. As a result they are particularly vulnerable to being struck by vehicles if a road is built across one of their flight paths. The lesser horseshoe bat is also very sensitive to light. The impact of artificial light associated with any proposed development close to the flight paths is an important consideration. All of these effects are capable of mitigation. The route of a road can be adjusted to minimise its impact. Culverts can be created under the road to preserve the bats' flight paths. Alternatively, shrubs and trees can be planted which force the bats to rise above the road and out of harm's way.

5. This claim forms part of a concerted legal campaign against the development of this part of the Forest of Dean. The claimants challenged the Council's adoption in February 2012 of the two development plan documents, that is the Core Strategy and the Action Plan already referred to. The principal issue was whether the Council had complied with its obligations under the Conservation of Habitats and Species Regulations 2010 ("the 2010 Regulations") which transpose into domestic law the Habitats Directive (92/43/EC). The claimants contended that the Council failed to make a proper assessment of the impact of the proposed development on the special areas. In a judgment handed down on 20 June 2013 [2013] EWHC 1567 (Admin) Edwards-Stuart J dismissed the claim. The claimants sought permission to appeal. The grounds of appeal were considered 'diffuse' and so an oral hearing was directed. Permission to appeal was eventually refused by the Court of Appeal on 24 March 2014 (that is after the hearing of this claim)."

2. The Council's Core Strategy and Action Plan called for development of the Northern Quarter. Both documents formed part of the Council's development plan for its area. Policies in both the Core Strategy and the Action Plan contemplated that, in the interests of the regeneration of the Cinderford area, the Northern Quarter should be developed by building on the Northern United and Forest Vale sites as well as other sites (notably by construction of a college in the south-east of the Quarter), all to be linked by the spine road. These aspects of the Council's development plan were subjected to Appropriate Assessment as required by the Habitats Directive and the 2010 Regulations. It was the legal challenge to, amongst other things, the adequacy of the Appropriate Assessment of the development plan which failed before Edwards-Stuart J and the Court of Appeal on 24 March 2014.
3. The planning permissions for development of the North United site and the Forest Vale site which are under challenge in the current proceedings are free standing from the overall development of the Northern Quarter and the construction of the spine road which is contemplated by the Core Strategy and the Action Plan. Each of the sites has access to the existing highway network without any need for the spine road to be built. Nonetheless, Ms Wigley argued that the grant of these permissions might have the effect of increasing the possibility that an assessment could be made under Article 6(4) of the Directive that planning permission should be granted for the building of the spine road, despite detriment to the bats and the designated Special Area of Protection ("SAC"), on the grounds that after grant of planning permission on a stand-alone basis for the two developments at either end of the proposed spine road the development of the spine road itself would be more readily justified as being required "for imperative reasons of overriding public interest".
4. There were two applications by the Appellant to admit fresh evidence. One was granted on the papers by Sullivan LJ at same time as he granted permission to appeal. We granted a further application at the hearing, to which Mr Newberry QC for the Council did not object. The new evidence brought the court up to date with events which had occurred since the judgment below.
5. After the judgment, the Homes and Communities Agency made a fresh application for planning permission, this time in relation to the development of whole of the Northern Quarter. In February 2015 the Council granted planning permission for that development on a hybrid basis, namely outline permission for development of the North United site and the Forest Vale site and the main part of the spine road and detailed permission for development of the college in the south-eastern part of the Quarter and the part of the spine road that gives access to it. The permission was for a phased development of the Quarter: the first phase being the part of the spine road leading from the south-east edge of the Quarter to the college and the college itself; the second phase being the remainder of the spine road; and the third phase being the development of the North United and Forest Vale sites. So far as those sites are concerned, the hybrid planning consent is distinct from the permissions for development already granted which are the subject of these proceedings. Nonetheless, Ms Wigley contends that the new grant of permission on a hybrid basis illustrates the vice to which she says the judgment below gives rise.
6. At the end of Ms Wigley's submissions, the court decided that the appeal should be dismissed with reasons to follow. This judgment sets out the reasons for that decision.

Article 6 of the Habitats Directive

7. Article 6(2), (3) and (4) of the Habitats Directive provide as follows:

"(2) Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.

(3) Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.

(4) If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. …"

8. Regulations 61 and 62 of the 2010 Regulations implement these parts of Article 6 in domestic law, but it was common ground that they give appropriate effect to Article 6 and the argument before us proceeded by direct reference to Article 6 itself.

Discussion

9. The principal submission made by Ms Wigley was that the Council could not give the permissions it did for development of the Northern United site and the Forest Vale site without first undertaking an appropriate assessment of possible adverse effects on the SAC from the development of the spine road, which it had failed to do. She maintained that this was required by Article 6(3) because the development of the two sites would be likely to have a significant effect on the SAC in combination with the plan for development of the spine road. She relied, in particular, on the Opinion of Advocate General Kokott and the judgment of the Court of Justice in Case C-6/04 Commission v United Kingdom [2005] ECR I-9017.
10. In my judgment, Burnett J was right to dismiss this argument. The development of the Northern United site and the Forest Vale site for which the permissions under challenge had been granted was independent of the construction of the spine road and did not depend upon it. Taken by themselves, the two developments would not have a significant effect on the SAC; in addition, the development allowed by the permissions would not be likely to have an adverse effect on the SAC in combination with any other plan or project.
11. The strategic options in relation to the Northern Quarter were considered, from an environmental perspective, by way of the Appropriate Assessment under the Habitats Directive in relation to the formation of the local development plan. The requirement for appropriate assessment of such a development plan was introduced into domestic law after the decision of the ECJ in Commission v United Kingdom, above, in which the United Kingdom's law was found to be defective in that the United Kingdom had failed properly to implement the Habitats Directive, by omitting a requirement for environmental assessment in relation to such high level plans ("land use plans", as they were termed in the case): see, in particular, paras. 39-50 of the Advocate General's Opinion and paras. 51-56 of the judgment. The lacuna in domestic law was made good by amendment of the relevant regulations. The legal challenge to the development plan and the Appropriate Assessment in relation to the proposed development of the Northern Quarter has been dismissed, as explained above.
12. Moving from the general level to a particular case of an application for planning permission for development of a specific site, an appropriate assessment will be required under Article 6(3) in relation to that particular development proposal if it may be detrimental to a protected site; and in that regard, a strict precautionary approach is called for: see Smyth v Secretary of State for Communities and Local Government [2015] EWCA Civ 174, [56]-[62]. This includes consideration of any "in combination" effects with other plans or projects.
13. However, where a series of development projects is in contemplation, the strict precautionary approach required by the Directive will be complied with in relation to consideration of the first particular proposed development project if that project will not of itself have a detrimental impact on a protected site and there will be an appropriate opportunity to consider measures in relation to a later project which will mean that any possible "in combination" effect from the two projects together will not arise (failing which, permission may have to be refused for the later project, when it is applied for): see Smyth at [87]-[102]. In other words, so long as the relevant assessment of options has been carried out at the level of the relevant development plan (land use plan), as explained in Commission v United Kingdom, it will be lawful when planning permission is sought for the first specific development project in the series for the relevant planning authority to assess that that project taken by itself will not have any relevant detrimental impact on the protected site (and then grant planning permission for it), even though it is possible that there might be future "in combination" effects on the protected site if planning permission were later granted for the next project in the series. The planning authority will be able (and obliged) to ensure that adequate mitigation measures are incorporated in the later project to deal properly with any potential "in combination" effects or to refuse to grant permission for that later project, and in this way safeguard the protected site and hence comply with the strict precautionary approach required by Article 6. The planning authority is entitled to adopt a staged approach to consideration of individual projects as they are brought forward, ensuring at each stage that the protected site is not subject to detrimental impact.
14. I do not accept Ms Wigley's submission that Commission v United Kingdom is to the opposite effect, such that a full environmental appropriate assessment of all the projects in the series is required to be undertaken on the occasion when planning permission is sought for the first in the series, even though no planning permission has been sought for the later project or projects. In fact, Commission v United Kingdom is fully compatible with the approach to compliance with Article 6(3) in a staged manner which is explained in Smyth and, indeed, provides further support for the analysis which indicates that such an approach is lawful and compatible with the Directive. As already noted, Commission v United Kingdom was concerned with a lacuna in domestic law (which has now been filled) in relation to appropriate assessment of development plans / land use plans; it was not concerned with the distinct question which arises in this case - and which was addressed in Smyth - of the proper approach to compliance with Article 6 in the context of an application for planning permission for a specific project which may be the first in a series of projects, where applications for planning permission for the subsequent projects will be made at a later stage.
15. Further, in Commission v United Kingdom itself Advocate General Kokott (who also delivered the influential Opinion in the Waddenzee case, Case C-127/02 [2005] 2 CMLR 31, which is reviewed in detail in Smyth) made it clear that a staged approach to consideration of matters affecting a protected site will be lawful and in compliance with Article 6 in appropriate circumstances. She said this at para. 49:

"The United Kingdom Government is admittedly right in raising the objection that an assessment of the implications of the preceding plans cannot take account of all the effects of a measure. Many details are regularly not settled until the time of the final permission. It would also hardly be proper to require a greater level of detail in preceding plans or the abolition of multi-stage planning and approval procedures so that the assessment of implications can be concentrated on one point in the procedure. Rather, adverse effects on areas of conservation must be assessed at every relevant stage of the procedure to the extent possible on the basis of the precision of the plan. This assessment is to be updated with increasing specificity in subsequent stages of the procedure."

16. The Court of Justice did not specifically comment on this part of her analysis. It did not indicate any dissent from it. The Court's approach in the judgment was broadly in line with the Advocate General's Opinion on this part of the case, and in that context one would have expected that if it disagreed with this aspect of her analysis it would have said so.
17. In my view, this paragraph in the Advocate General's Opinion is plainly correct, since it both accords with practical reality and sets out an approach which allows for full compliance with the safeguarding objective of Article 6 in relation to a protected site and the strict precautionary approach required thereunder: see also paras. 35-36 of Advocate General Kokott's Opinion in the Waddenzee case, discussed at para. [102] in Smyth. Advocate General Kokott's approach ensures that the objective of the Habitats Directive with respect to safeguarding protected sites is met, while at the same time avoiding the imposition of excessive and disproportionate burdens on planning authorities, landowners and developers in relation to having to show that a first project in a series (which is innocuous in itself) could never have "in combination" effects with later projects in the series, about which they may not have any or any detailed information and which may never in fact be granted permission to take place.
18. Paragraph 49 of Advocate General's Opinion in Commission v United Kingdom is the paragraph correctly relied upon by Burnett J in his judgment in answer to the Appellant's contention that when the Council considered the applications for planning permissions for development of the Northern United site and the Forest Vale site on a stand-alone basis the Council was obliged to satisfy itself that the spine road (for which planning consent was not at that stage being sought) could be constructed without harm to the SAC. As Burnett J said at para. [16] of his judgment, "An approach of the sort suggested by the Advocate General is clearly necessary to avoid sclerosis of the system." I agree.
19. In my view, there is nothing in the further submission by Ms Wigley that the grant of the permissions in question for the development of the Northern United site and the Forest Vale site would somehow reinforce arguments about the application of Article 6(4), to justify grant of planning permission for the spine road, and hence would create a risk of an "in combination" detrimental effect on the protected site which should have been addressed at the time of the grant of the permissions for those sites. Since the permissions were granted on the footing that the developments on the two sites were not dependent in any way on construction of the spine road, it is difficult to see how the grant of those permissions could support an argument that the spine road had to be constructed despite any harm it might cause to the SAC. The grant of permissions for the two sites creates no presumption and adds no force whatever to any contention that planning permission should be granted for the spine road. Moreover, Article 6(4) requires mitigation measures to be put in place if possible, and as explained by Burnett J it is known that it would be possible to construct the spine road in a manner which included appropriate mitigation measures to safeguard the bats and hence the SAC.
20. Ms Wigley advanced two further principal submissions. First, she submitted that the judge was wrong to say that the Council was entitled to rely upon the decision of Natural England to withdraw its objection to the applications for planning permission in respect of the two sites. This submission adds nothing to the submission based on Article 6 itself. Natural England withdrew its objection on the basis that the grant of permission for development of the two sites would not, taken on a stand-alone basis, be detrimental for the SAC and there would be sufficient opportunity to take account of any "in combination" effects at a later stage if planning permission were later sought for construction of the spine road: see paras. [27]-[28] of the judgment below. That was an appropriate position for Natural England to adopt; it was lawful and in compliance with the requirements of Article 6. The Council was entitled to be reassured by and to place weight on the fact that Natural England, the expert government agency with responsibility for protection of the environment, considered that there would be sufficient opportunity to address the issue of "in combination" effects with the spine road at a later stage, if an application were later made for planning permission to develop the spine road: see Smyth para. [85] and the authorities cited there, including R (Morge) v Hampshire County Council [2011] UKSC 2; [2011] 1 WLR 268. [45] per Baroness Hale.
21. Secondly, Ms Wigley submitted that the Council acted irrationally in making the assessment it did in relation to the stand-alone applications for planning permission for the Northern United site and the Forest Vale site, to the effect that no appropriate assessment was required at that stage of the "in combination" effects of the development of those sites if the spine road were later constructed as well. As is clear from the discussion above of the operation of Article 6 and the position adopted by Natural England, this submission cannot succeed. The Council's approach was in compliance with Article 6 and was rational.
22. There is no validity in any of the other submissions or criticisms of the Council advanced by Ms Wigley. For instance, she complained that the development of the spine road was not said to be imminent, whereas in fact an application for planning permission for its development was due to arrive shortly. This is an arid point, which adds nothing of substance to the appellant's case. Whether an application for development of the spine road was imminent or not, the analysis above in respect of the operation of Article 6 shows that the Council acted lawfully and in compliance with that provision in assessing, in line with the view of Natural England, that any "in combination" effects of the development of the two sites and the spine road could be fully and properly addressed in relation to any later application for planning permission for the construction of the spine road.

Conclusion

23. For the reasons given above, I would dismiss this appeal.

Mr Justice Hildyard:

24. I agree.

Lord Justice Longmore:

25. I also agree.