Town and country planning – Environment – Appellant objecting to grant of outline planning permission by respondents for two freestanding developments with access by existing roads – Wider development contemplated by development plan including construction of spine road – Article 6 of Directive 92/43/EC (Habitats Directive) – Whether respondents required to assess potential impacts of spine road at time when considering grant of permission for freestanding developments – Appeal dismissed
The appellant applied for judicial review of a grant of outline planning permission by the respondent council in March 2013 for development on two sites within the Cinderford area of the Forest of Dean in Gloucestershire. The first permission was for 2,800m² of Class B1 space and the second for 11,000m² of B1, B2, B8 and D1 use, each with associated development and enhanced access to existing roads. The decision to grant the permissions had taken into account the impact on the substantial colonies of lesser horseshoe bats in the Forest of Dean and Wye Valley Bat Sites special area of conservation (SAC).
Each of the two permissions was a freestanding consent in respect of a site that was already designated for employment use with existing independent access to existing roads. However, the sites formed part of a larger area which had been identified for regeneration by the construction of housing and mixed business development, together with a college. The applicable core strategy and area action plan contemplated the two sites being linked by a spine road to provide scope for much of that further development, although no planning application for any other development was before the respondents when they decided to grant the two outline permissions.
The appellant contended that the respondents should have assessed not just the impact on the bat colonies from the development of the two sites but also the potential wider impacts from the proposed spine road. It submitted that the respondents’ failure to carry out that wider assessment was a breach of their obligations under article 6 of Directive 92/43/EC (the Habitats Directive), as transposed into domestic law by regulations 61 and 62 of the Conservation of Habitats and Species Regulations 2010. The claim was dismissed by a judge in the Planning Court: see [2014] EWHC 1353 (Admin). The appellant appealed.
Held: The appeal was dismissed.
An appropriate assessment would be required under article 6(3), in relation to an application for planning permission for development of a specific site, if that particular development proposal might be detrimental to a protected site. In that regard, a strict precautionary approach was called for, including a consideration of any “in combination” effects with other plans or projects. However, where a series of development projects was contemplated, compliance with the strict precautionary approach would be achieved, in relation to the consideration of the first particular proposed development project, if that project would not of itself have a detrimental impact on a protected site and if there would be an appropriate opportunity to consider measures in relation to a later project, with the result that any possible “in combination” effect from the two projects together would not arise: Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw Case C-127/02 [2005] CMLR 31 and Smyth v Secretary of State for Communities and Local Government [2015] EWCA Civ 174; [2015] PLSCS 75 applied. So long as the relevant assessment of options had been carried out at the level of the relevant development plan, it would be lawful, when planning permission was sought for the first specific development project in the series, for the relevant planning authority to assess that that project taken by itself would not have any relevant detrimental impact on the protected site, and consequently to grant planning permission for it, even though it was 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 would be able, and indeed obliged, to ensure that adequate mitigation measures were incorporated in the later project to deal properly with any potential “in combination” effects, failing which they would refuse to grant permission for that later project, thus safeguarding the protected site and hence complying with the strict precautionary approach required by article 6. Accordingly, there was no requirement to undertake a full environmental appropriate assessment of all the projects in the series on the occasion when planning permission was sought for the first in the series, when no planning permission had yet been sought for the later project or project. The planning authority were entitled to adopt a staged approach to consideration of individual projects as they were brought forward, ensuring at each stage that the protected site was not subject to detrimental impact. Such an approach accorded with practical reality, by allowing for full compliance with the safeguarding objective of article 6 in relation to a protected site, and the strict precautionary approach required thereunder, while at the same time avoiding the imposition of excessive and disproportionate burdens on planning authorities, landowners and developers.
Applying that approach, the respondents had been entitled to grant permission for the development of the two sites without first undertaking an “appropriate assessment” of possible adverse effects on the SAC from the development of the spine road for the purpose of the Habitats Directive. The judge had properly rejected the appellant’s argument that such an assessment 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. The development of the two sites for which the respondents had granted permission was independent of the construction of the spine road and did not depend on it. The strategic options in relation to the wider area had been 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. 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. The grant of permissions for the two sites created no presumption and added no force to any case for the grant of planning permission for the spine road, given that the two developments were not dependent in any way on construction of the spine road. The respondents had acted lawfully and in compliance with article 6 in assessing 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: Commission v United Kingdom Case C-6/04 [2005] ECR I-9017 distinguished.
Jenny Wigley (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the appellant; Clive Newberry QC (instructed by the legal department of Forest of Dean District Council) appeared for the respondents.
Sally Dobson, barrister
