The High Court (Burnett J) today handed down judgment in FOREST OF DEAN FRIENDS OF THE EARTH v (1) FOREST OF DEAN DISTRICT COUNCIL and (2) THE HOMES AND COMMUNITIES AGENCY  EWHC 1351 (Admin).
Friends of the Earth challenged the grant of outline planning permission for two sites within the Cinderford area of the Forest of Dean in Gloucestershire. The Homes and Communities Agency is the beneficiary of the planning permissions. 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 Judge explained that:
“2. …. . 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 …
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  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).
6. The Council later adopted a Master Plan to give guidance on how planning applications within the area should be approached. That too was challenged by the claimants in separate proceedings which came on for an oral permission hearing before Collins J on 27 February 2014. He refused permission.”
The challenge to the permissions was based on an allegation that it was irrational to conclude that regulation 61(5) was satisfied as regards in-combination effects in this case. The Judge said:
“15. The test which the Court of Justice has identified before a competent authority may conclude that proposed works will not adversely affect the integrity of the European site is beyond “reasonable scientific doubt” – see Waddenzee  ECR-I 7405 at paragraph 59 and Sweetman (C-258/11) at paragraph 40. It has also emphasised that an appropriate assessment must not contain gaps or “lack complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to effects of the works proposed” – see Commission v Spain C-404/09 at paragraph 100.
16. The exercise identified by the Court of Justice is relatively straightforward when a competent authority is faced with a concrete proposal in isolation or even a concrete proposal in combination with other fully worked out plans or projects. But the reality of the planning system is that there are many plans which might come into play for the purposes of regulation 61 which have not been worked through at a high level of specificity. In Commission v United Kingdom  ECR – I 9017 the Advocate General proposed a solution. In paragraph 43 of her opinion she noted that the observations of the Court of Justice relating to scientific certainty were concerned with measures “whose implementation was certain”. In considering the relationship between concrete proposals and plans the detail of which was yet to be determined, she said this:
“49. The United Kingdom 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.”
The case concerned the transposition on the Habitats Directive into domestic law in the United Kingdom and Gibraltar and wide-ranging complaints by the Commission that domestic law was deficient in doing so. It was unnecessary for the Court to comment upon paragraph 49 of the Advocate General’s opinion, although there is no sign of disagreement. An approach of the sort suggested by the Advocate General is clearly necessary to avoid sclerosis of the system. It represents an authoritative statement of the law from which the claimants have not sought to dissent … and which has been accepted in this jurisdiction: Feeney v Oxford City Council  EWHC (Admin) 2699 and R (Buckingham County Council) v Secretary of State for Transport  EWHC 481 (Admin).”
The claim was dismissed.
James Maurici QC appeared for the Home and Communities Agency instructed by Berwin Paisner Leighton.