R on the application of Forest of Dean (Friends of the Earth) v Forest of Dean District Council [2015] EWCA Civ 683 - Multiple developments and Article 6 Habitats Directive

There has been significant judicial activity in recent years in relation to article 6 of the Habitats Directive, both at a European level and in the domestic UK courts (see earlier blog post on No Adastral New Town Limited v Suffolk Coastal District Council, [2015] EWCA Civ 88). In all these cases the courts have been required to grapple with the issue as to how to appropriately assess potential developments in or near a protected habitat. In R on the application of Forest of Dean (Friends of the Earth) v Forest of Dean District Council [2015] EWCA Civ 683, the Court of Appeal has addressed one aspect of this assessment process: the degree to which a decision-maker must take account of the totality of planned developments in its area when considering a planning permission for a single development.

The case concerned a proposed development in the Forest of Dean. It was alleged by the appellants that the Council had not complied with article 6 Habitats Directive in failing to carry out an appropriate assessment of the particular development. They argued that the Council was wrong to conclude that the development would have no impact on the site since they had not considered its cumulative impacts together, in particular, with the development of a spine road. This development, and the spine road, were all contained in the high-level plan for the local area (a plan which had undergone the required assessments) but, critically, this development was linked to various others by the spine road.

The appellants therefore argued that permission could only be given for this specific development without an appropriate assessment being required under article 6(3) if alone, and in combination with the other developments along the roadway (including the road), it could be said to have no significant effect on the protected habitat. The Court of Appeal dismissed this argument.

The critical point to take from the case is this: where a development forms part of wider development plan in an area, the development itself need only be subjected to an appropriate assessment if it can be said that it will have a significant effect on the protected habitat. This must include an assessment of its cumulative effect with other existing developments, but need not take account of other linked, but not intrinsic developments if the high-level plan has itself been through the required processes. Rather, when considering permission for those later developments, the decision-maker will be required to re-assess the cumulative effect of the later development. In other words, the first development can be considered on its own, and later developments must take account of what has come before, in order to assess whether an appropriate assessment is required.

Thus, per Sales LJ:

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).
— R on the application of Forest of Dean (Friends of the Earth) v Forest of Dean, [13].

The justification given by his Lordship for taking such an approach was that any other would paralyse the planning system. 

As Burnett J said [at first instance] 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.
— R on the application of Forest of Dean (Friends of the Earth) v Forest of Dean, [18].

In taking this approach, Sales LJ follows that taken by the Court of Appeal in the decision in Smyth v Secretary of State for Communities and Local Government [2015] EWCA Civ 174. This aspect of the case, although perhaps not entirely in accordance with the more precautionary ‘tone’ adopted by the ECJ, ought to be welcomed. The court is right to state that too strict an approach would paralyse the planning system, and it is entirely appropriate to leave the question as to cumulative effects for the later development, especially where they are not intrinsically linked.  

Perhaps more interesting however is the treatment of the opinion of Natural England. The Council had taken account of the fact that Natural England had concluded that there was the development would have no significant effect in isolation and had therefore withdrawn its objection to the development. 

Sales LJ states that:

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.
— R on the application of Forest of Dean (Friends of the Earth) v Forest of Dean, [20].

This is a noteworthy statement, not least because it highlights that the Council is entitled to both take account of and place weight on the opinion of Natural England. This is not in itself problematic: it is entirely natural that a Council should rely on the body charged with the protection of the environment. What is interesting about the statement however is that it reveals the complexity of the decision-making process and requirements under the Habitats Directive. The “steps” which a decision-maker must take are now tolerably clear: (1) initial assessment determines whether the plan or project may have significant impacts on the site; (2) if it does have such impacts, an appropriate assessment must be carried out to see if the development is likely to have an adverse effect on the integrity of the site. These questions must be answered in a precautionary way, and require engagement with the conservation goals of the particular site.

What is buried beneath this however is a deeply complex system of definition, value, and evidence. What is meant by ‘likely’, and by ‘adverse’, are as much a matter of political judgment as they can be of legal precision. Similarly, the weight to be given to scientific evidence rather than other, less measurable values, is left to the Council itself, but this too is under the supervision of the courts. The courts themselves will be presented with evidence as to the effects of the development on the site, and will itself be required to weigh this evidence against the arguments presented by the objectors and the Council. Furthermore, this influence is all modulated through the complex relationship between the European and domestic courts.

These complex governance issues cannot be fully aired here, but whenever the case law on habitats’ protection is considered, it must always be kept in mind that the governance and decision-making processes are complex and difficult. 

Download Pdf.