Council fends off challenge to core strategy over habitats rules compliance

A district council has defeated a judicial review challenge to its adoption of two development plan documents, amid claims that it had failed to meet its obligations under habitats regulations.

Forest of Dean Friends of the Earth brought a challenge over Forest of Dean District Council’s decision in February to adopt its Core Strategy and the Cinderford Northern Quarter Area Action Plan.

The claimants were concerned at the impact on the Forest of Dean, and on the habitats of the protected Lesser Horsehoe Bat.

They accused the local authority of failing to comply with its obligations under the Conservation of Habitats and Species Regulations 2010 in relation to the Wye Valley and Forest of Dean Special Areas of Conservation when preparing the core strategy and the action plan.

The charity also accused the council of failing to make a proper assessment of the impact of its proposals on the integrity and preservation of the SACs, either when preparing the core strategy or prior to or during preparation of the action plan.

The core strategy contains the broad principles for sustainable development in the district until 2026. An inspector agreed that both this document and the action plan were ‘sound’ for adoption.

In Forest of Dean Friends of the Earth v Forest of Dean District Council [2013] EWHC 1567 (Admin) Mr Justice Edwards-Stuart dismissed the claimants’ challenge.

The judge said the district council was entitled to adopt the core strategy and the action plan as it did. “Its decision to do so was not unreasonable in the sense that it was a decision that no reasonable local authority in its position could have reached.”

Mr Justice Edwards-Stuart criticised the council for leaving it late to prepare an appropriate assessment (AA).

He said: “I consider that the council failed to carry out an adequate consultation because the AA and, in particular, the important changes to the re-alignment of the spine road were, it seems, not finalised until the day before, or possibly the day of, the Inspector’s examination of the [action plan].

“However, in the end I consider that the claimants and others had an opportunity to present their views and to have them taken into account by both the Inspector and the council. In these circumstances I do not consider that it would be either appropriate or proportionate to quash the decisions to adopt either the [core strategy] or the [action plan].”

The judge stressed that the council must ensure that the mitigating steps that had been incorporated into the plans are strictly implemented.

As a footnote, Mr Justice Edwards-Stuart said this was not a case where a council had acted in an overbearing manner.

“The 2010 Regulations are stringent and require a lot of detailed work if compliance is to be achieved,” he pointed out. “This places a heavy burden on a local authority.”

In this case, the judge said, the council had been kept up to the mark not only by Natural Engalnd but also by the “determined and well considered campaign by the claimants to ensure that the local biodiversity is not irrevocably damaged by any future development”.

Cllr Brian Robinson, cabinet member for Efficient Council and Planning Policy at Forest of Dean District Council, said: “After two days of legal argument, considerable written evidence and hard work we are delighted to have the court’s confirmation that we have acted lawfully.

“We are committed to sustainable development and will continue to work hard to protect and enhance the environment which we are very lucky to have in this district.”