Judge rejects bid for JR over impact of regeneration scheme on bats
A High Court judge has refused to grant permission for a judicial review challenge to the grant of planning permission for a major regeneration project over its impact on bats.
The case of Foster & Anor, R (on the application of) v Forest of Dean District Council & Ors [2015] EWHC 2648 (Admin) centred on the planned regeneration of the Cinderford Northern Quarter.
Forest of Dean District Council granted planning permission on 26 February 2015 to the Homes & Communities Agency for a mixed-use development with 195 dwellings, a hotel and employment and non-residential use. Permission was also given for a college and a new link road between the A4136 and Broadmoor Road.
The Northern Quarter lies within a few kilometres of the Wye Valley and Forest of Dean Special Area of Conservation (SAC) for bats, which is a European site for the purposes of the Habitats Regulations.
The application site includes areas which are used by the bat colonies for foraging and roosting. Former colliery buildings within the application site and the artificial bat roost in the adjacent Hawkwell Inclosure wood support the bat population of the SAC.
There had already been a number of unsuccessful challenges to the redevelopment proposals for the Northern Quarter: Forest of Dean Friends of the Earth v. Forest of Dean District Council [2013] EWHC 1567 (Admin); Forest of Dean Friends of the Earth v. Forest of Dean District Council [2015] EWCA Civ 683; R (Forest of Dean Friends of the Earth) v. Forest of Dean District Council [2014] EWHC 681 (Admin).
The applications before Mr Justice Cranston were a challenge to the council's approach towards its assessment under the Habitats Regulations because of the bat SAC.
The challenge fell under three heads:
1. the decision to grant the permission was unlawful because the mitigation measures which had been identified as necessary to address the potential recreational impacts of the proposed development on the bats in the Hawkwell Inclosure were not secured, either by way of a condition attached to the permission or in the accompanying section 106 agreement (argued by the first claimant, who appeared on behalf of Dean Natural Alliance);
2. the council unlawfully failed to ascertain that the proposed development would not adversely affect the integrity of the SAC (second claimant); and
3. the council failed to take into account "in combination" effects (both claimants).
However, Mr Justice Cranston rejected the application. The judge agreed with Patterson J that various conditions meant mitigation measures had been secured.
He also said the it was “simply not arguable that it was irrational for the council to conclude that the conditions and section 106 agreement together would provide the requisite assurance that there would be no residual effects from the proposed development and thus no adverse effects upon the integrity of the SAC”.
The judge added that Natural England had agreed with the council and finally accepted that there would be no residual effects from the proposed development. Taken together, it could not be said that the council and Natural England had acted irrationally, he said.
On the third head, Mr Justice Cranston concluded: “The fact is that the conclusion of the Appropriate Assessment was that there were no residual impacts as a consequence of the development, that conclusion was supported by Natural England, and it was not arguably irrational for the council's decision to base planning permission on it.
“There is no basis to carry out an assessment of in combination effects when there are no effects to take into account.”
Cllr Patrick Molyneux, Leader of Forest of Dean District Council and Cabinet Member for Regeneration and Planning Policy said: “The council understands the vital importance and value of the ecology in the Northern Quarter and remains committed to ensuring any development is carried out sensitively in order to both protect the biodiversity and deliver much needed regeneration for Cinderford in particular and the wider district in general.
“Throughout the whole legal process we have robustly defended our original decision to grant permission. We have a lawful and sound Core Strategy and Cinderford Northern Quarter Area Action Plan, both of which have been successfully defended despite numerous legal challenges. These documents are supported by the Biodiversity Strategy Technical guidance, which the council co-produced with representatives from a number of local wildlife organisations and a Masterplan and Design Code for the Northern Quarter. These documents provide guidance on the high standards required for any development at the Northern Quarter.”
