On 30th June the High Court handed down its judgment dismissing the claim brought by developer, CG Fry Limited, challenging a planning inspector’s refusal to discharge conditions because an appropriate assessment under the Conservation of Habitats and Species Regulations 2017 (“The Habitats Regulations”) had not been carried out.
Background
CG Fry Limited (“the Developer”) obtained outline planning consent in 2015 for a mixed-use development including up to 650 houses. The permission was subject to various conditions and the development was to take place in eight phases.
In 2020 Natural England published an advice note to the local authorities in Somerset requiring greater scrutiny of plans and projects that could result in increased nutrient loads affecting protected sites.
The proposed development was in the Somerset Levels and Moors Ramsar Site catchment area and this meant there was a risk that additional housing might add phosphates either directly or indirectly to the Ramsar Site. When the Developer sought to discharge certain pre-commencement conditions Somerset Council withheld approval to discharge them in the absence of an appropriate assessment of the implications of the project for the Ramsar Site.
The Planning Appeal
The Secretary of State through his appointed Inspector dismissed the Developer’s appeal and refused to discharge the conditions on the basis that it was legitimate to apply paragraph 181 of the National Planning Policy Framework (“NPPF”) to give the Ramsar Site the same protection as a European Site under the Habitats Regulations. Furthermore, the requirement for an appropriate assessment set out in the Habitats Regulations applied to the discharge of conditions stage. The inspector conducted a balancing exercise and concluded that the delay in housing delivery was outweighed by the need to protect the Ramsar site.
The High Court
The case that was argued for the Developer in the High Court was that:
(i) The Inspector had wrongly construed the Habitats Regulations and should not have applied regulation 63 (requirement for appropriate assessment) to the discharge of conditions on reserved matters approval.
(ii) Paragraph 181 of the NPPF did not enable the Inspector to take into account considerations that were legally irrelevant to those conditions. Phosphate generation was outside the scope of the considerations capable of being relevant to the discharge of the conditions in question.
(iii) Even if Regulation 63 applied to the discharge of conditions it should be interpreted in such a way that the scope of the appropriate assessment should reflect the scope of the conditions being considered.
Sir Ross Cranston, sitting as High Court Judge, concluded that whilst the provisions of the Habitats Regulations first appear to be confined in their application to the planning permission stage and not to reserved matters or the discharge of conditions stage, a purposive interpretation of the Habitats Regulations and the Habitats Directive (the “Conservation of Natural Habitats and Wild Flora and Fauna Directive”) which remains part of UK law should be applied such that the Regulations do apply to the discharge of conditions and so an appropriate assessment would be required. The Habitats Directive and Habitats Regulations mandate that an appropriate assessment be undertaken before a project is consented, irrespective of the stage the process has reached according to UK planning law.
Secondly, the impacts on the Ramsar Site and paragraph 181 of the NPPF could not be said to be irrelevant considerations in this development. The Habitats Regulations apply to Ramsar sites as provided by the NPPF in circumstances where the Council’s shadow appropriate assessment shows that if the project is permitted it will cause harm to the Ramsar site.
Thirdly, regulation 63 requires an appropriate assessment to consider the implications of the project, not the implications of the part of the project to which the consent relates. This is consistent with the Habitats Directive which requires a full assessment of a project which has not been assessed.
What this means for developers now
The judgment has implications for developers looking to carry out development in areas that are (i) potential or actual Special Protection Areas; (ii) potential or actual Special Areas of Conservation or (iii) listed or proposed Ramsar Sites. Developers should consider carrying out Habitats Regulations Assessments as part of the planning application process and monitor changes to designations between the grant of consent and discharge of conditions.
However, the High Court has now granted the Developer a leapfrog certificate allowing them to appeal directly to the Supreme Court rather than the Court of Appeal due to the national importance of the case and the public interest.
Furthermore, the Government has also just announced that it is looking to bring forward Regulations to unlock the nutrient neutrality crisis to allow homes to go ahead even though promised actions to alleviate pollution, such as new water treatment facilities, will not be delivered until much later.
How we can help
Our experienced team of planning lawyers are on hand to advise on nutrient neutrality and the Habitats Regulations and can be contacted by telephone on 01392 207020 or emailed at enquiries@tozers.co.uk
