Environment – Habitats Regulations – Appropriate assessment – Claimant developer obtaining planning permission for mixed-use development in eight phases – Defendants refusing to discharge certain conditions attached to planning permission – Claimant applying for statutory review – Whether requirements of article 6(3) of directive remaining part of UK law following withdrawal from European Union – Whether appropriate assessment to be undertaken before project agreed to – Application dismissed
The second defendant local authority granted outline planning permission for a mixed-use development, including up to 650 houses, on land east of Wellington, Somerset.
Planning permission was subject to conditions and the development was to take place in eight phases. In June 2020, the claimant obtained reserved matters approval for phase 3.
In August 2020, Natural England published their advice note on development in relation to the Somerset Levels and Moors Ramsar Site which advised that competent authorities (which included the second defendant) should undertake an appropriate assessment, under the Conservation of Habitats and Species Regulations 2017, of the implications of a plan or project, and only grant consent to the extent that the development would not have an adverse effect on the integrity of the site.
In June 2021, the claimant sought discharge of certain conditions attached to the reserved matters approval. The second defendant refused on the basis that an appropriate assessment under the 2017 Regulations was required before the conditions could be discharged.
An inspector appointed by the first defendant secretary of state dismissed the claimant’s appeal against that decision because there had not been an appropriate assessment.
Consequently, certain pre-commencement conditions had not been discharged, and phase 3 of the development had not been able to proceed.
The claimant applied for statutory review under section 288 of the Town and Country Planning Act 1990, challenging the inspector’s decision.
Issues arose concerning the scope and application, following the UK’s withdrawal from the European Union, of the 2017 Regulations and Council Directive 92/43/EEC (Habitats Directive) on which it was based.
Held: The application was dismissed.
(1) While on a strict reading of the 2017 Regulations the assessment provisions of regulation 63 did not cover the discharge of conditions, article 6(3) of the Habitats Directive required that an appropriate assessment should be undertaken before a project was agreed to. It continued to have effect in domestic UK law by virtue of the European Union (Withdrawal) Act 2018.
That article required that the competent authorities should not agree a project until an appropriate assessment had been undertaken and showed that it would not adversely affect the integrity of a site.
A planning consent was part of agreeing a project when it was necessary to implement a development. In this case the discharge of pre-commencement conditions was a necessary step in the implementation of the development.
An appropriate assessment had not been undertaken up to that point, so the inspector determined that he could not discharge the conditions prior to one being undertaken.
His conclusion was consistent with article 6(3) of the Habitats Directive: Harris v Environment Agency [2022] EWHC 2264 (Admin); [2022] PLSCS 153 applied.
(2) The 2017 Regulations demanded a purposive interpretation so that the appropriate assessment provisions of regulation 63 applied to a subsequent consent stage, including reserved matters applications and the discharge of conditions.
A broad and purposive interpretation of the regulations flowed from the strict precautionary approach adopted to the assessment provisions of the Habitats Directive.
An appropriate assessment could apply at the reserved matters or discharge of condition stage, even if there had been a grant of outline planning permission where the subsequent approval was the implementing decision: R (on the application of Wingfield) v Canterbury City Council [2019] EWHC 1974 (Admin), R (Swire) v Canterbury City Council [2022] EWHC 390 (Admin) and R (on the application of Wyatt) v Fareham Borough Council [2022] EWCA Civ 983 considered.
(3) If there was a conflict between the obligations imposed on the one hand under the Habitats Directive and the 2017 Regulations, and on the other the rights recognised under the 1990 Act they had to be reconciled in accordance with established principle.
Prior to the UK’s exit from the EU, the Habitats Directive and Habitats Regulations 2017 had supremacy over domestic planning law through the European Communities Act. The 2018 Act continued that position; the principle of supremacy still applied by virtue of section 5(2).
In any event, there was no issue of the continued validity of the claimant’s planning permission.
The claimant obtained outline planning permission subject to the law which at the time provided (on a correct interpretation) that until there was an appropriate assessment, implementing consent would not be granted.
(4) The Habitats Directive and 2017 Regulations mandated that an appropriate assessment be undertaken before a project was consented irrespective of whatever stage the process had reached according to UK planning law.
In this case, neither at the permission, reserved matters, or conditions discharge stage had there been an appropriate assessment.
Application of the directive and a purposive approach to the interpretation of the regulations required the application of the assessment provisions to the discharge of conditions.
The strict precautionary approach required would be undermined if they were limited to the initial permission stage of a multi-stage process.
(5) Regulation 63 required an appropriate assessment to consider the implications of the project, not the implications of the part of the project to which the consent related.
That was consistent with the Habitats Directive, which the European Court of Justice had held required a full assessment of a project which had not been assessed.
It was the environmental effects of the development which were to be assessed, not the effects of the reserved matters.
It was the integrity of the whole site which was of concern, so that reserved matters approval could not be given when it was that which authorised implementation of the development.
The thing which was to be the subject of the appropriate assessment was the thing which would be permitted by the authorisation, so that where the decision was the final stage in granting authorisation for a development, it was the development which was to be assessed: R (on the application of Barker) v Bromley London Borough Council [2006] UKHL 52; [2006] PLSCS 252 and Friends of the Irish Environment Ltd v An Bord Pleanala [2021] Env LR 16 considered.
Charles Banner KC and Ashley Bowes (instructed by Clarke Willmott LLP) appeared for the claimant; Richard Moules and Nick Grant (instructed by Government Legal Department) appeared for the first defendant; Luke Wilcox (instructed by Somerset Council Legal Services Department) appeared for the second defendant.
Eileen O’Grady, barrister
Click here to read a transcript of CG Fry & Son Ltd v Secretary of State for Levelling Up, Housing and Communities and another
