Environment – Habitats Regulations – Appropriate assessment – Appellant developer obtaining planning permission for mixed-use development – Respondents refusing to discharge conditions attached to planning permission – Application for statutory review dismissed – Appellant appealing – Whether appropriate assessment to be undertaken before deciding whether to discharge conditions on approval of reserved matters where outline planning permission granted without assessment – Appeal dismissed
The second respondent 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 phases. The appellant obtained reserved matters approval for phase 3.
In 2020, Natural England published its advice note on development in relation to the Somerset Levels and Moors Ramsar Site which advised competent authorities (including the second respondent) to undertake an appropriate assessment, under regulation 63 of the Conservation of Habitats and Species Regulations 2017, of the implications of a plan or project, and only grant consent to the extent that it would not have an adverse effect on the integrity of the site.
The appellant sought discharge of certain conditions attached to the reserved matters approval. The second respondent 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 respondent secretary of state dismissed the appellant’s appeal against that decision. The appellant’s application for statutory review was dismissed: [2023] EWHC 1622 (Admin); [2023] PLSCS 118.
The appellant appealed. The main question was whether the 2017 Regulations, properly interpreted, required an appropriate assessment before a competent authority decided whether to discharge conditions on the approval of reserved matters, having previously granted outline planning permission without such an assessment.
Held: The appeal was dismissed.
(1) The obligation imposed on a competent authority by regulation 63 was in broad terms. It necessitated the carrying-out of an “appropriate assessment” before the authority decided to give any consent, permission or other authorisation for a plan or project. That was clearly designed to capture a wide range of authorisations of differing kinds. It displayed the essential purpose of the assessment provisions to avoid any risk of harm to the integrity of a protected site. On a straightforward reading of the language, having regard to that legislative purpose and to the underlying precautionary principle, the range of authorisations extended beyond the initial stage in the relevant decision-making process.
Understood in that way, regulation 63 allowed an appropriate assessment when the authority was making the final decision in a sequence authorising the development to proceed. Where that process involved the granting of outline planning permission for the proposed development and the subsequent submission and approval of reserved matters or the discharge of conditions, regulation 63 did not prevent the appropriate assessment being carried out at that later stage as an exercise required before the decision was taken.
(2) In principle, it was not too late for such an assessment to be undertaken, either when an approval of reserved matters was applied for or when the authority was called upon to discharge “pre-commencement” conditions, whose effect was that development carried out in breach would not be authorised by the planning permission: FG Whitley & Sons v Secretary of State for Wales [1992] 3 PLR 72 and Greyfort Properties Ltd v Secretary of State for Communities and Local Government [2011] EWCA Civ 908; [2011] PLSCS 199 considered.
Such decisions fell within the scope of “any consent, permission or other authorisation”. Their effect was to continue and complete the process of authorising the development begun by the grant of outline planning permission. They could be, and frequently were, the final step in the authority’s agreement to the project going ahead. Like the approval of reserved matters, the discharge of pre-commencement conditions was imperative before lawful implementation could take place, being the decision which entitled the developer to proceed with the project.
(3) That was consistent with the proper interpretation of regulation 70. While regulation 70(1)(a) and (c) provided that the assessment provisions applied “in relation to … granting planning permission”, it did not state, or imply, that those provisions were inapplicable to any particular types of “consent, permission or … authorisation” within regulation 63, such as reserved matters approvals or decisions to discharge conditions.
Regulation 70(3) referred specifically to “outline planning permission” and stated what was to happen before such permission was granted. It provided that, where the assessment provisions applied, permission would not be granted unless the competent authority was satisfied that “no development likely adversely to affect the integrity of a European site … could be carried out under the permission”. However, it did not exclude the requirement for an appropriate assessment either at the reserved matters stage or when a decision was being made on the discharge of conditions if that had not already been done, as it should have been, at the outline permission stage.
(4) Taken together, regulations 63 and 70, as applied directly to European sites under the habitats legislation and when given equivalent practical effect for Ramsar sites under paragraph 181 of the NPPF, allowed for an appropriate assessment at the final stage in a multi-stage consent process. Where the provisions for appropriate assessment were engaged, the two regulations required the assessment to be carried out before development was authorised to proceed by the “implementing decision”. Where such an assessment was required, it had to be of the whole development whose implementation was authorised by that decision.
(5) None of the relevant provisions of the Habitats Directive or the Habitats Regulations qualified the scope or content of the requisite appropriate assessment according to the stage of the decision-making process at which it was carried out; that could not be reconciled with the requirement in regulation 63(1)(b) that the “implications of the … project” were assessed, rather than the effects of any individual part of it.
That was consistent with article 6(3) of the Habitats Directive, which spoke of a “project” being subject to appropriate assessment of “its” implications for the protected site, and its being agreed to only after the authority had ascertained that “it” would not adversely affect the integrity of the site.
Lord Banner KC and Ashley Bowes (instructed by Clarke Willmott LLP) appeared for the appellant; Richard Moules KC and Nick Grant (instructed by Government Legal Department) appeared for the first respondent; Luke Wilcox (instructed by Shape Partnership Services, Law & Governance) appeared for the second respondent; Zack Simons and Isabella Buono (instructed by Shoosmiths LLP) appeared for the interveners
Eileen O’Grady, barrister
