Our courts are continuing to grapple with the complexities of European Union-derived legislation on environmental impact assessment and habitats conservation, despite the country having left the EU on 31 January 2020 (with the subsequent transition period having ended on 31 December 2020).
Government statements on reform
The then prime minister’s statement on 24 December 2020 was: “We will be able to cherish our landscape and our environment in the way we choose.”
The then environment secretary of state on 20 July 2020 had said: “Later this autumn we will be launching a new consultation on changing our approach to environmental assessment and mitigation in the planning system.
“If we can front-load ecological considerations in the planning development process, we can protect more of what is precious.”
In reality, progress has been glacial. The Levelling-up and Regeneration Bill, still not yet law, proposes (without any detail) a system of environmental outcomes reports to replace current EIA and strategic environmental assessment processes.
Consultation as to how the new system could work was delayed until March this year and closed in June.
As for reform of the process for conservation of habitats, we do not yet have any detailed proposals – although the government has now tabled an amendment to the Bill to address the ongoing problems arising from Natural England’s advice that, due to potential harm to Special Areas of Conservation and Special Protection Areas by way of nutrients (nitrates or phosphates), schemes should not be permitted to proceed without demonstrating (through the local authority carrying out “appropriate assessment” under the Conservation of Habitats Regulations 2017) that there will not be an adverse effect on the integrity of the relevant area. The amendment (if approved) would require the authority to “assume that nutrients from urban waste water arising from the proposed development… will not affect the relevant site”.
What the courts have to say
In the meantime, the cases keep coming. Nutrient neutrality issues were to the fore in CG Fry & Son Ltd v Secretary of State for Levelling Up, Housing and Communities and another [2023] EWHC 1622 (Admin); [2023] PLSCS 118.
The stage at which appropriate assessment is usually carried out is when an application for outline or full planning permission is being determined in circumstances where it is likely the development will have a significant effect on an SPA or SAC.
One of the most frustrating aspects for developers about the introduction of these controls is Natural England’s position, supported by the government, that appropriate assessment is required even if planning permission has already been obtained and where what is being sought is reserved matters approval or discharge of a pre-commencement condition.
In CG Fry, outline planning permission had been granted for a large development. Reserved matters approval was secured. Natural England then published advice on development in the Somerset Levels and Moors Ramsar Site, advising that greater scrutiny was required of plans and projects that would result in increased nutrient loads that may impact SPAs, SACs and sites designated under the Ramsar Convention.
CG Fry then sought to discharge various pre-commencement conditions, but the council withheld approval on the basis that an appropriate assessment was required before the conditions could be discharged. CG Fry appealed and the inspector dismissed the appeal. CG Fry challenged that appeal decision in the High Court.
Sir Ross Cranston rejected the challenge on 30 June, holding that the appropriate assessment requirement can indeed bite at reserved matters or pre-commencement condition discharge stage. The case is now subject to an appeal to the Court of Appeal.
Turning to EIA, we await the Supreme Court’s ruling in R (on the application of Finch) v Surrey County Council [2022] EWCA Civ 187; [2022] EGLR 18 as to whether it was unlawful for a local authority not to require EIA for a crude oil extraction project to include an assessment of the impacts of downstream greenhouse gas emissions resulting from the eventual use of the refined products of the extracted oil.
If “downstream” impacts of projects have to be assessed, where is this going to stop?
We have had a series of rulings recently on a similarly fundamental issue: what is the “project” to be assessed for EIA purposes? If that is not approached correctly at the outset of the assessment process, clearly any resultant planning permission could be susceptible to judicial review, as happened in what has become known as the “bridge to nowhere” case, R (on the application of Ashchurch Rural Parish Church) v Tewkesbury Borough Council [2023] EWCA Civ 101; [2023] PLSCS 30.
It concerned a challenge to the grant of planning permission by the council for a road bridge over the Bristol to Birmingham mainline railway, the sole purpose of which was to unlock large areas for subsequent development.
The need for EIA had been screened out. The Court of Appeal held that the council had been wrong in assuming the bridge was a standalone project for EIA purposes.
The facts of that case were perhaps extreme and the outcome was different in two other recent cases (R (on the application of Together against Sizewell C Ltd) v Secretary of State for Energy, Security and Net Zero and another [2023] EWHC 1526 (Admin); [2023] PLSCS 107 – concerning habitats but essentially the same issue – and R on the application of the Llandaff North Residents’ Association v Cardiff Council [2023] EWHC 1731 (Admin)). Analysis can be complex.
We do have an opportunity to clarify some of these issues by way of detailed legislation. When will that be? And will we make things better rather than worse? These remain open questions.
Simon Ricketts is a partner at Town Legal LLP
