On 30 June 2023, the High Court handed down an important decision concerning the interpretation and application of the EU Council Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Flora and Fauna 1992 (the “Directive”) and the Habitats Regulations 2017 (the “Regulations”) in the context of the planning application process. The High Court found that the Inspector was correct in finding that a habitat regulations assessment (a “HRA”) could be required at the discharge of conditions stage of a planning application, despite one not being specifically required at the outline permission stage. This has been an issue that has been subject to debate on a number of projects.
The Decision is likely to cause additional expense and delay to the development consenting process for developers going forward, particularly where the development land is subject to statutory conservation protections. It is expected that the Judgment will be appealed to the Court of Appeal, or the Supreme Court, given the importance to the industry.
In 2015, Somerset Council (the “Council”) granted C G Fry & Son Limited (the “Developer”) an outline permission for a mixed-use development comprising up to 650 houses, community and commercial uses and associated infrastructure on land that was designated as a Ramsar site (the “Planning Permission”).
The Planning Permission was subject to several conditions including condition 4 (requiring the submission of a site-wide surface water drainage strategy) and condition 7 (requiring the submission of a foul water drainage scheme).
In August 2020, Natural England (“NE”) produced an advice note for the benefit of local authorities advising on the necessity for HRAs in certain designated areas. NE included in this advice that the Somerset Levels and Moors Ramsar Site were unfavourable or at risk from the effects of eutrophication caused by excessive phosphates. The note advised that “additional residential units within the catchment are likely add phosphate to the designated site via the wastewater treatment effluent” and accordingly, the authority should “carry out an appropriate assessment of planning applications that will result in a net increase in population served by a wastewater system, including new homes, student and tourist accommodation.”
In June 2021, the Developer sought the discharge of the pre-commencement conditions attached to the Planning Permission. The Council withheld approval of the conditions on the basis that an appropriate HRA was required before the conditions could be discharged.
Brief Overview of the Law
Section 63 of the Regulations is concerned with the HRA. This section provides that a competent authority in deciding to grant any consent, permission or other authorisation for a project which is likely to have a significant effect on a European site must make an appropriate assessment of the implications of the project for that site in view of that site’s conservation objectives.
Ramsar sites are wetland sites designated to be of international importance under the Ramsar Convention on Wetlands of International Importance, ratified by the UK in 1976.
Ramsar sites are not covered by the Regulations. However, paragraph 181 of the National Planning Policy Framework (“NPPF”) states that listed or proposed Ramsar sites are to be given the same protection as habitat sites (as covered under the Regulations). In this way, national policy has plugged the lacuna in the national legislation.
In April 2022, the Developer appealed to the Secretary of State to overturn the Council’s decision. The Inspector in the appeal case dismissed the Developer’s appeal on the basis that it was to apply the NPPF to give the Ramsar Site the same protection in all respects as a European site under the Regulations.
The Developer challenged the decision. The Developer’s case in the High Court was based on three separate grounds:
Ground 1 – the effect of additional phosphate loading resulting from its proposed development was legally irrelevant because it fell outside the specific parameters of what the Planning Permission and the reserved matters approval had left over for consideration under these conditions.
Ground 2 – paragraph 181 of the NPPF did not permit the Inspector to take into account considerations which were legally irrelevant to those conditions. Phosphate generation was outside of the scope of the considerations capable of being relevant to the discharge of the conditions in question.
Ground 3 – even if the Regulations applied to the discharge of conditions, it should be interpreted in such a way that the scope of the appropriate assessment reflects the scope of the conditions being considered. For example, in the context of an application to discharge a condition relating to root protection zones for trees, an appropriate assessment would concern any effects on site integrity arising from the range of choices the decision-maker has in relation to root protection zones.
The High Court’s Conclusions
On the first ground, the High Court concluded that, whilst on a strict reading of the Regulations the assessment provisions of regulation 63 do not cover the discharge of conditions, they did still apply. In short, the Directive and the Regulations mandate than an appropriate assessment be undertaken before a project is consented. The requirements of the Directive remained part of UK law and require that competent authorities do not agree to a project until an appropriate assessment has been undertaken and it shows that it will not adversely affect the integrity of a site. As an appropriate assessment had not been undertaken up until that point, it was appropriate that the Inspector could not discharge conditions prior to one being undertaken. This conclusion was consistent with the provisions of the Directive.
Additionally, the High Court noted that the Regulations demanded a purposive interpretation so that the appropriate assessment provisions of regulation 63 apply to a subsequent consent stage, which included reserved matters applications and the discharge of conditions.
The High Court rejected the Developer’s second ground on the basis that the read-across of the Regulations to Ramsar sites, as provided by paragraph 181 of the NPPF, created a nexus between the Regulations and the NPPF’s policy of protection of Ramsar sites, which could not be ignored.
On the third ground, the High Court considered that regulation 63 required an appropriate assessment to consider the implications of the project, not the implications of part of the project to which consent relates. In short, and as summarised by the Council’s Counsel, ‘the thing which is to be the subject of an appropriate assessment is the thing which will be permitted by the authorisation’. Therefore, it is the development which is to be assessed.
The Judgment is significant in that it appears to confirm that the imposition of a HRA can be required at the discharge of conditions (or even reserved matters approval) stage in the development planning process.
More broadly, it is likely that the Judgment will be relied on as a means to impose the requirement of a HRA at any approval stage during the planning application process, irrespective of the scope of the operative permission.
Developers would be prudent to factor in the requirement to carry out a HRA as forming part of the approval matrix within the planning application process where the development concerns (i) Potential or actual Special Protection Areas; (ii) Potential or actual Special Areas of Conservation; or (iii) listed or proposed Ramsar Sites. In particular, changes in designations between the grant of planning permission (including outline planning permission) and the discharge of conditions (or approval of reserved matters) should be monitored.
The carrying out of such an assessment is likely to cause additional delay and expense to the development consenting process. House builders will be particularly concerned as the effect of this ruling will be felt by housing developments across a spectrum of planning and development stages. It is expected that the Judgment will be appealed to the Court of Appeal, or the Supreme Court, given the importance to the industry.
Article co-authored by Josh Sromek, Trainee Solicitor at CMS