Flash briefing – Court of Appeal in England rules that an Appropriate Assessment may be required at a subsequent approval stage

Introduction

The Court of Appeal in England recently delivered its judgment in C.G. Fry & Son Limited v Secretary of State for Levelling Up, Housing and Communities and Somerset Council [2024] EWCA Civ 730.

The challenge arose from the concept of “nutrient neutrality”. The central question was whether the Conservation of Habitats and Species Regulations 2017 (“Habitats Regulations”) (which is the English equivalent to the Conservation (Natural Habitats, etc.) Regulations (Northern Ireland) 1995 (as amended)), properly interpreted, required an Appropriate Assessment before a Local Planning Authority considered the discharge of conditions on the approval of reserved matters, having previously granted outline planning permission without such an assessment, of a major development of housing on land close to a protected site.

Facts

In December 2015, the Local Authority granted outline permission for 8 phases of residential development in the catchment of Somerset Levels and Moors Ramsar site (“Outline Permission”). Reserved matters were granted for Phase 3 in June 2020 (“Reserved Matters”). In August 2020, an advice note was published by Natural England (“NEAN”). It identified potential adverse effects of development upon the integrity of the Ramsar site. The Reserved Matters included various pre-commencement conditions and, in light of the NEAN, the Local Authority refused to discharge them in the absence of an Appropriate Assessment.

An Appropriate Assessment was not required at the Outline Permission stage and / or Reserved Matters stage. The Developer therefore maintained that it was too late in the decision-making process for such an assessment to be required. The Developer appealed to the Planning Inspectorate (English equivalent to the PAC) and an Inspector dismissed the appeal. The Developer then appealed the decision of the Inspector to the High Court which upheld the decision of the Inspector. This prompted the Developer to appeal the decision to the Court of Appeal. The Court of Appeal upheld the decision of the High Court and dismissed the appeal.

The Court of Appeal confirmed that an Appropriate Assessment may be required at the discharge of conditions stage (and also at the outline or reserved matters stage) where the decision will be an “implementing decision” - “when the authority is making the final decision in a sequence authorising the development to proceed”. The Court held that those subsequent decisions fell within the scope of the “consent, permission or other authorisation” referred to within the Habitats Regulations.

The Court also confirmed the relevant legislation did not qualify the scope of content of the Appropriate Assessment. Therefore, where an Appropriate Assessment is to be undertaken, it must be of the whole development not just the subject matter under consideration (in this case the conditions).

The Court noted that the fundamental objective of the Habitats Regulations is to “avoid any risk of harm to the integrity of a protected site” and stated that its decision was based on “a straightforward reading of the language used [in the Habitats Regulations], … the legislative purpose and … the underlying precautionary principle”.

Implications

This case underscores that if an Appropriate Assessment has not been required at the initial stages of the planning process i.e. at the outline permission stage, it may still be deemed necessary at subsequent approval stage, such as when considering the discharge of conditions or at reserved matters. This will occur if it becomes clear that such an assessment should have already been conducted or if new material facts arise requiring same.

Developers could therefore fall subject to delay at a subsequent approval stage and may wish to factor into their delivery timeline the possibility of having to conduct such an assessment, even if outline permission was already granted without the need for such an assessment.

The ruling also reinforces the increasing significance of “nutrient neutrality” and the need for rigorous environmental assessments and mitigation strategies.

If you would like further information, please contact Nicole McAlorum or another member of the Planning & Environmental team.

*This document does not constitute legal advice and should not be relied upon as a substitute for legal advice that is tailored to your individual circumstances.