Environmental judicial review cases can attract a closer intensity of reasonableness review. There is however no rigid test for a uniformly heightened scrutiny. So held in R ( Fighting Dirty ) v Environment Agency ( 2024 ) EWHC 2029 ( Admin ).

RICHMOND UPON THAMES LBC v ARIYO ( (2024) EWCA Civ 960 is concerned with the general principle of planning law that changes of use are generally judged by reference to the “ planning unit “.

The planning unit , at least in general terms, is the whole of an area in single occupation used for a main purpose to which other purposes are ancillary. The concept of an ancillary use is also a well-established part of planning law; and where a change of use is permitted it will generally extend to land used as ancillary to the changed use, if part of the same planning unit.

R ( MEHTA ) v KENSINGTON & CHELSEA ( 2024 ) EWHC1986 ( Admin ) concerned the Council’s decision to revoke a Certificate of Lawful Proposed Use or Development on the basis that materially false information had been given in support of the application for the Certificate. The Court observed, at para 35, that a local authority’s decision to revoke a Certificate comprises 3 elements : ( 1 ) there must be a finding that false statements were made, or information withheld; ( 2 ) there needs to be a finding that any false statements or withheld information were material; and ( 3 ) if positive findings are made in each of those, then it is for the authority to decide whether to exercise its discretion to revoke the Certificate.

The Government has announced an overhaul of the planning system. Measures include to give all Councils in England new, mandatory, housing targets’ updating the method used to calculate housing targets, and requiring Councils to ensure houses are built in the right places and development is proportionate to the size of existing communities.

The default answer to brownfield development is to be : “ Yes. “ Land released in Green Belts is to be subject to “ golden rules”. Changes are to be made in relation to  right to buy  and capital receipts.

There will be a Planning and Infrastructure Bill, and revisions to the NPPF before the end of 2024.

A Government Consultation seeks views on revisions to the NPPF and on a number of wider planning policy reforms, including planning fees, Local Plan intervention criteria, and thresholds for Nationally Significant Infrastructure Projects.

Where Lidl and Aldi had each applied for planning permission to develop a discount supermarket on different parcels of land outside a Town Centre, but within the same settlement, it had been unlawful for the LPA to have granted planning permission to Aldi without comparing its proposal to that of Lidl. The need to undertake a comparison is a ” material consideration” only if it is so obviously material that it would be irrational not to assess it. However, here that high threshold was met on the facts so held in LIDL v EAST LINDSEY DC (2024) EWHC 1641 ( Admin ).

In R (GURAJENA) v NEWHAM LBC (2024) EWHC 1745 (Admin) the Court holds that , for the purposes of determining whether a local authority had complied with its duty to consult in relation to planning applications, “ adjoining “ embraces not only properties which are contiguous, but also those that in the judgment of the authority are very near or lying close to the application site.

In R ( Rights Community Action Ltd ) v SoS for LEVELLING UP ( ( 2024 ) EWHC 1693 ( Admin ) Lieven J holds that, where a written Ministerial Statement ( the Statement ) concerning the setting of ENERGY EFFICIENCY STANDARDS and  stricter emission controls  for newly built homes was published in the absence of an ENVIRONMENTAL PRINCIPLES POLICY STATEMENT ( EPPS ), required by Section 17 of the ENVIRONMENT ACT 2021 ( EA 2021 ), the Statement was not vitiated by a failure to have “ due regard “ to the EPPS, pursuant to Section 19(1) of EA 2021. This is because it could be assessed retrospectively against an EPPS prepared after publication of the Statement. The Statement was compatible with the power of local planning authorities pursuant to Section 1 of the PLANNING and ENERGY ACT 2008 to include, in their DEVELOPMENT PLAN, Policies imposing reasonable requirements for developments in their area to comply with “ energy efficiency standards “ that exceeded the energy requirements of Building Regulations.

The central question before the Court of Appeal in C. G. FRY & SON LIMITED v SoS for LEVELLING UP and SOMERSET COUNCIL (2024) EWCA Civ 730 was whether the Conservation of Habitats and Species Regulations 2017 (“the Habitats Regulations”), as amended by EU Exit Regulations in 2019, properly interpreted, required an “appropriate assessment” before a local planning authority decided whether to discharge conditions on the approval of reserved matters, having previously granted outline planning permission, without such an assessment, for a major development of housing on land close to a protected site.

Three main issues arose in the appeal. The first issue was whether the Judge was wrong to hold that Regulation 63 of the Habitats Regulations applied at the discharge of conditions stage. The second was whether he erred in holding that the policy in paragraph 181 of the National Planning Policy Framework (“the NPPF”), which has the effect of applying equivalent protection to Ramsar sites, was a material consideration. The third was whether, in any event, he was wrong to hold that the scope of an appropriate assessment in these circumstances was limited to the matters affected by the conditions for discharge, rather than the development itself. The Court of Appeal dismissed the Appeal.

Ramsar sites are designated under paragraph 1 of Article 2 of the Convention of Wetlands of International Importance especially as Waterfowl Habitat (“the Ramsar Convention”) of 2 February 1971, and in England, under Section 37A of the Wildlife and Countryside Act 1981. They are not protected by the Habitats Regulations, but under national planning policy in the NPPF they have, since March 2012, enjoyed equivalent protection to sites designated under the habitats legislation. Article 6(3) of the Habitats Directive, transposed into domestic law by the Habitats Regulations, represents a strict “precautionary approach”. Eu law continues to have relevance, but there is a distinction between interpretation and the doctrine in EU law of “direct effect”, and there is always a strong interpretative obligation (the MARLEASING obligation) to construe national law in light of the wording and purpose of a Directive, so long as it is possible to do so, an obligation that is different from the purposive approach which his part of the conventional approach to interpretation in domestic law.

On the first and third issues on the Appeal, the Court of Appeal said:-
“66. … the inspector was right to conclude, and the judge to accept, that on their true interpretation regulations 63 and 70 of the Habitats Regulations could require an appropriate assessment to be undertaken at the stage when the discharge of conditions was being considered. This conclusion not only reflects the proper construction of the Habitats Regulations but also accords with the case law, both European and domestic, bearing on this question.”

“68. … The correct approach is that legislation must be construed having regard to context and in the light of its purpose. That is how one arrives at the true interpretation of legislation. It is a unified purpose. That is how one arrives at the true interpretation of legislation. It is a unified process, not one in which a linguistic exercise is to be performed first and in isolation from context and purpose. This is fundamentally because a legal norm is intended to have some effect in the real world. It must therefore always be construed in the light of its purpose.”

“74. What, then, is the correct interpretation of the provisions of the Habitats Regulations with which we are concerned? We must begin with the domestic legislation as it is drafted. Applying normal principles of statutory interpretation, there is nothing in the relevant provisions to exclude the requirement for an appropriate assessment to be undertaken either when reserved matters are being approved or when conditions are being discharged, if the “authorisation” in question is necessary to enable the project to be lawfully implemented.

75. Given their natural and ordinary meaning, the words of regulation 63 clearly admit that possibility. The obligation imposed on a competent authority by regulation 63 is framed in broad terms. It makes necessary the carrying-out of an “appropriate assessment” before the authority decides to give “any consent, permission or other authorisation” for a plan or project. This formulation is clearly designed to capture a wide range of “authorisations”, of differing kinds; hence the use of the expression “or other authorisation”. It displays the essential purpose of the assessment provisions, which is to avoid any risk of harm to the integrity of a protected sight. On a straightforward reading of the language used, having regard to that legislative purpose and to the underlying precautionary principle, the range of authorisations embraced in the provision extends, in our view, beyond the initial stage in the relevant process of decision-making. Any other interpretation would, we think, be incompatible with the words of the provision, inconsistent with the legislative purpose, and inimical to the precautionary principle.

76. Understood in this way, regulation 63 allows an appropriate assessment to be undertaken when the authority is making the final decision in a sequence authorising the development to proceed. Where that process involves 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 does not prevent the appropriate assessment of the project being carried out at that later stage as an exercise required before the decision is taken. In principle, it is not too late for such an assessment to be undertaken either when an approval of reserved matters is applied for or when the authority is called upon to discharge “pre-commencement” conditions, whose effect is that development carried out in breach would not be authorised by the planning permission …

77. Such decisions fall within the scope of “any consent, permission or other authorisation”. Their effect is to continue and complete the process of authorising the development, a process begun by the grant of outline planning permission. They can be, and frequently are, 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 is an imperative step before lawful implementation can take place, being “the decision… which entitles the developer to proceed with the project”…”

“80. This understanding of regulation 63 is consistent with the proper interpretation of regulation 70. These two regulations are clearly intended to operate together, and they must be read together.”

“85. Taken together … regulations 63 and 70, both as applied directly to European sites under the habitats legislation itself and the given equivalent practical effect for Ramsar sites under national planning policy in paragraph 181 of the NPPF, allow for appropriate assessment to be undertaken at the final stage in a multi-stage consent process. Indeed, where the provisions for appropriate assessment are engaged, these two regulations have the effect of requiring such an assessment to be carried out before development is authorised to proceed by the “implementing decision”. If this were not so, there would be a gap in the regime for assessment, which would enable development to proceed with potentially harmful effects on a protected site, for lack of an assessment at the initial stage, when outline planning permission is granted.

86. Of course, in a perfect world an appropriate assessment might always be undertaken when the opportunity first arises. But it would be a false logic to suggest for this reason that in a multi-stage consent process the failure to undertake an assessment at the outset makes it impossible or unnecessary to do so when the “implementing decision” is taken. To construe these provisions in that way would be incompatible with the legislative purpose of preventing harm to a protected site, to which regard must be had in arriving at their true interpretation …”

“91. These conclusions on the meaning and effect of regulations 63 and 70 of the Habitats Regulations are consistent with authority, both European and domestic, on the legislative regime for environmental impact assessment and its parallels with the assessment provisions in the Habitats Directive. The relevant case law on environmental impact assessment has consistently recognised the principle that, in a multi-stage consent process, such an assessment may be required in the stages subsequent to the initial consent. The provisions for assessment in the two legislative regimes are analogous in this respect …”

On the second issue on the appeal, and paragraph 181 of the NPPF, the Court of Appeal concluded:-
“106. In our view the judge did not fall into error on this issue. The policy in paragraph 181 was engaged because of the connection between the consequence of discharging the conditions – to authorise Phase 3 of the development – and the object of the policy, which was to prevent harm to relevant protected sites, including Ramsar sites. And it is not in dispute that such harm was likely in this case …

107. We take as a starting-point our conclusions on grounds 1 and 3. In a multi-stage consent process, where the proposed development is likely to affect a protected site and the provisions for the appropriate assessment of projects in the Habitats Directive and the Habitats Regulations apply, such an assessment can be required at the final stage, including the approval of reserved matters and the discharge of conditions.

108. In promulgating the policy in paragraph 181 of the NPPF, the Government was not usurping the role of the legislature. It was exercising its own proper and accustomed role in producing national planning policy, which may then be a material consideration in decision-making. The relevant intent and effect of the policy in paragraph 181 was to extend to Ramsar sites, as a matter of policy and not as if it were legislation, the safeguards already given by the Habitats Directive and the Habitats Regulations to Special Areas of Conservation and Special Protection Areas. Under that policy the Government explicitly required “the same protection” to be given to Ramsar sites as is provided for “habitats sites” by the habitats legislation itself. This was not to displace or override the provisions of the habitats legislation, which NPPF policy could not lawfully have done, but simply to establish as a matter of national planning decision-making as Special Areas of Conservation and Special Protection Areas had been given by that legislation. There was nothing unlawful in this. It was perfectly legitimate, and in constitutional terms unobjectionable.

109. Once it is accepted that harmful effects on the Ramsar site were, and were known to be, a likely result of the generation of phosphates by C.G. Fry’s proposed development, and that the prospect of such effects coming about depended ultimately on the decision whether to discharge the outstanding conditions, one can see that the policy in paragraph 181 of the NPPF was a material consideration in that decision. And the consequences of such a decision were relevant to the materiality of the consideration itself.

110. … If the outstanding pre-commencement conditions were discharged, development with a potentially harmful impact on the Ramsar site, protected by the paragraph 181 policy, would be authorised to proceed, and this would be so regardless of the subject-matter of the conditions themselves. That decision would make possible the ecological harm that the proposed development would likely cause. This was the connection to the policy in paragraph 181.

111. As the judge held, the policy was relevant to the Phase 3 development as a whole. It was the effects of the development that had to be assessed, not merely the matters affected by the conditions to be discharged. The discharge of the conditions would effectively authorise the progress of Phase 3 in its entirety. And the assessment required by regulation 63 of the Habitats Regulations was “an appropriate assessment of the implications of the … project” for the protected site.”

The Department for Energy Security and Net Zero is consulting on barriers to community energy projects in England, being solar panels, wind farms, hydro power, rural heat networks, electric vehicle charging points and car clubs, and fuel poverty alleviation schemes. The National Association of Local Councils (NALC) has responded.  Its key messages include:-

• In general, Government should bring planning laws and guidance in line with Government policy, by making it conditional for energy saving and carbon neutral measures to be included in all relevant planning applications and building control matters;
• Improvements to the current regime of Government support and investment in electricity transmission infrastructure could be made by facilitating action by communities to undertake small-scale projects themselves;
• Local Councils should be given a more-specific power to operate community energy projects than the current power in Section 20 of the Climate Change and Sustainable Energy Act 2006 (the 2006 Act).

What the NALC says in response to the consultation questions includes that lack of funding, lack of technical expertise and a lack of political support from their principal authority are the main barriers (financial and non-financial), preventing the establishment, development and scaling of community energy projects in their areas, and that this reinforces the need for the Government to make it much easier for local Councils to apply for specific funding to deliver community energy projects, to source specific technical guidance for them (and in partnership with other community groups), as well as removing the unsustainable mechanism of local councils having to apply for any such funding at all through their principal authority, and that a lack of access to direct funding to deliver community energy projects for local Councils, and an ongoing need for local Councils to be given a more-specific power to operate community energy projects in their areas, remain the main two barriers.

The 2006 Act makes provision about the reduction of emissions of greenhouse gases, the alleviation of fuel poverty, the promotion of microgeneration and the use of heat produced from renewable sources, compliance with building regulations relating to emissions of greenhouse gases and the use of fuel and power, the renewables obligation relating to the generation and supply of electricity and the adjustment of transmission charges for electricity; and for connected purposes.  The principal purpose of the Act is by Section 1(1) to enhance the UK’s contribution to combating climate change. In performing functions under the 2006 Act, the relevant persons and bodies (including any public authority) shall have regard to the principal purpose set out in subsection (1), the desirability of alleviating fuel poverty, and the desirability of securing a diverse and viable long-term energy supply.

Section 20 of the 2006 Act gives parish councils and community councils power to “encourage or promote” local energy saving measures.

The 2006 Act must be considered in conjunction in particular with the Energy Act 2004 and the Climate Change Act 2008.  There is separate legislation in Wales, notably the Environment (Wales) Act 2016 and Regulations thereunder.