July 3rd, 2024 by James Goudie KC

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.”

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