C G Fry & Son Limited v Secretary of State for Levelling Up Housing and Communities & Anor

Under article 6(3) of the Habitats Directive and the Habitats Regulations 2017, an appropriate assessment may be required at a later stage of a multi-stage consent process, including when reserved matters or conditions are approved. The relevant question is whether the stage gives consent or authorisation necessary to implement the project, not whether it is formally described as planning permission.

The assessment concerns the implications of the project as a whole where the later approval authorises its implementation. A valid planning permission is not thereby invalidated. National planning policy may give Ramsar sites the same protection as European sites, making their potential effects relevant to the discharge of conditions.

The claimant held outline planning permission for a housing-led development in Somerset, followed by reserved matters approval for a later phase. The local planning authority refused to discharge pre-commencement and related conditions because no appropriate assessment had been undertaken under the Habitats Regulations 2017.

On appeal under section 78 of the Town and Country Planning Act 1990, the Secretary of State’s Inspector dismissed the appeal. The claimant sought statutory review under section 288, arguing that regulation 63 did not apply at the conditions-discharge stage, that the assessment should be confined to the subject matter of the conditions, and that phosphate effects on the Ramsar site were irrelevant. The central issues were whether an appropriate assessment was required and, if so, what it had to cover.

1. Claim dismissed. The Inspector was entitled to refuse to discharge the conditions until an appropriate assessment had been undertaken.
2. On a strict reading, regulation 70 of the Habitats Regulations 2017 addresses the grant of planning permission, including outline permission, and does not expressly mention reserved matters or the discharge of conditions. That reading could leave a gap in the protection scheme.
3. Article 6(3) of the Habitats Directive continued to have effect in domestic law through section 4(2)(b) of the European Union (Withdrawal) Act 2018. The provision requires an appropriate assessment before a project is agreed, and consent necessary to implement a development forms part of that agreement.
4. A purposive and precautionary interpretation of regulations 62, 63 and 70 therefore requires assessment before a subsequent implementing consent is granted. In a multi-stage process, reserved matters approval or discharge of conditions may be the implementing decision. The existing planning permission remains valid; refusal to discharge conditions does not revoke or modify it.
5. The assessment must address the implications of the project, rather than only the limited subject matter of the conditions being discharged. The relevant object is the development authorised by the implementing decision.
6. Paragraph 181 of the National Planning Policy Framework gives listed Ramsar sites the same protection as habitats sites. The potential phosphate effects on the Somerset Levels and Moors Ramsar Site were therefore relevant to the conditions decision and supplied the necessary nexus with the development.

The claim was a statutory review under section 288 of the Town and Country Planning Act 1990 of an Inspector’s decision dismissing the claimant’s appeal under section 78 against the Council’s refusal to discharge conditions. The judgment does not state any earlier court decision in this litigation.