CG Fry & Son Limited v Secretary of State for Levelling Up, Housing and Communities & Anor

In a multi-stage planning process, an appropriate assessment under the Conservation of Habitats and Species Regulations 2017 may be required before the implementing decision, including approval of reserved matters or discharge of pre-commencement conditions. The assessment must address the whole development authorised by that decision, not merely the subject matter of the conditions.

Regulations 63 and 70 form a precautionary scheme preventing authorisation unless the authority is satisfied that the project will not adversely affect a protected site. National planning policy may lawfully give Ramsar sites equivalent practical protection. Likely harm to such a site is then a material consideration when deciding whether to discharge conditions that would enable the development to proceed.

The developer had outline permission and reserved matters approval for Phase 3 of a mixed-use development. No appropriate assessment had been undertaken. Natural England subsequently identified a risk that phosphate pollution from development in the catchment would harm the Somerset Levels and Moors Ramsar Site.

The local planning authority declined to discharge several conditions. An inspector dismissed the developer’s appeal because an appropriate assessment was required and could not be completed on the available information. Sir Ross Cranston dismissed the developer’s application under section 288 of the Town and Country Planning Act 1990: [2023] EWHC 1622 (Admin).

The appeal concerned whether regulation 63 applied at the discharge-of-conditions stage, whether the assessment extended to the whole development, and whether paragraph 181 of the National Planning Policy Framework made protection of the Ramsar site a material consideration.

1. Appeal dismissed. Regulations 63 and 70 of the Conservation of Habitats and Species Regulations 2017, construed together, can require an appropriate assessment when reserved matters are approved or pre-commencement conditions are discharged. Such a decision falls within “any consent, permission or other authorisation” where it is the implementing decision that entitles the developer lawfully to proceed. The broad language and precautionary purpose of regulation 63 exclude an interpretation confining assessment to the outline-permission stage.
2. Regulation 70 does not exhaustively restrict the assessment provisions to the initial grant of planning permission. Regulation 70(3) requires assessment at outline stage where applicable, but does not exclude assessment at a later implementing stage where no assessment was previously undertaken or completed. A contrary construction would leave a gap permitting potentially harmful development to proceed merely because the risk was overlooked or emerged later.
3. The failure to discharge the conditions did not invalidate or revoke the outline permission. The permission remained valid, but the project could not lawfully pass the final authorisation stage without the assessment and the necessary conclusion that the protected site’s integrity would not be adversely affected.
4. The appropriate assessment must examine the implications of the whole project authorised by the implementing decision. Its scope is not confined to the particular matters governed by the conditions. Here the relevant project was Phase 3 in its entirety.
5. Paragraph 181 of the National Planning Policy Framework lawfully extended to Ramsar sites, as national policy, the same practical protection afforded by the habitats legislation to habitats sites. Because discharge of the pre-commencement conditions would enable development likely to harm the Ramsar site, that policy and the likely ecological effects were material considerations. This did not use policy to make an otherwise irrelevant consideration relevant; the necessary connection arose from the consequences of the implementing decision.
6. The High Court’s reliance on direct effect was unnecessary. The domestic regulations bore the adopted meaning under ordinary domestic statutory interpretation, which is a unified exercise involving text, context and legislative purpose. Interpretation of retained EU-derived domestic legislation was distinct from the doctrine of direct effect.

1. Court of Appeal (Civil Division): The appeal was dismissed: [2024] EWCA Civ 730.
2. High Court, Planning Court: Sir Ross Cranston dismissed the developer’s section 288 application to quash the inspector’s decision: [2023] EWHC 1622 (Admin). He granted permission to appeal and issued a leapfrog certificate.
3. Supreme Court: Permission to pursue the certified leapfrog appeal was refused on 29 August 2023.
4. Planning inspector: The inspector dismissed the appeal against the authority’s failure to discharge the conditions because an appropriate assessment was required and could not be completed.