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

The Court of Appeal dismissed the appellant's challenge to an inspector's refusal to discharge pre-commencement conditions for Phase 3 of a multi-stage housing development. The court held that regulation 63 of the Conservation of Habitats and Species Regulations 2017, read purposively and in light of its purpose and the precautionary principle, can require an appropriate assessment at a later stage in a multi-stage consent process (including the approval of reserved matters and the discharge of conditions) where that stage is the "implementing decision" which authorises the development to proceed. The court held that the scope of any appropriate assessment at that stage must cover the whole project whose implementation the decision would authorise, not merely the narrow subject-matter of the conditions before the authority. Finally, the court held that paragraph 181 of the National Planning Policy Framework, which gives Ramsar sites the same protection in planning decision‑making as sites protected under the Habitats Regulations, was a material consideration in the decision on the discharge of conditions.

This is an appeal from the Planning Court ([2023] EWHC 1622 (Admin)) in a challenge under section 288 of the Town and Country Planning Act 1990 to the decision of an inspector dismissing an appeal against the failure of Somerset Council to determine applications for the discharge of conditions attached to a reserved matters approval for Phase 3 of a mixed-use housing development at Jurston Farm.

The project lies in the catchment of the River Tone and the Somerset Levels and Moors Ramsar Site. Natural England issued an advice note in August 2020 identifying the risk that additional phosphates from new development would have adverse effects on the Ramsar site. No appropriate assessment under regulation 63 of the Habitats Regulations had been carried out when outline planning permission was granted and none had been carried out at the reserved matters stage before the dispute over discharge of pre-commencement conditions arose. The council produced a "Shadow Appropriate Assessment" concluding the development would increase phosphate loading and could not be shown not to adversely affect the Ramsar site. The appellant accepted that, if an appropriate assessment had been undertaken, it would have concluded a likelihood of adverse effects, but argued that the need for an appropriate assessment had arisen too late in the decision-making process to be required at the discharge of conditions stage.

Issues framed by the court: (i) whether regulation 63 applies at the discharge of conditions stage; (ii) whether paragraph 181 of the NPPF (giving Ramsar sites equivalent protection) was a material consideration in the discharge decision; and (iii) whether the scope of any appropriate assessment at the discharge stage is limited to matters affected by the conditions or must cover the whole development.

Court’s reasoning and conclusions: applying orthodox purposive statutory interpretation and retained pre-exit EU case law and principles, the court concluded that regulation 63, properly read in context with regulation 70 and the purpose of the assessment provisions, permits and requires an appropriate assessment to be undertaken before an "implementing decision" in a multi-stage consent process, which may include reserved matters approval or the discharge of conditions (particularly pre-commencement conditions the breach of which would make the works unauthorised). The court rejected the appellant's narrower textual reading which would confine the assessment provisions to the outline permission stage and which risked creating a lacuna undermining the precautionary protection the regime is intended to secure. The court held the assessment must consider the implications of the whole project, not merely the part governed by the conditions. Finally, the court held that paragraph 181 of the NPPF was a lawful and relevant national planning policy giving Ramsar sites practical protection in decision-making, and thus the policy was material to the discharge decision.

The court therefore dismissed the appeal and upheld the inspector’s approach and decision. The judgment notes wider public policy issues (including the effect on housing delivery and nutrient neutrality) but confines itself to legal interpretation and application of the Habitats Regulations and planning policy.

The appeal is dismissed. The court held that (1) regulation 63 of the Habitats Regulations can and must be applied at the stage when an "implementing decision" is taken in a multi-stage planning consent process (including approval of reserved matters or discharge of pre-commencement conditions) so that an appropriate assessment is carried out before the development is authorised to proceed; (2) the scope of the appropriate assessment at that stage is the whole project whose implementation the decision would authorise, not only the narrow matters covered by the conditions; and (3) paragraph 181 of the NPPF, which gives Ramsar sites equivalent protection in planning decision-making, was a lawful and material consideration in the decision to withhold discharge of the conditions in light of likely phosphate impacts on the Ramsar site.

The High Court (Planning Court, Sir Ross Cranston) refused CG Fry’s section 288 challenge to the inspector’s decision ([2023] EWHC 1622 (Admin)). The judge granted permission to appeal to the Court of Appeal and a "leapfrog" certificate to apply to the Supreme Court; the Supreme Court refused permission to leapfrog on 29 August 2023. The Home Builders Federation and the Land, Planning and Development Federation were permitted to intervene in the Court of Appeal (application by Dingemans LJ, 20 October 2023).