Judgment in this matter was handed down by the Court of Appeal last Friday. I have written previously about the High Court decision, in an article entitled ‘Nutrient neutrality: Are developments with outline consent caught by the requirements?‘ and the issue is whether an appropriate assessment is required at reserved matters stage when outline planning consent has already been obtained.
The bad news for the developers is that the appeal from the High Court decision was refused so the Habitats Regulations have to be complied with before a final authorising decision can be made. I set out a 20 second summary with further detail below for those that would like a little more information.
The requirement for an appropriate assessment under the Habitats Regulations will be required when the local planning authority (LPA) “is making the final decision in a sequence authorising the development to proceed.” This means that where outline permission is granted the appropriate assessment can be carried out at the reserved matters approval stage or discharge of conditions. There is no requirement for the LPA to consider only the subject matter of the conditions themselves when deciding whether or not an appropriate assessment is required. The impact and implications of the whole development must be considered not just the scope of the reserved matters or conditions in question. Further, there is nothing wrong in applying paragraph 181 of the National Planning Policy Framework (NPPF) to protect Ramsar sites as this is a legitimate policy goal.
The issues in the appeal are the same as set out in my previous article, so I will try not to duplicate that content and just provide some of the Court of Appeal’s thinking on the subject.
The first ground of appeal was that the Habitats Regulations confined the appropriate assessment provisions to the grant of outline planning permission and were not engaged at the later reserved matters stage. Legislation must be given its “natural and ordinary meaning” and that the High Court Judge was wrong to reach a different interpretation by adopting a “purposive approach.”
This was rejected by the Court of Appeal who confirmed that the correct approach when construing legislation is to have regard to context and in the light of its purpose. Legislation is enacted to solve real world problems and must be construed with that purpose in mind.
There is nothing in the Habitats Regulations which excludes 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 for the project to be lawfully implemented. Regulation 63 is widely drafted and refers to “any consent, permission or other authorisation” for a plan or project.
If the appellant’s argument was correct then there would be situations where the LPA would be powerless to prevent a development going ahead even though it had become apparent (since the granting of outline planning permission) that the granting of an implementing decision would cause the sort of harm the Habitats regulations were designed to prevent.
The analysis of the Court of Appeal does not impinge on any private rights as if any development should fail at the final hurdle of an appropriate assessment at reserved matters stage then the original outline planning permission would still be valid just not capable of implementation without further consideration. There would, for example, be no question of revoking the original outline planning consent resulting in compensation being payable.
The regime for environmental impact assessments was considered and the court’s conclusions on the meaning and effect of the Habitats Regulations are consistent with decisions made in that context. The case law on environmental impact assessments has consistently recognised that such an assessment may be required after the initial consent has been granted.
The second ground of appeal was that the Habitats Regulations do not extend to Ramsar sites and that paragraph 181 of the NPPF did not plug the gap. The appellant relied on case law[1] where a local planning authority had placed obligations on the developer to improve the highways when the proposed development had no effect on the capacity of the local road network. This was an irrelevant consideration and tantamount to the buying and selling of planning permission.
The Court of Appeal determined that the NPPF policy in paragraph 181 was engaged because of the consequence of the development being authorised and the object of the policy which was to protect relevant sites which include Ramsar designations.
The third ground of appeal was that the LPA should only be considering the subject matter of the conditions in the context of an appropriate assessment. That was also rejected by the court as none of the relevant legislation qualifies the scope or content of the appropriate assessment. It is the impact of the development as a whole which is considered not any individual element thereof.
It is not known whether an appeal to the Supreme Court is planned but an application for a leapfrog appeal from the High Court was refused on 24 August 2023.
If, as many expect, Labour do form the next government then their manifesto pledge is ‘implementing solutions to unlock the building of homes affected by nutrient neutrality without weaking environmental protections’. There is no further detail, but a change of tack is inferred and we will have to wait and see what they propose.
To discuss any of the issues raised in this article, please contact Ben Sharples.
[1] Aberdeen City and Shire Development Planning Authority v Elsick Development Co. Ltd [2017] P.T.S.R 1413
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