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The requirement that developments in certain catchment areas be nutrient neutral has been criticised by many developers. We have explained how the system works in previous articles – see Nutrient neutrality: The basics. The issue remains controversial, with many seeing it as yet another obstacle to much needed housing development, whilst others regard it as a long overdue recognition of the environmental cost of development.
The policy of nutrient neutrality has delayed planning applications over the last three years at every stage and has consequently become a political issue. The policy has been threatened before with Liz Truss arguing for its removal – but we all know how that ended. Now it is the turn of the current Prime Minister to question its future as he is apparently seeking to use the Levelling Up Bill to avoid the impact of the Dutch Nitrogen Case.
The recent case of C G Fry v Secretary of State [2023] considered whether the Natural England advice note, which started the whole nutrient neutrality delay, catches developments which already have outline planning consent.
The case
In the C G Fry case Somerset Council (“Somerset LPA“) had granted outline planning permission for 650 houses, community and commercial use, a primary school and associated infrastructure. As usual, the outline consent was subject to various conditions or reserved matters.
The planning permission was due to be implemented in eight phases with the first two being commenced under separate reserved matters approvals.
In June 2020 the developer, C G Fry (“Claimant“) obtained reserved matters approval for the third phase of 190 dwellings (“Development“). The approval was subject to a number of conditions but none of them related to nutrient neutrality.
In August 2020, Natural England published their advice note, which dropped the nutrient neutrality bombshell onto the desk of all the affected local authorities, including the Somerset LPA. The Development had the potential, adversely, to affect the Somerset Levels and Moors Ramsar Site, so an appropriate assessment under the Habitats Regulations 2017 (“Appropriate Assessment“) was required. Whilst the 2017 Regulations do not designate Ramsar Sites as protected areas, the National Planning Policy Framework (“NPPF“) grants them the same level of protection.
In June 2021 the Claimant sought discharge of a number of the conditions, none of which went to the principle of the development, which had been established under the outline planning consent. The Somerset LPA withheld approval on the basis that an Appropriate Assessment was needed.
Appeal
In April 2022 the Claimant appealed arguing that an Appropriate Assessment was not needed at the discharge of conditions stage or, if it was, it should be confined in scope to matters being considered for the conditions in question.
The Somerset LPA maintained that an Appropriate Assessment was needed and their own shadow calculations showed that the Development would have an adverse impact on the Ramsar Site.
The Inspector dismissed the Claimant’s appeal finding that the NPPF overarching protection was legitimate as discharge of conditions was part of a wider consent process, which would permit the Development to have an adverse effect on the Ramsar Site. An Appropriate Assessment was required at the discharge of conditions stage. The unfulfilled requirement for an Appropriate Assessment was an issue of material significance, which outweighed the delay in housing delivery.
Written Ministerial Statement
In July 2022 the Secretary of State for Environment Food and Rural Affairs issued a Written Ministerial Statement which confirmed that “the Habitats Regulations Assessment provisions apply to any consent, permission or other authorisation, this may include post-permission approvals, reserved matters or discharges of conditions.”
The Claimant therefore launched this claim for statutory review under section 288 of the Town and Country Planning Act 1990 (“1990 Act.”)
Legal Framework
Nutrient neutrality is a creation of European law with the 2017 Regulations transposing the requirements of Council Directive 92/43/EEC on the Conservation of Natural Habitats and Wild Flora and Fauna (“Habitats Directive.”)
Prior to Brexit the provisions of the Habitats Directive could be relied upon directly in the English courts to trump domestic law, including the 1990 Act. That reliance is also possible in circumstances in which the wording of the 2017 Regulations fell short of achieving the level of protection required.
The Court of Justice of the European Union (“CJEU“) adopts a strict precautionary approach to the assessment provisions of the Habitats Directive, so authorities have to make certain that development will not adversely affect protected sites.
Further, the CJEU held in the Dutch Nitrogen Case (which prompted the Natural England advice note referred to above) that the Appropriate Assessment must be capable of removing all reasonable scientific doubt as to the effects of development on a protected site.
Since Brexit, domestic legislation derived from EU law, such as the 2017 Regulations, continues to have effect pursuant to section 2(1) of the European Union (Withdrawal) Act 2018 (“EU Withdrawal Act“). Similarly, the pre-Brexit case law of the CJEU lives on in relation to the interpretation of EU law.
Case law (drawing on examples relating to environmental impact assessments) has established that an Appropriate Assessment can be carried out at the reserved matters stage.
Grounds of Challenge
The Claimant’s case was that the additional phosphate loading, caused by the development, was irrelevant, as it fell outside the matters left to be determined in a planning context after the grant of the outline permission. In addition, none of the conditions associated with the reserved matters application related to the phosphate issue.
The first line of attack from the Claimant was that the 2017 Regulations only apply to the formal grant of planning permission and not the approval of reserved matters or discharge of conditions. The Judge agreed with this strict interpretation but found that the Appropriate Assessment requirements applied due to Article 6 (3) of the Habitats Directive, a purposive interpretation of their provisions and case law binding him.
Habitats Directive – Article 6 (3)
The Claimant argued that the Habitats Directive had no status in the UK legal system as there was no EU or UK case law dating from before Brexit. The Judge disagreed with that view confirming that Article 6 (3) remains part of UK law. This is due to it having been accepted as binding by the CJEU in a previous case, as it was closely related to another provision of the Habitats Directive, which was the key clause in that case. This is because the EU Withdrawal Act states that previous case law will be recognised “whether or not as an essential part of the decision in the case.”
Article 6 (3) requires that an Appropriate Assessment must be carried out before a planning project is approved. A planning consent is part of agreeing a project when it consists of implementing development. In turn, the discharge of pre-commencement conditions is a necessary step in the implementation of development. In the Fry case the conditions could not be discharged without an Appropriate Assessment being undertaken.
Purposive Interpretation
The 2017 Regulations demand a purposive interpretation so that they apply to subsequent consent stages such as reserved matters applications and discharge of conditions. This approach stems from the strict precautionary approach which the CJEU has adopted to the assessment provisions of the Habitats Directive.
The Claimant’s case was that the precautionary approach is already observed as the 2017 Regulations require an assessment at the outline stage “whether before or after obtaining approval of any reserved matters.” Leaving aside the obvious timing issue in this case (that the Natural England advice note was issued after the grant of outline permission) the Judge identified the potential for negative environmental issues only surfacing after the initial stages of a multi-stage planning process. It must be remembered that in such a multi-stage process there is no implementing decision until the reserved matters are approved and conditions discharged. This is because any development in breach of such requirements is unlawful.
Caselaw
The Judge’s view was that existing caselaw provided authority for the proposition that an Appropriate Assessment can apply at the reserved matters or discharge of conditions stage, even if there has been a grant of outline planning permission under which the subsequent approval is the implementing decision. All the cases concerned the interpretation of the Habitats Directive and the 2017 Regulations and the point that the facts were different was no basis for undermining the principles they established.
Any arguments that the 2017 Regulations must be subservient to the 1990 Act is met by the long-established principle of the superiority of EU law over domestic UK legislation, which is preserved by the EU Withdrawal Act.
Conclusion & leapfrog appeal
The conclusion is that the Habitats Directive and the 2017 Regulations mandate that an Appropriate Assessment must be undertaken before a project is consented, regardless of the stage it has reached.
An interesting postscript to this case is that permission has been given for a leapfrog appeal straight from the High Court, bypassing the Court of Appeal, to the Supreme Court. This is a rare event and reserved for the cases of the highest public interest. The securing of a leapfrog appeal is a significant feather in the cap of the Claimant’s legal team led by Charles Banner KC of Keating Chambers. By way of illustration, the last example was the Brexit challenge brought by Gina Miller. An expedited appeal to the Court of Appeal is the consolation prize in the event that the Supreme Court do not grant permission to appeal and either decision will be eagerly awaited by all involved in nutrient neutrality schemes.
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