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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> CG Fry & Son Ltd v Secretary of State for Levelling Up, Housing and Communities & Anor [2024] EWCA Civ 730 (28 June 2024) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2024/730.html Cite as: [2024] PTSR 2000, [2024] EWCA Civ 730, [2024] WLR(D) 300 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISIONPLANNING COURT
Sir Ross Cranston (sitting as a High Court Judge)
Strand, London, WC2A 2LL |
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B e f o r e :
(Senior President of Tribunals)
LORD JUSTICE SINGH
and
LORD JUSTICE ARNOLD
____________________
C. G. FRY & SON LIMITED |
Claimant/ Appellant |
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- and - |
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(1) SECRETARY OF STATE FOR LEVELLING UP, HOUSING AND COMMUNITIES (2) SOMERSET COUNCIL |
Defendants/ Respondents |
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- and - |
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(1) THE HOME BUILDERS FEDERATION (2) THE LAND, PLANNING AND DEVELOPMENT FEDERATION |
Interveners |
____________________
Richard Moules K.C. and Nick Grant (instructed by the Treasury Solicitor) for the First Respondent
Luke Wilcox (instructed by Shape Partnership Services, Law & Governance) for the Second Respondent
Zack Simons and Isabella Buono (instructed by Shoosmiths LLP) for the Interveners
Hearing dates: 19 and 20 March 2024
Further written submissions: 10 and 17 June 2024
____________________
Crown Copyright ©
The Senior President of Tribunals, Lord Justice Singh and Lord Justice Arnold:
Introduction
The main issues in the appeal
Ramsar sites
"181. The following should be given the same protection as habitats sites [defined in the "Glossary" to the NPPF as "[any] site which would be included within the definition at regulation 8 of [the Habitats Regulations] for the purposes of those regulations, including candidate Special Areas of Conservation, Sites of Community Importance, Special Areas of Conservation, Special Protection Areas and any relevant Marine Sites"]:
(b) Listed or proposed Ramsar sites "
The outline planning permission and reserved matters approval
Natural England's advice note of 17 August 2020
The application for discharge of conditions and subsequent appeal
"It cannot be concluded that the project will not adversely affect the integrity of the Somerset Levels and Moors Ramsar Site, either alone or in combination with other plans or projects.
Based on the information available, the phosphorus loading of the proposed project has been calculated to 41.19 kg/year under the AMP programme and no mitigation has been provided to offset this impact."
The written ministerial statement of 20 July 2022
"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. It may be that Habitats Regulations Assessment is required in situations including but not limited to where the environmental circumstances have materially changed as a matter of fact and degree (including where nutrient load or the conservation status of the habitats site is now unfavourable) so that development that previously was lawfully screened out at the permission stage cannot now be screened out."
The inspector's decision
The habitats legislation and relevant case law
"
2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.
3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.
"
"9.
(6) The requirement in the second sentence of article 6(3) of the Habitats Directive and in regulation 63(5) of the Habitats Regulations embodies the "precautionary principle, and makes it possible effectively to prevent adverse effects on the integrity of protected sites as a result of the plans or projects being considered" (see the judgment of [the CJEU] in [Case C-127/02] Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris Van Landbouw, Natuurbeheer en Visserij [2005] 2 CMLR 31 ("Waddenzee"), at paragraph 58). The "precautionary principle" requires a high standard of investigation (see the judgment in Waddenzee, at paragraphs 44, 58, 59 and 61).
(7) [The] competent authority must be "satisfied that there is no reasonable doubt as to the absence of adverse effects on the integrity of the protected site concerned" (paragraphs 44, 58, 59 and 61 of the CJEU's judgment in Waddenzee )
(10) If an appropriate assessment is to comply with article 6(3) of the Habitats Directive it "cannot have lacunae and must contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works proposed on the protected site concerned" (see the judgment of the CJEU in Sweetman v An Bord Pleanαla (C258/11) [2014] PTSR 1092, at paragraph 44, and its judgment in People Over Wind and Sweetman v Coillte Teoranta (C-323/17) [2018] PTSR 1668, at paragraph 38)."
"33. Under article 6(3) of the Habitats Directive, an appropriate assessment of the implications of a plan or project for the site concerned implies that, before the plan or project is approved, all the aspects of the plan or project which can, either individually or in combination with other plans or projects, affect the conservation objectives of that site must be identified, in the light of the best scientific knowledge in the field. The competent national authorities are to authorise an activity on the protected site only if they have made certain that it will not adversely affect the integrity of that site. That is so when there is no scientific doubt as to the absence of such effects. "
"99. [The] second stage of the assessment procedure, which is envisaged in the second sentence of art.6(3) of the Habitats Directive and occurs following the appropriate assessment of the implications of the plan or project for the site concerned, allows such a plan or project to be authorised only if it will not adversely affect the integrity of the site concerned
100. Article 6(3) of the Habitats Directive thus integrates the precautionary principle and makes it possible to prevent in an effective manner adverse effects on the integrity of protected sites as a result of the plans or projects envisaged. A less stringent authorisation criterion than that in question could not ensure as effectively the fulfilment of the objective of site protection intended under that provision "
"140. The second sentence of art.6(3) of the Habitats Directive specifies that following an appropriate assessment, the competent national authorities are to "agree" to the project only after having ascertained that it will not adversely affect the integrity of the site concerned .
141. It follows that the assessment must be conducted before agreement is given.
142. Furthermore, while the Habitats Directive does not define the conditions governing how the authorities "agree" to a given project under art.6(3) of that directive, the definition of "development consent" is art.1(2)(c) of the EIA Directive is relevant in defining that term.
143. Accordingly, by analogy with the Court's findings on the EIA Directive, if national law provides for a number of steps in the consent procedure, the assessment under art.6(3) of the Habitats Directive should, in principle, be carried out as soon as the effects which the project in question is likely to have on a protected site are sufficiently identifiable "
"(1) The requirements of the assessment provisions apply
(a) subject to and in accordance with the provisions of Chapters 2 to 7, in relation to the matters specified in those provisions
"
"(1) A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which
(a) is likely to have a significant effect on a European site (either alone or in combination with other plans or projects), and
(b) is not directly connected with or necessary to the management of that site,
must make an appropriate assessment of the implications of the plan or project for that site in view of that site's conservation objectives.
(5) In the light of the conclusions of the assessment, and subject to regulation 64 [which provides for "Considerations of overriding public interest"], the competent authority may agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site
(6) In considering whether a plan or project will adversely affect the integrity of the site, the competent authority must have regard to the manner in which it is proposed to be carried out or to any conditions or restrictions subject to which it proposes that the consent, permission or other authorisation should be given.
"
"(1) The assessment provisions apply in relation to
(a) granting planning permission on an application under Part 3 of [the 1990 Act] (control over development);
(c) granting planning permission, or upholding a decision of the local planning authority to grant planning permission (whether or not subject to the same conditions and limitations as those imposed by the local planning authority), on determining an appeal under section 78 of that Act in respect of such an application;
(1) Where the assessment provisions apply, outline planning permission must not be granted unless the competent authority is satisfied (whether by reason of the conditions and limitations to which the outline planning permission is to be made subject, or otherwise) that no development likely adversely to affect the integrity of a European site could be carried out under the permission, whether before or after obtaining approval of any reserved matters.
(2) In paragraph (3), "outline planning permission" and "reserved matters" have the same meanings as in section 92 of the TCPA 1990 (outline planning permission).
"
"24. As the European Court said in para 48 of its judgment, however, the competent authority may be obliged in some circumstances to carry out an EIA even after outline planning permission has been granted. This is because it is not possible to eliminate entirely the possibility that it will not become apparent until a later stage in the multi-stage consent process that the project is likely to have significant effects on the environment. In that event account will have to be taken of all the aspects of the project which have not yet been assessed or which have been identified for the first time as requiring an assessment. This may be because the need for an EIA was overlooked at the outline stage, or it may be because a detailed description of the proposal to the extent necessary to obtain approval of reserved matters has revealed that the development may have significant effects on the environment that were not anticipated earlier."
and (in paragraph 29):
"29. If it is likely that there will be significant effects on the environment which have not previously been identified, an EIA must be carried out at the reserved matters stage before consent is given for the development."
"71. In my judgment, the Council could lawfully conduct an appropriate assessment at reserved matters stage, in the circumstances of this case.
72. Unlike the EIA Directive, the Habitats Directive has no stated objective that appropriate assessment is expected at the "earliest possible stage". The distinction is that the EIA regime seeks to ensure consideration of relevant information at the first decision-making stage, whereas the HRA regime is focussed on ensuring the avoidance of harm to the integrity of protected sites."
"73. In considering a challenge to a core strategy, the Court of Appeal in No Adastral New Town Limited found that there was no requirement for an HRA "screening assessment" to be carried out "at an early stage", on the basis that article 6 of the Habitats Directive "focuses on the end result of avoiding damage to an SPA", and it was therefore sufficient for any appropriate assessment to be completed "before the plan is given effect", per Richards LJ at [61] to [69]."
"74. The relevant date is "the date of adoption of the decision authorising implementation of the project": see Commission v Germany [2017] EUECJ C-142/16 at [42]. In a "multi-stage consent", there is no "agreement to the project" until reserved matters consent has been granted; indeed the CJEU described the reserved matters approval as "the implementing decision" in Wells at [52] and Commission v UK [2006] QB 764 at [101], [104]. By regulations 63(1) and 63(5), reserved matters consent cannot be granted unless it has been established that the integrity of the European site will not be adversely affected. So an HRA was required."
"94. In [Wingfield] it was held at [72]-[77] that for the purposes of the Habitats Regulations, there is no decision authorising the implementation of the project in the case of a multi-stage consent until reserved matters are approved. Reserved matters approval is the "implementing decision". Unlike the EIA Regulations, there is no legislative objective requiring HRA to be carried out at the earliest possible stage. Accordingly, HRA may lawfully be completed at the reserved matters stage, even if not carried out prior to the grant of outline planning permission. The various attempts by the claimant in Wingfield to challenge the decision by Lang J were rejected by the Court of Appeal (as recorded in [2021] 1 WLR 2863).
95. CCC and RHL are entirely correct to submit that Wingfield and the decision upon which it is based [No Adastral New Town Limited], provide a complete answer to this second limb of ground 2. The claimant's argument is hopeless."
The continuing relevance of EU law
"Saving for rights etc. under section 2(1) of the ECA
(1) Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before IP completion day
(a) are recognised and available in domestic law by virtue of section 2(1) of the European Communities Act 1972, and
(b) are enforced, allowed and followed accordingly,
continue on and after IP completion day to be recognised and available in domestic law (and to be enforced, allowed and followed accordingly).
(2) Subsection (1) does not apply to any rights, powers, liabilities, obligations, restrictions, remedies or procedures so far as they
(a) form part of domestic law by virtue of section 3,
(aa) are, or are to be, recognised and available in domestic law (and enforced, allowed and followed accordingly) by virtue of section 7A or 7B, or
(b) arise under an EU directive (including as applied by the EEA agreement) and are not of a kind recognised by the European Court or any court or tribunal in the United Kingdom in a case decided before IP completion day (whether or not as an essential part of the decision in the case).
(3) This section is subject to section 5 and Schedule 1 (exceptions to savings and incorporation) and section 5A (savings and incorporation: supplementary)."
"(a) in accordance with any retained case law and any retained general principles of EU law, and
(b) having regard (among other things) to the limits, immediately before IP completion day, of EU competences."
The distinction between interpretation and the doctrine of direct effect in EU law
"A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.
A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods."
"Consequently a Member State which has not adopted the implementing measures required by the directive in the prescribed periods may not rely, as against individuals, on its own failure to perform the obligations which the directive entails."
"31. It follows that, in applying national law, national courts called upon to interpret that law are required to consider the whole body of rules of law and to apply methods of interpretation that are recognised by those rules in order to interpret it, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and consequently comply with the third paragraph of art.288 TFEU (see, inter alia, judgments in Pfeiffer [2005] 1 CMLR 44 at [113] and [114], and Kόcόkdeveci [2010] 2 CMLR 33 at [48]).
32. It is true that the Court has stated that this principle of interpreting national law in conformity with EU law has certain limits. Thus, the obligation for a national court to refer to EU law when interpreting and applying the relevant rules of domestic law is limited by general principles of law and cannot serve as the basis for an interpretation of national law contra legem (see judgments in Impact v Minister for Agriculture and Food (C-268/06) [2008] ECR I-2483; [2008] 2 CMLR 47 at [100]; Dominguez v Centre Informatique du Centre Ouest Atlantique (C-282/10) EU:C:2012:33; [2012] 2 C.M.L.R. 14 at [25]; and Association de mediation sociale v Union locale des syndicats CGT (C-176/12) EU:C:2014:2 at [39])."
"AG67 In this connection, it is important to circumscribe the situations in which a consistent interpretation is impossible and, more specifically, to define what contra legem interpretation actually means.
AG68 The Latin expression 'contra legem' literally means 'against the law'. A contra legem interpretation must, to my mind, be understood as being an interpretation that contradicts the very wording of the national provision at issue. In other words, a national court is confronted by the obstacle of contra legem interpretation when the clear, unequivocal wording of a provision of national law appears to be irreconcilable with the wording of a directive. The Court has acknowledged that contra legem interpretation represents a limit on the obligation of consistent interpretation, since it cannot require national courts to exercise their interpretative competence to such a point that they substitute for the legislative authority."
The judge's conclusions on the first and third grounds of challenge
"51. In my view article 6(3) of the Habitats Directive continues to have effect in domestic law as a result of section 4(2)(b) [of the Withdrawal Act]. Johnson J explained in [Harris and another v Environment Agency [2022] EWHC 2264 (Admin)], that the requirements of article 6(3) were accepted as binding by the CJEU in Waddenzee: [90]. Article 6(2) and 6(3) of the Habitats Directive are closely related, so as to be 'of a kind' with one another for the purposes of section 4: [91]. The demands of section 4(2)(b) are therefore met. The section is explicit that the recognition in the case law does not have to be by way of the ratio of a case '(whether or not as an essential part of the decision in the case)'."
"56. A purposive interpretation of the Habitats Regulations enables regulation 70 to be read in light of ("in accordance with") regulation 63, so that a competent authority must conduct an appropriate assessment before, as regulation 63(1) provides, any consent, permission or other authorisation is given for a project. In a multi-stage consent, consent amounts to taking the implementing decision, as Lang J put it in R (Wingfield) v Canterbury City Council [2029] EWHC 1974 (Admin). In that case and in R (Swire) v Canterbury City Council [2022] EWHC 390 (Admin) it was said that there is no agreement until reserved matters are granted: [74] and [94] respectively . I accept the submission of the Secretary of State that the same applies to the discharge of conditions, in circumstances where commencing development in breach of them results in that development not being development authorised by that permission.
57. Mr Banner cited [R. (on the application of Fulford Parish Council) v City of York Council [2019] EWCA Civ 1359] to the effect that reserved matters approval is not a planning permission, and that would include the discharge of a condition on a reserved matters approval. However, a close reading of Lewison LJ's judgment reveals that his conclusion in this regard was the product of the statutory context. "
"64. [The] Habitats Directive and Habitats Regulations mandate that an appropriate assessment be undertaken before a project is consented irrespective of whatever stage the process has reached . The basal fact in this case is at neither at the permission, reserved matters, or conditions discharge stage has there been an appropriate assessment. Application of the Habitats Directive and a purposive approach to the interpretation of the Habitats Regulations require the application of the assessment provisions to the discharge of conditions. The strict precautionary approach required would be undermined if they were limited to the initial the permission stage of a multi-stage process."
"69. Regulation 63 requires an appropriate assessment to consider the implications of the project, not the implications of the part of the project to which the consent relates. [In] Barker [2006] UKHL 52 the House of Lords recognised that it was the environmental effects of the development which were to be assessed, not the effects of the reserved matters. And to return to Wingfield it was the integrity of the site as a whole which was of concern, so that reserved matters approval could not be given when it was that which authorised implementation of the development. [The] thing which is to be the subject of the appropriate assessment is the thing which will be permitted by the authorisation for a development, it is the development which is to be assessed."
Grounds 1 and 3 of the appeal regulation 63 of the Habitats Regulations
"The modern approach to statutory interpretation is to have regard to the purpose of a particular provision and to interpret its language, so far as possible, in the way which best gives effect to that purpose. In UBS AG v Revenue and Customs Comrs [2016] 1 WLR 1005, paras 61-68, Lord Reed JSC (with whom the other justices of the Supreme Court agreed) explained how this approach requires the facts to be analysed in the light of the statutory provision being applied so that if, for example, a fact is of no relevance to the application of the statute construed in the light of its purpose, it can be disregarded. Lord Reed JSC cited the pithy statement of Ribeiro PJ in Collector of Stamp Revenue v Arrowtown Assets Ltd (2003) 6 ITLR 454, para 35: 'The ultimate question is whether the relevant statutory provisions, construed purposively, were intended to apply to the transaction, viewed realistically.'" (Emphasis added)
"40. The basic task for the court in interpreting a statutory provision is clear. As Lord Nicholls put it in Spath Holme [2001] 2 AC 349, 396, 'Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context.'
41. As was pointed out by this court in Rossendale Borough Council v Hurstwood Properties (A) Ltd [2022] AC 690, para 10 (Lord Briggs and Lord Leggatt JJSC), there are numerous authoritative statements in modern case law which emphasise the central importance in interpreting any legislation of identifying its purpose. The examples given there are R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687 and Bloomsbury International Ltd v Department for Environment, Food and Rural Affairs [2011] 1 WLR 1546. In the first, Lord Bingham of Cornhill said (para 8):
'Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The court's task, within the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.'
In the second, Lord Mance JSC said (para 10):
'In matters of statutory construction, the statutory purpose and the general scheme by which it is to be put into effect are of central importance In this area as in the area of contractual construction, 'the notion of words having a natural meaning' is not always very helpful (Charter Reinsurance Co Ltd v Fagan [1997] AC 313, 391C, per Lord Hoffmann), and certainly not as a starting point, before identifying the legislative purpose and scheme.'
The purpose and scheme of an Act of Parliament provide the basic frame of orientation for the use of the language employed in it." (Emphasis added)
The judge's conclusions on the second ground of challenge
"67. In my view the situation in this case is not the situation in Elsick. The impacts on the Somerset Levels and Moors Ramsar Site and paragraph 181 of the NPPF cannot be said to be irrelevant considerations in this development. The issue is the read-across of the Habitats Regulations to Ramsar sites as provided by the NPPF in circumstances where the Council's shadow appropriate assessment shows that if the project is permitted it will cause harm to the Ramsar site. [To] understand the scope of the discharge of conditions it is necessary to consider the legal consequences, and in this case one of these would be that a development with a potential impact on a Ramsar site protected by national policy would be authorised by the planning system. That creates the nexus to the NPPF's policy on the protection of Ramsar sites. It is open to the Secretary of State to introduce such a consideration as a matter of national planning policy."
Ground 2 of the appeal paragraph 181 of the NPPF
Conclusion