This judgment was handed down remotely at 10.30am on 30th June 2023 by
circulation
to the parties or their representatives by e-mail and by release to the National Archives.
SIR ROSS
CRANSTON:
INTRODUCTION
- This
case
concerns
potential adverse effects on the Somerset Levels and Moors Ramsar Site from the
claimant's
proposed housing-led development on land east of Wellington, Somerset.
- The
claim
arises in the
context
of the issue of nutrient neutrality. In broad terms, this issue relates to the phosphate loading of protected water habitats, leading to eutrophication. This is
caused
by reasons including agricultural practices and under-investment in water infrastructure. There is a risk of the problem being exacerbated by water
generated
by new developments which
contain
phosphates, principally from foul water. The Home Builders Federation states that, due to the unavailability of mitigation options, this issue is holding up the building of no fewer than 44,000 homes in England which already have planning permission.
- In the present
case
the Somerset
Council
("the
Council"),
and then on appeal the Secretary of State's Inspector, refused to discharge
certain
conditions
attached to the planning permission which the
Council
(or at least its predecessor) had earlier
granted
the
claimant
developer. That was because there had not been an appropriate assessment under the Habitats Regulations 2017 (the
Conservation
of Habitats and Species Regulations 2017, SI 2017/1012, as amended).
Consequently,
certain
pre-
commencement
conditions
have not been discharged, and phase 3 of the development has not been able to proceed.
- The
claimant
therefore launched this
claim
for statutory review under section 288 of Town and
Country
Planning Act 1990 ("the 1990 Act"),
challenging
the Inspector's decision. As a matter of law the
challenge
raises issues about the scope and application following the UK's withdrawal from the European Union of the Habitats Regulations 2017 and the Habitats Directive on which it was based. It is on legal
grounds
that the
case
was argued and must be decided. It is for others to resolve the significant public policy issues underlying this
claim,
raised by the Home Builders Federation and the Ministerial Statement, both outlined later in the judgment.
BACKGROUND
Planning permission
- In December 2015 the
Council
granted
outline planning permission for a mixed-use development of up to 650 houses,
community
and
commercial
uses, a primary school and associated infrastructure. Planning permission was subject to several
conditions
including
condition
4 (requiring the submission of a site-wide surface water drainage strategy) and
condition
7 (requiring the submission of a foul water drainage scheme).
Condition
4 was discharged about a year later.
- Pursuant to the planning permission the development was to take place in eight phases. Phases 1 and 2 were
commenced
under separate reserved matters approvals. In June 2020, the
claimant
obtained reserved matters approval for phase 3, relating to 190 dwellings, which was subject to a number of
conditions
including: (1)
condition
3: tree protection measures (a pre-
commencement
condition);
(2)
condition
4: surface water drainage (a pre-
commencement
condition);
(3)
condition
5: a
construction
environment management plan (a pre-
commencement
condition);
(4)
condition
6: external works (a pre-
construction
condition);
(5)
condition
7:
cycle
and footpath network
connection
details (a pre-occupation
condition);
and (6)
condition
10: materials (pre-
construction
of any development above damp proof
course
level).
Natural England advice note, 2020
- In August 2020 Natural England published their advice note to Somerset's local authorities (including the
Council's
predecessors) on development in relation to the Somerset Levels and Moors Ramsar Site ("the Natural England advice note"). The advice note referred to the judgment of the
Court
of Justice of the European Union in
Case
C-293/17,
C-294/17,
Coöperatie
Mobilisation for the Environment and Vereniging Leefmilieu v
College
van
gedeputeerde
staten Van Limberg [2019] Env LR 27 (the "Dutch Nitrogen
case").
In the wake of that
case,
the advice note read,
greater
scrutiny was required of plans and projects that will result in increased nutrient loads which may have an effect on Special Protection Areas ("SPAs"), Special Areas of
Conservation
("SACs"), and sites designated under the Ramsar
Convention.
SPAs and SACs are sites designated under the Habitats Regulations 2017. Ramsar sites are not but, as a matter of national planning policy in the National Planning Policy Framework ("NPPF"), they are afforded the same protection as if they were.
- While Natural England was satisfied that the effects of additional nutrients on the Somerset Levels and Moors SPA
could
be screened out and so not require appropriate assessment under the Habitats Regulations 2017, the Somerset Levels and Moors Ramsar site had been designated for different natural features:
"…the interest features of the Somerset Levels and Moors Ramsar Site are
considered
unfavourable, or at risk, from the effects of eutrophication
caused
by excessive phosphates. Further, although improvements to the Sewage Treatment Works, along with more minor measures to tackle agricultural pollution have been secured, these will not reduce phosphate levels sufficiently to restore the
condition
of the Ramsar Site features. The scope for permitting further development that would add additional phosphate either directly or indirectly to the site, and thus erode the improvements secured, is necessarily limited."
- Accordingly, Natural England advised that
competent
authorities (which included the
Council)
should undertake an appropriate assessment under the Habitats Regulations 2017 of the implications of a plan or project, and only
grant
consent
to the extent that the assessment allows the
competent
authorities to ascertain the development "will not have an adverse effect on the integrity of the site". As to the development types affected, the advice note stated in relation to additional residential units and
commercial
development:
"Additional residential units within the
catchment
are likely add phosphate to the designated site via the waste water treatment effluent, thus
contributing
to the existing unfavourable
condition
and further preventing the site in achieving its
conservation
objectives. Natural England therefore advises that your authority
carry
out an appropriate assessment of planning applications that will result in a net increase in population served by a wastewater system, including new homes, student and tourist accommodation."
Inspector's decision
- In June 2021 the
claimant
sought discharge of
conditions
3, 4, 5, 6, 7 and 10 of the reserved matters approval. These
conditions
required the submission and approval of specific matters that did not
go
to the principle of the development. The
Council
withheld approval on the basis that an appropriate assessment under the Habitats Regulations 2017 was required before the
conditions
could
be discharged.
- In April 2022 the
claimant
appealed to the Secretary of State and an Inspector was appointed. Before the Inspector the
claimant
contended
that no appropriate assessment under the Habitat's Regulations 2017 was required at the stage of discharge of
conditions
on reserved matters or, if it was, it should be
confined
to the scope of what was for
consideration
in relation to the discharge of the
conditions
in question.
- The
Council
resisted the appeal on the basis that, in line with the Natural England advice note, it was necessary for an appropriate assessment to be undertaken to determine the effect of additional nutrients on the Somerset Levels and Moors Ramsar site. It also submitted a shadow appropriate assessment, dated July 2022. This stated that the proposed development might have a negative effect on the qualifying features of the Ramsar site through the increase in nutrients, especially phosphorous. No mitigation was proposed so it
could
not be
concluded
that the project would not adversely affect the integrity of the Ramsar site.
- The Inspector dismissed the
claimant's
appeal. He determined that it was legitimate to apply paragraph 181 of the NPPF to
give
the Ramsar site the same protection in all respects as a European site under the Habitats Regulations 2017. That was because the discharge of the
conditions
would be an authorising act, as part of the wider
consent
process, that would allow the realisation of potential effects on the Ramsar site which the Natural England advice note sought to manage.
Considering
the overarching nature of paragraph 181, this applied regardless of the specific subject matter of the
conditions
themselves: DL24-26. The Inspector
considered
that the
grant
of outline planning permission and reserved matters approval did not have an effect on the scope of any necessary appropriate assessment; the validity of the planning permission was not in question: DL41.
- The inspector then determined that the requirement for an appropriate assessment in the Habitats Regulations 2017 applied to the discharge of
conditions
stage. He rejected the
claimant's
argument that inclusion of specific provisions relating to the
grant
of planning permission, including outline planning permission, at regulation 70 of the Habitats Regulations 2017, did not diminish the applicability of regulation 63, which was simply a sweep up provision: DL44. Even adopting the
claimant's
approach that the permission in relation to "
consent,
permission or other authorisation" in regulation 63 is the planning permission referred to in regulation 70, the
concept
of "other authorisation" was a broad one. The
claimant's
approach would
create
loopholes
counter
to a purposive approach to the Habitats Regulations 2017: DL45-47.
- As the
competent
authority, the Inspector said, he was unable to
carry
out the necessary appropriate assessment to agree the
conditions:
DL71. He said that he had
considered
the other relevant planning
considerations,
in particular the impact on housing delivery: DL72, 74. However, the unfulfilled requirement for an appropriate assessment was an issue of material significance: DL77. In other words he
conducted
the balancing exercise and
concluded
that in this
case
the delay in housing delivery was outweighed by the need to protect the Ramsar site.
Secretary of State statement, July 2022
- In July 2022 the Secretary of State for Environment Food and Rural Affairs issued a Written Ministerial Statement about tackling nutrient pollution and improving water quality. Part of that was to impose a statutory duty on water and sewerage
companies
to upgrade wastewater treatment works to the highest technically achievable limits by 2030 in nutrient neutrality areas. The impact of new housing was a small proportion of overall nutrient pollution, the statement said, but mitigation requirements had a significant impact on overall house building.
- The statement added that the
government
understood the
concerns
that some local planning authorities had around the impact of nutrient neutrality on their ability to demonstrate they have a sufficient and deliverable housing land supply. While it would be disappointing to developers whose sites were affected, the statement added, the
government's
position was 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.
It may be that Habitats Regulation 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 habitat site is now unfavourable) so that development that previously was lawfully screened out at the permission stage
cannot
now be screened out…"
Statement by Home Builders Federation, April 2023
- James Stevens, Director for
Cities
at the Home Builders Federation, prepared a statement for the
court
about the
claimant's
development. He explains how, following Natural England's advice note, the issue of nutrient neutrality has become a serious obstacle for house building in England. It was delaying an estimated 120,000 homes across the 27
catchments
currently
affected in England, with some 40 percent having already secured (as in this
case)
outline or full planning permission.
- Mr Stevens states that the availability of nature-based solutions, the
government's
favoured mitigation, is extremely sparse. Three of the four Somerset local authorities were opposed to market schemes (buying
credits),
even if available. Solutions were unlikely to release many of the 18, 234 homes delayed in Somerset. SME house building
companies
were especially exposed to the issue of nutrient neutrality on their developments.
LEGAL FRAMEWORK
Habitats Directive, article 6(3)
- The Habitats Regulations 2017 transpose the requirements of
Council
Directive 92/43/EEC of 21st May 1992 on the
Conservation
of Natural Habitats and of Wild Flora and Fauna (the "Habitats Directive"). The directive was first implemented in UK law by the
Conservation
(Natural Habitats, &
c.)
Regulations 1994, SI 1994/2716.
- Articles 6(2) and 6(3) of the Habitats Directive provide:
"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 …
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 [overriding public interest
cases],
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."
- The European jurisprudence establishes, first, as with any EU Directive, these provisions
could
be relied upon directly in the English
courts
when the UK was a member of the EU to trump domestic law (including the 1990 Act). An EU Directive
could
also be relied upon directly where it was
claimed
that the wording of the Habitats Regulations 2017 was too narrow or fell short of achieving all that it required.
- Secondly, the
CJEU
adopted a strict precautionary approach to the assessment provisions of the Habitats Directive, so that "
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":
Case
C-461/17,
Holohan v An Bord Pleanala [2019] PTSR 1054, [33]. As Sir Keith Lindblom SPT explained in R (on the application of Wyatt) v Fareham BC [2022] EWCA
Civ
983, article 6(3) 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",
citing
paragraph 58 of
Case
C-127/02,
Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris Van Landbouw, Natuurbeheer en Visserij [2005] 2
CMLR
31 ("Waddenzee"): [9(6)].
24. Thirdly, as the
CJEU
held in the Dutch Nitrogen
Case,
the appropriate assessment required in the first sentence of article 6(3) not only has to identify "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", [95], but it also "
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 plans or the projects proposed on the protected site
concerned
…" [98].
- Fourthly, the
concept
of "agree[ing]" in the second sentence of article 6(3) has a broad import so that plans or projects should only be allowed to proceed if the adverse effects have been
considered.
That follows from
CJEU
decisions holding that the definition of "development
consent"
in article 1(2)(
c)
of the EIA Directive (Directive 2011/92/EU on the assessment of the effects of
certain
public and private projects on the environment) is relevant to the meaning of the expression "agree" in article 6(3) of the Habitats Directive:
Case
C-254/19,
Friends
of the Irish Environment Ltd v An Bord Pleanala [2021] Env LR 16, [42] and
C411/17,
Inter-Environnement Wallonie ASBL v
Conseil
des Ministres [2020] Env LR 9, [142]-[143]. Although these decisions were based on particular facts, there is no suggestion that the
CJEU
was limiting the
general
statement of principle which they enunciate.
EU law and the Withdrawal Act 2018
- In repealing the European
Communities
Act 1972, the European Union (Withdrawal) Act 2018 ("the Withdrawal Act 2018") provided in
general
terms for the application of the same rules and laws on the day after Brexit as on the day before.
- Section 2(1) provides that, subject to section 5 and schedule 1, EU-derived domestic legislation, as it had effect in domestic law immediately before the implementation period ("IP")
completion
day (31 December 2020),
continues
to have effect in domestic law on and after that day. The Habitats Regulations 2017 fall under section 2(1).
- Section 4 of the Withdrawal Act 2018 provides:
4 (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…
(b) arise under an EU directive… 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).
- Section 5(2) provides for the principle of the supremacy of EU law to
continue
to apply on or after IP
completion
day so far as relevant to the interpretation, disapplication or quashing of any enactment or rule of law passed or made before. The
continued
application of EU principles in interpreting retained domestic and EU
case
law is addressed in section 6(3). Section 6(7) defines retained
general
principles of EU law as "the
general
principles of EU law, as they have effect in EU law immediately before IP
completion
day", subject to the provisions set out in that section. In
combination
sections 6(3) and 6(7) in relation to retained
case
law preserve the effect of the pre-Brexit
case-law
of the
CJEU
in relation to the interpretation of EU law.
Habitats Regulations 2017
- The Habitats Regulations 2017
continue
in English law under section 2(1) of the Withdrawal Act 2018 as EU-derived domestic legislation.
- The Habitats Regulations 2017 provide that the Habitats Directive is to be
construed
for the purposes of the regulations as if references to a Member State included a reference to the United Kingdom: reg 3A. The regulations
concern
the effect on a European site, which as defined in regulation 8 does not include a Ramsar site.
- Regulation 9(1) provides that the Secretary of State, the nature
conservation
bodies and a
competent
authority in relation to the marine area must exercise their functions which are relevant to nature
conservation,
including marine
conservation,
so as to secure
compliance
with the requirements of the directives (the Habitats Directive and the new Wild Birds Directive). As regards
competent
authorities, regulation 9(3) provides:
"9 (3) Without prejudice to the preceding provisions, a
competent
authority, in exercising any of its functions, must have regard to the requirements of the Directives so far as they may be affected by the exercise of those functions."
- In Harris v Environment Agency [2022] EWHC 2264 (Admin) Johnson J held that
given
its
context
"have regard to" in section 9(3) meant that the
competent
authority had to discharge those requirements or be in a position to justify departure from them [87].
- Part 6 of the Regulations, "Assessments of plans and projects",
contains
in
chapter
1
general
provisions. Regulation 62(1) refers to the application of the provisions of
chapter
1. It provides that the requirements of the assessment provisions in regulation 63 and 64 apply:
"(a) subject to and in accordance with the provisions of
Chapters
2 to 7, in relation to the matters specified in those provisions; and
(b) subject to regulation 63(7)(
c),
in relation to all other plans and projects not relating to matters specified in
Chapters
2 to 9."
- Regulation 63 is
concerned
with the assessment, inter alia, of the implications for European sites. As far as relevant it reads:
"63(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…
(5) In the light of the
conclusions
of the assessment, and subject to regulation 64, 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."
- Parts 2 to 7 of part 6 of the regulations, referred to in regulation 62(1),
cover
a range of matters - planning permission (part 2), highways and roads (part 3), electricity (part 4), pipelines (part 5), transport and work (part 6), and environmental
controls
(part 7).
- Part 2 of the regulations begins with regulation 70. That regulation makes provision for assessment prior to the
grant
of planning permission:
"70(1) The assessment provisions apply in relation to—
(a)
granting
planning permission on an application under Part 3 of the TCPA 1990 (
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 (right to appeal against planning decisions) in respect of such an application…
- By regulation 70(2), where the assessment provisions apply the
competent
authority may
grant
conditional
permission if it
considers
that the
conditions
would avoid any adverse effects on a European site. Regulation 70(3) adds that where the assessment provisions apply, outline planning permission must not be
granted
unless the
competent
authority is satisfied 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.
- The import of regulation 63 of the Habitats Regulations 2017 was
considered
in R (on the application of Wingfield) v
Canterbury
City
Council
[2019] EWHC 1974 (Admin). There a local resident
challenged
the local planning authority's decision to
grant
approval for reserved matters relating to a mixed-use development. Outline planning permission had been
granted
without a habitats assessment. There were mitigation measures in the environmental statement which included a "Report to inform a Habitats Regulations Assessment". After the permission had been
granted,
the
CJEU
held in
C-323/17,
People Over Wind v
Coillte
Teoranta [2018] PTSR 1668 that mitigation measures were not to be taken into account at the screening stage. In light of that decision the local authority decided to
carry
out an appropriate assessment under regulation 63, which the developer supported. It was satisfactory so the local authority
granted
approval of the reserved matters. Lang J held that an appropriate assessment under regulation 63
could
be
carried
out at the reserved matters stage, drawing on
cases
relating to environment impact assessments (EIA). These established that where the need for an EIA assessment had been overlooked at the outline planning stage it should be
carried
out at the reserved matters stage.
- R (on the application of Barker) v Bromley LBC [2006] UKHL 52 was one of these EIA
cases.
There the Town and
Country
Planning (Environmental Impact Assessment) Regulations 1988 referred only to decisions to
grant
planning permission, but Lord Hope held that the
case
for assessment might become apparent at the reserved matters stage or where further
consideration
was necessary due to a material
change
of
circumstances:
[5]. By failing to provide for these situations, the House of Lords held, the EIA Regulations 1988 failed to implement fully the Environmental Impact Assessment (EIA) Directive 2011/92/EU because the relevant development
consent
might be regarded as multi-staged. Lord Hope said that the
competent
authority may be obliged in some
circumstances
to
carry
out an EIA even after outline planning permission has been
granted,
because:
"24…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…"
- Lang J applied the principle in Barker that it might be said that the need for an appropriate assessment under the Habitats Directive was "overlooked" at outline permission stage in the
case
before her because of the
change
in the law brought about by the
CJEU
judgment in People Over Wind: [70]. Thus, she held, the
Council
could
lawfully
conduct
an appropriate assessment at the reserved matters stage: [71]. After quoting article 6(3) of the Habitats Directive, she added:
"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 [habitats assessment] was required."
- In R (Swire) v
Canterbury
City
Council
[2022] EWHC 390 (Admin), one
ground
of
challenge
was that the local authority's decision to approve the masterplan under
condition
8 of the outline planning permission was unlawful because there was a failure to
comply
with requirements for environmental impact and habitat assessments. Holgate J held that the
ground
failed because it was not irrational for the planning officer to
conclude
that sufficient information on environmental impact and habitats assessments had been provided in respect of
condition
8. In the
course
of his reasoning, Holgate J said this:
"94. In R (Wingfield) v
Canterbury
City
Council
[2019] EWHC 1974 (Admin) 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 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)."
NPPF, paragraph 181 and Ramsar sites
- Ramsar sites are notified to local planning authorities under section 37A of the Wildlife and
Countryside
Act 1981, pursuant to the UK's obligations under the
Convention
on Wetlands of International Importance especially as Waterfowl Habitat. They are not
covered
by the Habitats Regulations 2017.
- Paragraph 181 of the NPPF states:
"181. The following shall be
given
the same protection as habitats sites: (a) Potential Special Protection Areas and possible Special Areas of
Conservation;
(b) Listed or proposed Ramsar sites; and (
c)
Sites identified, or required, as
compensatory
measures for adverse effects on habitats, potential Special Protection Areas, possible Special Areas of
Conservation,
and listed or proposed Ramsar sites."
GROUNDS
OF
CHALLENGE
- The
claimant's
case
in
general
terms is that the effect of additional phosphate loading resulting from its proposed development was not a material
consideration
to the determination of the
conditions
at issue in the
case.
It was legally irrelevant because it fell outside the specific parameters of what the outline planning permission and the reserved matters approval had left over for
consideration
under these
conditions.
The material for the discharge of these
conditions
was satisfactory, and the only thing preventing their discharge was whether an appropriate assessment of the impact of phase 3 of the development on the Ramsar site from additional phosphate loading was required. There was no nexus between the
conditions
in relation to phosphates, even with the
condition
relating to waste water. Nor, on the
claimant's
case,
does the
combination
the Habitats Regulations 2017 and paragraph 181 of NPPF
change
that. The Inspector was wrong in his analysis and
conclusions.
Ground
1: Inspector misconstrued Habitats Regulations 2017
- In broad terms
ground
1 is firstly, that the Inspector wrongly
construed
the Habitats Regulations 2017 and should not have applied regulation 63, as he did, to the discharge of
conditions
on a reserved matters approval. Mr Banner KC
contended
that regulation 70 was the relevant provision, and it is
confined
to planning (including outline planning) permission. The
grant
of approval of reserved matters (as in this
case)
is not a planning permission: R (Fulford Parish
Council)
v
City
of York
Council
[2019] EWCA
Civ
2109, [22], per Lewison LJ. Secondly, Mr Banner submitted, there is no legal basis to produce a result
contrary
to the plain interpretation of the regulations. EU law
could
not be used to produce a
contra
legem interpretation (
citing
Case
C-441/14,
Dansk Industri (DI), acting on behalf of Ajos A/S v Estate of Karsten Eigil Rasmussen, [2016] 3
CMLR
27, [AG68], [32]). Domestic law had no purchase on this aspect of the
case.
- In my view Mr Banner is
correct
that on the face of it the assessment provisions of regulation are
confined
in their application to the planning permission stage and do not extend to the discharge of
conditions.
The regulations are explicit on the application of regulation 63. Under regulation 62(1)(a), regulation 63 is "subject to and in accordance with the provisions of
Chapters
2 to 7", and that language means that regulation 63 is subject to and in accordance with part 2, which includes regulation 70(1). The words of regulation 70(1)
confine
its remit to planning permission, which as a result of regulation 70(3) includes outline planning permission. On its face regulation 70 does not encompass reserved matters or the discharge of
conditions
as in this
case.
The language of regulation 62(1)(b) - "all other plans and projects" – does not take the matter further. The
claimant's
development is a "planning project" - a
chapter
2 planning project under 62(1)(a) - but it is the same project as it was at the time planning permission was
granted,
not an "other project" as in regulation 62(1)(b).
- While on a strict reading of the Habitats Regulations 2017 the assessment provisions of regulation 63 do not
cover
the discharge of
conditions,
in my view they do apply as a result of firstly, article 6(3) of the Habitats Directive, secondly, a purposive interpretation of their provisions and thirdly,
case
law binding on me.
Habitats Directive, article 6(3)
- As we saw, article 6(3) of the Habitats Directive requires that an appropriate assessment should be undertaken before a project is agreed to. In Harris v Environment Agency [2022] EWHC 2264 (Admin) Johnson J applied section 4 of the Withdrawal Act 2018 and held that the Environment Agency had breached article 6(2) of the Habitats Directive by limiting its investigation into the impact of water abstraction licences to only three SSSIs in a special area of
conservation
(SAC) on the Norfolk Broads. Johnson J held that article 6(2)
continued
to have direct effect in domestic law because its obligations had been recognised in
cases
decided prior to Brexit such as Waddenzee: [90], [94].
- Mr Banner
contended
that the Habitats Directive had no status in the UK legal system, except through regulation 9(3) of the Habitats Regulations 2017. The provisions of the European Union (Withdrawal) Act 2018 do not take the argument any further, he submitted, because there is no
CJEU
pre-existing
case
law which interprets the Habitats Directive as imposing a requirement to
conduct
an appropriate assessment at subsequent stages, such as the discharge of
conditions
on a reserved matters approval. He submitted that Harris
concerned
whether the
claimed
obligation under article 6(2) had been recognised by the
court
before Brexit, and it had. By
contrast
there is no
CJEU
or domestic
case
preceding exit day which supports the view that article 6(3) of the Habitats Directive
can
be relied upon to impose a requirement for an appropriate assessment at the discharge of
conditions
stage. Unlike Harris section 4(2)(b) of the Withdrawal Act 2018 is not engaged in this
case
given
the absence of relevant pre-exit
case-law.
- 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). Johnson J explained in Harris that the requirements of article 6(3) were accepted as binding by the
CJEU
in Waddenzee: [90]. Articles 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)".
-
Consequently,
the requirements of article 6(3) of the Habitats Directive remain part of UK law. That article requires that the
competent
authorities should not agree a project until an appropriate assessment has been undertaken and it shows that it will not adversely affect the integrity of a site. A planning
consent
is part of agreeing a project when it is necessary to implement a development. In this
case
the discharge of pre-
commencement
conditions
was a necessary step in the implementation of the development. An appropriate assessment had not been undertaken up to that point, so
consequently
the Inspector determined that he
could
not discharge the
conditions
prior to one being undertaken. His
conclusion
was
consistent
with article 6(3) of the Habitats Directive.
Purposive interpretation
- Secondly, the Habitats Regulations 2017 demand a purposive interpretation so that the appropriate assessment provisions of regulation 63 apply to a subsequent
consent
stage including reserved matters applications and the discharge of
conditions.
A broad and purposive interpretation of the regulations flows from the strict precautionary approach which the
CJEU
has adopted to the assessment provisions of the Habitats Directive, as explained in the passage quoted earlier from Sir Keith Lindblom SPT's judgment in R (on the application of Wyatt) v Fareham BC [2022] EWCA
Civ
983. The
CJEU
has adopted the purposive approach in other
cases
as well such as
Case
C-323/17,
People Over Wind v
Coillte
Teoranta [2018] Env. L.R. 31, [37]. As Lang J observed in the Wingfield
case
[2019] EWHC 1974 (Admin), "the HRA regime is focused on ensuring the avoidance of harm to the integrity of protected sites": [72].
- Mr Banner accepted that the precautionary principle is well-established in EU law and applies to the interpretation of the Habitats Directive. However, he submitted that regulation 70(3) of the Habitats Regulations 2017 already embraces the precautionary principle by requiring an assessment at the outline stage to
consider
the effect on any European site "whether before or after obtaining approval of any reserved matters." Regulation 70(3) answers the assertion that his
construction
would open up a lacuna in the scheme of habitats assessment. Mr Banner
contended
that the issue is about the timing not the scope of an appropriate assessment. On his
case
the scheme of habitats protection in the UK
context
is for the front-loading of the appropriate assessment, in other words at the permission or outline permission stage. That ensures that habitats
considerations
are
considered
at the earliest possible point.
- Adopting Mr Banner's submissions would open up a lacuna in habitats assessment leading to the possibility that, as here, development would proceed without an assessment being undertaken - the possibility when negative environmental effects were only ascertained only after the first stage in a multi-stage
consent
process. On Mr Banner's
case,
although no appropriate assessment had been undertaken, it was now too late for that to occur. In this regard I accept the Secretary of State's submission that the argument for an habitats assessment at the subsequent
consent
stage is stronger in the
context
of the Habitats Regulations 2017 than in the EIA
context
because they impose a prohibition on
granting
consent
unless an appropriate assessment is made, as opposed to the EIA Directive which merely lays down an environmental assessment procedure without prescribing outcomes.
- A purposive interpretation of the Habitats Regulations 2017 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
[2019] 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, quoted earlier in the judgment. 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.
- Mr Banner
cited
R (Fulford Parish
Council)
v
City
of York
Council
[2019] EWCA
Civ
2109 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.
I accept the Secretary of State's submission that regulation 70(3)
can
be read as requiring an assessment at that stage in
circumstances
where it might otherwise be argued that it is too early in the scheme's development for an appropriate assessment to take place. It is in that respect an extending provision, not a restrictive one.
Crucially,
it is silent as to what should happen at the reserved matters or
condition
discharge stage and does not prohibit an appropriate assessment at those points.
The
caselaw
- Mr Banner submitted that there was no
caselaw
directly in point about refusing to discharge
conditions
on a planning permission in the absence of a negative appropriate assessment. R (Barker) v Bromley LBC [2006] UKHL 52 was an EIA
Case,
on a differently worded text than in the Habitats Directive and with a differently structured approval process. R (Wingfield) v
Canterbury
City
Council
[2019] EWHC 1974 (Admin) involved a different situation, where following the
CJEU
case
the local authority voluntarily undertook an appropriate assessment under the Habitats Regulations 2017, supported by the developer, in association with the
grant
of reserved matters. Even if Lang J had decided that an appropriate assessment was legally required at the reserved matters stage that was obiter. Nothing was said about a requirement to subject
conditions
attached to a reserved matters approval to an appropriate assessment. As for R (Swire) v
Canterbury
City
Council
[2022] EWHC 390 (Admin), Mr Banner
contended
that Holgate J was not
considering
whether it was a legal requirement of the Habitats Regulations 2017 to subject further approvals, after the
grant
of planning permission, to an appropriate assessment, as was
clear
from paragraph [94] of his judgment.
- In my view Wingfield and Swire are authority for the proposition that an appropriate assessment
can
apply at the reserved matters or discharge of
condition
stage even if there has been a
grant
of outline planning permission where the subsequent approval is the implementing decision. There is support, as Lang J found in Wingfield, in the
case
law
concerning
the EIA multi-stage
consenting
procedure such as Barker. There, as we saw, Lord Hope recognised that a material
change
in
circumstances
could
require an assessment at the reserved matters stage. It will be recalled that in
Friends
of the Irish Environment Ltd the
CJEU
stated that the meaning of "development
consent"
was relevant to defining the equivalent term "agree" in the Habitats Directive. All this is retained
case
law under the Withdrawal Act 2018
concerning
the interpretation of the Habitats Directive and the Habitats Regulations 2017. That the facts in Wingfield and Swire were different is no basis for undermining the principle they established. The
common
law system would not survive if this were the
case,
since there will always be a variation, even if slight, in the facts of later
cases.
That does not preclude the
continued
application of principle.
Validity of planning permission
- Mr Banner invoked regulation 86(1) of the Habitats Regulations 2017, which states that that part 6,
chapter
2 (with exceptions which are not relevant) is to be
construed
as one with the 1990 Act. Mr Banner
contended
that since in this
case
planning permission had been
granted
under the 1990 Act the principle of development
could
not be disturbed by later events, as the Inspector had wrongly decided. There were, he submitted, a variety of rules in support. In discharging
conditions,
for example, matters falling for
consideration
at an earlier stage
cannot
be revisited: R(Harvey) v Mendip District
Council
[2017] EWCA
Civ
1784, [41], per Sales LJ (with whom McFarlane LJ agreed).
- Mr Banner also invoked the principle that, in approving the details required by a
condition,
the decision-taker must not misuse their functions to achieve indirectly - and without paying
compensation
- what would amount to a revocation or modification of a permission already
given:
Medina Borough
Council
v Proberun Ltd (1991) 61 P &
CR
77, 85, per
Glidewell
LJ. R (Noble Organisation Ltd.) v Thanet District
Council
[2005] EWCA
Civ
782 underlined the point in upholding outline planning permission at the reserved matters stage when (it was said) it had been
granted
in breach of the EIA Regulations. Therefore in this
case
the valid permission had to be
given
all the force in law of a regulation 70
compliant
permission. If that position was to be altered, Mr Banner referred to the provisions enabling planning permission to be revoked, but only on payment of
compensation:
1990 Act, ss.97, 107(1).
- There are difficulties with these submissions. First and foremost, if there is a
conflict
between the obligations imposed on the one hand under the Habitats Directive and Habitats Regulations 2017, and on the other the rights recognised under the 1990 Act these have to be reconciled in accordance with established principle. Prior to the UK's exit from the EU, the Habitats Directive and Habitats Regulations 2017 had supremacy over domestic planning law through the European
Communities
Act. As we have seen, the Withdrawal Act 2018
continues
this position. The 2017 Regulations and Habitats Directive are
given
effect by sections 2 and 4, and the principle of supremacy still applies by virtue of section 5(2).
- In any event, there is no issue of the
continued
validity of the
claimant's
planning permission. Refusal of
consent
for the discharge of
conditions
does not invalidate the permission
granted.
Proberun (1991) 61 P&
CR
77
concerned
local planning authorities not misusing their powers when determining reserved matters applications (or applications to discharge
conditions)
not with situations where there is a specific statutory direction not to
grant
consent
until the assessment provisions are satisfied. Noble [2005] EWCA
Civ
782 was a
challenge
to a planning permission. The position here is different: the
claimant
obtained outline planning permission subject to the law which at the time provided (on a
correct
interpretation) that until there was an appropriate assessment, implementing
consent
would not be
granted.
Conclusion
- The upshot is that the Habitats Directive and Habitats Regulations 2017 mandate that an appropriate assessment be undertaken before a project is
consented.
That is irrespective of whatever stage the process has reached according to UK planning law. The basal fact in this
case
is that neither at the permission, reserved matters, or
conditions
discharge stage has there has been an appropriate assessment. Application of the Habitats Directive and a purposive approach to the interpretation of the Habitats Regulations 2017 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.
Ground
2: NPPF, paragraph 181
- For the
claimant
Mr Banner
contended
that paragraph 181 of the NPPF did not enable the Inspector to take into account
considerations
which were legally irrelevant to those
conditions.
Phosphate
generation
was outside the scope of the
considerations
capable
of being relevant to the discharge of the
conditions
in question relating as they do, as we saw earlier, to tree protection, a
construction
environmental management plan, estate roads and furniture layout,
cycle
and footway
connections,
materials on external surfaces and surface (not foul) water. Material planning
considerations
in this
context
are the material
considerations
defined by each
condition
itself, not
general
material
considerations
like phosphate loading. Mr Banner submitted that policy – in this
case
in the form of paragraph 181 of the NPPF –
could
not
change
that position to make legally relevant what otherwise would be irrelevant, namely, the requirement for a negative appropriate assessment of the wider development. In this regard Mr Banner invoked Aberdeen
City
and Shire Development Planning Authority v Elsick Development
Co
Ltd [2017] UKSC 66.
- In Elsick a planning authority's supplementary planning
guidance
provided that new developments should make a financial
contribution
via a planning obligation towards improvements to the local highway network. That was irrespective of the impact to which the development would
give
rise.
Giving
the judgment of the Supreme
Court,
Lord Hodge held that it was unlawful to make the
grant
of planning permission dependent upon paying money towards infrastructure unconnected to the development: [42]-[43]. Planning permission
cannot
be bought or sold: [44]. Inclusion in the development plan
could
not make such
contributions
a material
consideration
if they were otherwise legally irrelevant. "[T]he policy seeking to impose such an obligation is an irrelevant
consideration
when the planning authority
considers
the application for planning permission": [51].
- 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 2017 to Ramsar sites as provided by the NPPF in
circumstances
where the
Council's
shadow appropriate assessment shows that if the project if permitted it will
cause
harm to the Ramsar site. As Mr Wilcox for the
Council
submitted, 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
3: scope of regulation 63
- Mr Banner submitted that even if regulation 63 applies to the discharge of
conditions,
it ought to be interpreted in such a way that the scope of the appropriate assessment reflects the scope of the
conditions
being
considered.
Thus, for example, in the
context
of an application to discharge a
condition
relating to root protection zones for trees, an appropriate assessment would
concern
any effects on site integrity arising from the range of
choices
the decision-maker has in relation to root protection zones,
given
the permission
granted
(and any
conditions
already discharged). The appropriate assessment would not
consider
the effects of the scheme as a whole on the habitat in question.
- 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 this regard regulation 63 is
consistent
(unsurprisingly) with the Habitats Directive, which the
CJEU
has held requires a full assessment of a project which has not been assessed:
Case
C-254/19,
Friends
of the Irish Environment. (In my view it does not undermine the principle of that decision that a fresh
consent
was involved.) This reading is supported by other
case
law. Thus 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. As Mr Wilcox for the
Council
put it, the thing which is to be the subject of the appropriate assessment is the thing which will be permitted by the authorisation, so that where the decision is the final stage in
granting
authorisation for a development, it is the development which is to be assessed.
CONCLUSION
- For the reasons
given
the
claimant's
case is dismissed.