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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> C G Fry & Son Ltd v Secretary of State for Levelling Up Housing and Communities & Anor [2023] EWHC 1622 (Admin) (30 June 2023) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2023/1622.html Cite as: [2023] EWHC 1622 (Admin), [2023] WLR(D) 432, [2024] PTSR 184 |
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KING'S BENCH DIVISION
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
sitting as a High Court judge
____________________
C G FRY & SON LIMITED |
Claimant |
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- and – |
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(1) SECRETARY OF STATE FOR LEVELLING UP HOUSING AND COMMUNITIES -and- (2) SOMERSET COUNCIL |
Defendants |
____________________
RICHARD MOULES and NICK GRANT (instructed by Government Legal Department) for the First Defendant
LUKE WILCOX (instructed by Somerset Council Legal Services Department) for the Second Defendant
Hearing dates: 14, 15 June 2023
____________________
Crown Copyright ©
SIR ROSS CRANSTON:
INTRODUCTION
BACKGROUND
Planning permission
Natural England advice note, 2020
"…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."
"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
Secretary of State statement, 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 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
LEGAL FRAMEWORK
Habitats Directive, article 6(3)
"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."
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].
EU law and the Withdrawal Act 2018
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).
Habitats Regulations 2017
"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."
"(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."
"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."
"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…
"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…"
"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."
"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
"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
Ground 1: Inspector misconstrued Habitats Regulations 2017
Habitats Directive, article 6(3)
Purposive interpretation
The caselaw
Validity of planning permission
Conclusion
Ground 2: NPPF, paragraph 181
Ground 3: scope of regulation 63
CONCLUSION