C. G. Fry & Son Ltd v Secretary of State for Levelling Up, Housing and Communities

Hearing dates: 19 and 20 March 2024

Further written submissions: 10 and 17 June 2024

Approved Judgment

This judgment was handed down remotely at 4:20pm on 28 June 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

The Senior President of Tribunals, Lord Justice Singh and

Introduction

The central question in this case is whether the Conservation of Habitats and Species Regulations 2017 (“the Habitats Regulations”), properly interpreted, required an “appropriate assessment” before a local planning authority decided whether to discharge conditions on the approval of reserved matters, having previously granted outline planning permission, without such an assessment, for a major development of housing on land close to a protected site.

The appellant, C.G. Fry & Son Ltd. (“C.G. Fry”), appeals against the order of Sir Ross Cranston sitting as a judge of the High Court, dated 20 July 2023, dismissing its application under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) for an order to quash the decision of an inspector appointed by the first respondent, the Secretary of State for Levelling Up, Housing and Communities (“the Secretary of State”). The inspector had dismissed C.G. Fry's appeal against the failure of the second respondent, Somerset West and Taunton Council, now Somerset Council (“the council”), to discharge conditions attached to a planning permission for a mixed use development including 650 dwellings and commercial and community uses, a primary school and associated infrastructure on land at Jurston Farm, near Wellington.

The site of the proposed development is in the catchment area of the River Tone, where there is a risk that new development will generate phosphates in waste water and surface water entering the river, with consequent effects on the Somerset Levels and Moors Ramsar Site. In the absence of an “appropriate assessment” under the Habitats Regulations, the council, and on appeal the inspector, refused to discharge several conditions on an approval of reserved matters in view of the effects the development was likely to have on the Ramsar site.

If the conditions in question were discharged, the construction of Phase 3 of the development would become lawful. No appropriate assessment under regulation 63 had been undertaken when outline planning permission was granted, or subsequently at the reserved matters stage. After reserved matters had been approved for Phase 3, subject to conditions including pre-commencement conditions, Natural England issued an advice note identifying the potential adverse effects of development upon the integrity of the Ramsar site. C.G. Fry does not dispute that if the project had been subject to an appropriate assessment the assessment would have confirmed the likelihood of such effects, but maintains that the council should nevertheless have discharged the outstanding conditions because the question of harm to the Ramsar site had arisen too late in the course of decision-making on the project for an appropriate assessment to be required. The Secretary of State and the council contend that the scheme of the habitats legislation was designed to avoid such harm, and, properly interpreted, the relevant provisions of the Habitats Regulations required an appropriate assessment at this stage.

The judge rejected the challenge to the inspector's decision on all three grounds. However, he granted permission to appeal to this court, and also a “leapfrog” certificate to apply to the Supreme Court for permission to appeal directly to that court. That application was refused on 29 August 2023.

By an order dated 20 October 2023, Dingemans L.J. permitted the Home Builders Federation (“the HBF”) and the Land, Planning and Development Federation (“the LPDF”) to intervene in the appeal, by written submissions.

In his counsel's skeleton argument for this appeal (at paragraph 3(1)) the Secretary of State acknowledges that “nutrient neutrality is causing difficulties in housing delivery”, and that in his view “the law as it stands is a problem – in effect holding up the supply of new housing”. This, he says, is “the result of EU-derived law, and … will take legislation to fix”. He confirms that “[the] Government remains committed to addressing the problem of nutrient neutrality”, but says he is “nonetheless under an obligation as a Minister of the Crown to ensure that the law as it stands is interpreted and applied correctly”.

As the judge in the court below reminded himself (in paragraph 4 of his judgment), “[it] is on legal grounds that the case was argued and must be decided”, and “[it] is for others to resolve the significant public policy issues underlying this claim”. We agree. In a democracy governed by the rule of law the courts exceed their proper role if they venture into the realms of politics and policy. Our task is simply to uphold the law as it is.

The main issues in the appeal

Three main issues arise in the appeal. They correspond to the grounds in the section 288 application. The first issue is whether the judge was wrong to hold that regulation 63 of the Habitats Regulations applied at the discharge of conditions stage (ground 1 in the appellant's notice). The second is whether he erred in holding that the policy in paragraph 181 of the National Planning Policy Framework (“the NPPF”), which has the effect of applying equivalent protection to Ramsar sites, was a material consideration (ground 2). And the third is whether in any event he was wrong to hold that the scope of an appropriate assessment in these circumstances was limited to the matters affected by the conditions for discharge, rather than the development itself (ground 3). The first and third issues are best dealt with together, and before the second.

Ramsar sites

Ramsar sites are designated under paragraph 1 of Article 2 of the Convention of Wetlands of International Importance especially as Waterfowl Habitat (“the Ramsar Convention”) of 2 February 1971, and in England, under section 37A of the Wildlife and Countryside Act 1981. They are not protected by the Habitats Regulations, but under national planning policy in the NPPF they have, since March 2012, enjoyed equivalent protection to sites designated under the habitats legislation. In the NPPF issued in July 2021 and current at the time of the challenged decision, paragraph 181 stated:

“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

The council granted outline planning permission for the proposed development, subject to 19 conditions, on 22 December 2015. It was envisaged that the development would come forward in eight phases. Condition 4, which required that before any reserved matters approval “details of a site-wide surface water strategy” must be agreed by the council, was discharged on 5 December 2016. In June 2020 reserved matters approval was granted for Phase 3, comprising 190 dwellings. Ten conditions were imposed on that approval, relating, among other things, to tree protection (condition 3); “details of the surface water drainage scheme based on sustainable drainage principles” (condition 4); a Construction Environment Management Plan (condition 5); infrastructure details (condition 6); a cycleway and footpath network (condition 7); and details of the material to be used at damp-proof course level (condition 10). Conditions 3, 4 and 5 were pre-commencement conditions.

Natural England's advice note of 17 August 2020

On 17 August 2020 Natural England published an advice note for development with possible effects on the Somerset Levels and Moors Ramsar Site. The advice note confirmed that in the light of the judgment of the Court of Justice of the European Union (“the CJEU”) in Cooperatie Mobilisation for the Environment UA, Vereniging Leefmilieu v College van Gedeputeerde Staten van Limberg (C-293/17) [2019] Env. L.R. (“ Dutch Nitrogen”), given in November 2018, plans and projects resulting in increased nutrient loads that might have an effect on Special Areas of Conservation and Special Protection Areas designated under the Habitats Regulations, and sites designated under the Ramsar Convention, should be given greater scrutiny. Natural England acknowledged that the Somerset Levels and Moors Ramsar Site was at risk from eutrophication caused by...