C G Fry & Son Ltd v Secretary of State for Levelling Up Housing and Communities
| Jurisdiction | England & Wales |
| Judge | Sir Ross Cranston |
| Judgment Date | 30 June 2023 |
| Neutral Citation | [2023] EWHC 1622 (Admin) |
| Docket Number | Case No: CO/12/2023 |
| Court | King's Bench Division (Administrative Court) |
and
[2023] EWHC 1622 (Admin)
Sir Ross Cranston
sitting as a High Court judge
Case No: CO/12/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Charles Banner KC and Ashley Bowes (instructed by Clarke Willmott LLP) for the Claimant
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
Approved Judgment
This judgment was handed down remotely at 10.30am on 30 th June 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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...
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