Nutrient neutrality must be considered even where outline consent pre-dates Natural England guidance

On 28 June 2024, the Court of Appeal handed down its decision in the case of CG Fry v Secretary of State for Levelling Up, Housing and Communities.

The issue was whether an appropriate assessment was required at reserved matters stage when outline consent had already been granted. The outcome of the decision is to clarify that an appropriate assessment under the Habitats Regulations will be required when a local planning authority “is making the final decision in a sequence authorising the development to proceed.” In circumstances where outline permission is granted, an appropriate assessment can be carried out at the reserved matters approval stage or on discharge of conditions.

Neither outline consent nor reserved matters approval required an appropriate assessment under the Habitats Regulations 2017

Outline planning permission for a multi-phase mixed use scheme was granted by the predecessor of Somerset Council in December 2015. The development site is located near the River Tone, which flows into the Somerset Levels and Moors Ramsar Site, a Ramsar Site being wetlands of international importance designated under the Ramsar Convention.

In June 2020, Somerset Council granted reserved matters for phase 3 of the development, comprising 190 dwellings.

At the time of grant, neither the outline consent, nor the reserved matters approval, required an appropriate assessment of the effects of the project on the protected Ramsar site to be undertaken.

The 2020 Natural England advice note

On 17 August 2020, following the Dutch Nitrogen Case (EUR-Lex - 62017CA0293 - EN - EUR-Lex (europa.eu)), Natural England published an advice note to advise competent authorities that mitigation measures forming part of a Habitats Regulations Assessment must demonstrate no adverse effect ‘beyond reasonable scientific doubt’ and that the benefits of the mitigation measures must be ‘certain at the time of the Assessment’ before consent can be granted. The advice resulted in new development being required to achieve ‘nutrient neutrality’, where the nutrient load created through additional wastewater from development had to be mitigated, either on-site or off-site.

In light of Natural England Guidance, Somerset Council, and on appeal the Secretary of State's Inspector, refused to discharge the pre-commencement conditions of CG Fry’s reserved matters approval on the basis that CG Fry had not undertaken an appropriate assessment.

The grounds of appeal

Following a statutory challenge under section 288 of the Town and Country Planning Act 1990, which was dismissed by the High Court, the Court of Appeal considered the case.

Ground 1- Did the requirement to undertake appropriate assessment under the Habitats Regulations apply when discharging conditions?

Yes. Legislation is to be construed having regard to its context and in light of its purpose. There was nothing in the provisions which excluded the requirement for an appropriate assessment either at reserved matters or discharge of conditions stage if the authorisation is necessary for the project to be lawfully implemented. Regulation 63 of The Conservation of Habitats and Species Regulations 2017 (legislation.gov.uk) allows for an appropriate assessment to be undertaken when the determining authority takes the final decision in a sequence authorising the development to proceed. The discharge of pre-commencement conditions is an imperative step in allowing a developer to proceed with the project and therefore it was right that an appropriate assessment was required at discharge of conditions, if it had not been provided earlier on in the decision-making process.

Ground 2- Was paragraph 181 of the NPPF a material consideration?

Yes. Paragraph 181 of the NPPF specifies that listed or proposed Ramsar sites should be given the same protection as sites protected by the Habitats Regulations. The objective of the policy is to prevent harm to protected sites. In this case there was no dispute that harm would be caused by the development proceeding. The Court of Appeal held that Government Policy (the NPPF) made clear that Ramsar sites should be protected, so clearly it was material that the proposed development would impact the Somerset Levels and Moors and therefore lawful for the Inspector to have taken NPPF policy into account.

Ground 3- Was the scope of the appropriate assessment limited to the subject matter of the conditions to be discharged?

No. The scope of the conditions to be discharged did not have to be connected with the subject matter of the assessment. The obligation in undertaking an appropriate assessment is to assess the implications of the project as a whole, not in part. The fundamental objective of the legislation is to protect important habitats.

Implications

This Judgment is largely confirmation of the status-quo. It is worth noting that, in this case, as with other recent decisions of the Court, the Court took a purposive approach to the interpretation of EU law, notwithstanding our exit from the EU.

This decision will be important in delivering multi-phase sites where no appropriate assessment has been undertaken at outline stage. In such cases a planning authority determining an application may require an appropriate assessment to be undertaken at the discharge of conditions stage where the discharge of such conditions could be construed as an "implementing decision". This is not defined but could potentially include pre-slab or pre-occupation conditions. Developers acquiring such sites will need to factor the possibility of an appropriate assessment being required at these later stages into their timeline. TLT are on hand to assist with due diligence and to provide advice in such cases.

It is not clear yet if CG Fry will seek to appeal this decision, but it will be interesting to see how this progresses in the context of the newly elected Labour government who according to its manifesto, intend to 'implement solutions' to unlock housebuilding in areas affected by nutrient neutrality rules 'without weakening environmental protections'.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at July 2024. Specific advice should be sought for specific cases. For more information see our terms & conditions.