C G Fry & Son Limited v Secretary of State for Levelling Up Housing and Communities & Anor
[2023] EWHC 1622 (Admin)
CG Fry & Son Limited v Secretary of State for Levelling Up, Housing and Communities & Anor
28 June 2024
[2024] EWCA Civ 730
Court of Appeal
A housing development near a protected wetland faced delays because of rules about protecting nature. The court decided that the rules requiring an environmental assessment apply even after the initial permission, as long as the later decision is the final go-ahead for construction. The rules apply to this wetland even though it's not under the strictest protection.
Key Facts
- •C.G. Fry & Son Ltd. appealed a High Court decision dismissing its application to quash an inspector's decision refusing to discharge conditions on a planning permission for a major housing development.
- •The development was near a Ramsar site (Somerset Levels and Moors), and phosphate runoff was a concern.
- •No appropriate assessment under the Habitats Regulations 2017 had been done at the outline planning permission stage or the reserved matters stage.
- •Natural England advised that an appropriate assessment was needed before discharging conditions.
- •The central question was whether the Habitats Regulations required an appropriate assessment before discharging conditions on reserved matters approval.
- •The Secretary of State acknowledged that nutrient neutrality regulations were hindering housing delivery.
Legal Principles
Precautionary principle in Habitats Directive Article 6(3) and Habitats Regulations requires high standard of investigation to avoid harm to protected sites.
Article 6(3) Habitats Directive, Regulation 63 Habitats Regulations, R. (on the application of Wyatt) v Fareham Borough Council [2022] EWCA Civ 983, Waddenzee, Sweetman, People Over Wind
Interpretation of domestic legislation should be purposive, considering context and purpose, not just literal meaning.
UBS AG v Revenue and Customs Commissioners [2016] UKSC 13, Uber BV v Aslam, R (PACCAR Inc) v Competition Appeal Tribunal
Directives are binding as to the result, but Member States choose implementation methods. Direct effect vs. interpretive obligation.
Article 288 TFEU, Van Duyn v Home Office, Pubblico Ministero v Ratti, Von Colson, Marleasing, Dansk Industri v Rasmussen
In multi-stage consents, appropriate assessment under Habitats Regulations can be required at later stages (reserved matters or discharge of conditions) if that stage is the 'implementing decision'.
R. (on the application of Wingfield) v Canterbury City Council, R. (on the application of Swire) v Canterbury City Council, No Adastral New Town Limited v Suffolk Coastal DC, Inter-Environnement Wallonie, Friends of the Irish Environment
National planning policy (NPPF) can make environmental considerations material, even for sites (Ramsar) not directly protected by Habitats Regulations.
Paragraph 181 NPPF, Aberdeen City v Elsick Development Co. Ltd., R. (on the application of Wright) v Resilient Energy Severndale Ltd.
Outcomes
Appeal dismissed.
The court found that the Habitats Regulations, properly interpreted, did require an appropriate assessment before discharging conditions, as this was the 'implementing decision' authorizing the development. The NPPF policy providing equivalent protection for Ramsar sites also made the environmental impact a material consideration.
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