CG Fry & Son Limited v Secretary of State for Levelling Up, Housing and Communities & Anor
[2024] EWCA Civ 730
C G Fry & Son Limited v Secretary of State for Levelling Up Housing and Communities & Anor
30 June 2023
[2023] EWHC 1622 (Admin)
High Court
A housing developer wanted to build houses, but the government said they needed to prove the houses wouldn't harm a protected wetland area first. The developer sued, but the court said the government was right – they had to do that environmental check before building.
Key Facts
- •C G Fry & Son Ltd. (Claimant) sought to discharge conditions on reserved matters approval for phase 3 of a housing development.
- •Somerset Council and the Secretary of State's Inspector refused, citing the lack of an appropriate assessment under the Habitats Regulations 2017 regarding nutrient neutrality impacts on the Somerset Levels and Moors Ramsar Site.
- •The issue centers on phosphate loading from wastewater generated by the development, affecting the Ramsar site's conservation objectives.
- •The claim challenged the Inspector's decision via statutory review under section 288 of the Town and Country Planning Act 1990.
- •The legal challenge concerned the scope and application of the Habitats Regulations 2017 post-Brexit and the interplay with the National Planning Policy Framework (NPPF).
Legal Principles
Appropriate assessment must be undertaken before a project is 'agreed' to, to ensure it won't adversely affect the integrity of a protected site.
Habitats Directive, Article 6(3)
Habitats Regulations 2017 should be interpreted purposively to achieve the Directive's objectives, including a precautionary approach.
CJEU case law and purposive statutory interpretation
Post-Brexit, the Habitats Directive and Regulations retain force through the European Union (Withdrawal) Act 2018, maintaining the principle of supremacy over conflicting domestic law.
European Union (Withdrawal) Act 2018
NPPF paragraph 181 affords Ramsar sites the same protection as European sites under the Habitats Regulations.
NPPF, paragraph 181
In multi-stage consent processes, the final approval stage (reserved matters or discharge of conditions) is when the 'implementing decision' is made, requiring an appropriate assessment at that point.
R (Wingfield) v Canterbury City Council [2019] EWHC 1974 (Admin); R (Swire) v Canterbury City Council [2022] EWHC 390 (Admin)
Outcomes
Claim dismissed.
The court found that an appropriate assessment under the Habitats Regulations 2017 was required before discharging the conditions, based on Article 6(3) of the Habitats Directive, purposive interpretation of the Regulations, and relevant case law. The NPPF's extension of protection to Ramsar sites further supported this decision.
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