A developer with outline planning permission for 650 dwellings challenged whether phosphate impacts on a Ramsar site could block discharge of conditions. The Supreme Court held that regulation 63 of the Habitats Regulations requires appropriate assessment at later planning stages, but national planning policy (NPPF) cannot override rights conferred by an existing outline planning permission.
Background
C G Fry & Son Limited (‘the appellant’) sought to develop a mixed-use site at Jurston Farm, near Wellington, including 650 dwellings. The site lies within the catchment area of the River Tone, which feeds into the Somerset Levels and Moors Ramsar Site. Outline planning permission was granted by Somerset West and Taunton Council (‘the Council’) on 22 December 2015, subject to 19 conditions. Reserved matters approval for Phase 3 (190 dwellings) was granted in June 2020, subject to further conditions.
On 17 August 2020, Natural England published advice stating that, following the CJEU’s judgment in Dutch Nitrogen, greater scrutiny should be given to plans and projects generating nutrient loads affecting designated sites, including Ramsar sites. Natural England advised that an appropriate assessment under the Habitats Regulations should be undertaken before determining planning applications that might generate additional phosphates within the Ramsar catchment.
When the appellant applied to discharge conditions attached to the reserved matters approval in June 2021, the Council withheld approval, relying on paragraph 181 of the National Planning Policy Framework (NPPF), which states that Ramsar sites should be given the same protection as habitats sites under the Habitats Regulations. The inspector appointed by the Secretary of State dismissed the appellant’s appeal. Both the High Court and Court of Appeal upheld the inspector’s decision.
The Issues
Issue 1: Interpretation of the Habitats Regulations
Whether regulation 63 of the Conservation of Habitats and Species Regulations 2017 requires an appropriate assessment to be carried out before a local planning authority decides to discharge conditions attached to a reserved matters approval in a multi-stage planning process, or whether the assessment obligation arises only at the point of granting planning permission (as specified in regulation 70).
Issue 2: The effect of national planning policy on existing planning permissions
Whether paragraph 181 of the NPPF (requiring Ramsar sites to be given the same protection as European sites) could operate as a material consideration at the stage of discharging conditions attached to reserved matters approval, thereby effectively importing a requirement for an appropriate assessment in respect of a site not covered by the Habitats Regulations, notwithstanding that outline planning permission had already been granted.
The Court’s Reasoning
Issue 1: Regulation 63 applies at later stages of a multi-stage planning process
Lord Sales, delivering the unanimous judgment, endorsed the Court of Appeal’s interpretation of regulation 63. Applying ordinary domestic principles of statutory interpretation, including the purposive approach, the Supreme Court held that regulation 63 uses deliberately broad language and is not confined to the grant of planning permission. Lord Sales stated:
Regulations 63 and 64 are grouped together under the heading ‘General provisions for protection of European sites and European offshore marine sites’ and they are expressed in clear, self-contained terms setting out relevant powers and obligations which arise under them. That heading indicates that they are to have general effect in relation to the relevant sites.
The words in regulation 63(1) — ‘before deciding to undertake, or give any consent, permission or other authorisation for’ a relevant plan or project — naturally cover a decision to discharge conditions attached to a reserved matters approval which would authorise the developer to proceed. Lord Sales explained:
Regulation 70(1) states positively, in the section of the Regulations dealing with planning permission, that the assessment provisions apply in relation to the grant of planning permission. But it does not say, in negative terms, that they do not apply in relation to any other stage of the planning process where it may be appropriate for them to operate in order to fulfil the purposes of the Habitats Regulations and to respect the precautionary principle.
Lord Sales further noted that the protective purpose of the Habitats Regulations and the precautionary principle would be defeated if the Regulations precluded an appropriate assessment at a later stage of a multi-stage planning process where the planning authority had, for any reason, failed to carry one out at the outline permission stage:
It is clear that the protective purpose of the Habitats Regulations and the precautionary principle would be defeated, rather than promoted and respected, if the Regulations are read as precluding any opportunity for an appropriate assessment to be carried out at a later stage in a multi-stage planning process.
The Court endorsed the reasoning in No Adastral New Town, Wingfield, and Swire, confirming that in a multi-stage consent process there is no ‘agreement to the project’ until all necessary approvals have been given. Importantly, it was unnecessary to resort to principles of EU law or the European Union (Withdrawal) Act 2018 because normal domestic principles of statutory interpretation, including purposive construction, yielded this result.
Issue 2: National policy cannot override rights conferred by outline planning permission
On Issue 2, the Supreme Court departed from the lower courts. Lord Sales held that the judge and the Court of Appeal had erred in treating a statement of policy (paragraph 181 of the NPPF) as having the same status and force as a legal rule set out in legislation (regulation 63 of the Habitats Regulations). They had failed to account for the nature of the rights conferred on the appellant by the grant of outline planning permission.
Lord Sales explained the fundamental change in legal position that occurs when planning permission is granted:
When planning permission is granted there is a fundamental change in the legal position, in that it creates rights under the planning legislation for the developer to develop land in accordance with the permission. Those rights are not made defeasible depending on government policy.
He continued:
Rights given by the planning legislation cannot be overridden or diluted by general policies laid down by central government, whether in the form of the NPPF or otherwise.
Applying this to the multi-stage process, Lord Sales held that the conditions attached to an outline planning permission define and delimit the scope of what a planning authority can require at later stages. A condition requiring approval of, for example, a tree protection scheme is confined to matters fairly related to that subject matter; it does not import a general power to refuse to discharge the condition in order to further some other policy objective. Lord Sales cited Lord Morris in Kingsway Investments (Kent) Ltd v Kent County Council [1971] AC 72 at p 96 and Mummery LJ in Redrow Homes Ltd v First Secretary of State [2005] JPL 502:
The planning authority … must not misuse their functions so as indirectly and without paying compensation to achieve what would amount to a revocation or modification of a permission already given.
The Court held that it was not open to the Council or the inspector to use the conditions attached to the outline planning permission as a vehicle to impose an additional requirement (protection of the Ramsar site) that was outside the scope of those conditions. Unlike the position with European sites (where the Habitats Regulations have direct legal force), the Ramsar site was only protected by national policy. That policy could not override the statutory rights created by the outline planning permission:
It was not open to the Council or the inspector in the present case to use the fact that the outline planning permission was granted subject to conditions requiring approval to be given by the planning authority for certain matters … as a basis to say that, before those sub-conditions were discharged so that the development could proceed, some additional measures to promote a different objective (ie the protection of the Ramsar site) should be taken. The planning legislation gave them no power to do that, unlike the position in relation to a European site, where the Habitats Regulations apply.
Practical Significance
This judgment is significant in two respects. First, it confirms authoritatively that regulation 63 of the Habitats Regulations has a broad general application throughout the multi-stage planning process and is not limited to the point at which planning permission is initially granted. Where a European site may be affected and an appropriate assessment was not conducted (or was inadequate) at the outline permission stage, such an assessment must be carried out before any later decision — including the discharge of conditions — that would authorise the development to proceed. This endorses the approach taken in earlier High Court decisions and reinforces the protective purpose of the Regulations and the precautionary principle.
Second, and of perhaps greater practical impact, the judgment draws a clear distinction between the legal force of the Habitats Regulations (which apply to European sites) and the status of national planning policy in the NPPF (which extends equivalent protection to Ramsar sites as a matter of policy, not law). Once outline planning permission has been granted, the developer acquires rights under the planning legislation which define the scope of what the planning authority can require at subsequent stages. National policy, including the NPPF, cannot override or dilute those rights. If the planning authority wishes to prevent development proceeding on environmental grounds that fall outside the scope of the existing conditions, the proper course is to invoke statutory powers to revoke or modify the permission, which may attract a liability to pay compensation. This has significant implications for the balance between environmental protection and development rights, particularly in relation to Ramsar sites and the application of the Natural England advice on nutrient neutrality.
Verdict: The appeal was dismissed on Issue 1 (the Court of Appeal correctly interpreted regulation 63 of the Habitats Regulations as requiring an appropriate assessment at later stages of a multi-stage planning process, including the discharge of conditions). The appeal was allowed on Issue 2 (paragraph 181 of the NPPF, as national planning policy, could not override the rights conferred by the grant of outline planning permission so as to require an appropriate assessment before discharging conditions in respect of a Ramsar site not covered by the Habitats Regulations).
