Policy Parity Is Not Legal Parity: Appropriate Assessment at the Discharge Stage for European Sites, but NPPF Ramsar Policy Cannot Override Vested Outline Permissions

Policy Parity Is Not Legal Parity: Appropriate Assessment at the Discharge Stage for European Sites, but NPPF Ramsar Policy Cannot Override Vested Outline Permissions

Introduction

This Supreme Court judgment addresses a collision point at the intersection of environmental protection and development control. The case arises from a large residential-led scheme at Jurston Farm, near Wellington, within the hydrological catchment of the Somerset Levels and Moors Ramsar Site. It engages two questions:

  • Issue 1: Whether, on a proper interpretation of the Conservation of Habitats and Species Regulations 2017 (the Habitats Regulations), an “appropriate assessment” (AA) is required before the local planning authority decides to discharge conditions tied to the approval of reserved matters under an outline planning permission.
  • Issue 2: Whether Government policy in the National Planning Policy Framework (NPPF) treating Ramsar sites as if they were “habitats sites” can lawfully be used to block the discharge of reserved-matter conditions where outline permission and reserved-matter approval have already been granted, particularly in light of Natural England’s 2020 nutrient neutrality advice.

The developer, C G Fry & Son Ltd, obtained outline planning permission in 2015 for a phased scheme including 650 homes. Reserved matters for Phase 3 (190 homes) were approved in 2020 subject to several conditions (including pre-commencement conditions) for matters such as tree protection and surface water drainage. In 2020, Natural England issued new scientific advice (prompted by the CJEU’s Dutch Nitrogen decision) recommending Habitats Regulations assessment for developments causing additional nutrient loading in sensitive catchments, and endorsing a “nutrient neutrality” approach. Relying on NPPF policy then in paragraph 181 (now 194), the Council withheld approvals sought in 2021 to discharge the Phase 3 conditions, contending that an AA would be required were this a European site.

The Inspector dismissed the developer’s appeal. The High Court and Court of Appeal upheld the Inspector. The Supreme Court, per Lord Sales (with whom Lord Reed, Lord Hamblen, Lord Stephens and Lady Simler agreed), partially allowed the appeal: it affirmed the Court of Appeal on Issue 1 but overturned it on Issue 2.

Summary of the Judgment

  • Issue 1 (Habitats Regulations): Regulation 63 is a general provision. Read purposively, and applying ordinary domestic principles of statutory interpretation, it does apply at later stages in a multi-stage planning process. Thus an appropriate assessment may be required before granting reserved-matter approvals or discharging conditions where that decision is the operative “authorisation” enabling the development to proceed and is likely to have a significant effect on a European site. The appeal on Issue 1 was dismissed.
  • Issue 2 (NPPF and Ramsar): While national policy is a material consideration when granting planning permission, it cannot override or dilute rights conferred by an existing planning permission. Ramsar sites are protected by policy, not the Habitats Regulations. The NPPF’s parity statement (giving Ramsar sites “the same protection” as habitats sites) does not convert policy into a legislative constraint at the discharge-of-conditions stage where outline permission and reserved matters approval already exist. Authorities cannot use such policy to import a new, extraneous requirement (such as nutrient neutrality) into the discharge of conditions that were framed for different purposes. The appeal on Issue 2 was therefore allowed.

Analysis

Precedents Cited and Their Influence

  • EU/CJEU jurisprudence on Article 6(3) of the Habitats Directive:
    • Waddenzee (C-127/02): Embeds the precautionary principle and high investigative standards; AA must remove reasonable scientific doubt.
    • Sweetman (C-258/11) and People over Wind (C-323/17): The AA must contain complete, precise, and definitive findings capable of dispelling reasonable scientific doubt.
    • Holohan (C-461/17): The AA must consider all aspects of the plan/project affecting conservation objectives in light of best scientific knowledge.
    • Dutch Nitrogen (Joined Cases C-293/17, C-294/17): Confirms integration of the precautionary principle; only authorise where integrity will not be adversely affected.
    • Inter-Environnement Wallonie (C-411/17) and Friends of the Irish Environment (C-254/19): The AA must precede “agreement,” and where consent is multi-stage the AA should occur as soon as effects are sufficiently identifiable; “development consent” is the decision entitling the developer to proceed.
    • Commission v UK (C-508/03) and Barker (C-290/03): For EIA, in multi-stage consents, assessment may be required at either stage depending on when impacts are identifiable. This analogy supports multi-stage HRA logic, while recognising HRA’s end-result focus on site integrity.
  • Domestic authorities on interpretation and planning:
    • UBS [2016] UKSC 13; Uber [2021] UKSC 5; PACCAR [2023] UKSC 28: Statutory construction is purposive; purpose and scheme orient meaning.
    • No Adastral New Town [2015] EWCA Civ 88; Wingfield [2019] EWHC 1974; Swire [2022] EWHC 390: HRA compliance may occur at a later, implementing stage; AA is not confined to outline grant, provided it precedes the operative authorisation and secures the end result.
    • DB Symmetry [2022] UKSC 33: Conditions are construed objectively in context; their scope limits what can be required at discharge.
    • Elsick [2017] UKSC 66: National policy is a material consideration at the decision to grant permission.
    • Wright v Forest of Dean [2019] UKSC 53: Policy cannot alter the operation of legislation; relevant here to the primacy of the planning code once permission is granted.
    • Kingsway Investments [1971] AC 72; Camden LBC v SoS [1993] JPL 466; Redrow [2004] EWCA Civ 1375; Proberun (1990) 61 P&CR 77; Paul Newman New Homes [2021] EWCA Civ 15; Shemara (1967) 18 P&CR 520; Thirkwell (1978) JPL 844; Ex p Chieveley [1999] PLCR 51: Once outline permission is granted, the authority cannot revisit matters decided in principle; approval/discharge decisions must stay within the four corners of the conditions, and broader policy shifts cannot be used to circumvent the permission without deploying statutory revocation/modification powers (with compensation).
    • Whiteside [2023] EWHC 3289: Distinguished; concerned coherence within an existing permission, not importing new policy purposes into an unrelated condition.

Legal Reasoning

Issue 1: Regulation 63 applies at later stages in multi‑stage consents

The Supreme Court endorsed the Court of Appeal’s purposive reading of the Habitats Regulations. Regulations 63 and 64 are “General provisions for protection of European sites,” framed in broad terms. Regulation 63(1) obliges a competent authority, before “deciding to undertake, or give any consent, permission or other authorisation,” to make an AA where the plan/project is likely to have a significant effect on a European site and is not directly connected with site management. The phrase “other authorisation” is deliberately wide and naturally encompasses later decision points—such as approving reserved matters or discharging conditions—where those decisions function as the operative authorisation enabling the development to proceed.

Contrary to the appellant’s reliance on regulation 62 and the Chapter 2 planning provisions (including regulation 70), the Court held that regulation 70(1) positively confirms the application of the assessment provisions when granting planning permission, but does not negatively confine the assessment provisions to that stage. The language and structure of regulation 62(1)—notably its reference to the “requirements” of the assessment provisions and its stipulation that Chapter 2 applies only “in relation to the matters specified”—does not displace the general, free-standing operation of regulation 63 where an “authorisation” is being given that would allow the project to proceed.

This approach is faithful to the purpose of the Habitats Directive and Regulations, and to the precautionary principle. To construe the regime as precluding an AA at a later stage would thwart the protective purpose where, for example, earlier assessment was omitted by oversight or where new scientific information emerges—as here with Natural England’s phosphate advice postdating the 2015 outline permission. The Court aligned its reasoning with No Adastral New Town, Wingfield and Swire, while making clear it was unnecessary to decide whether there is any general duty to assess at the earliest possible stage.

Issue 2: NPPF Ramsar policy cannot override the legal effect of an existing outline permission and reserved matters approval

The Court drew a bright-line distinction between:

  • Policy as a material consideration at the point of granting permission (including outline permission), or varying statutory timing conditions under section 92(4)–(6), where reliance on NPPF policy is orthodox and proper; and
  • Policy being used to cut down or defeat vested planning rights after permission has been granted, which is impermissible absent use of the statutory revocation/modification regime (and consequent compensation under section 107 TCPA 1990).

An outline planning permission is itself a grant of planning permission that confers legal rights subject to the expressed conditions. Those conditions, objectively construed in context (DB Symmetry), circumscribe what may lawfully be required at the reserved-matters/condition discharge stage. Decision-makers cannot import fresh, unrelated policy objectives into those conditions. Here, conditions about tree protection, sustainable drainage, and construction management could not lawfully be used as vehicles to impose a new requirement for nutrient neutrality or to compel an AA modelled on regulation 63 by reference to NPPF paragraph 181 (now 194) and the Natural England advice.

Crucially, Ramsar sites are protected by policy, not by the Habitats Regulations. The NPPF cannot “convert” policy parity into legal parity with European sites. As the Court put it, rights given by the planning legislation “cannot be overridden or diluted by general policies laid down by central government.” If a planning authority considers that new policy and science demand a different environmental outcome, its lawful options include seeking to revoke or modify the existing permission (with compensation), or securing desired outcomes in a new permission—not refusing to discharge conditions for reasons extraneous to those conditions. The Court distinguished Whiteside, which concerned internal coherence between conditions within the same permission, not the introduction of new policy aims at the discharge stage.

Impact

For planning authorities

  • European sites: Where a later-stage decision (reserved matters approval or discharge of conditions) is the operative authorisation, regulation 63 can require an AA at that stage if the project is likely to have significant effects. Authorities must ensure that the AA precedes the grant of the operative authorisation and meets the “no reasonable scientific doubt” standard.
  • Ramsar sites: NPPF policy cannot transform the discharge of a condition about, for example, tree protection or materials into an occasion to impose nutrient neutrality or to replicate regulation 63 duties. Decision-making must remain tethered to the scope and purpose of the condition. If the authority seeks to change course after permission is granted, it must use the statutory revocation/modification route and accept the compensation consequences.
  • Front-loading environmental control: Authorities who wish to secure nutrient neutrality or similar outcomes for Ramsar sites should build the necessary requirements expressly into the outline permission (or inform refusal) by conditions and obligations that are germane to the development impacts at that earlier stage.

For developers

  • Security of vested rights: Once outline permission is granted, rights crystallise subject only to the stated conditions. Authorities cannot lawfully refuse to discharge those conditions by importing extraneous policy objectives that were not part of the permission’s conditional framework.
  • Expect AAs for European sites at later stages: Where the project affects a European site, be prepared for regulation 63 AAs at reserved-matter/discharge stages, especially if there is new science or earlier assessment was incomplete.
  • Drafting and negotiation: Ensure conditions are precisely framed; resist wording that could be read to imply broader environmental vetoes at discharge. Where appropriate, deal expressly with nutrient issues at the outline stage.

For environmental bodies and NGOs

  • European sites: The ruling consolidates the ability to require AAs at the operative stage, ensuring precautionary control is not lost in multi-stage consents.
  • Ramsar sites: The decision exposes a policy–law gap. Policy parity in the NPPF does not create legal parity with habitats sites once permission is granted. Any move to achieve true equivalence for Ramsar sites would require legislative provision or appropriately crafted conditions/obligations at the permission-granting stage.

Systemic implications

  • Multi-stage consent practice: The Court reaffirms that the HRA regime focuses on outcomes, not timing for its own sake, and can operate effectively at later stages. Conversely, the planning code protects vested permissions from being undermined by subsequent policy developments.
  • Need for clarity at outline stage: Authorities should anticipate sensitive-site risks and structure conditions/obligations to capture them at the point of granting permission where Ramsar impacts are in play; otherwise, leverage at the discharge stage will be limited to the confines of the condition.

Complex Concepts Simplified

  • Outline planning permission: A planning permission that approves the principle of development while reserving certain details (the “reserved matters”) for later approval. It creates vested rights, subject to those reserved matters and conditions.
  • Reserved matters: Specific details (such as layout, scale, appearance, landscaping, access) that must be approved after outline permission is granted. Approval can be subject to further “sub-conditions.”
  • Discharge of conditions: The process where the authority confirms that the requirements of a planning condition have been met, allowing development to proceed or continue.
  • Appropriate Assessment (AA): The formal assessment required by regulation 63 of the Habitats Regulations for plans/projects likely to have significant effects on a European site. The authority may only approve if it is certain the site’s integrity will not be adversely affected.
  • European site vs Ramsar site: European sites (SACs, SPAs, etc.) are protected by the Habitats Regulations. Ramsar sites are designated under the Ramsar Convention and protected in planning by national policy (NPPF), not by the Habitats Regulations themselves.
  • Precautionary principle: A protective approach requiring that, where there is scientific uncertainty about harm to protected sites, authorisation is withheld unless there is no reasonable scientific doubt as to the absence of adverse effects.
  • Material consideration: A factor that planning authorities must have regard to when deciding applications for planning permission. Policy is typically a material consideration at the grant stage, but cannot rewrite or undermine vested permissions thereafter.
  • Nutrient neutrality: A mitigation concept aiming to ensure that development does not increase nutrient (phosphate/nitrate) loads entering sensitive water environments.

Conclusion

This is a landmark recalibration of two intersecting legal regimes. First, the Supreme Court confirms that regulation 63 of the Habitats Regulations can bite at the discharge-of-conditions and reserved-matters stages in a multi-stage consent, where those decisions are the operative authorisations for development affecting European sites. The protective purpose of the Directive and Regulations, underpinned by the precautionary principle, is fully preserved.

Second—and critically for Ramsar sites—the Court draws a constitutional line: national policy cannot override vested planning rights conferred by an existing permission. The NPPF’s policy of treating Ramsar sites with “the same protection as habitats sites” guides decision-making at the grant stage, but cannot be used later to import new environmental vetoes into the discharge of conditions that were framed for different purposes. If a change in policy or scientific understanding demands a different outcome post-permission, the planning code provides the correct mechanisms: revocation or modification (with compensation), or the imposition of new controls in subsequent permissions.

Key takeaways are therefore twofold. For European sites, expect robust AA requirements to persist, including at later stages where appropriate. For Ramsar sites, the lawful route to achieving nutrient neutrality in existing schemes is through the conditions and obligations set when permission is granted, not by re-purposing later condition discharges. The judgment clarifies doctrine, strengthens legal certainty for developers with existing permissions, and highlights a policy–law gap for Ramsar protection that only legislation or careful conditioning at the grant stage can fill.

Case Details

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