Required Appropriate Assessment for Discharging Planning Conditions: CG Fry & Son Ltd v Secretary of State for Levelling Up, Housing and Communities & Anor

Introduction

The case CG Fry & Son Ltd v Secretary of State for Levelling Up, Housing and Communities & Anor ([2024] EWCA Civ 730) addresses a pivotal issue in environmental law and planning permission within England and Wales. The central question revolves around whether the Conservation of Habitats and Species Regulations 2017 ("the Habitats Regulations") necessitates an "appropriate assessment" before a local planning authority can discharge conditions attached to a previously granted outline planning permission for a major housing development near a protected Ramsar site. The appellant, C.G. Fry & Son Ltd., challenges the decision to refuse the discharge without such an assessment, citing procedural and interpretative arguments. This commentary dissects the court's judgment, elucidating the legal principles established and their implications for future planning and environmental assessments.

Summary of the Judgment

The Court of Appeal upheld the High Court's decision dismissing CG Fry's application to quash the inspector's refusal to discharge planning conditions without conducting an appropriate assessment under the Habitats Regulations. The judge found that both the written legislation and relevant case law support the requirement for an appropriate assessment at the stage of discharging conditions, especially when such discharge authorizes development that could adversely affect a protected Ramsar site. The appellant's contention that the assessment was not required at this stage, arguing it was too late in the decision-making process, was rejected. The court emphasized the necessity of adhering to the legislative purpose and the precautionary principle to prevent environmental harm.

Analysis

Precedents Cited

The judgment extensively references both European Union (EU) and domestic case law to substantiate the necessity of appropriate assessments. Key cases include:

Cooperatie Mobilisatie voor de Milieu UA, Vereniging Leefmilieu v College van Gedeputeerde Staten van Limberg (C-293/17) [2019] Env. L.R. ("Dutch Nitrogen")
R. (on the application of Wyatt) v Fareham Borough Council [2022] EWCA Civ 983
Holohan v An Bord Pleanála (C-461/17) [2019] P.T.S.R. 1954
Inter-Environnement Wallonie ASBL v Conseil des Ministres (C-411/17) EU:C:2019:622
Friends of the Irish Environment Ltd. v An Bord Pleanála (C254/19) EU:C:2020:680
R. (on the application of Wingfield) v Canterbury City Council [2019] EWHC 1975 (Admin)
No Adastral New Town Limited v Suffolk Coastal DC [2015] EWCA Civ 88

These precedents collectively reinforce the interpretation that appropriate assessments are integral throughout the stages of planning consent, not solely at the initial permission stage. They emphasize the strict application of the precautionary principle to safeguard protected sites.

Legal Reasoning

The court's legal reasoning is anchored in a purposive interpretation of the Habitats Regulations, ensuring alignment with the legislative intent to prevent environmental degradation. The key points include:

Applicability of Regulation 63: Regulation 63 mandates an appropriate assessment before any consent, permission, or authorization is granted for a plan or project that could significantly affect a protected site. The court interpreted this broadly to include the discharge of planning conditions.
Purposive Interpretation: The judge and the appellate court adopted a purposive approach, interpreting the regulations in light of their purpose to protect habitat integrity, thus extending the requirement for assessments beyond the initial planning permission.
Precautionary Principle: Central to the judgment is the precautionary principle, which dictates that lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental harm.
Multi-Stage Consent Process: In multi-stage planning processes, the "implementing decision"—such as the discharge of reserved conditions—is treated as equivalent to granting planning permission concerning the need for environmental assessments.
Impact of National Planning Policy Framework (NPPF): Paragraph 181 of the NPPF, which accords equivalent protection to Ramsar sites as habitats sites, was deemed a material consideration, further substantiating the need for comprehensive assessments.

This reasoning ensures that environmental protections are integrated throughout the planning process, preventing circumvention of regulatory safeguards through staged permissions.

Impact

The judgment has significant implications for future planning applications involving protected sites. Key impacts include:

Extended Assessment Requirements: Local planning authorities must conduct appropriate assessments not only at the granting of initial planning permission but also at subsequent stages, such as discharging conditions.
Strengthened Environmental Protections: The decision fortifies the legal framework protecting Ramsar sites and similar protected areas, ensuring that environmental integrity is preserved throughout development processes.
Clarification of Legislative Interpretation: It clarifies the scope of habit protections under the Habitats Regulations, setting a precedent for interpreting environmental assessments in multi-stage planning consents.
Influence on Policy and Legislation: The judgment underscores the necessity for coherent policy integration, potentially influencing future legislative amendments to streamline and enforce environmental assessment protocols.

Overall, the decision ensures that environmental considerations retain their importance in the planning process, effectively preventing developments from bypassing assessments through procedural stages.

Complex Concepts Simplified

Appropriate Assessment

An "appropriate assessment" refers to a thorough evaluation required by law to determine whether a proposed development will harm a protected habitat or species. It assesses potential environmental impacts before approval is granted.

Purposive Interpretation

This is a method of legal interpretation where the court considers the purpose behind a law to understand its application. Instead of sticking strictly to the literal meaning of the words, the court interprets the law in a way that furthers its intended objective.

Precautionary Principle

A strategy to cope with possible risks where scientific understanding is yet incomplete. It implies that the lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

Multi-Stage Consent Process

This process involves several stages of approval for a development project. Each stage may require different permissions and assessments, ensuring that environmental considerations are integrated throughout the planning and implementation phases.

Implementing Decision

The final authorization in the planning consent process that allows the development to proceed. It typically follows all previous stages of planning permission and condition discharges, ensuring all assessments have been satisfactorily completed.

Conclusion

The Court of Appeal's decision in CG Fry & Son Ltd v Secretary of State for Levelling Up, Housing and Communities & Anor reinforces the integral role of environmental assessments in the planning permission process. By mandating appropriate assessments at every critical stage, including the discharge of conditions, the judgment upholds the legislative intent to safeguard protected habitats and species effectively. This decision not only clarifies the application of the Habitats Regulations but also strengthens the enforcement of the precautionary principle in environmental law. Stakeholders in the planning and development sectors must heed this ruling to ensure compliance and contribute to the preservation of vital ecological sites. The judgment serves as a crucial precedent, shaping the intersection of environmental protection and urban development in the legal landscape of England and Wales.