The reach of Conservation of Habitats and Species Regulations 2017 and National Planning Policy Framework for Ramsar sites

The case of C G Fry & Sons Limited v Secretary of State for Housing, Communities and Local Government concerned whether Somerset Council could require an appropriate assessment at the reserved matter stage and whether they could refuse to discharge a condition on the grounds of lack of mitigation of potential impacts on a Ramsar site. 

In this article we explore the key issues the Supreme Court considered to make its decision.

Case facts and appeal history

C G Fry applied for outline planning permission for a mixed use development in 2015 for 650 residential units and  commercial and community uses, a primary school and associated infrastructure and land at Jurston Farm, near Wellington. This was split into eight phases. The development falls within the catchment area for River Tone which feeds into the Ramsar site of the Somerset Levels and Moors. The Somerset levels are also protected as a special protection area under the Conservation of Habitats and Species Regulations 2017 (Habitats Regulations). 

Ramsar sites are protected wetlands, the protection arising from the Ramsar Convention and the Wildlife and Countryside Act 1981 - but not importantly, under the Habitats Regulations. However, the National Planning Policy Framework (NPPF) provides that Ramsar sites should be given the same protection as habitats sites, colloquially known as ‘European sites’.

In June 2020 Somerset Council granted reserved matters approval for the third phase of the development subject to 10 conditions. In August 2020 an advice note containing new scientific evidence was published by Natural England that called for greater scrutiny of plans in special area of conservation, special protection areas and Ramsar sites. This in part arose from the Dutch Nitrogen case heard in the European Court. This called for nutrient neutrality, to reduce nutrient loads impacting those protected areas. As a result of this advice, Somerset Council refused to discharge conditions on the reserved matters application pending an appropriate assessment under the Habitats Regulations. 

In the High Court, which we summarised here, the court found that an appropriate assessment is required before the planning conditions could be discharged. The High Court dismissed the claimant’s argument that the NPPF does not make an irrelevant consideration into a relevant one, focusing instead on the purpose of the policy to protect the Ramsar site. The Court of Appeal agreed. 

What points did the Supreme Court issue?

The Supreme Court considered two key issues: 

1. Whether an appropriate assessment under the Habitats Regulations could be required after the grant of planning permission, for example at reserved matters stage or discharge of condition stage.
2. Whether the NPPF policy requiring that Ramsar sites are given the same protection as European sites would allow a local planning authority to require appropriate assessment, and refuse to issue a decision without one, given the change in scientific advice relating to that NPPF policy.

Relevant legislation and policy

Before setting out the court’s findings, by way of brief summary the key legislation and policy considered was:

• Article 6 of the Conservation of Natural Habitats and of Wild Flora and Fauna 92/43/EEC, known as the 'Habitats Directive':
  
  

  “3. Any plan or project … likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications”.

• The Convention on Wetlands of International Importance Especially as Waterfowl Habitat, known as the 'Ramsar Convention'.
  
  
• Wildlife and Countryside Act 1981, section 37A – not set out in full but which requires domestic notifications to be issued when sites in Great Britain are designated as Ramsar sites.
  
  
• The Conservation of Habitats and Species Regulations 2017 (the Habitat Regulations):
  
  

  “63.—(1) A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which— (a)is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects), and (b)is not directly connected with or necessary to the management of that site, must make an appropriate assessment of the implications of the plan or project for that site in view of that site’s conservation objectives.” “70(3) - Where the assessment provisions apply, outline planning permission must not be granted unless the competent authority is satisfied (whether by reason of the conditions and limitations to which the outline planning permission is to be made subject, or otherwise) that no development likely adversely to affect the integrity of a European site or a European offshore marine site could be carried out under the permission, whether before or after obtaining approval of any reserved matters.”

• Paragraph 181 of the NPPF, now paragraph 194(b):
  
  

  “The following should be given the same protection as habitat sites.. (b) listed or proposed Ramsar sites”

• Habitat sites are defined under the NPPF at annex 2 as “Any site which would be included within the definition of regulation 8 of [the Habitat Regulations] for the purposes of those regulations, including candidate Special Areas of Conservation, Sites of Community Important, Special Areas of Conservation, Special Protection Areas and any relevant Marine Sites”.
  
  
• Section 70(2)(c) of the Town and County Planning Act 1990:
  
  

  “(2)In dealing with an application for planning permission or permission in principle the authority shall have regard to— (a)the provisions of the development plan, so far as material to the application, (aza)a post-examination draft neighbourhood development plan, so far as material to the application, (aa)any considerations relating to the use of the Welsh language, so far as material to the application; (b)any local finance considerations, so far as material to the application, and (c)any other material considerations”.

Issue 1 -  whether an appropriate assessment under the Habitats Regulations could be required post grant of planning permission

On the first ground the court agreed with the secretary of state, focusing on a purposive reading of the legislation to protect the reason the legislation was enacted. Regulation 63 of the Habitat Regulations applies to a wider variety of stages, including at reserved matters and condition discharge. 

The directives were put in place to protect vulnerable wildlife and sites and ensure “careful scrutiny of development proposals likely to have an impact on such habitats with a view to minimising of avoiding such impact” . Appropriate assessments are a tool local planning authorities can use to provide such scrutiny. 

The court disagreed with C G Fry’s submission that appropriate assessments only need to be carried out at the granting of permission stage, finding such an approach ‘unsustainable’. By placing the protective purpose of the regulations at the centre of the scrutiny, the court found that to limit the opportunity for an appropriate assessment to only at permission stage would defeat rather than promote and respect the wildlife. 

The court further held that the  Habitats Regulations deliberately broad language includes a wide variety of scenarios to respect the protective purpose of the legislation. As the Habitat Regulations do not expressly state that appropriate assessments do not apply to other planning stages, Somerset Council was not acting unlawfully in requiring it at the condition discharge stage.

What do the Supreme Court’s findings on Issue 1 mean?

For local authorities and developers, this reinforces that they ought to act cautiously when calling for protective measures for European sites, e.g. special area of conservation or special protection areas), and the judgement means no change to the current approach. 

That is to say, where European sites are involved, appropriate assessment under the Habitats Regulations can continue to be required post grant of planning permission, for example at reserved matters or condition discharge stage. 

Issue 2 – the impact of the National Policy Framework policy and the change in scientific evidence on the protection afforded to Ramsar sites

On the second ground the court agreed with C G Fry. Somerset Council could not withhold the discharge of a condition to further another cause. There is no legislative backbone to the Ramsar protections, it's ‘just’ policy. Policy cannot make something which is immaterial to the discharge of a condition material. Therefore, in this case Somerset Council could not prevent discharge of a tree condition in other to further the unconnected prerogative of the protection of the Ramsar site. 

Ramsar sites are protected under the NPPF, not the Habitat Regulations. This makes them fundamentally different to European sites within planning law. The courts key findings were:

1. Planning policy allows for a local planning authority to consider the impact of national planning policy as a material consideration in considering whether to grant planning permission for a Ramsar site. However, the legal position changes on grant of permission as it creates a right to ‘develop land in accordance with the permission’ . The court held the right planning permission affords is not ’defeasible depending on government policy’.
2. Planning permission allows developers comfort in where they stand. Outline permission makes clear the requirements for the development before they can proceed. To inject additional insecurity because of a change in government policy or scientific evidence removes this comfort and appears counterproductive particularly at a time when landowners are being encouraged to progress developments.
3. Once Somerset Council had approved outline planning permission subject to conditions, the council cannot then weaponise the discharge of those conditions to promote a different objective.
4. Planning conditions must be read fairly and objectively. Revocation or modification of conditions must be compensated under section 107 of Town and County Planning Act 1990. The court held that when assessing condition 3 tree protections in this matter, considerations need to be fairly related to that subject. The requirement for the further approval does not ‘import a general power for the planning authority to refuse to give approval for a perfectly acceptable tree protection scheme in order to further some other purpose or policy objective’ . 

What do the Supreme Court’s findings on issue 2 mean?

If there were unmitigated impacts on a special area of conservation or special protection area, then a council could require an appropriate assessment and refuse to discharge a condition unless necessary mitigation was secured - this is not applicable to CG Fry. 

However, if the site in question is a Ramsar site, and there are no issues pertaining to mitigation of a special area of conservation or special protection area, mitigation for impacts on the Ramsar site would have needed to have been secured at permission stage. It cannot be done at later condition discharge stage, unless there was a specific condition requiring it.

The finding on issue 2 is important. It will release sites that are ‘stuck’ in the system which have planning permission but have been unable to discharge pre commencement conditions due to the nutrient neutrality issue. Following the Supreme Court’s findings, such sites should not need to acquire credits to offset nutrient loads, or upgrade septic tanks, for those final approvals to be issued.

Developers may now wish to check any section 106 obligations or credit acquisition agreements to see whether funds or commitments can now be clawed back. 

The future

Whilst the judgement has been long anticipated, the situation is potentially to change in the near future. The House of Lords are currently discussing the amendments to schedule 6 of the Planning & Infrastructure Bill. One such amendment is to extend the Habitat Regulations to Ramsar sites, creating the statutory protection that Ramsar sites currently lack. This means the distinction made by the Supreme Court when addressing issue 2 may not stand beyond Christmas. Note this will not impact the rulings in relation to issue 1. 

For further information, please contact David Richardson or Hannah Lewthwaite.