Habitats Regulations apply at reserved matters stage post-Brexit

In an important appeal decision issued today, a planning inspector has confirmed that Brexit has not altered the law in respect of Habitats Regulations appropriate assessments at reserved matters or discharge of conditions stage.

The appeal concerned phase 3 of the Jurston Farm development, near Wellington in Somerset. Phase 3 comprises some 190 dwellings, and had received reserved matters approval subject to conditions. After the reserved matter approval was granted, Natural England had altered its guidance on the protection of wetlands on the Somerset levels. The LPA refused to discharge the conditions, on the ground that no appropriate assessment had been provided in respect of the potential impact of phase 3 on the Somerset Levels Ramsar site.

The appellant appealed, on the basis that no appropriate assessment could lawfully be required at the discharge of conditions stage. In essence, the appellant said:

• One of the effects of Brexit was that the Habitats Directive was no longer an admissible aid to the interpretation of the Habitats Regulations, which now have to be understood on their own terms
• The Habitats Regulations, being secondary legislation, could not alter or override the effect of the Town and Country Planning Act 1990, and under that Act the principle of the development, including its acceptability in habitats terms, was settled by the grant of outline permission.
• If an appropriate assessment were to be carried out, it would have to be limited to the impact of the matters raised in the conditions themselves, rather than that of the phase as a whole.
• Even if the case law on the Habitats Regulations applies post-Brexit as it did pre-Brexit, Ramsar sites are not subject to the regulations anyway, but are protected by the NPPF (para 181). Policy cannot make relevant that which is legally irrelevant, and the impact of a development is legally irrelevant to the discharge of conditions at RM stage.

The inspector rejected all of those arguments.

He held that NPPF para 181 seeks to apply the same level of protection as the Habitats Regulations to Ramsar sites, and since Habitats Regulations assessments can take place at the RM stage, para 181 assessments can as well. The impact of phase 3 on the Somerset Levels Ramsar site was legally relevant to the discharge of the conditions, because the discharge is an authorising act which permits what would otherwise be unauthorised development (i.e. stage 3 as a whole).

More generally, the requirement for an appropriate assessment was not an indirect attack on the validity of the outline permission. The requirements of the appropriate assessment could have been met by offsite mitigation, and did not require the development approved by the outline permission to be varied in any way. There was thus no conflict between the TCPA 1990 and the requirements of the habitats regime, and an appropriate assessment at the discharge stage was lawful.

Even if there were such a conflict, the appellant was wrong that the TCPA as primary legislation “trumped” the regulations, because s. 4 of the EU Withdrawal Act 2018 gave the post-Brexit regulations the same legal force and effect as they had pre-Brexit.

Finally, it was clear that the regulations continued to be interpreted in the light of the Directive, because post-Brexit amendments to the regulations themselves were made on that basis.

In the light of the decision, it is now apparent that the multi-stage approach to habitats assessments, as developed by the High Court in cases like Wingfield and Swire, remains good law after Brexit.

The LPA was represented at the inquiry by Christopher Boyle KC and Luke Wilcox.

The decision is available here.