Court of Appeal clarifies requirement for appropriate assessment in multi-stage consents

Beautiful sunset at Talay-Noi Ramsar Sites - Canva - 030624

The Court of Appeal has today handed down judgment in CG Fry & Son Ltd v Secretary of State for Levelling up, Housing and Communities [2024] EWCA Civ 730.

The Court (Lindblom, Singh and Arnold LJJ) held that Regulation 63 The Conservation of Habitats and Species Regulations 2017 (SI 2017/1012) applied to the determination of reserved matters approvals and discharging planning conditions.

That was because those decisions fell within the scope of a “consent, permission or other authorisation”. Chapter 2, Part 6 was not, therefore, a self-contained scheme for the assessment of all approvals under the Planning Acts.

That conclusion was reached without recourse to the doctrine of direct effect of principles of EU law. The outcome is therefore unlikely to be affected by the Retained EU Law (Revocation and Reform) Act 2023, which makes clear the supremacy of EU law nor the general principles of EU law are not part of the domestic law of the United Kingdom after the end of 2023.

Where an assessment falls to be undertaken, it is the effects of the project as a whole which is under consideration, not simply the subject-matter of the condition under consideration.

The case arose in the context of the “nutrient neutrality” issue, whereby new housing development is now understood to provide a pathway to load additional nutrients onto sensitive habitats. Whilst the site under consideration here was not a site protected by the Regulations, it was a RAMSAR site to which paragraph 181 NPPF applied. The Court found that did not affect the outcome.

The judgment may be accessed here

Dr Ashley Bowes (instructed by Clarke Willmott) acted for the Appellant developer (with Lord Banner KC).

Richard Moules KC and Nick Grant (instructed by the Government Legal Department) acted for the Secretary of State.

Luke Wilcox (instructed by Shape Partnership Services) acted for Somerset Council.

Zack Simons and Isabella Buono (instructed by Shoosmiths LLP) acted for the Home Builders Federation and the Land Planning and Development Federation.

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