The High Court (Sir Ross Cranston) has today dismissed C G Fry’s challenge to the operation of the Habitats Regulations in the post-Brexit world.
The challenge arose following a planning inspector’s decision that conditions on a reserved matters application could not be discharged without an appropriate assessment of the whole of the development phase in question (which amounted to 190 dwellings).
The claimant, with the support of the Home Builders’ Federation, advanced three grounds of challenge to the inspector’s decision: (1) whether a Habitats Regulations Assessment must be undertaken at condition discharge stage if it hasn’t been done before; (2) how that applies in the case of Ramsar Sites (which are not subject to the Habitats Regulations directly, but are treated in the same way by the NPPF); and (3) whether the scope of any assessment is limited to matters which are affected by the particular conditions being discharged. The challenge was resisted by the Secretary of State, and by Somerset Council (which had succeeded before the inspector).
All three grounds of challenge were dismissed. Sir Ross Cranston held that the relevant provision of the Habitats Directive (article 6(3)) remains of direct effect in UK law by virtue of the EU Withdrawal Act, and the EU and domestic case law confirms that an appropriate assessment is required at the point of the final implementing decision (in this case, the discharge of conditions) if the project had not been assessed before. The same conclusion flowed from the regulations themselves, which were given a purposive and precautionary interpretation.
On the Ramsar point, the Court confirmed that it was open to the Secretary of State to make a policy which gave Ramsar sites the same protection as Habitats Regulations sites. He rejected the claimant’s argument that there was no nexus between the conditions and the habitats impact: the scope of the conditions has to be analysed by reference to the legal consequences of their discharge, and since the consequence of the discharge was the authorisation of the whole of the phase, there was a sufficient nexus to allow the appropriate assessment to take place.
Finally, the Court rejected the suggestion that the appropriate assessment had to be limited to the subject matter of the conditions. It is the implications of the project which have to be assessed, not the implications of the conditions. The Judge held that “As Mr Wilcox for the Council put it, the thing which is to be the subject of the appropriate assessment is the thing which will be permitted by the authorisation, so that where the decision is the final stage in granting authorisation for a development, it is the development which is to be assessed”.
Luke Wilcox acted for Somerset Council.
The judgment may be accessed here.