In brief
The Supreme Court has ruled that Somerset Council acted unlawfully in refusing to discharge planning conditions for CG Fry & Son Ltd, emphasising that national policy protecting Ramsar sites cannot override legal rights granted by planning permission. The judgment draws a clear distinction between policy guidance and statutory requirements, confirming that only legislation can mandate further environmental assessments after permission is granted. However, the practical significance of this decision may be limited, as the forthcoming Planning and Infrastructure Bill is expected to give Ramsar sites statutory protection.
Background
The factual background
CG Fry was granted outline permission in 2015 for a mixed-use development of up to 650 dwellings and community uses, subject to the discharge of 19 conditions. In 2020 the Council granted reserved matters approval for phase 3 of the development, subject to the approval of 10 conditions. Fry made an application to discharge those conditions in June 2021.
However, in 2020 Natural England had published new advice on the effect of development on Ramsar sites, one of which was in the vicinity of the consented development. The advice made clear that planning authorities, owing to the designation of Ramsar sites as having equivalent protection to habitat sites under what was paragraph 181 of the NPPF, should conduct appropriate assessments considering this information.
On this advice, the Council withheld their approval to condition discharge applications. Fry unsuccessfully appealed to the Secretary of State, and subsequently to the High Court and Court of Appeal. It was against the background of these unsuccessful appeals that Fry appealed to the Supreme Court.
The Supreme Court decision
The Supreme Court considered two issues:
- The interpretation of Regulation 63 of the Habitats Regulations and whether a local planning authority must undertake an appropriate assessment before deciding whether to discharge planning conditions; and
- The relationship between the grant of an outline permission and national policy such as the NPPF
Issue I – The ambit of Regulation 63 to require an appropriate assessment
The Supreme Court dismissed the first ground of the appeal, agreeing with the lower courts that an appropriate assessment can be required at a stage after the initial grant of planning permission if the development may have a significant effect on a European site.
Lord Sales held that Regulation 63, on a plain reading informed by the purpose of the Habitats Regulations, makes clear that an appropriate assessment will be required for "consent, permission or other authorisation", with the discharge of a condition falling into the latter category.
This position, said the Court, would be sensible in light "multi-stage planning regime" in operation here, and the need to ensure compliance with the precautionary principle which would be offended where legislation to preclude an appropriate assessment even if significant new information was to arise later in the process.
The judgment states that Habitats Regulations are binding for planning developments affecting European sites, but do not apply to the Ramsar site in this case. Despite this, the Supreme Court considered that their interpretation was central to previous judgments and was relevant to paragraph 181 of the NPPF and thus it was appropriate to address this issue to clarify the law, given the regulations' wider application.
Issue 2 – The relationship between outline permission and national policy
The Supreme Court, however, allowed the appeal on the second ground, finding that the facts of this case disclosed no lawful basis upon which an appropriate assessment could be required.
Lord Sales held that the lower courts had erred in determining that should the Habitats Regulations be capable of requiring an appropriate assessment, so should national policy. The crucial distinction at the heart of the judgment is that Ramsar sites gained their protection through national policy, not legislation.
The grant of planning permission, the Supreme Court held, "creates rights under the planning legislation for the developer to develop land in accordance with the permission". This right cannot be "overridden or diluted" by policy, meaning that policy could not make what is immaterial to the discharge of a condition material. It also could not reopen matters closed by the grant of permission should they not have been explicitly made subject to a planning condition.
As such, while paragraph 181 of the NPPF requires Ramsar sites to be treated the same as habitat sites, it could not make it a legislative requirement capable of adding a further consideration to the discharge of conditions.
Implications
Conducting an appropriate assessment under the Regulations
The Fry judgment confirms that, for sites protected by the Habitats Regulations, an appropriate assessment can be required after the grant of permission. The Court provided examples of where this may be the case, i.e. where a planning authority makes an oversight, has a misunderstanding of the science or law, or new information comes to light.
The judgment did, however, leave open a related question: whether, if an appropriate assessment may be conducted after the grant of permission, there is an obligation to conduct it at the "earliest opportunity" and the consequences of failing to do so.
The relationship between planning permission and policy
The judgment also serves as a useful reminder of the nature of planning permissions. Once granted, permission confers a legal right on the applicant to proceed in accordance with that permission, subject only to the contents of that permission and the statutory planning framework.
The key takeaway from issue 2 is that policy cannot, and does not, give a local planning authority the power to refuse a subsequent approval where the policy is not "fairly related" to the matter under consideration. To do so would be to reopen a matter closed by the grant of planning permission, and undermine what Lord Sales called the "basic nature of the planning regime".
Looking forward – Ramsar sites and the Planning and Infrastructure Bill
Although the legislation and policy protection of Ramsar sites lay at the heart of the Court's judgment on issue 2, this element of the judgment will likely be overtaken by imminent legislative reform to the status of Ramsar sites.
Schedule 6 of the Planning and Infrastructure Bill will place the policy equivalence created by paragraph 181 of the NPPF on a statutory footing, meaning that appropriate assessments will be capable of being required in respect of Ramsar sites.