Supreme Court to hear key case next week on ‘appropriate assessment’ and subsequent approvals

The Supreme Court will next week consider whether Regulation 63 of the Conservation of Habitats and Species Regulations 2017 (“the Habitats Regulations”) require an ‘appropriate assessment’ to be undertaken for subsequent approvals after the grant of outline planning permission at a further consent stage, i.e. at the approval of reserved matters and discharge of conditions stages.

The background to the case of C G Fry & Son Limited (Appellant) v Secretary of State for Levelling Up, Housing and Communities and another (Respondents) is that in December 2015, outline planning permission was granted to the appellant developer, C G Fry & Son for a mixed-use development of up to 650 houses.

The development was to take place in eight phases. In June 2020, C.G. Fry obtained reserved matters approval for phase 3 which was subject to several pre-commencement conditions. No appropriate assessment under the Habitats Regulations had been undertaken when outline planning permission was granted nor subsequently at the reserved matters stage.

In August 2020, after the reserved matters approval, Natural England issued an advice note identifying the potential adverse effects of development upon the integrity of the Somerset Levels and Moors Ramsar site.

The site of the proposed development is in the catchment area of the River Tone, where there is a risk that new developments will generate phosphates in wastewater and surface water entering the river, with consequent effects on the Ramsar site (a site classified under the Convention on Wetlands of International Importance).

Natural England advised that an appropriate assessment should be undertaken.

In June 2021, C.G. Fry sought discharge of various pre-commencement conditions of the reserved matters approval. If the conditions were discharged, the construction of phase 3 of the development would become lawful.

Somerset Council withheld approval on the basis that an appropriate assessment under the Habitats Regulations was required before the conditions could be discharged.

A planning inspector dismissed C.G. Fry’s appeal against the failure of the council to discharge conditions.

C.G. Fry appealed under s.288 of the Town and County Planning Act 1990. The High Court and the Court of Appeal dismissed C.G. Fry’s appeals.

The case will be heard on 17-18 February by a Supreme Court panel comprising Lord Reed, Lord Sales, Lord Hamblen, Lord Stephens and Lady Simler.