The Office for Environmental Protection (OEP) today (Wednesday 22 October) welcomes the Supreme Court decision on the correct interpretation of the assessment provisions of the Habitats Regulations.
The Supreme Court has handed down its judgment in the appeal of the case CG Fry & Son Ltd v the Secretary of State for Housing, Communities and Local Government. This case relates to a Planning Inspector's decision in relation to the discharge of conditions for a large mixed-use development in Wellington, Somerset.
The judgment confirms that the correct interpretation of the Habitats Regulations is that an assessment of impacts on certain protected sites may be required at later stages of the multi-stage consent process for planning applications, even if such an assessment has not been conducted when outline planning permission was granted.
The judgment provides a clear statement that the purpose of the Habitats Regulations is to implement and follow the Habitats Directive, which must be interpreted in light of the precautionary principle, and that this remains the case despite the UK having left the European Union.
There were two issues before the Supreme Court:
• Issue 1: Interpretation of regulation 63 of the Habitats Regulations
• Issue 2: The effect of a grant of outline planning permission
The OEP only intervened in relation to Issue 1, as our aim was to clarify the interpretation of those regulations so that they continue to fulfil their intended purpose to protect the environment.
The OEP’s written case emphasised the purpose of the Habitats Regulations being to implement and follow the Habitats Directive in pursuing the same objective; and the variety of reasons why an appropriate assessment may still need to be undertaken after outline planning permission has been granted.
We are pleased to see these concerns reflected in the judgment of the Supreme Court.
Peter Ashford, OEP General Counsel, said: “We know that new homes can be built while also protecting and improving the environment. The Habitats Regulations play a vital role in helping strike that balance, as well as supporting government to achieve its binding targets under the Environment Act.
"We are pleased that the Supreme Court has provided legal clarity over protection of wildlife sites under the Habitats Regulations. It has confirmed that where changing circumstances require it, there should be an appropriate assessment of a development’s impacts on such sites even at a later stage in the planning process when assessment was deemed unnecessary earlier on.”
He added: “Upcoming proposed changes to the operation of the Habitats Regulations under the Planning and Infrastructure Bill will likely be relevant to some of the findings in this judgment, and we will consider those carefully as the Bill makes its way through the Parliamentary process.”
The Court allowed CG Fry & Son Ltd’s appeal in relation to a second ground, on which the OEP made no submissions. The Supreme Court held that the lower courts had made an error in giving a statement of policy (para 181 of the then National Planning Policy Framework) the same status and force as a legal rule set out in legislation (regulation 63 of the Habitats Regulations) in relation to an outline planning permission.
The OEP has previously given advice to the Government on the Planning and Infrastructure Bill, see here and here.
Read the OEP's written court submissions in the CG Fry & Son Ltd v the Secretary of State for Housing, Communities and Local Government case here.
Read the case judgement in full Habitats Regulations Judgement.pdf
