July 2024

Court of Appeal confirms previous judgements that Appropriate Assessment can be relevant at the reserved matters / condition discharge stage

The debate as to whether the Habitats Regulations are relevant at the post planning stage has been running for some time now. In 2022 Aspect Ecology reported (see here) that the Secretary of State had issued an opinion that Habitats Regulations Assessment (HRA) can apply at post planning stages, including to the discharge of conditions, with this opinion later upheld in a relevant appeal decision.

Due to the far reaching implications of the decision, the matter was subsequently referred to the High Court who considered the legal requirements of the Regulations and their applicability to post planning stages. Following their considerations of the matter, the High Court upheld the appeal decision and confirmed that HRA is an iterative matter and is applicable at all planning stages, including the condition discharge stage.

The matter did however not rest there and was referred to the Court of Appeal who has recently reviewed the ruling of the High Court. In reviewing the ruling, the Court of Appeal focused upon:

“The central question in this case is whether the Conservation of Habitats and Species Regulations 2017 (“the Habitats Regulations”), properly interpreted, required an “appropriate assessment” before a local planning authority decided whether to discharge conditions on the approval of reserved matters, having previously granted outline planning permission, without such an assessment, for a major development of housing on land close to a protected site”.

The Court considered three main issues, namely:

• “The first issue is whether the judge was wrong to hold that regulation 63 of the Habitats Regulations applied at the discharge of conditions stage (ground 1 in the appellant’s notice).
• The second is whether he erred in holding that the policy in paragraph 181 of the National Planning Policy Framework (“the NPPF”), which has the effect of applying equivalent protection to Ramsar sites, was a material consideration (ground 2).
• The third is whether in any event he was wrong to hold that the scope of an appropriate assessment in these circumstances was limited to the matters affected by the conditions for discharge, rather than the development itself (ground 3)”.

Following their consideration of the matter, the Court of Appeal upheld the High Court’s judgement, namely that that an Appropriate Assessment may be required at a subsequent approval stage e.g. when approving conditions or in reserved matters approvals. This is even the case when an Appropriate Assessment was not carried out at the outline stage where it should have been, or new material information has come to light which requires assessment.

The Court of Appeal also rejected the other grounds, including the proposition that the application of Appropriate Assessment to Ramsar sites by the National Planning Policy Framework (NPPF) was unlawful and usurped the Regulations.

The full judgement can be found here.

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