Appeal inspector issues decision that Appropriate Assessment is required at the Reserved Matters / Condition discharge stage

July 2022

The issue of whether Appropriate Assessment (AA) is required at the Reserved Matters (RM) and Condition discharge stage has been the subject of much debate this year, prompted by the Home Builders Federation (HBF) obtaining an opinion from their KC (Charlie Banner) that AA is not required at the RM/condition stage of planning.

In July 2022, the Secretary of State responded to the debate and provided an opinion of the matter, setting out:

“I am aware of views that the Habitats Regulations Assessment provisions do not apply to subsequent stages of outline approval, and while we know the following will be disappointing to the developers whose sites are affected, it is important to ensure there is clarity on how the assessment provisions should operate.

 The Habitats Regulations Assessment provisions apply to any consent, permission, or other authorisation, this may include post-permission approvals; reserved matters or discharges of conditions. It may be that Habitats Regulation Assessment is required in situations including but not limited to:

  • where the environmental circumstances have materially changed as a matter of fact and degree (including where nutrient load or the conservation status of habitat site is now unfavourable) so that development that previously was lawfully screened out at the permission stage cannot now be screened out; or
  • development that previously was lawfully screened in but judged to pass an Appropriate Assessment cannot now do so because the mitigation (if any) secured is not adequate to enable the competent authority to be convinced of no adverse effect on integrity of the habitats site.

DLUHC will therefore also update the Planning Practice Guidance on the application of the Habitats Regulations Assessment in this regard, and consider any further additional revisions as necessary over the Summer”.

This issue has now been formally heard at inquiry at a case in the west country where the single main issue was:

“Whether Appropriate Assessment pursuant to the Habitats Regulations is necessary in order to agree the Conditions attached to the Reserved Matters Approval and, if it is necessary, the scope of any such Appropriate Assessment”

The Inspector’s judgement is that AA is required at the RM/conditions stage. The full judgement can be found here.

Despite the outcome of this appeal, it is a point with far reaching consequences and accordingly may still be pursued further in the Courts.