Supreme Court decision in C G Fry: Impacts on developers

Key point

The key general point of wide application to developers is this: the Supreme Court has ruled that, if there is a likely significant effect from a development on any designated “European site” ( important for conservation under the Habitats Directive), the legal requirement for a HRA is triggered when the planning decision-maker determines an application for reserved matters or the discharge of a planning permission condition in circumstances where there was no HRA undertaken at the original permission stage. This therefore could present a significant problem in practice for any development where a HRA has not previously been carried out at the planning permission stage or potentially (although the Supreme Court did not rule on this specific point) where the planning permission HRA has become out of date due to a material change since it was undertaken at the permission stage. This HRA requirement applies in relation to a condition of an outline permission or a condition full planning permission. It does not matter what the nature / content of the condition is. The condition does not have to be one which relates to ecology for this to be triggered. A condition relating to something completely unrelated to ecology, such as the colour of the new homes’ bricks, is equally able to trigger this. 

What does this key point mean in practice?

The legal requirement for HRA is first triggered when an application for outline or full planning permission is first determined and so normally HRA would have been undertaken at that earlier stage i.e. at the point at which the outline permission or full permission is first determined.  

However, if, for some reason, a HRA at that stage has been omitted and yet there are risks to European sites then we now know from this judgment that a HRA must be undertaken at the reserved matter/condition discharge stage.

It also seems likely from the judgement (although the Supreme Court did not directly rule on this point) that even if a HRA has been completed at the permission stage but there have been material changes since then (such as the relevant nature conservation body changing its advice) then a HRA at the reserved matters or condition discharge stage will also be needed.

The logic behind this is that the final step to allowing the project to be delivered should be subject to HRA so as to check that there will be no risk of any adverse effect on the European site. 

This means that when a planning decision-maker comes to determine a reserved matters or planning condition application, they are likely to want to consider whether the previous HRA still “holds good” as an assessment of impacts from the development on a European site. In most cases we would expect the previous HRA to remain valid, in which case this would be considered, explained and recorded and, in our view, adequate.

If, however, at the time of the reserved matters or discharge of condition, there were a reason to conclude that the previous HRA may not remain valid due to a material change (e.g. change in official (e.g. Natural England) advice), then the planning decision-maker may well advise that a revised HRA is needed. 

Also, if, for some reason, no HRA had been undertaken at the grant of planning permission stage then a HRA would certainly be needed at the point of determination of the condition.

Impact on key point of Environmental Delivery Plans expected under the Planning and Infrastructure Bill 

The above impact is likely to be ameliorated to some extent for developers by the Planning and Infrastructure Bill. Assuming that the Planning and Infrastructure Bill receives Royal Assent and this is then followed by the arrival of Environmental Delivery Plans, developers will have the option of paying a nature restoration levy so as to discharge their obligations in relation to European sites in respect of the particular impact covered by an Environmental Delivery Plan. The LPAs will not then need to carryout HRAs in respect of those specific impacts.