Planning Updates: Appropriate Assessment decision affirmed
3rd July, 2024
In this week's planning update, we've covered a couple of cases that developers should be aware of...
An appeal decision affirming when appropriate assessments relating to nutrient neutrality should be carried out by developers; a High Court decision following a judicial challenge over a Council’s muddled approach to public speakers at a planning committee.
Nutrient neutrality ruling affirmed
The High Court’s ruling in the case of C G Fry & Son Ltd v Secretary of State for Levelling Up was upheld by the Court of Appeal last week. The case concerned whether an “appropriate assessment” (“AA”) under the EU Habitats Directive 2017 (“Directive”) or the UK Habitats Regulations 2017 (“Regulations”) is required before a local planning authority may determine a reserved matters approval or discharge of condition application. The claimant had challenged the High Court’s decision on three grounds, but each of these were dismissed by the Court of Appeal. A copy of the judgement can be found here.
As a result of this ruling, the key takeaways for developers are:
- Though the Regulations do not require an AA for discharge of condition applications, a “purposive” reading of the Directive from which the UK law derives does require an AA to carried out at that stage.
- An AA should be carried out before any project requiring consent is permitted by a LPA and it does not matter what stage the planning process has reached according to UK planning law.
- There is no limitation on which stages of the UK planning process an AA may be carried out. If an AA is required, it can be carried out to permit the grant of planning permission, reserved matters or condition discharge.
- If an AA is carried out at condition discharge stage, then the AA must assess the project as a whole and it should not be specifically limited to matters related to the condition in question.
Developers should therefore bear in mind that the carrying out of appropriate assessments may be required at numerous stages of development and thus factor them in to the timeline of the delivery of development projects.
Failure to follow procedure not fatal to grant of permission
The fact that Council planning officers misled objectors over their right to speak at a planning committee meeting did not give reason to quash the committee’s decision, the High Court has ruled in R (Moakes) v Canterbury City Council [2024]. A copy of the judgment can be found here.
The claimant, a member of the Campaign to Protect Rural England (“CPRE”), argued that that the fact that objectors (including a representative of CPRE) to a hybrid planning application for a site in an AONB were not permitted to speak owing to a “muddled approach” by Council officers materially prejudiced the objectors by being unable to make formal representations to the committee, and was therefore a basis for quashing the decision on the grounds of procedural unfairness.
HHJ Robinson noted that “the Council’s constitution contains a perfectly straightforward set of rules which govern those members of the public permitted to speak at the Committee but which, regrettably, the Council has singularly failed properly to apply.”. Consequently, the Council’s officers’ “muddled approach” was confusing and a frustration to the objectors.
However, it was not fatal to the committee’s decision. Owing to the fact that there was “no evidence that the Committee’s decision was unbalanced by the fact it heard oral representations from more supporters than objectors“, HHJ Robison ruled that the Council’s breach of its constitution did not result in the claimant suffering material prejudice.
This case serves as a useful reminder that a high bar must be reached for local authority decisions to be quashed on the grounds of procedural unfairness and that failure to follow the proper procedures of planning committee meetings is not necessarily fatal to all decisions.
For advice on nutrient neutrality, appropriate assessments and making representations to planning committees, please contact James Garbett or one of our specialist Planning Lawyers.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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