Summer hot topics – Hillside, HRA and EIA

A couple of High Court decisions have stood out to us from the last week, which are worth being aware of.

Firstly, although the substantive hearing it yet to take place, it should be noted that permission has been granted on the papers by Lang J for a judicial review of the decision of the London Borough of Southwark to approve a non-material amendment under s.96A of the Town and Country Planning Act 1990 (as amended) to a phased, outline planning permission relating to the Aylesbury Estate. The claimant argued that the decision to treat the insertion of the word “severable” into the description of development as non-material was irrational following the Supreme Court judgment in Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30 which held that planning permissions are not severable into constituent parts unless expressly stated to be. Those who have been addressing Hillside risk over the last few months in the context of outline masterplans and drop in applications, will be eager to hear the outcome of this as it is the first time the Court will be considering whether a phasing plan and/or the outline nature of a scheme means that it is necessarily “severable”, as discussed in Hillside. 

Secondly, the High Court judgement in CG Fry v SSLUHC [2023] EWHC 1622 (Admin) was handed down on 30 June 2023. This is an appeal from a decision of a planning inspector to refuse to discharge conditions on a planning permission because a Habitats Regulations Assessment (HRA) had not been undertaken. Sir Ross Cranston held that although on a strict reading of the 2017 Regulations, the assessment provisions cover the grant of planning permission and not the discharge of conditions, they do apply for the following reasons:

• Although the UK has withdrawn from the EU, the requirements of Article 6(3) of the Habitats Directive which sets out that competent authorities should not agree a project until an appropriate assessment has been undertaken to show there is no effect on the integrity of a protected site remain a part of UK law. The Inspector’s conclusion that he could not discharge the conditions prior to an appropriate assessment being undertaken as one had not been undertaken at the consent stage and the discharge was a necessary step in the implementation of the development was consistent with this;
• The 2017 Regulations require a purposive interpretation in the light of the strict precautionary principle established by EU case law. Accepting the claimant’s argument would "open up a lacuna in habitats assessments leading to the possibility that… development would proceed without an assessment being undertaken - the possibility (arising) when negative environmental effects were only ascertained after the first stage in a multi-stage consent process." The precautionary principle would be undermined if assessment waslimited to the initial stage of the multi-stage process.

Finally, it is worth noting that we are currently awaiting the Supreme Court judgment in R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council and others, relating to the assessment of the environmental impacts of downstream greenhouse gas emissions, which was heard on 21 and 22 June 2023. This is likely to be one of the landmark planning cases of this year.