Habitats Directive: Impact of the CG Fry case on the Harris Case

People have been asking us how the Court of Appeal’s decision in CG Fry & Son Ltd v Secretary of State for Levelling Up affects reliance on the High Court’s judgement in the earlier Harris v The Environment Agency case.

Key Findings in the Harris Case

In the Harris case, the High Court ruled that the “have regard” duty on competent authorities (i.e. public bodies) in Regulation 9(3) of the Conservation Regulations 2017 must be interpreted to mean “must discharge the requirements [of the Habitats Directive]” where the competent authority is the sole / principal public body responsible for regulation. This interpretation was based on the context and purpose of the legislation, rather than principles of EU law or the EU doctrine of ‘direct effect’. Separately, the Harris judgment also confirmed that Article 6(2) of the Habitats Directive had, at that time in 2022, continuing direct effect. This meant that Article 6(2) continued to stand independently from the Conservation Regulations 2017 and was directly enforceable by domestic courts against public bodies.

Court of Appeal’s Comments in the CG Fry Case

In the CG Fry case, the Court of Appeal said that arguments made in that case which sought to rely on Harris in relation to the ‘direct effect’ issue were unhelpful. The Court of Appeal concluded that Regulation 63 of the Conservation Regulations 2017, which requires appropriate assessments to be undertaken in respect of plans and projects so as to protect European sites from harm, could be interpreted in line with EU law using conventional domestic statutory interpretation methods, without needing to invoke ‘direct effect’. Therefore, reliance on the ‘direct effect’ reasoning in Harris was irrelevant in this context. The Court of Appeal did not explicitly comment on the part of Harris in which the domestic interpretation of Regulation 9(3) was addressed. However, the Court of Appeal did endorse the same purposive approach to statutory interpretation which was used by the judge in Harris when interpreting Regulation 9(3).

Implications of CG Fry for the Harris Case

The Court of Appeal’s reasoning in CG Fry implies that the judge’s purposive approach to the interpretation of Regulation 9(3) in Harris was correct. Therefore, the judgment in Harris remains good law for interpreting the Regulation 9(3) “have regard” duty in the Conservation Regulations 2017.

Conclusion

The Fry case does not undermine the findings in Harris. Competent authorities must continue to discharge the requirements of the Habitats Directive (following their duty under Regulation 9(3) of the Conservation Regulations 2017) where they are the sole / principal public body responsible for regulation.