The Supreme Court has now delivered its long-awaited judgment in CG Fry, opening a new chapter in how the Habitats Regulations are applied to planning consents.

While often labelled a “nutrient neutrality” case, the ruling has much wider ramifications, particularly for developers operating in or near European Designated sites.

 

Background

 

In December 2015, CG Fry & Son Ltd received outline planning permission for a mixed-use development of up to 650 homes, with reserved matters for Phase 3 approved in June 2020 without the need for an appropriate assessment under the Habitats Regulations.

In August 2020, Natural England warned of phosphate pollution risks to the Somerset Levels and Moors Ramsar site, prompting Somerset Council in June 2021 to refuse CG Fry’s application to discharge pre-commencement conditions for Phase 3.

CG Fry’s subsequent appeal and legal challenges were dismissed, culminating in a June 2024 Court of Appeal ruling that an appropriate assessment can be required at any planning stage, including condition discharge.   The Court of Appeal also found that Ramsar sites should be accorded the same protections as European Designated sites.

The decision was appealed to the Supreme Court.

CG Fry argued that the Natural England Guidance often referred to as the nutrient neutrality rules cannot legally apply to subsequent stages of the development control process such as, in this case, the discharge of conditions stage, where the development has been found to be acceptable at the outline permission stage.

 

Quick recap of the Habitats Regulations

 

Where a significant effect on a European Designated site cannot be confidently ruled out, an appropriate assessment is required.

If an appropriate assessment concludes that a significant effect cannot be ruled out, the consent must be refused.

If an appropriate assessment identifies mitigation measures that will prevent a significant effect, the development can only proceed if those measures are secured.

 

Habitats Regulations apply to reserved matters and discharge of conditions

 

The Supreme Court determined that the purpose of the Habitats Regulations is to secure a high degree of protection for vulnerable habitats and to ensure:

“careful scrutiny of development proposals likely to have an impact on such habitats with a view to minimising of avoiding such impact” (paragraph 47).

 

The requirement to carry out an appropriate assessment applies to any decision to give reserved matters approval or to the discharge conditions attached to such an approval that would result in authorisation for the project to proceed.

 

The Supreme Court indicated that this obligation could arise where the planning authority failed to carry out an appropriate assessment at an earlier stage due to mere oversight, misinterpretation of the law, or ignorance or misunderstanding of the relevant science, or where there is new scientific information (such as in this case Natural England’s advice on nutrient neutrality).

 

Ramsar Sites

 

In the CG Fry case the impacts of diffuse water pollution would be on a “Ramsar site” (sites designated in accordance with the UK’s obligations under the 1971 Ramsar Convention on wetlands). As a matter of national planning policy Ramsar sites are afforded the same protection as if they were European sites.

 

The Supreme Court held that, because the relevant protections are conferred through planning policy rather than by legislation, a different approach was necessary. As the grant of outline planning permission establishes the principle of development, which cannot subsequently be revisited, and the scope of planning conditions is limited to matters directly related to their subject, the Council was not entitled, in this case, to rely on new scientific advice or the potential impact on the Ramsar site to justify refusing to discharge the conditions. The effect of the development on the Ramsar site could not be reconsidered at the discharge of conditions stage unless the purpose of the relevant condition or conditions was specifically directed toward the protection of Ramsar sites.

 

In Northern Ireland there are some 20 Ramsar sites, most of which are also subject to a European designation and therefore the implications of this distinction between Ramsar sites and European Designated sites is likely to be limited.

 

Implications of the Decision

 

This decision will be of particular importance to developments near to or linked to European Designated Sites. It also means that older multi-phase permissions which have been partially implemented might be “re-opened” if further conditions are to be discharged, particularly where environmental circumstances have changed.

 

In Northern Ireland, an obvious example might be where a site is hydrologically linked to Lough Neagh, planning authorities may need to carry out an appropriate assessment or at least a screening exercise before discharging conditions. This may lead to the requirement for an appropriate assessment, where for example, there has been a change in environmental circumstances since the grant of the consent such as a change in capacity of the sewage network.

 

If an appropriate assessment identifies that mitigation is required, there is a question mark as to how such mitigation can lawfully be secured. As a result, it is possible that a hard-won planning consent could be rendered incapable of implementation at a later date. This creates uncertainty for developers and, perhaps more importantly, for development finance.

 

How do I mitigate the risks?

 

The risks, such as programme delays and financing issues, are significant but manageable. Success will depend on early action, robust environmental due diligence, and a planning strategy that anticipates scrutiny at every stage. Some steps to minimise risk might include:

• Try to minimise the number of pre-commencement conditions at the outset.
• Try to discharge pre-commencement conditions as soon as possible – this minimises the risk of a change in environmental circumstances or existing information being out of date and may actually save money.
• Keep environmental survey information up to date until all pre-commencement conditions are discharged.

 

Conclusions

 

CG Fry is the latest in a line of Habitats Regulations authorities expanding its “bite”.  The risk can be managed with some careful planning and by being aware of the risks.

The Supreme Court’s judgment in CG Fry delivers legal clarity but at a cost: greater complexity and risk in delivering consented schemes. The days of assuming that outline or reserved matters approval gives a green light to proceed are over, particularly where environmental baselines have shifted or pre-commencement conditions remain unresolved. Developers must now treat condition discharge as a potential regulatory pinch point, where mitigation requirements could derail a project. With this ruling, the bar has been raised. Developers who adapt quickly will stay ahead.

 

For legal guidance and advice on how this judgement may apply to your business, please contact Maria O’Loan or another member of our Planning and Environment team.

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.