Fry Vs SSLUHC: Court of Appeal clarifies position on nutrient neutrality

The High Court’s decision in G Fry & Son Limited vs (1) Secretary of State for Levelling Up Housing and Communities and (2) Somerset Council [2023] EWCH 1622 examined the application of the Conservation of Habitats and Species Regulations (the 2017 Regulations), in particular whether a local authority could refuse to discharge the conditions on the approval of reserved matters after granting outline planning permission. The Case revealed that, in respect of protected sites, ‘appropriate assessments’ must be undertaken before the granting of planning permission, irrespective of which stage has been reached in the planning process, and the Court of Appeal upheld this decision.

The Claimant had three grounds of appeal:

1. Whether the High Court judge incorrectly held that regulation 63 of the 2017 Regulations applied at the discharge of conditions stage;
2. Whether he incorrectly held that the policy in paragraph 181 of the National Planning Policy Framework (the “NPPF”), which afforded protection to Ramsar Sites, was a material consideration; and
3. Whether it was incorrect to hold that an ‘appropriate assessment’ as defined by the Regulations was only needed in relation to matters affected by the conditions for discharge, as opposed to the development itself.

On grounds 1 and 3, the Court of Appeal concluded that the High Court judge was correct to take a purposive approach to the interpretation of the law; limiting the need for an appropriate assessment to the initial stages of planning consent would undermine the spirit of the 2017 Regulations. Further, the purpose of an appropriate assessment was to take into account the impact of the entire development on the integrity of the site, not just the impact of specific conditions or part of the development. In this case, such an assessment had not been undertaken.

Regarding ground 2, the Court ruled that the judge was right to engage paragraph 181 of the NPPF because there was a connection between the object of the policy, which is to prevent harm to relevant protected sites, and the potential consequence of discharging the conditions and authorising Phase 3 of the development. Allowing the development to proceed would lead to a generation of phosphates, which would in turn have a harmful effect on a Ramsar Site. In the Court’s view, the consequences of this decision highlight the materiality of the consideration of paragraph 181.

Impact on developers:

As in the initial judgment, the Court of Appeal decision signals further delays and increased uncertainty for developers when obtaining planning permission. It also places the onus on developers to mitigate the adverse impact of their developments on their environment, particular when these developments are in the vicinity of protected sites.

Contact our Residential Development solicitors today

For more information or to discuss your requirements, please contact the team on 0330 175 7609, or email us at residentialdevelopment@ibblaw.co.uk.

If further advice on this subject is required, please contact Machelle Jan on 01895 207905.