What is the impact of the C G Fry case?
- Davitt Jones Bould
- 9 hours ago
- 3 min read
The Supreme Court has handed down its long-awaited decision in the C G Fry case. The decision affirms that an appropriate assessment under the Habitats Regulations should be carried out, and nutrient neutrality measures required, after the grant of planning permission, at reserved matters or when discharging pre-commencement conditions, where there are effects on a habitats site protected under the Habitats Regulations.
However, the Court also held that the Habitats Regulations do not apply to Ramsar sites which are only directed to be given the same protection as habitats sites by the National Planning Policy Framework. This was a very important distinction in this case because the appellant’s, C G Fry, development involved impacts on a Ramsar site but none on any site protected under the Habitats Regulations. The court found that planning policy, such as the NPPF, could not provide a level of protection for Ramsar sites which they do not enjoy under the Habitats Regulations.
In the CG Fry case no appropriate assessment was carried out before outline planning permission was granted for the mixed use eight-phase scheme or before the reserved matters approval was granted for the phase in question. When the appellants sought discharge of pre-commencement conditions on the reserved matters approval for the relevant phase, the local planning authority assessed the scheme in line with newly published Natural England advice and required the appellant to mitigate phosphate impacts on the Ramsar site before conditions were discharged. The appellants lodged an appeal which ended up going right through the courts.
The appellants will be extremely pleased they persevered. Developers without lawfully implementable planning permissions in catchments for habitats sites will not be so pleased. Even schemes which were granted planning permission before Natural England advised authorities to assess development impacts through an appropriate assessment and seek nutrient mitigation do not escape the requirements if reserved matters approvals or pre-commencement conditions remain. It may also indicate that the courts are not willing to weaken the environmental protections originating from the Habitats Regulations more generally.
However, we know that the government is determined to beat the “blockers” and deliver significant housing growth – 1.5 million new homes in the lifetime of this Parliament. This is at odds with a system that can effectively block development through very costly and complex nutrient neutrality requirements - even when that development has planning permission. The Planning and Infrastructure Bill, currently at the report stage in the House of Lords, seeks a “win-win for nature and the economy” through area-wide environmental delivery plans and a nature restoration levy. It may eventually be that developers paying the levy will remove the requirement to carry out site based appropriate assessments. Until that time, local authorities cannot agree to a scheme with likely significant effects on a habitats site (other than a Ramsar site) unless an appropriate assessment, taking into account any mitigation measures, confirms there is no risk of an adverse impact.
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Janine Shaw (Partner)
Janine is a highly experienced planning solicitor with over 20 years post qualification experience.
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