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Insights // 31 July 2023

High Court Rules That Nutrient Neutrality Requirements Apply at All Stages of the Planning Process

Karen Jones and Emily Boorman, in our Planning & Environmental Law team, look at the recent case of C G Fry and Son Ltd v Secretary of State for Levelling Up Housing and Communities [2023] EWHC 1622 (Admin).

The role of nutrient neutrality in planning law has been considered in the recent case of C G Fry and Son Ltd v Secretary of State for Levelling Up Housing and Communities [2023] EWHC 1622 (Admin).

The High Court ruled that an appropriate assessment should be made of the impacts of the project on the nearby Somerset Levels and Moors Ramsar Site, even at the discharge of conditions stage. The ruling has provided a significant clarification, for now, as it appears that an appeal will be made to the Supreme Court.

Facts

The claimant, C G Fry & Son Limited, received outline planning permission in 2015 for a mixed-use development of up to 650 houses, community and commercial uses, a primary school and associated infrastructure. Planning permission was subject to several reserved matters.

In 2021, the claimant made an application to discharge several of those conditions. Somerset Council withheld approval on the basis that an appropriate assessment under the Habitats Regulations 2017 was required before the conditions could be discharged.

Under the National Planning Policy Framework, Ramsar sites (sites which are designated under the Ramsar Convention on Wetlands of International Importance especially as Waterfowl Habitat) are given the same protections as sites under Habitats Regulations 2017.

Natural England advised Somerset local authorities in 2020 that they should undertake an appropriate assessment under the Habitats Regulations 2017 of the implications of plans or projects that “will result in a net increase in population served by a wastewater system, including new homes, student and tourist accommodation” in the Ramsar Site catchment area.

This assessment would allow the authority to establish whether the development will have an adverse effect on the integrity of the site, and potentially ways to minimise this adverse effect.

C G Fry & Son Limited appealed the Somerset Council’s decision to withhold approval on the basis that an appropriate assessment was required. The Inspector found that the requirement for the appropriate assessment under the Habitats Regulations 2017 applied to the discharge of conditions stage, even though it was not an explicit condition which needed to be discharged.

C G Fry & Son Limited recently challenged the planning inspector’s decision by way of judicial review.

First Issue: whether the Inspector was wrong to apply Regulation 63

Regulation 63 states that the authority may only agree to the project after ascertaining that it will not affect the integrity of the European site.

Regulation 63, if read strictly, only applies to the grant of planning permission and not the discharge of conditions.

The Judge applied a purposive approach, as the CJEU has done, to interpret the Habitats Regulations 2017 with the precautionary approach. Under this approach, the legislation is read with the focus on ensuring the avoidance of harm to the protected sites.

The Habitats Regulation 2017 mandate that an appropriate assessment is undertaken before a project is consented. The Judge found that that this is not limited to the initial stage of the outline planning permission under a purposive approach.

Second Issue: whether the impact on the Ramsar Site was legally irrelevant and therefore if the Inspector could take this impact into account

The conditions of the permission did not relate to phosphate generation. However, the High Court Judge found that the impacts on the Somerset Levels and Moors Ramsar Site was not irrelevant to the development. It is necessary to consider the legal consequences of approving the discharge of those conditions, which would result in a development with a potential impact on a Ramsar site.

Third Issue: if the impact on the Ramsar Site was legally relevant, whether the scope of the consideration is limited to the conditions being considered.

The claimant argued that any nutrient considerations should be limited to the content of each condition. Under this argument, at the discharge of conditions stage, an appropriate assessment should only be done for distinct aspects of the development and not considered for the development as a whole.

The High Court Judge found that the appropriate assessment is not limited to the context of the conditions which are to be discharged before implementation. The whole development can be assessed at the discharge of conditions stage.

Analysis

This decision is highly contentious for developers across the UK.

The Home Builders Federation (HBF) has issued statements and reports regarding nutrient neutrality, particularly stating that “The nutrient neutrality embargo is delaying an estimated 120,000 homes” and that “The industry is keen to ensure that unnecessary barriers are not placed in the way of building new homes by demanding levels of mitigation that is not needed, especially when new housing development has such a limited effect anyway on increasing nutrient levels with the relevant catchments, and we face an acute housing shortage that is having increasing social and economic implications.”

The Times has recently reported Prime Minister Rishi Sunak is considering supporting Michael Gove’s plan to allow developments to go ahead in advance of sewage treatment works being upgraded, with the aim of allowing the construction of new homes to go ahead.

Upcoming Appeal

The claimant has been granted a certificate to apply straight to the Supreme Court for permission to appeal, “leapfrogging” the Court of Appeal, due to the “national importance of the case and the public interest in its prompt consideration by the Supreme Court” according to Charles Banner KC (Lead Counsel for C G Fry & Son Limited).

If the Supreme Court dismiss the appeal, developers across the country may be required to provide appropriate assessments which they had not budgeted time or money for. However, this would reaffirm the importance that nutrient neutrality has in our planning system, and the focus on conservation and environmental issues.

If the Supreme Court allow the appeal, developers would be able to avoid the need for the appropriate assessments – and therefore potentially avoid mitigating their contribution to nutrient pollution. The Home Builders Federation blame having to demonstrate nutrient neutrality for the delay in the building of new homes, and claim that Natural England’s ‘ban’ on home building is “deepening the housing crisis we face”, “damaging local economies and posing a major threat to many businesses, especially SME [Small and Medium Enterprise] builders.”

The Supreme Court’s decision will be heavily influential in deciding the future of nutrient neutrality.

For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800. 

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.

Karen Jones

Karen Jones

Partner, Planning & Environmental Law

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Emily Boorman

Emily Boorman

Trainee Solicitor

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