Lawyer says firm is considering appeal to supreme court

A judge has rejected a landmark legal challenge by housebuilder CG Fry over the nutrient neutrality crisis, ruling that planners were right to refuse to permit a 650-home application on the Somerset levels without an environmental assessment.

In a key High Court decision, judge Sir Ross Cranston ruled that the provisions of the Habitats Regulations did apply to developments such as the one at issue, where the problem of nutrient pollution was only raised after outline permission had already been granted, and while the housebuilder was attempting to discharge planning conditions.


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The High Court

However, a lawyer acting for CG Fry said in response to the ruling that the claimant was considering whether to appeal the decision and warned the industry to “watch this space”.

CG Fry had seen its planning application for 650 homes in Wellington, Somerset initially approved, before the local council then declined to discharge final conditions after Natural England said the area was at risk of nutrient pollution.

The council’s decision was later upheld by a planning inspector, prompting CG Fry to take legal action against both Somerset West and Taunton council and the Secretary of State for Levelling Up, Housing and Communities.

CG Fry’s lawyers had argued in court that as the grant of planning conditions was not the grant of full planning permission, there should be no requirement to undertake an appropriate assessment of likely phosphate pollution from the development – the assessment which triggered a refusal.

However, Judge Cranston said that while “on a strict reading of the Habitats Regulations 2017” this was correct, he said the application of the Habitats Directive and case law meant that an appropriate assessment was necessary with discharge of planning conditions, otherwise this key stage of environmental protection would be missed.

He said: “Application of the Habitats Directive and a purposive approach to the interpretation of the Habitats Regulations 2017 require the application of the assessment provisions to the discharge of conditions.

“The strict precautionary approach required would be undermined if they were limited to the initial - the permission - stage of a multi-stage process.”

The High Court decision backing this view came despite the Home Builders Federation submitting evidence during the court case suggesting that of the approximately 120,000 homes estimated to be held up in planning due to the nutrient crisis, around 44,000 are being blocked at reserved matters or discharge of conditions stage.

The court action is thought to be one of the first significant legal cases to challenge the law around the nutrient neutrality crisis, which stems from a European Court of Justice case which ruled that public authorities could not make decisions which would cause harm to EU-protected sites, such as those under the Habitats Directive.

Charles Banner KC Website-headshots-285x340-6-1

Charles Banner KC of Keating Chambers said ‘watch this space’

CG Fry’s barrister Charles Banner KC had also argued that because the area of Somerset in which the scheme was proposed was not actually covered by the Habitats regulations, but was instead a Ramsar-protected site, it should be exempted from the requirements. Ramsar sites are not EU-designated but are afforded the same protections as Habitats-protected sites under national planning policy – paragraph 181 of the NPPF – but this protection is not enshrined in law.

Cranston said that if Banner’s proposed outcome were to apply, it would create a “nexus to the NPPF’s policy on the protection of Ramsar sites”. In contrast, he added, it should be “open to the Secretary of State to introduce such a consideration as a matter of national planning policy.”

Charles Banner responded to the judgement in a post on LinkedIn. He said: “The judge has indicated he is minded to grant permission to appeal his judgment and the parties are discussing the potential for a leapfrog appeal to the Supreme Court.

“Watch this space.”

He added that the judgment would potentially present the government with further challenges in creating a legislative solution to the nutrients problem, given its approach to considering to what extent EU-era obligations remained in force post-Brexit.

>>See also: How do we stop the nutrient neutrality problem holding up development?

Simon Ricketts, founder of planning law firm Town Legal said the outcome was “perhaps unsurprising” but said it would be “disappointing to many” in the development community.

Hannah Langford, planning partner at law firm Devonshires, said the judgement was likely to further exacerbate the nutrient neutrality crisis identified by the HBF during the case. She said: “Developers should now be prepared to continuously assess their development sites for the likely significant effects of a proposal on the integrity of protected sites and consider ways to avoid or reduce or mitigate any potential adverse effect on the sites integrity.”