The Court of Appeal has clarified the rules on nutrient neutrality – a planning principle stipulating that developments should not lead to an increase in nutrient pollution.
The case, CG Fry & Son Ltd v Secretary of State for Levelling Up, Housing and Communities and another [2024] EWCA Civ 730; [2024] PLSCS 119, was heard in the Court of Appeal in March, and in a ruling handed down on Friday (28 June), the court dismissed the case, backing a lower court ruling.
“The central question in this case is whether the Conservation of Habitats and Species Regulations 2017, properly interpreted, required an ‘appropriate assessment’ before a local planning authority decided whether to discharge conditions on the approval of reserved matters, having previously granted outline planning permission, without such an assessment, for a major development of housing on land close to a protected site,” the ruling said.
Charlie Reid, a planning partner at Ashurst, explained the ruling: “The Court of Appeal has held that in a multi-stage consent process, where the proposed development is likely to affect a protected habitats site and the habitats legislation applies, an ‘appropriate assessment’ of the effects of the project can be required at the final implementing stage of the project,” he said.
“This can be required even after the initial grant of planning permission and would include the approval of reserved matters and the discharge of conditions.”
He added: “The Fry case is high-profile because it highlights the perceived block on housing delivery created by a requirement, in some areas, to demonstrate ‘nutrient neutrality’. But despite being supported by the Home Builders Federation and the Land, Planning and Development Federation, the developer had its appeal dismissed on all grounds.”
The judgment does not create a significant change in the legal or policy requirements for habitats assessment, he said. Instead, it “confirms that specific types of subsequent decisions may prompt the requirement for an assessment and that the scope of such an assessment is of the whole development whose implementation is authorised by that decision”.
CG Fry & Son Ltd v Secretary of State for Levelling Up, Housing and Communities and another
[2024] EWCA Civ 730; [2024] PLSCS 119
Court of Appeal (Sir Keith Lindblom, (SPT), Singh and Arnold LJJ) 28 June 2024
