Planning case law update: CG Fry & Son Ltd v Secretary of State for Levelling Up, Housing and Communities and another

On 28 June 2024, the Court of Appeal handed down the much-anticipated decision: CG Fry & Son Ltd v Secretary of State for Levelling Up, Housing and Communities and another [2024] EWCA Civ 730; [2024] PLSCS 119 (the Judgment).

In the context of a multi-stage consenting process, the Judgment clarifies the approach to, triggers, and timings for the requirement to undertake an "appropriate assessment" of the effects of a project on nutrient neutrality specifically in relation to a Ramsar site, as is required under the Conservation of Habitats and Species Regulations 2017 (the Habitats Regulations).

The Court of Appeal upheld the High Court's decision ([2023] EWHC 1622) and dismissed the appeal. The Judgment confirmed that a planning authority determining an application may require an "appropriate assessment" to be undertaken at the discharge of conditions stage where, in discharging such condition, the authority is making an "implementing decision" which would authorise the effects of the whole development required to be subject to such assessment.

History of the case

In December 2015, Somerset Council granted outline planning permission for a mixed-use scheme including up to 650 houses on land near the River Tone, which flows into the Somerset Levels and Moors Ramsar Site. The Council did not require the Applicant to carry out an "appropriate assessment" of the effects of the project on the protected site, neither at the stage of the outline permission nor the reserved matters approval.

On 17 August 2020, Natural England published an advice note recommending that greater scrutiny should be given to plans and projects, the development of which could adversely affect the nutrient levels in the Somerset Levels and Moors Ramsar Site. The advice note was published subsequently to the outline permission and reserved matters approval described above.

In light of that advice note, Somerset Council, and on appeal the Secretary of State's Inspector, refused to discharge the conditions of the reserved matters approval in the absence of an "appropriate assessment" under the Habitats Regulations.

CG Fry launched a statutory challenge under section 288 of the Town and Country Planning Act 1990, which was considered in the High Court and the judgment was handed down by Sir Ross Cranston on 30 June 2023, dismissing the claim. The High Court's decision was upheld by the Court of Appeal in the Judgment handed down on 28 June 2024, considered in further detail below.

Grounds of Challenge

CG Fry disputed the decision on three grounds. The Court of Appeal considered the High Court's decision on these grounds in turn in the Judgment as follows

The Court of Appeal affirmed that “appropriate assessment” could be applied at the discharge of conditions stage, as well as at the outline or reserved matters stage. The legislation in question did not preclude this, so long as such assessment is undertaken before an “implementing decision” is made, i.e., the decision by which the implementation of the whole development is authorised. On the facts of this case, this was Phase 3 of C.G Fry’s proposed development and so the discharge of conditions stage was the appropriate point at which to undertake the assessment.

Paragraph 181 of the 2021 NPPF relevant to this permission specifies that listed or proposed Ramsar sites should be given the same protection as habitat sites.

The Court of Appeal held that the High Court had not erred in its decision that the policy in paragraph 181 was engaged. They reasoned that:

  • The objective of that policy was to prevent harm to relevant protected sites including Ramsar sites and that there was a connection between the decision to discharge the conditions to authorise Phase 3 of the development and the potential adverse effects on the Ramsar site.
  • The Government had acted within its powers in considering paragraph 181 in its decision making, exercising its proper discretion in producing national planning policy and taking such policy into account as a material consideration.
  • The policy in paragraph 181 was relevant to the Phase 3 development as a whole, and not just the matters affected by the conditions to be discharged, as by discharging the conditions they would be authorising the progress of Phase 3 in its entirety.

CG Fry’s argument was dismissed, i.e., that the decision to discharge conditions should be based on solely the subject matters of the conditions themselves rather than the wider phase/scheme authorised as a result of the discharge of those conditions. The Court of Appeal considered that such an analysis would be inconsistent with the fundamental objective of the habitat protection legislation functioning to protect against harmful effects on a protected site.

Key Takeaways

A number of key takeaways can be ascertained from the Judgment, including the following:

  • When applying for discharge of conditions where outline permission and reserved matters have been granted before any nutrient neutrality requirements, then the Judgment confirms that you will need to factor in an "appropriate assessment" where required prior to the discharge of conditions. Equally, where a developer is considering taking on a site which is already subject to outline permission and reserved matters approval, then they may wish to factor in potential requirements for "appropriate assessment" in the timeline of the whole application as part of the due diligence process before acquiring the site.
  • In the Judgment, the Retained EU Law (Revocation and Reform) Act 2023 was not yet in force for the appeal and so the decision was considered based on the legislative regime in force at that time. From 1 January 2024 there has been significant constitutional reform as retained EU law has been automatically revoked from the UK statute book and the principle of supremacy of EU law is no longer part of domestic law. It seems unlikely that the Courts would significantly digress from the authority of this Judgment, but if a case on similar facts were to be determined in the courts it may now be considered on the basis of different authority.
  • It should be noted that if, as a result of the "appropriate assessment" requirement, a planning permission fails to be discharged at its final stages, then the outline planning permission itself would remain valid. This provides some comfort if an assessment reveals adverse effects.
  • The issue of dealing with nutrient neutrality is featured in the Labour Party's manifesto. It will be interesting to see how the new government will deal with this issue in practice.

Key contacts