Supreme Court clarifies Nutrient Neutrality and Environmental Protection: The CG Fry Judgment

The Supreme Court has, in its eagerly awaited judgment in CG Fry & Son Limited v Secretary of State for Housing, Communities and Local Government, provided important clarity on how environmental protections apply when discharging planning conditions.

Key points from the Judgment

• European Sites: The Court confirmed that in relation to European Sites, an Appropriate Assessment under the Habitats Regulations can be required at the discharge of conditions stage, not just when planning permission is first granted.
• Ramsar Sites: By contrast, planning authorities cannot require an Appropriate Assessment at the condition discharge stage for Ramsar Sites.
• General Principle: Save where otherwise permitted by legislation, planning authorities cannot use a change in policy or scientific advice to revisit approved matters or introduce additional requirements at a later stage.

Facts

CG Fry obtained outline planning permission in 2015 for a mixed-use development of up to 650 homes within the River Tone catchment, which feeds into the Somerset Levels and Moors Ramsar Site.

Following approval of reserved matters in June 2020, Natural England issued new advice in August 2020 highlighting phosphate-related risks to the Ramsar Site and recommended Appropriate Assessments for new housing prior to granting planning permission. When CG Fry subsequently applied to discharge conditions, the planning authority withheld approval citing this advice and policy guidance in the National Planning Policy Framework ("NPPF").

Environmental designations: European Sites and Ramsar Sites

European Sites, such as Special Protection Areas ("SPAs") and Special Areas of Conservation ("SACs"), comprise vulnerable habitats and areas of importance for wildlife and are to be given a high level of protection under the Habitats Regulations. Although derived from EU law, the Habitats Regulations continue to have effect following Brexit.

Ramsar Sites are wetlands of international importance designated under the Ramsar Convention on Wetlands. They are not listed as a protected European Site under the Habitats Regulations. As a matter of planning policy, the NPPF states that Ramsar Sites should be given the same protection as European Sites.

The court's reasoning

(a) For European Sites, the Habitats Regulations require an appropriate assessment to determine if a development may affect the protected features of a site before granting "any consent, permission or other authorisation."

This broad wording did not limit the requirement to the initial grant of the outline planning permission. Having regard to the way the planning system works in the context of a multi-stage regime, the normal purposive approach to interpretation and the precautionary principle, the requirement naturally applied to later stages which would have the effect of authorising the implementation of a development such as the granting of reserved matters or discharging conditions.

(b) For Ramsar Sites, it was national policy rather than legislation that sought to provide them with the same level of protection as European Sites. This was a fundamental difference.

The granting of permission under the planning legislation confers legal rights on developers to develop their land in accordance with that permission. Those rights are locked in and cannot be overridden or diluted by a later change in policy or scientific advice. Furthermore, planning policy does not have the same status or legal force as legislation and cannot alter the application of legislation.

The decision whether to discharge a condition is limited to a consideration of the matters that relate to the subject-matter and requirements of that condition. A planning authority cannot revisit matters that were approved in principle at an earlier outline stage nor use national policy to introduce additional requirements.

Implications for developers

The judgment draws a clear distinction between the requirements that apply to European Sites and Ramsar Sites. Had CG Fry's development affected a SPA or SAC (i.e. a European Site) then an Appropriate Assessment could have been required before the conditions were discharged in accordance with the Habitats Regulations. As the development only affected a Ramsar site, no such assessment could be required.

An appropriate assessment can be required at subsequent stages irrespective of the reason why it was not undertaken earlier (for example, because of oversight, a material change in circumstances or change in scientific understanding etc.) to ensure that there are no adverse effects on the integrity of the European Site.

The vast majority of sites across the country affected by nutrient neutrality issues are situated in SPAs or SACs and this decision will have little effect on those developments. If an outline permission was granted without an Appropriate Assessment being undertaken before a change in advice on nutrient neutrality, then an Appropriate Assessment may be required at any subsequent stage, including applications to discharge conditions.

If a development only affects a Ramsar Site, then, unless those matters were reserved at the outline stage or subject to a condition at the reserved matters stage, they cannot be revisited.

Looking ahead: legislative changes

The position may soon change. If enacted, the Planning and Infrastructure Bill will amend the Habitats Regulations to include Ramsar Sites, putting them on the same statutory footing and giving them the same level of protection as European Sites - thus removing the basis on which CG Fry were successful.

However, the Bill also proposes allowing the payment of a nature restoration levy in connection with an environmental delivery plan in some cases which could remove the need for an Appropriate Assessment of the effects on the protected features of a Ramsar Site or European Site – though this will be subject to further Parliamentary debate (the House of Lords in the latest reading of the Bill on 10 November 2025 proposed amendments seeking to restrict the environmental impacts that may be identified in an environmental delivery plan to those relating to nutrient neutrality, water quality, water resource or air quality).

Notwithstanding the proposed legislative changes, a key principle of the judgment will remain: any subsequent change in policy or scientific advice (for example, relating to climate change, flood risk or other environmental considerations) cannot, unless otherwise permitted by legislation, be used to re-consider previously approved matters or introduce additional requirements. Instead, the decision at a subsequent stage is limited to the material considerations relevant to the subject matter of the application.

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