The Supreme Court docket has dominated that native authorities can’t apply up to date environmental planning insurance policies to dam housing developments that already maintain define planning permission, in a landmark case with nationwide implications for nutrient neutrality guidelines.
The judgment clarifies that councils can’t retroactively impose new environmental necessities—corresponding to nutrient neutrality—on developments which have already secured define consent.
The case was introduced by developer C G Fry & Son, which obtained define planning permission in 2015 for a 650-home scheme at Jurston Farm, Wellington, close to the protected Somerset Ranges wetland. The dispute arose when Somerset Council blocked the ultimate part of the event, citing nutrient neutrality guidelines launched in 2020 by Pure England.
The developer challenged the council’s stance, arguing that the brand new necessities couldn’t override the prevailing planning permission. Whereas the Excessive Court docket, Court docket of Enchantment, and Planning Inspectorate had beforehand dominated towards the corporate, the Supreme Court docket overturned these selections.
The judgment targeted on the interpretation of the Habitats Laws 2017 and the authorized weight of define planning permissions within the face of evolving environmental coverage. The Court docket upheld the sooner authorized place that environmental assessments could also be required on the technical particulars stage, however discovered that native authorities can’t use coverage shifts to revisit what has already been accredited in define.
The ruling, delivered by a panel led by Lord Reed, units a precedent for a way protected websites and nutrient neutrality are dealt with in planning selections throughout England.
C G Fry & Son was represented by Lord Banner KC, Dr Ashley Bowes, and a authorized group from Clarke Willmott LLP.
The corporate was represented by Lord Banner KC and Dr. Ashley Bowes plus Kary Withers, associate in Clarke Willmott’s property litigation group, affiliate Tara Moseley and Caroline Waller, associate within the planning and environmental group.
Caroline Waller mentioned: “This essential choice will lead to housing developments having the ability to proceed the place the related planning consent has been obtained however is at present stalled as a result of nutrient neutrality.
“The case may even have wider authorized implications across the scope of issues to be thought-about within the discharge of planning circumstances extra usually.”
Lord Banner commented: “The impact of that is that the hundreds of consented houses that have been lengthy held up throughout Somerset as a result of stance taken by central and native authorities have been unlawfully held up.
“When and the place nutrient neutrality options in Somerset have been lastly recognized, these builders making Part 106 contributions for them to unlock websites which had permission however couldn’t get pre-commencement circumstances discharged, may have parted with large sums which in gentle of the judgment mustn’t have been demanded as a pre-requisite of discharging these circumstances.”
Philip Fry, managing director of CG Fry, added: “CG Fry & Son are happy that the Supreme Court docket has dominated in our favour.
“This marks the tip of a time-consuming and dear course of for us as an SME developer. It’s deeply irritating that it has taken over three years to achieve this conclusion – a delay that might have pushed many different small builders out of enterprise.
“The extended authorized proceedings have triggered vital delays and pointless bills in delivering each non-public and inexpensive houses, that are urgently wanted in Wellington. Further prices arising from such authorized challenges additional exacerbate viability points throughout the trade, making it even more durable for SME builders to ship much-needed housing.
“With this matter now resolved, we are able to deal with what the Authorities has tasked us with: delivering high-quality houses for our communities.
“We prolong our honest due to Lord Banner KC, the Dwelling Builders Federation (HBF) and the Land, Planning and Growth Federation (LPDF) for his or her invaluable assist all through this course of.”
Reflecting on the case, Ben Sharples, associate and head of Pure Capital at Michelmores, mentioned: “The Supreme Court docket has right now handed down its long-awaited judgment in CG Fry, addressing the extent to which the Habitats Laws apply to the discharge of reserved issues following the grant of define planning permission. Whereas the Court docket upheld the requirement for an acceptable evaluation beneath Regulation 63 the place the approval of reserved issues authorises the venture to proceed, it delivered an essential win for builders by confirming that planning permission, as soon as granted in respect of a RAMSAR web site, can’t be undermined by subsequent modifications in authorities coverage.
“Applicable assessments beneath the Habitats Laws will nonetheless apply to reserved issues functions in respect of European Websites as outlined by the Habitats Laws however not RAMSAR websites.
“This choice may have vital sensible implications, significantly in areas affected by nutrient neutrality necessities. Many builders, looking for to unlock reserved issues approvals, could have incurred substantial prices to buy phosphate credit unnecessarily.”
