A blow for developers but an opportunity for landowners

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The lasting implications of a High Court ruling on Nutrient Neutrality

A High Court ruling that certain European Union regulations designed to protect wildlife habitats still apply despite Brexit has far-reaching implications for developers, farmers and landowners. Harvey Davies, Solicitor in the Thrings Planning and Environment team, explains.

Background to the case

The ruling (C.G.Fry & Son Limited v Secretary of State for Levelling Up, Housing and Communities), follows a complex legal battle between a housing developer and a local authority in Somerset, centred on the Conservations of Habitats and Species Regulations 2017. These regulations, which originate in EU law, require developers to mitigate the effects of their activities on nitrate and phosphate pollution on protected waterways.

The court decided that these requirements apply not only at the stage that planning permission is granted, but also at the point where planning conditions are discharged.

What is meant by ‘discharge of conditions’?

The ‘discharge of conditions’ process takes place when overall planning permission is approved, but with conditions that require further details to be submitted before a development can go ahead. The developer must go back to the local authority to satisfy it that the requirements will be met – known as ‘discharging’ the condition.

This can often take place a long time after the initial permission is granted and, in some cases, several years later.

What does the ruling mean?

The High Court’s decision means that applications for the discharge of conditions are still subject to the Habitats Regulations, even if underlying planning permission was granted several years ago, and even if the application has nothing to do with nutrients or drainage.

Its effect is that developers in affected areas will need to carry out habitat assessments to prove their proposed scheme would not negatively affect nutrient neutrality in protected watercourses.

Implications of the decision for developers

For developers, the concern is that the ruling will add to the ongoing bottleneck holding up the provision of new homes in affected areas around the UK, because of the increased need for habitat assessments. The House Builders Federation estimates government nutrient

neutrality requirements are already holding up construction of around 120,000 homes – more than 40,000 of which already have planning permission. For many schemes this also adds a significant unforeseen cost, potentially undermining the viability of the development scheme.

Implications for farmers and landowners

For farmers and landowners, the ruling represents an increased opportunity for diversification. All the developments held up by nutrient neutrality are still going to be subject to the requirements of the Habitat Regulations, and one way that developers can meet these requirements is ‘off-site mitigation’ – paying landowners for schemes that reduce nutrient levels on their land to offset any increases caused by the development.

For both developers and landowners, the ruling also puts an increased emphasis on due diligence when acquiring new sites for development, so developers are fully aware of the assessments that are likely to be required not just at the initial planning application stage but also later, when applications are made for conditions to be discharged. For more information on Phosphates, Nitrates and Nutrient Neutrality, visit our blog and Take 5 Guide.

The High Court case – a brief history

The developer C G Fry and Son Limited was granted outline planning permission of up to 650 homes near Wellington, Somerset, in 2015.

The development was planned in eight phases, with two completed and phase three given ‘reserved matters approval’ – permission, but with conditions.

When C G Fry and Son applied to the planning authority to discharge certain conditions for the third phase, the council refused – raising concern that nutrients generated would affect a protected area, the Somerset Levels and Moors Ramsar site.

A Planning Inspector upheld the decision, and the developer launched judicial review proceedings. It argued that the nutrient effects were ‘not a material consideration at the discharge of conditions stage’.

The High Court noted that on the face of it, the Habitats Regulations affected only the initial planning permission and not subsequent stages. However, it ruled that a combination of a ‘purposive interpretation’ of their provisions, and previous case law, meant that they did apply.

Effectively, the judge ruled that despite the UK’s withdrawal from the EU, the requirements remain part of UK law.

The Judge noted: “…competent authorities should not agree a project until an appropriate assessment has been undertaken and it shows that it will not affect the integrity of a (protected) site.”

"A planning consent is part of agreeing a project when it is necessary to implement a development. In this case, the discharge of pre-commencement conditions was a necessary step in the implementation of the development.”

However, we are yet to hear whether this case will be appealed to the Court of Appeal for reconsideration, so watch the space!

Thrings’ Planning and Environment lawyers have extensive experience in navigating complex local and national planning policy legislation and has successfully supported commercial and residential applications through the approval and appeal processes. To find out more and for advice on your development proposals, including how to address enforcement notices, please do get in touch.


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