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Judgment in the long running case of CG Fry & Son Limited (Appellant) v (1) Secretary of State for Housing, Communities and Local Government and another (Respondents) was handed down by the Supreme Court this morning.
I have written previously about this case in the High Court decision Nutrient neutrality: Are developments with outline consent caught by the requirements? and the outing in the Court of Appeal CG Fry & Son Limited v (1) Secretary of State for Levelling Up, Housing and Communities (2) Somerset Council.
The issues for the Supreme Court
The issues to be determined by the Supreme Court were:
- Does Regulation 63 of the Conservation of Habitats and Species Regulations 2017 (Habitats Regulations) require an “appropriate assessment” to be undertaken before a local planning authority decides to discharge conditions which require the approval of reserved matters in a grant of outline planning permission for that development?
- What is the effect of a grant of outline planning permission, and what is the impact on that grant, of a policy adopted by the government, and a change of scientific advice affecting the application of that policy?
The good news for the developers is that, whilst the Supreme Court rejected the appeal in respect of issue 1, it allowed it on issue 2.
The granting of outline planning permission, subject to reserved matters being decided at a later date, is commonplace. The questions here were whether subsequent approval of those reserved matters is subject to the Habitats Regulations requirements and of the impact of policy change on an outline consent.
The Habitats Regulations issue
On the first issue, the Supreme Court agreed with the Court of Appeal that an appropriate assessment under the Habitats Regulations will be required, when the effect of approval of reserved matters, is to give authorisation for the project to proceed.
The effect on outline planning consents
On the second issue, the Supreme Court considered the nature of a grant of planning permission and concluded that the rights conferred cannot be diluted by government policy. Any conditions attached to a planning permission must be considered objectively and there is no general power for a planning authority to refuse consent on policy grounds (such as RAMSAR site protection), which are not fairly related to the subject matter of those conditions. The reasons for granting or refusing consent must be within the ambit of the reserved matters – revisiting the principles of the original outline grant is not permitted.
The site in this case was a RAMSAR site and not a European Site protected by the Habitat Regulations. The decision on issue 1 means that appropriate assessments under the Habitats Regulations will still need to be carried out in respect of European Sites but not RAMSAR sites.
Impact of the Planning and Infrastructure Bill
The Planning and Infrastructure Bill proposes an alternative route for developers to avoid the impact of the Habitats Regulations, by contributing to larger scale mitigation projects, so the effects of this case may well be limited by future legislation.
However, this litigation has been rumbling on for a few years now and some developers within RAMSAR sites may well have paid to purchase phosphate credits so as to unlock development. If such mitigation was required to secure reserved matters approval, then this judgment means that was a potentially unnecessary and significant expense.