Real Estate Blog: Nutrient neutrality – the C G Fry & Son Ltd case

C G Fry & Son Ltd vs Secretary of State for Levelling Up Housing and Communities, an important case for housebuilders, was handed down by the Administrative Court last month.

It has confirmed that, despite the UK having left the EU, developers are still required to comply with Natural England’s (NE) nutrient neutrality advice for reserved matters applications, even where the NE advice post-dated the outline planning permission for which no Habitats Regulations Assessment (HRA) had been required.

In 2015 Somerset Council had granted C G Fry & Son Ltd outline planning permission for a mixed-use development which included 650 homes in eight phases. No HRA had been undertaken at outline. Whilst the first two phases were completed under separate reserved matters approvals, the Council refused to discharge the pre-commencement conditions attached to the reserved matters approval for phase three, relating to 190 dwellings, subject to conditions.

The Council maintained that an appropriate assessment under the Habitats Regulations must be completed before these conditions could be discharged due to NE’s Advice Note which required developments to achieve nutrient neutrality (phosphates). The claimant appealed this decision and it was upheld by PINS on appeal prompting the claimant to challenge the decision by judicial review.

The High Court dismissed the claimant’s case. The judgment acknowledged that, on a strict reading of the Habitats Regulations, the HRA provisions do not cover the discharge of conditions. Nevertheless, the HRA regime does apply as a result of (i) the continued “direct effect” of Article 6(3) of the Habitats Directive; (ii) a purposive interpretation of the Habitats Regulations; and (iii) binding case law.

C G Fry & Son Ltd is appealing to the Supreme Court. In the meantime, the case has suggested that, once the REUL Act comes into effect (end of 2023) and weakens the force of EU law, this sort of case may have a greater chance of success.

Read the full article by our Environmental team here.

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