Supreme Court Clarifies Habitats Rules in C G Fry Appeal

Supreme Court allows appeal in landmark case brought by C G Fry & Son Limited and clarifies how the Habitats Regulations apply to multi-stage consents

Background

C G Fry & Son Limited, a property developer, was granted outline planning permission in 2015 for a mixed-use development including 650 dwellings and commercial and community uses, a primary school and associated infrastructure on land at Jurston Farm, near Wellington, England. The development site is in the catchment area of the River Tone, which feeds into the Somerset Levels.

In June 2020, the Council granted reserved matters approval for Phase 3, comprising 190 dwellings. Ten conditions were imposed on that approval.

On 17 August 2020, after the reserved matters approval, Natural England (the government’s advisor for the natural environment in England whose role is similar to that of the NIEA in NI) published an advice note in respect of development with possible effects on protected or vulnerable sites such as the Somerset Levels and Moors Ramsar site. This constituted new scientific advice in relation to the protection of the Ramsar site. Natural England noted that the Ramsar site was at risk from eutrophication caused by phosphates arising from the development of new housing and other forms of development. It recommended that “before determining a planning application that may give rise to additional phosphates… competent authorities should undertake a Habitats Regulations assessment” and planning permission should only be granted if the planning authority concluded that the development would not have an adverse effect on the integrity of the site.

On 9 June 2021, C G Fry applied to discharge a number of conditions on the reserved matters approval. The Council withheld approval on the basis that an appropriate assessment under the Conservation of Habitats and Species Regulations 2017 (“the Habitats Regulations”) was required before the conditions could be discharged.

C G Fry appealed to the Secretary of State against the council’s failure to make a determination within the prescribed period. The Inspector held an inquiry and concluded that, in respect of such a site, Regulation 63 of the Habitats Regulations [equivalent to Regulation 43 of The Conservation (Natural Habitats, etc.) Regulations (NI) 1995] would have required an appropriate assessment before the conditions attached to the reserved matters approval could be discharged. The inspector dismissed an argument by the appellant that, by reason of the grant of outline planning permission and reserved matters approval for the development, it was not permissible to introduce at this stage, by the application of national policy, a requirement for an appropriate assessment before the conditions were discharged. He therefore dismissed the appeal.

A challenge was brought in the High Court and the Judge dismissed the challenge. The Court of Appeal also dismissed the appeal. On 1st November 2024, C G Fry was granted permission to appeal to the Supreme Court and the hearing took place in February 2025.

Issues

The Supreme Court considered two issues:

(1) Does Regulation 63 of the Habitats Regulations require an “appropriate assessment” to be undertaken before a local planning authority decides to discharge conditions requiring the approval of reserved matters in a grant of outline planning permission for that development?

(2) 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 bearing on the application of that policy?”

Supreme Court Decision

Issue 1: Interpretation of Regulation 63 of the Habitats Regulations

The Supreme Court unanimously dismissed the appeal in so far as it is based on Issue 1 and held that the Court of Appeal was correct in its interpretation of the Habitats Regulations, affirming that an appropriate assessment may still be required at later stages of a multi-stage planning process.

The Court concluded:

“[56]…in a case involving a potential impact on a European site where the Habitats Regulations have effect, application of a normal purposive approach to their interpretation and having regard to the precautionary principle leads to the conclusion that regulation 63 would apply to a decision to give reserved matters approval or to discharge conditions attached to such an approval where that would result in authorisation for the project to proceed.” (emphasis added)

This interpretation aligns with the precautionary principle and ensures environmental protections are not bypassed.

Issue 2: Outline planning permission, reserved matters approval, discharge of conditions and national policy

(1) The Supreme Court allowed the appeal on Issue 2 and made several key observations:

(2) Outline planning permission confers legal rights that cannot retroactively be altered by policy or advice unless explicitly provided for in legislation. The Court criticised the lower courts for treating policy guidance as having the same force as statute.

(3) Where an outline permission has been granted it is not open to a planning authority to revisit matters which have been approved in principle at the outline stage; and some element of development must be acceptable on the site within the ambit of the outline permission.

(4) It held that local planning authorities cannot use new policy or scientific advice to impose additional requirements at the discharge of conditions stage unless the conditions themselves allow for such discretion.

(5) The Court emphasised that Ramsar sites, while protected under policy, do not automatically trigger the same legal obligations as European sites under the Habitats Regulations.

Implications

This judgment has significant implications for developers and planning authorities. The judgment reinforces that developers cannot treat outline permission as a “safe harbour” and assume subsequent stages of the consenting process are simply mechanical.
The judgment may also have implications for other consents under the Planning (Northern Ireland) Act 2011 such as applications for certificates of lawfulness.
Greater caution is therefore required to be taken throughout the consenting process. Developers will need to carefully consider this decision and assess the implications for their projects.

Citations

C G Fry & Son Limited v Secretary of State for Housing, Communities and Local Government and Somerset Council
[2025] UKSC 35

Author: Orla Kelly, Associate Director, Planning & Environment 

This article has been produced for general information purposes and further advice should be sought from a professional advisor. Our Planning & Environment team at Cleaver Fulton Rankin can provide you with the specialist advice you need.

 

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