High Court throws out housebuilder challenge to local council application of nutrient neutrality advice

The High Court has dismissed a claim previously branded as having “considerable importance” to how Natural England’s nutrient neutrality advice is applied by local councils.

Last year, Somerset West and Taunton Council refused to sign off the final stages of developer CG Fry and Son Ltd’s phase three plans to build 190 homes in Wellington, Somerset. This was despite the plan having already gained outline planning permission and the developer having already built homes relating to phase one and two of the plans. 

CG Fry and Son appealed the decision, but the case was dismissed by the Planning Inspectorate last summer, and in December 2022 the council published its decision note stating that an appropriate assessment, as required by the Habitats Regulations 2017, needed to be carried out before it could progress.

The council said that this position was “influenced” by the advice issued to the council by Natural England in 2020 that new developments must not give rise to additional phosphates which would impact internationally protected sites, and the need to undertake an appropriate assessment. 

The regulator’s advice post-dated both the outline planning permission approval, as well as the reserved matters approval, a later planning stage which deals with outstanding details of an application omitted from the outline planning application.

In March, the High Court granted permission for CG Fry and Son Ltd - with the support of the Home Builders’ Federation - to appeal the decision through a statutory review. Lawyer Charles Banner KC of Keating Chambers, who is lead counsel on the case, described the issues at stake in the case as “of considerable importance in relation to nutrient neutrality and planning”.

The key issues at stake were, firstly, whether a Habitats Regulations Assessment (HRA) is required under the Habitats Regulations at the later discharge of conditions stage of the planning system, if it has not been done before.

Addressing this, the judge said that: “The upshot is that the Habitats Directive and Habitats Regulations 2017 mandate that an appropriate assessment be undertaken before a project is consented. That is irrespective of whatever stage the process has reached according to UK planning law. 

“The basal fact in this case is that neither at the permission, reserved matters, or conditions discharge stage has there been an appropriate assessment. Application of the Habitats Directive and a purposive approach to the interpretation of the Habitats Regulations 2017 require the application of the assessment provisions to the discharge of conditions. The strict precautionary approach required would be undermined if they were limited to the initial - the permission - stage of a multi-stage process.”

The second issue was whether the need for a HRA assessment is different when it comes to Ramsar sites, which are not protected by law under the Habitats Regulations directly, but instead are the subject of policy under paragraph 181 of the National Planning Policy Framework (NPPF). 

On this, the judge, Sir Ross Cranston, said: “The impacts on the Somerset Levels and Moors Ramsar Site and paragraph 181 of the NPPF cannot be said to be irrelevant considerations in this development. The issue is the read-across of the Habitats Regulations 2017 to Ramsar sites as provided by the NPPF in circumstances where the Council’s shadow appropriate assessment shows that if the project if permitted it will cause harm to the Ramsar site. [...] 

“To understand the scope of the discharge of conditions it is necessary to consider the legal consequences, and in this case one of these would be that a development with a potential impact on a Ramsar site protected by national policy would be authorised by the planning system. That creates the nexus to the NPPF’s policy on the protection of Ramsar sites.” 

The final ground of challenge put forward by the claimant was that the scope of any assessment at this later stage in the planning system is limited to matters which are affected by the particular conditions being discharged - as opposed to covering the impact of the entire development.

However, dismissing this final claim, the judge said: “Regulation 63 requires an appropriate assessment to consider the implications of the project, not the implications of the part of the project to which the consent relates. In this regard regulation 63 is consistent (unsurprisingly) with the Habitats Directive, which the Court of Justice of the European Union (CJEU) has held requires a full assessment of a project which has not been assessed.”

Commenting on social media, Banner - the claimant’s lawyer - said that “the judge has indicated he is minded to grant permission to appeal his judgement and the parties are discussing the potential for a leapfrog appeal to the Supreme Court”.

He added that the ruling would present the Department for Levelling Up, Housing and Communities “with some challenges for any future legislative solution for the nutrients issue”. This, he said, would be because of the Court’s approach to considering whether section 4 of the Withdrawal Act preserves the force of EU “obligations… of a kind recognised by a court” before the Brexit.