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

This appeal raised two issues of planning law concerning environmental protection and large-scale residential development. Issue 1 was whether regulation 63 of the Conservation of Habitats and Species Regulations 2017 (“the Habitats Regulations”) requires an appropriate assessment before a local planning authority discharges conditions attached to a reserved matters approval. Issue 2 was whether national planning policy in the NPPF – directing that Ramsar sites receive the same protection as European sites – could be used to block the discharge of conditions on an outline planning permission where those conditions had nothing to do with protecting the Ramsar site. The Supreme Court dismissed the appeal on Issue 1 but allowed it on Issue 2.

Facts

The appellant developer, C G Fry & Son Ltd, held outline planning permission granted in December 2015 for a mixed-use development of up to 650 dwellings at Jurston Farm, near Wellington, Somerset. The development site was in the catchment area of the River Tone, which feeds into the Somerset Levels and Moors Ramsar Site. The development was to proceed in eight phases.

In June 2020 the Council granted reserved matters approval for Phase 3 (190 dwellings), subject to ten conditions including pre-commencement conditions relating to tree protection, surface water drainage, a construction environment management plan, infrastructure details, a cycleway and footpath network, and building materials.

In August 2020 — after the reserved matters approval — Natural England published advice noting that, in light of the CJEU’s judgment in Dutch Nitrogen, greater scrutiny should be given to developments resulting in increased nutrient loads affecting protected sites. Natural England advised that planning permission should only be granted following a habitats assessment concluding no adverse effect on site integrity, and recommended a “nutrient neutrality” approach.

In June 2021 the appellant applied to discharge the pre-commencement conditions on the reserved matters approval. The Council withheld approval, relying on paragraph 181 of the NPPF (which provides that Ramsar sites should be given the same protection as habitats sites under the Habitats Regulations). The Council maintained that an appropriate assessment was required before the conditions could be discharged.

The appellant appealed to the Secretary of State. The inspector dismissed the appeal, holding that (i) regulation 63 of the Habitats Regulations required an appropriate assessment at the discharge of conditions stage, and (ii) paragraph 181 of the NPPF engaged that requirement in respect of Ramsar sites. The High Court (Sir Ross Cranston) dismissed the appellant’s statutory review ([2023] EWHC 1622 (Admin)). The Court of Appeal (Sir Keith Lindblom SPT, Singh and Arnold LJJ) dismissed the further appeal ([2024] EWCA Civ 730).

Issues

Issue 1: Does regulation 63 of the Habitats Regulations require an appropriate assessment to be carried out before a local planning authority decides to discharge conditions attached to a reserved matters approval in a multi-stage planning process?

Issue 2: Can the NPPF policy in paragraph 181 — requiring Ramsar sites to be given the same protection as European sites — and new scientific advice from Natural England be relied upon at the discharge of conditions stage to withhold approval in respect of conditions that, on their terms, have nothing to do with protecting the Ramsar site?

Judgment

The Supreme Court unanimously dismissed the appeal on Issue 1 and allowed it on Issue 2.

Issue 1: Regulation 63 applies at the discharge of conditions stage

Lord Sales held that the Court of Appeal correctly interpreted regulation 63, and that this conclusion followed from ordinary domestic principles of statutory interpretation without needing to examine the Withdrawal Act or EU law principles of interpretation.

The purpose of the Habitats Regulations was to implement the Habitats Directive and ensure a high degree of protection for vulnerable sites, applying the precautionary principle. Regulation 63 was expressed in deliberately broad, self-contained terms: it required an appropriate assessment before a competent authority decided to “give any consent, permission or other authorisation for” a plan or project likely to have a significant effect on a European site. The words “or other authorisation” naturally covered a decision to discharge conditions that would authorise the developer to proceed with the development.

Regulation 70 stated positively that the assessment provisions applied to the grant of planning permission, but did not say in negative terms that they did not apply at any other stage. Regulation 62(1), which provided that the assessment provisions applied “subject to and in accordance with” Chapters 2–7 but only “in relation to the matters specified in those provisions,” actually undermined the appellant’s case: the later stages of a multi-stage planning process were not matters specified in those provisions, indicating that a deliberate choice had been made for the assessment provisions to have general application in relation to those unspecified matters.

The protective purpose of the Habitats Regulations and the precautionary principle would be defeated if an appropriate assessment could not be carried out at a later stage in a multi-stage process where the planning authority had — by oversight, misinterpretation of the law, or ignorance of relevant science — failed to carry one out at the outline permission stage.

This conclusion accorded with the reasoning in No Adastral New Town [2015] EWCA Civ 88, Wingfield [2019] EWHC 1974 (Admin) and Swire [2022] EWHC 390 (Admin), all of which Lord Sales endorsed.

Issue 2: NPPF policy cannot override rights conferred by outline planning permission

Lord Sales held that the judge and the Court of Appeal had erred in giving a statement of policy (paragraph 181 of the NPPF) the same status and force as a legal rule set out in legislation (regulation 63 of the Habitats Regulations). They failed to take into account the nature of the rights conferred on the appellant by the grant of outline planning permission.

National planning policy is plainly a material consideration when deciding whether to grant planning permission at the start of the planning process. At that stage a developer has acquired no right to proceed. However, once planning permission is granted there is a fundamental change in the legal position: the permission creates rights under the planning legislation for the developer to develop land in accordance with the permission. Those rights are not made defeasible depending on government policy. Rights given by the planning legislation cannot be overridden or diluted by general policies laid down by central government (R (Wright) v Forest of Dean District Council [2019] UKSC 53 at [42]).

An outline planning permission, as a form of planning permission, confers equivalent rights, albeit subject to conditions. The conditions specify in binding legal form the particular areas where the developer must satisfy the planning authority before development can proceed, and they allow the developer to know where it stands. A condition requiring, for example, approval of a tree protection scheme is confined to consideration of matters fairly related to that subject matter; it does not import a general power for the authority to refuse to approve a perfectly acceptable scheme in order to further some other purpose or policy objective. The planning authority must determine an application for approval of a reserved matter “within the terms of the condition.” Where an outline planning permission has been granted, it is not open to the authority to revisit matters approved in principle at the outline stage.

In the present case, the Council and the inspector used the fact that the outline permission was subject to conditions as a basis to say that, before those conditions were discharged, additional measures to promote a different objective — the protection of the Ramsar site — should be taken. None of the conditions in issue (tree protection, surface water drainage, construction management, infrastructure, cycleways, building materials) related to Ramsar site protection or phosphate neutrality. The planning legislation gave the Council no power to introduce such requirements at this stage. Unlike the position for European sites, where the Habitats Regulations provide a statutory basis for requiring an appropriate assessment, national policy and new scientific advice do not confer such a power. If there had been a substantial change in the general planning context, the appropriate remedy was to invoke the procedures for revocation or modification of planning permission under section 107 of the TCPA 1990, which would carry a right to compensation.

Implications

1. Regulation 63 confirmed as applying throughout multi-stage planning processes. Where an appropriate assessment under the Habitats Regulations was not carried out at the outline permission stage — whether by oversight, misinterpretation of law, or because new scientific information has emerged — the assessment provisions in regulation 63 apply at later stages including reserved matters approval and discharge of conditions, before authorisation for a project to proceed is given. The decisions in No Adastral New Town, Wingfield and Swire are endorsed.

2. NPPF policy cannot override rights conferred by planning permission. Once outline planning permission has been granted, the developer acquires rights under the planning legislation. Those rights are defined and delimited by the terms of the permission and its conditions. Government policy — including paragraph 181 (now paragraph 194) of the NPPF — cannot be used to impose additional requirements at the discharge of conditions stage that go beyond what the conditions, properly construed, require. This is a significant clarification of the boundary between legislative rules and policy in the planning system.

3. Conditions must be discharged within their own terms. A planning authority considering whether to approve matters under a condition attached to a planning permission must confine itself to the subject matter of that condition. It cannot use the conditionality of the permission as a platform to introduce extraneous policy objectives. If the authority wishes to prevent a permitted development from proceeding in light of changed circumstances, the proper route is revocation or modification under section 107 of the TCPA 1990, with compensation.

4. The distinction between European sites and Ramsar sites has practical consequences. European sites are protected by the Habitats Regulations, which have the force of law and apply at every decision-making stage by virtue of regulation 63. Ramsar sites are protected only by national planning policy, which can be a material consideration when granting planning permission but cannot override the rights that planning permission, once granted, confers. Developers with outline permission for sites affecting Ramsar sites are in a materially stronger position than those affecting European sites.

5. Implications for the nutrient neutrality issue. The Home Builders Federation intervened to highlight that the Natural England advice on phosphate neutrality, applied at the discharge of conditions stage, had the effect of blocking development near the Somerset Levels. The judgment means that, for sites with existing outline planning permission, the nutrient neutrality requirement cannot be imposed at later stages through NPPF policy alone where the conditions do not address the issue. This may unlock stalled developments, but does not affect the requirement for an appropriate assessment under the Habitats Regulations where a European site (as opposed to a Ramsar site) is in question.

Verdict

Appeal dismissed on Issue 1, allowed on Issue 2.

Issue 1: Regulation 63 of the Habitats Regulations applies at the reserved matters and discharge of conditions stages in a multi-stage planning process. An appropriate assessment is required before any consent or authorisation is given that would allow a project likely to have a significant effect on a European site to proceed.

Issue 2: Paragraph 181 of the NPPF cannot be used to block the discharge of conditions on an outline planning permission where those conditions, on their terms, do not relate to the protection of a Ramsar site. Once outline planning permission is granted, the developer’s rights under the planning legislation are defined by the terms of the permission and its conditions. National policy and new scientific advice do not confer a power to impose additional requirements beyond the scope of those conditions. The proper route for a planning authority that wishes to prevent a permitted development from proceeding is revocation or modification under section 107 of the TCPA 1990, with compensation.

Source: https://supremecourt.uk/uploads/uksc_2024_0108_judgment_f0d130452c.pdf