CG Fry: Supreme Court upholds application of Habitats Regulations at reserved matters and discharge of condition stage

Public Law and Judicial Review, Planning and Environment

Today the Supreme Court handed down its decision in C.G. Fry & Son Limited v Secretary of State for Levelling Up, Housing and Communities & Somerset Council [2025] UKSC 35, which considers the Habitats Regulations 2017 and the Ramsar Convention (available here).

At the heart of the dispute is the stage at which “nutrient neutrality” rules apply. These require developers carrying out relevant development upstream in the same water catchment to avoid or offset the additional nutrients (specifically phosphates or nitrates) that would enter the catchment as a result of their development. CG Fry argued that the nutrient neutrality rules cannot legally apply to subsequent stages of the development control process such as, in this case, the discharge of conditions stage, where the development has been found to be acceptable at the outline permission stage.

Habitats Regulations

Although the Supreme Court allowed the appeal, it rejected CG Fry’s key submission about the Habitats Regulations, with Lord Sales (writing for the unanimous court) making it clear that, given the importance of the issue and the full argument heard, it was appropriate for the Court to give guidance (§43).

The Court held that the plain language and purpose of the Habitats Regulations should be understood together (§46) and emphasised that purpose of the Regulations is to impose a high degree of protection for vulnerable habitats and to ensure “careful scrutiny of development proposals likely to have an impact on such habitats with a view to minimising of avoiding such impact” (§47). This reflects the precautionary principle (§50), described in argument as imposing a duty on public authorities to act cautiously in the face of uncertainty about the potential impacts of a proposed development on a protected site. Neither Brexit nor the Withdrawal Act had made any difference to this (§51).

Given the deliberately broad language of regulations 62-64, and the precautionary purpose of the Habitats Regulations, the Court held that regulation 63 applies to a decision to give reserved matters approval or to discharge conditions attached to such an approval that would result in authorisation for the project to proceed (§56). This could result where the planning authority has for any reason failed to carry out an appropriate assessment when deciding whether to grant outline planning permission: the Court gave the examples of where the failure is mere oversight, or misinterpretation of the law, or ignorance or misunderstanding of the relevant science, or where there is new scientific information (such as Natural England’s advice on nutrient neutrality).

Ramsar Sites

The appeal succeeded because the Court held that a different approach must be taken to Ramsar sites. The nature protection interest in specific issue in the case is the Somerset Levels & Moors, an internationally important site for bird conservation, protected as a Special Protection Area under the Habitats Regulations, and a globally important wetland under the Ramsar Convention, relevant through (now) paragraph 194(b) of the NPPF. That paragraph requires as a matter of planning policy that the same protection be given to Ramsar sites as is given to those protected under the Habitats Regulations. The Council had relied on the Ramsar protection in the NPPF to withhold approval for discharge of various conditions (§§10-11).

The Court held that because the protections are extended through planning policy rather than via legislation, a different approach was required. Given the grant of outline planning permission settles the principle of development which cannot be revisited (§§65-66), and  conditions are confined to consideration of matters fairly related to their subject (§§66-69), it was not open in this case to the Council to rely on the new scientific advice and potential impact on the Ramsar site to refuse to discharge the conditions. Impact of the development on the Ramsar could not be considered at the discharge of conditions stage if the objective of the condition(s) in question did not promote the protection of Ramsar sites (§70).

Implications of the judgment

On the Habitats Regulations, the judgment means that appropriate assessment may be required at reserved matters or discharge of condition stage where development was granted outline permission before Natural England’s updated advice and before decision-makers were aware of how nutrient pollution could harm Special Areas of Conservation and Special Protection Areas.

On Ramsar Sites, the judgment does not rule out the relevant of the protections and the need for assessment at later stages after grant of outline planning permission. Although the judgment does not expressly consider this question, it stands to reason that if conditions applied at reserved matters stage expressly relate to or impact on Ramsar sites, or have an objective that promote the protection of those Ramsar sites, then such protection would be a material consideration when deciding whether to discharge that condition. There may well be further litigation on this issue, as the Court does not give guidance on whether, for example, a foul water drainage condition could allow for reference to be made to Ramsar protections.

The impact of the judgment on Ramsar sites may be short lived. Schedule 6 of the Planning and Infrastructure Bill (currently in its final stages in Parliament and expected to become law by Christmas) would make Ramsar sites legally equivalent to Habitats Regulations sites.

Estelle Dehon KC, Nina Pindham and Hannah Taylor (instructed by Ricardo Gama at Leigh Day) represented interveners Wildlife and Countryside Link, which is the largest coalition of environment and wildlife organisations in England, bringing together 86 separate organisations concerned with the protection of nature.

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