Major nature charity intervenes in CG Fry Supreme Court appeal being heard today
Public Law and Judicial Review, Planning and Environment, Cornerstone Climate
Today the Supreme Court begins hearing the appeal in C.G. Fry & Son Limited v Secretary of State for Levelling Up, Housing and Communities & Somerset Council, which will consider the Habitats Regulations 2017 and the Ramsar Convention. Wildlife and Countryside Link (Link) are intervening in writing, as an independent voice for nature protection interests, represented by Estelle Dehon KC, Nina Pindham and Hannah Taylor. Link is the largest coalition of environment and wildlife organisations in England, bringing together 86 separate organisations concerned with the protection of nature.
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. The Court of Appeal was told that “the law as it stands is a problem”. Link’s submission is that the problem is the harmful accumulated phosphate and/or nitrate pollution which has left no ecological buffering capacity and which causes harm to internationally important sites.
In short, CG Fry is arguing 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. All parties to the appeal have pointed out or accepted that, if the appeal is successful, harmful development could proceed without addressing its pollution impacts on internationally important nature conservation 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.
Link’s arguments
Link argues that it would be contrary to how multi-stage consulting works, both in principle and in practice, to interpret the Habitats regime as a one-shot system, where appropriate assessment either happens at the earliest possible stage or else the chance is lost. It would have the perverse result of making outline permission more time-consuming and challenging to obtain and the planning process significantly less flexible. Full details of potential impacts and mitigation would have to be front-loaded in the process. Those details could not thereafter be conditioned or changed in the normal way when conditions are discharged. The utility of Grampian conditions would be significantly reduced or nullified.
Link also emphasises the purpose of the Habitats Regulations is to impose 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. The precautionary approach is the purpose of the Habitats Regulations and the plain language of the Regulations, understood in light of the planning context and the precautionary purpose, is a complete answer to the appeal. Link further reinforces the argument by separately identifying that the precautionary principle is a freestanding principle of English environmental law.
Link is represented by Estelle Dehon KC, Nina Pindham and Hannah Taylor, instructed by Ricardo Gama at Leigh Day (press release about permission to intervene here).
