Nutrient neutrality in the High Court

CG Fry & Sons Ltd v SSLuHC (CO/12/2023)
14 Jun 2023

Public Law and Judicial Review, Planning and Environment, Cornerstone Climate

The High Court today begins to hear two days of argument about the correct interpretation of the Habitats Regulations 2017, since the UK left the EU.

The issues in this case are:

  • whether, at the point a condition on a reserved matters approval is to be discharged, an appropriate assessment is required; and
  • if it is to be required, is it the scope of the entire project which falls for assessment or simply the effects of the condition under consideration.

The issues arise in this case because, in 2015, planning permission had been granted in outline for up to 650 homes at Jurston Farm, Wellington. In June 2020, reserved matters approval was given for a number of aspects of that scheme, subject to further conditions. However, in August 2020, Natural England published an advice note to the Somerset councils concerning the risk of water discharge from new development increasing nutrient loads, causing an adverse effect on the Somerset Levels and Moors Ramsar site.

When the developer sought to discharge the conditions (all bar one of which were disconnected to water discharge), the Council considered that because likely significant effects of the entire project could not be ruled-out, an appropriate assessment of the entire project under the Regulations was required. The Inspector agreed and refused to discharge any of the conditions. It is the Inspector’s decision that gives rise to the claim.

The Home Builders Federation has provided evidence that due to a lack of mitigation options for nutrient neutrality, 44,000 homes which already have planning permission cannot be built, which is around 25% of the annual supply of new homes in 2022.

Ashley Bowes appears for the Claimant developer, CG Fry & Son Ltd, together with Charles Banner KC, instructed by Tara Moseley of Clarke Willmott.

The case, CG Fry & Sons Ltd v SSLuHC (CO/12/2023) is listed to be heard in the RCJ in London between 14-15 June 2023.