The Supreme Court has handed down its judgment on Government’s ability to retrospectively require nutrient neutrality for applications that have already secured planning permission. The Court has concluded that the assessment of a development’s effect on Ramsar sites is not required at discharge of conditions stage.
This means, after a lengthy legal battle, CG Fry has won its case.
This is a landmark win for the sector as the implications may reach beyond nutrient neutrality and the status of Ramsar sites.
The ruling reinforces that decision-makers cannot introduce new policy considerations once planning permission, or outline permission, has been granted. In this case, it confirms that outline permission cannot be annulled due to new policy requirements for the applicant to demonstrate nutrient neutrality.
As the court observed: “Rights given by the planning legislation cannot be overridden or diluted by general policies laid down by central government, whether in the form of the NPPF or otherwise”.
The case failed on the first ground as the Supreme Court confirmed that appropriate assessments for European sites are necessary in relation to reserved matters and/or conditions. However, it succeeded on the second ground, which argued that the effect of the development on the Ramsar site was not legally relevant in the context of the conditions in question.
This ruling is significant as it confirms that general material considerations introduced by national policy – such as paragraph 194 in the National Planning Policy Framework (NPPF) that states Ramsar sites should have the same level of protection as European sites under the Habitats Directive – do not apply when a local authority is deciding reserved matters or imposing or discharging planning conditions. Therefore, Government cannot require nutrient neutrality for non-European protected habitats.
In other words, Government cannot make legally irrelevant matters become relevant.
As the Court concluded: “Where an outline planning permission has been granted it is not open to a planning authority to revisit matters which have been approved in principle at the outline state.
“Where an outline permission reserves matters for the subsequent approval of a local planning authority, the extent to which the authority can withhold approval is restricted to what has been expressed to be so reserved and it is not permitted to go back on points of principle which it has accepted by granting permission.
“In the present case…the Council….relied on the policy in para 181 of the NPPF and the new scientific advice given by Natural England to revisit matters which had been approved at the outline stage and did so in a way which could potentially eliminate the possibility of any development taking place within the ambit of the outline permission which had been granted.
“…it was not open to the Council or the inspector…to use the fact that the outline planning permission was granted subject to conditions…as a basis to say that…some additional measures to promote a different objective (ie the protection of the Ramsar site) should be taken. The planning legislation gave them no power to do that, unlike the position in relation to a European site, where the Habitats Regulations apply.”
James Stevens, Director for Cities at the Home Builders Federation (HBF), said: “After a very lengthy legal process, the decision is a very welcome one that could unblock the delivery of thousands of desperately-needed homes.
“Occupiers of new homes make a tiny contribution towards the high nutrient levels in our rivers, which, in the main, are a result of agricultural run-off and water company failings.
“In the interests of accelerating housing delivery, the Government now needs to ensure that proposed changes to Planning and Infrastructure Bill published last week do not undo the Supreme Court decision.”