What Does The Recent High Court Ruling In C G Fry & Son Ltd Mean For House Builders?

• Published date: 03 August 2023
• Subject Matter: Real Estate and Construction, Construction & Planning, Real Estate
• Law Firm: Gowling WLG
• Author: Mr Nick Harding, Freya Jamieson and Cairo Nickolls

The recent case of C G Fry & Son Ltd v SSHCLG [2023] EWHC 1622 exists within the context of nutrient neutrality. Without delving into the science too much, nutrient neutrality aims to mitigate against nutrients (such as phosphates and nitrates) leaching into protected water habitats causing eutrophication, a problem caused by agricultural practices and under-investment in water infrastructure. The threat to nutrient neutrality is exacerbated by water waste (particularly foul water) from new housing developments which contains phosphates. This has already proven to be a significant obstacle for house building in England (evidence from the Home Builders Federation suggests the issue is holding up the construction of 44,000 homes which already have planning permission).

Outline planning permission was granted for the development of 650 houses, a school, and other infrastructure on the Somerset Levels and Moors Ramsar Site in 2015. Despite also securing the discharge of Condition 4 of the outline planning permission (which required the approval of details of a site-wide surface water drainage system) and approval of reserved matters, both the Council and (upon appeal) the Secretary of State's Inspector refused to discharge several of the pre-commencement conditions attached to the planning permission. The refusal was because an appropriate assessment under the Conservation of Habitats and Species Regulations 2017 ("Habitat Regulations") had not been carried out. The Inspector's decision was influenced by Natural England's advice note to the Somerset authorities (2020), which emphasised the importance of carrying out an "appropriate assessment" of projects which threaten 'nutrient neutrality' by giving rise to additional phosphates from foul water discharge.

In this case, the claimant (house builders, C G Fry & Son Ltd) challenged the scope and application, following Brexit, of the Habitats Regulations and questioned whether an appropriate assessment was required at the point a planning condition was to be discharged.

In summary, the High Court dismissed the claimant's case.

This article takes a closer look at this recent decision; exploring the implications for housebuilders, the precautionary steps to take and what this case means for the future.

Summary of the decision

1. Even if planning permission has already been obtained, an appropriate assessment will be required at the discharge of conditions stage and must be undertaken before a condition is...