Supreme Court Clarifies Role of Planning Authorities in ‘Nutrient Neutrality’ Case

The Supreme Court judgement overturns a previous Court of Appeal decision that had upheld Somerset Council’s refusal to discharge conditions for the third phase of a 650-home development near Wellington. The refusal had been based on concerns about nutrient impacts on protected habitat sites.

 

This landmark decision clears the way for developer CG Fry to progress with the third phase of its 650-home scheme in Somerset.   

 

Outline permission had originally been granted by Somerset Council in 2015, followed by reserved matters approval in 2020.   The Applicant then applied to discharge the pre-commencement conditions attached to the 2020 approval, and this is when the Council subsequently refused to discharge some of the conditions, citing a need for an Appropriate Assessment under the Habitats Regulations due to potential nutrient impacts on the Somerset Levels and Moors Ramsar site.

 

The Applicant then appealed the decision and a Court of Appeal ruling upheld the refusal, on the grounds of nutrient impact on protected habitats sites. 

 

However, the Supreme Court found that the lower courts failed to recognise the developer’s established planning rights.

 

The Court ruled that the grant of outline permission gives developers the right to progress in line with that consent, and that councils cannot use later approvals to pursue unrelated policy objectives.   It concluded it was "therefore not open to the council or the inspector in this case to refuse to discharge the sub-conditions on the basis that additional measures were required to promote the protection of the Ramsar site”.   It also confirmed that the Habitats Regulations 2017 still apply where relevant, including at reserved matters and condition discharge stages.

 

This decision allows CG Fry to move forward with the third phase of its scheme and provides welcome clarity for both developers that planning authorities "cannot revisit matters at detailed planning application stage which have already been approved at outline stage".

 

At DHA Planning, we continue to monitor the evolving implications of nutrient neutrality and other environmental regulations, ensuring our clients are fully supported through each stage of the planning process.