The Supreme Court has recently overturned a Court of Appeal ruling, which provides much-needed clarification on the rights given by the granting of outline planning permission.  The Court ruled in favour of CG Fry & Son Ltd (CGF), confirming that only legally material considerations apply when discharging planning conditions. Ramsar sites are not protected under current habitat regulations unless Parliament changes the law.  The decision arrives amid debate over the Planning and Infrastructure Bill, which could redefine Ramsar protections and impact housing delivery.  Regulatory uncertainty had previously delayed thousands of homes in Somerset.

Overview

Developer CGF was granted outline planning permission in 2015 for mixed-use development in Somerset, including the construction of up to 650 houses.  A reserved matters application was approved in 2020, just prior to Natural England issuing an advice note stating that proposals on sites at risk of eutrophication (nutrient-induced plant growth which harms aquatic life) should have a Habitats Regulation Assessment undertaken to demonstrate nutrient neutrality. 

Case Background and Ruling

When CGF applied to discharge pre-commencement conditions for the reserved matters approval, the Council withheld approval, on the basis that the assessment was required.  This halted the entire development.  CGF’s Jurston Farm development was found not to require assessments for conditions unrelated to phosphate pollution.  While Regulation 63 applies to condition discharge, it does not cover Ramsar sites.  The Court ruled that planning policy cannot override statutory limits, providing clarity after years of legal challenges and delays.

This decision was appealed and dismissed, and subsequently challenged and dismissed in both the High Court and Court of Appeal.

CG Fry then appealed to the Supreme Court. The Supreme Court found that the granting of an application creates rights that cannot be overridden or diluted by government policy. 

The Court confirmed Regulation 63 applies to multi-stage planning, including reserved matters and condition discharge.  Regulation 70 does not prevent later assessments, and the precautionary principle supports reassessment if circumstances change.  Material considerations remain broad and include national policy and expert advice.

The effect of this can be summarised as the below paragraph from the Supreme Court ruling:

“Consequently, where outline planning permission reserves matters for the subsequent approval of a local planning authority, the extent to which the authority can withhold its approval is restricted to what has been expressed to be so reserved.  The authority is not permitted to go back on points of principle which it has accepted by granting the permission.”

When considering conditions, the power of a planning authority to refuse approval is limited by the terms of the condition itself and cannot be refused for other purposes.

Implications for Industry

Planning permission grants legal rights that cannot be revisited or diluted by policy.  Changes must follow formal procedures with compensation.  Condition discharge is governed by the original consent, not broader planning considerations.

This change will help unblock housing delivery, a key priority for Labour since coming to power in July last year, by enabling development in areas with ecological designations that are not protected under the Habitats Regulations, such as Ramsar sites.  According to data from the Home Builders Federation, around 44,000 homes that already have planning permission were previously stalled due to the absence of a nutrient neutrality solution.

Planning and Infrastructure Bill and Future Impact

The Planning and Infrastructure Bill could elevate Ramsar sites to European status, increasing legal obligations and potentially slowing housing delivery.  It also proposes a system where developers can offset impacts via Environmental Delivery Plans and levies.  Timely implementation is essential to avoid further delays as the window of opportunity could change.  

Looking Ahead

Proposals to extend habitat regulations to Ramsar sites face opposition and may conflict with government aims to streamline planning.  Updated flood maps and nutrient-neutrality rules continue to affect development, though recent site releases offer hope.   

Small and medium-sized housebuilders in the Somerset Levels are beginning to move forward after facing delays and financial strain from nutrient-neutrality rules.  With some sites now released, there's renewed optimism for progress, even as discussions continue around improving the planning process and resolving past challenges.

Lambert Smith Hampton’s Planning Team has expertise in obtaining planning consent for major developments.  Please contact our team if you have any queries as to how this recent ruling could affect your site.