In 2015 C G Fry & Son Ltd were granted outline planning permission by Somerset Council for a mixed-use development consisting of 650 houses and occurring in 8 phases. The first two of these phases went ahead successfully. For phase 3 the council refused to discharge the pre-commencement planning conditions on the basis that the development required the appropriate assessment under the Conservation of Habitats and Species Regulations (2017). The purpose of this assessment is to evaluate the potential for nutrient pollution resulting from a development. In certain designated areas with a high sensitivity to phosphorus and/or nitrogen, the Local Planning Authority (LPA) must refuse permission for these developments unless it can be shown beyond all reasonable scientific doubt that the development will not contribute towards nutrient pollution in the catchment. In 2020 Natural England issued an advice note to Somerset’s local authorities labelling the Somerset Levels and Moors Ramsar Site as one such zone. In response to the LPA’s refusal to discharge planning conditions C G Fry & Sons Ltd took the issue to the Court of Appeal on the basis that nutrient pollution was not a material consideration, falling outside of the legal parameters at the time of submitting the planning application.
On 28th June 2024 C G Fry & Son Ltd’s case was ultimately dismissed by the Court of Appeal on three points. Firstly, the continued ‘direct effect’ of Article 6(3) of the Habitats Directive, a piece of EU legislation. Secondly, a purposive approach should be taken to the interpretation of the Habitats Regulations. Lastly, the precedent laid out by the binding case law in previous similar cases.
The implications of this ruling for UK government’s Nutrient Neutrality policy are substantial. Most importantly it illustrates in clearly that both LPAs and the legal system are committed to enforcing Nutrient Neutrality in the designated areas. This is a welcome show of intent to those invested or considering entering land into Nutrient Neutrality projects especially after the attempt by the Government to remove protections and allow LPAs to proceed with the development of 100,000 new homes in Nutrient Neutrality areas in September 2023 (GOV.UK, 2023). Less welcome to those trying to build houses in such areas.
By extension, this commitment to the Nutrient Neutrality Scheme reasserts there should be significant demand for the production of Nutrient credits through offsite nutrient mitigation schemes controlled by private landowners. In a statement from the Home Builders Federation (HBF), it was outlined that nutrient pollution was postponing an estimated 120,000 homes across England, many of which having partially secured planning permission. This figure will almost certainly increase following the government’s proposal in June 2024 to introduce mandatory housing targets with the goal of building 1.5 million houses (GOV.UK, 2024). Nutrient Neutrality projects currently offer one of the key solutions to this problem, yet mitigation options are described as ‘extremely sparce’, again by the HBF. This therefore presents an opportunity to landowners in these designated catchment areas to produce offsite nutrient mitigation schemes, thus enabling these developments to proceed.
However, it is important to note that this case is not settled. As of July, the lead council for C G Fry announced that they had secured a certificate allowing them to apply straight to the Supreme Court, effectively cutting out the Court of Appeal. This issue will need to be followed closely as it progresses to the Supreme Court as it could provide the ultimate clarity on the future of the Nutrient Neutrality Scheme.