KPPC has welcomed a landmark ruling from the Supreme Court with implications for development sites held up by local authorities on nutrient neutrality grounds.
Judges overturned decisions made at the High Court, Court of Appeal and Planning Inspectorate to set a new precedent on how protected sites and nutrient neutrality are handled by councils.
The case was brought by Dorset-based developer CG Fry & Son in relation to outline planning permission received in 2015 for a 650-home scheme at Jurston Farm, Wellington, near the protected Somerset Levels wetland.
Somerset Council blocked the final phase of the development, citing nutrient neutrality rules introduced in 2020 by Natural England.
CG Fry argued that the nutrient neutrality rules cannot legally apply to subsequent stages of the development control process, such as the discharge of conditions stage, where the development has been found to be acceptable at the outline permission stage.
The Supreme Court ruled that rights conferred by a grant of planning permission are defined by that grant and cannot be overridden or diluted by government policy.
Its ruling stated that the ‘imposition of a condition does not import a general power for the planning authority to refuse to give approval in order to further a purpose or policy objective which is not fairly related to the subject-matter of the condition’.
In the CG Fry case, this related to nutrient neutrality and the Somerset Levels as a Ramsar designated wetland.
Conditions set out in the outline permission allowed no reference to the objective of the protection of the Ramsar site.
The ruling found that ‘it was therefore not open to the council or the inspector in this case to refuse to discharge the sub-conditions (i.e. by giving approval in relation to the matters reserved under them) on the basis that additional measures were required to promote the protection of the Ramsar site’.
The ruling is very welcome and should mean that more housing developments will be able to go ahead where planning permission has been gained but has been blocked on grounds of nutrient neutrality.
In some cases, planning authorities have been refusing to issue discharge of condition permissions by arguing that in any application – including applications for approval of condition details such as colour of bricks or landscaping – that the development came under nutrient neutrality rules; effectively meaning the council refusing to issue planning permission.
This has been true for developments with planning permission in such locations as Christchurch, in the BCP Council area.
The ruling is also expected to have wider legal implications for the scope of matters to be considered in the discharge of planning conditions generally.
A panel consisting of Lord Reed, President Lord Sales, Lord Hamblen, Lord Stephens and Lady Simler gave the judgement on October 22 following a hearing on February 17 and 18.
Read the full judgement here: https://supremecourt.uk/uploads/uksc_2024_0108_judgment_f0d130452c.pdf
