Citation: [2025] UKSC 35
CG Fry & Son Ltd has won their Supreme Court Appeal – appropriate assessment of a development’s effect on Ramsar sites is not required at discharge of conditions stage.
The Court has unanimously allowed CG Fry’s appeal, reversing the decisions of the courts below which had upheld an Inspector’s decision to dismiss CG Fry’s s.78 planning appeal against Somerset Council’s non-determination of applications to discharge pre-commencement conditions on the reserved matters approval for Phase 3 of their Jurston Farm development.
The Council had declined to discharge the conditions on the basis that:
- An appropriate assessment of the impact of the development on the Somerset Levels Ramsar, as a result of phosphate pollution from waste water, was required and (following advice from Natural England) adverse effects on the integrity of the Ramsar could not be ruled out in the absence of a nutrient neutrality scheme which was not at the time available; and
- The effect of Regulation 63 of the Habitats Regulations, as applied to Ramsar sites by the NPPF (paragraph 194 of which says Ramsar sites “should be give the same protection as habitats sites”) was that the conditions could not be discharged even though they concerned matters such as tree root protection zones and street future the details of which had no phosphate consequences.
CG Fry appealed to the Planning Inspectorate and following an inquiry in August 2022 the Inspector dismissed the appeal, agreeing with the Council’s position as summarised above. The High Court and Court of Appeal upheld the Inspector's decision.
Over three years after the inquiry, and following four rounds of litigation, they have been vindicated. The Supreme Court agreed with their submission (under Appeal Ground 2) that the effect of the development on the Ramsar site was a legally immaterial consideration in the context of the conditions in question, and NPPF para. 194 could not make material that which was legally immaterial.
The effect of this is that the thousands of consented homes that were long held up across Somerset due to the stance taken by central and local government were unlawfully held up. When and where nutrient neutrality solutions in Somerset were finally identified, those developers making s.106 contributions for them to unlock sites which had permission but could not get pre-commencement conditions discharged, will have parted with huge sums which in light of the judgment should not have been demanded as a pre-requisite of discharging these conditions.
Lord (Charles) Banner KC appeared for CG Fry, leading Dr Ashley Bowes & Matthew Henderson of Landmark Chambers. Instructed by Clarke Willmott.
A copy of the judgment can be downloaded here: C G Fry & Son Limited (Appellant) v Secretary of State for Housing, Communities and Local Government (formerly known as Secretary of State for Levelling Up, Housing and Communities) and another (Respondents)
