Nutrient Neutrality Requirements: Developer Implications
Court ruling impacts housebuilding: Nutrient neutrality clarified. Developers face higher costs, delays, and environmental duties.
In the landmark decision, the Court of Appeal has clarified the application of nutrient neutrality requirements in planning applications, particularly in the case of C G Fry & Son Limited vs SSLUHC and Somerset Council (2023). While not the outcome that many in the development industry were anticipating, this ruling is crucial given the significant impact of nutrient neutrality on housebuilding across affected regions. The result will inevitably lead to more cost and delay to developers.
The crux of the case was whether nutrient neutrality requirements could be imposed on reserved matters or condition discharge applications when the original planning permission (Reference 43/14/0130) was granted before the introduction of the Natural England guidance. Last June, the High Court confirmed that these requirements could indeed be imposed, prompting an appeal.
The Claimant raised three points of appeal:
Whether the High Court judge made an erroneous decision by determining that regulation 63 of the Habitat Regulations 20171 was applicable during the discharge of conditions stage.
Whether the judge's decision was incorrect in affirming that the policy outlined in paragraph 181 of the National Planning Policy Framework2 (NPPF), which provides protection to Ramsar Sites, should be considered as a material consideration.
Whether it was inaccurate to conclude that an 'appropriate assessment' as defined by the Regulations was only necessary for matters influenced by the conditions for discharge, rather than for the development itself.
Following a detailed two-day hearing in March, the Court of Appeal upheld the High Court’s decision on all counts.
On points 1 and 3, the Court of Appeal concluded that the High Court appropriately applied a purposive approach to the interpretation of the law. Limiting an appropriate assessment to the initial stages of planning consent would undermine the intention behind the Habitat Regulations 2017. The purpose of an appropriate assessment is to evaluate the impact of the entire development on the integrity of the site (rather than specific conditions or parts of the development). In this case, such an assessment had not been conducted.
On ground 2, the Court upheld the judge’s decision to consider paragraph 181 of the NPPF. The policy’s objective of preventing harm to protected sites was linked to the potential consequences of discharging the conditions and authorising Phase 3 of the development. Phosphates would have been generated by allowing the development to proceed which would have a detrimental effect on the Somerset Levels and Moors Ramsar Site. The Court deemed these ramifications to underscore the importance of taking into account paragraph 181 as a material consideration.
This decision reinforces the existing legal framework for nutrient neutrality in planning and the ruling provides essential clarity on nutrient neutrality requirements and their application within the planning process. However, this decision signals further delays and increased uncertainty for developers when obtaining planning permission. Additionally, the decision by the Court of Appeal places responsibility on developers to address and mitigate the negative effects of their developments on the environment, especially when these developments are near protected sites.
To discuss how this ruling impacts you or any other planning matter, please contact the team.
[1] Regulation 63 of the Habitats Regulation 2017
[2] Paragraph 181 of the National Planning Policy Framework
