A ruling from the Supreme Court yesterday could give the green light to the construction of thousands of new homes.
The court case, brought by Dorset-based CG Fry & Son Ltd., questioned whether so-called nutrient neutrality rules apply in cases where a development received planning permission before the introduction of Natural England鈥檚 guidance on the issue.
Nutrient neutrality is a concept that aims to prevent land use or development from increasing the level of harmful nutrients, such as phosphates and nitrates, in vulnerable watercourses and catchments. This has led to significant delays and stalled planning applications affecting housing developments across the country.
CG Fry & Son was given outline planning permission for a development of 650 homes at Jurston Farm in Wellington, Somerset in 2015.
But it has been unable to build the third phase of the scheme after Somerset Council said it did not meet nutrient neutrality rules which were introduced by Natural England in August 2020.
CG Fry appealed to the Planning Inspectorate and following an inquiry in August 2022 the inspector dismissed the appeal. The High Court and Court of Appeal subsequently upheld the inspector鈥檚 decision.
The case hinged on the proper interpretation of the Habitats Regulations 2017, the legal effect of the grant of an outline planning permission and the impact of a subsequent change in the application of policy.
Earlier this year CG Fry & Son obtained an order for permission to appeal to the Supreme Court and today the court, presided over by Lord Reed, delivered its judgment in CG Fry v Secretary of State for Housing, Communities & Local Government 鈥� ruling unanimously in Fry鈥檚 favour.
The company was represented by Lord Banner KC and 聽Ashley Bowes plus Kary Withers, partner in Clarke Willmott鈥檚 property litigation team, associate Tara Moseley and Caroline Waller, partner in the planning and environmental team.
Caroline Waller said: 鈥淭his important decision will result in housing developments being able to proceed where the relevant planning consent has been obtained but is currently stalled due to nutrient neutrality.
鈥淭he case will also have wider legal implications around the scope of matters to be considered in the discharge of planning conditions more generally.鈥�
Lord Banner said: 鈥淭he 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.
鈥淲hen and where nutrient neutrality solutions in Somerset were finally identified, those developers making Section 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.鈥�
Philip Fry, managing director of CG Fry, said: 鈥淐G Fry & Son are pleased that the Supreme Court has ruled in our favour. 聽This marks the end of a time-consuming and costly process for us as an SME developer. It is deeply frustrating that it has taken over three years to reach this conclusion 鈥� a delay that could have driven many other small developers out of business.
鈥淭he prolonged legal proceedings have caused significant delays and unnecessary expenses in delivering both private and affordable homes, which are urgently needed in Wellington. Additional costs arising from such legal challenges further exacerbate viability issues across the industry, making it even harder for SME developers to deliver much-needed housing.
鈥淲ith this matter now resolved, we can focus on what the government has tasked us with: delivering high-quality homes for our communities.
鈥淲e extend our sincere thanks to Lord Banner KC, the Home Builders Federation (HBF) and the Land, Planning & Development Federation (LPDF) for their invaluable support throughout this process.鈥�
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