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Today the Supreme Court has handed down its judgment in CG Fry & Sons Limited v. Secretary of State for Housing, Communities and Local Government [2025] UKSC 35.
The case concerned a housing scheme for which outline permission had been granted and reserved matters had been approved. However, the conditions on the reserved matters approval had been refused, because of the effect of additional nutrient loading on the nearby Ramsar site.
The issues before the Court were whether the Habitat Regulations 2017 applied to the discharge of conditions on a reserved matters approval (Ground 1) and, if they did, whether the fact the Regulations only applied by virtue of policy in the NPPF was a lawful operation of the discretion to discharge a condition (Ground 2).
The Court unanimously allowed the appeal on Ground 2. Lord Sales (with whom the other Justices agreed) held that the conditions were not relevant to the issue of nutrient loading on the Ramsar site and, therefore, it was unlawful to use the discretion to discharge the conditions to promote an unconnected purpose. The policy in the NPPF (to treat Ramsar sites as equivalent to sites protected by the Regulations themselves) was legally incapable of making material what would otherwise be immaterial. It followed that the decision to refuse to discharge the conditions was unlawful and the decision would be quashed.
The Court however rejected the appeal on Ground 1. Lord Sales (with whom the other Justices agreed) held that whilst Regulation 70 Habitat Regulations was indeed confined to a grant of planning permission, however that did not mean that Regulation 63 Habitat Regulations should not apply to subsequent approvals (e.g. discharge of reserved matters or conditions). The Court held that followed as a matter of ordinary language and was supported by a purposive interpretation of the Regulations.
We will shortly be announcing a webinar where we will discuss the key takeaways and wider implications of the judgment.
Dr Ashley Bowes and Matthew Henderson appeared (with Lord Banner KC) for the successful Appellant, CG Fry (instructed by Clarke Willmott LLP (Taunton).
Richard Moules KC and Nick Grant appeared (with Sir James Eadie KC) for the Secretary of State (instructed by the Government Legal Department).
Luke Wilcox appeared for Somerset Council (instructed by Somerset Council Legal Team).
Zack Simons KC and Matthew Henderson appeared for the Home Builders Federation and The Land, Planning and Development Federation.
