Supreme Court to rule next week on ‘appropriate assessment’ and subsequent approvals

The second issue to be addressed in 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) is:

What is the effect of a grant of outline planning permission, and what is the impact on that grant of a policy adopted by the government and a change of scientific advice bearing on the application of that policy?

The background to the case is that in December 2015, outline planning permission was granted to the appellant developer, C.G. Fry, for a mixed-use development of up to 650 houses. The development was to take place in eight phases.

In June 2020, C.G. Fry obtained reserved matters approval for phase 3 which was subject to several pre-commencement conditions.

No appropriate assessment under the Habitats Regulations had been undertaken when outline planning permission was granted nor subsequently at the reserved matters stage.

In August 2020, after the reserved matters approval, Natural England issued an advice note identifying the potential adverse effects of development upon the integrity of the Somerset Levels and Moors Ramsar site.

The site of the proposed development is in the catchment area of the River Tone, where there is a risk that new developments will generate phosphates in wastewater and surface water entering the river, with consequent effects on the Ramsar site (a site classified under the Convention on Wetlands of International Importance). Natural England advised that an appropriate assessment should be undertaken.

In June 2021, C.G. Fry sought discharge of various pre-commencement conditions of the reserved matters approval. If the conditions were discharged, the construction of phase 3 of the development would become lawful.

Somerset Council withheld approval on the basis that an appropriate assessment under the Habitats Regulations was required before the conditions could be discharged.

An inspector appointed by the Secretary of State dismissed C.G. Fry’s appeal against the failure of Somerset Council to discharge conditions.

C.G. Fry appealed under s.288 of the Town and County Planning Act 1990. The High Court and Court of Appeal dismissed C.G. Fry’s appeals.

C.G. Fry appealed to the Supreme Court.

The case was heard on 17-18 February by a Supreme Court panel comprising Lord Reed, Lord Sales, Lord Hamblen, Lord Stephens and Lady Simler.