Housebuilder loses landmark nutrients case

A judge has rejected a landmark legal challenge by housebuilder CG Fry over the nutrient neutrality crisis, ruling that planners were right to refuse to permit a 650-home application on the Somerset levels without an environmental assessment.

In a key High Court decision, judge Sir Ross Cranston ruled that the provisions of the Habitats Regulations did apply to developments such as the one at issue, where the problem of nutrient pollution was only raised after outline permission had already been granted, and while the housebuilder was attempting to discharge planning conditions.

CG Fry is understood to be considering whether to appeal the decision.

CG Fry had seen its planning application for 650 homes in Wellington, Somerset initially approved, before the local council then declined to discharge final conditions after Natural England said the area was at risk of nutrient pollution.

The council’s decision was later upheld by a planning inspector, prompting CG Fry to take legal action against both Somerset West and Taunton council and the Secretary of State for Levelling Up, Housing and Communities.

CG Fry’s lawyers had argued in court that as the grant of planning conditions was not the grant of full planning permission, there should be no requirement to undertake an appropriate assessment of likely phosphate pollution from the development – the assessment which triggered a refusal.

However, Judge Cranston said that while “on a strict reading of the Habitats Regulations 2017” this was correct, he said the application of the Habitats Directive and case law meant that an appropriate assessment was necessary with discharge of planning conditions, otherwise this key stage of environmental protection would be missed.

He said: “Application of the Habitats Directive and a purposive approach to the interpretation of the Habitats Regulations 2017 require the application of the assessment provisions to the discharge of conditions.

“The strict precautionary approach required would be undermined if they were limited to the initial - the permission - stage of a multi-stage process.”

The High Court decision backing this view came despite the Home Builders Federation submitting evidence during the court case suggesting that of the approximately 120,000 homes estimated to be held up in planning due to the nutrient crisis, around 44,000 are being blocked at reserved matters or discharge of conditions stage.

The court action is thought to be one of the first significant legal cases to challenge the law around the nutrient neutrality crisis, which stems from a European Court of Justice case which ruled that public authorities could not make decisions which would cause harm to EU-protected sites, such as those under the Habitats Directive.