TGI Fry Day: Court of Appeal clarifies law on nutrient neutrality in CG Fry & Son Ltd v SSLUHC 

Whilst it might not have taken quite as long as the Supreme Court's decision in Finch, it is fair to say that the Court of Appeal's decision in CG Fry & Son Ltd v SSLUHC has been eagerly awaited. 

The case considers whether nutrient neutrality requirements can be imposed on an reserved matters or condition discharge applications even though the original permission pre-dated the Natural England guidance that introduced the requirement.

Last June, the High Court decided that they could.  The key points from the High Court decision were as follows:

• While on a strict reading of the Habitats Regulations 2017 the need for an appropriate assessment does not cover the discharge of conditions, they do apply as a result of article 6(3) of the Habitats Directive; a purposive interpretation of the provisions of the regulations and domestic case law within England (para 48 of the decision);
• The Habitats Directive and Habitats Regulations 2017 mandate that an appropriate assessment be undertaken before a project is consented. That applies irrespective of the stage the process has reached according to UK planning law  (para 64). 
• If an appropriate assessment is required, then it can be carried out at any stage at which a decision is made - be that grant of planning permission, reserved matters or condition discharge.  
• If an assessment is carried out at condition discharge stage, then it is not limited to matters related to the condition in question. The assessment still relates to the project as a whole (para 69). 

The case was then taken to the Court of Appeal  and after much discussion and a two day hearing in March, we finally have the decision! 

The decision is an important one because nutrient neutrality is a significant impediment to housebuilding in affected parts of the country. Whilst all three major parties have made some sort of promise to address the issue…. exactly how that is to be done is somewhat dependent on the Court of Appeal's decision in this case… 

So… what did the Court of Appeal actually decide… well… they wholeheartedly agreed with the High Court on all counts.

Key extracts from the Judgment are set out below. The full text can be found here:

" 74. What, then, is the correct interpretation of the provisions of the Habitats Regulations with which we are concerned? We must begin with the domestic legislation as it is drafted. Applying normal principles of statutory interpretation, there is nothing in the 
relevant provisions to exclude the requirement for an appropriate assessment to be undertaken either when reserved matters are being approved or when conditions are being discharged, if the “authorisation” in question is necessary to enable the project to 
be lawfully implemented.

75. Given their natural and ordinary meaning, the words of regulation 63 clearly admit that possibility. The obligation imposed on a competent authority by regulation 63 is framed 
in broad terms. It makes necessary the carrying-out of an “appropriate assessment” before the authority decides to give “any consent, permission or other authorisation” for a plan or project. This formulation is clearly designed to capture a wide range of “authorisations”, of differing kinds; hence the use of the expression “or other authorisation”. It displays the essential purpose of the assessment provisions, which is to avoid any risk of harm to the integrity of a protected site. On a straightforward 
reading of the language used, having regard to that legislative purpose and to the underlying precautionary principle, the range of authorisations embraced in the provision extends, in our view, beyond the initial stage in the relevant process of 
decision-making. Any other interpretation would, we think, be incompatible with the 
words of the provision, inconsistent with the legislative purpose, and inimical to the precautionary principle.

76. Understood in this way, regulation 63 allows an appropriate assessment to be 
undertaken when the authority is making the final decision in a sequence authorising the development to proceed. Where that process involves the granting of outline planning permission for the proposed development and the subsequent submission and approval of reserved matters or the discharge of conditions, regulation 63 does not prevent the appropriate assessment of the project being carried out at that later stage as an exercise required before the decision is taken. In principle, it is not too late for such 
an assessment to be undertaken either when an approval of reserved matters is applied for or when the authority is called upon to discharge “pre-commencement” conditions, whose effect is that development carried out in breach would not be authorised by the planning permission…."

“85. Taken together therefore, regulations 63 and 70, both as applied directly to European sites under the habitats legislation itself and when given equivalent practical effect for Ramsar sites under national planning policy in paragraph 181 of the NPPF, allow for appropriate assessment to be undertaken at the final stage in a multi-stage consent process. Indeed, where the provisions for appropriate assessment are engaged, these two regulations have the effect of requiring such an assessment to be carried out before development is authorised to proceed by the “implementing decision”. If this were not so, there would be a gap in the regime for assessment, which would enable development to proceed with potentially harmful effects on a protected site, for lack of an assessment at the initial stage, when outline planning permission is granted. ”

In short, the Court of Appeal has upheld the status quo. If the next government wants a practical and effective national solution to nutrient neutrality issues, they are going to have to find one themselves. The answer will not be found in the Courts.

As the Court of Appeal reminded us:*

"8. In a democracy governed by the rule of law the courts exceed their proper role if they venture into the realms of politics and policy. Our task is simply to uphold the law as it is."

Now… after all that… who is up for a giant burger and a novelty cocktail with a sparkler in it…. It is  Friday after all!

*in the second half of para 8 of the decision.

Ps. Thanks to Jonathan Easton KC for help with the title for this blog. I might have slightly altered it - the original was a little less safe for work…