The Supreme Court has ruled that local authorities cannot apply updated environmental planning policies to block housing developments that already hold outline planning permission, in a landmark case with national implications for nutrient neutrality rules.
The judgment clarifies that councils cannot retroactively impose new environmental requirements—such as nutrient neutrality—on developments that have already secured outline consent.
The case was brought by developer C G Fry & Son, which received outline planning permission in 2015 for a 650-home scheme at Jurston Farm, Wellington, near the protected Somerset Levels wetland. The dispute arose when Somerset Council blocked the final phase of the development, citing nutrient neutrality rules introduced in 2020 by Natural England.
The developer challenged the council’s stance, arguing that the new requirements could not override the existing planning permission. While the High Court, Court of Appeal, and Planning Inspectorate had previously ruled against the company, the Supreme Court overturned those decisions.
The judgment focused on the interpretation of the Habitats Regulations 2017 and the legal weight of outline planning permissions in the face of evolving environmental policy. The Court upheld the earlier legal position that environmental assessments may be required at the technical details stage, but found that local authorities cannot use policy shifts to revisit what has already been approved in outline.
The ruling, delivered by a panel led by Lord Reed, sets a precedent for how protected sites and nutrient neutrality are handled in planning decisions across England.
C G Fry & Son was represented by Lord Banner KC, Dr Ashley Bowes, and a legal team from Clarke Willmott LLP.
The company was represented by Lord Banner KC and Dr. Ashley Bowes plus Kary Withers, partner in Clarke Willmott’s property litigation team, associate Tara Moseley and Caroline Waller, partner in the planning and environmental team.
Caroline Waller said: “This 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.
“The case will also have wider legal implications around the scope of matters to be considered in the discharge of planning conditions more generally.”
Lord Banner commented: “The 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.
“When 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.”
Philip Fry, managing director of CG Fry, added: “CG Fry & Son are pleased that the Supreme Court has ruled in our favour.
“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 – a delay that could have driven many other small developers out of business.
“The 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.
“With this matter now resolved, we can focus on what the Government has tasked us with: delivering high-quality homes for our communities.
“We extend our sincere thanks to Lord Banner KC, the Home Builders Federation (HBF) and the Land, Planning and Development Federation (LPDF) for their invaluable support throughout this process.”
Reflecting on the case, Ben Sharples, partner and head of Natural Capital at Michelmores, said: “The Supreme Court has today handed down its long-awaited judgment in CG Fry, addressing the extent to which the Habitats Regulations apply to the discharge of reserved matters following the grant of outline planning permission. While the Court upheld the requirement for an appropriate assessment under Regulation 63 where the approval of reserved matters authorises the project to proceed, it delivered an important win for developers by confirming that planning permission, once granted in respect of a RAMSAR site, cannot be undermined by subsequent changes in government policy.
“Appropriate assessments under the Habitats Regulations will still apply to reserved matters applications in respect of European Sites as defined by the Habitats Regulations but not RAMSAR sites.
“This decision will have significant practical implications, particularly in areas affected by nutrient neutrality requirements. Many developers, seeking to unlock reserved matters approvals, may have incurred substantial costs to purchase phosphate credits unnecessarily.”
