Judgment in CG Fry case will unlock new housing developments currently held up by “nutrient neutrality” rules
Lawyers at national law firm Clarke Willmott LLP have represented a housing developer in a successful Supreme Court appeal that could give the green light to the construction of thousands of new homes.
The court case, brought by Dorset-based CG Fry & Son Ltd., questioned whether so-called “nutrient neutrality” rules apply in cases where a development received planning permission before the introduction of Natural England’s guidance on the issue.
Nutrient neutrality is a concept that aims to prevent land use or development from increasing the level of harmful nutrients, such as phosphates and nitrates, in vulnerable watercourses and catchments. This has led to significant delays and stalled planning applications affecting housing developments across the country.
CG Fry & Son was given outline planning permission for a development of 650 homes at Jurston Farm in Wellington, Somerset in 2015.
But it has been unable to build the third phase of the scheme after Somerset Council said it did not meet nutrient neutrality rules which were introduced by Natural England in August 2020.
CG Fry appealed to the Planning Inspectorate and following an inquiry in August 2022 the Inspector dismissed the appeal. The High Court and Court of Appeal subsequently upheld the Inspector’s decision.
The case hinged on the proper interpretation of the Habitats Regulations 2017, the legal effect of the grant of an outline planning permission and the impact of a subsequent change in the application of policy.
Earlier this year CG Fry & Son obtained an order for permission to appeal to the Supreme Court and today the court, presided over by Lord Reed, delivered its judgment in CG Fry v Secretary of State for Housing, Communities and Local Government – ruling unanimously in its favour.
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 said: “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, said: “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.”
Clarke Willmott’s multi-disciplinary, multi-office housebuilder sector encompasses all areas of law it takes to build a home, from land buying, planning and construction to site set up and plot conveyancing. We are regarded as leading legal advisers to the residential development sector, acting for three of the nation’s five largest housebuilder firms.
Posted:
