What does planning permission *really* get you: CG Fry in the Supreme Court

Let me paint you a picture:

You get planning permission for something. 🏆. Well done. As readers of this blog will know, it isn’t always easy to get planning permission. So at least someone, somewhere thought what you’re trying do isn’t such a terrible idea. On the other hand, getting a permission is often not the end of the journey, is it.

Because maybe it’s an “outline” planning permission (defined here). Or a permission which is subject to conditions that will need discharging before you actually kick off. To fix the details of the thing – not the principle of it (which you now have in the bag, don’t you?), but brass tacks like e.g. detailed layout or design or landscaping. That kind of thing. So even though you have this new permission in hand, challenges lie ahead. You still have some more applying to do. To sort out those conditions. Or to get approval for your “reserved matters” (defined here) attached to your outline permission. Whatever it might be. 

So.

Time passes. Tick tock.

Eventually, you’re ready to do your next bit of applying. But… something has happened in the meantime. Could be anything, really. New national policy or guidance. A new bit of evidence. A body – like Natural England, maybe – has just given some guidance that affects your area. Something significant has changed post-permission. Something that arguably may have stopped you getting permission in the first place. If you were applying again. But you aren’t applying again. Because you already have your permission. No need to reopen that can of worms. Right? Well, let’s see about that… 

So - undeterred, you press on with your further application to discharge conditions or seeking “reserved matters” approval.

But then… the wheels start to come off. The authority says “no, sorry, things have moved on since your planning permission”. And they refuse to engage with you until you’ve dealt with… the new thing. Whatever it is.

And you – maybe a little aggrieved – respond “but all I’m trying to do is confirm the colour of the bricks or the species of the trees – why should I have to go back to square 1 and consider the principle of my scheme all over again dealing with whole new range of issues?”. Or words to that effect.

This is, as you already know, not theoretical. Versions of this scenario have been playing all over in England in the last few years, and it has – among many other things – delayed the delivery of tens of thousands of new homes. Homes which already have planning permission. But homes which are stuck in limbo in the way that I described here. Because, in a nutshell:

-       New houses bring with them wastewater and sewage. Which leads to nutrient pollution which can harm sensitive habitats sites. Overall, the Government accepts that nutrient pollution from new housing developments is only a small factor in the bigger picture. Nonetheless, the relevant European caselaw requires no harm. A little bit of harm in the grand scheme of things isn’t good enough. Natural England’s advice to local planning authorities has been that new housing developments should be refused unless they’re nutrient neutral. But there has not normally been any practical or viable way of actually securing nutrient neutrality.

-       So we’ve been stuck. Catch-22 style. The major culprits for nutrient pollution - e.g. farmers and water companies - go on pumping nutrients into our rivers. Algae blooms. Fish die. Housing needs mount. But the legal framework as interpreted by the lead statutory consultee in this area has been blocking any new planning permissions for homes across large swathes of England. There’s a technical term for a situation like this: a total, abject mess. And that’s being polite. We have had, folks, yet another example the planning system being lumbered with problems which it neither created nor has the power to solve.

Come with me over to Somerset, for instance, to a glorious wetland called the Somerset Levels – go up the hill at Glastonbury and look west, out over the vast low-lying area of grassland, peat bog, fen, and reedbed toward Bridgwater Bay and the Bristol Channel. The Levels are only a few metres above sea level. They’re designated as a Ramsar site – the “the Somerset Levels and Moors Ramsar Site”. It’s a very special area for wildfowl, waders, and aquatic invertebrates like beetles.

[Explainer: What’s a Ramsar site? Well, they’re sites are designated under the 1971 Convention on Wetlands of International Importance Especially as Waterfowl Habitat (“the Ramsar Convention”) and, in England, under section 37A of the Wildlife and Countryside Act 1981. But – and this is important – they are not protected by the Habitats Regulations (like e.g. SACs or SPAs). §194 NPPF tells us that they “should be given the same protection as habitats sites” (NB this is something that may change under the new Planning and Infrastructure Bill, which would put them onto the same statutory footing as European Sites).]

Now. In 2015 a developer called CG Fry received permission from Somerset West and Taunton Council, now Somerset Council, to build a mixed use development including 650 dwellings and commercial and community uses along with a primary school near Wellington in Somerset. Their site is in the catchment area of the River Tone, which feeds into the Somerset Levels. Their scheme would bring with it the risk of phosphates in wastewater and surface water entering the river, with knock on impacts on the Ramsar site, e.g. eutrophication. And in 2020, 5 years after CG Fry had their permission, Natural England published an advice note in respect of development with possible effects on protected or vulnerable sites such as the Ramsar site on so-called “nutrient neutrality” – advising authorities that:

-              “before determining a planning application that may give rise to additional phosphates within the catchment [for the Ramsar site], competent authorities should undertake a Habitats Regulations assessment”;

-              Planning permission should only be granted if the assessment enabled the planning authority to conclude that the development “will not have an adverse effect on the integrity of the site”; and

-              A “nutrient neutrality” approach (meaning that by the taking of mitigation measures there should be no net addition of phosphates or nitrates to the protected site) was likely to be a “lawfully robust solution”.

In 2021, CG Fry applied to discharge some conditions attached to its reserved matters approval. The Council said no. It said that, in light of Natural England’s advice, it needed an “appropriate assessment” before doing any condition discharging (because, under national policy, a Ramsar site should be treated like a “European site”).

CG Fry challenged that position at a planning appeal. Then, when it failed there, they went to the High Court. And after that the Court of Appeal. Long story short: they failed every time. The courts supported the Inspector who had supported the Council, i.e. that condition discharges on reserved matters approval can trigger appropriate assessments, and one was triggered here because the NPPF gives Ramsar sites the same protection as European habitat sites.

Today, the Supreme Court has disagreed (full disclosure: I acted in the case on behalf of the Home Builders Federation and the Land, Planning and Development Federation as interveners in the Court of Appeal and Supreme Court).

Judgment: here.

Press summary: here.

In a unanimous judgment penned by Lord Sales, with whom Lord Reed, Lord Hamblen, Lord Stephens and Lady Simler agreed, the Supreme Court has taken us back to basics on what is a material consideration when it comes to discharging e.g. reserved matters or conditions. 

You want some headlines? OK:

1.                  As currently drafted – things may be heading, not with controversy, toward change under the new Planning & Infrastructure Bill – the Habitats Regulations may require appropriate assessment in relation to designated habitats sites at the stage of approving reserved matters or discharging conditions. On that important issue, the Supreme Court agreed with the courts below. However…

2.                  A Ramsar site is not a European Habitats site. A statement of policy e.g. in the NPPF isn’t the same as a legal rule e.g. in the Habitats Regulations. Why not? Isn’t that a tech-y point? Does it matter? It turns out to matter a lot. Because… 

3.                  When you’re trying to get planning permission in the first place, national policy is one of a range of potentially “material considerations” that bear on that outcome.

4.                  But, the Court explained, when planning permission has been granted, there is then a fundamental change in the legal position.

5.                  Where an application for planning permission is approved by a local planning authority, they “grant planning permission”, which means that they give legal permission for the development referred to in the application to proceed. Assuming the permission isn’t challenged and doesn’t lapse, it has the effect of conferring a right on the developer, for the purposes of planning legislation, to develop its land in accordance with the permission which has been given. If the planning authority has a change of mind and wishes to revoke or modify the permission, it has to pay compensation.

6.                  If landowners are to be incentivised to proceed with developments which are encouraged by the planning regime through development plans and local and central government policies, they need assurance that the costs they incur in carrying out a development will not be lost. The grant of planning permission gives them that assurance. Once granted, a developer knows where it stands and that it can incur costs to proceed with the development within the timetable set by the legislation without fear that they may be lost by reason of a change of position by the regulating authority.

7.                  Rights given by planning legislation cannot be overridden or diluted by general policies laid down by central government, e.g. in the NPPF or PPG.

8.                  When it comes to conditions, the power of a planning authority under a planning condition to refuse approval in respect of a project for which outline planning permission has been given is limited by the terms of that condition, and the planning authority has to determine an application for approval of a reserved matter “within the terms of the condition”. All an authority can consider are matters fairly related to the subject matter of the conditions; there is no general power for the planning authority to refuse to give approval for (as was the situation in CG Fry) a perfectly acceptable tree protection scheme in order to further some other purpose or policy objective.

9.                  Where an outline planning permission has been granted it is not open to a planning authority to revisit matters which have been approved in principle at the outline stage. 

10.            So… on the facts of CG Fry, it was not open to the Council or the inspector to require some additional measures to promote a different objective (ie the protection of the Ramsar site) to be taken before conditions could be discharged. Planning legislation gave them no power to do that, unlike the position in relation to a European site, where the Habitats Regulations apply.

Lots to digest, and I’ll be doing a webinar later this evening on the case’s implications along with some of the other counsel involved. Those implications are made all the trickier by the fact that some of this could change under the emerging Planning and Infrastructure Bill which would, on the one hand, treat Ramsar sites like European Habitats sites in law and yet, on the other hand, potentially remove the need for appropriate assessments in the first place. But the core issue of wider application for #planoraks everywhere is, for my money, the confirmation that your rights crystallise at the point of receiving a grant of planning permission. Post-permission changes in material considerations cannot undo or diminish the rights conferred by that consent.

In the meantime, I hope you’re keeping well #planoraks. Next week, I am closing a planning inquiry which we opened in March. Yes. In March. So. Hopefully a bit more time for blogging after that, but we’ll soon find out. Enjoy the falling leaves. Wrap up warm out there. And whatever else you do, remember to #keeponplanning.