CG Fry & Son Ltd v Secretary of State for Housing, Communities and Local Government [2025] UKSC 35 is a significant judgment on how the Conservation of Habitats and Species Regulations 2017 (“the Habitats Regulations”) interact with national planning policy. 

The decision deals with two issues: 

1. The scope of the duty to carry out an “appropriate assessment” under Regulation 63 of the Habitats Regulations before the Local Planning Authority (LPA) discharges planning conditions on a reserved matters approval; and 
2. the weight of national policy protecting non-EU designated sites (such as Ramsar Sites) once outline planning permission has been granted. 

Background 

In 2015, CG Fry obtained outline planning permission for 650 dwellings in Somerset. In June 2020, CG Fry obtained reserved matters approval for the development. The site lies within the River Tone catchment, which feeds into the Somerset Levels and Moors Ramsar site, a wetland protected under the Ramsar Convention but not by the Habitats Regulations. 

In August 2020, Natural England published an advice note on the nutrient impact from developments. This resulted in the requirement for LPAs to ensure that a development would achieve “nutrient neutrality” before granting planning permission, our insight on this is available here. 

Somerset Council subsequently refused to discharge several pre-commencement and technical conditions attached to the reserved-matters approval on the basis that paragraph 181 of the National Planning Policy Framework (NPPF), which states that Ramsar sites should receive the same protection as “habitats sites” under the Habitats Regulations. 

The developer appealed to the Secretary of State, arguing that: 

1. No appropriate assessment (AA) was required at the discharge-of-conditions stage; and 
2. the Council was wrong to rely on policy or the Natural England advice to revisit environmental issues already considered at outline permission. 

The Supreme Court dismissed the appeal on the first issue but allowed on the second. 

Judgment 

Issue one – The reach of regulation 63: appropriate assessments when discharging planning conditions.  

The first question was whether an AA under Regulation 63 must be undertaken before a local authority discharges conditions attached to reserved-matters approval granted under an outline planning permission. 

The Supreme Court held that the language of regulation 63 is deliberately broad. Its reference to “any consent, permission or other authorisation” extends beyond the initial grant of outline permission to later stages such as approval of reserved matters or discharge of conditions if those steps are necessary for the development to proceed. 

The Court applied a purposive approach to statutory interpretation. The Habitats Regulations were designed to prevent the deterioration of protected habitats. That purpose, combined with the precautionary principle, requires decision-makers to ensure there is “no reasonable scientific doubt” that a project will not harm a protected site. 

Regulation 63 must be interpreted to preserve the protective purpose of the Directive and the domestic Regulations.  

Issue two – the relationship between national policy and rights conferred by planning permission. 

Although Ramsar sites are not covered by the Habitats Regulations, the NPPF requires them to be treated as if they were. The question was whether that policy obligation could justify the Council’s refusal to discharge conditions after outline permission had been granted. 

Here, the Court drew a sharp distinction between: 

1. Statutory environmental duties (which can arise at any stage under the Habitats Regulations); and 
2. policy considerations, which may inform the exercise of discretion only when that discretion exists. 

Once outline planning permission is granted, the developer acquires legal rights to implement the development within the limits of that permission. Those rights cannot be overridden by subsequent changes in policy or scientific advice. 

Local authorities may only consider matters fairly and reasonably related to the specific condition being discharged. They cannot use the discharge process to reopen questions of principle already settled by the grant of outline permission. 

What does this mean in practice?  

• Where a development may affect a European site (that is protected by the Habitat Regulations) planning authorities are entitled to require an AA even at the discharge stage. 
• For non-EU sites (like Ramsar), the application of the Habitats Regulations derives from the NPPF. NPPF policy remains a material consideration when granting new permissions, but it has no retrospective effect. It cannot justify withholding approval of conditions once outline permission has been issued. 

How Capsticks can help 

Our specialists can advise you on how this case may impact your organisation’s development. We are experts on all aspects of planning law, including s106 agreements, CIL advice, planning appeals, Compulsory Purchase Orders and general planning law matters.  

Our experts can advise you on how this case may impact your organisation’s development. If you have any queries about what's discussed in this insight and its impact on your organisation, please speak to Suzanne Smith to find out more about how Capsticks can help.