The Supreme Court has agreed to hear a legal case relating to nutrient neutrality which if successful could green light the construction of thousands of homes.
The court case, brought by Somerset developer CG Fry & Son Ltd, will test whether nutrient neutrality rules apply in cases where a development received planning consent before the introduction of Natural England’s guidance on the issue.
CG Fry & Son was given outlined planning permission for 650 homes at Jurston Farm in Wellington in 2015 but has been unable to build the third phase of the scheme after Somerset West and Taunton Council said it did not meet subsequently-introduced nutrient neutrality rules.
The developer has previously lost a planning appeal, a High Court case and a Court of Appeal case on the issue, which hinges on the proper interpretation of the Conservation of Habitats and Species Regulations 2017.
However, the Supreme Court has now agreed to hear the case.
Lord Banner KC, representing CG Fry & Son, described his client’s appeal as a “test litigation concerning whether appropriate assessment under the Habitats Regulations, in the context of nutrient neutrality, can be required at the discharge of conditions stage in relation to development which already has planning permission”.
Posting on LinkedIn, Banner added: “The immediate factual implication if the appeal is allowed is that tens of thousands of homes which already have planning permission but which are held up by nutrient neutrality will be able to proceed.
“The legal implications extend more broadly and are likely to affect the operation of the Habitats Regulations in other contexts such as water neutrality. A further issue is the approach to determining the range of relevant considerations to the discharge of pre-commencement conditions on a planning permission.”
Somerset Council, which has succeeded Somerset West and Taunton Council as the planning authority in the case, declined to comment. The Ministry of Housing, Communities and Local Government has been contacted for comment.
Separately, the government has announced a £47m Local Nutrient Mitigation Fund, which it says will unlock up to 28,000 homes through local schemes to tackle nutrient pollution, such as the creation of new wetlands and upgrading septic tanks.
Announcing the fund on Thursday (7 November), housing and planning minister Matthew Pennycook said: “We must build more homes across the country and unlock growth, but this must not come at the expense of our natural environment.
“Through this fund and alongside major reforms to the planning system, we will accelerate housebuilding and deliver nature recovery, creating a win-win outcome for both the economy and for nature.”
The seven areas set to receive funding for the projects are the Norfolk Broads and the River Wensum; the River Axe; the Solent; the River Wye; the River Mease; the River Lambourn; and the Rivers Eden, Derwent and Kent alongside Bassenthwaite Lake and the Esthwaite Water Catchment.
