Development in Protected Areas – the challenge of C. G. Fry

The recent Court of Appeal judgment in C.G. Fry & Son Ltd. v SSLUHC [2024] has preserved the status quo of development in protected areas, requiring that any development gives consideration and (where appropriate) mitigates any impact on a protected area – even if not established as a planning condition.

In this case the relevant site was a multi-phase development that had already been granted outline permission (December 2015) and reserved matters approval (June 2020). However, following updated guidance from Natural England (August 2020) – suggesting that any development with possible effects on the Somerset Levels and Moors Ramsar Site (a protected area) should be given greater scrutiny – the local planning authority withheld its approval to the developer’s application for discharge of planning conditions. Their objection was on the basis that an “appropriate assessment” had not been undertaken, as required by the Conservation of Habitats and Species Regulations 2017 (the “Habitats Regulations”).

Neither the outline permission nor reserved matters approval had established a requirement for such an assessment. The developer further contended that the question of harm to the Ramsar site had arisen too late in the course of decision-making on the project for an appropriate assessment to be required.

However, the High Court Judge concluded that the wording of the legislation is broad and designed to capture all stages of the development being authorised, i.e. it begins at the grant of outline planning and then – quite often – approval of reserved matters or the discharge of conditions is the final step in the authority’s “agreement” to the development going ahead.

The appeal by C. G. Fry has now been dismissed, with the Court of Appeal concluding that the relevant regulations could, and in this case did, require an “appropriate assessment” at discharge of conditions stage.

Whilst this case was specifically concerned with nutrient neutrality impacting a Ramsar site, the same principle will apply to other protected sites including any Special Protection Area (“SPA”) or Special Area of Conservation (“SAC”). It is therefore important that – when development is taking place on or near to a protected site which might adversely effect the integrity of that site – that a Habitats Regulations Assessment (or other appropriate assessment) is undertaken as early as possible in the course of development to ensure that any such risks are identified (and subsequently mitigated against) as early as possible.