C G Fry – Court of Appeal upholds position on nitrate neutrality 

July, 2024 - Shoosmiths LLP

The much-anticipated Court of Appeal judgment in C.G.Fry & Son Ltd v SSLUHC [2024] EWCA Civ 730 was handed down on Friday 28 June 2024. It dismissed the appeal on all three grounds.

The case was centred on the widespread issue of developments being required to demonstrate that they are ‘nutrient neutral’, so as not to add nutrient load on designated habitats.

While not the outcome that many in the development industry were hoping for, which will inevitably lead to more cost and delay to developers, the Court of Appeal upheld the decision of the High Court to confirm that an appropriate assessment pursuant to the Habitats Regulations may have to be carried out at a subsequent approval stage, such as the discharge of condition or in reserved matters approvals. The Court finding was that those types of decisions fell within the wide scope of “consent, permission or other authorisation” [para 77].

Where there is a requirement to undertake an appropriate assessment, it is the effects of the project as a whole that is the basis of the assessment, not just the matters related to the condition or reserved matters in question.

Of particular interest to the Interveners was the interpretation and application of the Habitat Regulations going forward in light of the important changes brought about by the EU Law (Revocation and Reform) Act 2023, which came into effect in January 2024.

The result of those changes is that the principle of the supremacy of EU law is no longer a part of domestic law after the end of 2023 [para 45]. However, as the Judges held, it was “…unnecessary to rely on the doctrine of direct effect to resolve the issues of interpretation…” [para 97] and so it is unlikely that the end of the supremacy of EU law will impact this approach to future decisions.

What next?

Politics is never far from the planning system, and regardless of the outcome of the general election, there is a clear and demonstrable need to address this issue. A balanced approach is necessary, one that protects and enhances the environment, while delivering the critical new housing the UK needs.

As highlighted by the Secretary of State’s submissions to the Court “the law as it stands is a problem – in effect holding up the supply of new housing” [para 7]. Therefore, the burden of finding solutions remain with the industry in the short-term until the government decides to appropriately legislate to address the issue.

It is not yet known whether there is any appetite on behalf of C G Fry to take the matter further to the Supreme Court – having previously been refused permission for a leapfrog appeal by the Supreme Court in August last year.

Shoosmiths legal director, Matt Nixon, was instructed on behalf of the HBF and LPDF as Interveners, represented by Zack Simons and Isabella Buono of Landmark Chambers.

Full judgment: Court of Appeal - C. G. Fry & Son Ltd.


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