The Court of Appeal has turned down CG Fry’s appeal against the High Court’s ruling that the nutrient neutrality rules were lawful.  That ruling related to a planning appeal where the inspector had upheld the requirement to mitigate against the impact of nutrients arising from the development at the stage of the submission of reserved matters, when outline planning permission had been granted without imposing such a requirement. 

The Court of Appeal held that “the inspector was right to conclude, and the judge to accept, that on their true interpretation … the Habitats Regulations could require an appropriate assessment to be undertaken at the stage when the discharge of conditions was being considered. This conclusion not only reflects the proper construction of the Habitats Regulations but also accords with the case law, both European and domestic, bearing on this question.”

The Court went on to say that “there is nothing in the relevant provisions to exclude the requirement for an appropriate assessment to be undertaken either when reserved matters are being approved or when conditions are being discharged, if the "authorisation" in question is necessary to enable the project to be lawfully implemented.”

“Where [the] process involves the granting of outline planning permission for the proposed development and the subsequent submission and approval of reserved matters or the discharge of conditions, [the Regulations do] not prevent the appropriate assessment of the project being carried out at that later stage…”

This principle will apply equally to Ramsar sites and other sites protected under the Conservation of Habitats Regulations.

The position therefore remains that if planning permission was granted with no requirements to deal with nutrient neutrality (most likely because it wasn’t then an issue) that the developer will have to address that situation if there are reserved matters or pre-commencement conditions to discharge.  If the local authority has not adopted a mitigation strategy, then the developer will be left with no choice but to create their own.

Labour must be regretting not supporting the botched Conservative attempt to deal with this by legislation in the Levelling-up and Regeneration Bill.  In its election manifesto the Party somewhat enigmatically offers to “implement solutions to unlock the building of homes affected by nutrient neutrality without weakening environmental protections.” Meanwhile the Conservative party now proposes “abolishing the legacy EU ‘nutrient neutrality’ rules …. with developers required in law to pay a one-off mitigation fee so there is no net additional pollution.”  It all sounds so simple!

My advice to anyone affected?  Don’t wait for the Courts or the politicians to provide an answer to this problem.  As unfair as it seems, you will need to find your own practical solution.