The Court of Appeal (CofA) in the CG Fry case* held that habitats regulations assessment may be required at discharge of planning conditions stage.

It said, properly interpreted the law requires an "appropriate assessment" before a local planning authority decides whether to discharge conditions on the approval of reserved matters (RMs), having previously granted outline planning permission, without such an assessment, for a major development of housing on land close to a protected site.

In this case, the proposed development lies in the catchment area of the River Tone. There is a risk that new development will generate phosphates in wastewater and surface water entering the river, with consequent effects on the Somerset Levels and Moors Ramsar Site.


In a multi-stage consent process, where the proposed development is likely to affect a protected site, and the provisions for the appropriate assessment of projects and the Habitats Regulations apply:

  • An appropriate assessment may be required at any decision stage; grant of permission, the approval of RMs, the discharge of conditions
  • If the assessment is carried out in the final stage of granting consent, the assessment must be of the whole development authorised by that decision
  • This applies to Ramsar sites. Under national planning policy in the NPPF they have equivalent protection to sites designated under the habitats legislation.

The CofA reasoned, if it were not the case that an appropriate assessment may be required at any consenting stage, then that would create: 

"a gap in the regime for assessment, which would enable development to proceed with potentially harmful effects on a protected site, for lack of an assessment at the initial stage, when outline planning permission is granted."

The CofA also stated that if the project should fail at the final stage in the decision-making process, either because there had been no appropriate assessment or because the assessment carried out had identified likely harm to the integrity of the protected site, the outline planning permission itself would remain valid. This does raise the questions, how a permission would be implemented in such circumstances?

We have successfully advised on discharge of conditions in circumstances where an appropriate assessment was requested. We have negotiated agreements for the sale and purchase of nutrient credits in order for schemes to demonstrate nutrient neutrality and we have also advised on novel solutions to overcome the constraints arising from the nutrient neutrality guidance.

Please do not hesitate to contact us, or your usual contacts if you have any questions or seek further information on matters mentioned in this note.


James Clark, Managing Associate in the WBD Real Estate team, said:

"The development sector was waiting for this judgment. It was hoped that the court might offer some way through what for a number of years now has been a real problem for developers affected by Natural England's nutrient neutrality guidance.

The CofA have thrown the issue back at the government to resolve the significant public policy issues. The HBF say the issue has resulted in an estimated 160,000 new homes being blocked.

While there is legal clarity, this is of no comfort to those developer's whose projects are stalled by nutrient neutrality. We will have to see if there will be an appeal to the Supreme Court or if the new government will be able to resolve this issue.

Both the Conservative and Labour party have included statements acknowledging the challenge posed by nutrient neutrality in their respective manifestos, but so far they fall short of a clear plan how to resolve it".

* CG Fry & Son Ltd v Secretary of State for Levelling Up, Housing and Communities & Anor [2024] EWCA Civ 730 (28 June 2024) (

This article is for general information only and reflects the position at the date of publication. It does not constitute legal advice.