C G Fry & Son Limited v Secretary of State for Housing, Communities and Local Government (formerly known as Secretary of State for Levelling Up, Housing and Communities) and another

Regulation 63 of the Conservation of Habitats and Species Regulations 2017 applies at a later stage of a multi-stage planning process where approval or discharge of conditions would authorise a project to proceed. An appropriate assessment may therefore be required despite an earlier grant of outline permission.

By contrast, national planning policy cannot override rights conferred by outline planning permission. Once permission is granted, the authority must determine reserved matters and discharge conditions within the scope of the permission and its conditions. It cannot use policy or later scientific advice concerning an unrelated objective to impose additional requirements or revisit matters settled at the outline stage.

The developer obtained outline permission for a mixed-use development near the Somerset Levels and Moors Ramsar Site, followed by reserved matters approval for one phase. After Natural England issued new advice about phosphate pollution, the local planning authority withheld approval of matters governed by conditions. An inspector dismissed the developer's appeal because national policy gave Ramsar sites the same practical protection as sites governed by the Conservation of Habitats and Species Regulations 2017.

The High Court dismissed the developer's statutory review claim: [2023] EWHC 1622 (Admin); [2024] PTSR 184. The Court of Appeal dismissed its appeal: [2024] EWCA Civ 730; [2024] PTSR 2000.

The Supreme Court considered whether regulation 63 can require an appropriate assessment when reserved matters are approved or conditions discharged, and whether national policy and new scientific advice could justify withholding approval despite the existing outline permission.

1. The appeal was allowed on Issue 2 but dismissed on Issue 1. Lord Sales gave the unanimous judgment.

2. Regulation 63 of the Conservation of Habitats and Species Regulations 2017 applies where a later decision on reserved matters or discharge of conditions would authorise a project to proceed. Its broad reference to any consent, permission or other authorisation is not confined by regulation 70 to the initial grant of planning permission. That construction follows the Regulations' protective purpose and the precautionary principle. Otherwise, a failure to assess effects at the outline stage, whether caused by oversight or unavailable scientific information, could defeat the statutory protection of European sites. The reasoning in No Adastral New Town, Wingfield and Swire was endorsed. The court did not decide whether assessment must occur at the earliest opportunity: paras 43–59.

3. National planning policy is a material consideration when planning permission is initially sought and when statutory powers to adjust the timetable of outline permission are exercised. The position changes fundamentally once permission is granted. Planning permission, including outline permission, creates statutory development rights. Those rights cannot be overridden or diluted by general government policy or later scientific advice: paras 60–65.

4. Outline permission is conditional only to the extent stated in its conditions, construed objectively in the context of the permission as a whole. A condition reserves authority over matters fairly related to its subject. It does not confer a general power to pursue an unrelated policy objective. Sub-conditions attached to reserved matters approval must likewise remain within the ambit of the matters reserved by the outline permission: paras 66–70.

5. The Council and inspector therefore had no power to require measures protecting the Ramsar site when deciding whether to discharge conditions concerning trees, drainage, construction management and infrastructure. The Ramsar site was not governed by the Habitats Regulations, and neither national policy nor Natural England's later advice enlarged the conditions. The contrary approach could eliminate development already approved in principle without using the statutory modification or revocation procedures and associated compensation: paras 69–73.

6. Whiteside concerned the coherent operation of different conditions within a single permission. It did not support taking an unrelated policy consideration into account when discharging a condition: paras 71–72.

1. United Kingdom Supreme Court: The appeal was allowed on Issue 2 and dismissed on Issue 1. The Court of Appeal's interpretation of the Habitats Regulations was upheld, but its treatment of national policy and the rights conferred by outline permission was reversed: [2025] UKSC 35.
2. Court of Appeal: The developer's appeal was dismissed. The court held that regulation 63 applied at the discharge-of-conditions stage and that national policy protecting Ramsar sites was engaged: [2024] EWCA Civ 730; [2024] PTSR 2000.
3. High Court: Sir Ross Cranston dismissed the statutory review claim under section 288 of the Town and Country Planning Act 1990: [2023] EWHC 1622 (Admin); [2024] PTSR 184.
4. Planning inspector: The developer's section 78 appeal against the Council's failure to determine its applications was dismissed.