Infrastructure Planning Blog

This week’s entry looks at a rare Supreme Court planning judgment, the latest in relation to the Planning & Infrastructure Bill (PIB) and the Airports National Policy Statement (NPS) review.

Fry

The Supreme Court handed down its judgment this week in the case of C G Fry & Son Limited v Secretary of State for Housing, Communities and Local Government and another [2025] UKSC 35. The judgment can be found here.

The facts were as follows. In 2015, outline planning permission was granted to the claimant developer, C G Fry, for a mixed-use development of up to 650 houses. The development was to take place in eight phases. In June 2020, the claimant obtained reserved matters approval for phase 3 which was subject to several pre-commencement conditions. No appropriate assessment under the Habitats Regulations had been undertaken when outline planning permission was granted nor subsequently at the reserved matters stage.

In August 2020, after reserved matters approval, Natural England issued an advice note identifying the potential adverse effects of development on the integrity of the Somerset Levels and Moors Ramsar site. The site of the proposed development was in the catchment area of the River Tone, where there was a risk that new developments would generate phosphates in wastewater and surface water entering the river, with consequent effects on the Ramsar site. Natural England advised that an appropriate assessment should be undertaken.

In June 2021, the claimant sought discharge of pre-commencement conditions. If the conditions were discharged, the construction of phase 3 of the development would become lawful. Somerset Council withheld approval on the basis that an appropriate assessment was required before the conditions could be discharged.

The claimant appealed against the Council’s failure to discharge conditions. That appeal was dismissed. So too were the claimant’s appeals to the High Court and the Court of Appeal. However, the Supreme Court has allowed the appeal.

There were two issues for the Supreme Court to consider.

The first issue was whether the Habitats Regulations required an appropriate assessment to be undertaken before a local planning authority decided to discharge conditions requiring the approval of reserved matters in a grant of outline planning permission. The Court held that they did. It said that in a case involving a potential impact on a site in relation to which the Habitats Regulations have binding legal effect, the requirement to undertake an appropriate assessment would apply to a decision to give reserved matters approval or to give approval under sub-conditions attached to such an approval. This finding was consistent with the precautionary principle in relation to environmental protection.

The second (and main) issue for the court was the impact on an outline planning permission of a policy adopted by government and a change of scientific advice in relation to that policy. The policy in question was paragraph 181 of the NPPF. This provided that listed or proposed Ramsar sites “should be given the same protection” as sites protected under the Habitats Regulations, i.e., European sites. The advice was that given by Natural England in 2020 to revisit matters which had been approved at the outline stage.

The court held that neither the policy in para 181 of the NPPF, nor Natural England’s advice, were relevant considerations at the reserved matters stage.

The rights conferred by a grant of planning permission (including outline permission) were defined by that grant and could not be overridden or diluted by government policy. The imposition of a planning condition did not import a general power for the planning authority to refuse to give approval in order to further a purpose or policy objective which was not fairly related to the subject-matter of the condition. To hold otherwise could have the effect of undermining confidence in the permission, stymieing development as a result. If there had been a substantial change in the planning context by the time approval was sought, there was a process by which an authority could seek to modify or revoke the permission (subject to compensation).

Consequently, where outline planning permission reserved matters for the subsequent approval of a local planning authority, the extent to which the authority could withhold its approval was restricted to that which was expressed to be so reserved. In this case, the conditions set out in the outline permission allowed no reference to the objective of the protection of the Ramsar site. It was therefore not open to the Council to refuse to discharge the conditions on the basis that additional measures were required to promote the protection of the Ramsar site. 

That the case concerned a Ramsar site and not a European site was fundamental. If it had been a European site, the Habitats Regulations would have applied and an appropriate assessment would have been required. However, the Habitats Regulations do not apply to Ramsar sites. The policy in para 181 of the NPPF did not alter that position.

Although this case involved planning permission granted under the TCPA, the same principles would appear to apply to the discharge of requirements in the context of a DCO, where there is a potential impact on a site in relation to which the Habitats Regulations have effect. This means that an appropriate assessment could be required at the discharge of requirements stage, but not in relation to a Ramsar site save, one can assume, where the need for an appropriate assessment in relation to a Ramsar site falls within the express terms of the requirement.

The Planning and Infrastructure Bill currently includes provisions to make Ramsar sites equivalent to other habitats in law, not just policy, which could mean the wider application of this judgment is short-lived (although the proposed Environmental Delivery Plans might be an alternative solution)  – but see further below.

PIB latest

The bill has been continuing its passage through the House of Lords, having had two out of four of its days of Report Stage this week.

The government's amendments to the nationally significant infrastructure project (NSIP) regime were all approved, although one relating to directing refusal of certain town and country planning applications was defeated. As a reminder that means:

• the acceptance test will stay as it currently is;
• the proposed addition to allow requesting further information during acceptance will not go ahead;
• reasons will have to be given for not accepting an application;
• water company-appointed third parties will be able to promote water NSIPs; and
• some more indirect changes will take place about renewable energy in forests, the electricity connection consumer benefits scheme and windfarms’ effects on seismic array systems.

 Some non-government amendments were also approved:

• Baroness Coffey's amendment to remove the exceptions to Parliamentary approval of NPS changes (i.e. removing clause 2(3) of the bill);
• three amendments from Lord Lansley to finesse the third party water promoter provision;
• one amendment from Lord Parkinson where heritage consents are not disapplied for dams and reservoirs (time will tell if that last one sticks around); and
• Baroness Scott's amendment to require any project seeking to use a DCO via section 35 to consult first if the project involves the demolition of 20 or more residential properties (probably with reservoirs in mind, but will apply generally)

We'll see how many of those survive. There is a late amendment to be debated next week that would reverse the move to give Ramsar sites the same status as other international habitats tabled by Lord Roborough, which would continue the effect of the C G Fry judgment above. As an amusing footnote, government minister Baroness Taylor of Stevenage has rowed back on her assertion during the debate that Oasis would be playing at Knebworth House next year.

Airports NPS

Finally, the Government has launched a review of the Airports NPS this week, with a target for consultation on a draft in Summer 2026 and implementation by the end of 2026. The NPS will provide the framework within which any future Heathrow expansion will be considered.

Alongside this, the government also confirmed that two proposals to deliver a third runway at Heathrow remain under active consideration (see here). Promoters Heathrow Airport Limited and Arora Group/Heathrow West Limited now need to provide further details on their plans to clarify associated impacts for investors, affected communities and businesses.

After consideration of this information, the government will announce the single scheme being taken forward to inform the remainder of the ANPS review by the end of November.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at October 2025. Specific advice should be sought for specific cases. For more information see our terms & conditions.