Summary
On 22 October 2025 the Supreme Court handed down their much-anticipated judgment for the appeal of CG Fry & Son Ltd v Secretary of State for Levelling Up, Housing and Communities [2025] UKSC 35. The Supreme Court issued a mixed judgment made by Lord Sales with whom Lord Reed, Lord Hamblen, Lord Stephens, and Lady Simler agreed. It confirmed that, for European sites, regulation 63 of the Habitats Regulations can require an Appropriate Assessment (AA) at later stages (including reserved matters and discharge of conditions) where those steps would authorise implementation. However, it allowed the appeal on the Ramsar/policy issue, holding that national policy (NPPF para 181, now para 194) cannot be used to revisit or withhold approvals reserved under an outline permission in a way that cuts across the rights conferred by that permission. In short: AA obligations at later stages remain for European sites, but Ramsar protection via policy alone cannot override the legal effect of an outline permission at the discharge stage.
Background
In 2015 the Claimant (developer, Fry) received outline planning permission for its development for 190 dwellings in 2020, and later received reserved matters approval, subject to conditions. In 2021 the Claimant sought to discharge the conditions attached to the reserved matters approval which was withheld by the local planning authority (LPA) who required a habitats regulation assessment, pursuant to NPPF para 181 and the Conservation of Habitats and Species Regulations 2017 (the Regulations). No AA had been undertaken under the Regulations in respect of the outline nor the reserved matters permission. However, following the grant of the reserved matters approval, Natural England issued an advice note identifying the potential adverse effects of the proposed development upon the integrity of the Somerset Levels and Moors Ramsar site.
The planning inspector held that an AA was required as per regulation 63 in order to discharge conditions, which was reaffirmed by the High Court.
The Court of Appeal dismissed the developer’s claim in 2024, stating that any AA may be required by an appropriate authority before any consent, permission or other authorisation is required to enable the project to be lawfully implemented.
Ruling
The Supreme Court delivered a mixed ruling on the following two points:
Issue 1: Does regulation 63 require an AA before the LPA discharges conditions attached to approvals within a multi‑stage consent (e.g., reserved matters or discharge of conditions).
The Court confirmed that regulation 63 is framed in general terms and, when purposively construed, applies to later implementing decisions which would authorise the project to proceed. An AA may therefore be required at subsequent discharge or approval stages for European sites where the effects are sufficiently identifiable. European sites include: a Special Area of Conservation designated under the original Habitats Directive, the Habitats Regulations or Offshore Habitats Regulations 2017; a Special Protection Area under the Birds Directive; and / or a Site of Community Importance listed under the Habitats Directive.
The Supreme Court therefore dismissed the Appellant’s case on this point.
Issue 2: What is the effect on an outline permission where new policy or scientific advice emerges affecting sites which are not European sites afforded protection under the Habitats Regulations, but are afforded protection under planning policy?
The Court set out that Ramsar sites are designated sites requiring environmental protection. They are designated in England, under section 37A of the Wildlife and Countryside Act 1981 but are not protected by the Habitats Regulations, which only include European sites. However, it is a matter of national planning policy that they should be given the same protection as habitats sites, as explained in former para 181 of the NPPF.
While the NPPF is a material consideration when granting permission, it cannot be used at subsequent stages of the planning process to dilute or override rights conferred by an outline permission or to expand the scope of reserved matters/conditions. Discharge decisions must be taken within the terms of the conditions and cannot be leveraged to impose new, unrelated requirements (such as nutrient neutrality) without a proper statutory route (such as the revocation of the underlying planning permission where compensation would be payable to the developer).
The Appellant’s case was successful on this point.
Implications
This judgment has asymmetric effects.
With regard to European sites the Court has affirmed that regulation 63 may bite at multiple stages, including at reserved matters and condition discharge stage. LPAs must ensure that any such step is preceded by a legally robust AA concluding no adverse effect on site integrity (or that the regulation 64 public interest derogation applies).
This is distinctive to Ramsar sites and other sites afforded the same protection as European sites under planning policy. The Court draws a clear line, confirming that national policy cannot be used to revisit matters settled by the grant of outline permission or to refuse discharge of conditions for reasons outside the subject matter of those conditions. LPAs cannot, using policy alone, require nutrient neutrality or an AA at the discharge stage for Ramsar sites if that would cut across the rights conferred by the outline permission. Where conditions explicitly reserve matters relevant to water quality, decision‑making must remain confined to those matters.
The practical consequences of this ruling for the planning process are substantial. For schemes reliant on non-European designated sites, any blockages caused by uncertainty over the need for a new or additional AA after the grant of planning permission are likely to fall away. However, this does not insulate projects from express condition wording that lawfully captures water or environmental controls, section 73 variation strategies, or revocation/modification routes allowing LPAs to revoke planning permissions through the payment of compensation to the Developer.
Robert Garden noted that “Developers should be aware that the Planning and Infrastructure Bill in its current form proposes changes that will result in Ramsar sites falling under the Habitats Regulations. The Supreme Court’s decision means that if the Bill comes into force in its current form, there may be multiple opportunities for AAs to be required in respect of Ramsar sites.”
Developers working with European sites will therefore need to factor-in Fry related delays to their development programme and stay vigilant in respect of any new advice from Natural England which may impact their sites.
The Court left open the question of whether there is an obligation to conduct an AA under the Habitats Regulations at the earliest opportunity. This point was not addressed in the appeal as the relevant advice from Natural England arose after the grant of the outline and reserved matters permission and the LPA considered the advice at the earliest opportunity. A sensible approach to prevent unnecessary delays would be for LPAs to consider this matter at the earliest possible opportunity.
CMS’s Anthony McNamee views the ruling as having a complex outcome. “We now have a split system for AAs which has the potential to cause further confusion for developers and LPAs alike. I hope that legislative reform will be forthcoming to address this strange result.”
Undertaking AAs and addressing the outcomes remains a source of cost and delay for developers, who will need to continue to undertake appropriate due diligence prior to acquiring sites to ensure they are aware of the likely impact on their development timetable.
Conclusion
The Supreme Court has reconciled environmental protection with planning certainty. It preserves the precautionary AA regime for European sites at all authorising stages, yet re asserts that policy cannot unpick rights conferred by outline permissions in Ramsar cases. The decision will likely influence how LPAs frame conditions and how developers structure mitigation strategies, section 73 variations, and programme risk across multi stage consents. Condition drafting now matters even more: LPAs seeking to manage nutrient risks will likely want to ensure that any conditions legitimately reserve and scope water quality issues, while developers should scrutinise whether any proposed conditions stay within the bounds of the permission and applicable law.
This article was co-authored by Alice Robson, Trainee Solicitor at CMS.
