Many developments have been stalled in areas where Natural England has identified potential harm to European Sites (Special Areas of Conservation, Special Protection Areas, RAMSAR sites etc), with Council’s setting out that they are unable to approve: i) reserved matters; and ii) discharge of planning conditions in the absence of an appropriate assessment (showing that the development will not cause harm to the area).
That position was challenged in the Supreme Court’s recent decision in C G Fry & Son Ltd v Secretary of State for Housing, Communities and Local Government [2025] UKSC 35, marking a significant decision in terms of the overlap between planning law and environmental protection.
The judgment states that:
i) the Habitats Regulations do apply to discharge of conditions; hence an appropriate assessment is required.
ii) the Habitats Regulations do not apply to Ramsar sites (e.g. Somerset levels) and whilst national policy seeks to give Ramsar sites the same level of protection (para 194 NPPF) – however, the rights conferred by a grant of planning permission are defined by that grant and cannot be overridden or diluted by government policy (in contrast to legislation) – hence, the Council, Inspector, High Court and Court of Appeal were all wrong and it was not open to the Council or the inspector in this case to refuse to discharge the sub-conditions.
So, for developments in SACs and SPAs the position remains the same, an appropriate assessment will be required – this will be the case for the majority of ‘stalled’ sites. For Ramsar sites (and also pSACs and pSPAs) conditions may be discharged without an appropriate assessment.
Some developers will already have committed in a s106 agreement to pay mitigation sums in Ramsar sites – it may well now be worth revisiting that position given that the Supreme Court has confirmed that it is not necessary for such mitigation.
This ruling will likely trigger a review of how authorities approach Ramsar sites and other non-European protected areas, especially in light of post-Brexit environmental governance. The government may decide to legislate to put Ramsar sites on the same footing as SACs and SPAs.
If you would like to know more, or are in need of advice, then please contact Chris Tofts, author of this article and Partner in our Planning team.