As the UK approaches a pivotal political change, the conversation around sustainability and environmental policy has never been more crucial.
At the forefront of this dialogue is CG Fry, a construction company that has been pioneering carbon-neutral building practices. Their innovative approach not only sets a new standard in the industry but also holds significant implications for political agendas and policy-making.
This article delves into how CG Fry’s commitment to sustainable construction is shaping the future of housing and influencing the broader political landscape in the UK.
Neutrality Rules – CG Fry
Five years ago today (five years!) I was one of the first to blog about nutrient neutrality – the de facto veto on house building in some areas – in Another Green World: The South Coast Nitrate Crisis (29 June 2019)
Since then the current Government has achieved nothing by way of legislation to unlock the issue. Instead the public and private sectors have gradually had to work up bespoke or locally strategic solutions and work-arounds.
What now are the two main parties promising in their manifestos?
The Conservative party proposes “abolishing the legacy EU ‘nutrient neutrality’ rules to immediately unlock the building of 100,000 new homes with local consent, with developers required in law to pay a one-off mitigation fee so there is no net additional pollution.”
The Labour party promises to “implement solutions to unlock the building of homes affected by nutrient neutrality without weakening environmental protections.”
In the interests of political neutrality I would describe these as two equally empty promises. No legislative solution will be both fast and environmentally robust. The Conservative attempt to shoehorn a provision into the then Levelling-up and Regeneration Bill last year of course flopped – see my 16 September 2023 blog post NN No. And five years on from Brexit (five years!) it is rather weak still to be pinning this problem on the EU!!
As well as delaying housebuilding, the issue has of course been grossly unfair for many developers and landowners who had obtained planning permission before Natural England had raised nutrient concerns and then find that they cannot achieve reserved matters approval or discharge pre-commencement conditions.
It was hoped by some that the courts might provide a solution to that particular position, by way of the litigation commenced by CG Fry. Unhappily their case was unsuccessful in the High Court – see my 30 June 2023 blog post CG Fry: AA Post PP. Even more unhappily, that ruling has now been upheld in the Court of Appeal (28 June 2024).
The Court of Appeal held that “the inspector was right to conclude, and the judge to accept, that on their true interpretation regulations 63 and 70 of the Habitats Regulations could require an appropriate assessment to be undertaken at the stage when the discharge of conditions was being considered. This conclusion not only reflects the proper construction of the Habitats Regulations but also accords with the case law, both European and domestic, bearing on this question.”
“What, then, is the correct interpretation of the provisions of the Habitats Regulations with which we are concerned? We must begin with the domestic legislation as it is drafted. Applying normal principles of statutory interpretation, there is nothing in the relevant provisions to exclude the requirement for an appropriate assessment to be undertaken either when reserved matters are being approved or when conditions are being discharged, if the “authorisation” in question is necessary to enable the project to be lawfully implemented.
Given their natural and ordinary meaning, the words of regulation 63 clearly admit that possibility. The obligation imposed on a competent authority by regulation 63 is framed in broad terms. It makes necessary the carrying-out of an “appropriate assessment” before the authority decides to give “any consent, permission or other authorisation” for a plan or project. This formulation is clearly designed to capture a wide range of “authorisations”, of differing kinds; hence the use of the expression “or other authorisation”. It displays the essential purpose of the assessment provisions, which is to avoid any risk of harm to the integrity of a protected site. On a straightforward reading of the language used, having regard to that legislative purpose and to the underlying precautionary principle, the range of authorisations embraced in the provision extends, in our view, beyond the initial stage in the relevant process of decision-making. Any other interpretation would, we think, be incompatible with the words of the provision, inconsistent with the legislative purpose, and inimical to the precautionary principle.
Understood in this way, regulation 63 allows an appropriate assessment to be undertaken when the authority is making the final decision in a sequence authorising the development to proceed. Where that process involves the granting of outline planning permission for the proposed development and the subsequent submission and approval of reserved matters or the discharge of conditions, regulation 63 does not prevent the appropriate assessment of the project being carried out at that later stage as an exercise required before the decision is taken. In principle, it is not too late for such an assessment to be undertaken either when an approval of reserved matters is applied for or when the authority is called upon to discharge “pre-commencement” conditions, whose effect is that development carried out in breach would not be authorised by the planning permission.”
Nor in determining the relevant pre-commencement condition application or application for reserved matters is the decision-maker restricted to considering only the subject matter of the applications themselves, rather than the wider ecological issues.
And the principle applies equally to Ramsar sites as to other sites protected under the Conservation of Habitats Regulations.
I have no insight as to whether CG Fry will apply for permission to appeal to the Supreme Court but, regardless, it is clear that the courts will not be providing even a partial solution to the current crisis any time soon. My eyes turn to the incoming Government – where will we be in another five years I wonder?
Simon Ricketts, 29 June 2024