House builder takes government to court against nutrient neutrality decision

The hearing continues today with the government and council’s rebuttal, arguing that it was working to resolve the issue through the Levelling Up and Regeneration Bill going through parliament.

The case revolved around CG Fry’s plans to build 650 homes on the Jurston Farm site in Wellington. Planning permission for the estate was granted by the council in 2015 and CG Fry has already completed the first two phases.

A third phase, for 190 properties, was approved in June 2020, two months before Natural England declared that no new development in the area could be given planning permission unless it was shown that it would not increase phosphate emissions, which are damaging wildlife and habitats in Somerset.

CG Fry claimed that when it subsequently asked the council to approve drainage plans for the new phase, the council retrospectively applied EU regulations aimed at protecting wildlife habitats, not just for the latest phase but also for all the homes that had already been built.

The builder said it would have to come up with a new drainage scheme for the whole estate, potentially adding millions of pounds to its overheads, making the development unviable and putting the jobs of staff at risk.

A government-appointed planning inspector dismissed an appeal by the developer and ruled that the council was entitled to act in the way it did, but a High Court judge later granted permission for a hearing, saying CG Fry’s grounds were arguable.

In a skeleton argument for CG Fry, Charles Banner KC of Keating Chambers and Ashley Bowes of Cornerstone Barristers referred to evidence from the Home Builders Federation that due to the unavailability of mitigation options, nutrient neutrality rules were holding up 100,000 homes in England. Around 40% of these homes already have planning permission and are at the planning stages affecting the Jurston Farm site.

“Around 25% of the national annual housing supply is currently held up by issues that are capable of being resolved by these proceedings,” they wrote. “In the context of a national housing crisis, it follows that the issues in this claim are of very considerable national importance.”

In a skeleton argument for the government, Richard Moules and Nick Grant of Landmark Chambers wrote that nutrient neutrality “is the result of EU-derived law, and it will take legislation to fix. That is why legislative provisions unlocking the issue have been included in the Levelling Up and Regeneration Bill. That is the appropriate place to resolve this problem.”