An update on the Fry litigation

In March, we published a blog summarising the Court of Appeal decision in C G Fry & Sons Limited (Appellant) v Secretary of State for Housing, Communities and Local Government and another (Respondents) [2025] UKSC 35. Since then, the Supreme Court has heard the challenge and handed down its judgment (C G Fry & Son Limited (Appellant) v Secretary of State for Housing, Communities and Local Government and another (Respondents) [2025] UKSC 35).

The Supreme Court overturned the decision of the Court of Appeal to uphold the refusal of the developer’s bid to discharge planning conditions. To recap, the local planning authority had withheld approval on the basis that the development would have an adverse effect on the integrity of a protected site, relying on an advice note from Natural England published after the original outline planning permission was granted, as well as paragraph 181 of the National Planning Policy Framework which deals with protecting Ramsar sites.

The Court provided clarity on the impact that policy and changing scientific advice have on outline planning permission and discharging conditions in a reserved matters approval. It concluded that the grant of the outline planning permission creates rights under legislation for the developer to develop the land in accordance with the permission. Although outline permissions have a conditional aspect to them, this does not create a general power for a planning authority to withhold approval to further a purpose or policy objective that is not within the ambit of the conditions or expressed to be reserved.

The Supreme Court held that the rights created by the outline planning permission cannot be overridden or diluted by government policy, and therefore the planning authority and Court of Appeal’s reliance on this had been an incorrect approach. The Court set out that there are ‘points of principle’ accepted by the granting of the outline permission that authorities cannot go back on. Furthermore, whilst planning policy is important when deciding on whether to grant planning permission, it does not have the same status when it comes to discharging planning conditions down the line.

The Court highlighted that the local planning authority and the inspector relied on the policy in paragraph 181 of the NPPF and the new scientific advice given by Natural England to revisit matters which had been approved at the outline stage and did so in a way which could potentially eliminate the possibility of any development taking place within the ambit of the outline permission which had been granted, if approval were withheld because of a negative view formed in the course of carrying out the appropriate assessment. This was, however, not open to them as the planning legislation does not give them a power to do that, unlike the position in relation to a European site, where the Habitats Regulations apply. 

Although the Habitats Regulations did not apply to the specific set of facts (because Ramsar sites are not caught by the Habitats Regulations), the Supreme Court upheld the Court of Appeal’s interpretation of them. It held that in a case involving a potential impact on a European site where the Habitats Regulations did have effect, application of a normal purposive approach to their interpretation and having regard to the precautionary principle would lead to the conclusion that an appropriate assessment could be required at a later stage, such as reserved matters approval or the discharge of conditions if it had not been previously carried out or new information became available such that the authorisation was required for the project to proceed.

The decision will be of interest to developers who are seeking certainty on what can be developed under an outline planning permission, and to local planning authorities on the basis for discharging planning conditions. If you have any queries, please do not hesitate to contact me or my colleague Maelor James, senior associate.