Key planning decisions from the last quarter

In this article, we take a look at some of the key planning judgments from the last three months which are likely to impact decisions taken later this year, as well as looking ahead to an upcoming Supreme Court decision.

R (Greenpeace) v BEIS and another [2025] CSOH 10

This case is the latest to consider how downstream greenhouse gas emissions should be treated following the Supreme Court decision in Finch v Surrey County Council [2024] UKSC 20 and following the decision in Friends of the Earth Ltd v Secretary of State for Levelling Up, Housing and Communities & Ors [2024] EWHC 2349 (Admin) (see our previous articles on Friends of the Earth and Finch.) It concerned two judicial review challenges brought by two NGOs, Greenpeace and Uplift, to the offshore oil and gas development licences granted by the Secretary of State and the Oil and Gas Authority (OGA) in 2023 for the Jackdaw and Rosebank oil and gas projects, both off the coast of Scotland.

The Scottish Court of Sessions held, with reference to Finch, that the environmental impact assessments carried out as part of the development consent process should have considered the environmental impacts of the downstream greenhouse gas emissions released by the extracted oil and gas. As a result, the Court said that the Secretary of State and the OGA should reconsider the consented application for development taking into account such downstream emissions. In the meantime, although the Court did not find in favour of the developer’s arguments that the time, cost and practical implications of ceasing development of the projects was capable of justifying quashing the challenges, the Court did permit the developers to continue with certain works in the meantime so long as such works do not involve the extraction of oil or gas pending reconsideration of the decision/applications for consent.

Although, it is worth noting that the consents of the Jackdaw and Rosebank projects were granted in 2022 and 2023 and respectively pre-date the Supreme Court’s landmark case of Finch, the Court took the view that all parties at the time of the granting of the consents knew or ought to have known that the law at that time was uncertain and therefore that the developer in starting the works following consent being obtained took on the risk that that those consents could / would be unlawful. As a result, the Court was ultimately bound by the decision in Finch.

The result of this is that the developers have been left with a set of complicated commercial decisions to be made and considered, particularly in respect to what they now do should any subsequent reconsideration amount to a refusal of consent. This case also highlights the unwillingness of the courts to accept justification for development deemed unlawful on the basis of time, costs and practical complications.

It is also worth being aware that we still await the conclusions of the government’s consultation (launched October 2024) on supplementary environmental impact assessment guidance for offshore projects in light of Finch.

Mead Realisations Ltd v SSHCL [2025] EWCA Civ 32

This is the latest judgment to consider flood risk concerns which have featured in the planning Courts over recent years. In order to properly assess the significance of this case, it is important to track its development and background from the High Court to the Court of Appeal.

The High Court concluded that flooding from all sources must be considered as part of the sequential test. This was a conjoined case, involving challenges to two different Inspector decisions, but with similar facts. One of the main questions in the case was what can be considered as a “reasonably available site”. It was argued in both cases that the interpretation of this wording by the Inspectors had been incorrect. In both cases, the Inspectors had found that the flood risk at the sites in question, including the harm that would occur should flooding take place, provided reason to disapply the presumption in favour of sustainable development in the National Planning Policy Framework (“NPPF”).

The claimants put forward a restrictive interpretation that the type of development that must be considered in the analysis of reasonably available sites was only the specific development in question, including its form, quantum (both as to site area and amount of development) and proposed delivery timescales. However, the High Court judge disagreed with this interpretation, instead finding that the Planning Practical Guidance (“PPG”) does not require the consideration of alternatives to be restricted to sites that could accommodate the specific development being proposed. He explained that there is a need for realism and flexibility on all sides.

Therefore, in its judgment, the High Court concluded that whether a site is “reasonably available” will be a judgment for the decision-maker, taking into account a range of different factors, which could include the need for the type of development. A decision which the Court of Appeal upheld in finding that guidance in the PPG on the sequential test was consistent with policy in the NPPF.

As a result, both of the claims were ultimately dismissed. The Court of Appeal case is worth reading in full as it provides some helpful and detailed commentary around reasonably available sites. For the purposes of this article, we have highlighted the two key takeaways and considerations below:

1. The Sequential Test: This case illustrates the importance in applying a sequential, risk-based approach in respect of the approach taken to identifying the location of any proposed development. It is also important to note that this case provides precedent that all sources of flooding must now be considered as a result of changes to guidance meaning that all such sources of flooding should be assessed as consideration and application of the sequential test.
2. On policy: This case provides precedent in that the government’s planning policies as contained within the NPPF and its guidance in the PPG have essentially the same effective legal status. This case also provides that there is no legal barrier preventing the Secretary of State using the PPG to change the policies of the NPPF.

For more on Mead, please see our DCO Regime Updates webinar held and recorded on 12 February 2025 here which discussed Mead and its likely significance moving forward.

Test Valley Borough Council v Fiske [2024] EWCA Civ 1541

This case concerned the scope of variations that can be made by an application under Section 73 of the Town and Country Planning Act 1990 (as amended) (“TCPA”), which has come under scrutiny following the Supreme Court decision in Hillside Parks Ltd v Snowdonia National Park Authority [2019] EWHC 2587 (QB), with developers looking at alternative ways to consent variations lawfully. Please see our previous articles on this, Hillside and Post Hillside.

On 6 September 2023 the High Court held that a permission under Section 73 of the TCPA which removed a substation from a consented development was unlawful. The Court found that the substation in question was a ‘central part of the development’ and that its removal amounted to a fundamental alteration of the development.
Morris J held that the use of a variation by Section 73 was subject to two restrictions, expanding from the single restriction stance established in Armstrong v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 176 (Admin) (see our previous blog on this) and that conditions imposed under Section 73 would be considered to be unlawful where:

1. they are materially inconsistent with the operative part of the original planning permission for the development
2. they make a fundamental alteration of the development subject to the original planning permission where that permission is read as a whole.

The Council, however, disagreed and did not consider the substation to be substantial and so sought an appeal of the decision.

The Court of Appeal dismissed the claim but found that only the first restriction noted above should apply as there is no test regarding ‘fundamental alteration’ applicable to section 73 permissions. The Court of Appeal therefore held that a Section 73 permission could not be granted if that permission would conflict with the operative part of the permission. To explain this, Holgate LJ stated ‘it would be unlawful for a planning permission that expressly granted the development of ten houses to impose a condition prohibiting the erection of any more than nine houses. The condition would derogate from or negate the consent granted by the operative part of the permission.’

SSLUHC v Rogers [2024] EWCA Civ 1554

Turning now to procedural matters, a key recent case to be aware of is Rogers, which follows the High Court decision earlier in 2024 in Farnham Town Council v Secretary of State for Levelling Up Housing and Communities and another [2024] EWHC 2458 (Admin) (see our case update here). The Court of Appeal considered whether it held the jurisdiction to extend the time for service of a statutory challenge claim under Section 288 of the TCPA.

The relevant dates were:

• 18 April 2023: Claim filed
• 4 May 2023: Time for service of Section 288 claim expired
• 11 July 2023: Claim Form issued by the Court Office
• 12 July 2023: Claim Form served on the Secretary of State
• 13 July 2023: Claimant makes extension of time application

Although the claim form had been filed in good time, the claimant did not mention in its communications with the Court the relevant deadlines and prior to the expiry of the time for service, sent a single ‘high importance’ email seeking confirmation of receipt of the claim form. The claimant made no efforts to clarify or confirm the position following the expiry of the relevant time period.

The Court considered the application of Civil Procedure Rule 7.6 relating to an extension of time for serving a claim form and held that the test regarding a Section 288 claim is that contained in the case of R(Good Law Project) v Secretary of State for Health and Social Care [2022] EWCA Civ 355. The Court noted the following key principles:

1. The claimant has to show that it has taken all reasonable steps to serve the claim within the relevant period. Any steps taken after that relevant period are irrelevant.
2. The application for the extension of time must be made promptly.

The Court found that the claimant had not taken all reasonable steps as the claimant had failed to make the Court Office aware of the urgency in the initial correspondence, had not chased by email, telephone or in person prior to expiry of the relevant period and had not made clear the effect of the claim form not being served. The Court also held that a promptly served application should be made prior to expiry of the relevant period.

CG Fry & Son Limited (Appellant) v SSLUHC and another (Respondents)

To conclude, we wanted to highlight the challenge in Fry heard in the Supreme Court on 17 February 2025. Fry concerned the granting of outline planning permission by the relevant local authority (the “Council”) for a mixed-use scheme that included the construction of up to 650 houses on land near the River Tone, which, importantly for the purpose of this case, flows into the Somerset Levels and Moors Ramsar Site. The Council, in granting the outline planning permission and reserved matters approval, did not require the carrying out of an ‘appropriate assessment’ in respect of the effects of the project on nutrient neutrality in respect of the Ramsar site pursuant to the Conservation of Habitats and Species Regulations 2017 (the “Habitats Regulations”).

However, following the publishing of an advice note produced by Natural England in 2020 (after reserved matters approval), which recommended increased scrutiny of developments which could adversely affect the nutrient levels of the Somerset Levels and Moors Ramsar Site, the Council refused to discharge the conditions of the reserved matters approval due to the lack of an appropriate assessment under the Habitats Regulations.

Fry contested the abovementioned decision of the Council and issued a statutory challenge under Section 288 of the TCPA which failed in consideration at the High Court and in the subsequent appeal to the Court of Appeal. By way of summary, the Court of Appeal provided that:

1. the requirement for a ‘appropriate assessment’ at the discharge of conditions stage and/or outline or reserved matters stage was compliant with legislation so long as the assessment is carried out prior to the making of the ‘implementing decision’ (this being the decision to authorise the entire development)
2. paragraph 181 of the then 2021 NPPF provides that listed or proposed Ramsar sites should have the same protection as habitat sites and that the application of paragraph 181 of the then NPPF was relevant to the development as a whole and not just those matters set to be affected by the discharge of the conditions.

The Court of Appeal concluded that an ‘appropriate assessment’ was required pursuant to the Habitats Regulations. The issue therefore being considered by the Supreme Court at present is whether Regulation 63 of the Habitats Regulations requires an ‘appropriate assessment’ to be undertaken for subsequent approvals after the grant of outline planning permission at a further consent stage. This is likely to be one of the landmark judgments later this year.

How can we help?

Our Planning & Compuslory Purchase team has extensive experience in advising on how key issues being considered in Court impact in practice on proposals being promoted under the TCPA, DCO and DNS regimes. Please contact Alex Minhinick, Maelor James or George Packer for more information.