The future of a new housing development near the M5 in Somerset remains in the balance despite a recent ruling by the High Court.

House-builder C. G. Fry was granted outline permission in December 2015 to construct the Jurston Fields development north of the A38 West Buckland Road in Wellington, consisting of up to 650 homes, employment units, a primary school and a community wood.

Construction on the first two phases are already well under way, and plans for phase three – comprising 190 homes – were approved by Somerset West and Taunton Council in June 2020.

The delivery of the new homes has been stymied by the ongoing phosphates crisis, with the developer lodging legal challenges with the Planning Inspectorate,  the High Court and the Court of Appeal – failing on all three occasions.

The developer has now asked the Supreme Court – the final court of appeal for UK legal cases – to consider the matter, arguing that the High Court “misinterpreted” the existing legal advice.

Following the Dutch N court ruling, Natural England issued advice to Somerset’s four district councils in October 2020, raising concerns about phosphate levels within the Somerset Levels and Moors Ramsar site, which is protected by international law.

The councils were urged to undertake a habitat regulations assessment (HRA) before making a decision on any planning applications which may lead to an increase in phosphates – including new homes or commercial premises.

As part of the phase three approval, Somerset West and Taunton Council required C. G. Fry to take several steps to mitigate the impact of the new homes before construction could formally begin.

This includes the agreement of a drainage scheme to remove surface water from the homes, the approval of detailed designs of roads, pavements and parking areas within the site, and the approval of all pedestrian and cycling routes throughout the site.

At a planning inquiry held in August 2022, the Dorchester-based developer claimed that the council had refused to agree these conditions to be discharged until a full HRA had been carried out – not just for the phase three homes, but for the entire Jurston Fields site.

The council claimed that it had no issue with the layout of phase three, but said it could not allow this phase to proceed unless the mitigation was agreed.

The Planning Inspectorate ruled in the council’s favour in December 2022, with planning inspector Darren McCreery stating that “appropriate assessment” needed to be carried out before a decision was made on any planning application which could “give rise to additional phosphates”.

The developer appealed this decision, but the High Court dismissed this legal challenge in June 2023 and upheld the council’s judgement in doing so.

C. G. Fry lost its subsequent challenge at the Court of Appeal, which was held in mid-March and was published in late-June.

The judges ruled: “Where an appropriate assessment is required before an
‘implementing decision’ is made, the assessment must be of the whole development whose implementation is authorised by that decision.

“In this case, that was phase three of C. G. Fry’s proposed development.”

Somerset Council – which replaced the district council in April 2023 – indicated in January that construction within the Jurston Fields site could proceed while the various legal proceedings were still ongoing.

However, if the council’s view is confirmed by the Supreme Court, none of the new homes within phase three can be occupied until the additional mitigation has been secured and the appropriate measures implemented by the developer.

A spokesman for C. G. Fry. said: “The Court of Appeal ruled against us and judged that it is acceptable for the council to ask for a habitats regulations assessment late in the process (for the discharge of planning conditions).

“The court also ruled that this applied to all planning conditions and not just those with a bearing on nutrients.

“Our advice is that the Court of Appeal has misinterpreted the regulations and case law on both points, and so we have sought leave to appeal to the Supreme Court.  That court’s decision is awaited.”

A spokesman for Somerset Council said: “We won on all points and the appeal was dismissed.

“The appellants have sought leave to appeal to the Supreme Court and we are waiting to hear whether or not that has been granted.”