Wyatt, R. (On the Application of) v Fareham Borough Council

Under the Habitats Regulations, a competent authority must make a case-specific appropriate assessment using the best available scientific knowledge and applying the precautionary principle. Scientific uncertainty does not prevent consent where precautionary assumptions and mitigation remove reasonable scientific doubt about adverse effects on site integrity.

The reviewing court applies the ordinary Wednesbury standard, with appropriate respect for the technical expertise of the decision-maker. It must keep the authority’s evaluative task distinct from its own supervisory role. Natural England’s expert advice merits substantial weight, although a decision-maker may depart from it for cogent reasons.

For planning applications, development-plan policies require reasonable planning judgment rather than excessively legalistic textual analysis. Minor procedural breaches will not justify relief where the outcome would inevitably have been the same.

The claimant, acting representatively for local residents, sought judicial review of Fareham Borough Council’s grant of outline planning permission for eight houses at former Egmont Nurseries in Warsash.

The challenge concerned nutrient neutrality and the appropriate assessment required by the Conservation of Habitats and Species Regulations 2017, including the use of a 2.4-person occupancy rate, the classification of part of the site as lowland grazing, and a 20% precautionary buffer. Further grounds concerned disclosure and procedural fairness, the application of planning policies, access arrangements, and the statutory priority given to the development plan.

The central issues were whether Fareham had acted unlawfully in assessing the development’s effects on protected sites and whether its planning judgment and procedure were legally defective.

1. The claim was dismissed. Fareham had lawfully discharged its obligations as competent authority under regulation 63 of the Habitats Regulations.
2. An appropriate assessment must be case-specific, based on the best available scientific knowledge, and sufficiently rigorous to remove all reasonable scientific doubt as to adverse effects on the integrity of the protected site. The precautionary principle addresses scientific uncertainty; it does not prohibit all development. A nutrient-neutral proposal may lawfully be authorised.
3. The court’s role on judicial review remained supervisory. The authority’s scientific and evaluative assessment was reviewable on ordinary Wednesbury principles, with appropriate regard to its technical expertise. The court must not substitute its own assessment for that of the competent authority. Fareham was entitled to rely substantially on Natural England’s advice.
4. The use of a 2.4 average occupancy rate was not irrational in the circumstances. Although a figure of 3 was more statistically specific for four- and five-bedroom houses in the Fareham area, other precautionary features of the methodology—particularly the non-linear relationship between occupancy and water use and the assumption of complete migration into the catchment—provided adequate protective leeway. The judgment nevertheless recommended clearer future guidance on when bespoke, including higher, occupancy rates should be used.
5. The classification of part of the site as lowland grazing was reasonably open to the planning officer on the evidence. The use of regional average land-use figures and the 20% buffer was also not perverse.
6. Failures to publish the HRA and final Natural England advice within the statutory period, and any associated procedural unfairness, were immaterial. The planning officer’s report fairly summarised the HRA and the later advice added nothing material. The claim concerning the background papers also failed.
7. The omission of Brook Avenue from the red-line location plan did not deprive Fareham of jurisdiction under article 7 of the DMPO. The existing easement provided access and involved no new private access works or radical change in use.
8. Planning judgments under Policy DSP40 and section 38(6) of the 2004 Act were not to be read with undue rigour. The officer had identified the conflicts with the development plan, assessed the extent of compliance with DSP40, and lawfully applied the tilted balance.