The Queen (on the application of Ronald Wyatt, Chairperson of BARAD, acting in a representative capacity) v Fareham Borough Council & Ors.

Under the Conservation of Habitats and Species Regulations 2017, the competent authority makes the evaluative judgment whether a project will adversely affect a protected site. The court reviews that judgment on ordinary Wednesbury principles, applied with appropriate rigour, and does not conduct its own appropriate assessment.

An assessment must be precautionary and based on the best scientific knowledge viewed holistically. It need not assess a reasonable worst-case scenario in every case, and average figures or a judgment-based precautionary buffer may lawfully be used where the authority can rationally be satisfied that there is no reasonable scientific doubt.

For section 38(6), compliance with the development plan as a whole is a planning judgment. An officer’s report is read fairly, realistically and with common sense.

Mr Wyatt, acting representatively for BARAD, challenged Fareham Borough Council’s grant of outline permission for eight houses near the Solent and Southampton Water Special Protection Area. The council had undertaken an appropriate assessment, following consultation with Natural England, and concluded that on-site mitigation would ensure nutrient neutrality.

Jay J dismissed the judicial-review claim: [2021] EWHC 1434 (Admin). The appellant contended that the assessment unlawfully used average land-use data, a national occupancy rate of 2.4 persons per dwelling, and a 20% precautionary buffer. He also alleged a failure to determine the application in accordance with the development plan under section 38(6) of the Planning and Compulsory Purchase Act 2004.

The appeal concerned whether those duties had been lawfully discharged.

1. Appeal dismissed. The council lawfully performed its duty under regulation 63 of the Conservation of Habitats and Species Regulations 2017. The ultimate conclusion that a project would not adversely affect a protected site was an evaluative judgment for the competent authority. The court’s role was supervisory. Ordinary Wednesbury review applied, with scrutiny appropriate to the demanding statutory threshold, but not anxious scrutiny or a substitute assessment by the court.

2. The precautionary principle required the council to be satisfied that there was no reasonable scientific doubt as to the absence of adverse effects. It did not require absolute certainty or, in every case, assessment of a reasonable worst-case scenario. The lawfulness of an appropriate assessment depended on whether its methodology as a whole was sufficiently rigorous and precautionary.

3. Natural England’s technical guidance was advisory and did not create a mandatory procedure. The council was entitled to rely on Natural England’s expert view, absent cogent reason to depart from it. It could rationally use the 2.4 occupancy rate in this case, having regard to the assessment as a whole, the consultation response, other precautionary assumptions and the 20% buffer. The buffer was not unlawful because it reflected expert judgment rather than an arithmetical formula. Nor were average land-use figures inherently objectionable in an individual project assessment.

4. Lord Justice Males agreed in the result. He considered that the officer’s approach to occupancy did not precisely follow Natural England’s 2020 guidance. However, Natural England had been consulted, understood the use of the 2.4 rate, and raised no objection. That provided a good reason for the council not to follow the guidance precisely.

5. The council also complied with section 38(6) of the Planning and Compulsory Purchase Act 2004. Read fairly, the officer’s report reached a sufficiently clear conclusion that the proposal accorded with the development plan as a whole. It was a lawful planning judgment to give greater weight to the policy addressing housing development where there was no five-year land supply, despite limited conflict with another criterion and with the countryside policy. Other material considerations did not indicate refusal.

• Court of Appeal (Civil Division): dismissed the appeal and upheld the grant of planning permission: [2022] EWCA Civ 983.

• High Court, Planning Court: Jay J dismissed the claim for judicial review of the council’s decision: [2021] EWHC 1434 (Admin).

• Fareham Borough Council: granted outline planning permission on 1 October 2020, following an appropriate assessment under the Conservation of Habitats and Species Regulations 2017.