R (Wyatt) v Fareham Borough Council

The Court of Appeal dismissed the challenge to Fareham Borough Council’s grant of outline planning permission for eight houses. The principal legal issues were (i) whether the council, as competent authority, lawfully performed an "appropriate assessment" under regulation 63 of the Conservation of Habitats and Species Regulations 2017 in relation to nutrient impacts on Solent European sites, and (ii) whether the council complied with its duty under section 38(6) of the Planning and Compulsory Purchase Act 2004 to determine the application in accordance with the development plan unless material considerations indicated otherwise.

The court applied established principles: the appropriate assessment is the evaluative responsibility of the competent authority, judicial review is supervisory and governed by Wednesbury principles, and deference is owed to the views of the expert statutory body (Natural England) absent conspicuous error. The court held that the council’s assessment, which relied on Natural England’s technical guidance (including use of a 2.4 persons occupancy assumption, averaged land-use inputs and a 20% precautionary buffer) was lawful in context. The council had consulted Natural England and addressed objections; the use of averages and the buffer fell within permissible expert judgment and precaution. The court also held that the officer’s report and committee decision adequately performed the section 38(6) duty by identifying conflict with some plan policies, explaining the engagement of Policy DSP40 in light of a five-year housing land supply shortfall, and applying planning judgment to conclude the proposal accorded with the development plan as a whole.

This was an appeal from a decision of Mr Justice Jay ([2021] EWHC 1434 (Admin)) dismissing judicial review of Fareham Borough Council’s 1 October 2020 grant of outline planning permission for eight dwellings at Egmont Nurseries, Brook Avenue, Warsash. The appellant, Ronald Wyatt (chair of a local residents’ group, BARAD), sought to quash the grant of permission on multiple grounds, principally alleging (i) an unlawful appropriate assessment under regulation 63 of the Habitats Regulations because of reliance on Natural England’s "Advice on Achieving Nutrient Neutrality" (June 2020) and its methodology (use of average occupancy rate 2.4, average land-use inputs and a 20% precautionary buffer), and (ii) failure to perform the duty in section 38(6) of the Planning and Compulsory Purchase Act 2004 to determine the application in accordance with the development plan unless material considerations indicated otherwise.

Parties and procedure: The council was the respondent and competent authority; Natural England was an interested party and gave technical advice. The matter reached the Court of Appeal with permission granted following Jay J’s refusal of relief. The case involved expert evidence from both sides (an environmental consultant for the appellant and Natural England’s witness).

Relief sought: The appellant sought quashing of the planning permission and a declaration that the council had failed its duties under the Habitats Regulations and section 38(6).

Issues framed by the court:

• Whether the council’s appropriate assessment under regulation 63 complied with the Habitats Directive and regulations, having regard to the required standard of "no reasonable scientific doubt" and the precautionary principle;
• Whether reliance on Natural England’s guidance and the use of average inputs (notably occupancy rate 2.4), averaged land-use figures and a 20% buffer produced an assessment that was based on "best scientific knowledge";
• Whether the council lawfully discharged its section 38(6) duty when its officer concluded, consistently with Policy DSP40 and despite conflict with other policies (notably CS14), that the scheme should be approved.

Court’s reasoning and conclusions: The court reiterated established legal principles: the appropriate assessment is an evaluative judgment for the competent authority, courts exercise supervisory review on Wednesbury principles, the precautionary principle requires a high standard of investigation but not absolute certainty, and competent authorities are entitled to give significant weight to Natural England’s expert advice. On the regulation 63 challenge the court concluded that the council’s assessment was lawful: the methodology must be judged holistically, Natural England’s advice was advisory not mandatory, Natural England had been consulted and raised no objection to the particular use of the 2.4 occupancy figure in this case, averaged land-use inputs and the 20% buffer were rational precautionary choices and not exposed to judicial intervention absent conspicuous error. On the section 38(6) challenge the court concluded that the officer’s report and committee decision adequately addressed development-plan compliance and other material considerations, explained the weight between competing plan policies (giving precedence to DSP40 in light of the five-year housing land supply shortfall), and reached a lawful planning judgment that the proposal accorded with the development plan as a whole.

Practical note: The court emphasised the need for courts to defer appropriately to technical expertise and to review the lawfulness of an authority’s evaluative judgments, not to substitute their own scientific assessments. The judgment also noted that Natural England later updated its guidance (March 2022), which is not determinative of this appeal.

The appeal is dismissed. The court held that (i) the council lawfully carried out an appropriate assessment under regulation 63 of the Habitats Regulations: the authority’s evaluative judgment, informed by Natural England’s guidance, the use of the 2.4 occupancy assumption, average land-use inputs and a 20% precautionary buffer, was within the bounds of lawful discretion and the precautionary principle; and (ii) the council lawfully discharged its duty under section 38(6) of the Planning and Compulsory Purchase Act 2004 by identifying conflicts with some development-plan policies, explaining the engagement and precedence of Policy DSP40 given the five-year housing land supply shortfall, and reaching a reasoned planning judgment that the scheme accorded with the development plan as a whole.

Appeal from the High Court of Justice, Queen's Bench Division (Planning Court), Mr Justice Jay: [2021] EWHC 1434 (Admin). Permission to appeal was granted (permission given by Lord Justice William Davis). The Court of Appeal gave judgment [2022] EWCA Civ 983 dismissing the appeal.