Background
Cemex UK Operations Ltd sought planning permission to extract sand and gravel from the former Hamble Airfield in Hampshire. Hampshire County Council refused the application, but a planning inspector allowed Cemex’s appeal after a public inquiry. The site lies about 300 metres from several protected areas, including the Solent and Southampton Water Ramsar Site and Special Protection Area and the Solent Maritime Special Area of Conservation.
Hamble Parish Council, a member of the Hamble Peninsular Defence Group, challenged the inspector’s decision under section 288 of the Town and Country Planning Act 1990. It argued that the inspector had acted unlawfully in dealing with Natural England’s advice, misunderstood the weight that could be given to that advice, and irrationally concluded that the development presented no reasonable scientific doubt of adverse effects on the protected sites. Lang J refused permission on the papers, and the council renewed its application before Chamberlain J.
The Court’s Holding
The High Court refused the renewed application for permission because none of the three grounds was realistically arguable. The inspector had complied with the statutory obligation to consult Natural England. Although Natural England may not have reviewed all the inquiry evidence and may earlier have proceeded on a mistaken understanding of the location of a protected SSSI, the inspector was not irrational in consulting it again without specifically highlighting those matters. The evidence and livestream were available to Natural England, and the inspector was entitled to regard the alleged misconception as immaterial in light of his own findings.
The court also rejected the contention that the inspector treated Natural England’s lack of objection as creating a legal presumption of no adverse effects. Read as a whole, the decision showed that he gave Natural England’s position significant weight while independently assessing the competing hydrological and ecological evidence. His findings—that the project was unlikely materially to alter flows to nearby springs and that even a material hydrograph change would not adversely affect the protected sites—were adequately explained, rationally open to him, and consistent with the requirement that no reasonable scientific doubt remain.
Key Takeaways
- A competent authority must consult Natural England under regulation 63 of the Conservation of Habitats and Species Regulations 2017, but it need not affirmatively direct the agency’s attention to every disputed item of evidence unless failing to do so would be irrational.
- Natural England’s expert advice may receive significant weight, but the ultimate assessment of effects on a protected site remains the competent authority’s own evaluative judgment.
- A section 288 challenge cannot be used to reargue planning merits or competing expert evidence where the inspector applied the correct legal test and gave adequate, rational reasons.
Why It Matters
The judgment confirms the substantial procedural and evaluative latitude afforded to planning inspectors handling technically complex habitats assessments. Courts will examine compliance with regulation 63 carefully, but their role remains supervisory rather than to decide the scientific merits afresh.
For objectors, identifying gaps or factual mistakes in a statutory consultee’s advice may not be enough. A viable challenge must show that the inspector’s handling of those matters was legally material and irrational, particularly where the inspector independently evaluated the expert evidence and supplied detailed reasons.