Parish council fails in legal challenge over approval for sand and gravel extraction at former airfield

The parish brought the case against the Secretary of State for Housing, Communities and Local Government, aggregates firm Cemex UK Operations and Hampshire County Council.

Mr Justice Chamberlain said Cemex applied for planning permission to extract sand and gravel from the former Hamble airfield.

This was refused by Hampshire County Council. Cemex appealed and planning inspector Stephen Normington held a public inquiry.

Hamble Peninsular Defence Group - of which the parish forms part - argued the application should be refused, in part because Cemex had failed to demonstrate beyond reasonable scientific doubt that its works would not damage the integrity of European and Ramsar sites.

Mr Normington though allowed the appeal and the parish challenged his decision under s. 288 of the Town and Country Planning Act 1990.

Hamble argued three grounds. The first was that the inspector adopted an unlawful approach to whether Natural England (NE) had considered the evidence and/or whether its advice was based on an incorrect factual premise.

Its second ground was that Mr Normington misunderstood the law in relation to NE's advice and its third that his conclusion on the integrity of the European sites was irrational.

Mr Normington said in his decision letter that no landscape, ecological or historical designations covered the sites, although some were nearby.

The High Court heard a key issue at the inquiry concerned the effect of the proposed development on the site’s hydrology and the habitats and species which depended on it.

Rival experts were called by each side and Mr Normington concluded that Cemex’s plan was designed to ensure that the water infiltrates into the surrounding area at the same rate and in the same locations as currently and so, “the hydrological regime associated with the appeal site would not be materially impacted through the development and that freshwater flows would not be impacted materially or significantly”.

Chamberlain J said the only duty imposed was to consult NE, which Mr Normington did, and there was no statutory duty on him to do anything as a result or to draw any particular matters to NE's attention.

“Therefore…a failure to gather relevant evidence would be unlawful if and only if the failure were irrational.” Chamberlain J said.

“The question for me is whether the procedural approach taken by the inspector was arguably irrational. In my judgment, it was not.”

He said the inspector had conducted a careful analysis of the competing expert evidence and reached his own conclusion, separate from NE's view, that the impacts on protected sites would be immaterial.

“In those circumstances, there was no material misdirection of law,” he said. ”The contrary is not realistically arguable.”

Chamberlain J also dismissed the argument that Mr Normington’s conclusions on the impact on protected sites was irrational.

He said there had been two parts to Mr Normington’s conclusions.”First, that there was unlikely to be any material change to the water flow to the springs; and secondly, that - even if there were a material change in the freshwater hydrograph - this would not have an adverse effect on the European sites.

“Both conclusions were open to him and both were fully explained. The inspector's careful reasons for reaching the conclusions he did were not only adequate to deal with the main points in dispute but, I think it fair to say, impressive and full.”

The judge concluded none of the grounds was realistically arguable and refused permission to apply for judicial review.

Mark Smulian