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Portsmouth City Council is in the course of preparing its new Local Plan. Inter alia, the Plan proposes housing in the vicinity of the Portsmouth Harbour Special Protection Area (“SPA”) and Ramsar site.
To support the plan preparation process, the City Council commissioned a Habitats Regulations Assessment (“HRA”) of the draft Local Plan which concluded that Policy PLP3, a strategic allocation at Tipner West and Horsea Island East in the Pre-Submission Local Plan, was likely to have adverse effects on the integrity of protected habitats. However, the HRA also concluded that there were imperative reasons of overriding public interest (“IROPI”) to adopt the draft Local Plan with Policy PLP3 intact, notwithstanding those adverse effects.
In October 2024 the Council invited the Secretary of State to provide an opinion on whether the reasons relied on by the Council for progressing draft Policy PLP3, notwithstanding its implications for a European site, are considered to be IROPI.
On 28 February 2025, one working day before the City Council was due to submit its draft Local Plan for Examination, the Secretary of State notified the City Council of her opinion that the reasons relied on by the Council did not constitute IROPI. The substantive part of the Secretary of State’s Opinion was contained in just three short paragraphs.
The Council wrote a pre-action protocol letter to the Secretary of State and on 9 May 2025 the Secretary of State withdrew the Opinion on the basis that her decision to issue it had been unlawful because she had failed to give adequate reasons for her Opinion that each of the grounds relied on by the Council, individually and cumulatively, did not constitute IROPI; and that her opinion was irrational because it was based on flawed reasoning and failed to have regard to obviously material considerations.
The Secretary of State then took until 31 July 2025 to reissue the Opinion, again concluding that IROPI had not been established. The new Opinion was much more detailed than the first Opinion, extending to some 10 pages.
The Council wrote a further pre-action protocol letter following which, on 7 October 2025 the Secretary of State withdrew the Opinion on the basis that the Secretary of State failed to have regard to mandatory material considerations namely the proposed mitigations for construction impacts; and failed to give any or any adequate reasons for concluding that the City Council’s proposed mitigation measures for construction impacts and recreational pressure were ineffective to rule out adverse impacts at the Plan-level.
The Secretary of State has said he will endeavour to provide details of the redetermination as soon as is possible. Meanwhile, the Council is doing its best to continue to promote the Plan.
Robert Walton KC and Toby Fisher (Matrix Chambers) are promoting the Plan for the Council. This is the first ever plan that has been promoted on the basis that there are Imperative Reasons of Overriding Public Interest.
