A brief summary of the Dibden Bay decision letter and potential implication for other developments

Note: numbers refer to paragraph numbers in the decision letter of 20 April, 2004 (reference P89/24/59). Text in italics refers to matters concluded by the Secretary of State - otherwise the text refers to the conclusions of the Inspector. This summary should be read in the context of the full decision:

Dibden bay decision letter (PDF†)

Summary

The original environmental statement did not adequately describe the proposal and so the full environmental consequences could not be established [13]. The Secretary of State agreed [40].

The Structure Plan was key in determining development policy for which the proposal would have to meet in preference to the requirements of other local policies [16].

The appropriate assessment carried out by the developer could not be relied on - they had wrongly concluded that there would be no adverse affect on the integrity of Natura 2000 sites [17]. The Secretary of State agreed [53].

The 'functional' approach to considering whether impacts resulted was wrong - the developer could not treat compensatory measures as mitigation. Habitat creation outside a Natura 2000 sites cannot mitigate impacts on the site [17]. The Secretary of State agreed. Offsetting measures cannot be considered as mitigation [54].

The development would achieve the object of the Harbour Revision Order and that there were no realistic alternative sites within the locality which would meet the needs of the Port of Southampton [21, 29]. The Secretary of State agreed [42, 50, 66]. However, the project also had to satisfy the test of 'alternative solutions' under the Habitats Regulations [29, 66]. The Secretary agreed that the integrity of a Natura 2000 site would be adversely affected and therefore, the consideration of alternatives must concern other ways of avoiding impacts on designated sites. Such consideration would not be confined to alternative local sites, but alternatives located in different regions or even different countries [51]. The public interest was different to that of the Port of Southampton - it was of wider application and included the economy of the South East and beyond [66].

The commercial viability of the development and its ability to attract the necessary funding for implementation had not been proven though that was not to say it couldn't [22]. On this basis, it was concluded that the project could not pass the test of 'imperative reasons of overriding public interest' [30]. The Secretary of State agreed, suggesting that there was doubt as to whether the proposal would meet the foreseen shortfall in port capacity [48].

Failure to consent the proposal would not put at risk the future of the Port of Southampton although some benefits would consequently be missed. Nor would there be a serious adverse affect on the local economy and local economy beyond the loss of direct opportunities [23].

The benefits of the project were accepted as being in the public interest. However, the development would result in substantial environmental damage [25]. Furthermore, it would have a significant impact on landscape and lead to urbanisation [26].

The most significant harm arising from the proposal would be to nature conservation interests, especially internationally important sites to which paramount important was attached [27].

National policy, regional guidance and local policies did not indicate that nature conservation policies could be overridden by a need for the development specifically at the Port of Southampton [30].

In meeting the test of 'imperative reasons of overriding public interest' it could be reasonably expected that a project would have the support of bodies representing the public interest. Only one public body had expressed support for the proposal. Furthermore, the weight of public opinion was heavily against the proposal [31].

If the foreseeable national need could be met without Dibden, then there would be no 'imperative' reason of public interest to override the public interest of the international important wildlife sites [33].

The usefulness of capacity and demand predictions beyond 2015 was doubted [34]. The Secretary of State went further to say that whilst it was accepted there was a need, he had no reason to identify a precise year or years when the shortfall in capacity might arise [48].

The other schemes currently proposed which could, in various combinations could address or exceed the national need could not be ruled out [35], though others (such as in Scotland or those without current formal worked up proposals) where not credible alternatives [36]. The Secretary of State agreed in principle that the other schemes were feasible and credible alternatives for meeting forecast national need in the short to medium term. There was no reason at this stage to rule them out [45, 66]. The Scottish developments are less realistic alternatives - those without formal proposals are not credible alternatives [46].

The temporary lack of port capacity that might result because of not consenting the development was not considered an imperative reason of public interest that should override the international wildlife importance of the site [37]. Any shortfall in port capacity would be short-term and therefore there was no 'imperative reason of overriding public interest' [38]. The Secretary of State agreed that short-term economic interests of other benefits that would only yield short-term benefits for society would not be sufficient to outweigh the long-term interests of the Habitats Directive. Therefore a predicted short term shortfall in capacity should not be an imperative reason of overriding public interest [47].

The habitat creation proposals offered as compensation were inadequate [39]. The Secretary of State agreed. The compensation proposed was small in area and the quality of habitat and the value to birds was uncertain [55]. The value of the proposed recharge was uncertain, may even be detrimental and was rejected outright [56]. In all circumstances, the compensation package was considered inadequate [57]. Furthermore, there were no concrete proposals for improving the compensation package [58].

There were considerable competing public interests at stake, that there were value judgements to be made and that others might conclude otherwise [38, 69]. However, whilst not disputing this fact, the Secretary of State concluded that the environmental impacts were clear cut and because of the importance placed on meeting obligations under European Community law and the Ramsar Convention, the environmental impacts were determinative and the proposal must be refused [69].

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© 2004, Portswatch, info@portswatch.org.uk