The Conservation of Habitats and Species Regulations 2017 is the centrepiece of biodiversity protection in England and Wales. The default position is that development may not proceed if it will have adverse effects on protected habitats. Exceptionally, development may proceed, notwithstanding adverse effects on protected habitats, if there are “imperative reasons of overriding public interest” (‘IROPI’) to do so.
The IROPI exception is frequently relied on in the delivery of national infrastructure projects. It has never previously been relied on for the adoption of a Local Plan.
Portsmouth City Council is in the course of preparing its new Local Plan. Amongst other things, Policy PLP3 of the Draft Local Plan proposes a regionally significant marine hub together with enabling housing. The Policy allocates a site adjacent to and within the Portsmouth Harbour Special Protection Area (“SPA”) with the effect that the Policy will inevitably cause the loss of some protected habitats. The City Council, in reliance on a detailed Habitats Regulations Assessment, has concluded that the Policy is nonetheless justified by IROPI, and has set out a plan for compensating the loss of protected habitat.
In October 2024 the City Council invited the Secretary of State to provide an opinion on whether she agreed that the reasons relied on by the City Council for progressing draft Policy PLP3 were IROPI. This was the first ever request for an IROPI Opinion from the Secretary of State with regard to a proposed Local Plan.
On 28 February 2025, the Secretary of State notified the City Council that she did not agree that the reasons relied on by the Council were IROPI. That decision was, however, unlawful. In response to a pre-action letter, the Secretary of State withdrew the Opinion on 9 March 2025, conceding that her Opinion failed to give adequate reasons and was irrational.
On 31 July 2025, the Secretary of State reissued the Opinion, again concluding that IROPI had not been established. However, that decision was also unlawful. On 7 October 2025, in response to a further pre-action letter, the Secretary of State withdrew the second Opinion on the basis that he had failed to have regard to obviously material considerations, and failed to give any or any adequate reasons for his conclusions.
The Secretary of State has said he will endeavour to provide details of the redetermination as soon as is possible. Meanwhile, the City Council continues to promote the Plan.
Toby Fisher is advising the Council on all habitats issues relating to the Local Plan. He is promoting the wider Plan together with Robert Walton KC.