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High Court, in planning and development judicial review proceedings challenging the grant of planning permission by the planning board (on appeal) for the development of a wind farm in the vicinity of the applicants' home, refuses to quash the board's decision, on the grounds that: (1) the board complied with the EU Habitats Directive in relation to an appropriate assessment carried out on the proposed development; (2) the board's environmental impact assessment did not breach the EU Environmental impact assessment Directive; and (3) despite the applicants' advancing arguments at hearing which were not pleaded in advance, the court agreed to take the unusual step of considering these additional (ultimately unsuccessful) grounds of challenge given the lack of prejudice to the other parties in the case.
Judicial review - planning and development - planning board's decision to grant permission to develop wind farm - whether a failure by board to comply with Habitats Directive in relation to appropriate assessment carried out - whether environmental impact assessment carried out was in breach of applicable EU Directive on such assessments - chronology of proceedings - appropriateness of advancing a case at hearing which is not pleaded in planning and development judicial review proceedings - board complied with its duties under Habitats Directive - board applied correct test for appropriate assessment - board engaged with submissions and observations made and did assess environmental aspects of development - cumulative effects considered and assessed - factual background - council's decision and subsequent appeal to board - nature of board's inspector's report - board's consideration of inspector's report - natura impact assessment submitted - detail of board's decision - amended statement of grounds - grounds advanced - points of objection - grounding affidavit and written submissions - case advanced by applicants went way beyond case as pleaded - fundamental principles and requirements applicable to pleadings in judicial review cases - Order 84, rule 20 RSC - legislative regime relating to appropriate assessments - summary of requirements for conduct of AA - alleged failure to disclose 'further evaluation' by board - evaluation carried out was that contained in decision recorded in board's order - no prejudice caused to parties and no confusion or ambiguity would arise as to points in issue if additional grounds/arguments sought to be advanced were permitted - methodology adopted by applicant for planning permission's consultants in natura impact statement - use by board of additional category in NIS did not invalidate decision - alleged impact on species - golden plover report - board considered report and summarised its conclusions - four distinct requirements of a valid appropriate assessment - identification in light of best scientific knowledge in field - definitive findings made by board regarding potential effects on species - board in a position to determine no scientific doubt - open to board to determine proposed development would not adversely affect any relevant European sites with particular reference to impugned species - inspector's consideration of marsh fritillary butterfly in appropriate assessment part of its report - evidence before inspector and board in relation to survey work carried out - open to board to reach conclusion - course of action adopted by application relating to certain issues at hearing unacceptable and unfair to opposing parties - in-combination effects - legislative and other requirements of an environmental impact assessment - application for judicial review refused
Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.
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