Summary of Judgment (Anonymized)

Factual and Procedural Background

This judgment of Judge Humphreys concerns a request pursuant to section 146B of the Planning and Development Act 2000 ("the 2000 Act") to alter the terms of a previously granted strategic infrastructure development (SID) planning permission for a wind farm. The request sought relocation of two permitted turbines (referred to in the decision as T6 and T7) by approximately 170m and 220m respectively, together with related ancillary works including alterations to access tracks, foundations, cabling, drainage and the felling of additional commercial forestry (an increase described as c.2.45 hectares, to give a total of c.17.45 hectares when added to the parent permission's felling requirement).

The request under s.146B was accompanied by planning and environmental documents, including an environmental report, EIA screening information (Schedule 7A), an addendum to appropriate assessment screening and a Natura impact statement, and drawings. The First Respondent (the Commission) appointed an Inspector, who carried out a site inspection and prepared a report. The Commission decided not to invite public submissions on the materiality question under s.146B(2)(b). By order dated 10 September 2024 the Commission determined that the proposed alterations would not constitute a material alteration and, pursuant to s.146B(3)(a), made the alterations. That decision is the subject of the present judicial review challenge.

Proceedings were commenced on 4 November 2024. The matters were heard in tandem with related proceedings and judgment in this Module I was reserved and subsequently delivered. The judgment reserves challenges to two specified grounds (identified as core grounds 6 and 7) for a later Module II; the remainder of the grounds in Module I were considered and determined in this judgment.

Legal Issues Presented

1. Whether the Commission exceeded its jurisdiction under s.146B(1) and s.146B(2) by making an alteration to the terms of the development that was in substance a material alteration of the development for which permission was granted (Core Ground 1).
2. Whether the Commission failed to have regard to the Wind Energy Development Guidelines 2006 (and thereby contravened s.28(2) of the 2000 Act) when assessing the permissible degree of micrositing and whether relocation beyond a 20m guideline rendered the alteration material (Core Ground 3).
3. Whether there was an apprehension of objective bias arising from the appointment/allocation of personnel (Inspector and some Commission members) familiar with the parent permission to determine the s.146B request (Core Ground 4).
4. Whether the Commission's decision contravened Article 6 of the Habitats Directive (and related domestic transpositions) and the EIA Directive by failing to carry out appropriate assessment (AA) or adequate AA screening regarding species (Otter, Kingfisher) and by failing to allow public participation (Core Ground 5).
5. Whether the Commission failed to carry out EIA screening or to record reasons in accordance with Article 4(5) of the EIA Directive in relation to the proposed alterations (Core Ground 5A).
6. Whether issues concerning conservation objectives and the validity of s.146B require separate determination (Core Grounds 6 and 7) — these were modularised to Module II.

Arguments of the Parties

Applicants' Arguments

• The Commission exceeded its jurisdiction by effectively altering the core terms of the permitted development and/or erred in law in concluding the alteration was not material (Core Ground 1).
• The Commission should have required public notification and a full planning application procedure where the proposed alterations were, in effect, a fresh planning application (referencing s.37E(2) and s.37B(4)(a)) (Core Ground 2 — withdrawn).
• The Commission failed to have proper regard to the Wind Energy Development Guidelines 2006, which, the Applicants say, suggest that micrositing flexibility should not generally extend beyond c.20m, and thus relocation of 170–220m was contrary to s.28(2) (Core Ground 3).
• The allocation of the same Inspector and some of the same Commission members who dealt with the parent permission gave rise to an apprehension of objective bias (Core Ground 4).
• The Commission contravened the Habitats Directive and the EIA Directive by failing to carry out a complete Appropriate Assessment (or proper AA screening), lacking adequate findings regarding potential impacts on Otter and Kingfisher and failing to screen for impacts on Mallard and Grey Heron; the Applicants also asserted a failure of EIA screening and recording required reasons under Article 4(5) EIA (Core Grounds 5 and 5A).

First Respondent's (Commission) Position

• The Commission lawfully exercised its s.146B powers and correctly concluded that the proposed relocations of T6 and T7 were non-material in the context of the overall SID: there is no change to number, type, height, scale or output of turbines and the changes are limited in extent relative to the overall project.
• Assessment of materiality is a matter of planning judgment and expertise for the Commission; the Applicants' challenge amounts to an impermissible merits appeal. The Commission relied on prior case law analogously to support that planning judgement (cases identified in the judgment are noted below).
• The Wind Energy Development Guidelines 2006 passage relied upon by the Applicants is not applicable to a s.146B alteration; the statutory s.146B procedure post-dates the guidelines and the guidelines do not address s.146B or SID specifically.
• The practice of allocating personnel familiar with the parent permission to consider a s.146B request is lawful, efficient and does not create a reasonable apprehension of bias; the bringing of proceedings does not, absent a court order, freeze the statutory powers of the Commission.
• The Inspector carried out Stage 1 Appropriate Assessment screening and concluded that Stage 2 AA was not required; the AA screening and EIA screening performed and the materials before the Commission were adequate in the circumstances. Any alleged lacunae were not established evidentially by the Applicants, and certain uncontested expert evidence filed on behalf of the Notice Party undermined the Applicants' species-impact assertions.

Notice Party (Company A) Position

• The Notice Party described the factual reasons for relocating turbines (withdrawal of consent by a landowner) and emphasised that there was no change to the substantive project parameters other than modest additional forestry felling and associated logistics.
• The change is not material and the Applicants' challenge is essentially a merits challenge; expert evidence filed by the Notice Party addressed ecological concerns and was said to answer the Applicants' assertions.
• The practice of allocating the same Inspector and some decision-makers is justified by familiarity with the parent file and is consistent with the Commission's statutory function; there is no appearance of objective bias.

Table of Precedents Cited

Court's Reasoning and Analysis

The court's analysis proceeded by reference to the statutory scheme (principally ss.146A, 146B and related provisions), the evidence on file (including the Inspector's report and the environmental documentation submitted by the requester), and established principles of judicial review. The analysis can be summarised in the following steps, reflecting the court's own structure and language:

1. Statutory framework and scope of power: The court identified that s.146B permits the Commission to alter the "terms" of a permitted SID but that the threshold question under the statute is materiality — if an alteration would be a material alteration of the terms of the development then the s.146B procedural route (as distinct from the making of a new permission) is not available and further information (including EIA information) and procedures may be triggered by the statute.
2. Interpretation of "term": The court observed that "term" includes conditions but is not exhausted by them; consequently the Commission can amend text of the permission (not only conditions) unless that would result in a material alteration (citing s.146A and legislative purpose).
3. Onus of proof and evaluative judgment: The court repeated settled law that the onus lies on the Applicants to demonstrate an error of law (including that an alteration was material). Materiality is, in significant part, a matter of planning judgment for the Commission; the court emphasised that a merits-based disagreement is not a ground for certiorari if the decision was a lawful exercise of the Commission's evaluative function.
4. Application to the facts on materiality: The court assessed the scale of the proposed relocations relative to the whole project, the fact that core parameters (number, type, height, output) were unchanged, and the circumstances prompting the amendment (withdrawal of landowner consent). The court accepted the Commission's and Notice Party's evidence that the relocation would not increase the size or output of the windfarm and that the environmental consequences were limited to additional felling described in the environmental report. The court also observed that disputed ecological assertions made by the Applicants were countered by the Notice Party's expert material and by the affidavit evidence filed on behalf of the Commission; in the absence of cross-examination and given the evidential record, the court resolved factual disputes against the Applicants.
5. Guidelines and s.28(2): The court concluded that the passage in the Wind Energy Development Guidelines 2006 relied upon by the Applicants did not apply to the s.146B process: the guidelines pre-dated the statutory s.146B procedure and do not deal with the particular statutory mechanism or SID; at most they are a non-binding consideration and the statutory duty was only to have regard if applicable. The court found no factual basis that the guidelines were not considered by the Commission (the amendment decision referred to the original decision which itself had regard to the guidelines).
6. Objective bias: Applying established objective-bias principles, the court rejected the claim that allocation of the same Inspector and some of the same Commission members who had been involved with the parent permission gave rise to a reasonable apprehension of bias. The court accepted that it is lawful and commonplace for the Commission to allocate personnel familiar with the parent file to consider a s.146B request, for reasons of efficiency and proper understanding of materiality. The court also emphasised the constitutional and procedural point that the commencement of proceedings does not, without more, prevent a public body from lawfully exercising its statutory powers.
7. Habitats Directive / Appropriate Assessment (AA) and EIA screening: The court reiterated the statutory sequencing under s.146B — materiality is the threshold issue; only if a proposed alteration is material does the Commission's further duty to require Schedule 7A information or to trigger EIA/AA procedures arise. On the record before the Commission, the Inspector had carried out Stage 1 AA screening and concluded Stage 2 was not required; the Commission adopted that approach. The court found that the Applicants had not established evidentially any lacunae in the Commission's AA screening or EIA screening and that expert material filed on behalf of the Notice Party addressed the species concerns advanced by the Applicants.
8. On the adequacy of reasons: The court observed that reasons and rationale for a decision need not be contained solely in the decision document itself; reasoning can properly be inferred from documents referred to in the decision. Here, the decision and the documents to which it referred permitted inference that relevant considerations (including the 2006 guidelines) had been before the Commission.
9. Modularisation and reserved issues: The court recorded that two grounds — those challenging conservation objectives and the validity of s.146B — were modularised and reserved for determination in Module II; the present judgment dealt with Module I grounds only.

Holding and Implications

Holding: The court dismissed the proceedings so far as Module I is concerned. In the court's terms, the Applicants failed to discharge the onus of proof to show that the Commission's decision under s.146B was unlawful in the respects challenged in Module I.

Core disposition (as ordered by the court):

• PROCEEDINGS DISMISSED (MODULE I) — the court ordered that the proceedings be dismissed insofar as they concern Module I (all core grounds other than 6 and 7).
• Subject to any contrary written submissions in due course, there was to be no order as to the Applicants' costs for Module I (having regard inter alia to O.103 r.39(1)(c) RSC).
• Subject to contrary written submissions, the opposing parties' costs were reserved (having regard inter alia to O.103 r.39(2)(b) RSC).
• Any unsuccessful application to vary any provisional costs order could be addressed pursuant to O.103 r.40(4) RSC.
• The perfection of the order was postponed under O.103 r.32(11) RSC pending the outcome of the final Module (Module II).

Implications:

• Direct effect: The Commission's s.146B determination of 10 September 2024 that the proposed relocations of turbines T6 and T7 were non-material stands, subject to any further determination in Module II on the reserved grounds. The Applicants' Module I challenges (materiality, failure to have regard to the 2006 guidelines, objective bias, alleged AA/EIA failings in respect of the specific contentions advanced in Module I) were dismissed.
• Modular issues: Two substantive issues were modularised and remain for determination in Module II — specifically, the Applicants' challenges concerning conservation objectives and the constitutional/EU challenges to the validity of s.146B (Core Grounds 6 and 7).
• No new binding precedent announced: The court applied established principles concerning the scope of s.146B, the threshold role of materiality, the evaluative character of planning judgments, the onus of proof in judicial review, and objective-bias principles. The judgment reasons and applies settled law to the facts; it does not purport to lay down a novel broad principle beyond that application.

Note: This summary is prepared solely from the provided judgment text and anonymises personal and corporate identifiers in accordance with the instructions provided. No information has been added that does not appear in the provided opinion.