Summary of Judgment — High Court (Planning & Environment)

Factual and Procedural Background

The Applicants (three local participants in the planning process) challenged a decision of the Respondent (the statutory planning appeals body) granting planning permission to Company A for a ground-mounted solar PV development on circa 108 hectares in The City. The planning application (initially for 129 ha) was made to the local planning authority, further information was sought and provided, submissions and appeals were made, an inspector recommended permission and the Respondent issued a decision on 5 September 2025 granting permission subject to conditions. Proceedings for judicial review were issued by the Applicants on 30 October 2025 and leave to apply was granted on 1 December 2025 in respect of specified grounds. The hearing was held on 11 May 2026 and judgment delivered by Judge Humphreys on 29 May 2026.

Legal Issues Presented

1. Whether the proposed solar farm (or parts of it, notably internal access tracks) attracts the Environmental Impact Assessment (EIA) Directive and therefore required an EIAR.
2. Whether the application documentation complied with mandatory requirements of Articles 16–19, 22 and 23 of the Planning and Development Regulations 2001 (i.e. whether the application was invalid for defective plans/notice).
3. Whether late affidavits and submissions which were not before the decision-maker could be admitted and relied upon in judicial review.
4. Whether a preliminary reference to the Court of Justice of the EU (Article 267 TFEU) was appropriate on the interpretation of "private road" in paragraph 10(dd) of Part II of Schedule 5.
5. Whether relief should be refused in the exercise of the court's discretion notwithstanding any arguable legal defects.

Arguments of the Parties

Applicants' Arguments

• The application materials and public notices failed to comply with mandatory statutory requirements (Articles 16, 17, 18, 19, 22 and 23), rendering the Respondent without jurisdiction to decide the application.
• The internal access tracks/private roads for the development exceed thresholds in Part II, paragraph 10(dd) (in excess of 2,000 metres) and therefore the project required an EIAR under the EIA Directive.
• In the alternative, the interpretation of "private road" in paragraph 10(dd) is not acte clair and a preliminary reference to the CJEU under Article 267 TFEU is appropriate to clarify the point.
• Late affidavits sought to establish the factual nature/standard of the access tracks (supporting the EIA contention).

Respondent's Arguments

• The law is settled that EIA applies only to projects specifically listed in the Directive; solar farms (and the access tracks as designed) are not such projects and prior authorities reject the route used by the Applicants.
• The Applicants' pleadings are unparticularised or go beyond what was raised in the administrative process; many points were not made to the decision-maker and are therefore inadmissible or properly rejected in the exercise of discretion.
• The late affidavits are impermissible attempts to introduce new evidence that should have been before the decision-maker and, even if tendered, should be given no weight because the legality is to be viewed through the material before the decision-maker.
• No basis for a preliminary reference arises: the issue is acte clair and was dealt with in prior High Court authorities.

Company A (Notice Party) Arguments

• The access tracks are of the same type as in prior cases held not to be "private roads" for EIA purposes; the plans and supporting documentation made the nature and extent of the development clear.
• If any technical non-compliance existed it was de minimis, caused no prejudice, and would not justify quashing the Respondent's decision in the exercise of the court's discretion.
• The project provides significant renewable energy and climate-policy benefits; this public interest weighs against certiorari and in favour of refusing relief by way of discretion.

Table of Precedents Cited

Court's Reasoning and Analysis

The court proceeded by reference to settled principles and authorities governing (i) the scope of EIA (applies only to projects listed in the Directive), (ii) pleading and evidence rules in judicial review, (iii) the requirement that material capable of sustaining a point be before the decision-maker, (iv) the onus of proof on applicants, and (v) the discretionary nature of judicial review relief.

Applying those principles, the court concluded that:

• Many aspects of the Applicants' case were outside the pleaded case or were not raised before the Respondent; such points are inadmissible or properly dismissed in limine or in the exercise of discretion.
• The central EU law contention (that internal access tracks constitute "private roads" under paragraph 10(dd) of Part II of Schedule 5 so as to trigger mandatory EIA) replicates arguments previously rejected in Cummins and Moss (No.1). The court found no substance or reasonable doubt to displace those authorities and therefore no basis for a CJEU reference.
• Objections about failure to comply with Articles 16–19, 22 and 23 were inadequately particularised, did not establish that an EIAR was required (so Article 16 argument failed at the outset), and in any event were either de minimis or unproven on the evidence before the decision-maker.
• Late, unsworn or non-replying affidavits were an impermissible attempt to introduce new evidence that should have been before the Respondent; even if admitted they could not displace the Respondent's decision because judicial review examines legality through the material before the decision-taker.
• Even if some technical breaches were established (which the court did not accept), the court would have exercised its discretion against granting certiorari for reasons including absence of prejudice, clarity about the project's nature, substantial public interest in renewable energy, and the disproportionate effect of quashing the permission.

Holding and Implications

HOLDING: The proceedings are DISMISSED.

Implications: The Respondent's decision granting permission is upheld and the Applicants obtain no relief. The judgment applies established principles (pleading discipline; material-before-decision-maker; EIA applies only to listed projects) and relies on recent High Court authorities (Cummins; Moss). The court did not set a new precedent changing the law; the decision affirms application of existing authorities and confirms that, on these facts, access tracks of the type proposed do not attract mandatory EIA and that discretionary refusal of certiorari is appropriate where technical or unparticularised complaints are unproven and would produce disproportionate consequences.