“The site is particularly prominent given the fact that it is across the Taf from Dylan Thomas’ boathouse attracting thousands of visitors per year. It would also be prominently located on elevated land when viewed from the coastal plateau, however it would be seen in the context of the rolling countryside.”
“On the basis of the above advice, it is considered that the site is in a sensitive area, being within the Llanybry Coastal Hills LANDMAP area which is of high importance, and also classified as an outstanding historical landscape and a high importance cultural landscape. Therefore the concerns of third parties are material for the consideration of the proposal. The area is not within a designated AONB so the same policy considerations do not apply. The site is however within a designated Special Landscape Area and it is noted that there is an Article 4 Direction withdrawing permitted development rights given the sensitivity of the landscape. The site is therefore sensitive albeit not an AONB. The policy on SLA is such that development that will harm the character and appearance will not be permitted. The magnitude of impact therefore has to be carefully considered and weighed in the balance of considerations”
“The proposal however needs to be assessed within the context of the open countryside and the landscape within which it is proposed. The site at the mouth of the Taf estuary is particularly sensitive both in its relatively unspoilt landscape quality and its association with Dylan Thomas, being said to have been the inspiration for some of his works. Within the rolling landscape, the mouth of the estuary forms a highly prominent and distinctive feature locally which is emphasised by the presence of Dylan’s Walk at Laugharne which has unimpeded views, and the Wales Coastal Path which offer public accessibility from which the proposal would introduce a significant moving structure. Whilst it is acknowledged that the turbine would not have a significant direct impact on the site or the landform itself in terns of physical harm, the degree of harm to the wider landscape in terms of changing its character is significant material consideration. The primary harm however would be the significant visual impact which combined with the impact on built and cultural heritage challenges the above policy. On balance, the visual harm from the introduction of a turbine at this location is considered to far outweigh any benefit in terms of substantial electricity generation. It is therefore concluded that the proposed turbine is likely to have an unacceptable adverse impact on the character and appearance of the open countryside, therefore the proposal is not in accordance with the above policy.”
“4.1 That Planning Application W/29387 be approved contrary to the recommendation of the Head of Planning as the Committee did not concur with the reasons for refusal as detailed within the report particularly as any unacceptable impact has not been proven, and it felt that the recommendation was inconsistent with other similar applications. 4.2 That the Head of Planning be requested to submit appropriate reasons for approval to a future meeting of the Committee for its endorsement. 4.3 That the Head of Planning be granted delegated authority to include appropriate conditions on the planning permission.”
“In accordance with Article 24 of theTown and Country Planning (Development Management Procedure) (Wales) Order 2012 , the council hereby certify that the proposal as hereby approved conforms with the relevant policies that the Development Plan (comprising the Carmarthenshire Unitary Development Plan (UDP) Adopted July 2006) and material considerations do not indicate otherwise. The policies which refer are as follows: • The proposal complies with Policy UT5 of the adopted UDP in that the proposal will not significantly harm the local environment, sites of nature conservation, historical or archaeological interest, species of ecological value: • The proposal complies with Policy UT6 of the adopted UDP in that the proposal will not significantly harm the local environment, sites of nature conservation, historical or archaeological interests, species of ecological value: • The proposal complies with Policies GDC3 and CUDP14 of the adopted UDP by virtue of its compliance with policies UT5 and UT6; • The proposal complies with policy EN5 of the adopted UDP in that it would not cause any demonstrable harm to protected species or their habitats as protected by legislation.” • The proposal complies with Policy UT5 of the adopted UDP in that the proposal will not significantly harm the local environment, sites of nature conservation, historical or archaeological interest, species of ecological value: • The proposal complies with Policy UT6 of the adopted UDP in that the proposal will not significantly harm the local environment, sites of nature conservation, historical or archaeological interests, species of ecological value: • The proposal complies with Policies GDC3 and CUDP14 of the adopted UDP by virtue of its compliance with policies UT5 and UT6; • The proposal complies with policy EN5 of the adopted UDP in that it would not cause any demonstrable harm to protected species or their habitats as protected by legislation.”
“The difficulty, as it seems to me, is that the adoption of a Screening Opinion, if one is required, is part of a process that leads eventually to the grant or refusal of Planning Permission. If any step in that process is legally flawed, the process as a whole is flawed and the grant of permission must be quashed. Accordingly, I think that there is no alternative but to grant the claimants the relief they seek.”
“The primary purpose of this practice is to enable any typographical of similar errors in the judgments to be notified to the court. The circulation of the draft judgment in this way is not intended to provide an opportunity to any party (and in particular the unsuccessful party) to reopen or reargue the case, or to repeat submissions made at the hearing, or to deploy fresh ones”. b. it would only be in “exceptional circumstances” that the court might be asked to revisit the substantive text in the judgment, the example given being where a judgment may contain detrimental observations about an individual or indeed his lawyers. It is not an opportunity to reopen the legal arguments upon which a party has lost. It is therefore entirely improper and an abuse of process for the Defendant to suggest that a different remedy should be granted to that ordered in the judgment at paragraphs 40 and 41, particularly when counsel for the Defendant argued matters concerning remedy at the hearing. c. in any event, the Defendant’s submissions on remedy are flawed. Firstly, the Defendant is incorrect in asserting that the judge found error only with the reasoning of the screening opinion and not in regards to ‘impact’, paragraph 25 of the judgment, to which the Defendant refers, clearly states: “I therefore consider that the reasoning of the Screening Opinion is inadequate. I also consider that the Screening Opinion has failed to address the question properly of the impact which had to be considered.” d. even on the Defendant’s argument in relation to reasons, it is not the case that reasons for a negative EIA screening opinion may be provided at any stage, even after the grant of planning permission, or indeed, as is being suggested in this case, after the conclusion of a High Court challenge. Mellor provides that reasons must be made available “on request”
“… effective judicial review, which must be able to cover the legality of the reasons for the contested decision, presupposes in general, that the court to which the matter is referred may require the competent authority to notify its reasons. However where it is more particularly a question of securing the effective protection of a right conferred by Community law, interested parties must be able to defend that right under the best possible conditions and have the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in applying to the courts. Consequently, in such circumstances, the competent national authority is under a duty to inform them of the reasons on which its refusal is based, either in the decision itself or in a subsequent communication made at their request… That subsequent communication may take the form, not only of an express statement of the reasons, but also of information and relevant documents being made available in response to the request made” [emphases added]; e. there is no authority to support the Defendant’s suggestion that inadequate reasons may be cured by an order that the Defendant provide adequate reasons ex post facto, and none is cited in paragraph 8 of the Defendant’s submissions. The only binding authority is to the effect that an error in the EIA process should lead to the quashing of the planning permission (see Bateman); f. in any event, the Defendant has not provided adequate evidence that the negative screening opinion would inevitably be the same had the reasoning been properly set out. In C-72/12 Altrip [2013] ECR (NB which post-dates Walton), the CJEU considered whether national courts could impose an additional requirement that a Claimant must show there was a possibility that the contested decision would have been different were it not for the procedural defect in the EIA process. The CJEU held that any conditions fixed by Member States: “may not make it in practice impossible or excessively difficult to exercise the rights conferred by [the EIA Directive] in order to give the public concerned wide access to justice, with a view to contributing to preserving, protecting and improving the quality of the environment and protecting human health” (at [46]). It noted at [48] that “… given that one of the objectives of that directive is, in particular, to put in place procedural guarantees to ensure the public is better informed of, and more able to participate in, environmental impact assessments … it is particularly important to ascertain whether the procedural rules governing that area have been complied with. Therefore, as a matter of principle, in accordance with the aim of giving the public concerned wide access to justice, that public must be able to invoke any procedural defect in support of an action challenging the legality of decisions covered by that directive” (at [48]). g. the Court concluded that, whilst “it could be permissible for national law not to recognise impairment of a right … if it is established that it is conceivable … that the contested decision would not have been different without the procedural defect invoked”, the burden of proof must not fall on the Claimant in that regard ([51] and [53]). Further, the national court should take into account: “the seriousness of the defect invoked and ascertain, in particular, whether the defect has deprived the public concerned of one of the guarantees introduced with a view to allowing that public to have access to information and to be empowered to participate in decision-making in accordance with the objectives of the EIA Directive” (at [54]). h. The Court concluded that, whilst “it could be permissible for national law not to recognise impairment of a right … if it is established that it is conceivable … that the contested decision would not have been different without the procedural defect invoked”, the burden of proof must not fall on the Claimant in that regard ([51] and [53]). Further, the national court should take into account: “the seriousness of the defect invoked and ascertain, in particular, whether the defect has deprived the public concerned of one of the guarantees introduced with a view to allowing that public to have access to information and to be empowered to participate in decision-making in accordance with the objectives of the EIA Directive” (at [54]); i. the failure to provide adequate reasons is a serious breach of European jurisprudence, which has deprived the public of its ability to participate in decision-making in accordance with the EIA Directive’s objectives. It is also contrary to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus, 1998), which is incorporated in material respects in the EIA Directive (Article 10a inserted into the EIA Directive by Directive 2003/35). The Claimant, among other local residents, is concerned with the environmental effects of the development, and was entitled to know the Defendant’s reasoning “upon request”