| Grounds of Claim to Request a Judicial Review |
| |
| Having reviewed the Inspectors decision in January 2010 to allow this project to continue, our legal team have highlighted a number of fundimental flaws and errors in that decision. We are therefore seeking a judical review. Below are the "grounds of cliam" we will be presenting. |
| |
| |
| Precis of 17 page Claim Form |
| |
| Ground 1 - Conflict with PPS22 and ETSU |
| Having found that the noise impact assessment methodology departed from the ETSU-R97 guidance, the inspector failed to grapple with it in any way. He therefore failed to consider whether the impact methodology accorded with ETSU-R-97 and failed to consider whether it therefore accords with national planning policy in PPS22. That was a failure to have regard to a material consideration and an error in law has resulted. |
| |
| Ground 2 - Uncertainty and Impact Assessment |
| PPS22 and Development Plan Policy require an assessment of whether or not the noise impact of the development would be acceptable. The Inspector failed to grapple with the arguments relating to noise impact on neighbouring properties and admitted there may well be circumstances in which the noise conditions could not be met. Conditions may only be set where it is shown that those conditions are likely to be met, the Inspector therefore erred in law in setting those conditions. |
| |
| Ground 3 - Background Noise Monitoring |
| The Inspector failed to grapple with the arguments that the background noise monitoring was not adequate or robust. Alternatively, he failed to explain why he took the view that it was adequate or robust. This is an error in law. |
| |
| Ground 4 - Day Time Noise Criterion |
| Amenity of a dwelling begins to suffer at noise levels above 33dBA. Nevertheless the Inspector set a noise limit of 40dBA, the highest level allowable to him and normally used in noisy landscape situations. The Inspector erred in law by failing to take into account the impact on residents of setting this level of noise and failing to provide adequate reasons why he did so. |
| |
| Ground 5 - Failure to Minimise Impacts |
| The Inspector erred in law by failing to ensure that impacts, on residents and the environment, had been reduced to a minimum in the design of the windfarm and/or the turbines. |
| |
| Ground 6 - Failure to Have Regard to Regulation 3(2) and (4) of the Habitats Regulations |
| The developer accepted that the development would most likely result in the death of a protected species resident on or near the site. It is illegal in law for anyone to knowingly carry out an action that will kill a protected species. The Inspector therefore acted in breach of the statutory duties placed upon him by Regulations 3(2) and (4) of the Habitats Regulations in allowing the development. |
| |
| Ground 7 - Heritage Impact |
| The Inspector found that the development would have a detrimental impact on the heritage assets in the locality. The Inspector erred in law in stating that the long term reversability of the scheme mitigated the harm to the heritage assets which is inconsistent to the findings of other Inspectors in similar situations. |
| |
| Ground 8 - No Evidence |
| The Inspector stated that the development would assist the preservation of Othona Fort and St Peter's Chapel. No evidence in any form was produced to support his conclusion and his statement was therefore irrational. |
| |
