R (Merricks) v. S/S Trade and Industry and another. País/Territorio Reino Unido Tipo de la corte Nacional - corte superior Fecha Jul 30, 2007 Fuente UNEP, InforMEA Nombre del tribunal Court of Appeal Sede de la corte London Juez WallGibson. Número de referencia [2007] EWCA Civ 1034 Idioma Inglés Materia Energía, Tierra y suelos Palabra clave Conservación de energía/producción de energía Manejo de tierras Energía renovable Resumen The Appellant sought to challenge (a) the decision of the Secretary of State for Trade and Industry on 18 October 2005 to grant consent under section 36 of the Electricity Act 1989 and deemed planning permission for the construction and operation of a wind turbine generating station and (b) the "appropriate assessment" required by regulation 48/1 of the Conservation (Natural Habitats etc) Regulations 1994. The challenge raised issues of the appropriate assessment which must be undertaken by the Secretary of State and the application of the precautionary principle in the light of the Waddenzee case. In Waddenzee [2004] case C-127/02 the European Court of Justice made clear that the competent national authority can only consent to a plan or project after having made certain that it would not adversely affect the integrity of the site and that, the Court said, was the case where no reasonable scientific doubt remained as to the absence of adverse effects. The challenge was based on the inspectors “failure to grapple with” alleged deficiencies in the evidence in relation to swans crossing the site and reliance on winter night flying to 6 pm only, without radar investigation of night flying. It was argued that those deficiencies meant the inspector could not lawfully conclude that the collision risk model accurately forecast numbers of likely collisions. Permission to apply for judicial review was refused. There was no error of law. The inspector and Secretary of State were aware of the integrity test and had applied it to the evidence. The inspectors individual factual findings could only be challenged on the usual Wednesbury basis, ie. No evidence to support conclusions or perverse findings/inferences from the evidence received. The EC precautionary context does not result in a more exacting standard of review. In applying to this court for permission to appeal, Mr Merricks contended that the approach of the Secretary of State was contrary to that mandated by Waddenzee in that the Secretary of State failed to fill what were called gaps in the evidence or failed to explain why it was not necessary to fill the gaps. Three particular criticisms were identified relating to: (1) night time bird flights; (2) bird scaring; and (3) evidence as to bird mortality. The Court of Appeal refused permission to appeal. A new point taken on appeal was that certain evidence available to the inspector indicated that a 10X or 20X increase in collision rate would in fact result in mortality impact rising from “negligible magnitude” to “low magnitude of medium significance”. The point was dismissed as hopelessly late, but CA hinted that had it been raised earlier it might have given rise to an arguable error. Texto completo COU-156649.pdf