The decision to dismiss the appeal was issued by the Welsh Ministers on 16 April 2009 and, on 27 May 2009, Western Power Distribution Investments Ltd lodged a challenge in the High Court against that decision. Such challenges can only be made on a point of law, and are not a general reassessment of the planning merits of the proposed development.
Having considered the grounds put forward by the company, and on the advice of Counsel, the Welsh Ministers accept the legal arguments put forward by the company that aspects of the assessment through which they reached their original decision were incorrect. Rather than continue the legal proceedings and go to a hearing which they consider they would not win, the Welsh Ministers have agreed not to contest the challenge.
Assuming that all the other parties to the challenge share that view, the consequence of this is that the Court will quash the April decision to refuse planning permission. This does not mean, however, that the company will now have the planning permission it sought. The effect of quashing the decision is that it is no longer valid and, therefore, there is no longer a decision on the appeal.
It follows that on formally quashing the decision, the Court will send the appeal back to the Welsh Ministers for reconsideration and redetermination. The Welsh Ministers will have to start that reconsideration afresh and will be under the same obligation as they were previously to have regard to the development plan and other material considerations. These will include any material considerations that have arisen since the date when the decision on the appeal was issued.
On receipt of the appeal from the Court, the Welsh Ministers will be required to notify those who took part in the inquiry into the appeal, including a written statement of those matters on which further representations are invited to inform the re-consideration of the appeal. The Welsh Ministers must offer those persons the opportunity of making written representations to them on those matters and of asking for the re-opening of the inquiry. There is no statutory right to have the inquiry re-opened and it will be for the Welsh Ministers to decide whether it would be appropriate.
It is not known when the appeal will formally be sent back to the Welsh Ministers by the Courts and, until it has been, and the procedure for redetermination decided in the light of any responses received, it is not possible to give any firm indication as to when the decision on the redetermination will be issued – although it is unlikely to be this year.
This note has been issued to inform the media of the decision. The Welsh Assembly Government will not be providing any further comment.
4 September 2009