Judge quashes permission for outdoor adventure centre over failure to publish draft report from Natural Resources Wales

Mr Justice Eyre heard the case brought by campaign group Wild Justice, which arose when the authority gave permission for interested party Adventure Beyond for the change of the use of a former bus depot in Moylegrove to an adventure centre with associated storage facilities.

The company sought to move its coasteering and kayaking business from premises nearby as it was concerned its lease might not be renewed.

Coasteering covers activities including wild swimming, exploration of coastal caves and jumping from cliffs into deep water, the court heard.

Wild Justice’s case was largely based on the approach taken in an officers’ report to the authority’s planning committee and on the Habitats Regulation Assessment of September 2024.

It argued that a number of documents which should have been published were not but had still been relied on in formulating the officers' report and the assessment.

These were the National Trust's Pembrokeshire Coasteering Concordat, the draft of the September 2024 NRW Breeding Bird Survey 2024 and various documents submitted by Adventure Beyond.

The authority said there was no breach of requirements for fairness or of its obligations under section 100D of the Local Government Act 1972 as neither the Concordat nor the NRW Draft Report were background documents within the meaning section 100D.

Adventure Beyond’s lobbying documents were published the day they arrived - with the exception of a Q&A document that simply repeated information available elsewhere - and nothing more was required, the authority said.

Wild Justice also argued there had been an unlawful failure to have regard to the potential effect of the development on the Aberath-Carreg Wylan SSSI as there is a presumption against development likely to damage an SSSI while not being within it.

Eyre J found that neither the Concordat nor Adventure Beyond’s lobby documents could be considered background documents for the officer’s report.

He said it was correct the Concordat had been referred to but the report did not rely on it. He made a similar finding over the lobby documents.

“It follows that the failure to disclose the Concordat was not a breach of section 100D because the Concordat was not a background paper for the purposes of that section,” the judge said.

But Eyre J said the NRW report was relied on in the advice to the committee and formed “a significant part of the rationale for the assessment that the proposed development did create a risk of harm to the integrity of the special area of conservation.

“There is no indication that any officer of the [authority] applied his or her mind to the question of whether it was a background paper for the purpose of section 100D but the only rational conclusion would be that it was relied on the preparation of the officers' report and contained matters on which an important part of that report was based. As such it was a background paper.”

The judge said he was satisfied the lack of publication had caused prejudice and that there had been a failure to have regard to a mandatory relevant consideration over the effect of the proposed development on the Aberath-Carreg Wylan SSSI. Other grounds were dismissed.

Eyre J said section 31(2A) of the Senior Courts Act 1981 did not apply as the failure to disclose the NRW Draft Report meant the authority was proceeding “in the absence of the arguments which the claimant could have made and which went to the reliance which could be placed on the report.

“The error in relation to the Aberath-Carreg Wylan SSSI meant that the [authority] approached the application for permission without having regard to a mandatory relevant consideration and without members being alerted to the presumption against harmful development and the need for careful assessment in relation to the impact on that SSSI”.

This left a real possibility that there would have been a different outcome “and relief is not precluded by reason of section 31(2A)”, the judge said quashing the decision.

Mark Smulian