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1. This is a challenge brought by the Claimant pursuant to s.288 of the Town and Country Planning Act 1990 ("TCPA") by which he challenges the validity of the decision of the First Defendant's Inspector Mr David Pinner ("the Inspector") to allow the appeal by the Third Defendant ("CLP") against the refusal by the Second Defendant ("the LPA") of planning permission to erect two 2MW wind turbines (each with a hub height of 80 metres and a blade tip height of 125 metres) and ancillary development on land at Orchard End Farm, South of New Lane, Eagland Hill, Lancashire ("the Development Site"). The Claimant is a local resident who lives in close proximity to the Development Site and is a member of the local residents' group - the Eagland Hill Action Group ("EHAG") - that is opposed to the development.
2. Eagland Hill is located approximately 5 Km from the Morecambe Bay SPA ("the SPA"), Lune Valley SSSI and Wyre Estuary SSSI. The SPA hosts a range of bird species including pink-footed geese. It is common ground that this species commute inland for up to 10 Km from their roosting sites on the coast to feed on grain and winter cereal crops and that such geese feed on fields adjacent to the proposed development site. It is also common ground that there is a risk that up to 50 geese a year will collide with the wind turbines that it is proposed should be built on the Development Site if the development proceeds.
3. The proposed development was the subject of an application for permission by CLP in 2008 that was refused in essence because of the potential impact on the pink-footed geese population and also because of adverse visual impacts. The application was resubmitted in April 2009 and refused again on 3rd December 2009. The reasons given for the second refusal were first that the proposed turbines would be visually obtrusive and out of character with the countryside and secondly that the development would have "...an unacceptable detrimental impact on the pink-footed geese population of the Morecambe Bay SPA and RAMSAR site contrary to Policy ENVT7 of the Wyre Borough Local Plan 2001-2016 (first deposit draft)" ("the Habitat Issue"). CLP appealed from that refusal on 28th May 2010. The appeal succeeded and this challenge is brought in relation to that outcome.
4. The Habitat Issue was one that remained under consideration throughout the period both before and after the refusal of the 2009 application. In October 2009, Lancashire County Council ("LCC") conducted an Appropriate Assessment under the Council Directive On The Conservation Of Natural Habitats And Wild Fauna and Flora ("the Habitats Directive") and the then applicable Regulations that carried the Directive into Law in England on behalf of the LPA and had concluded that "...in the absence of mitigation, the proposals are predicted to have an adverse impact (mortality due to collision) on pink footed goose population associated with ..." the SPA and that in consequence LCC was "... unable to conclude that the project will not adversely affect the integrity of ..." the SPA.
5. On 16th October 2009, Natural England ("NE") wrote to the LPA agreeing with LCC's conclusions. However, it did so in narrow terms because it said "...following discussions with the Applicant, NE was initially satisfied with compensation pink-footed goose feeding area proposed but had not picked up the existence of an adjacent footpath. The presence of a public footpath along three margins of the field may result in frequent disturbance to feeding geese from footpath users, particularly dog walkers and on this basis the conclusion of the AA was that the mitigation proposed was not adequate. However, from Natural England's perspective this is the single outstanding area of concern, which we believe is easily surmountable." NE added that assuming this issue could be overcome "... NE believe it critical that any consent (should it be granted) must contain a condition that ensures that the full detail of the mitigation plan, and its monitoring is agreed with Wyre Borough Council, Natural England and RSPB prior to the commencement of construction or on site preparatory works". NE maintained their objection pending the resolution of these issues.
6. On 1st March 2010, the consultants retained by CLP issued a second version of what is called the "Goose Mitigation Agreement". The document recorded at Paragraph 11 an adjustment to the mitigation scheme that was designed to meet the qualitative objections previously raised by NE. In essence it involved maximising goose feeding areas with some fencing along the footpath to minimise disturbance mainly from dogs being walked along the path concerned. NE concluded that "... the outline mitigation plan ... is acceptable ..." but added that NE "... would need to see the final plan tied into a legal agreement with the local planning authority before we are able to remove our holding objection ...". RSPB also agreed "... with the principles on size and location of the two mitigation areas ...". It is clear that RSPB anticipated a more detailed plan would be produced at a later date. LCC's position was that it was only retained by the LPA to assist it during the planning application process and not with any appeal and thus had no continuing role to play. However, LCC's ecologist confirmed that providing "... Natural England is satisfied with the proposals we would have no further comment to make ...".
5.7.8 Two mitigation areas, measuring a combined total of 12.1 hectares in size have been identified. Both areas are capable of being managed in such a way as to provide food for geese. Accordingly, by reference to these two areas, an outline mitigation proposal has been produced which both Natural England and the RSPB agree constitutes adequate compensation for the precautionary 50 casualties per annum predicted by the collision risk model. Work towards the production of a detailed mitigation proposal is now in train. "
"Although there may be some significant effects from a visual perspective occasioned by the proposal, they will be highly localised and have been judged to be acceptable in impact terms. As regards the ecological impact of the proposal, it is acknowledged that due to collision risk there will be an adverse impact on the pink-footed geese population which roosts within the Morecambe Bay SPA and RAMSAR site. However, Natural England and the RSPB agree that the outline mitigation proposal drawn up on behalf of the Appellant is acceptable and that it constitutes adequate compensation for the number of collisions and resulting casualties predicted, thereby addressing the significant adverse impact which has been identified. ..."
Full written representations concerning the avian issues were supplied with the written submissions in support of the appeal [2/421 and following]. The mitigation scheme is fully described at paragraphs 63-69 and all the relevant background material was appended to that document - see [2/436]. At the same time the detailed mitigation plan document was produced by CLP's consultants. That document provided for a plan that was to last throughout the 30 year predicted lifespan of the wind farm (Paragraph 6) and provided for the scheme to be funded throughout by CLP or its successors in title (Paragraphs 10 -12).
"3. We confirm that the Development has the potential to give rise to environmental effects relating to matters such as noise, landscape and visual impacts, shadow flicker and ecological impacts. However, we would draw the Secretary of State's attention to the screening opinion adopted by the Council in respect of the First Application ... which concluded that such effects are likely to be localised and would not, of themselves, warrant the submission of an EIA."
The SoS's decision in relation to this request was arrived at on 25th August 2010 as I describe in more detail below.
9. The LPA filed a statement in response to CLP's appeal. In relation to the Habitat Issue, the LPA was content to adopt the submissions of Natural England - see Paragraph 2.1 of the submissions [2/566]. However the appeal was opposed by the LPA on the basis that the proposed development was "... detrimental to the visual amenity of the surrounding area ..." by reason of the height scale and appearance of what was proposed.
10. On 15th July 2010 EHAG submitted their written representations in relation to the appeal. That document was signed by Mrs Pilling and identified the Claimant as being one of the members of the committee of EHAG - see [2/577]. Representations were made concerning visual impact [573-4] but it would be fair to say that the representations focus primarily on the Habitat Issue. They note [2/574] that NE and RSPB "... have agreed with [CLP] that, in principle, mitigation of the adverse effect on the population of pink footed geese in Morecambe Bay is possible". They maintained the submission that such was not possible. There follows at [2/575] a detailed critique of the mitigation plan. Particular reference is made to Paragraphs 13, 14 and 21 of the plan. The detailed plan ran to 32 paragraphs but the earlier outline plan ran only to 18 paragraphs - see [2/391]. Read in context the comments clearly refer to the detailed proposal put forward by CLP's consultants dated 28th May 2010. The final part of EHAG's response addresses issues of noise and shadow flicker before concluding that "... we are of the opinion that if the appeal were to be allowed, the development would result in an unacceptable detriment to the residential amenity of the occupants of nearby properties and a severe threat to Pink Footed Geese.".
11. On 20th July 2010, NE filed its response to the appeal. They referred to the scheme as being acceptable in principle but noted four issues that remained of concern of which one was the need to identify a funding mechanism. NE said that the mitigation scheme, once adjusted to take account of the factors identified, would result in a reduction of risk for pink footed geese "... such that it no longer constitutes a significant risk to the designated site." - that is the SPA. NE noted however that the plan had yet to be secured by a s.106 agreement "... or similar" but then added that with "... the formation of a s.106 agreement Natural England are of the opinion that the development would no longer pose a likely significant threat to the integrity of Morecambe Bay SPA. If the s.106 is set up there would be no further need for a revised "Appropriate Assessment" in accordance with the Habitats Regulations".
12. CLP's consultants responded to these points in a response document dated 16th August 2010. The four points mentioned by NE are addressed at Paragraph 6 of that document. The first three are said to be minor and can be addressed in the final agreed version of the mitigation plan. In relation to funding it was said that the issue had been addressed in the detailed plan to which I have referred above by confirming that CLP (or its successors in title) would be responsible for funding the scheme during the thirty-year lifespan of the proposed development. That is so as is apparent from my summary of that document referred to above.
13. Finally I return to the application by CLP for a negative screening direction. The screening was carried out by reference to a document entitled "The Screening Checklist". It runs to three pages and approaches the issue by reference to twenty seven questions. The significant point from the Claimant's perspective is that in answer to a number of questions that asked whether identified facets of the development were " ... likely to result in a significant effect" it was said that the effect would be significant but local - see in particular the answers to questions 1, 6, 11, 13, 15 and 24.
14. The conclusions of the decision maker are set out under the heading "Summary of features of project and its location indicating the need for EIA". The substance of the screener's view was that "... I would not consider likely impacts of such significance in wider terms as to warrant an ES". The screener added that the Inspector would assess environmental information and evidence as material considerations as part of the normal planning processes in determining the appeal. On 25th August the formal decision letter was issued [2/608] by which it was recorded that the opinion of the SoS having taken into account the criteria set out in schedule 3 of the EIA Regulations was that the proposed development "... would not be likely to have significant effect on the environment ..." and for that reason a direction was given that the proposed development was not EIA development. The screener's view concerning the role of the Inspector was also expressly referred to.
"The appellants have prepared an environmental appraisal of the scheme which comprehensively covers the likely significant environmental impacts and areas of concern ..."
The Claimant submits that this sentence amounts to an acknowledgment by the Inspector that the proposed scheme would have significant environmental effects, it being submitted that there are no differences for present purposes between effects and impacts. It is submitted by the Claimant that having reached this conclusion, the Inspector acted unlawfully or irrationally in then either failing to remit the negative screening direction for reconsideration or in granting planning permission.
16. The Inspector addressed the Habitats Issue at Paragraphs 23-28 of the Appeal Decision. He summarised the effect that it was thought the proposed scheme might have on the pink footed geese population at the SPA and the mitigation measures proposed to ameliorate that feared effect, he recorded the combined position of NE, RSPB and LCC as being that the mitigation proposal was acceptable in principle. The Inspector addressed the noise issue at Paragraphs 36-39 of the Appeal Decision. His conclusion was that subject to appropriate conditions, operation of the proposed turbines was unlikely to harm the living conditions of nearby residents as a result of unacceptable noise emissions.
(ii) between 07:00 and 23:00 - 37.5dB ... or 5dB(A) above background noise level, whichever is greater".
Neither turbine shall be operated in breach of these noise limits.
18. No development shall be undertaken until a scheme has been submitted to or approved in writing by the LPA for the handling by the operator of the wind turbines of any complaints relating to noise emissions. Such a scheme shall include contact details for a person who shall have been nominated and engaged to receive and deal with such complaints, details of the method to be used for the monitoring and measurement of noise from the proposed turbines at any complaint location and, where non-compliance with condition 17 is detected, details of the mitigation measures to be undertaken, including a timetable for their implementation. Any such mitigating measures shall be implemented in accordance with the approved details."
iii) The Inspector acted in a manner that was procedurally unfair because he failed to invite the Claimant or EHAG "... to participate in discussion of the same and/or make representations about..." the proposed mitigation.
In paragraph 25 of his skeleton, Mr McCracken sought permission to amend the grounds by adding a further ground to the effect that the grant of planning permission was unlawful for the reasons set out in the skeleton argument lodged on behalf of the Claimant. This was not objected to by either of the Defendants who were represented before me and I give permission accordingly. The SoS and CLP dispute each of the grounds relied on.
By TCPA s.288 any person aggrieved by any order or action of the SoS to which the section applies may apply to the High Court for an Order quashing the order or decision challenged. By Regulation 30 of the EIA Regulations the reference in s.288 to actions by the SoS extends to the grant of planning permission by the SoS in contravention of Regulation 3 of the EIA Regulations. The decision of the Inspector to grant permission is to be treated as that of the SoS for present purposes. Thus if it could be demonstrated that the planning permission granted by the Inspector had been granted in contravention of Regulation 3, then the Claimant would be entitled to seek an order under TCPA s.288 quashing that decision. It is not open to the Court on an application of this sort to quash the decision of the SoS to grant a negative screening declaration. If such relief was to be sought it could and should have been sought in judicial review proceedings. I accept however, that if it could be demonstrated on the facts that (a) the Inspector had jurisdiction to remit the negative screening direction for further consideration and (b) the Inspector acted unlawfully or irrationally in failing to exercise that jurisdiction then the decision to grant planning permission ought to be quashed.
20. Regulation 3 prohibits the SoS from granting planning permission unless he first takes into account the "environmental information". However, Regulation 3 applies only to development that is "EIA development" within the meaning of the EIA Regulations. It is common ground that the proposed development in this case is development to which Annex 2 of the EIAD and Schedule 2 of the EIA Regulations applies. In consequence the proposed development is to be treated as EIA development only if it "... would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location" - see Regulation 2(1) of the EIA Regulations. Whether it would be likely to have such effects is a matter for decision by the SoS, taking into account such of the criteria identified in Schedule 3 as are relevant to the development - see Regulation 4(5) of the EIA Regulations.
21. The effect of Regulation 4(3) of the EIA Regulations is that a direction of the SoS is determinative unless the SoS changes his mind - see Evans v. First Secretary of State  EWCA Civ 1523  Env. L.R. 17 per Simon Brown LJ (as he then was) at paragraph 20. Any such decision is amenable to judicial review but only on Wednesbury grounds. It follows that where the SoS has made a screening direction, an Inspector is not required to address the question of whether development is EIA development. His task is to consider the planning merits of the appeal - see Evans v. First Secretary of State (ante) per Simon Brown LJ at paragraph 19. Thus Ground 1 must fail in limine unless it can be demonstrated that in the events that had happened the Inspector had jurisdiction to remit the negative screening direction for further consideration and had acted unlawfully or irrationally in failing to exercise that jurisdiction.
22. In Evans v. First Secretary of State (ante), Simon Brown LJ recognised the jurisdiction of an Inspector to remit a case for reconsideration of the EIA development question. However, he suggested that mere disagreement is not enough to engage this jurisdiction. Only if it is discovered that the SoS had proceeded under an important misapprehension or if other material facts had come to light that appeared to invalidate the basis of the SoS's direction would a remission be potentially appropriate and even then the jurisdiction should be exercised only if the Inspector thought there was a realistic prospect of the SoS changing his or her mind - see Evans v. First Secretary of State (ante) per Simon Brown LJ (as he then was) at paragraph 24.
"However, an applicant under section 288, which is of course concerned with an error of law on the part of the Inspector determining the appeal will face a formidable task in such a case ... [which] ... will succeed only if the court is satisfied that any rational Inspector would on the facts before the Inspector on that appeal have concluded that they should exercise the power to refer the matter back notwithstanding the fact that they had not been asked to do so by any party to the appeal"
24. In those circumstances, I conclude that for the Claimant to succeed under this Ground, he must be able to identify a fact or circumstances that created the realistic prospect of the SoS changing his or her mind and also demonstrate in relation to that fact or circumstance that any rational Inspector would have concluded that he or she ought to exercise the power to remit. It goes without saying that these are substantial hurdles for the Claimant and are designed to be so in the interests of avoiding time consuming, cost expending, and ultimately pointless, circularity of decision making.
The Claimant's case that the Inspector ought to have exercised the jurisdiction to remit is advanced on the basis that in the circumstances the SoS acted unlawfully in giving a negative screening direction. He does not assert that there were circumstances that became apparent only after the direction was made that if known at the time would have led to a different conclusion being reached. Thus what is being submitted is that the Inspector ought of his own motion to have remitted the Direction for reconsideration on the basis of erroneous decision-making by or on behalf of the SoS. If this is to form the basis of a credible challenge then the errors are likely to have to be fundamental and obvious. I question whether this is a realistic approach in the absence of a submission by at least one party to the Inspector that this course ought to be adopted, where primary legislation makes the direction determinative and where judicial review of the decision of the SoS is in any event available to a party affected by it.
iv) Failing to apply the Guidance published by the Commission of the EU ("the Commission") as to what constituted significant effect.
The assertion that the Inspector acted unlawfully or irrationally in failing either to remit the negative screening direction for further consideration is supported by the assertion that the Inspector recognised in Paragraph 3 of the Appeal Decision that what was proposed would be likely to have significant environmental impacts. Finally it was alleged that neither the SoS nor the Inspector could rationally have concluded that the proposed development would have anything other than a significant impact on the SPA given that LCC had concluded that the proposed development would have such an effect and either the proposed mitigatory steps could not be taken into account when assessing whether the proposal would have significant environmental effects or the scheme was so rudimentary that it ought not to have been taken into account.
27. In my judgment none of these points either individually or collectively lead to the conclusion that the SoS acted unlawfully or irrationally in making the negative screening direction much less that the Inspector acted either unlawfully or irrationally in failing to remit the direction for further consideration by the SoS. My reasons for reaching these conclusions are as follows.
28. I reject the assertion made by reference to Paragraph 3 of the Appeal Decision that the Inspector was thereby reaching a conclusion that EIA was in the circumstances required. Paragraph 3 has to be read as a whole and in its context. The sentence that is relied on by the Claimant that I have set out above appears under the sub-heading "Other Issues" and follows on from a paragraph with the sub-heading "Main Issues". When the whole of the paragraph is read, and when that paragraph is read in the context of the Decision as a whole, and in particular by reference to the paragraphs that appear before Paragraph 3, it is entirely clear that the Inspector was doing no more than introduce the material that he would have to consider in the following sections of the Decision for the purpose of deciding whether as a matter of planning judgment planning permission ought to be granted. I accept the submission made on behalf of the SoS therefore that the Inspector was merely identifying the existence of the environmental appraisal as part of the material that he would have to consider for the purpose of reaching a planning judgment on the merits of the proposal. I consider any other approach to be unreal.
"While there are considered [sic] significant potential impacts visually in terms of the two turbines, taking account of location and number of turbines and environmental information submitted I would not consider likely impacts of such significance in wider terms as to warrant ES"
It was submitted that "potential" meant "possible" and that a possible impact was one that plainly satisfied the Waddenzee test and any other view was irrational or unlawful. Two questions arise therefore - first, whether Mr McCracken is correct in submitting that "likely" is to be equated with "possible" in this context and secondly whether the word "potential" meant or was intended by the screener to mean "possible".
30 Although Mr McCracken relied on the decision of the Court of Appeal in R (Bateman) v. South Cambridgeshire DC  EWCA Civ 157 as supporting his submission that a "possible" effect was to be treated as a an effect that was "likely", I do not read the judgments as having that effect. Moore-Bick LJ gave the lead judgment. He concluded that it was not necessary to express any concluded view on the point (see Paragraph 19 of his judgment) and neither of the other Lords Justices commented on the point at all although by implication at least Jackson LJ adopted a similar approach. That being so, I do not consider that Bateman assists on the issue now under consideration. The language used by the ECJ in Waddenzee does not support the submission either. Rather it appears to be concerned with emphasising the entitlement of the decision maker to take account of "objective information" in reaching a conclusion.
31 However, even if the effect of Waddensee is that "likely" is to be construed as meaning "possible" where that word is used in Regulation 2(1) of the EIA Regulations, that does not lead to the conclusion that the SoS's decision to make a negative Direction was either wrong in law or irrational. I do not accept that it is a fair construction of what was being said in the sentence set out above that the word "potential" was intended to be equated with "possible" in the sense for which Mr McCracken contends. All that the screener was attempting to do was to say (correctly) that there were impacts that could be identified that needed to be considered for the purpose of deciding whether or not to make a negative Direction. The attempt to construe the language of an official used in a document such as that I am now considering as if it were a statute and then to apply to that language a literalist rather than a purposive construction is one that I regard as unhelpful and inappropriate. A similar approach in relation to paragraph 3 of the Appeal Decision was adopted by the Claimant and is unhelpful and inappropriate for similar reasons. Read in its context and purposively it is entirely clear at any rate to me what the official was attempting to say. The suggestion that an error of law can be discerned from this language much less a fundamental one is unsustainable. The suggestion that the Inspector acted irrationally in failing to remit by reference to these points is not arguable.
"The 1999 Regulations are concerned to protect the environment in the public interest. Whilst this may have the effect of avoiding harm to residential amenity, the purpose of the 1999 Regulations is not to protect the amenity of individual dwelling-houses. There may be "significant" impact upon a particular dwelling or dwellings without there being likely "significant effect on the environment" for the purposes of the regulations.
In reality, there is a severe, but highly localised, shadowing effect upon a relatively few properties ... that does not, in the context of the Regulations, amount to a likely significant effect on the environment such as to warrant an EIA"
This approach is reflected in both Paragraph 3 of Annex 3 to the EIAD, where potential significant impacts are required to be considered specifically having regard to "the extent of their impact", and Paragraph 3 of Schedule 3 to the EIA Regulations, which is to similar effect. Indeed the Guidance issued by the EU Commission relied on by the Claimant for other purposes also supports this approach. I discuss this further when considering that Guidance below.
33. It is true to say that in answer to a number of the questions set out in the screening checklist, the screener has identified significant but local effects. An example concerns flicker effect which is identified as having a potential effect by reference to question 6 but which is rejected as likely to result in significant effect because the impact concerned was assessed as having "...significant local effects immediate area, no wider issues ...". This is precisely the sort of analysis that was held in Malster to be one that it was appropriate for decision maker to adopt. The notion that it represents an error of law or is a judgment that was irrational is plainly unsupportable. This is so also in relation to the various other impacts that were assessed to be of local effect only. This is precisely the sort of planning judgment that the EIAD and the EIA Regulations require decision makers to take. I accept of course that there may come a point where the combination of local effects may lead to a different result when those effects are considered cumulatively rather than individually. However, the circumstances will be truly exceptional where a court would conclude that a judgment reached by reference to such a point was irrational.
34. I now turn to the assertion that the SoS wrongly treated the existence of a voluntary appraisal prepared on behalf of CLP as a relevant consideration. This was said to be apparent from the final paragraph of the screening checklist. As counsel for the First Defendant puts it in his skeleton submissions, all that sentence does is to set out the need for correspondence to be sent to the Planning Inspectorate. It is entirely clear when the documents referred to by the Claimant are read as a whole and in context that the determination whether EIA was required was contained in the previous paragraphs. The documents relied on by the Claimant simply do not carry the meaning alleged. I consider this point to be yet another attempt to construe a document prepared by an official in order to aid decision taking as if it was a statute and then to apply to it a literalist rather than purposive construction. This is objectionable for the reasons that I have already given but here is simply wrong as well. The point is without substance and I reject it.
35. Next it is alleged that the screening direction is flawed because the SoS failed to apply the EC's Guidance which it is alleged is that "... any effect which ought to influence the decision should be regarded as significant". The Guidance there being referred to is that contained in the Instructions for Screening set out at the start of the Checklist of criteria for evaluating the significance of environmental effects contained in "Guidance on EIA Screening" published in June 2001. In my judgment this provides no assistance in the circumstances of this case. First, there is no obligation to follow this guidance, which as far as I can discern has no legal standing. Secondly the Guidence is at best meant to assist in deciding whether an effect ought to be taken into account as part of the process. Thus the Guidance is not concerned with the issues of likely effect or the degree to which if at all local effect should be regarded as significant. Indeed, in relation to the local effect issue, question 4 implies that where an effect is of local effect only, that question will be answered "no". Whilst no single answer is determinative, the Guidance suggests that the effect of a "no" answer will "... generally point towards ... EIA not being required". No effects have been identified by the Claimant that have not been taken into account at all that should have been. Thus the Guidance to which reference is made takes matters no further.
36. The final issue that arises at this stage concerns a point made at paragraph 11(iii) and (iv) of the Claimant's skeleton. The points made in summary are that (a) it was irrational or otherwise unlawful for the SoS to have failed to conclude that the proposed development would have significant environmental effects having regard to what LCC and NE had said concerning the effect of the wind farm on pink footed geese and, therefore, on the SPA and (b) that the proposed mitigation scheme should have been ignored for the purpose of considering whether there would be a significant environmental impact (that issue being relevant only once it had been decided that an EIA was necessary) or because it was not sufficiently detailed or because it was not protected by legally binding mechanisms. It is said that these points were so fundamental that they ought to have led a rational inspector to remit the screening direction for further consideration.
37. The responses by the screener to question 13 of the screening checklist show that the SoS recognised the potential impact on the SPA as an issue that had to be considered in deciding what screening direction ought to be given. The reasons for concluding that the development was not likely to have a significant effect on the SPA was that following consultations with NE and RSPB an appropriate outline mitigation scheme had been identified.
38. Since it is clear that the SoS concluded that there would not be a significant impact because of the mitigation scheme that had been devised, it is convenient to consider first the submission that the issue of significant impact ought to have been considered without reference to the mitigatory elements of the scheme that had been proposed and about which a large measure of agreement had been reached.
39. It is first worth making the point that even if the impact on the SPA had not been considered to be a significant effect for screening purposes, that did not prevent the Inspector from considering it as a factor relevant to the planning judgment to be reached concerning the scheme. It is clear from the Appeal Decision that this is what the Inpector did. There was nothing to prevent planning permission being refused even though a negative screening direction had been given. This was a point that was stated expressly in the body of the screening direction and in the summary at the end of the screening checklist prepared by the screening official. It is a point that has been made on more than one occasion in the authorities.
"When forming a screening opinion, the council were not required to ignore either the conditions proposed to limit the scope of the development or the conditions providing for ameliorative or remedial measures. The consequences of providing the additional seating, and other changes, could not be predicted with certainty but as Collins J noted, the Council had extensive knowledge and experience, supported by surveys, of the impact of existing football league and cup matches on the environment. On the basis of that, and the studies as to future impact, they were entitled to assess the likely impact of the additional capacity proposed in the context of the continuing ameliorative measures also proposed and form the screening opinion that they did."
41. The Claimant argued that I should not adopt the approach reflected in these authorities to which I have referred above but that I should instead refer the issue to the ECJ. This approach was said to be appropriate in light of a letter from Mr Buxton, the Claimant's solicitor, to the EC Commission dated 4th September 2007 and a short response from an official at the Commission dated 30th January 2008. The EC official maintained that the Commission's view was that mitigation measures should be considered only once the requirement for an EIA had been established. I do not consider this to be a sound basis for inviting me to refer the issues I am now considering to the ECJ. At best this letter reflects the view of the Commission in January 2008. There is no authority cited for the view expressed by the Commission's official and there is nothing in the EIAD that would appear to justify it. It ignores the logic of the reasoning set out in the authorities to which I have referred and does not appear to have been followed up with any administrative action. Given these factors, and that the domestic authorities clearly establish the approach to be adopted as a matter of English law, in my judgment the appropriate course for me to adopt is to follow the domestic authorities to which I have referred, one of which is binding upon me and with both of which I respectfully agree.
42. In my judgment this case is one of those that falls squarely within the parameters identified by Pill LJ as being one where the decision maker (here the SoS) was entitled to consider the effect of the proposed scheme together with the mitigation proposed for the purpose of arriving at a judgment as to whether there was a significant effect. This is plainly what the SoS did - see the question and answer referred to above. There is thus no basis for concluding that taking account of the effect of the mitigation elements of the scheme rendered the decision of the SoS either unlawful or irrational or that the Inspector acted unlawfully or irrationally in failing to remit the screening decision for further consideration by reference to this point. Whether the mitigation elements of the scheme were sufficient to overcome the objections raised by reference to the Habitats Issue to enable planning permission to be granted or granted subject to conditions was a matter for the planning judgment of the Inspector.
44. In those circumstances, I am not able to conclude that the screening Decision or the Appeal Decision is tainted by either unlawfulness or irrationality in the ways relied on. Thus I reject the suggestion that the Inspector acted either unlawfully or irrationally in refusing to remit the decision to make a negative screening direction. To the extent that it is submitted that the Inspector acted unlawfully or irrationally by granting planning permission and not dismissing the appeal by reference to the Habitats Issue or other environmental issues that were relied on, I reject that submission as well. These were classically issues for the planning judgment of the Inspector. He was entitled to weigh the issues relied on in relation to the impact on the environment against the other factors he considered and to come to the conclusion that he came to. In relation to the Habitats Issue he was entitled to conclude that permission ought to be granted subject to a condition that left the fine detail of the mitigation elements of the proposal to be agreed with the local authority. Ground 1 whether of itself or in combination with the additional ground identified by Mr McCracken in the penultimate paragraph of his submissions does not justify quashing the Appeal decision.
45. The challenge as set out in the Claim Form is that the Inspector erred in failing to conduct an Appropriate Assessment under Article 6(3) of the Habitats Directive. This refers to the need for such an assessment in relation to any plan or project " ... not directly connected with or necessary to the management of the site but likely to have a significant effect thereon ...". The word "site" in this context applies to sites such as the SPA. The sole question that arises is whether the SoS acted unlawfully in failing to carry out an Appropriate Assessment. That involves determining whether it was either unlawful or irrational to conclude that the project was not likely to have a significant adverse effect on the SPA. It is common ground that the reasoning that I have set out above in relation to the EIAD and the EIA Regulations concerning the meaning of "likely" and the approach to be taken in relation to mitigation is the same under both Directives and the applicable domestic Regulations.
46. The first question that has to be resolved on the Claimant's case is whether the ameliorating scheme is mitigation or compensation. It is submitted that if it is compensation then it must be ignored for the purpose of assessing whether the proposed project is likely to have a significant effect on the SPA. This distinction appears to be derived from the provisions respectively of Article 6(4) of the Habitats Directive and Regulation 66 of the Habitats Regulations, the Regulations by which the Habitats Directive is given effect domestically. The Claimant argues that the ameliorating elements of the project are not mitigation but are compensation and therefore cannot be taken into account irrespective of the ability of the court to consider mitigation provisions by reference to the authorities already considered in relation to the EIA Regulations and EIAD.
47. The only material that impacts upon this distinction is contained Section 5.4 of "Managing Natura 2000 Sites" published by the European Commission. This suggests that mitigation aims to minimise or cancel negative impacts whereas compensatory measures are measures independent of the project that are intended to compensate for the effects on a habitat affected negatively by a plan or project.
48. There is material concerned with the ameliorating elements of the project that appears to confuse two separate aims. The first suggested that the aim was to deflect geese that would otherwise be killed from coming into contact with the wind turbines if constructed, whereas the other aim was the provision of additional feeding grounds for geese so that mortality due to collisions could be offset against other geese that in other circumstances would not survive the winter due to lack of food surviving the winter as the result of additional feeding grounds being provided so that the net effect on the SPA of mortality resulting from collisions would be neutralised. In one sense the former could be described as mitigation and the other as compensatory using the definitions referred to in Managing Natura 2000 Sites. In my judgment that would not be a correct analysis however. The Habitats Directive and Regulations are concerned with likely significant impacts on the site - that is the SPA - not the species - that is pink-footed geese. Once this is understood it becomes clear in my judgment that whichever way the ameliorating elements of the scheme are understood they are in substance mitigatory in nature applying the Managing Natura 2000 Sites definitions because the adverse effect being addressed is the possible reduction of the total number of pink-footed geese over-wintering at the SPA.
49. The next issue that then has to be considered is whether taking into account the mitigating elements of the scheme it was unlawful or irrational to conclude that the proposed development would not have a likely significant effect upon the SPA. In my judgment framed in that way the proposition is not arguable. As I have said already the mitigation elements were integral parts of the proposal and the Inspector was not merely entitled but bound to take them into consideration when considering the appeal - see paragraph 37 above. The issue for consideration was not what if any effect the proposals would have on pink-footed geese but rather what the effect of the proposal on the geese would have on the SPA. By the time the matter came to be considered by the Inspector the opinion of NE that was concurred with by both RSPB and LCC was that subject to the three minor points and the funding issue mentioned in the factual narrative above, and subject to the formation of a s.106 agreement, " ... the development would no longer pose a likely significant threat to the integrity of the ... SPA ...". As I have said already, the reliance placed by Mr McCracken on the apparent confusion in the minds of officials considering the ameliorating elements of the scheme as to the aim of the scheme is immaterial once it is understood that what was being addressed was effect on the SPA. Either aim would achieve the same objective namely neutralising a reduction in the total numbers of geese that over wintered at the SPA successfully.
50. Any reliance on the negative outcome of the Appropriate Assessment carried out by LCC on behalf of the LPA was misplaced as well. As is apparent from the part of the Assessment quoted in paragraph 5 above, LCC's conclusion was premised on "... the absence of mitigation ...". It was this element that distinguishes the position as it was at that stage from the position as it became.
51. Mr McCracken submitted that such an approach leads to absurdity in effect. I don't agree. If a proposal is made that will have a likely significant effect, and in respect of which no adequate mitigatory proposals are made, then there will have to be an Appropriate Assessment. If such an assessment concludes that the proposal will adversely affect the site concerned then it will be permitted to proceed only provided that Article 6(4) and Regulation 62 are satisfied. If the proposal is not likely to have an adverse effect on a relevant site because it incorporates appropriate mitigatory measures at the screening stage, then there is no need to embark upon an Appropriate Assessment and, subject to planning permission being granted, there will be no need to satisfy Article 6(4) and Regulation 62. I do not regard this as irrational. All issues concerning enforcement of the mitigatory steps can safely be left to be covered by conditions and / or a s. 106 agreement or undertaking.
52. To the extent that it is contended that the Inspector acted unlawfully or irrationally in granting planning permission subject to conditions rather than dismissing the appeal before him by reference to the Habitat Issue, I reject that submission for the reasons already given in Paragraph 40 and 41 above.
53. The final ground concerns unfairness. In my judgment these points are without substance. The procedure adopted was the written representations procedure. It was followed correctly and no failure to comply with any particular procedural requirement has been identified. Rather the challenge proceeds by reference to various consequences that flowed from the use of the written representations procedure. Thus the Claimant complains that he did not have the opportunity to cross-examine. However, that is a consequence of the written representations procedure being adopted.
54. It is alleged that the Claimant did not have the opportunity to challenge the mitigation scheme. I do not accept that to be so. As is apparent from what I say in Paragraph 11 above, it is clear that not merely did the Claimant have the opportunity to comment on the most recent version of the Mitigation Scheme but that he took advantage of that opportunity.
55. There is a complaint that the Claimant did not have an opportunity to comment on the final representations made by NE. However, aside from the fact that NE was a statutory consultee, not a party, the real point is that its position never altered. The issues relevant to what NE had to say could and were all addressed by reference to the merits of the mitigation scheme.
56. The only other point identified by Mr McCracken was the apparent confusion as to the aim of the mitigation scheme - that is whether it was designed to prevent mortality or compensate for its effects. I have already commented on this point in relation to the other Grounds already considered. Whether or not the Claimant had the opportunity to comment on this point is immaterial because the point is itself an immaterial one. As I have said already, it is not the effect on Pink Footed geese that had to be considered but the likely effect on the integrity of the SPA. Once that is understood and it is understood that this issue concerns the total number of geese that successfully over winter at the SPA it becomes clear that this point is an immaterial consideration.
57. There is a complaint by the Claimant that he did not have the opportunity to comment upon the failure to require a s.106 agreement or the terms of Condition 12. However the decision in relation to the s.106 agreement and the terms of Condition 12 did not result from any submission on the part of any of the Defendants and surfaced for the first time in the decision of the Inspector. Thus there would have been no opportunity to comment on these issues by any of the parties irrespective of whether an Inquiry had been held or the written submission procedure adopted. In any event it is difficult to see on what basis the Inspector could have been persuaded to adopt a course that was different from that which he adopted which was conventional and which ensures that the detail necessary to secure the mitigatory aspects of the scheme must be agreed with the LPA before any work can commence. Thus in the absence of a challenge to the lawfulness of the decision to determine the appeal by means of written submission (and there is none) this challenge is without substance.
58. Finally I should mention the reference to Article 8 of the ECHR. This was not developed n the course of the oral submissions and has not been advanced by reference to any of the relevant European or domestic case law. In those circumstances it is unnecessary and undesirable that I comment further on the point.
59. This challenge is dismissed.

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The Data Protection Officer of Patti Avvocati & Rechtsanwälte is RA Britta Landahl, who can be contacted at the abovementioned address or the e-mail address: segreteria@pattilex.com.
the browser used and, eventually, the operating system of the computer used, as well as the name of the access provider.
The legal base for the processing of data is Art. 6, para. 1, lett. f) GDPR. Our legitimate interest results from the data collection purposes listed above. Under no circumstances we use the collected data in order to draw conclusions on the person of the user.
The transmission of personal data to third parties does not occur for purposes different than the ones stated in the following. However, after the issuing of the mandate, your data can be transmitted internally – for the purpose of executing the mandate – among our organization in the Patti offices in Rome, Milan and Munich.
it is legitimate and necessary according to Art. 6, para. 1, lett. b) GDPR in order to execute a contract the data subject is a party of.
We use so-called cookies on our website. Those are small files that, when consulting our website, are automatically created by the browser used and stored on the device (laptop, tablet, smartphone and similar). Cookies do not cause any damage to the device; they do not contain viruses, Trojan or other malware.
Information which results from the correlation with the device in use is deposited in the cookie. This does not mean that through this process we directly become aware of your identity.
Moreover, in order to optimize the ease of use, we use temporary cookies that are stored for a limited timeframe on the used device. In case our website should be consulted again, the previous access is automatically recognized, as well as the data entered eventually and with which settings, in order to avoid having to re-enter the same data again.
The data processed by the cookies are necessary for the abovementioned purposes and for the safeguard of our legitimate interests and the ones of third parties according to Art. 6, para. 1, lett. f) GDPR.
The majority of browsers accept cookies automatically. However, you can select browser settings that delete cookies from your device or that block all cookies or prompt you before a cookie is stored. The complete deactivation of cookies could imply that you are not able to use all the features of the website.
according to Art. 77 GDPR, you have the right to lodge a complaint with a supervisory authority, in particular in the Member State of your habitual residence, place of work or place of the alleged infringement.
In case your personal data are processed according to Art. 6, para. 1, lett. f) GDPR, Art. 21 GDPR you have the right to object to the processing of your personal data on grounds relating to your particular situation or the objection is related to direct marketing. In this case, a general right to object exists, that will be protected without the necessity to indicate a particular situation.
If you would like to exercise your right to objection, it is sufficient to send an email to segreteria@pattilex.com.
During the consultation of the website, we use a common type of procedure, the so-called SSL (Secure socket layer), in conjunction with the highest level of encryption supported by the used browser. Generally, it is a 256 bit crypto. In case the browser does not support a 256 bit crypto, we turn to the 128 bit v3 technology. You can recognize if a single page of our website is transmitted in encrypted form from the symbol of a key or a closed lock that will appear on the bottom status bar of your browser.
Moreover, we use appropriate technical and administrative security measures in order to protect the collected data from any accidental or intentional manipulation, from partial or complete loss, destruction or access by non-authorized persons. Our security measures are constantly being improved according to the technological development.
This privacy statement is currently valid, in force and updated to May 2018.
Following the development of our website or modified legal or administrative directives, it could be necessary to change and actualize this privacy statement. The latest version of this privacy statement will be available at any time on the website www.pattilex.com, with the possibility to connect to the website and, if the data subject desires, print the last version of the privacy statement.

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Continental Casualty Company v. TLC Services, Inc.
Collins v. Wellcare Healthcare Plans, Inc.
In Re: The Matter of Specialty Marine Services, Inc. and Creole Chief, Inc.
Van Buren v. Pro Se Planning, Inc.
In Re: E.H. Mitchell & Company, L.L.C.
Konate v. Inter-Con Security Systems Inc.
Wellman v. Grand Isle Shipyard, Inc.
Receivables Exchange, LLC v. Advanced Technology Services, Inc.
CG & JS Enterprises L.L.C. et al v. H&R Block, Inc.
In the Matter of: Bertucci Contracting Co., L.L.C.
Gibbens v. Quality Rental Tools, Inc.
Tindall Corporation et al v. Prepcon, Inc.
Tajonera et al v. Black Elk Energy Offshore Operations, L.L.C.
in re: Subpoena to Testify in Louisiana Attorney Disciplinary Board Hearing of Ashton R. O'Dwyer, Jr.
Environmental, Safety & Health Consulting Services, Inc. v. Crest Energy Partners, L.P.
Bennett v. Trinity Marine Products, Inc.
Celtic Marine Corporation v. James C. Justice Companies, Inc.
Deane v. Dynasplint Systems, Inc.
Jones v. Phil Guilbeau Offshore, Inc.
Dion v. Low Land Construction Co., Inc.
Q&A, LLC et al v. Allen Maxwell & Silver, Inc.
Lovell v. Quality Energy Services, Inc.
Johnson v. Crosby Tugs, L.L.C.
Ralser v. Winn Dixie Stores, Inc.
Gibbens v. Champion Industries, Inc.
Arch Specialty Insurance Company v. C&G Construction of Louisiana, Inc.
Arnold v. Canal Barge Company, Inc.
Sarrat et al v. Univar USA, Inc.
Becnel et al v. Southland Rental Tools, Inc.
Nunnery v. Offshore Marine Contractors, Inc.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


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Additional authors: Blanchard, Karen Lourie, -- 1951- | Fellag, Linda Robinson. | Ward, Colin.
Published by : Pearson/Longman, (White Plaines, NY :) Physical details: 4 v. : ill. ; 26 cm. ISBN:9780132474023 (pbk. : v. 1 without ProofWriter); 0132474026 (pbk. : v. 1 without ProofWriter); 9780132474030 (pbk. : v. 2 without ProofWriter); 0132474034 (pbk. : v. 2 without ProofWriter); 9780132474054 (pbk. : v. 3 without ProofWriter); 0132474050 (pbk. : v. 3 without ProofWriter); 9780132474061 (pbk. : v. 4 without ProofWriter); 0132474069 (pbk. : v. 4 without ProofWriter).
Subject(s): English language -- Textbooks for foreign speakers. | Reading comprehension -- Problems, exercises, etc.
[v. 1] Level 1 / Lynn Bonesteel -- [v. 2] Level 2 / Karen Blanchard, Lynn Bonesteel -- [v. 3] Level 3 / Linda Fellag -- [v. 4] Level 4 / Colin Ward.

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Brandon represents numerous clients in a wide range of industries throughout the U.S., with a focus on counseling manufacturers in distribution-related disputes. He has significant experience working with automotive and powersports vehicle manufacturers to address issues that arise in their dealer networks. Regardless of the industry, he seeks to obtain the best possible result to advance his clients’ business interests.
In addition to his work with manufacturing clients, Brandon also advises other corporate, banking, and real estate companies on a variety of commercial litigation matters. He has litigated numerous cases in federal and state courts and state agencies throughout the U.S. His time in Procter & Gamble’s Finance & Accounting division — prior to his legal career — gives him a business perspective that clients don’t often find from outside counsel.
Brandon regularly counsels motor vehicle and powersports manufacturers on general dealer network initiatives, such as incentive programs, sales policies, facility programs, and specific disputes concerning their dealer networks, dealer agreements, and the federal and state regulations affecting the manufacturer-dealer relationship. Clients also look to Brandon for guidance on initiatives to improve dealer performance and strengthen dealer networks.
Facility and corporate identity initiatives.
Terminating a dealer after it lost its floorplan line of credit.
In any dispute, Brandon pursues the most productive strategy for his clients, whether that means aggressively pursuing cases through trial or hearing, or negotiating a business-oriented resolution.
Motor vehicle manufacturers also look to Brandon for counseling on other dealer network matters, including dealer ownership and management changes, manufacturer rights of first refusal, vehicle allocation, sales performance standards, customer satisfaction programs, and other initiatives to strengthen the dealer network. For example, over a five-year period, Brandon managed a sophisticated dealer improvement program for a manufacturer with a large dealer network. The program helped the client achieve significant sales gains and an improved dealer network.
When not attending to his client’s needs, Brandon has enjoyed serving in several leadership roles in the Chicago Jewish community. You may also find him enjoying a cold Northeast IPA, possibly between sets at one of Chicago’s renowned music venues. He and his wife are avid Cubs, Blackhawks, and Bears fans, and they enjoy seeing what new milestone their young son reaches next.
Newton Volkswagen v. Volkswagen of America, Inc.
Represented Volkswagen in state court action challenging termination of dealership. Summary judgment in favor of Volkswagen.
Represented Lamborghini in state court termination action. Summary judgment for Lamborghini.
Low Country Volkswagen LLC v. Volkswagen of America, Inc.
Represented Volkswagen in South Carolina federal court action seeking $8 million in damages for alleged coercion in connection with dealer’s obligation to build facility. Jury verdict entered for Volkswagen on all counts.
Marker Oil Co., Inc. d/b/a Marker RV and Power Sports v. BRP US Inc.
Represented BRP US, Inc. in state administrative termination protest.
Represented FCA US LLC in state administrative protest involving change to area of responsibility.
Represented FCA US LLC in state administrative protest involving incentive program chargebacks.
Represented FCA US LLC in state administrative protest involving supplemental dealership location.
Represented FCA US LLC in state administrative termination protest.
Volkswagen Group of America, Inc. v. Southern States Volkswagen, L.L.C.
Represented Volkswagen in action seeking damages in connection with false incentive claims.
Maxwell Volkswagen, Inc. v. Volkswagen of America, Inc.
Represented Volkswagen in state administrative action challenging incentive program chargeback.
Classic Automobiles, Inc. v. Audi of America, Inc.
Represented Audi in New York federal court price discrimination claim challenging national vehicle incentive program.
Beechmont Audi, Inc. v. Audi of America, Inc.
Represented Audi in Ohio federal court action alleging price discrimination under the Robinson-Patman Act, the federal Automobile Dealers Day in Court Act, and the Ohio Motor Vehicle Franchise Act.
Represented bank against property developer’s claims for breach of contract and fraud. Trial court dismissed both claims, and Illinois Appellate Court affirmed.
Represented Plaintiff in claim brought in the U.S. District Court for the Northern District of Illinois alleging that the Defendants’ receipt of notices of intent to revoke permits from state regulators with respect to its licenses to operate three assisted living facilities in Georgia and Alabama violated a lease agreement with Plaintiff. On June 15, 2012, the matter was resolved with the Defendants’ agreement to pay $97 million for the properties at issue, $3 million for a litigation settlement fee and agreement to pay all of Plaintiff’s fees and costs associated with the lawsuit.
Represented bank in guarantors’ appeal of district court’s entry of summary judgment for bank for breach of guaranty. Seventh Circuit affirmed summary judgment.
Represented bank against borrower and guarantors in mortgage foreclosure matter. Judgment of foreclosure entered against borrower and summary judgment entered against guarantors.
Represented receiver in claim brought in the U.S. District Court for the Northern District of Illinois against the directors and officers of AA Capital Partners, Inc., an SEC-registered investment advisor, in a $60 million claim for violations of ERISA, breach of fiduciary duty, fraud, and conversion arising out of alleged misappropriation and misuse of investor funds.
Successful petition to the U.S. Department of Justice Immigration Court to grant asylum to an Iranian national who fled Iran after being targeted by the government for participating in the historic protests that followed the election of Iranian President Mahmoud Ahmadinejad in 2009. This appears to be one of the first U.S. asylum cases connected with the widely reported 2009 election protests in Iran.
Successful petition to the U.S. Department of Justice Immigration Court to grant asylum to an Egyptian couple who fled persecution in Egypt on account of their Coptic Christian religious beliefs.

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Is The California Court Case Management System (CCMS) Being Misused For Politics In Policy & Litigation…..And The Fleecing Of The California Taxpayer Over The Mold Issue?
Could someone please explain to us why an author of fraudulent medico-legal policy over the mold issue for the US Chamber of Commerce with strong ties to the US Centers for Disease Control and Prevention, National Occupational Safety and Health Division (“NIOSH”) has been an undisclosed party to a Strategic Litigation Against Public Paticipation (“SLAPP”) for six years…and the California Court Case Management System (“CCMS”) has been altered and falsified to conceal this?
09/14/2009 Certificate of interested entities and parties filed by: Plaintiff and Respondent: Kelman, Bruce J.
Attorney: Keith Scheuer Plaintiff and Respondent: Globaltox, Inc.
The Remittitur after appeal issued on December 20, 2010. Signed by the Clerk of the Court, Stephen Kelly’s hand, and the seal of the State of California it states plural “Respondents” on appeal. Who are “et. al.”? Who are “Respondents”?…. Who killed Jon Bonet?
As a principal of GlobalTox, this is the second time Bryan Hardin was an undisclosed party on appeal. The California courts have known since June 2006 that Hardin, (who was the link in the George Bush years between the US Chamber of Commerce, CDC NIOSH and the American College of Occupational & Enviornmental Medicine (ACOEM) in mass marketing misinformation over the mold issue), has been an undisclosed party to this SLAPP litigation over the mold issue and public health. This, as the courts framed for libel, the first person (c’est moi) to publicly write of how the above named entities were connected to market the fraud. This has been used to discredit all my words – not just the five for which I was sued, “altered his under oath statements”.
This shameful misuse of the courts, by the court, to practice politics has aided the scientific fraud in policyto continue. I.e., that it had been scientifically proven moldy buildings pose little to no health threat. It is indicative that the leadership of the California judicial system has become the epitome of what courts are meant to protect against.
If a superior court keeps a computerized Case History, then that would seem to be a court record that would be presumptively subject to public access, and governed by laws that control accurate recording. California law defines “judicial record” as “the record or official entry of the proceeding in a court of justice, or of the official act of a judicial officer, in an action or special proceeding” Code Civ Proc 1904.
A CCMS Case History would seem to fall within this definition of entries made by clerks of the court and therefore qualify as a judicial record to which parties to a litigation and public right of access attaches. This is particularly relevant in a litigation involving public health and public policy impacting hundreds of thousands of lives and where entries in the Case Summary that are available for litigant view are evidenced false entries.
Yet, County Administration of the San Diego Court indicates the court legal department states CCMS Case History data entries are not available to be accessed by parties to the litigation or by the public – even when errors are known to be present in the CCMS Case History.
“I am a whistle blower of how it became a fraudulent concept in US public health policy in the early 2000s’ that it was scientifically established moldy buildings do not harm. I am the catalyst that caused a Federal GAO audit over the issue in 2006, which has aided tremendously to remove the fraud from Federal policy.
My co-writing on the blog, Katy’s Exposure, was recently cited as reference for a Federal OSHA occupational safety publication over the mold issue in April of 2011. I am published in medical journals regarding the marketing of misinformation over the issue in the medical community and to the courts.
My endeavors to reshape public health policy have been beneficial to public health, but adverse to the interests of those who sell doubt of causation of illness for a living and their clients; such as the insurance industry. In October of 2005, Governor Schwarzenegger endorsed the fraudulent concept into California Workers’ Compensation policy under the platform of Workers Comp Reform — that it had been proven moldy work environments pose little to no health threat to workers. He instructed that occupational physicians must adhere to the guidelines of ACOEM over the mold issue.
This has aided many California workers comp insurers to be able to shift the cost burden of worker injury onto the taxpayer funded, state and federal disability and social services, when insurers have a bogus legitimizing factor written into policy aiding them to deny financial responsibility….
Unfortunately, some of the judiciaries and court clerks involved in this fiasco of aiding this fraud in policy to continue are leading judiciaries and court officers in the state of California. They are present and past members of the Judicial Council. They have aided the continuance of an Insurer Cost Shifting scheme (that was endorsed by Governor Schwarzenegger) by being willing participants in a malicious, strategic litigation carried out by criminal means. CCMS is being used by the clerks to conceal the judiciaries’ “indiscretions”…..
Is this the intended usage for a computer system that will eventually link all courts in California and will be the electronic record of all legal cases?
In its current form, CCMS is a blank slate that is asking for special and conflicted interests to be able to enter false data into the Court Records, some that only the courts see, should the motivation and opportunity arise.
As such, I am requesting that the Judicial Council review the Court Records, including those that are in the CCMS, in Kelman & GlobalTox v. Kramer Case No GIN044539 San Diego Superior Court, Kramer v. Kelman Defendant/Appellate v. Plaintiff/Respondent, Fourth District Division One Appellate Court D054496.
This is needed to help the Judicial Council understand how their computer system can and is being used to aid judiciaries who chose to breach their judicial vows to practice politics instead of law; and how their clerks are able to add, edit, delete, remove and falsify CCMS records in the Case Record in violations of GC 6200, while aiding to conceal of the actions of the compromised judiciaries….
READ THE ENTIRE LETTER HERE….
TO: Justice Judith McConnell, Chair of the California Commission On Judicial Performance.
“As the Presiding Judge of the San Diego Appellate Court, please take measure to remove the Government Code 6200 Clerk of the Court violations from the Case Record, CCMS Case Summary & Docket, and Case File. Please evidence for me when these corrections are made in accordance with Government Code 62150(d)….
I made no such accusation. My purportedly libelous writing of March 2005 speaks for itself and is a 100% accurate writing. It accurately states the exchange of money from the Manhattan Institute think-tank was for the US Chamber’s mold position statement, ACOEM’s was a version of the “Manhattan Institute commissioned piece”.
As written by McConnell and accurately stated in my writing, Kelman admitted being paid by the think tank to author a paper for the US Chamber of Commerce, only after a prior testimony of his from another case in Arizona came into an Oregon trial proceeding. From there, he flip flopped back and forth and tried to say ACOEM’s mold statement was not connected to the US Chamber’s while having to admit they were — because his Arizona bench trial testimony proved they were.
READ LETTER TO JUSTICE MCCONNELL HERE….
Justice McConnell, you and many others have this video including the California Commission on Judicial Performance and the Chief Trial Intake Division of the California State Bar. Judge Enright was made aware of where to view it on the net in 2010. The Appellate Panel of you, Irion and Benke have the transcript of the depositions specifically called out for you in Briefs and Appellate Appendix.
“There are false entries made in the ROA stating a date of judgment that is not supported by the Case File. There is an ROA entry after the Remittitur issued, falsely stating who were the Prevailing Parties. There are documents of judgment of which I was noticed that are not in the Case File. There are documents of judgments of which I was not properly noticed under CCP 664.5(b) that are in the Case File.
There is an Abstract of Judgment in the Case File, based on a not valid and not properly noticed entry of judgment. There is a judgment lien on my home based on this void Abstract of Judgment.
As you are aware, this has been a very ugly case over a matter of public health, that has cost me everything I own to defend the truth of my words for the public good. It just keeps getting uglier. Attached is a rather lengthy and direct letter to the Clerk of the Appellate Court, Stephen Kelly and the Clerk of the Superior Court, Michael Roddy.
As the Presiding Judge of the San Diego Superior Court, please take measure to remove the Government Code 6200 Clerk of the Court violations from the San Diego Superior Court Case Record, CCMS ROA & Case History, and Case File. Please evidence for me when these corrections are made in accordance with Government Code 62150(d).
I am also requesting of you and Clerk of the Court, Michael Roddy, that I be provided access and a copy of the complete CCMS Case History – not just those items that print when I request a copy of the ROA. This is not a sealed case. I am aware that there are incorrect entries in the Case History that do not print on the ROA. The Case History is the CCMS Court Record that is shared among the judiciaries and court personnel.
It is a violation of my First Amendment Rights and prejudicial to me as a litigant, that judges are seeing inaccurate information of which I am not even permitted to see – or know what all they are seeing in the CCMS to be able to challenge the CCMS entries as incorrect.
Appellate Court: Erred December 20, 2010 Remittuter; Altered & erred entries in Appellate CCMS Case History, Awarded costs to undisclosed parties on Appeal, States false judgment date in Case History. Issued a Remittitur based on a back dated Superior Court Proof of Service that was certified signed and mailed by a San Diego Superior Court Deputy Clerk of the Court.
Superior Court: Altered and erred Register of Action entries &; “stealth” Case History in CCMS. Issued an Abstract of Judgment in violation of CCP 664.5(b). Back dated a Proof of Service of a Minute Order that was certified, signed and mailed by a San Diego Superior Court Deputy Clerk of the Court.
This is going to be a very direct letter. Errors, deletions, additions and false entries in your respective Court Records have caused me extreme financial damage and much distress. They have aided and abetted a malicious, strategic litigation carried out by criminal means; and over a matter of public health.
They have aided to conceal the judiciaries for whom you clerk or oversee their Deputy Clerks have been participants in the malicious, strategic litigation; and have been playing fast and lose with the law. Their actions and your actions have aided to defraud the California taxpayers by aiding with the continuance of an Insurer Cost Shifting Scheme, written into California Workers’ Compensation policy by ex-Governor Schwarzenegger in October of 2005.
While certain judiciaries in California appear to enjoy the privilege of being above the law; the same privilege is not afforded to Clerks of the Court or their Deputies. Under Government Code 6200, it is a criminal offense to alter, falsify, remove and/or secrete Court Records. These are not actions in accordance with Government Code 68150(d)….
There are incorrect Court Clerk entries in the (“Court Record”), (“Case File”), Register of Action (“ROA”), (“Case History”) and Court Case Management System (“CCMS”) of the San Diego Superior Court libel case of Bruce J. (“Kelman”) & (“GlobalTox”), Inc., v. Sharon (“Kramer”). There are incorrect Court Clerk entries in the Court Record, CCMS, Case File, (“Case Summary”) and (“Docket”) when on appeal in the Fourth District Division One Appellate Court, (“Kramer v. Kelman”) Defendant/Appellant v. Plaintiff/Respondent….
Which is it? A judgment was entered on December 12, 2008 and Presiding Justice McConnell accepted my intent to appeal on January 14, 2009 in violation of Rules of the Court 8.751? Or a judgment was not entered on December 12, 2008, and the Appellate Case Records are violations of Government Code 6200 stating a judgment that was not entered –with the lower court records made to match after the Remittitur issued in December of 2010?
“ROA #264 12/23/2010 Remittitur (Judgment of 12-12-08 is affirmed) filed by The Superior Court of San Diego.
The case is still pending. The presiding judge has not signed off. Prior to the false editions and additions on December 23, 2010, in the Superior Court CCMS (after the Remittitur – stating undisclosed “Respondents”, isssued back with an Appellate Opinion stating date of entry of judgment of 12/12/08) there was no entry in the lower court ROA showing any judgment was entered on 12/12/08…because there was not. Odd how both CCMS histories of this case are consistent in their incorrectness with neither matching the Case File.
Rather than attach and mail a mountain of evidence to an already lengthy letter, I am going to put this letter to you, the Clerk of the Fourth District Division One Appellate Court, Mr. Kelly; and Clerk of the San Diego Superior Court, Mr. Roddy; online. I will link to the evidence of errors, alterations and false documents in your Case Records that need to be corrected under Government Codes 6200 and 68150(d).
As Clerks of the Court and members of the California Judicial Council; how you choose to address the needed corrections of errors, falsifications, additions, deletions, and secret & false entries in the CCMS Case History in your Court Records will answer the questions raised in the blog title regarding your intended usage of CCMS.
If I have any errors or misstatements of fact in this letter, please let me know so we (the owner of the blog and I) may then correct the online version. My apologies for typos in this letter. I do not type well and can no longer afford to hire a typist directly because of the mishandling by the courts of this case.
I currently have an interest accruing judgment lien on my home for costs incurred by a party I prevailed over in trial (with one being an undisclosed party), based on a false judgment never properly entered or noticed; false abstract of judgment; false Remittitur awarding costs to undisclosed parties on appeal. I am gagged by the court from writing a sentence for which I was never sued – which, coincidentally, would gag me from writing of what the judiciaries and their clerks in this case have done that aids abets insurer fraud and the fleecing of the public….
I am not going to shut up. I am not going to go away until someone acknowledges that every single judge and justice to oversee the case of Kelman & GlobalTox v. Kramer ignored the evidence that Bruce J. Kelman, author of medico-legal policy over the mold issue for the US Chamber of Commerce and ACOEM, committed criminal perjury to establish needed reason for malice while strategically litigating against public participation against the first person, Sharon Kramer, to publicly write of how these papers were connected to mass market a scientific fraud in US health and California workers’ comp policies. This, as the courts FRAMED ME for libel.
False Clerk of the Court CCMS entries of judgments never entered, parties never disclosed as the judiciaries practiced politics, not law, are aiding and abetting insurer fraud in violation of Government Code 6200. That is criminal.
When this is acknowledged, the fraudulent concept in public health policy that it has been scientifically proven all claims of illness from the toxins of mold found in water damaged buildings are only being made because of “trial lawyers, media and Junk Science” will immediately cease. Lives will instantly be saved….
1. Either provide evidence from the Case File on Appeal that GlobalTox and the owners of the corporation where disclosed as parties on appeal on the Certificate of Interested Parties stamped received on September 14, 2009 by the Clerk of the Court or Remove the word “Respondents” and “et. al” from the December 20, 2010 Remittitur, evidence and date its removal; and send me proof when removed.
2. Either provide evidence from the Case File on Appeal that GlobalTox and the owners of the corporation where disclosed as parties on appeal on the Certificate of Interested Parties stamped received on September 14, 2009 by the Clerk of the Court or Remove from the CCMS Docket that GlobalTox’s name was on the Certificate of Interested Parties, September 14, 2009; evidence and date its removal; and send me proof when it is removed.
3. Either provide evidence from the Case File on Appeal that a judgment was entered on December 12, 2008 or Remove from the CCMS Docket that a judgment was entered on 12/12/08, evidence and date its removal; and send me proof when it is removed..
4. Provide the dated, file stamped, signed, and noticed legal judgment document that gave the Appellate Court jurisdiction to hear the appeal.
5. The Appellate Court was provided evidence that Kelman committed criminal perjury in his declarations, three times, to establish needed reason for malice. Quote, “I testified the types and amounts of mold in the Kramer house could not have caused the life threatening illnesses she claimed” The Appellate Court was evidenced that Scheuer suborned Kelman’s perjury, even in his Appellate Brief of September 2009. His theme in his briefs: “Apparently furious that the science conflicted with her dreams of a remodeled home, Kramer launched into an obsessive campaign to destroy the reputation of Dr. Kelman and GlobalTox”. Either provide evidence from the Case File on Appeal that corroborates the stated reason for malice or cease and desist with using the CCMS in violation of GC6200 to conceal that all judges and justices overseeing this case rewarded a plaintiff’s criminal perjury to establish needed reason for malice while strategically litigating.
6. The Appellate Court was provided evidence that I found Kelman’s testimony when retained as an expert witness in Oregon of flipping back and forth to describe the relationship of the ACOEM & US Chamber mold statements from “lay translation” to “two separate papers, two separate works” and back to “translations” to be “altered under oath statement”. Either provide evidence from the Case File I was ever impeached as to the subjective belief in the validity of my words or cease and desist with using CCMS in violation of GC 6200 to conceal that all judges and justices overseeing this case deemed a never impeached US citizen to be guilty of being a malicious liar.
1. Either provide evidence from the Case File that a judgment was entered on December 12, 2008 or Remove from the stealth Case History that a judgment was entered on 12/12/08, evidence and date its removal and send me proof it is removed.
2. Either provide evidence from the Case File that a judgment was entered on September 24, 2008, was filed stamped, signed and noticed under CCP 664.5(b) to both prevailing parties or Remove from the CCMS ROA and Case History, Abstract of Judgment that there was a legal judgment entered on September 24, 2008, evidence and date its removal and send me proof it is removed.
3. The courts were evidenced that Kelman submitted and was awarded costs that were incurred by GlobalTox in the amount of $3,626,33. Either provide evidence from the Case File to refute that the courts awarded costs to a party, not incurred by the party, or Remove from the CCMS stealth Case History that an amended judgment was properly entered awarding Kelman $7,252.65 on 12/18/08, evidence and date its removal; and send me proof it is removed..
4. On the Minute Order dated December 12, 2008, it states, “The Record in this case reflects that Plaintiff Bruce J. Kelman is the prevailing party solely as against Defendant Sharon Kramer. Defendant Sharon Kramer is the prevailing party solely as against Defendant Globaltox, Inc.”. Provide evidence from the Case File that the Amended Entry of Judgment dated 12/18/08 (after the Minute Order was finalized) states both Kelman and Kramer are prevailing parties) was entered.
5. Either provide evidence from the Case File that Kelman and GlobalTox were the prevailing parties or Remove from the CCMS ROA and Case History that Kelman & GlobalTox were the prevailing parties as falsely entered in the ROA and Case History on December 23, 2010, evidence and date its removal; and send me proof it is removed.
6. Either provide evidence from the Case File that Judge Maas, now presiding judge over this case affirmed on December 23, 2008, that a judgment was entered on December 12, 2008 deeming Kelman and GlobalTox to be the prevailing parties or Remove from the CCMS ROA and Case History that on December 23, 2010, the lower court presiding judge quote:“the Remittitur (Judgment of 12-12-08 is affirmed) filed by The Superior Court of San Diego”. Evidence and date the removal; and send me proof it is removed.
. 7. If is evidenced by the Case File as legitimate CCMS entries, Add back the deleted entry #183 thru #187 made between October 23 & October 28, 2008, to the ROA and Case History; evidence and date their addition; and send me proof if and when they are added back..
8. Either provide evidence from the Case File that a Judgment was entered on September 24, 2008; or Rescind the Clerk of the Court issued Abstract of Judgment that was entered on December 31, 2008, stating a date of entry of judgment of September 24, 2008. This is a further abuse and violation of Code of Civil Procedure 664, 664.5(b) and Government Code 6200. Send me proof when the Abstract is withdrawn.
9. Provide from the Case File, the dated, file stamped, signed, and noticed legal judgment document upon which the December 31, 2008, Abstract of Judgment is based awarding Kelman $7,252.65 in costs (plus one dollar).
10. Provide from the Case File, the dated, file stamped, signed, and noticed legal judgment document as it appeared prior to the Entry of Amended Judgment dated 12/18/08, after Kelman’s costs were submitted in October 2008.
Rule 8.208. Certificate of Interested Entities or Persons (d) Serving and filing a certificate (2) If the identity of any party or any entity or person subject to disclosure under this rule has not been publicly disclosed in the proceedings and a party wants to keep that identity confidential, the party may serve and file an application for permission to file its certificate under seal separately from its principal brief, motion, application, or opposition. If the application is granted, the party must file the certificate under seal and without service within 10 days of the court’s order granting the application.
Since when is it acceptable in America to sue a US citizen to silence them of a deceit in public health of which you are involved…and not even have to disclose that you are the one who sued them?
The US Chamber of Commerce, the insurance industry and the Compromised Courts of California may not like us and want us to be silenced of what they have coluded to do to defraud the public.
But OSHA likes us! They cited Katy’s Exposure Blog as a scientific reference as we exposed the false science over the mold issue that is adversely impacting US public health and workers’ comp policies.
October 12, 2011 From Currents ex-CIA agent says government poisoned his family in moldy military housing and then claimed national security reason to conceal what they had done.
This entry was posted in Temp and tagged acoem, Bryan Hardin, ccms, judicial council, Mold, NIOSH, schwarzenegger, US Chamber, Veritox. Bookmark the permalink.
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