Town and country planning – Wind farm – Special protection area – Appellant applying for planning permission for wind farm – Proposal requiring development consent order (DCO) – Respondent secretary of state refusing DCO – Application for judicial review dismissed – Appellant appealing – Whether respondent erring in law in concluded that wind turbines would affect integrity of red kite population – Appeal dismissed
On 30 July 2014, the appellant company applied for permission to build and operate a 27-turbine onshore wind farm on a site in Mid-Wales. The proposal amounted to a Nationally Significant Infrastructure Project and required a Development Consent Order (DCO) under section 37 of the Planning Act 2008.
The proposed development site adjoined the Elenydd Mallaen Special Protection Area (SPA), which covered most of the Cambrian Mountains and was strictly protected under EC Council Directive 92/43/EEC (the Habitats Directive), both in relation to development within them and development in neighbouring areas. One of the conservation objectives of the SPA was to support at least 15 pairs of breeding red kite. The main issues facing the respondent secretary of state concerned: (1) reliability of the bird survey data; (2) whether red kite observed on the application site came from the SPA or elsewhere; (3) the effectiveness of proposals for mitigation; and (4) in-combination effects on the red kite population from the project site taken together with other wind farms in the area.
In accordance with her duty under regulation 61(1) of the Conservation of Habitats and Species Regulations 2010, which implemented the Habitats Directive, the respondent assessed the implications of the proposed development for the site’s conservation objectives. Pursuant to regulation 61(2), she requested information from the appellant and National Resources Wales (NRW) (the appropriate nature conservation body) about red kite mortality rates in combination with other wind farms. The appellant responded in part to that request and the respondent refused to grant a DCO because she was not satisfied that the project would not have a detrimental effect on a protected population of red kite as a result of the risk of collision with turbine blades.
The appellant challenged that decision by way of judicial review under section 118 of the 2008 Act but the Planning Court dismissed the application concluding that, having regard to the propositions derived from the authorities, it could not be said that the respondent had erred in law in her approach to the appropriate assessment and was entitled to conclude that the appellant had not supplied sufficient information for her properly to conclude that the turbines would not affect the integrity of the red kite population: see [2016] EWHC 2582 (Admin). The appellant appealed.
Held: The appeal was dismissed.
(1) The task of the decision-maker was first to consider whether the risk of the project having a significant effect on the site’s conservation objectives could be excluded. If it could not, an assessment had to be undertaken to ascertain the impact of the project and identify whether it was consistent with maintaining the site’s conservation status. Mitigation measures had to be taken into account and considerable weight should be attached to the views of the nature conservation body. Once the assessment had been carried out, approval could only be given if the authority was convinced that the project would not adversely affect the integrity of the site concerned. Absolute certainty was not required, and where it could not be achieved after all scientific efforts, the decision-maker had to work with reasoned probabilities and estimates; but where doubt remained authorisation would be refused: Landelijke: Vereniging tot Behoud van de Waddenzee v Staatsscretaris van Lanbouw (Case C-127/02) [2006] 2 CMLR 683 applied. Smyth v Secretary of State for Communities and Local Government [2015] EWCA Civ 174; [2015] PLSCS 75 followed. R (Hart District Council) v Secretary of State for Communities and Local Government [2008] EWHC 1204 (Admin), Sweetman v An Bord Pleanàla (Case C-258/11) and R (Champion) v North Norfolk District Council [2015] UKSC 52; [2015] 1 WLR 3710 considered.
(2) In the present case, in essence, the respondent accepted the advice of NRW to the effect that it had not been proven beyond reasonable scientific doubt that red kite using the project site did not come from the SPA. There was no certainty that the mitigation proposed by the appellant (reducing the availability of carrion that might attract foraging birds) would be effective. There were concerns about the age and methodology of the surveys produced by the appellant and information had not been provided about the in-combination impact of the project with other windfarms.
For the appeal to succeed, it had to be shown that the judge had taken account of irrelevant matters or failed to take account of relevant matters, or that her decision was so unreasonable that no reasonable authority could have made it. However, the court was not persuaded that the respondent’s decision was unlawful, nor that the judge’s careful review of the decision was wrong. Faced with a conflict of views, overall, the respondent had been entitled to accept the advice of NRW and conclude that she did not have the information necessary to enable her to grant the application.
(3) There was no reason to put a limit on what “information” might entail in a request under regulation 61(2). The normal meaning of the word could clearly extend beyond raw data to explanation, analysis and professional opinion, depending on the context of the case. The ultimate assessments were made by a range of administrative decision-makers, from the secretary of state to planning inspectors to local councillors, none of whom were conservation experts, and the regulation had to be interpreted in a way that ensured that each decision-maker was able to lay hold of the information that was needed. The applicant was only required to provide such information as the competent authority might reasonably require.
(4) The task of the decision-maker was to make an assessment on the basis of all the available information, applying the appropriate legal test. In the present case, there was a default position by virtue of regulation 61(5). But that was not a legal burden of proof weighing upon one party to the process. It just meant that it was in the interests of the applicant to provide the information necessary to enable a favourable decision to be made.
(5) The judge dealt comprehensively and correctly with the issue of certainty. The respondent was not asking for absolute certainty about the red kite population. Rather, she required clarity. She was entitled to take the view that that did not emerge from the information before her.
Richard Kimblin QC (instructed by Aaron & Partners LLP) appeared for the appellant; Richard Moules (instructed by the Government Legal Department) appeared for the respondent.
Eileen O’Grady, barrister
