The High Court in R (on the application of Mynydd y Gwynt Ltd) v Secretary of State for Business, Energy and Industrial Strategy [2016] EWHC 2581 (Admin) has dismissed a judicial review challenge against former energy secretary Amber Rudd’s refusal of the development consent order for the Mynydd y Gwynt Wind Farm. This DCO was for the construction and operation of a wind farm comprising up to 27 turbines with a maximum blade tip height of 125m and associated works.
The main issue was the effect of the proposed development on the red kite population in the Elenydd Mallean Special Protection Area (the “SPA”) due to the risk of collision during the operation of the turbines.
The site was close to the Elenydd Mallaen Special Protection Area and the secretary of state was unconvinced that the development would pose no real threat to the local population of protected red kites. The secretary of state had indicated that she did not have the information required to assess appropriately the impact of the development on the integrity of the SPA, “despite further questions having been issued by the secretary of state after the close of the examination”. Consequently, the secretary of state did not grant development consent because she is was not able to conclude that there is no adverse effect on the integrity of the red kite feature of the Elenydd–Mallaen SPA.
At High Court, the developer Mynydd Y Gwynt Limited said the risk to the birds would be “nil” and argued that the government had misunderstood the threat and taken no account of measures it would take to protect the birds. There were three grounds of challenge: (1) the secretary of state failed to perform a proper appropriate assessment; (2) the secretary of state failed to apply guidance on foraging distances in this case consistently with other case where the same issue arose; and (3) the secretary of state failed properly to consider the derogation in article 6(4) of the Habitats Directive and regulation 61(3) of the 2010 Regulations; and, in particular, failed to give any proper reasons why she found there were no imperative reasons of overriding interest for granting consent, despite a negative conclusion on the appropriate assessment.
The court held that the secretary of state was clear that the claimant did not supply sufficient information for it to be properly concluded that the turbines would not affect the integrity of the red kite population, nor did she err in law in reaching this conclusion. The court also dismissed the argument that there was any inconsistency in applying comparator sites or in not finding any imperative reasons of overriding public consent.
Martha Grekos is a partner and head of planning at Howard Kennedy LLP
