A judge has rejected a challenge to a development consent order (DCO) for a major wind farm in north Wales, ruling that the High Court had no jurisdiction to hear the case.
Lindblom J found that the claim, brought by a local resident opposed to the proposed wind farm at Clocaenog Forest, was issued a day too late, and that the strict six-week deadline for challenging DCOs under the Planning Act 2008 had passed.
Unusually, the challenge to the court’s jurisdiction was only raised by solicitors for energy company RWE Innogy by letter after the judge had heard the case and reserved judgment in February.
However, he found that Michael Williams had failed to meet the deadline under section 118 of the 2008 Act, and dismissed his claim.
He said: “A time limit of six weeks for challenges to decisions of the secretary of state has traditionally been used by parliament in planning and compulsory purchase legislation. The purpose of imposing such a limitation on the court’s jurisdiction is administrative certainty. Section 118(1) of the 2008 Act belongs to that tradition.
“The period of six weeks specified in section 118(1) as the time within which a claim for judicial review of a development consent order must be issued is not flexible or indefinite. It is fixed and certain. And it has the force of statute. The claim must be filed within the period of six weeks ‘beginning with’ the day on which the order is published. A claim issued out of time, even one day out of time, is too late and beyond the reach of the court’s jurisdiction. The court has no discretion to extend time.”
He said that it is now “absolutely clear” that the calculation of the period for challenge includes the day on which the order in question and the secretary of state’s reasons were published, meaning the critical question was whether the Clocaenog Forest Wind Farm Order was published, within the meaning of section 118(1), on 12 September 2014.
He continued: “In my view it was… the placing of the order on the Planning Inspectorate’s infrastructure planning website on 12 September 2014, together with the secretary of state’s decision letter and the examining authority’s report, and, on the same day, the notification of interested parties, both by e-mail and by post, that this had been done, was enough to constitute publication of the order, and the reasons why it was made, within the meaning of section 118.
“It enabled any interested party, including Mr Williams, to consider, with the benefit of legal advice, whether there were grounds for a claim for judicial review, and, if there were, to launch a challenge within the statutory period of six weeks. The fact that the secretary of state chose to publish the order in that way but then went on to publish it in other ways as well does not mean that he failed to publish it, and his reasons for making it, on 12 September 2014.
“Putting both the order and the reasons on the government’s legislation.gov.uk website, producing it and sending it out in printed form, and placing notices in the London Gazette and in the local press to announce the decision were all separate and additional acts of publication. But the order and reasons had been published on 12 September 2014. This was all that was necessary to start the period within which a legal challenge to the order could be made.”
He said that, unfortunately for Williams, that fact was “fatal” to his case, adding: “Under section 118 the claim for judicial review had to be issued by no later than 23 October 2014. It was not. It was issued the following day, which was a day too late. The court has no jurisdiction to hear it.”
Williams – who, together with his wife and other local residents, objected to the wind farm – had argued that, in making the DCO last September, the Secretary of State for Energy and Climate Change had failed to comply with Council Directive 92/43/EEC (the Habitats Directive) and the Conservation of Habitats and Species Regulations 2010 (the Habitats Regulations).
The judge said that the application site, about 1,580 hectares of forest, lies within an area identified by the Welsh Government as one of seven capable of accommodating large wind farms. The DCO permitted the construction of up to 32 wind turbine generators, each with a height to blade tip of 145 metres, together with related infrastructure and various other works. The installed capacity would be between 64 and 96 megawatts.
R (on the application of Michael Williams) v Secretary of State for Energy and Climate Change Planning Court (Lindblom J) 30 April 2015
John Hunter (instructed by Irwin Mitchell LLP) for the claimant
Richard Kimblin (instructed by the Treasury Solicitor) for the defendant
John Litton QC (instructed by Eversheds LLP) for the interested party
