R Mynydd Y Gwynt Ltd v The Secretary of State for Business, Energy and Industrial Strategy
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 19 October 2016 |
| Neutral Citation | [2016] EWHC 2581 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6580/2015 |
| Date | 19 October 2016 |
[2016] EWHC 2581 (Admin)
Mr Justice Hickinbottom
Case No: CO/6580/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT IN WALES
Cardiff Civil Justice Centre
2 Park Street
Cardiff
CF10 1ET
Richard Kimblin QC (instructed by Aaron & Partners LLP) for the Claimant
Richard Moules (instructed by the Government Legal Department) for the Defendant
Hearing date: 11 October 2016
Approved Judgment
Introduction
On 30 July 2014, the Claimant applied under section 37 of the Planning Act 2008 ("the 2008 Act") for a Development Consent Order ("DCO") 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, to be known as Mynydd y Gwynt Wind Farm, at a site known as the Sweet Lamb Rally Complex which is immediately to the north of the A44 Aberystwyth-Llangurig road, 9.5km east of Ponterwyd ("the Application Site"). The proposal amounted to a Nationally Significant Infrastructure Project ("NSIP") within the meaning of sections 14(1)(a) and 15(2) of the 2008 Act.
On 27 October 2014, a single planning inspector Philip Asquith ("the ExA") was appointed by the Secretary of State for Energy and Climate Change to be the Examining Authority for the purposes of the application. On 20 August 2015, he recommended that the Order be made in the form attached to his report. However, on 20 November 2015, the Secretary of State refused the application; and, in these proceedings, the Claimant challenges that decision. By section 118 of the 2008 Act, that challenge is by way of judicial review. Following refusal on the papers by Lang J, I granted permission to proceed at an oral hearing on 9 June 2016.
From July 2016, the functions of the Secretary of State for Energy and Climate Change were transferred to the Defendant. For the purposes of this claim, it is unnecessary to distinguish between them, and I shall refer to both as simply "the Secretary of State".
At the hearing, Richard Kimblin QC appeared for the Claimant, and Richard Moules of Counsel for the Secretary of State; and I thank each for his helpful contribution.
The Factual Background
With a view to increasing renewable energy in a sustainable way, in July 2005 the Welsh Assembly Government issued Technical Advice Note TAN 8: Planning for Renewable Energy, which established seven Strategic Search Areas ("SSAs") in Wales. These were areas identified as being potentially suitable for large scale wind farm development, from which it was estimated that the national target of 800MW of installed onshore capacity could be met. Four SSAs were identified in mid-Wales, namely SSA A Clocaenog Forest, SSA B Carno North, SSA C Newtown South and SSA D Nant y Moch.
A number of wind farm projects were proposed for these SSAs, involving a variety of developers. Each required some form of development consent, which was, depending on size and timing, subject to one of three statutory schemes. Proposed schemes of over 50MW required the consent of the Secretary of State under the Electricity Act 1989; or a DCO under the 2008 Act which, from 2009, was also the responsibility of the Secretary of State. Smaller schemes were subject to the general planning scheme of the Town and Country Planning Act 1990; and, under that, required planning permission from the local planning authority. Under each scheme, Natural Resources Wales ("NRW") was a statutory consultee.
Part 6 of the 2008 Act imposes a rigid procedure on the decision-making process for DCOs, including pre-application consultation and examination subject to a strict timetable lasting no longer than six months, with representations being mainly in written form at successive "deadline" dates, with few and short issue specific hearings. From 2009, the examiner appointed in any case has been drawn from the Planning Inspectorate. He makes a recommendation to the Secretary of State, who then takes the final decision on whether a DCO should be made.
In mid-Wales, in addition to the proposed project at the Application Site, there was one other relevant NSIP, namely Clocaenog. Consent was sought under the Electricity Act 1989 for several wind farm projects, including five across SSAs B and C, together with a sixth project for an overhead line grid connection. The smaller, sub-50MW projects included Bryn Blaen, for which planning permission was sought from Powys County Council as the local planning authority.
The Application Site lies to the North West of the Elenydd Mallean Special Protection Area ("the SPA"), a large upland area of heath, blanket mire and dry grasslands. Comprising over 30,000ha, the SPA covers the major part of the Cambrian Mountains. None of the SPA is within 4km of the nearest turbine. With a 2km buffer, 1% of the SPA is within 4km of the nearest turbine, and 3.5% within 6km.
The conservation objectives of the SPA are set out in the Countryside Council for Wales' Core Management Plan (April 2008), which, in paragraph 1 ("Vision for the Sites"), includes within the "general vision":
"For each species of particular interest, the population dynamics data on the species indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats…"
This is taken directly from the definition of "favourable conservation status" in article 1 of EC Council Directive 92/43/EEC on the conservation of natural habitats and wild fauna and flora ("the Habitats Directive") (see paragraph 14 below).
The SPA's qualifying species include the red kite ( Milvus milvus) as "Feature 8". The conservation objectives specific for red kite in the Core Management Plan, at paragraph 4.8, include in "Vision", as "Objective 1":
"The SPA area will continue to support at least 15 pairs of breeding red kites, or 0.5% of the British population";
and, with regard to "Specified Limits", as a "Performance Indicator", it is said:
"Upper limit: None.
Lower limit: At least 15 pairs of kites nest regularly within the SPA, or within 2km of the boundary."
The Core Management Plan makes clear that such indicators are merely part of the objective, and projects "must be based on the entire conservation objective, not just the performance indicators".
The Law
It is uncontroversial that, by virtue of the Application Site's juxtaposition with the SPA, the protection regime of the Habitats Directive, as transposed by the Conservation of Habitats and Species Regulations 2010 (SI 2010 No 490) ("the 2010 Regulations"), applies to this proposed project.
"Special Protection Areas" ("European Sites") are designated areas which, by reference to habitat or species features, are strictly protected under the Habitats Directive.
A key concept in the Directive is "maintenance… at a favourable conservation status" (see, e.g., article 8(2)). For a protected species, article 1(i)(b) defines "favourable conservation status" to be when (amongst other things):
"… population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats."
Article 6(3) of the Directive provides:
"Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusion of the assessment of the implications of the site…, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned…".
"The site" in this context is, of course, a reference to any European Site. Whilst the article refers to plans and projects, we are dealing here with a project; and, unless the context requires otherwise, I shall not refer further to plans.
Regulation 61 of the 2010 Regulations (which effectively transposes article 6(3)), so far as relevant to this claim, provides:
"(1) A competent authority before deciding to undertake, or give consent, permission or other authorisation for, a… project which… is likely to have a significant effect on a European [S]ite… (either alone or in combination with other plans or projects)… must make an appropriate assessment of the implications for that site in view of that site's conservation objectives.
(2) A person applying for any such consent, permission or other authorisation must provide such information as the competent authority reasonably require for the purposes of the assessment or to enable them to determine whether an appropriate assessment is required.
(3) The competent authority must for the purposes of the assessment consult the appropriate nature conservation body and have regard to any representations made by the body….
…
(5) In the light of the conclusions of the assessment, and subject to regulation 62 (considerations of overriding public interest), the competent authority may agree to the… project only after having ascertained that it will not adversely affect the integrity of the European [S]ite…
(6) In considering whether a… project will adversely affect the integrity of the site, the authority must have regard to the manner in which it is proposed to be carried out or to any conditions or restrictions subject to which they propose that the consent…...
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