R (on the application of Michael Williams) v Secretary of State for Energy and Climate Change RWE Innogy UK Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lindblom |
| Judgment Date | 30 April 2015 |
| Neutral Citation | [2015] EWHC 1202 (Admin) |
| Date | 30 April 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4945/2014 |
[2015] EWHC 1202 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Lindblom
Case No: CO/4945/2014
and
Mr John Hunter (instructed by Irwin Mitchell LLP) for the Claimant
Mr Richard Kimblin (instructed by the Treasury Solicitor) for the Defendant
Mr John Litton Q.C. (instructed by Eversheds LLP) for the Interested Party
Hearing dates: 24 and 25 February 2015
Introduction
In this claim for judicial review the claimant, Mr Michael Williams, challenges the development consent order made under section 114 of the Planning Act 2008 by the defendant, the Secretary of State for Energy and Climate Change, on 12 September 2014, approving a major wind farm on land in the Clocaenog Forest in north Wales. The order is the Clocaenog Forest Wind Farm Order 2014 (S.I. 2441/2014). The claim alleges that in making the order the Secretary of State failed to comply with Council Directive 92/43/EEC ("the Habitats Directive") and the Conservation of Habitats and Species Regulations 2010 ("the Habitats Regulations"). It is opposed both by the Secretary of State and by the interested party, RWE Innogy UK Ltd., which intends to develop and operate the wind farm.
On 19 December 2014 Hickinbottom J. ordered that the application for permission to apply for judicial review, and, if permission were granted, the claim itself, should be dealt with together at a "rolled-up" hearing. That hearing took place at Mold Crown Court on 24 and 25 February 2015. At the end of it I reserved judgment. On 9 March 2015, Eversheds LLP, the solicitors acting for RWE Innogy, sent a letter to the Administrative Court Office, contending that the court had no jurisdiction to hear and determine the claim because the proceedings had not been issued until the day after the time limit set by section 118 of the 2008 Act had expired. I therefore invited written submissions on jurisdiction from all three parties. For the Secretary of State, Mr Richard Kimblin provided submissions dated 23 March 2015, as did Mr John Litton Q.C. for RWE Innogy. For Mr Williams, Mr John Hunter made submissions in response on 30 March 2015. Those submissions are supported by Mr Williams' third witness statement in these proceedings, which is dated 30 March 2015. Mr Kimblin and Mr Litton replied on 1 April 2015. All three counsel made further submissions on the recent amendment to section 118, on 24 April 2015, and on the decision of the Court of Justice of the European Union in Uniplex (UK) Ltd. v NHS Business Services Authority ( Case C-406/08) [2010] P.T.S.R. 1377 on 29 April 2015.
Background
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 application for the development consent order was made under section 37 of the 2008 Act by RWE Npower Renewables Limited in March 2013. The project for which development consent was sought was 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. There are ten dwellings near the application site. Mr Williams and his wife own one of them. They and other local residents objected.
The application did not include a proposal for the connection to the national grid. When it was made, alternative alignments for the grid connection were being considered – one running to the north, the other to the south. The choice between those two routes would depend on the route ultimately favoured by the distribution network operator, and the connection to the grid was to be the subject of a separate application, made later.
After an examination which began in September 2013 and ended in March 2014, the Examining Authority, Ms Wendy Burden, submitted a report to the Secretary of State, recommending that the order be made, subject to certain modifications. In his decision letter, which is dated 12 September 2014, the Secretary of State accepted that recommendation. In doing so, he said he agreed with the Examining Authority that, "given the contribution it will make to the production of renewable energy", the case for approving the development was "not outweighed by the potential adverse local impacts … as mitigated by the proposed terms of the Order" (paragraph 9.1 of his decision letter).
The issues in the claim
As argued at the hearing, the claim challenges the Secretary of State's conclusion in section 5 of his decision letter that adverse effects on the integrity of any European protected site as a result of the development of the Clocaenog Forest Wind Farm could be excluded, and that consent could therefore be granted for the project without first undertaking an appropriate assessment. Mr Williams says this was a conclusion the Secretary of State could not lawfully reach. Three main issues arise: first, whether the Secretary of State ought to have regarded the "project" as including the connection to the grid; secondly, whether, under regulation 6(3) of the Habitats Regulations, he was required to undertake an "appropriate assessment" either of a larger project embracing the connection to the grid or of the project as submitted to him in combination with the grid connection; and thirdly, whether, if the court finds that he was required to undertake an appropriate assessment, it should nevertheless withhold relief in the exercise of its discretion.
Those three issues were fully ventilated at the "rolled-up" hearing. But, as I have said, the prior issue now is whether the court has jurisdiction to entertain the claim at all.
Sections 117 and 118 of the 2008 Act
Section 117 of the 2008 Act, under the heading "Orders granting development consent: formalities", provides:
"(1) This section applies in relation to an order granting development consent.
…
(3) Except in a case within subsection (4), the Secretary of State must publish the order in such manner as the Secretary of State thinks appropriate.
(4) If the order includes provision –
(a) made under section 120(3) for or relating to any of the matters listed in paragraphs 32A and 32B of Schedule 5, or
(b) made in the exercise of any of the powers conferred by section 120(5)(a) or (b), the order must be contained in a statutory instrument.
…
(6) As soon as practicable after the instrument containing the order is made, the Secretary of State must deposit in the office of the Clerk of the Parliaments a copy of –
(a) the instrument,
(b) the latest version of any plan supplied by the applicant in connection with the application for the order contained in the instrument, and
(c) the statement of reasons prepared under section 116(1).
…".
At the relevant time section 118 of the 2008 Act provided, under the heading "Legal challenges relating to applications for orders granting development consent":
"(1) A court may entertain proceedings for questioning an order granting development consent only if –
(a) the proceedings are brought by a claim for judicial review, and
(b) the claim form is filed during the period of 6 weeks beginning with –
(i) the day on which the order is published, or
(ii) if later, the day on which the statement of reasons for making the order is published.
(2) A court may entertain proceedings for questioning a refusal of development consent only if –
(a) the proceedings are brought by a claim for judicial review, and
(b) the claim form is filed during the period of 6 weeks beginning with the day on which the statement of reasons for the refusal is published.
…." (my emphasis).
Section 118 has been amended, with effect from 13 April 2015, by section 92(4) of the Criminal Justice and Courts Act 2015 ("Periods for certain legal challenges") (see article 3 of, and Schedule 1 to, the Criminal Justice and Courts Act 2015 (Commencement No.1, Saving and Transitional Provisions) Order 2015). The time limit in section 118(1) has thus been changed. The words "before the end of" have been substituted for the word "during", and the words "the day after" have been inserted after the words "beginning with". Corresponding amendments have been made to section 118(2). The 2015 Act received the Royal Assent on 12 February 2015, and the 2015 Order was made on 19 March 2015. The amendment to section 118 does not have retrospective effect, and, as all three parties here agree, it has no bearing on the issue of the court's jurisdiction in this case. I shall therefore refer throughout this judgment to section 118 as it was at the relevant time.
In April 2013 the Department for Communities and Local Government published a guidance document entitled "Planning Act 2008: Guidance for the examination of applications for development consent". This guidance was issued in revised form in March 2015. In paragraph 111 of the April 2013 guidance document this advice is given on the notification of decisions on applications for development consent orders:
"Interested parties are entitled to be notified of the decision. Any written reports of assessors will be made available from the Inspectorate's Website. The Secretary of State will also provide each interested party with a copy of the statement of reasons for his or her decision to grant or refuse development consent."
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