R (ota Mynnyd Y Gwynt Ltd) v Secretary of State for Business Energy and Industrial Strategy
| Jurisdiction | England & Wales |
| Judge | Lord Justice Floyd,Lord Justice Peter Jackson,Lord Justice Lewison |
| Judgment Date | 22 February 2018 |
| Neutral Citation | [2018] EWCA Civ 231 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2016/4317 |
| Date | 22 February 2018 |
[2018] EWCA Civ 231
Lord Justice Lewison
Lord Justice Floyd
and
Lord Justice Peter Jackson
Case No: C1/2016/4317
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PLANNING COURT SITTING AT CARDIFF
(Hickinbottom J)
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Kimblin QC (instructed by Aaron & Partners LLP) for the Appellant
Richard Moules (instructed by the Government Legal Department) for the Respondent
Hearing dates: 13–14 February 2018
Introduction
This appeal arises from a challenge to the refusal of planning consent for the construction of an onshore wind farm. The Secretary of State refused consent 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 issue on this appeal is whether that was a valid decision.
On 30 July 2014, the Appellant company applied for permission to build and operate a 27-turbine wind farm on a site in Mid-Wales. As a generating station of this size, 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 2008 Act”). On 20 November 2015, the Secretary of State refused to grant a DCO. The Appellant challenged that decision by way of judicial review under section 118, and the case was heard by Hickinbottom J (as he then was), sitting in the Planning Court at Cardiff on 19 October 2016. By his decision, which is to be found at [2016] EWHC 2581, he dismissed the application. It is against that decision that the Appellant now appeals.
The proposed development site adjoins the Elenydd Mallaen Special Protection Area (“the SPA”), which covers most of the Cambrian Mountains. SPAs, also known as “European Sites”, are areas that are strictly protected under the Habitats Directive, both in relation to development within them and development in neighbouring areas. One of the conservation objectives of this SPA was to support at least 15 pairs of breeding red kite, or 0.5% of the British population. The main issues facing the Secretary of State on this aspect of the application 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.
The law
The decision of the Secretary of State was subject to Article 6 of EC Council Directive 92/43/EEC on the conservation of natural habitats and wild fauna and flora (“the Habitats Directive”), which was at the relevant time transposed into domestic law by the Conservation of Habitats and Species Regulations 2010 (SI 2010 No 490) (“the 2010 Regulations”) 1. The regulations applied to this project because the development site adjoins the SPA.
Article 6(3) of the Habitats Directive is reflected in regulation 61 of the 2010 Regulations, which provides:
Assessment of implications for European sites and European offshore marine sites
61.—(1) A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which—
(a) is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects), and
(b) is not directly connected with or necessary to the management of that site,
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 may 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 that body within such reasonable time as the authority specify.
(4) They must also, if they consider it appropriate, take the opinion of the general public, and if they do so, they must take such steps for that purpose as they consider appropriate.
(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 plan or project only after having ascertained that it will not adversely affect the integrity of the European site or the European offshore marine site (as the case may be).
(6) In considering whether a plan or 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, permission or other authorisation should be given.
(7) …
(8) …
The Secretary of State was therefore obliged by subsection (1) to make “an appropriate assessment” of the implications for the site's conservation objectives of any project that was “likely to have a significant effect” on the neighbouring SPA. The Appellant was obliged by subsection (2) to provide such “information” as the Secretary of State reasonably required. The Secretary of State was obliged by subsection (3) to consult the appropriate nature conservation body (in this case Natural Resources Wales, or “NRW”) and to have regard to any representations from them. By subsection (5), consent could only be given, absent overriding public interest considerations, if the Secretary of State ascertained that the project would not adversely affect the integrity of the SPA's conservation objectives.
The decision-making framework is not prescribed by the Habitats Directive, but is contained in the 2008 Act, and was described by the judge in this way:
“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.”
The proper approach to the Habitats Directive has been considered in a number of cases at European and domestic level, which establish the following propositions:
(1) The environmental protection mechanism in Article 6(3) is triggered where the plan or project is likely to have a significant effect on the site's conservation objectives: Landelijke: Vereniging tot Behoud van de Waddenzee v Staatsscretaris van Lanbouw (Case C-127/02) [2005] All ER (EC) 353 at [42] (“ Waddenzee”).
(2) In the light of the precautionary principle, a project is “likely to have a significant effect” so as to require an appropriate assessment if the risk cannot be excluded on the basis of objective information: Waddenzee at [44].
(3) As to the appropriate assessment, “appropriate” indicates no more than that the assessment should be appropriate to the task in hand, that task being to satisfy the responsible authority that the project will not adversely affect the integrity of the site concerned. It requires a high standard of investigation, but the issue ultimately rests on the judgement of the authority: R (Champion) v North Norfolk District Council [2015] UKSC 52; [2015] 1 WLR 3710, Lord Carnwath at [41] (“ Champion”).
(4) The question for the authority carrying out the assessment is: “What will happen to the site if this plan or project goes ahead; and is that consistent with maintaining or restoring the favourable conservation status of the habitat or species concerned?”: Sweetman v An Bord Pleanàla (Case C-258/11); [2014] PTSR 1092, Advocate General at [50].
(5) Following assessment, the project in question may only be approved if the authority is convinced that it will not adversely affect the integrity of the site concerned. Where doubt remains, authorisation will have to be refused: Waddenzee at [56–57].
(6) Absolute certainty is not required. If no certainty can be established, having exhausted all scientific means and sources it will be necessary to work with probabilities and estimates, which must be identified and reasoned: Waddenzee, Advocate General at [107] and [97], endorsed in Champion at [41] and by Sales LJ in Smyth v Secretary of State for Communities and Local Government [2015] EWCA Civ 174 at [78] (“ Smyth”).
(7) The decision-maker must consider secured mitigation and evidence about its effectiveness: Commission v Germany (Case C-142/16) at [38].
(8) It would require some cogent explanation if the decision-maker had chosen not to give considerable weight to the views of the appropriate nature conservation body: R (Hart District Council) v Secretary of State for Communities and Local Government [2008] EWHC 1204 (Admin) at [49].
(9) The relevant standard of review by the court is the Wednesbury rationality standard, and not a more intensive standard of review: Smyth at [80].
Drawing matters together, the task of the decision-maker is first to consider whether the risk of the project having a significant effect on the site's conservation objectives can be excluded. If it cannot, an assessment must be undertaken to ascertain the impact of the project and identify whether it is consistent with maintaining the site's...
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