Mynydd y Gwynt : the next chapter?

Earlier this year we blogged about the November 2015 refusal by the Secretary of State for Energy and Climate Change of Mynydd y Gwynt’s application for a development consent order (DCO). 27 onshore turbines in Powys, west of Aberystwyth were turned down. Overall, she did not consider that she had the information to decide whether there would be an adverse effect on the integrity of a nearby special protection area (SPA) under the Habitats Regulations[1] .

Mynnyd y Gwynt applied to challenge the refusal by way of judicial review, just before Christmas 2015.

Refusals : rare but informative

The Government’s fast-track consenting process for nationally significant infrastructure, under the Planning Act 2008, has now been around for almost eight years. Mynydd y Gwynt’s is still only the second DCO to be refused of the 50 applied for (and not withdrawn or re-determined). So, overall, the DCO regime is delivering a high rate of success for DCO promoters. And that is precisely why they watch refusals with such interest, eager to learn about what is capable of derailing even a DCO application, how they can avoid the same pitfalls and whether it is possible to get a project back on track after such a blow.

Issues surrounding Habitats Regulations are hardly uncommon for nationally significant infrastructure applications. They have also brought many a Town and Country Planning scheme to a halt either during determination or in the Courts. This makes what is happening with Mynydd y Gwynt’s judicial review something from which others can learn.

As the Secretary of State has filed an acknowledgment of service to Mynydd y Gwynt’s claim, the arguments before the Court are publicly available and we consider them in this blog.

Previously on Mynydd y Gwynt

Our earlier blog offers a more in depth analysis of the November 2015 refusal. But it can be summarised as follows:

  • The Habitats Regulations require a decision-maker to consider the effects of proposed projects on protected European sites. If the result of the initial assessment is that a project is ‘likely’ to have significant effects on a European site, a full assessment of those effects must be carried out. If that full assessment demonstrates that the project will adversely affect the integrity of a European site, then the project cannot be authorised unless it is justified by “imperative reasons of overriding public interest”. This is not simply a planning judgement, weighing up the disbenefits of the project caused to the European site against the project’s national benefits. If there are adverse effects on the integrity of the European site, without any “imperative reasons”, a very high threshold, the application must be refused, plain and simple.
  • Natural Resources Wales (NRW), the Welsh statutory consultee on nature conservation matters, equivalent to Natural England, is concerned about red kites being killed in collisions with wind turbines. Red kites are a feature of a nearby European site, the Elenydd – Mallaen SPA. Mynydd y Gwynt did not accept that there was any connection between its proposed wind farm and the SPA, arguing that the red kites found on the proposed project site were not from the SPA. It had found no red kite nesting sites within 6km of the site, a maximum range recommended in guidance. Nevertheless, NRW required surveys for nesting sites within 10km of the site, to account for the bird’s winter foraging range, and an assessment of the number of red kites which could potentially be killed by all the wind farms within that radius, i.e. the project’s “in-combination” effects.
  • The Examiner accepted Mynydd y Gwynt’s position, and was satisfied that no further surveys were needed. However, the Secretary of State can be very hesitant to depart from the advice given by bodies like NRW or Natural England, being required by case law to give the nature conservation bodies’ views “great weight”, with a “cogent explanation” for any departures[2] . This means that there was little motivation for the Secretary of State to depart from NRW’s views, absent significant political will (which is not something in abundance for onshore wind these days).
  • Clearly mindful of the issue, the Secretary of State asked for information following the Examination to inform an appropriate assessment into the mortality rates for red kites from the SPA caused by each of the proposed windfarms within 10km of the SPA. Mynydd y Gwynt retained its position. The Secretary of State sided with NRW on all key points, concluding that she did not have sufficient information to decide whether the wind farm would adversely affect the integrity of the SPA. She therefore refused the application, against her Examiner’s recommendation.

The grounds of challenge

As is common in judicial review, Mynydd y Gwynt’s seven grounds of challenge overlap, each having at its core a facet of the Secretary of State’s view that she did not have sufficient information to form a view on the adverse effects on the integrity of the SPA. This is where it gets complicated[3] :

  • The threshold for whether an appropriate assessment must be carried out in the first place, i.e. whether the Secretary of State has to bother checking whether there will be effects of a project on a European site at all, is very low. Unless a likely significant effect can be categorically ruled out on the basis of objective information, then an appropriate assessment must be carried out.
  • The threshold for the appropriate assessment is higher (although not that much higher). Here, the question is what will happen to the European site, and the species and habitats there, if the project goes ahead. The decision-maker has to be convinced that it will not adversely affect the integrity of the site concerned. If any doubt remains, the project must be refused (unless there are imperative reasons of overriding public interest).
  • For both stages “the best scientific knowledge in the field” must be used.

Mynydd y Gwynt appears to be arguing that just because red kites on the proposed wind farm site might come from the SPA does not mean that there will actually be an effect on the SPA, as they argue that not many red kites actually nest there. So, it is pleaded, the Secretary of State was wrong to apply the “beyond reasonable scientific doubt” test just to the preliminary question of where the red kites came from, as this question has little to do with whether she needed to bother checking for effects on the SPA and nothing to do with how the red kites in the SPA would actually be affected.

The Secretary of State dismisses this by arguing that at the heart of the issue is the fact that she had no choice but to assume that the red kites on the project site came from the SPA. Mynydd y Gwynt had not proven that they did not, she was following the specialist advice of the relevant nature conservation body and case law establishes that the burden of proof is on the developer. Once there was lack of clarity on where the birds were coming from, there had to be an appropriate assessment. Failure to establish the source of the red kites then tainted Mynydd y Gwynt’s modelling of likely bird deaths at the wind farm site, so there could be no meaningful appropriate assessment of the adverse effects on the integrity of the SPA.

JR : never an end-game in itself

Mynydd y Gwynt is not in an easy position on this. Judicial review is a supervisory process whereby the Court reviews the process of a public body’s decision, not the merits of the decision.

There is only one precedent for a promoter successfully quashing a DCO decision. In January 2014, the Court overturned DECC’s refusal of Halite Energy Group’s proposed underground gas storage facility in Preesall, Lancashire. Critically, the Court ruled that there had been a number of errors of law in the decision.  There had been a “distinct lack of fairness” in terms of how the Examination had approached a particular technical issue.  The unfairness had led to a policy being misinterpreted and the reasoning of the decision letter being so deficient on the issue that it had been irrational.

So the Mynydd y Gwynt case is, perhaps, not as straightforward as Halite’s in judicial review terms, being based more on irrationality than unfairness of process. Case law is clear that exactly how an appropriate assessment is carried out ultimately rests on the judgement of the decision-maker[4] . Mynydd y Gwynt’s claim might therefore go nowhere if the Court sees this as a disagreement with the Secretary of State’s judgement, reached with the specialist advice of the relevant conservation body, on the merits of what should be the appropriate survey area to reflect a particular species’ foraging range, and therefore how robust bird fatality modelling is.

Mynydd y Gwynt’s application for judicial review has already been refused “on the papers”. The case has been transferred to Wales for an oral permission hearing, to see whether it can proceed to a full hearing. Mynydd y Gwynt can take heart that it is not uncommon for even ultimately successful judicial reviews to be refused at that initial sifting stage by the courts. Nonetheless, even if the case proceeds to a full hearing, this is just the start of a long and uncertain journey.

A long and winding road

Quashing the decision, itself no mean feat, will simply mean that the matter is remitted back to the Secretary of State to determine again albeit without the error of law identified by the Courts.

Mynydd y Gwynt needs a Court ruling that does not leave room for the Secretary of State to conclude that the wind farm will adversely affect the integrity of the SPA again. The intricate and involved debate about the foraging and nesting habits of a particular bird species mean this will not be straightforward.  And redetermination has no statutory timescales.

Right or wrong

It is widely understood that every effort should be made to agree the most significant issues on Habitats Regulations with NRW or Natural England before a DCO application is submitted. If promoters carry on regardless, whether or not they were once right or wrong on the merits, they are very likely to find themselves caught up later down the line in very uncertain territory.

A moving feast

The nuance here is that Mynydd y Gwynt explains that the position with NRW had been agreed before its DCO was submitted, i.e. that there was no connectivity between its wind farm proposals and the SPA. However, during the Examination, Mynydd y Gwynt contends, NRW kept “moving the goal posts” on what surveys it required to conclude that the matter was beyond doubt. It was only shortly before close of the Examination that NRW requested surveys on a wider 10km foraging range, to account for the non-breeding season, without which NRW felt that connectivity could not be excluded and would have to, therefore, then advise that there might be an adverse impact on the SPA.

Of course, by that time, it would have been too late for Mynydd y Gwynt to carry out the surveys during the Examination. What could have been done in such intractable circumstances?

Extensions

Mynydd y Gwynt could have asked for an extension to the Examination. But this probably would have been refused, given that all the Examinations of the fifty DCOs determined have adhered to the six month default timetable.

The tendency has instead been for the Secretary of State to allow an opportunity following Examinations for applicants to resolve outstanding issues before a decision is made, and extensions where requested have been granted at that stage. Here, the Secretary of State did specifically ask the parties if they wished to make further representations on Habitats Regulations issues. It was open to Mynydd y Gwynt at that point to agree to carry out the further surveys and request an extension to do so. And yet that in itself would have carried a risk of significant delay, given the limited annual windows for the relevant surveys, or even of refusal absent political will on the part of the Secretary of State.

All of this occurred in the context that Mynydd y Gwynt was convinced of its case. This was perhaps not unreasonable in light of the subsequent support for its view from an independent party, the Examiner himself, who ultimately concluded in his recommendation to the Secretary of State that there was reasonable certainty that there was no connectivity based on those surveys which had been carried out and the best practice guidance available on the adequacy of those surveys.

Other DCO promoters will have sympathy for Mynydd y Gwynt as its tortuous process continues. Nobody has a crystal ball during an Examination, surrounded as they are by dozens of issues to resolve. In the final analysis, Mynydd y Gwynt’s trials and tribulations illustrate how in the fast-track DCO process issues surrounding the Habitats Regulations carry particular risk, perhaps even allowing some scope for politics, and can leave limited room to manoeuvre.