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Articles Environmental Law 13th Jan 2017

Case Law Update: Red Kites bring down major wind farm application

Background

Article 6(3) of the Habitats Directive (“the Directive”) provides that “any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, 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…, 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”. This Article has been transposed into national law by Regulation 61 of the Conservation of Habitats and Species Regulations 2010 (“the Conservation Regulations”).

In practice, the burden is on developers to satisfy the decision-maker that the plan or project will “not adversely affect the integrity of the site concerned”. Following the recent High Court judgment in R on the application of Mynydd y Gwent Ltd v Secretary of State for Business, Energy and Industrial Strategy [2016] EWHC 2581, it is clear that developers must provide sufficient and up-to-date data to the decision-maker in order to discharge this burden. Where such data is not available, developers must make clearly reasoned assumptions and estimates.

Facts

The Applicant developer submitted their application for a Development Consent Order for permission to construct and operate a large wind farm in central Wales. The selected site (“Site”) for the wind farm was approximately 4km away from Elenydd Mallean Special Protection Area (“SPA”). Red kite are listed as one of the SPA’s qualifying features, with the most recent survey in 2011 recording 18 pairs of kite.

The main issue which arose in the application was “the effect which the proposed development would have on the red kite population of the SPA due to the risk of collision with the turbines” (para 22). There was a paucity of data as to these risks, with the Applicant developer seeking to rely on Scottish Natural Heritage (“SNH”) guidance that the red kites’ foraging range from nest site is 4km during the breeding season. If accepted, the Site would be outside of the “maximum foraging range” of the red kites nesting within the SPA and there would be no connectivity between the Site and the SPA. The attrition rate of red kite from the SPA would accordingly be nil and the project “could not adversely affect the maintenance of the red kite population in the SPA, or thus, the integrity of the SPA“. The Applicant did not take into account further guidance contained within the same SNH report that red kites can forage up to 20km from their roosting ground outside of the breeding season.

In reliance upon the decision-makers agreeing with their assessment, the Applicant provided only limited evidence to assist in a future appropriate assessment balancing exercise. This was despite Natural Resources Wales (“NRW”) repeated advice that it was not satisfied that the data which had been provided demonstrated, beyond reasonable scientific doubt, that the red kite using the Site did not originate from the SPA. Applying the precautionary principle alongside this dearth of evidence, NRW informed the Applicant that it should be assumed that red kite at the Site did originate from the SPA.

The Planning Inspector took into account NRW’s representations, but found in favour of the Applicant on this issue and agreed that the project would not adversely affect the integrity of the SPA.The Inspector recommended that the Secretary of State grant consent for the development.

The Secretary of State (“SoS”), having received the Inspector’s report, requested further information from the Applicant and NRW, including information on the projected mortality and displacement rates of red kite should planning permission be granted. NRW confirmed that they had insufficient data to advise, and as such they could not endorse the Planning Inspector’s decision that there would be no adverse effect on the integrity of the red kite feature of the SPA. The Applicant was also unable to provide the information requested by the SoS.

The SoS subsequently issued her decision letter, dated 20 November 2015, accepting the concerns of NRW and concluding that “there is not enough information to ascertain that there will be no adverse effect on the integrity of the red kite feature of the SPA“. The SoS also concluded that she could also not discount in-combination effects, of which the Applicant had provided no data whatsoever. The failure of the Applicant to provide sufficient data was therefore fatal to his case.

Judicial Review

The Applicant sought a judicial review of the SoS’s decision to refuse planning permission by challenging her application of the “appropriate assessment” under Article 6 of the Habitats Directive.

The Applicant accepted that this was a case where an appropriate assessment was justified. However, it was contended that the Secretary of State erred in her assessment by concluding that the risks which the project posed to red kites were unacceptable “simply because [they] were uncertain” (para 49). The Applicant sought to persuade the judge that the SoS proceeded on the “worst possible hypothesis” (para 48) in light of the lack of certainty of the project’s effects on red kites. Following this line of thought, without certainty, the Applicant suggested that it is incumbent on the SoS to make assumptions on the level of risk, which in this case were argued to be very low. The SoS therefore did not engage with the evaluative process required of her and the appropriate assessment was unlawful.

Mr Justice Hickinbottom did not agree with the Applicant’s assertion that the appropriate assessment was unlawful, instead reaffirming that the burden is on the applicant to provide sufficient evidence to the decision-maker that there would be no adverse effects to a feature of a SPA. Where certainty as to risks cannot be provided, as is often the case, the judge accepted that “it may be necessary to make assumptions and estimates as to the level of particular risks” (para 67 vii). Reliance on assumptions and estimates will only be available where they are identified and reasoned, and on this point the present case is distinguished as the Applicant provided insufficient evidence and failed to offer any reasonable basis on which the SoS could make assumptions on the effects of the project on red kites.

In light of the “substantial number of important unknowns” (para 67 x) and the failure of the Applicant to provide further information to discharge their burden, the SoS’s conclusion that she could not be convinced that there would be no adverse effects was judged to be lawful. The Applicant’s application for judicial review was accordingly dismissed.

Notes for Developers

The application of the precautionary principle presents a heavy evidential burden for prospective developers. To discharge this burden, developers should provide sufficient data wherever possible. Where data is not available or not practical to collect, developers will be permitted to make assumptions and estimates. However, these will only be accepted where identified and clearly reasoned.


The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
Penny Simpson, Partner

Author: Penny Simpson

Partner

Emma Tattersdill, Partner

Author: Emma Tattersdill

Partner

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