This blog considers the lessons for the wider major infrastructure industry from a particular project, Mynydd y Gwynt’s DCO application for an onshore wind farm in Powys, west of Aberystwyth, refused in November 2015.
In Alfred Hitchcock's 1963 horror film "The Birds", a passer-by who has seen an ominous gathering of birds overhead makes a remark about the end of the world. A Mrs. Bundy says "I hardly think a few birds are going to bring about the end of the world". To this her companion Melanie replies "These weren't a few birds".
Unfortunately for Mynydd y Gwynt's application for a development consent order (DCO) for 27 onshore turbines in Powys, west of Aberystwyth, the Secretary of State for Energy and Climate Change agreed more with Melanie than Mrs. Bundy. On November 2015 she refused to make the DCO on the basis of unacceptable impacts on red kites in a nearby special protection area (SPA).
The Government's fast-track consenting process for nationally significant infrastructure under the Planning Act 2008 has now been around for seven years. This is only the second DCO to be refused of the 47 applied for (and not withdrawn or re-determined). See our blog on Navitus Bay's offshore wind farm, the other refusal.
It is hard for anyone in the infrastructure sector with experience of the work that goes into the DCO consenting process not to feel sympathy for Mynydd y Gwynt. An enormous amount of complex work on ecology and other matters is needed by submission; examinations are fast, furious and exhausting for all parties. This is the price of the "fast-track". But what can promoters and investors in UK infrastructure learn from this refusal?
The Habitats Regulations
Section 104 of the Planning Act creates a presumption in favour of a scheme compliant with the relevant National Policy Statement being consented. The support in these Statements for particular types of energy projects is a key reason for the certainty of outcome of the DCO process. However, this presumption can be rebutted if it would lead to the United Kingdom being in breach of any of its international obligations.
The Conservation of Habitats and Species Regulations 2010 (the Habitats Regulations) transpose the European Habitats and Wild Birds Directives into UK law. These 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 much lower threshold in European jurisprudence than in England and Wales, 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 (which are rarely demonstrated).
European jurisprudence has established that the full assessment which the decision-maker has to carry out must have "rigorous regard to the precautionary principle". The project can only be consented if the decision-maker is "convinced" that it will not adversely affect the integrity of the site concerned. If "doubt remains" as to the absence of adverse effects, the decision-maker must refuse consent.
So, an applicant for a DCO is obliged to provide sufficient information to the Secretary of State, so as to enable her to determine whether the requirements of the EU Directives and the domestic Habitats Regulations are satisfied. The appropriate nature conservation body gives advice to the Secretary of State as to the adequacy of the information provided by the applicant. It is then for the Secretary of State to decide whether or not she agrees with the conclusions reached by the applicant’s assessment.
Natural Resources Wales (NRW) is the Welsh statutory consultee on the environment, equivalent to Natural England. It made representations to the Mynydd y Gwynt DCO examination that it was concerned about red kites being killed in collisions with wind turbines. Red kites are a feature of a nearby special area of conservation, the Elenydd – Mallaen special protection area (SPA). This is a European site protected by the Habitats Regulations requirement for appropriate assessment described above.
Mynydd y Gwynt argued 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 as appropriate for assessing connectivity in guidance. Nevertheless, NRW required surveys for nesting sites within 10km of the site to account for the bird’s winter foraging range (though there was no requirement in the guidance to consider winter ranges).
Mynydd y Gwynt had submitted an in-combination assessment of the proposed development with other wind farms within 10km of the SPA. Nevertheless, NRW considered it inadequate. NRW required it to assess the number of red kites which could be potentially killed by all the wind farms in that radius. However, Mynydd y Gwynt did not accept that there was any connection between its proposed wind farm and the SPA, and other wind farms were even further away. NRW also considered that there was no certainty that the proposed mitigation of making turbines less attractive to the birds would be effective.
Overall, the Examining Authority (the ExA) agreed with Mynydd y Gwynt that its assessments were adequate. The ExA reported its view that there would be no adverse effect on the integrity of the SPA for the purposes of the Habitats Regulations. It noted that this was just a view as the Secretary of State is the authority who needs to make the ultimate call. The ExA recommended that the scheme be approved.
The Secretary of State's decision
The Secretary of State carried out an appropriate assessment under the Habitats Regulations because her initial assessment was that the low threshold for doing so was met:
- She accepted NRW's advice that doubt remained as to whether the red kites on site came from the SPA.
- She agreed with NRW that a study of the effect of the project and other wind farms on the SPA’s red kites was needed.
- Like NRW she was sceptical about the proposed mitigation, as there were no calculations about how many red kites this would save.
- She agreed with NRW's concerns about the age and methodology of Mynydd y Gwynt’s surveys.
Overall, she did not consider that she had the information needed to decide whether there would be an adverse effect on the integrity of the SPA under the Habitats Regulations. This was fatal and led to the DCO being refused.
Wider points of note
Reaching agreement with NRW or Natural England
It is well established in case law on the Habitats Regulations that the views of the appropriate nature conservation body on issues relating to nature conservation deserve "great weight". The decision-maker is not bound to agree with those views. However, for a lawful decision it would then need a "cogent explanation" as to why not.
This is why the Secretary of State can often be very hesitant to depart from the advice given by bodies like NRW or Natural England. This seems very much to have been the case here, where even the ExA had agreed with the applicant’s approach rather than the one advised by NRW.
There is little time to carry out surveys and agree statements of common ground during the fast-paced six month examination period for DCOs. This means that promoters are well advised to make every effort to agree Habitats Regulations issues with Natural England or NRW before their DCO application is submitted. To proceed otherwise carries great risk. It also means that there might be a difficult call to be made where Natural England or NRW continue to disagree with an approach which the promoters’ ecological consultants firmly hold to be robust.
Post examination questions
Following the examination, the Secretary of State wrote to interested parties asking whether there was any additional information which could be used to inform an appropriate assessment into the mortality rates for red kite from the SPA caused by each of the proposed windfarms within 10km of the SPA. Mynydd y Gwynt responded that it retained the position it had held during the examination.
These kinds of post-examination letters from the Secretary of State are increasingly common. The trend is that they highlight matters of residual concern which may well lead to a refusal if the responses are not considered adequate. Promoters are well advised to treat these with great care and take appropriate steps to address issues where they are able to do so.
No rubber stamp
45 of 47 DCO applications which have been made but not withdrawn have been approved. So the Planning Act 2008 is still clearly delivering nationally significant infrastructure consents with a high degree of certainty of outcome.
However, Mynydd y Gwynt is another example of how the process is no rubber stamp. Habitats Regulations issues are not straightforward and require particular care.