Laying down the law: A failure to heed conservation bodies can derail major projects

Sheridan Treger and Paul Grace on lessons to be learned from the refusal of an application for a wind farm because of its unacceptable impact on a nearby special protection area

In Alfred Hitchcock’s 1963 film The Birds a passer-by who has seen an ominous gathering overhead of gulls remarks that it is the end of the world. ‘I hardly think a few birds are going to bring about the end of the world,’ replies Mrs Bundy. To this her companion Melanie says: ‘These weren’t a few birds.’

Unfortunately for Mynydd y Gwynt’s application (see below) for a development consent order (DCO) for 27 onshore turbines in Powys, Amber Rudd, the secretary of state for energy and climate change agreed more with Melanie than Mrs Bundy. In November, Rudd refused to make the DCO on the basis of unacceptable impacts on red kites in a nearby special protection area (SPA).

Putting question marks over political support for onshore wind farms to one side, if we take the decision at face value then issues around the Conservation of Habitats and Species Regulations 2010 (Habitat Regulations) gave the secretary of state little option but to refuse consent because she did not feel there was a sound legal footing to proceed.

What went wrong?

Nationally significant infrastructure projects (NSIP) are set up to give the promoters of major applications certainty of timescale and process, and to take local politics out of the planning process. What the Mynydd y Gwynt decision proves is that the process is by no means a rubber stamp.

It is hard for anyone with experience of all the work and expertise that go into the DCO consenting process not to feel sympathy for Mynydd y Gwynt. But what exactly went wrong?

Early in the planning process, Natural Resources Wales (NRW) said it was concerned about red kites being harmed in collisions with wind turbines. Mynydd y Gwynt argued that the kites found on the proposed project site were not from the SPA, but NRW said surveys had not gone far enough to account for the birds’ winter foraging range. The examining authority agreed with Mynydd y Gwynt and concluded that its assessments were adequate, but Rudd ultimately shared the concerns expressed by NRW. This proved fatal and led to the DCO being refused.

Decision-makers are mindful that the advice of a nature conservation body deserves ‘great weight’ because of its special expertise, with a ‘cogent explanation’ required if it is ignored. This has been established by case law on the habitat regulations, and, as a result, the secretary of state can often be hesitant to depart from the advice of NRW or Natural England. Even when the examining authority agrees with an applicant’s approach rather than the one advised by the conservation body, as in this case, the secretary of state is often still minded to follow the latter’s guidance.

Learning the lessons

So what can promoters and investors in UK infrastructure learn from the refusal of Mynydd y Gwynt’s application? Many proposals entering the DCO process benefit from a statutory presumption in their favour if they comply with the government’s national policy statements. However, this could be overcome if it led to the UK breaching any of its international obligations. In this instance, the European habitats and wild birds directives were transposed into UK law through the habitats regulations. These set a low threshold for a full assessment being carried out to ascertain whether a project will adversely affect the integrity of a European site. If it will, the project cannot be authorised unless it is justified by an overriding public interest, which is a test that requires a much higher threshold.

The upshot is that the promoter of a scheme has to provide enough information to enable the secretary of state to determine whether both the requirements of UK law under the regulations and the EU directives are satisfied. It is the role of the nature conservation body to give advice to the secretary on whether the information put forward is adequate to make a decision. The importance the secretary places on that advice leaves environmental specialists having to make every effort to agree the most significant issues on habitats regulations with NRW or Natural England before a DCO application is submitted. If they carry on regardless, right or wrong, they will be taking a great risk.

The fixed timescales of the DCO examination process do not easily allow for any major additional ecological assessment work. Trying to persuade a court to overturn the secretary of state’s decision, as Mynydd y Gwynt is currently doing by way of legal challenge, is the last port of call. To date, only one legal challenge against a government DCO decision has succeeded (Halite Energy Group v Secretary of State for Energy and Climate Change).

Mynydd y Gwynt project

Mynydd y Gwynt Limited applied in July 2014 for permission to build and operate a 89.1MW wind farm in Powys, on the county’s western border. The project would have comprised 27 turbines. Examination of the application started on 20 November 2014 and was completed on 20 May 2015. The examining authority recommended consent. But on 20 November, energy and climate change secretary Amber Rudd rejected this.