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

10th March 2016

Related Topics

Related tags

  • Business & Industry ,
  • Built environment ,
  • Planning ,
  • Natural resources ,
  • Biodiversity


Leilani Weier

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.


Subscribe to IEMA's newsletters to receive timely articles, expert opinions, event announcements, and much more, directly in your inbox.

Transform articles

IEMA reviews political party manifestos

Ahead of the UK general election next month, IEMA has analysed the Labour, Conservative, Liberal Democrat, and Green Party manifestos in relation to the sustainability agenda.

19th June 2024

Read more

Sarah Spencer on the clear case for stronger partnerships between farmers and renewable energy developers

6th June 2024

Read more

A system-level review is needed to deliver a large-scale programme of retrofit for existing buildings. Failure to do so will risk missing net-zero targets, argues Amanda Williams

31st May 2024

Read more

Chris Seekings reports from a webinar helping sustainability professionals to use standards effectively

31st May 2024

Read more

Although many organisations focus on scope 1 and 2 emissions, it is vital to factor in scope 3 emissions and use their footprint to drive business change

31st May 2024

Read more

Joe Nisbet explores the challenges and opportunities of delivering marine net gain through offshore renewables

31st May 2024

Read more

IEMA submits response to the Future Homes Standard consultation

31st May 2024

Read more

Hello and welcome to the June/July of Transform.

31st May 2024

Read more

Media enquires

Looking for an expert to speak at an event or comment on an item in the news?

Find an expert

IEMA Cookie Notice

Clicking the ‘Accept all’ button means you are accepting analytics and third-party cookies. Our website uses necessary cookies which are required in order to make our website work. In addition to these, we use analytics and third-party cookies to optimise site functionality and give you the best possible experience. To control which cookies are set, click ‘Settings’. To learn more about cookies, how we use them on our website and how to change your cookie settings please view our cookie policy.

Manage cookie settings

Our use of cookies

You can learn more detailed information in our cookie policy.

Some cookies are essential, but non-essential cookies help us to improve the experience on our site by providing insights into how the site is being used. To maintain privacy management, this relies on cookie identifiers. Resetting or deleting your browser cookies will reset these preferences.

Essential cookies

These are cookies that are required for the operation of our website. They include, for example, cookies that enable you to log into secure areas of our website.

Analytics cookies

These cookies allow us to recognise and count the number of visitors to our website and to see how visitors move around our website when they are using it. This helps us to improve the way our website works.

Advertising cookies

These cookies allow us to tailor advertising to you based on your interests. If you do not accept these cookies, you will still see adverts, but these will be more generic.

Save and close