Cardiff Civil Justice Centre
2 Park Street
Cardiff
CF10 1ET
Before :
MR JUSTICE HICKINBOTTOM
Between :
THE QUEEN on the application of MYNYDD Y GWYNT LIMITED | Claimant |
- and - | |
THE SECRETARY OF STATE FOR BUSINESS, ENERGY AND INDUSTRIAL STRATEGY | Defendant |
Richard Kimblin QC (instructed by Aaron & Partners LLP) for theClaimant
Richard Moules (instructed by the Government Legal Department) for theDefendant
Hearing date: 11 October 2016
Judgment
Mr Justice Hickinbottom :
Introduction
On 30 July 2014, the Claimant applied under section 37 of the Planning Act 2008 (“the 2008 Act”) for a Development Consent Order (“DCO”) for the construction and operation of a wind farm comprising up to 27 turbines with a maximum blade tip height of 125m and associated works, to be known as Mynydd y Gwynt Wind Farm, at a site known as the Sweet Lamb Rally Complex which is immediately to the north of the A44 Aberystwyth-Llangurig road, 9.5km east of Ponterwyd (“the Application Site”). The proposal amounted to a Nationally Significant Infrastructure Project (“NSIP”) within the meaning of sections 14(1)(a) and 15(2) of the 2008 Act.
On 27 October 2014, a single planning inspector Philip Asquith (“the ExA”) was appointed by the Secretary of State for Energy and Climate Change to be the Examining Authority for the purposes of the application. On 20 August 2015, he recommended that the Order be made in the form attached to his report. However, on 20 November 2015, the Secretary of State refused the application; and, in these proceedings, the Claimant challenges that decision. By section 118 of the 2008 Act, that challenge is by way of judicial review. Following refusal on the papers by Lang J, I granted permission to proceed at an oral hearing on 9 June 2016.
From July 2016, the functions of the Secretary of State for Energy and Climate Change were transferred to the Defendant. For the purposes of this claim, it is unnecessary to distinguish between them, and I shall refer to both as simply “the Secretary of State”.
At the hearing, Richard Kimblin QC appeared for the Claimant, and Richard Moules of Counsel for the Secretary of State; and I thank each for his helpful contribution.
The Factual Background
With a view to increasing renewable energy in a sustainable way, in July 2005 the Welsh Assembly Government issued Technical Advice Note TAN 8: Planning for Renewable Energy, which established seven Strategic Search Areas (“SSAs”) in Wales. These were areas identified as being potentially suitable for large scale wind farm development, from which it was estimated that the national target of 800MW of installed onshore capacity could be met. Four SSAs were identified in mid-Wales, namely SSA A Clocaenog Forest, SSA B Carno North, SSA C Newtown South and SSA D Nant y Moch.
A number of wind farm projects were proposed for these SSAs, involving a variety of developers. Each required some form of development consent, which was, depending on size and timing, subject to one of three statutory schemes. Proposed schemes of over 50MW required the consent of the Secretary of State under the Electricity Act 1989; or a DCO under the 2008 Act which, from 2009, was also the responsibility of the Secretary of State. Smaller schemes were subject to the general planning scheme of the Town and Country Planning Act 1990; and, under that, required planning permission from the local planning authority. Under each scheme, Natural Resources Wales (“NRW”) was a statutory consultee.
Part 6 of the 2008 Act imposes a rigid procedure on the decision-making process for DCOs, including pre-application consultation and examination subject to a strict timetable lasting no longer than six months, with representations being mainly in written form at successive “deadline” dates, with few and short issue specific hearings. From 2009, the examiner appointed in any case has been drawn from the Planning Inspectorate. He makes a recommendation to the Secretary of State, who then takes the final decision on whether a DCO should be made.
In mid-Wales, in addition to the proposed project at the Application Site, there was one other relevant NSIP, namely Clocaenog. Consent was sought under the Electricity Act 1989 for several wind farm projects, including five across SSAs B and C, together with a sixth project for an overhead line grid connection. The smaller, sub-50MW projects included Bryn Blaen, for which planning permission was sought from Powys County Council as the local planning authority.
The Application Site lies to the North West of the Elenydd Mallean Special Protection Area (“the SPA”), a large upland area of heath, blanket mire and dry grasslands. Comprising over 30,000ha, the SPA covers the major part of the Cambrian Mountains. None of the SPA is within 4km of the nearest turbine. With a 2km buffer, 1% of the SPA is within 4km of the nearest turbine, and 3.5% within 6km.
The conservation objectives of the SPA are set out in the Countryside Council for Wales’ Core Management Plan (April 2008), which, in paragraph 1 (“Vision for the Sites”), includes within the “general vision”:
“For each species of particular interest, the population dynamics data on the species indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats…”
This is taken directly from the definition of “favourable conservation status” in article 1 of EC Council Directive 92/43/EEC on the conservation of natural habitats and wild fauna and flora (“the Habitats Directive”) (see paragraph 14 below).
The SPA’s qualifying species include the red kite (Milvus milvus) as “Feature 8”. The conservation objectives specific for red kite in the Core Management Plan, at paragraph 4.8, include in “Vision”, as “Objective 1”:
“The SPA area will continue to support at least 15 pairs of breeding red kites, or 0.5% of the British population”;
and, with regard to “Specified Limits”, as a “Performance Indicator”, it is said:
“Upper limit: None.
Lower limit: At least 15 pairs of kites nest regularly within the SPA, or within 2km of the boundary.”
The Core Management Plan makes clear that such indicators are merely part of the objective, and projects “must be based on the entire conservation objective, not just the performance indicators”.
The Law
It is uncontroversial that, by virtue of the Application Site’s juxtaposition with the SPA, the protection regime of the Habitats Directive, as transposed by the Conservation of Habitats and Species Regulations 2010 (SI 2010 No 490) (“the 2010 Regulations”), applies to this proposed project.
“Special Protection Areas” (“European Sites”) are designated areas which, by reference to habitat or species features, are strictly protected under the Habitats Directive.
A key concept in the Directive is “maintenance… at a favourable conservation status” (see, e.g., article 8(2)). For a protected species, article 1(i)(b) defines “favourable conservation status” to be when (amongst other things):
“… population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats.”
Article 6(3) of the Directive provides:
“Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually 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 of the site…, 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…”.
“The site” in this context is, of course, a reference to any European Site. Whilst the article refers to plans and projects, we are dealing here with a project; and, unless the context requires otherwise, I shall not refer further to plans.
Regulation 61 of the 2010 Regulations (which effectively transposes article 6(3)), so far as relevant to this claim, provides:
“(1) A competent authority before deciding to undertake, or give consent, permission or other authorisation for, a… project which… is likely to have a significant effect on a European [S]ite… (either alone or in combination with other plans or projects)… must make an appropriate assessment of the implications for that site in view of that site’s conservation objectives.
(2) A person applying for any such consent, permission or other authorisation must provide such information as the competent authority reasonably require for the purposes of the assessment or to enable them to determine whether an appropriate assessment is required.
(3) The competent authority must for the purposes of the assessment consult the appropriate nature conservation body and have regard to any representations made by the body….
…
(5) In the light of the conclusions of the assessment, and subject to regulation 62 (considerations of overriding public interest), the competent authority may agree to the… project only after having ascertained that it will not adversely affect the integrity of the European [S]ite…
(6) In considering whether a… project will adversely affect the integrity of the site, the authority must have regard to the manner in which it is proposed to be carried out or to any conditions or restrictions subject to which they propose that the consent… should be given.”
Therefore, by virtue of regulation 61(5), the competent authority is proscribed from consenting to the project proceeding unless it will not adversely affect the integrity of the European Site.
Regulation 61(2) is directly reflected in paragraph 4.3.1 of the Secretary of State’s Overarching National Policy Statement for Energy (EN-1) (July 2011) (“EN-1”), which applied to this process. This policy underscores the fact that the burden of proof effectively lies upon an applicant, in the sense that the default position is negative. The Secretary of State cannot conclude that the project will not adversely affect the integrity of the relevant European Site without sufficient information; and, although information may come from a variety of sources, it is up to the applicant to make sure that there is sufficient evidence put forward to persuade the Secretary of State that the project will not have that adverse effect. Paragraph 4.3.1 provides:
“… [T]he applicant should… provide the (Secretary of State] with such information as [he or she] may reasonably require to determine whether an Appropriate Assessment is required. In the event that an Appropriate Assessment is required, the applicant must provide the [Secretary of State] with such information as may reasonably be required to enable [he or she] to conduct the appropriate assessment. This should include information on any mitigation measures that are proposed to minimise or avoid likely effects.”
Regulation 62 – reflecting article 6(4) of the Directive – provides that, notwithstanding a negative assessment of the implications for the European Site, the competent authority may agree to the project where it is satisfied that the project must be carried out for imperative reasons of public interest and there are no alternative solutions.
These provisions have been considered in a number of authorities to which I have been referred, notably Landelijke Vereniging tot Behoud van de Waddenzee v Staatsscretaris van Lanbouw (Case C-127/02) [2005] All ER (EC) 353 (a case concerning a proposal for mechanical cockle fishing in the Waddenzee European Site), R (Hart District Council) v Secretary of State for Communities and Local Government [2008] EWHC 1204 (Admin), [2008] 2 P&CR 16, R (Akester) v Secretary of State for the Environment, Food and Rural Affairs [2010] EWHC 232 (Admin), [2010] Env LR 33, R (Boggis) v Waveney District Council [2010] EWCA Civ 1061, Sweetman v An Bord Pleanàla (Case C-258/11); [2014] PTSR 1092, R (Smyth) v Secretary of State for Communities and Local Government [2015] EWCA Civ 174; [2015] PTSR 1417, R (Champion) v North Norfolk District Council [2015] UKSC 52; [2015] 1 WLR 3710, Bloor Homes East Midlands Limited v Secretary of State for Communities and Local Government [2015] EWHC 754 (Admin), and DLA Delivery Limited v Lewes District Council [2015] EWHC 2311.
For the purposes of the application before me, I need not quote from these authorities at any length. It is sufficient to set out the following propositions derived from them.
Exactly how the article 6(3) obligations are satisfied in a particular case is a matter for the competent authority.
Article 6(3) does not provide for or require any formal screening (Champion at [37] and following); but most decision-makers understandably adopt a two stage process. First, the competent authority considers whether the project “is likely to have a significant effect on a European [S]ite…”, because, unless it does, an “appropriate assessment” is not required. If the authority considers that the project is likely to have that effect, then it moves to the second stage; and carries out the appropriate assessment itself.
In respect of the first stage, as Advocate General Sharpston pithily put it in her opinion in Sweetman (at [50]), the question to be addressed by the competent authority is “Should we bother to check?”. To add some flesh to that, the precautionary approach applies; and “likely” to have a significant effect is a reference to “likely” in a European sense, i.e. not a level of chance exceeding the balance of probabilities, but merely a real risk (see, e.g., Hart District Council at [78]). The burden of proof effectively lies on the applicant, as I have explained. Therefore, where there is any real doubt as to the absence of significant effects of the proposed project on a protected area, then the competent authority must proceed to make an appropriate assessment. Thus, a competent authority will be required to perform an appropriate assessment unless there is no credible evidence of a real (rather than hypothetical) risk that the project will cause a significant effect to a European Site (see Boggis at [37], and Bateman at [17]).
In respect of the second stage – the appropriate assessment itself – the competent authority can only grant consent for a project if, applying the precautionary principle, it is “convinced” that the project will not adversely affect the integrity of the protected site concerned (Waddenzee at [48] and [56]-[59]). A project not directly connected to the management of a European Site (such as this) will adversely affect its integrity if, applying the precautionary principle, it is liable to prevent (i.e. it poses a real risk to) the lasting preservation of the constitutive characteristics of the European Site that are connected to the presence of a priority natural habitat whose conservation was the objective justifying the designation of the European Site in accordance with the Habitats Directive. Thus, as was said by the Grand Chamber in Waddenzee (at [59]):
“… [T]he competent national authorities, taking account of the conclusions of the appropriate assessment of the implications of mechanical cockle fishing for the site concerned, in the light of the site’s conservation objectives, are to authorise such activity only if they have made certain that it will not adversely affect the integrity of the site. That is the case where no reasonable scientific doubt remains as to the absence of such effects…”. (see also the opinion of Advocate General Sharpston in Sweetman at [51] to similar effect).
“Certain”, here, also has a particular meaning. For a competent authority to “have made certain that [the project] will not adversely affect the integrity of the [European] site”, it must be satisfied that there is no real (as opposed to merely hypothetical) risk to the integrity of the site.
This assessment exercise requires consideration of the potential effects of the project on the protected species, and whether those effects pose a real risk to the maintenance of the favourable conservation status in respect of that species as reflected in the conservation objectives for that species (see the opinion of Advocate General Sharpston in Sweetman at [50]). Advocate General Kokott helpfully considered the nature of the competent authority’s task in relation to this second stage in her opinion in Waddenzee (at [97]-[98]):
“The assessment must, of necessity, compare all the adverse effects arising from the… project with the [European] site’s conservation objectives. To that end, both the adverse effects and the conservation objectives must be identified. The conservation objectives can be deduced from the numbers within the site. However, it will often be difficult to encompass all adverse effects in an exhaustive manner. In many areas there is considerable scientific uncertainty as to cause and effect. If no certainty can be established even having exhausted all scientific means and sources, it will consequently be necessary also to work with probabilities and estimates. They must be identified and reasoned.”
Therefore, it may be appropriate or necessary for assumptions, probabilities and estimates to be used, but they cannot be mere guesses: they must be “identified and reasoned”.
In respect of the appropriate assessment, “a high standard of investigation” is required. No particular procedure being prescribed, the issue ultimately rests on the judgment of the competent authority (Champion at [41]), taking into account any secured mitigation (Hart District Council at 76]). As Sales LJ recently put it in Smyth (at [78]):
“… Although the legal test under each limb of article 6(3) is a demanding one, requiring a strict precautionary approach to be followed, it also clearly requires evaluative judgments to be made, having regard to many varied factors and considerations. As Advocate General Kokott explained in her opinion in [Waddenzee] at [107], the conclusion to be reached under an ‘appropriate assessment’ under the second limb of article 6(3) cannot realistically require ascertainment of absolute certainty that there will be no adverse effects; the assessment required ‘is, of necessity’ subjective in nature’”.
In exercising that judgment, the competent authority must give “considerable weight” to the advice of “the appropriate nature conservation body”, and give cogent and compelling reasons for departing from it (Hart DC at [49]: see also Akester at [112] and DLA Delivery at [32] to similar effect).
The burden of proof again lies on the applicant. In effect, the burden upon him is to ensure that the competent authority is provided with sufficient information to convince the authority, taking into account all material considerations and exercising an evaluative judgment in respect of them, that the project poses no real risk in respect of the integrity of the European Site as considered through the prism of the conservation objectives. “Information” is a broad concept, stretching beyond relevant raw material: it includes appropriate analysis. Where the authority is unconvinced by the information lodged at any particular time in the process, it may request further information from the applicant under regulation 61(2) of the 2010 Regulations (see paragraph 16 above). The authority must necessarily have a wide discretion in the requests for information it considers appropriate to make. Once the applicant has been given a proper opportunity to submit the information upon which it relies and all of the information is in, if that information does not convince the competent authority, then the authority may – indeed, must – refuse to make a DCO, irrespective of the cause of that deficiency.
The decision of the competent authority cannot be construed as a statute or deed; it must be construed in a flexible and common sense way, bearing in mind that the applicant and other interested parties will know the issues with which he was required to grapple (Bloor at [19](1)). The reasons for the decision must enable an informed reader to understand why the decision was reached as it was, and what conclusion were reached on the “principal important controversial issues” (ibid at [19](2)).
Consistency in decision-making is important; but cases are usually fact-specific. In any event, it is not a principle of law that like cases must always be decided alike. The relevant decision-maker must exercise his own judgment on this question, if it arises (Bloor at [19](6)).
Once made by the competent authority, the assessment is only judicially reviewable on conventional grounds, the standard of review being the Wednesbury rationality standard (see, e.g., Smyth at [78]-[81]).
In respect of this application, the Secretary of State was “the competent authority”, and NRW was “the appropriate nature conservation body”.
The Examination
Before the ExA, a large number of issues arose – his report is 125 pages long – but the issue that is relevant to this claim was as to the effect of the proposed development on the red kite population of the SPA due to the risk of collision during the operation of the turbines, both looked at alone and in combination with other projects. The risk of red kite mortality as a result of such collision was recognised by the Claimant as a possible effect of the project in the Habitats Regulation Assessment Screening Report (“the HRASR”) which it submitted with its application (see paragraph 99).
The basis of the Claimant’s case on this issue was a simple proposition, namely that there would be no “connectivity” between the Application Site and the SPA, i.e. there was no real risk that red kite at the Application Site would have come from roosts in the SPA to forage, the Application Site being more than 4km away; and, thus, there was no real risk that the integrity of the red kite feature of the SPA would be adversely affected by the proposed turbines on the Application Site.
To support this proposition, the Claimant relied upon evidence from March-April 2015 surveys of the SPA and its buffer which identified no nesting activity (and, indeed, sub-optimal nesting habitat) in the area within 6km of the Application Site. The Claimant also lodged 2005, 2009-10 and 2010-11 red kite survey data; and collision risk modelling based upon vantage point surveys from November 2009 and November 2010, which concluded that the predicted collision risk was less than one pair per year.
Vitally, it also relied upon guidance, based upon a data set and review prepared by Pendlebury et al and issued by the appropriate nature conservation body for Scotland, Scottish Natural Heritage (“SNH”), to the effect that, during breeding season, the core foraging range from nest site for red kite is 4km. The guidance states that “in most cases the core range should be used when determining whether there is connectivity between the proposal and the qualifying interests”, although “in exceptional cases distances up to the maximum foraging range may be considered”. The maximum foraging range for red kite in the breeding season is given as 6km; although the Pendlebury review indicates that, in the non-breeding season, red kites may forage “regularly” as far as 10km, and sometimes up to 20km, from their roosting ground.
The lack of connectivity was consistently the sole basis of the Claimant’s contention that the integrity of the red kite feature of the SPA would not be undermined by the project. Therefore, in its HRASR, in table 7, it said:
“On the basis that there are no nests within the maximum foraging range of red kite as identified in the SNH Guidance, it is considered that there is no connectivity with the SPA.
Therefore Objective 1 would not be affected by the scheme as the scheme would not affect the population within the SPA.”
That case, made at the outset of the application, was maintained throughout (see, e.g., paragraph 7 of its Deadline VII representations dated 16 April 2015).
If that proposition concerning connectivity had been accepted, the appropriate assessment would have been straightforward, and not involved any substantive balancing exercise – because, if there is no real risk that red kite from the SPA might fly into the area of the Application Site, it necessarily follows that the project poses no risk of likely significant effects and no risk to the integrity of the red kite feature of the SPA.
However, the Claimant did not at any stage – in the HRASR, or elsewhere – put forward any evidence, information, analysis or representations that might assist in the appropriate assessment balancing exercise that would then have to be performed, in the event that (contrary to the Claimant’s view) it was concluded that there was a real risk that red kite from the SPA might fly into the area of the Application Site; save for the following, limited representations:
Using data from red kite surveys, the Claimant predicted the collision risk mortality of red kite at the Application Site to be less than one pair per annum. However, because of the lack of connectivity, it submitted that in any event there was no real risk that these birds would be from the SPA.
There would be steps taken to mitigate the loss of red kite as a result of collision with turbine blades, e.g. steps to reduce the amount of carrion available in the immediate area, and thus reduce the attraction of the Application Site as a foraging ground for red kite.
There would be no in-combination effect because the other wind farms are further away from the SPA than the Application Site.
Pausing there, as Mr Kimblin submitted (see paragraph 21 of his skeleton argument), there were thus four main issues for the ExA – and, later, the Secretary of State – to consider and determine:
reliability of the survey data;
whether any red kite observed on the Application Site may originate from the SPA;
quantification or efficacy of mitigation effects; and
in combination effects with other wind farms.
However, (ii) was potentially determinative in this sense: if the Secretary of State was satisfied that there was no real risk that red kite observed on the Application Site came from the SPA, there could be no real risk of the project adversely affecting the integrity of the Site.
NRW’s initial response to the HRASR, dated 25 February 2014, was to agree that it was unlikely (i.e. no real risk) that there would be any connectivity between the population of red kite using the red farm site and the SPA. However, during the course of the examination, that view clearly changed. The final NRW view was effectively set out in paragraphs 81-87 of its submissions for Deadline VI, on 26 March 2016.
This view did not agree with the Claimant’s analysis. NRW’s expert advice was as follows.
NRW disagreed with the Claimant’s interpretation of the conservation objective, namely that that objective was met if the current red kite population of the SPA was above 15 pairs. The last monitoring report, in 2011, recorded 18 pairs of red kite within the SPA (compared with 15 pairs recorded in 1997), and 66 pairs within 2km (compared with 41 pairs in 1997). In NRW’s view, the effect of the project on the SPA population had to be considered against the current SPA population, as the conservation objective was to maintain or increase that population.
In respect of the Application Site alone, in terms of the foraging range, NRW considered that the non-breeding season should also be considered, because red kite remain in the area outside the breeding season. As I have indicated, the Pendlebury review underlying the SNH guidance shows that red kite can regularly forage up to 10km from roosting locations during the non-breeding season.
The Claimant had no data to demonstrate the origin of red kite using the Application Site during the breeding and non-breeding season; and it therefore could not be assumed that they do not originate from the SPA. Given the precautionary principle, the winter foraging ranges in the Pendlebury review and the absence of any demonstrative evidence from the Claimant, NRW said that it should be assumed that red kite at the Application Site come from the SPA.
NRW considered that the Claimant’s red kite survey data – which were used to demonstrate the collision risk mortality rate for red kite – were older than good practice guidance suggested as suitable to inform an assessment, and the surveys did not always conform to best practice (e.g. because they did not include surveys of nest locations). The survey data were therefore not as reliable as they might have been.
NRW said that the proposed mitigation may reduce red kite numbers around the Application Site, but there was no quantification of the reduction (if any) in likely collision numbers.
However, prior to the closure of the examination (as recorded in the Examination Report at paragraph 5.2.30), “in its final comments before the close of the examination, NRW [did] not specifically conclude that there would be any [likely significant effects] on the red kite qualifying feature of the SPA as a result of the proposal alone”. Nor did it conclude that there would be no such risks. Rather, in paragraph 25 of its Deadline VII response dated 16 April 2015 towards the end of the examination process, NRW said this:
“21. … [T]here is no certainty regarding the origin of red kites using the [Application Site] in the breeding season and their connectivity to the SPA as no data has been collected by the [Claimant] to demonstrate this….
…
25. NRW’s stance remains that, given the difficulty of demonstrating that no birds originate from the SPA, it should be assumed they may be connected to the SPA. This is [in] line with the precautionary principle inherent within the Habitats Regulations assessment process. The assessment should then assess whether the likely mortality rates alone or in-combination with other projects including the grid line and other proposed wind farms are likely to affect the population of red kites for which the SPA is designated. The assessment could be undertaken using a number of assumptions regarding the proportion of birds using the site likely to originate from the SPA.”
NRW considered that the in-combination assessment should cover the other five wind farms within 10km of the SPA (which included Bryn Blaen, which is about 6km from the SPA). In NRW’s view, the Claimant had provided insufficient information to enable NRW to advise on whether there would be an adverse effect on the integrity of the red kite feature of the SPA in combination with other projects. Thus, in its response dated 20 May 2015 to the Claimant’s Deadline X material, it said:
“In NRW’s previous submissions (e.g. NRW submissions for Deadline VII 16 April 2015) we advised that the assessment for the Elenydd Mallean SPA collated the collision data for all of the wind farms included in the in-combination assessment. This would have allowed for an assessment of whether the in-combination mortality rate had the potential to effect the red kite population given the current increasing population numbers. If this had been provided, despite the uncertainty regarding the origins of the birds on the site, it may have demonstrated that the combined mortality levels were such that it could be concluded that there would be no effect on the population of red kite within the SPA.
This is important and relevant because NRW has insufficient information to advise the ExA on whether there would be an adverse effect in-combination on the integrity of the Elenydd Mallean SPA” (emphasis in the original).
The differences between the Claimant and NRW on this issue were therefore clear; and identified in the Report on the Implications for European Sites for the project (“the RIES”), produced by the ExA with support from the Environmental Services Team at the Planning Inspectorate to identify the issues that had arisen. The Claimant’s contention that there were no likely significant effects in respect of the red kite feature, and NRW’s dispute with regard to that proposition, are marked in paragraph 3.4 and Table 3.1 of the RIES.
After his six-month examination, the ExA published his report on 20 August 2015. In respect of the red kite feature of the SPA, he concluded as follows.
In relation to the project alone, unlike NRW, on the available information, the ExA made a positive finding. He said (at paragraph 5.2.30):
“NRW’s position during the Examination was that there can be no certainty about the origin of red kite using the Application Site in the absence of survey data…. Given the [Claimant’s] up-to-date survey data compiled from visits in March and April 2015 (albeit this covered the early breeding season), I consider this provides a reasonable degree of certainty that red kite do not originate from the SPA or its buffer close to the Application Site”;
and, consequently, the proposal would not result in a likely significant effect, looked at alone.
In context, the meaning of the phrase “reasonable degree of certainty” is quite clear; as is the meaning of “reasonable certainty” in paragraph 5.2.34 (“… I consider that, on the basis of the evidence presented: there [is] reasonable certainty that red kite observed within the Application Site do not originate from the SPA…”). As the term was used in Waddenzee (see paragraph 20(iii) above), it means so certain that there is no real risk that red kite on the Application Site come from the SPA roosts. Thus, the ExA accepted the Claimant’s key proposition on this issue.
The ExA’s approach to in-combination effects is consistent with that interpretation. In respect of those, as the ExA had concluded that there was no real risk that red kite on the Application Site do not originate from the SPA, he concluded that the proposal would not adversely affect the integrity of the SPA, when looked at in combination with other projects, despite the dearth of information on the adverse effects on red kites from the other wind farms. He said (at paragraph 5.2.34):
“NRW’s position at the end of the Examination was that it considered it had insufficient information to advise on whether there would be an adverse in-combination effect on the integrity of the SPA in respect of the red kite feature…. However, I consider that, on the basis of the evidence presented: there [is] a reasonable certainty that red kite observed within the Application Site do not originate from the SPA; that the proposal would not have a [likely significant effect] on this feature; and this must feed through to the in-combination effect. As such, irrespective of any shortfall in data about other proposed or existing wind farms close to the SPA, I am satisfied that the proposal would not contribute to any adverse effect on the integrity of the [SPA] in respect of this feature.”
Therefore, having accepted the Claimant’s case as to connectivity as determinative, he positively recommended grant of consent. Nevertheless, he advised the Secretary of State that, despite his view, in the light of the concerns expressed by NRW, the Secretary of State may decide that an appropriate assessment was necessary in order to determine whether there would be an adverse effect on the integrity of the SPA (paragraph 5.2.55)
Following receipt of that report, on 14 September 2015, the Secretary of State made requests for further information. In particular, she sought (i) further advice from NRW on (a) mortality rates and (b) maximum level of displacement of red kite for there to be no adverse effect on integrity of the SPA; and (ii) further information from the Claimant and NRW on in-combination mortality rates. I pause to note that, had the Secretary of State considered she already had enough information to be able to make an appropriate assessment that the project would not adversely affect the integrity of the red kite feature of the SPA, she would have had no need for further information. The request for information made to the Claimant appears clearly to have been a request made under regulation 61(2) of the 2010 Regulations and paragraph 4.3.1 of EN-1 (see paragraphs 16-17 above), as being for information reasonably required by the Secretary of State for the purposes of the assessment.
The Claimant provided no new information. In relation to (i), NRW responded as follows:
“8. There is insufficient information for NRW to advise on the maximum level of collision mortality and displacement for there to be no adverse effect on site integrity. There is currently no information on the population dynamics of the [SPA] features. Therefore, although it may be possible to conclude that low mortality levels may be unlikely to affect the population in the long term, we cannot advise with certainty as to threshold for there to be no adverse impacts on integrity.”
Therefore, it was NRW’s unequivocal opinion that the available information, did not enable a decision to be taken that there was no adverse effect on the integrity of the red kite feature of the SPA from the project in combination with other projects. In respect of the project alone, NRW came to no positive view. It considered that there was a real risk that red kite on the Application Site might come from the SPA: NRW did not accept the Claimant’s case that there was no connectivity and that the project turbine blades posed no real risk to red kite from the SPA. However, it considered that assumptions might be made on the available information with regard to (e.g.) the actual level of mortality risk for red kite from the SPA as a result of flying into the project turbine blades, so that, despite the uncertainties, it might be possible to conclude that the project would not put at risk the maintenance of the red kite population level on the Application Site. Nevertheless, it went no further than that: it did not suggest what those assumptions might be, yet alone whether, on the basis of assumptions that might be made, it (NRW) would conclude that there was no such risk. Nor did NRW suggest who might appropriately make such assumptions, or how.
The Secretary of State’s decision was based upon the ExA’s Report, and representations received after the close of the examination, notably the responses to the 14 September 2015 requests. The decision letter dated 20 November 2015 was accompanied by a Record of the Habitats Regulations Assessment (“the Record”) of the same date. The issue concerning red kite is dealt with in paragraphs 6.4-6.34 of the Record.
In short, the Secretary of State substantially accepted the advice of NRW.
In respect of connectivity, she agreed with NRW that the Claimant had not shown beyond “reasonable scientific doubt” that the red kite using the Site do not come from the SPA. She referred specifically (in paragraph 6.12 of the Record) to the view of NRW that the Claimant had not provided any data to demonstrate the origin of the red kite using the Application Site, and it could not be said with any certainty that they do not come from the SPA. The Secretary of State therefore proceeded on the basis that they may (ibid).
The conclusions of the Secretary of State’s assessment in relation to the project alone are set out in paragraphs 6.19-6.22 of the Record, as follows:
“6.19 In [its HRASR]…. the Applicant states that there will be no LSE [i.e. likely significant effect] on the red kite population of the SPA, as the birds using the Site are not from the SPA. In the view of the SoS [i.e. the Secretary of State], the Applicant does not give evidence to support this statement.
6.20 The ExA concluded that on the basis of the evidence presented, there is a reasonable certainty that red kite observed on the Project Site do not originate from the SPA, and therefore the Project will not have a LSE alone on the SPA….
6.21 At the end of the examination NRW advised that it should be assumed that the red kite that use the application site may be connected to the SPA, and that the HRA should assess whether the possible mortality rates are likely to affect the SPA red kite population…. They do not agree that it has been demonstrated that adverse effects on the red kite feature of the site as a result of collisions can be ruled out alone….
6.22 The SoS, having considered the information provided during and after the examination, agrees with NRW, as the statutory nature conservation body and concludes 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 Elenydd Mallean SPA from the Project alone. The SoS is of opinion that:
• It has not been proven beyond reasonable scientific doubt that the red kite using the project site do not come from the SPA, and accepts NRW’s advise on this matter.
• Mitigation proposed by the Applicant to address the issue of collision risk through aiming to avoid making the area under and around turbines attractive to red kite may reduce red kite numbers, there is no certainty that this will be the result, and there has been no quantification of the reduction in the likely collision numbers. It is also unclear whether these activities actually already currently occur.
• The Secretary of State shares the concerns of NRW as to the age and methodology of the surveys that informed the Applicant’s assessment, as they did not conform to recommended good practice guidance.”
In relation to the in-combination effects, the Secretary of State noted that there were five wind farms within 10km of the Application Site; and, although the Claimant had concluded there would be no connectivity with the Application Site from these proposals because of distance and the SNH guidance, NRW had advised that these ought to be included for consideration of in-combination effects; and that there should be an assessment of whether the likely mortality rates alone or in combination with other projects posed a risk to the relevant red kite population. The Claimant had not provided any such information; and, therefore, the Secretary of State concluded that “the [Claimant] has not demonstrated sufficiently that there is unlikely to be a significant in-combination effect on red kite, as the red kite collision figures for the other developments have not been provided and considered by the [Claimant]” (paragraph 6.34).
In other words, the Secretary of State was not convinced by the information before her that the project, alone or in combination, posed no real risk to the conservation objective in respect of the red kite population of the SPA. The Claimant (as applicant) had failed to satisfy the burden upon it by providing sufficient information to convince the Secretary of State that there was no such risk.
Finally, the Secretary of State considered that, in the absence of sufficient information about the possible environmental effects of the proposed development, it was not possible to consider whether the public interest might override those effects for the purposes of paragraph 62 of the 2010 Regulations (paragraph 28 of her decision letter).
It is of course the Secretary of State’s decision not to make a DCO, for the reasons set out above, that the Claimant challenges in this claim.
The Grounds of Challenge
Mr Kimblin QC for the Claimant relies upon three grounds of challenge, as follows:
Ground 1: The Secretary of State failed to perform a proper appropriate assessment.
Ground 2: The Secretary of State failed to apply guidance on foraging distances in this case consistently with other cases where the same issue arose.
Ground 3: The Secretary of State failed properly to consider the derogation in article 6(4) of the Habitats Directive and regulation 61(3) of the 2010 Regulations; and, in particular, failed to give any proper reasons why she found there were no imperative reasons of overriding interest for granting consent, despite a negative conclusion on the appropriate assessment.
I will deal with those grounds in turn.
Ground 1: The Appropriate Assessment
As his Ground 1, Mr Kimblin submitted that the Secretary of State failed properly to conduct an appropriate assessment. He relied upon a number of strands of argument – but his core submission, set out in paragraph 53 of his skeleton argument, was that the Secretary of State had confused the idea of certainty about likely significant effects (which is the focus of the first stage) with the overall assessment of the effect on conservation status on a precautionary basis (which is the focus of the second stage). I will deal with this core submission first, before I turn to the individual strands of the argument.
For the first stage, Mr Kimblin accepts that the Secretary of State’s focus was properly upon whether the proposed development posed any real risk of significant effects to red kites as a feature of the SPA; because that stage was only concerned with whether the competent authority should proceed to an appropriate assessment, which it was required to do if there was any such risk. He makes no complaint about the approach taken by the Secretary of State to the first stage, or her conclusion in respect of that stage that it was “worth checking” and an appropriate assessment should be undertaken.
However, in relation to the second stage (the appropriate assessment itself), the focus ought to have been upon whether the proposed development would or would not “adversely affect the integrity” of the SPA. For that task, he submitted, the Secretary of State erred in her approach by “requiring absolute certainty in respect of each element of the assessment” (e.g. the mortality rate of red kite as a result of the proposed turbines, and the proportion of those red kite that would be from the SPA), rather than considering the matter as a whole and exercising her reasonable judgment in making an assessment as to whether the proposed wind farm would adversely affect the integrity of the SPA, by posing a real risk to the lasting preservation of red kite on the SPA. In the event, where something was not absolutely certain, she proceeded on the worst possible hypothesis, even where the hypothetical was clearly unrealistic as a practical or “real” possibility.
For example, the Secretary of State concluded that there was a risk that red kite from the SPA might find their way to the Application Site. That risk was not quantified. It was common ground that there would be some attrition rate of red kite on the Application Site because of collision with the turbine blades. The Secretary of State was unconvinced as to the reliability of the data used to estimate that this would be limited to less than a pair per year. However, she then proceeded on the basis that the proportion of red kites that would be killed in that way that emanated from the SPA would be 100%; and, in relation to the mortality rate, she appears to have proceeded on the basis that the rate suggested was in any event unacceptable from a conservation point of view simply because it was uncertain.
If she had approached this assessment as she ought, Mr Kimblin submitted, she would have made proper and realistic assumptions in respect of these uncertainties – no doubt, in line with the precautionary principle, cautious – and proceeded on those, as NRW said could be done (see paragraph 31(vi) above). So, she ought to have made assumptions with regard to such matters as the proportion of red kites from the SPA on the Application Site – given the distance between the two, at most, very small – and to an “acceptable” mortality rate that would leave the integrity of the red kite feature of the SPA unaffected.
Balancing all material factors including such assumptions, it is said that the Secretary of State would (or, at least, may) have been convinced that there was no real risk to the integrity of the red kite feature of the SPA. However, because of the (unlawful) approach she adopted, she never engaged with that evaluative process, and therefore never performed a proper appropriate assessment.
I have considered Mr Kimblin’s submissions with particular care. I accept some of his propositions; but I cannot accept them all, and I am unpersuaded that his conclusion (that the Secretary of State erred in law in this respect) is good.
Although it may be of little moment in this claim – because Mr Kimblin concedes that the Secretary of State did not err in deciding that the threshold for an appropriate assessment had been satisfied – I am not persuaded that the essential nature of the first and second stages of the article 6(3) task for the competent authority is different, in the manner Mr Kimblin suggests. As Lord Carnwath JSC emphasised in Champion (at [37]), there is no requirement for a distinct first, screening stage; and, even where a two-stage process is adopted, each stage concerns the assessment of risk and “clearly requires evaluative judgments to be made, having regard to many and varied factors” (Smyth at [78] per Sales LJ). The difference arises out of the need that arises in the second stage for a higher standard of investigation and higher level of interrogation of the available information, because the second stage is focused, not on the question “Should we bother to check?”, but the performance of the “check” itself. Therefore, the first stage is “only a preliminary assessment in the absence of comprehensive information” (see paragraph 7 of Mr Kimblin’s skeleton argument), whilst the second stage requires a final assessment on the basis of all available information after the applicant has had a proper opportunity, following the identification of perceived deficiencies by and questions from NRW and the examining authority, to put forward all of the information it wishes.
The issue in this claim is whether the Secretary of State acted lawfully or unlawfully in the way in which she performed the appropriate assessment. The Secretary of State was the competent authority, and the decision-maker in respect of the issue of whether a DCO should be made, including the interim question of whether she was convinced that the project would not adversely affect the integrity of the red kite feature of the SPA. In respect of the latter, the question she had to ask herself was whether she was convinced by the information before her that, taking into account all material considerations and exercising an evaluative judgment in respect of them, the project posed no real risk to the integrity of the SPA as considered through the prism of the conservation objectives. That required consideration of the potential effects of the project on the protected species, and whether those effects presented a real risk to the maintenance of the favourable conservation status in respect of that species as effectively described in the conservation objectives for that species.
With regard to red kite, the perceived risk was that birds from the SPA would enter the Application Site to forage, and would collide with the turbine blades leading to their death. The relevant conservation objective was Objective 1. The Secretary of State took the view that, if that objective was put at real risk, then the integrity of the red kite feature of the SPA would be put at risk. Mr Kimblin does not suggest that that approach was wrong.
Although it had to be considered in the broader context of the Habitats Directive, Objective 1 is essentially numbers based. The Secretary of State considered that the conservation objectives could not be met unless the current numbers of red kite on the SPA were not, at least, maintained. Mr Kimblin – in my view, rightly – did not pursue the argument put by the Claimant to the ExA that they would be met so long as the number of red kite pairs roosting on the SPA was not reduced below 15; because “favourable conservation status” requires, at least, the maintenance of the species on the relevant European Site “on a long-term basis as a viable component of its natural habitats” (see paragraph 14 above), and the specific conservation objective marker has no maximum number for red kite on the SPA. In any event, it is noteworthy that, although the red kite national population has increased four-fold, the number of red kite pairs on the SPA was 18 at the last census in 2011 – an increase of only three from the fifteen recorded in the 1997 census.
The Secretary of State could therefore only be convinced that there was no risk to the conservation objective if satisfied that the mortality rate of red kite from the SPA as a result of this project, taken alone or in combination with other projects, was less than the rate at which the red kite roosting in the SPA were otherwise increasing by breeding.
As I have explained, it was the Claimant’s case that she could be satisfied as to that because there was no real risk of red kite from the SPA foraging as far away from their roosts as the Application Site. As there was an attrition rate of red kite from the SPA of nil, the project could not adversely affect the maintenance of the red kite population in the SPA or, thus, the integrity of the SPA.
Subject to the issue of consistency (which I deal with below (paragraphs 81-4), Mr Kimblin did not seek to argue that the Secretary of State erred in concluding that there was a real risk of red kite from the SPA using the Application Site and therefore being at mortality risk from the turbine blades. Again, in my view, that concession was properly made. Although the ExA had agreed with the Claimant’s case, the Secretary of State was clearly entitled to follow the advice of NRW that the core breeding season foraging distance for red kite of 4km identified in the Pendlebury review and relied on in the SNH review as the “usual” distance by which to gauge connectivity was not the appropriate measure in this case for the reasons given by NRW (notably, it failed to take into account winter foraging); and the additional data were insufficient to be persuasive that red kite from the SPA would not forage over the Application Site. On the basis of the opinion of NRW, she was clearly entitled to come to the conclusion with regard to connectivity that she did.
Mr Kimblin complains that, having made that proper finding, the Secretary of State erred in failing to assess all of the relevant matters (including that risk), giving those matters the weight she considered appropriate, to determine whether the project did adversely affect the integrity of the SPA, i.e. whether the effects of the project posed a real risk to the maintenance of the favourable conservation status of the species as reflected in the conservation objectives for that species on that European Site.
However, having made the finding in relation to connectivity, the Secretary of State found herself in a difficult position in relation to that question. Because of his conclusion on connectivity, the ExA had found that a full balancing exercise, involving an evaluative judgment of the various material considerations, was not necessary – because the appropriate assessment question was determined by his conclusion that there was no real risk of red kite from the SPA finding their way to the Application Site. However, the Secretary of State having concluded there was a real risk of red kites from the SPA being present – and therefore risking death by collision with the turbine blades – on the Application Site, was required to perform such an exercise.
She was given very little help from the ExA’s report, which did not engage with that issue. No criticism can be levelled at the ExA for that: the ExA’s finding in relation to connectivity was determinative of the issue, and in any event the Claimant had not lodged any relevant information upon which the ExA could bite. Nor was the Secretary of State given any assistance by the representations made following her 14 September 2015 post-examination request for further information. The Claimant itself had made no substantive representations on the issue, except, as set out in paragraph 28 above, the following:
Using data from red kite surveys performed in the period 2005-11, the Claimant predicted the collision risk mortality of red kite to be less than one pair per annum.
There would be steps taken to mitigate the loss of red kite as a result of collision with turbine blade on the Application Site, e.g. steps to reduce the amount of carrion available in the immediate area,
There would be no in-combination effect because the other wind farms are further away from the SPA than the Application Site.
Having found that there was the real risk of red kites from the SPA flying over the Application Site, and that she would have to perform an appropriate assessment, the Secretary of State first noted that she had not been provided with the information that she required but she had performed the assessment “as far as she [had been] able” (paragraph 21 of her decision letter).
As I have already described (see paragraph 42(ii) and (iii) above), in her decision, the Secretary of State went on to deal with each of the matters which the Claimant had raised, which went to the matter in hand:
NRW had been unimpressed with the survey data. In the third bullet point of paragraph 6.22 of the Record, the Secretary of State indicated that she shared those concerns. Although she did not expressly refer to the Claimant’s response to those criticisms, there is nothing to suggest that she did not take those into account in concluding that there was some force in NRW’s opinion. In any event, because of the lack of connectivity, the Claimant merely submitted that, whatever the risk from the project to red kite in general, there was no real risk to red kite from the SPA, because they would not be on the Application Site, a proposition which the Secretary of State had already dealt with. As NRW had indicated, the Claimant had failed to provide any further data or information to remedy this identified defect.
With regard to the proposed mitigation, the Secretary of State dealt with that in the second bullet point of paragraph 6.22. Although as a matter of principle removing carrion from the Application Site would in theory reduce its attraction for foraging – and, in practice, it might – there was nothing in the information provided as to how successful, if at all, that mitigation might be in practice.
In relation to in-combination effects, the Claimant’s case relied solely upon the proposition that there is no real risk of red kites foraging more than 4km from their roosts. The Secretary of State had already dealt with that. In the circumstances of this case, she did not accept it. In paragraph 6.34 of the Record, she noted that NRW had advised that there should be an assessment of mortality rates in respect of red kite from these other project sites – and the Claimant had provided no such information.
The Secretary of State’s decision therefore specifically dealt with each element of the Claimant’s case, all of the major issues that had been raised by the Claimant (see paragraph 29 above), and all of the information relevant to the balancing exercise she had to perform in making the appropriate assessment which had been provided by the Claimant.
But, Mr Kimblin submitted, that that was not enough: the Secretary of State ought to have gone further, and made appropriate, cautious assumptions with regard to the various unknowns, and then proceeded to perform the balancing exercise on the basis of all relevant considerations including those assumptions.
However, for the following reasons, I do not consider that that was required of her.
The burden of proof lay on the Claimant as applicant, in the sense that it was up to the Claimant to provide sufficient information to convince the Secretary of State that there was no real risk of adverse effects as to the integrity of the red kite feature of the SPA. That obligation extended to any appropriate analysis of (or assumptions or estimates drawn from) raw material, upon which the Claimant relied.
Although the ExA agreed with the Claimant’s contention that there was no real risk that red kite at the Application Site would be from the SPA, the NRW’s opinion was that there was such a risk. During the latter stages of the examination, NRW made that view very clear (see, e.g., paragraphs 30-1 above). The ExA recognised that that was NRW’s opinion (see paragraph 34 above). It was also NRW’s opinion that there was a parallel risk for the red kite on any other wind farm within 10km of the Application Site, relevant to the assessment of in-combination risk. It was for the Claimant to lodge any information it wished to be taken into account for the purposes of the appropriate assessment, in the event that the Secretary of State agreed with the advice of NRW, found there were such real risks and proceeded to perform an appropriate assessment involving an exercise evaluating the various material considerations.
The Claimant had at least reasonable opportunities to do so. Given NRW’s advice on this issue, despite the ExA’s conclusion on it, the Secretary of State was still overtly concerned; indeed, as I have indicated, if she had had sufficient information to be convinced of the Claimant’s case, she would not have had to make the request for information she did make post-examination, on 14 September 2015. That request was, at the very least, a clear marker that, to be convinced, she required further information.
As Lord Carnwath JSC emphasised in Champion (see paragraph 20(vi) above), there is no set procedure for determining an appropriate assessment. In the evaluative exercise she had to perform, the Secretary of State had a wide discretion; including a wide discretion as to the information she requires to make an assessment that there is no risk, risk being rebuttably presumed as the default position.
The September 2015 request of the Claimant was specifically in respect of in-combination effects. Mr Kimblin submits that data on mortality rates was not available from all of the other wind farms – they had not been collected – but, even to the extent that that is true, the Secretary of State was right to focus on the data and analysis that had been provided, and whether that was sufficient to convince her that there was no risk to the integrity of the SPA from the proposed project in combination with other relevant projects.
Of course, the Claimant’s firm contention was that the real risk from the project to red kite on the SPA would be nil, because the real risk of red kite from the SPA flying there to forage was nil. Although no alternative analysis was put forward in the event that the Secretary of State did not agree with that proposition, it is clear that the Claimant considers that, if risk there be, it is small or very small. But that is not sufficient to answer the question posed by the appropriate assessment.
The cases confirm that certainty with regard to the elements that go to the risk of adverse effect on integrity is not required and may well be impossible; and, as NRW accepted during the course of the examination, it may be necessary to make assumptions and estimates as to the level of particular risks.
However, such assumptions and estimates must be identified and reasoned (see paragraph 20(v) above). The Secretary of State had no assistance on that score here. Neither the Claimant nor the ExA identified any assumptions or estimates upon which the Secretary of State’s task should be based, let alone provide any analysis or reasoning for any assumptions and estimates proposed. NRW noted in particular that the Claimant had provided no information on the population dynamics of the SPA features (see paragraph 39 above), of some moment in the light of article 1 of the Habitats Directive and paragraph 1 of the conservation objectives for the Application Site (see paragraphs 10 and 14 above).
In other circumstances, even in this absence of this information, I accept that the Secretary of State might have been able to say that, whatever the absent information might reasonably have said, she was convinced that, in practice, the project would not result in any adverse effect to the integrity of the SPA. I accept that it is possible that, on other facts, she would err in law if she did not draw that conclusion on the information available.
However, in this case, there were a substantial number of important “unknowns”, including:
the proportion of red kite on the Application Site that came from the SPA;
the risk posed by the turbines to red kite on the Application Site (it being open to the Secretary of State to find, as NRW advised, that the data upon which one pair per year was based were unreliable);
the level of mortality that the SPA red kite population could sustain before the conservation objective would be undermined; and
the risk posed by the other five wind farms which (NRW advised) needed to be considered in an in combination assessment.
Given the uncertainties so far as these relevant matters were concerned, on the information that was available, (a) NRW did not consider that it could be concluded that the risk to the integrity of the red kite feature of the SPA could be excluded on an alone basis, without making assumptions and estimates; and, in any event, (b) NRW did not consider that that risk could be excluded on an in-combination basis. The Secretary of State was bound to give considerable weight to that advice, unless there was good reason not to do so. Given her wide discretion in the matter, she was clearly entitled to follow that advice, even if others (e.g. the ExA) disagreed.
In my judgment, in the circumstances of this case, in which relevant probabilities, estimates and assumptions were required for any positive appropriate assessment to be made, the Secretary of State did not err by refusing to go beyond the probabilities, estimates, assumptions and analysis before her in the form of the ExA’s Report and supplementary documents. Insisting that probabilities, estimates and assumptions that are or might be relied upon by an applicant are identified and reasoned is not the same thing as requiring “absolute certainty” or “a search for certain proof demonstrated numerically” or even “an obsession with quantification”, as Mr Kimblin at various times suggested.
It is not easy to see how the Secretary of State could – or why, after a six-month examination, she should – have made the necessary assumptions etc herself; but, in any event, if she had proceeded on the basis of any such further information, she would have had to disclose it to the parties for their comments, and the procedure does not require – and, certainly by the post-examination stage, is fair set against – such an iterative process. She was entitled to perform the evaluative balancing exercise on the (very limited) information that she did have available, as she did.
Although Mr Kimblin complains that the Secretary of State used boilerplate clauses in the decision letter, that letter correctly set out the law, in paragraphs 11-12. There is nothing to suggest that she did not have that well in mind when performing the assessment. As it had to do, the decision dealt with the issued raised by the claimant and case as put by the Claimant – by rejecting it – and, in doing so, she dealt with the information that was available in respect of the second stage assessment.
Mr Kimblin complains that the Secretary of State wrongly proceeded on the basis that all of the red kite killed by turbines on the Application Site would come from the SPA. However, the Secretary of State was bound to deal with the conclusion of the ExA (agreeing with the Claimant’s case) that there was no real risk of red kite from the SPA using the Application Site – because that was potentially determinative of the assessment. She dealt with that finding in the first bullet point in paragraph 22 of her decision letter. Although Mr Moules accepted that she did proceed on the basis that all red kite on the Application Site would be from the SPA, the decision makes no express finding to that effect. It simply says that, in the absence of compelling evidence to the contrary, they may; and, thereafter, the Secretary of State did not rely upon any estimate or assumption of that risk, because none had been provided by the ExA (or the Claimant), and she did not presume to make such an estimation or assumption herself. For the reasons I have given, she was right (or, at least, entitled) not to do so. Similarly, for the other unknowns.
The Secretary of State therefore had no assumptions, estimates or probabilities to fall back upon. Mr Kimblin says that, in those circumstances, she fell back upon using the worst hypothetical case in respect of each element. However, although I accept that that may have been the effect, the way the decision puts it, when read fairly and as a whole, is as follows. The Claimant had failed to provide information reasonably required to determine the appropriate assessment. The Secretary of State had, however, done the best she could on the available information. In line with advice from NRW, she had concluded that there was some risk of red kite on the Application Site originating from the SPA. Again in accordance advice from NRW, she was not convinced that the project in combination with other wind farms would not pose a risk to the red kite population of the SPA in terms of the conservation objectives, and thus was not convinced that it would not result in adverse effects that would impact on the integrity of the SPA. Given the absence of reasoned estimates and probabilities, she was also not convinced that there would be no risk looking at the effects of the project alone.
In my view, that approach cannot be said to have been wrong in law. The Secretary of State was entitled to conclude that, without further information in respect of the matters referred to in (x) above, she was not convinced as to the absence of risk that I have described.
The Secretary of State’s essential reasoning in relation to Ground 1 is helpfully set out in paragraph 63 of her summary grounds of resistance, in which she stresses that, by virtue of the precautionary principle, it is insufficient for the Claimant to say that, on the basis of the evidence, it is probable that the integrity of the SPA will not be affected by the proposed development. It continues:
“In simple terms, a project may account for a mortality of X birds a year alone, and a total mortality of Y birds per year combined with the impact of other projects. The mortality threshold Z represents the mortality rate that the SPA population can sustain without affecting its integrity. Provided that both X and Y are less than Z then the [Secretary of State] can conclude that the project would have no adverse effect on integrity. In this case fundamental pieces of information were missing. The Claimant only provided s figure for X, and did not provide a figure for Y. NRW advised that the surveys used by the Claimant to calculate X were flawed and in the September consultation neither the Claimant nor NRW provided a figure for Z to test X against. In those circumstances the [Secretary of State] was unable to determine the impact on integrity on a precautionary basis using the other data/surveys because there was no other data/figures that could be used on a precautionary basis as a substitute for accurate modelling data.”
In my respectful view, that encapsulates the reasons why the Claimant’s core submission fails.
For those reasons, in my view, in her decision of 20 November 2015, the Secretary of State did not err in law in respect of her approach to the appropriate assessment, as Mr Kimblin submitted.
Having determined that core issue, I can deal with the strands of Ground 1 shortly. There are eight. Most reflect the core issue, with which I have already dealt.
First, Mr Kimblin submits that the Secretary of State erred in failing to keep properly in mind the conservation objectives; and in reasoning, simply, that, because the information available was insufficient, it was not possible to ascertain that there would be no adverse effect on the integrity of the red kite feature of the SPA. However, the Secretary of State concluded that, because of the lack of reliable collision risk modelling and the other uncertainties to which I have referred, no appropriate assessment against the conservation objectives was possible – and the default position (i.e. no DCO) applied. For the reasons I have given, she did not err in doing so.
Second, it is submitted that the Secretary of State failed to address her mind to the proportion of red kite on the Application Site coming from the SPA. However, in my judgment, she did address that question adequately. She found that there was a real risk that red kite from the SPA might use the Application Site – a finding that Mr Kimblin does not seek to challenge – but, although no doubt not all red kites on the Site come from the SPA, the Claimant did not suggest how an appropriate estimate of that proportion, based on the precautionary principle, could be made. The Secretary of State was not required to make her own estimate. Although Mr Moules accepted that the Secretary of State did proceed on the assumption that all red kite did come from the SPA, in fact, as I have described, in line with the NRW advice, she assumed that all may. Although the precautionary principle applied, she did not expressly say that she proceeded on the basis that all did. She simply concluded that she was unconvinced that there was no risk to the integrity of the red kite feature of the SPA in the light of all the uncertainties, including the absence of any reasoned estimate or assumption for the proportion of red kite on the Site that came from the SPA.
Third, it is submitted that the Secretary of State erred in failing to use the available data on conservation status to form a view as to what level of information was necessary to carry out an appropriate assessment. However, there is no evidence to support that assertion. The Secretary of State had a wide measure of discretion in determining what information was required to enable her properly to exercise her judgment on the assessment; and she clearly did bring her mind to bear on that issue, as evidenced by the September 2015 requests for further information. She then clearly came to the view that she had insufficient information to conclude that there was no relevant risk to the integrity of the SPA.
Fourth, Mr Kimblin submitted that the Secretary of State failed to apply the guidance and literature to distinguish foraging in winter from foraging at other times of the year. However, NRW clearly had concerns about the uncertainty with regard to the distances that winter foraging red kite might fly, the evidence being that they regularly fly up to 10km. As Mr Moules submitted, the Secretary of State was under no obligation to estimate the degree of uncertainty revealed by the literature. Insofar as Mr Kimblin relied upon inconsistency of approach to this guidance, I deal with that issue under Ground 2.
Fifth, it is said that the Secretary of State failed to proceed on the basis that all red kite came from the SPA. I have already dealt with that issue.
Sixth, it is submitted that the Secretary of State failed to take into account the Claimant’s response to NRW’s criticisms of the survey data; but the Secretary of State had regard to all submitted material and it was open to her to follow NRW’s advice that the survey data were unreliable, particularly as the Claimant did not dispute either the surveys’ age or the relevant guidance.
Seventh, Mr Kimblin says that the Secretary of State failed to use the survey data to understand the trends in red kite numbers, and does not address the impact on the integrity of the SPA of a predicted mortality rate of less than one pair per year for the Application Site irrespective of the origin of the birds killed. However, the Secretary of State (following the advice of NRW) did not accept the reliability of the data, and in any event had no information about the rate of mortality of SPA red kite that would undermine the integrity of the SPA.
Eighth, it is submitted that the Secretary of State failed to take into account the proposed mitigation on the (erroneous) basis that it would be wholly ineffective. However, no assessment of the efficacy of the proposed mitigation had been made: the Secretary of State simply concluded that the proposed mitigation with its uncertain efficacy, taken with the other uncertainties, did not convince her that the project would not involve a risk to the integrity of the SPA.
For those reasons, Ground 1 fails.
Ground 2: Inconsistency
Mr Kimblin submitted that the Secretary of State acted inconsistently – and, thus, unlawfully – in her application of the SNH guidance in relation to foraging distances. In this case, she considered it appropriate to consider the longer foraging distance in the non-breeding, winter season. In two other cases (Clocaenog and Bryn Blaen), she has relied upon the guidance to restrict consideration to the summer season, i.e. 4km as the core foraging distance with 6km exceptionally.
However, in this case, the advice from NRW was to take into account winter foraging distances, because there was evidence of considerable numbers of red kite foraging at the Application Site and, during the winter, red kite on the SPA stayed put. The Pendlebury review suggested that red kite regularly forage to a distance of 10km in the winter. The Secretary of State could not have acted irrationally or otherwise unlawfully in following the reasoned advice of NRW.
In respect of the comparator sites:
At Clocaenog, there was no evidence of the relevant raptor (peregrine falcon) breeding in the vicinity of the project site, and none had been observed using that site in either the breeding or non-breeding season. The RIES in that case concluded that there was no functional link between the relevant European Site (the Berwyn Special Protection Area) and the project site. The circumstances of that case were therefore materially different.
The Bryn Blaen decision was made by the Welsh Ministers on appeal from the planning authority under section 288 of the 1990 Act, but only after the Secretary of State’s decision in this case. In this circumstances, Mr Kimblin accepts that it is not more than an indicator that, had the Secretary of State approached this matter lawfully, she would have come to the same conclusion as the Welsh Ministers in that case. It thus goes only to relief, if the Secretary of State is found to have acted unlawfully.
There is no room here for a discrete inconsistency ground.
Ground 3: Imperative Reasons of Overriding Public Interest (“IROPI”)
Finally, Mr Kimblin submitted that the Secretary of State erred in giving no proper reasons why she found there were no IROPI for granting consent, despite a negative conclusion on the appropriate assessment.
There is no force in this ground. Even assuming the 2010 Regulations impose a duty on the Secretary of State to consider IROPI, in this case:
The Claimant never contended or suggested that the project might be granted consent by reason of IROPI, in the event of a negative appropriate assessment. It is too late to raise the argument now.
The Secretary of State did, in any event, expressly consider regulation 62, and concluded that she was unable to consider IROPI “in the absence of sufficient information to consider the possible environmental effects of the development”. As Mr Moules submitted, it was logically impossible for her to have been satisfied that the (undetermined and, on the evidence, undeterminable) adverse impact was justified in the public interest under regulation 62. For the same reason, without knowing the extent of the adverse impacts, the Secretary of State could not properly determine appropriate compensatory measures under regulation 61(6), that she would have had to consider if she had had found IRPOI to have existed.
Conclusion
For those reasons, this judicial review is dismissed.