ON APPEAL FROM THE PLANNING COURT SITTING AT CARDIFF
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE FLOYDand
LORD JUSTICE PETER JACKSON
| R (ota MYNNYDD Y GWYNT LTD)
|- and -
|SECRETARY OF STATE FOR BUSINESS ENERGY AND INDUSTRIAL STRATEGY
Richard Moules (instructed by the Government Legal Department) for the Respondent
Hearing dates: 13-14 February 2018
Crown Copyright ©
Lord Justice Peter Jackson:
Assessment of implications for European sites and European offshore marine sites
61.—(1) A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which—
(a) is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects), and
(b) is not directly connected with or necessary to the management of that site,
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 may 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 that body within such reasonable time as the authority specify.
(4) They must also, if they consider it appropriate, take the opinion of the general public, and if they do so, they must take such steps for that purpose as they consider appropriate.
(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 plan or project only after having ascertained that it will not adversely affect the integrity of the European site or the European offshore marine site (as the case may be).
(6) In considering whether a plan or 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, permission or other authorisation should be given.
"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."
(1) The environmental protection mechanism in Article 6(3) is triggered where the plan or project is likely to have a significant effect on the site's conservation objectives: Landelijke: Vereniging tot Behoud van de Waddenzee v Staatsscretaris van Lanbouw (Case C-127/02)  All ER (EC) 353 at  ("Waddenzee").
(2) In the light of the precautionary principle, a project is "likely to have a significant effect" so as to require an appropriate assessment if the risk cannot be excluded on the basis of objective information: Waddenzee at .
(3) As to the appropriate assessment, "appropriate" indicates no more than that the assessment should be appropriate to the task in hand, that task being to satisfy the responsible authority that the project will not adversely affect the integrity of the site concerned. It requires a high standard of investigation, but the issue ultimately rests on the judgement of the authority: R (Champion) v North Norfolk District Council  UKSC 52;  1 WLR 3710, Lord Carnwath at  ("Champion").
(4) The question for the authority carrying out the assessment is: "What will happen to the site if this plan or project goes ahead; and is that consistent with maintaining or restoring the favourable conservation status of the habitat or species concerned?": Sweetman v An Bord Pleanàla (Case C-258/11);  PTSR 1092, Advocate General at .
(5) Following assessment, the project in question may only be approved if the authority is convinced that it will not adversely affect the integrity of the site concerned. Where doubt remains, authorisation will have to be refused: Waddenzee at [56-57].
(6) Absolute certainty is not required. If no certainty can be established, having exhausted all scientific means and sources it will be necessary to work with probabilities and estimates, which must be identified and reasoned: Waddenzee, Advocate General at  and , endorsed in Champion at  and by Sales LJ in Smyth v Secretary of State for Communities and Local Government  EWCA Civ 174 at  ("Smyth").
(7) The decision-maker must consider secured mitigation and evidence about its effectiveness: Commission v Germany (Case C-142/16) at .
(8) It would require some cogent explanation if the decision-maker had chosen not to give considerable weight to the views of the appropriate nature conservation body: R (Hart District Council) v Secretary of State for Communities and Local Government  EWHC 1204 (Admin) at .
(9) The relevant standard of review by the court is the Wednesbury rationality standard, and not a more intensive standard of review: Smyth at .
The examination of the application
- It had not been proven beyond reasonable scientific doubt that red kite using the project site do not come from the SPA.
- There was no certainty that the mitigation proposed by the Appellant (reducing the availability of carrion that might attract foraging birds) would be effective.
- There were concerns about the age and methodology of the surveys produced by the Appellant.
- Information had not been provided by the Appellant about the in-combination impact of the project with other windfarms.
The decision of Hickinbottom J
"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 with 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."
The appeal to this Court
1) Requiring certainty in relation to each element of the data, instead of using the available information and making a reasoned judgement, always taking the precautionary approach.
2) Reaching an inconsistent conclusion about the in-combination level of risk to the red kite population in this SPA to those reached in relation to other Mid-Wales windfarm proposals.
3) Not referencing or showing that she had considered the Appellant's December 2014 response to NRW's concerns about survey methodology.
"Burden of proof"
The December 2014 submission
Lord Justice Floyd:
Lord Justice Lewison: