Striking a deal with conservationists

Habitat Regulations can present one of the biggest challenges for an infrastructure planning application. Sheridan Treger and Paul Grace of law firm Berwin Leighton Paisner explain the lessons to be learned for promoters of major schemes. 

Late last year Mynydd y Gwynt’s proposals for a Development Consent Order (DCO) for 27 onshore turbines in Powys, west of Aberystwyth, were rejected by the Secretary of State for Energy and Climate Change Amber Rudd. This was on the basis of the unacceptable impact on red kites in a nearby Special Protection Area (SPA). 

The decision proves once again that the DCO process, with its focus on certainties of timescale and process, and at its heart a policy acceptance of the strategic need for many types of nationally significant infrastructure, is nevertheless no rubber stamp.

 A number of recent decisions by the Secretary of State have given the impression that political support for wind farms, especially onshore, may no longer be what it was. And yet taking the decision at face value, issues around the Habitat Regulations left the Secretary of State in a position where she felt unable to grant consent on a sound legal footing.

 So, what went wrong for Mynydd y Gwynt? Natural Resources Wales made representations to the DCO examination that it was concerned about red kites being killed in collisions with wind turbines. Mynydd y Gwynt argued that the red kites found on the proposed project site were not from the SPA, but Natural Resources Wales responded that surveys had not gone far enough to account for the birds’ winter foraging range. The Examining Authority agreed with Mynydd y Gwynt that its assessments were adequate, but the Secretary of State ultimately shared all of Natural Resources Wales key concerns. This proved fatal and led to the DCO being refused. 

Case law on the Habitats Regulations has established that the advice of the appropriate nature conservation body, given its specialist expertise, deserves “great weight”, with a “cogent explanation” needed if it is not to be followed by the decision-maker. So the Secretary of State can often be very hesitant to depart from the advice of Natural Resources Wales or Natural England. This seems very much to have been the case here, where even the Examining Authority had agreed with the applicant’s approach rather than the one advised by Natural Resources Wales. It is hard for anyone in the infrastructure sector with experience of the work that goes into the DCO consenting process not to feel sympathy for Mynydd y Gwynt in these circumstances. But what can promoters and investors in UK infrastructure learn from this refusal?

 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, one way that this can be rebutted is if it would lead to the United Kingdom being in breach of any of its international obligations, here the European Habitats and Wild Birds Directives transposed into UK law by the Conservation of Habitats and Species Regulations 2010 (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, then the project cannot be authorised unless it is justified by an overriding public interest, a high threshold test.

 So a DCO promoter has to provide enough information to the Secretary of State for her to determine whether the requirements of the EU Directives and the domestic Habitats Regulations are satisfied. The relevant nature conservation body gives advice to the Secretary of State as to the adequacy of the information provided. As the Secretary of State has to have regard to that advice in accordance with case law, in an area increasingly fruitful for objectors seeking to judicially review decisions, promoters are best advised to make every effort to agree substantive Habitats Regulations issues with Natural England or Natural Resources Wales before their DCO application is submitted. To proceed otherwise carries great risk. Particularly given the fixed timescales of the DCO examination process, which do not easily allow for significant additional ecological assessment work to be undertaken.