Mynydd Y Gwynt Ltd, R (on the application of) v The Secretary of State for Business, Energy and Industrial Strategy

Under article 6(3) of the Habitats Directive and regulation 61 of the Conservation of Habitats and Species Regulations 2010, consent may be granted only where the competent authority is convinced, on the available information and applying the precautionary principle, that the project poses no real risk to the integrity of the protected site.

The applicant bears the practical burden of providing sufficient information and reasoned analysis. Assumptions, estimates and probabilities may be used, but they must be identified and reasoned rather than guessed. Where important uncertainties remain, the authority may lawfully refuse consent without making its own estimates. Its evaluative assessment is subject to conventional judicial review.

The claimant sought a development consent order under section 37 of the Planning Act 2008 for a wind farm in mid-Wales. The proposed site was near the Elenydd Mallean Special Protection Area, whose qualifying species included red kite.

An examining authority recommended consent, finding no real risk that red kites using the site originated from the SPA. The Secretary of State disagreed, considered that the information was insufficient to exclude a risk to site integrity alone or in combination with other projects, and refused the application. The claimant sought judicial review on the adequacy of the appropriate assessment, alleged inconsistency with other decisions, and the consideration of imperative reasons of overriding public interest.

1. Judicial review dismissed. The Secretary of State was entitled to refuse the development consent order.
2. The distinction between screening and appropriate assessment is principally one of the level of investigation and interrogation required. Both involve evaluative judgments about risk. The second stage requires a higher standard of investigation and assessment after the applicant has had a proper opportunity to provide information.
3. The decisive question was whether the Secretary of State was convinced, taking account of all material considerations and the conservation objectives, that the project posed no real risk to the integrity of the SPA. The applicant bore the practical burden of supplying sufficient information and analysis.
4. Assumptions, estimates and probabilities could properly be used despite scientific uncertainty, but they had to be identified and reasoned. The Secretary of State was not required to invent estimates or conduct an iterative process after the examination had closed.
5. There were substantial unresolved matters, including the proportion of red kites originating from the SPA, the reliability of collision-risk data, the sustainable mortality level, and cumulative effects from other wind farms. The Secretary of State was entitled to give considerable weight to NRW’s advice and to conclude that the absence of sufficient information meant that no adverse effect on integrity had been ascertained.
6. There was no separate inconsistency ground. The comparator cases were materially different, and one decision post-dated the decision under challenge. Nor was the Secretary of State required to consider imperative reasons of overriding public interest in detail when the environmental effects remained undetermined and the claimant had not advanced that case.

Not an appeal. The judgment concerned a judicial review of the Secretary of State’s refusal of the development consent order.