Mynnydd Y Gwynt Ltd, R (on the application of) v Secretary of State for Business Energy And Industrial Strategy

Under regulation 61 of the Conservation of Habitats and Species Regulations 2010, a competent authority may approve a project only if satisfied that it will not adversely affect a protected site’s integrity. Absolute certainty is unnecessary, but unresolved doubt requires refusal.

An applicant must provide such information as the authority reasonably requires. Information may include explanation, analysis and professional opinion, not merely raw data. The authority remains responsible for the ultimate assessment. This statutory default is not a legal burden of proof on the applicant. A decision based on an appropriate assessment is reviewable on ordinary Wednesbury rationality grounds.

The appellant sought a development consent order for a 27-turbine wind farm adjoining the Elenydd Mallaen Special Protection Area. The Secretary of State refused consent because the available evidence did not exclude an adverse effect on the protected red kite population, whether from the project alone or in combination with other wind farms.

The Planning Court dismissed the appellant’s judicial review claim in [2016] EWHC 2581. On appeal, the appellant argued principally that the Secretary of State had demanded excessive certainty instead of making a reasoned assessment from the available evidence. It also challenged the scope of the applicant’s information duty, alleged inconsistency with other wind-farm decisions, and relied on the absence of specific reference to one evidential submission.

The central issue was whether the refusal was unlawful on Wednesbury principles.

1. Appeal dismissed unanimously. The Secretary of State’s decision was lawful, and the Planning Court had correctly rejected the judicial review claim. The Secretary of State was entitled to prefer the advice of the statutory conservation body to that of the examining authority and to conclude that the information needed for a favourable assessment was absent.

2. Article 6(3) of the Habitats Directive and regulation 61 of the Conservation of Habitats and Species Regulations 2010 require an appropriate assessment where a significant effect on a protected site cannot be excluded on objective information. Following that assessment, consent may be granted only if the authority is convinced that the project will not adversely affect the site’s integrity. Absolute certainty is unnecessary. Where scientific certainty cannot be achieved, the authority must use identified and reasoned probabilities and estimates; if doubt remains, consent must be refused.

3. The word “information” in the applicant’s statutory duty can extend beyond raw data to explanation, analysis and professional opinion, depending on context. The evaluative assessment remains the competent authority’s responsibility. The statutory qualification that only information reasonably required need be supplied protects applicants from unreasonable requests. The Secretary of State’s request for evidence concerning combined mortality and tolerable mortality levels was unobjectionable.

4. Describing the applicant as bearing a “burden of proof” was unhelpful. The authority must assess all available information under the governing legal test. Regulation 61(5) nevertheless creates a default position: without sufficient information to satisfy the authority that the project will not adversely affect the site, consent cannot be granted. It is therefore practically in the applicant’s interests to supply the information necessary for a favourable decision.

5. The Secretary of State sought clarity rather than proof of a negative beyond reasonable doubt. She was entitled to identify unresolved matters concerning connectivity, collision mortality, mitigation, survey methodology and combined effects, and was not obliged to make assumptions unsupported by reasoned material.

6. The other wind-farm decisions were not irreconcilable because connectivity and the conservation body’s advice differed. Nor did the absence of an express reference to the appellant’s December 2014 submission show that it had been overlooked. The documentation and issues were demonstrably understood.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously in [2018] EWCA Civ 231.
2. Planning Court: Hickinbottom J dismissed the application for judicial review in [2016] EWHC 2581.