791: Court of Appeal rejects DCO refusal challenge

Today’s entry reports on the latest litigation relating to Development Consent Orders.

The Court of Appeal has issued a judgement on the refusal of the Mynydd y Gwynt wind farm Development Consent Order (DCO) application.

The application was originally not accepted for examination, then resubmitted and accepted. It was refused because of uncertainty around mortality rates for the red kite, a protected species, although the inspector had recommended approval. An unsuccessful challenge was made in the High Court, and this was appealed to the Court of Appeal.

Paragraph 20 of the judgment summarises the issue before the Secretary of State:

‘The Secretary of State had preferred the alternative view of [Natural Resources Wales] that the evidence for this conclusion [that there was no risk to red kite from a nearby Special Protection Area] did not exist. She [for it was Amber Rudd MP] had received very little help from the examiner’s report, which did not engage with the issue, or from the Appellant who had made no substantive representations about it following her request in September 2015’.

The judgment also deals with five other issues that may have wider application, as follows.

The extent to which ‘information’ requested from an applicant can include assessment of the information. The Court of Appeal opined (para 29) that information can:

‘Extend beyond raw data to explanation, analysis and professional opinion, depending on the context of the case’.

Secondly, the Secretary of State and High Court judge both used the phrase ‘burden of proof’. The Court of Appeal said that they shouldn’t have in a planning context, it was merely that the applicant was incentivised to demonstrate that its application would not cause the alleged harm.

Thirdly, the central allegation was that the Secretary of State required ‘certainty’ about the lack of harm, when that was too high a threshold. The Court of Appeal said that she had not required certainty, merely clarity, and was entitled to conclude that she did not have enough of that from the information before her.

Fourthly, two other onshore Welsh wind farms had been approved around the same time, as not having a significant effect on the red kite. The Court of Appeal accepted that would be ‘galling’ for this applicant, but was not irreconcilable with the present decision.

Finally, the Court of Appeal concluded that the Secretary of State did have regard to the applicant’s submission of December 2014, despite not having mentioned it in the decision letter. The Secretary of State doesn’t have to list all the documents he or she took into account.

Timing

The application for a DCO was made on 30 July 2014 and the refusal was issued on 20 November 2015, a fairly typical time of 16 months. Judgment in the High Court was not issued until 19 October 2016, 11 months later, and the Court of Appeal has added another 16 months to the tally. Despite the creation of a planning court, the High Court hasn’t been that quick, and the Court of Appeal has been even slower. It shouldn’t take nearly twice as long to deal with legal challenges as it did to reach the original decision.