Planning Court Upholds rare refusal of NSIP

01 Jan 2018

Planning and Environment

The High Court has upheld a very rare refusal of a Nationally Significant Infrastructure Proposal (NSIP) by the government. On the 19th October 2016, in R. (on the application of Mynydd y Gwynt Ltd) v Secretary of State for Business, Energy and Industrial Strategy [2016] EWHC 2581 (Admin) Hickinbottom J dismissed a challenge brought by way of judicial review against the decision of the Secretary of State.

The Claimant had applied under section 37 of the Planning Act 2008 for a Development Consent Order (“DCO”) for the construction and operation of a wind farm comprising up to 27 turbines with a maximum blade tip height of 125m and associated works, to be known as Mynydd y Gwynt Wind Farm. The proposal amounted to a Nationally Significant Infrastructure Project (“NSIP”) within the meaning of the 2008 Act.

Powys County Council, Natural Resources Wales and others objected to the application and had attended various hearings before an Inspector sitting as the Examining Authority. Tom Cosgrove appeared on behalf of Powys County Council. On the 20 November 2015, the Secretary of State refused the application.

The site was close to the Elenydd Mallaen Special Protection Area (SPA) and the Secretary of State was unconvinced that the development would pose no real threat to the local population of protected red kites.

The Secretary of State had indicated that she did not have the information required to assess appropriately the impact of the development on the integrity of the SPA, “despite further questions having been issued by the secretary of state after the close of the examination”.

“Consequently, the secretary of state cannot grant development consent because she is not able to conclude that there is no adverse effect on the integrity of the red kite feature of the Elenydd–Mallaen SPA,”

The Claimant said the risk to the birds would be “nil” and argued that the government had misunderstood the threat and taken no account of measures it would take to protect the birds.

In a lengthy judgment which highlights the dangers for applicants in failing to provide sufficient relevant environmental assessment information Mr Justice Hickinbottom dismissed various grounds of challenge.

Tom Cosgrove and Ashely Bowes will be discussing the implications of this and other recent developments relating to environmental challenges at the forthcoming Cornerstone Planning Day.