1015: Welsh Wind and Moroccan Sun

Today’s entry reports on the grant of development consent for the Awel y Môr Offshore Wind Farm, and the making of a section 35 direction for the XLinks Interconnector project.

Gone with the wind

Here are some key facts about the Awel y Môr Offshore Wind Farm application:

• Project: offshore wind farm comprised of 50 wind turbines producing over 350 MW off the coast of North Wales at Llandudno;
• Promoter: RWE / Awel y Môr Offshore Wind Farm Limited
• Application made: 20 April 2022
• Application decided: 20 September 2023, approximately 17 months
• Five inspectors: Jonathan Hockley (Panel Lead), Alex Hutson, Helen Cassini, Jason Rowlands and Richard Morgan,
• 60 relevant representations: below average;
• 14 written representations: relatively low;
• 534 questions in the first round: high;
• Four issue specific hearings, one compulsory acquisition hearing, and one open floor hearing: low;
• One local impact reports;
• One consultation during the decision stage on protective provisions; and
• 1,128 documents on the Planning Inspectorate web page on the date of the decision: above average.

Given some recent disappointing news about offshore wind, the grant of consent for an offshore wind project is no doubt music to the ears of many (particularly heavy metal fans). Here are a few points that stood out from the decision, most of which relate to the use of requirements.

First, there is some discussion around the consideration of ‘offshore environmental net gain’ from the draft EN-3 in the decision letter. That policy sets out an approach to development that aims to leave the natural environment in a measurably better state than beforehand. Promoters should therefore not just look to mitigate direct harms but also consider whether there are opportunities for enhancements.

This is not a formal requirement for this project, given that the draft EN-3 is still, well, a draft. The Recommendation Report notes that while there were opportunities for enhancements, the commitments were ‘somewhat lacking’. Relatedly, the ExA was ‘disappointed’ that the period of habitat aftercare of up to three years does not reflect the short-term impact duration of less than five years defined in the ES. The Secretary of State agreed and changed the aftercare period for five years in the DCO.

Second, there is an interesting point of detail in the consideration of 2.6.179 of EN-3. That paragraph sets out:

‘Where a potential offshore wind farm is proposed close to existing operational offshore infrastructure or has the potential to affect activities for which a licence has been issued by Government, the applicant should undertake an assessment of the potential effect of the proposed development on such existing or permitted infrastructure or activities.’

The promoter of an adjacent wind farm, Rhyl Flats Wind Farm, was aggrieved that this project would risk reducing the wind energy reaching their existing turbines by 2% of their energy generation through wake loss (that is not a term for how you feel reading these blog posts). They therefore considered that the project failed to comply with this because they hadn’t undertaken an assessment.

The promoter argued that this paragraph was not relevant to the project, arguing that the reference to ‘offshore infrastructure’ did not include other offshore wind farms but only the defined category referenced in a later paragraph of EN-3 (ie, 2.6.176, which sets out that ‘other offshore infrastructure’ includes telecommunications cables, oil and gas pipelines, or exploration / drilling, or marine aggregate dredging but not, expressly, other offshore wind farms). The assessment required under this paragraph was, they said, in any event discharged by the Environmental Statement, and they had taken steps to avoid an impact on the adjoining wind farm.

The ExA disagreed with the promoter finding that the Rhyl Flats Wind Farm ‘does fall within the definition of existing operational infrastructure, as referenced in NPS EN-3’ and ‘an assessment should have been undertaken’ and so this project ‘does not, in this respect, comply with paragraph 2.6.179 of NPS EN-3.’

Crikey, how then would they get around this? They proposed a requirement that explicitly required an assessment to be undertaken before any wind turbine was erected. The Secretary of State agreed. They both rejected the Rhyl Flats Wind Farm suggested requirement (which cheekily asked for an indemnity to cover any losses) and proposed one that requires ‘an assessment of any wake effects and subsequent design provisions to mitigate any such identified effects as far as possible’.

There is a curious statement in the requirement that states, ‘The assessment must be based on the scope of the DCO as granted.’ I get the basis for including this: the ExA is saying the project fails to comply with a part of EN-3 at the point of grant, and so the assessment should be based on that. But if you were looking at the actual impacts, shouldn’t it be based on the final design, noting that the 2% loss is based on maximum parameters, which are necessarily a worst case.

Third, the project would give rise to a number of significant adverse effects during construction, operation, and decommissioning of the offshore works on seascape, landscape, and visual receptors, some of which are coincidental with statutory designated landscapes, including an AONB and a Great Heritage Coast. As these impacts could not be mitigated, the promoter proposed securing an enhancement package under a requirement (requirement 24). In effect, the requirement secures principles document sets out details of this process, detailing the mechanism for the delivery of the scheme, a proposed fund size of £5,000,000, a payment profile of 30 years and a steering group.

But does Requirement 24 actually do that directly? What it actually does is secure a principles document in which it is explicitly stated that the ‘mechanism for delivery’ will be a section 106 agreement. The promoter’s note on this point sets out that ‘in lieu of the agreement being finalised… a Requirement has been agreed’ which might be taken to suggest that the outcomes are directly secured, but my reading is that this requires a Section 106 agreement, which will in turn secure the outcomes.

Fourthly, the ExA resisted requests for a requirement to secure a skills and employment strategy because ‘no significant adverse residual effects were identified in respect of employment and skills in the socioeconomic assessment’ and ‘risked offending against the tests of needing to relate to planning and necessity’. The Secretary of State disagreed because ‘there is precedent for such requirements; local authorities are happy to accept it, and the Applicant has offered this’.

Finally, worth noting that the Secretary of State also overruled the ExA on the time limits for compulsory acquisition. The ExA thought that the promoter’s request for seven years was just fine, but the Secretary of State ‘considers that standard 5-year approach would be sufficient in the Applicant’s case, which would still enable the Applicant to apply for an extension if required, subject to the appropriate justification.’

This seems odd: offshore wind farms have to bid into CfD rounds for funding, and so providing additional time seems justified given there is a lengthy process to go through for amendment of a DCO and Article 31 limits the powers of compulsory acquisition until such time as funding is secured. Simply saying they can amend the DCO seems like an excessive demand given the urgent and critical need for this infrastructure.

Casablanca

The Secretary of State and DESNZ have been busy this week and have made a section 35 direction in relation to the XLinks interconnector project, effectively directing that project into the DCO regime. That project is going to provide solar power, collected from Morocco, to the UK. The developers set out that it would ‘will generate electricity to meet approximately 8% of the UK’s electricity needs.’ Interestingly, the local council submitted a letter of support for the move.