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Home / News and Insights / Blogs / Planning Act 2008 / 864: A blow for offshore wind – two delays and a refusal – and a COVID-19 update

Today’s entry reports on the three windfarm decisions that were due this week.

Monday 1 June 2020 was supposed to have seen three decisions on offshore wind Development Consent Orders, which could have allowed over 4.5GW of renewable energy to be built. In the event two of them (Hornsea Three and Norfolk Vanguard) were delayed for a further month to 1 July 2020, and the third (Thanet extension) was refused late on Tuesday 2 June 2020 (although the decision letter bears Monday’s date).

Why was it refused? In a nutshell, to quote paragraph 6.1 of the decision letter:

‘approving this application would not be in accordance with [Renewable Energy National Policy Statement] EN-3 policies relevant to shipping, navigation and ports because the proposed development does not reduce the increased navigational risk to ALARP [as low as reasonably practicable].’

That meant that it infringed paragraph 2.6.165 of the Renewable Energy National Policy Statement, and also that:

‘the adverse impact of the proposed development would outweigh its benefits’.

It still gets the full analysis though, so here goes.

  • Project: a 340MW extension to an existing wind farm off the Kent coast;
  • Promoter: Vattenfall;
  • Application made: 27 June 2018;
  • Three inspectors, Rynd Smith (his seventh), Stephen Bradley (his first) and Jessica Powis (her first);
  • 59 relevant representations, below average;
  • 23 written representations, fairly low;
  • 243 questions in the first round, fairly low;
  • Two compulsory acquisition hearings, nine issue specific hearings and one open floor hearing – high;
  • Three Local Impact Reports, from Thanet, Dover and Kent;
  • Examination exactly six months, recommendation exactly three months, decision eight and a half months, ie five and a half months late;
  • 706 days from application to decision, just over 21 months, one of the longest; and
  • 970 documents on the Planning Inspectorate web page on the date of the decision (not including the relevant representations), high.

Some notes from the decision letter. The decision regulations require consideration of legitimate uses of the sea where there is a deemed marine licence in the DCO, as here, which figured significantly.

The Examining Authority took a dim view of (some) experts:

‘I[nterested] P[artie]s and O[ther] P[erson]s presented a practical level of expertise and specific local knowledge and local operational experience that was not matched by that of the Applicant’s experts.’

Furthermore, when the Secretary of State consulted on a further collision risk assessment, some parties had stood their experts down so they couldn’t comment. Not sure that’s the applicant’s fault, mind you, although earlier engagement may have helped.

There was an issue about a private club that was ‘protected open space’ in the development plan, but the ExA concluded that it did not count as open space for the purposes of the Planning Act 2008 since it was not available for public recreation or any other part of the definition, a useful finding for future projects.

The French government weighed in on effects on Natura 2000 sites; our government agreed with the ExA that the applicant’s screening of effects was sufficiently robust.

Like Navitus Bay before it, does this decision demonstrate that some of the Crown Estate’s leased areas were not in fact suitable for wind farms? Caveat emptor, I suppose. Interestingly by the end of the examination the Crown Estate had not agreed a lease with the applicant, but maybe doing so was always dependent on getting the DCO.

That is the fifth DCO application to be refused; another six were withdrawn post-submission. One was not accepted for examination and never resubmitted; the most recent non-acceptance (Thurrock Generation) has recently been resubmitted.

That still represents 84 / 89 approvals from applications that have been decided, or 94.4%.

COVID-19 update

This week the Planning Inspectorate has updated Advice Note Seven to include more or less the same text about carrying out surveys during the pandemic at section 2 as was in the Oikos scoping opinion I mentioned a couple of blogs ago.

The first virtual DCO hearing will take place on Tuesday 9 June for the A38 Derby Junctions project. Good luck to all involved!

The M25 Junction 10 project asked that it did not need to put up a site notice to advertise forthcoming hearings (the one case where the requirement can be waived). The Examining Authority did waive it but asked that an additional newspaper notice be published to compensate.

The A1 Birtley timetable has been varied to accommodate virtual hearings, but without the six months being extended, which is promising. The Kemsley timetable has been varied to avoid hearings altogether, which is interesting.

The South Humber Bank project has started its representation period, the first one to start since lockdown. The s56 notice is worth reading as it has various compensating activities for not having the usual document deposit at libraries etc. There are still two physical deposit sites, but at the applicant’s office and at the site office, and by appointment only. Hard copies of the application and e-readers with them on are available for people to borrow.

No changes have yet been made to the law; the two main areas that I think need attention are document deposit/site notices and expiry of consents.

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