935: First redetermined wind farm and an on time power station
Today’s entry considers two of the latest developments in the Planning Act 2008 regime.
Norfolk Vanguard offshore windfarm
First, on 11 February the Secretary of State for Business, Energy and Industrial Strategy granted the Norfolk Vanguard Offshore Windfarm Development Consent Order (DCO) for the second time. The original DCO was granted on 1 July 2020, but on 18 February 2021 it was quashed in the High Court, the second to suffer this fate, but only two days after the first one, the Manston Airport DCO.
The quashing was because the Vanguard decision left assessment of cumulative effects of the proposed joint substation at Necton in Norfolk, which was to be shared with the sister windfarm Boreas, to that latter decision.
That latter decision was taken in December, which did take the cumulative effects into account, so the problem has sort of cured itself; however, they have been further considered in this decision and other matters have also been addressed. The Secretary of State broadened the re-consideration well beyond the reason for the original order being quashed, and the new DCO now has a whole new schedule on compensation measures, the main change. The new Schedule 17 requires a ‘benthic implementation and monitoring plan’, a ‘kittiwake implementation and monitoring plan’ and a ‘lesser black-backed gull implementation and monitoring plan’ – a BIMP, KIMP and less pronounceable LBBGIMP, just like Boreas. Hornsea 3 has a KIMP and a BIMP but not a LBBGIMP. The three projects will now be competing for suitable land or sea for the compensation.
I have created a tracked-change version of the new decision letter compared with the old and also the new DCO compared to the old one, which you can see if you are interested. Quite a lot of both is unchanged.
In the decision letter, of course there is additional information about the quashing and reconsideration. Several people said the two projects ought to start again as a joint DCO, but that wasn’t going to happen. Reopening the Vanguard examination was also deemed not necessary. The letter notes that the Examining Authority would have recommended approval had it not been for seabird impacts (ie they recommended refusal), so now that these have been dealt with the decision presumably now accords with what the ExA were after.
Reference is made to the Energy White Paper and draft revised National Policy Statements, but not the Net Zero Strategy. Respondents asked to wait for the conclusion of the Offshore Transmission Network Review, which might result in less or no need for lengthy onshore cables, but the letter says that waiting might threaten the 40GW by 2030 target and anyway the review was proceeding on an ‘opt-in’, i.e. voluntary participation, basis. Projects that have a grid connection but no DCO or contract for difference would be in scope, though, other projects please note (para 4.16).
One other change is that maintenance planting is extended from five to ten years, the latter figure being in the Boreas DCO, despite the Applicant’s protestations that it wouldn’t have access to land after five years. On the landscape impact point the approach taken was the impact on someone moving around not just static viewpoints, I hadn’t seen that before. Section 5 on the habitats regulations assessment has been completely rewritten.
For the DCO, apart from Schedule 17 on compensatory habitat provision, there are some interesting minor amendments elsewhere. The power to construct the project has been removed from article 5 – presumably granting development consent in article 3 effectively does that already. Provisions about transferring a marine licence in the Marine and Coastal Access Act 2009 have been disapplied from the article allowing powers of the DCO to be transferred. Article 15(6) about environmental permitting has been reworded. Some of the standard modifications of compulsory purchase legislation have been reworded. Some ‘has the same meaning as in xxx Act’ uses have been substituted by the words in the other act. Highway ‘mitigations agreed during the Boreas examination’ have been added to the certification of plans article (seems a bit vague). The standard service of notices article was missing and has now been added.
Thurrock Flexible Generation Plant
Secondly, on 16 February the same Secretary of State granted the Thurrock Flexible Generation Plant DCO for the first time, and on time. That project did not have any delays except that the preliminary meeting was in two stages nearly four months apart.
Here are the facts and figures:
- project: a 600MW gas-fired power station plus 150MW of battery storage east of Tilbury in Thurrock;
- promoter: Thurrock Power, part of Statera Energy;
- one inspector: Rory Cridland;
- 31 relevant representations – low;
- 12 written representations – low;
- 228 questions in the first round – below average;
- four specific issue hearings, no open floor hearings and two compulsory acquisition hearings – average;
- 630 days from application to decision (above average but par once the examination got going); and
- 695 documents on the Planning Inspectorate web page on the date of the decision (not including the relevant representations) – below average.
As always, there are some points of general interest.
Two attempts were made to make the application, the first was not accepted mainly on the grounds that the tidal flood risk assessment and details of the design and appearance of buildings were considered insufficient, the second was made successfully three months later.
Changes to the application were proposed before and during the examination, ruled to be non-material and material respectively, no doubt since the latter involving additional compulsory acquisition. They were all accepted and form part of the approval, which was recommended by the inspector.
There is a brief section on how alternatives were considered (Decision Letter 4.4-4.7) and we seem to be back to normal following Aquind.
The project affected common land and provided replacement land, should anyone be faced with a similar problem; the powers were granted without resorting to special parliamentary procedure.
On Tilbury becoming a freeport, the inspector said that the plans were still aspirational and so evidence on the impact on them from this project was not robust (see paragraph 4.95). This also meant that a dispute as to the definition of ‘the Port’ went in the applicant’s favour and does not include the freeport land, to which the protective provisions do not apply. Building on the Green Belt did weigh against the application though.
On carbon, although the project would emit 46m tonnes of CO2 during its lifetime, this was outweighed by the need for ‘peaking’ plants (ie ones that can be fired up quickly to meet surges in demand) such as this one; it would contribute less than 1% of the carbon budget (I doubt many developments would exceed that) and it was likely to displace other less flexible technologies (ie if you don’t have this you’ll have to have something that stays on for longer).
On compulsory acquisition, Network Rail, the Port of Tilbury and RWE all got a veto on exercise of such powers over their land, but at least their consent cannot unreasonably be withheld, which mean arbitration would kick in. The DCO also contains protections for the Lower Thames Crossing. There are examples of DCOs inserting protections in relation to earlier projects, or even overlapping projects but this is novel in DCO terms as it’s a protection for a future project where a DCO has not yet been made, or even applied for.
One change to the DCO made by the Secretary of State is to remove references to his department, something to note in other DCOs, there is just one ‘Secretary of State’.
You may be amused or bemused to learn that one of the benefits of Brexit in the government’s eponymous January 2022 document is the ability to develop a new national policy statement for nuclear developments (see page 77).