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Home / News and Insights / Blogs / Planning Act 2008 / 977: A new habitats regime for offshore wind and a railway project

Mustafa Latif-Aramesh
Partner & Parliamentary Agent

Happy New Year! This week’s entry looks at impending changes to the Habitats Regulations for offshore wind as well as railway project in Cambridge and new section 35 directions.

Pooling compensation for offshore wind

On 29 December 2022, the government announced further details about the ‘Offshore Wind Environmental Improvement Package’ (OWEIP) which is intended to support the accelerated deployment of offshore wind. The briefing paper, published by BEIS, sets out that:

The Measures in the Bill include powers to amend and improve the Habitats Regulations Assessment process, specifically for the marine aspects of offshore wind developments. These amendments will help reduce the time it takes to process new projects and assess environmental impacts, whilst maintaining protection for wildlife and marine habitats.
By providing a power to tailor HRA processes, the government can ensure that environmental protection is addressed early in the consenting process. This will allow adequate time to resolve discrepancies in evidence and data, inform and create ecologically robust compensatory measures and subsequently speed up the consenting process.

We can therefore expect changes to the Habitats Regulations for offshore wind developments. It will be interesting to see how these changes work in the context of associated, onshore development, but also how they work in the context of the new Environmental Outcome Reports (which, under clause 149 of the LURB, suggests EoRs could also substitute HRAs, not just EIAs). One of the key changes which is included in the briefing paper is the concept of ‘strategic compensation’. The briefing paper sets out as follows:

New legislation will enable the delivery of strategic compensatory measures, facilitating collaborative work between developers and government to work collectively across offshore wind projects to compensate for negative environmental effects that cannot be avoided, reduced, or mitigated. Considering compensatory measures upfront and strategically through new HRA legislation will reduce the time spent resolving issues project by project.

Importantly, ‘measures will still need to compensate for the specific impacts of each development’ but ‘they could be more effective and deliver greater ecological benefit at a strategic level.’ These strategic compensation measures will ‘not be putting new levies onto UK taxpayers’ and instead they are proposed to be funded via the Marine Recovery Fund.

What might these strategic compensation measures look like? Well the Offshore Wind Industry Council’s Derogation Subgroup already has some ideas on this, including artificial nesting, predator control, habitat creation and infrastructure removal.

Hillside disapplied for railway project

We commented on what Hillside meant in the context of infrastructure projects in a previous blogpost – and we noted that one of the four potential scenarios was where a DCO overlaps with unrelated, third party planning permission which has conditions or development that conflict with works authorised by a DCO.

We don’t often talk about Transport and Works Act Orders in these parts (and no, we aren’t starting a Transport and Works Act 1992 blog), but a recent TWAO decision may help elucidate how DCOs should deal with the Hillside scenario mentioned above. The Cambridge South TWAO, was made just before Christmas.

The project was adjacent to, or otherwise overlapped with, five planning permissions for parts of the Cambridge biomedical campus, including facilities operated by AstraZeneca and the University of Cambridge. The acquisition of land by Network Rail, the promoter, and implementation of the project made it physically impossible to comply with all of the conditions attached to those permissions: for instance, AZ and UoC would no longer be able to provide a landscaped buffer of a specific size on their retained sites. The drafting of the TWAO confirms that:

  1. the conditions have no effect in the Order limits; and to the extent there is a conflict;
  2. there is deemed to be no breach of the relevant conditions; and
  3. no enforcement action is to be taken in respect of the development carried out under the extant planning permissions.

Note that this goes well beyond saying that both developments can continue and explicitly addresses the Hillside-specific points on the status of the conditions and separately enforcement. This approach was accepted by the local planning authorities, on the basis that the TWAO project would provide alternative mitigation to replace that envisaged under the original permissions.

There are other matters, unrelated to Hillside, in the decision letter including the disaggregation of parts of the project for Green Belt purposes (the station being local transport infrastructure, but other parts being inappropriate development) as well as an interesting application of the equally advantageous test for the acquisition and replacement of open space.

Hydrogen and sustainable aviation fuel section 35 directions

My colleague, Richard Marsh, recently secured on behalf of our client, Lighthouse Green Fuels, a section 35 direction for the first waste-to-sustainable-aviation-fuel DCO project. You can see the direction here.

BP also obtained a section 35 direction for their low carbon hydrogen production plant of up to 1,200 MW (thermal MWe, hence the need for a direction). Interestingly, part of the project includes a hydrogen pipeline which would be an NSIP in its own right, but its unlikely that the plant could be promoted as associated development to that (NSIP) pipeline because it probably can’t be said that the plant is ‘subordinate’ to the NSIP (as per the government guidance).

You can read about failed applications for section 35 directions in this previous blogpost – from my snooping and various other means, there were no unsuccessful applications for section 35 directions in 2022. It is expected there will be at least one business and commercial project request and several water-related requests in 2023.

The Christmas competition winner will be announced next week.

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