1040: ExA overruled on a windy DCO, and new Welsh infrastructure regime

Today’s entry looks at the grant of development consent for the Sheringham Shoal and Dudgeon Offshore Wind Farm Extension and the new Welsh Infrastructure Act.

Turbine Time

Here’s our usual summary table for DCO decisions:

• Project: the Sheringham Shoal and Dudgeon Offshore Wind Farm, comprised of 53 wind turbines generating 786 MW and onshore connections.
• Promoter: Equinor New Energy.
• Application made: 5 September 2022.
• Application decided: 17 April 2024 (~19 months).
• Five inspectors: Menaka Sahai (lead panel member), Jonathan Manning, David Wallis, Rod MacArthur, and Steven Rennie.
• 130 relevant representations (medium-ish).
• Seven Issue Specific Hearings, two Compulsory Acquisition Hearings, and two Open Floor Hearings (moderate to high).
• 422 questions in First Written Questions (medium to high)
• Five local impact reports.
• 1,514 documents were on the Planning Inspectorate web page on the date of the decision: high.

There are a few interesting points to note from this relatively short (33-page) decision letter. The Examining Authority actually recommended refusal on the basis that the project would adversely affect the integrity of European sites and, more problematically, that the tests in the Habitats Regulations for compensation were not met.

The ExA concluded that the project failed because of the absence of a package of compensatory measures that would protect the coherence of the National Site Network. The sandwich tern feature of the Flamborough and Filey Coast SPA would be irreparably harmed by the project, with an adverse effect occurring without suitable or sufficient compensation. This is the usual SPA to be affected by a North Sea offshore wind project, but a different species, it’s usually the kittiwake.

The Secretary of State disagreed. This was not because the Secretary of State was comfortable relying on ’strategic compensation’, the concept of providing mitigation across a number of different offshore projects, given statutory effect by the Energy Act. In fact, the Secretary says that the Marine Recovery Fund was not in place and so did not provide assurance. The purpose of that fund is to be an optional route for wind farm developers to pay into the central fund to discharge their compensation obligations to fulfil their mandatory requirement to compensate for negative effects that cannot be avoided.

Instead, the Secretary of State imposed further conditions that would require further progress on the compensation for the affected sandwich tern and guillemot. However, they agreed with the promoter that the measures have a reasonable chance of compensating for the effects of the project. I think there is an interesting point in the IROPI section – not seriously disputed by the ExA or Natural England: the imperative reasons for overriding public interest were based on the need for decarbonisation, and alternatives considered by the Secretary of State were limited to either ‘do nothing’ or alternative offshore wind projects.

There is quite a lot about navigational risk in the decision letter and the recommendation report. EN-3 states that wind farms should not be consented to where they would pose an unacceptable risk to navigational safety after mitigation measures have been adopted. The Maritime Coastguard Agency considered that a loss of sea room in the Outer Dowsing Channel would pose an unacceptable risk to navigational safety and concluded that the adverse effects would not be reduced to As Low As Reasonably Practicable. There was a technical dispute about sea room available. The promoter disputed the MCA’s view, but ultimately the Secretary of State was not persuaded.

The ExA recommended, and the Secretary of State agreed, that a condition in the Deemed Marine Licence should be added to ensure that if monitoring identified impacts worse than those anticipated, mitigation would be required. The suggestion that the mitigation would require separate consent and was therefore not appropriate to be secured was not a sound basis, in this case, for omitting such a condition. The phrase ‘adaptive management’ makes an appearance in the DCO on that basis.

The DCO contains a Hillside-esque provision ensuring that no conflict with the A47 North Tuddenham DCO would give rise to a breach of that order, causing an enforcement action under Section 161. Again, Hillside-related provisions in DCOs are now becoming the norm, rather than the exception.

Article 43 of the DCO applies the appeals process which exists under the TCPA (under section 78) to requirements, but Schedule 2 also contains a bespoke appeals process. It would be interesting to see how these two provisions interact, if ever triggered. There is an amendment of a Section 36 Electricity Act consent too (this is a pre-Planning Act or sub-threshold electricity generation consent, only a handful of DCOs have done this). The definition of maintenance in the DCO is restricted to those works assessed in the ES, rather than those works which do not give rise to materially new or materially different effects (so arguably tighter than usual).

Infrastructure (Wales) Bill

The Infrastructure (Wales) Bill has now been passed, and it’s now about to become an Act! You can watch a briefing we gave on the Bill as introduced last year here. Most of that presentation remains relevant, so if you need a refresher, do watch!

The intention of this new legislation is to create a new system for ‘Significant Infrastructure Projects’, which are granted an Infrastructure Consent (rather than development consent as is the case in the DCO regime) via an Infrastructure Consent Order (an ‘ICO’; commiserations to the Information Commissioner’s Office for the appropriation of their acronym). Infrastructure consent is mandatory for some development, and in circumstances where one is obtained, separate planning permission is not required. Like a DCO, it can include compulsory acquisition, and the equivalent of Schedule 5 to the Planning Act 2008 (which includes non-exhaustive matters which could be included in a DCO) is Schedule 1 to the new Act.

SIPs can include associated development (unlike the existing Developments of National Significance regime in Wales) and the decisions on them will be carried out in accordance with Infrastructure Policy Statements (like National Policy Statements for the DCO regime) although special status is also given to the National Development Framework for Wales.

The SIP thresholds are different from the DCO regime (eg, for electricity generation, it’s above 50 MW but below 350 MW; for roads, the hectare measurements are lower than in England rather than 10-15 hectares; 1km of new road is caught). There is an ability to be directed to become a SIP (like a section 35 direction).

The process includes pre-application consultation, hearings, and it talks, walks, and smells a lot like the DCO regime with subtle differences. We’re looking forward to advising on Infrastructure Consent Orders – please get in touch if you’d like to discuss!