Infrastructure Planning Blog

Today’s entry reports on the new consultation on consultation requirements, as well as the decision to grant development consent for the Morgan Offshore Wind Project: Generation Assets project.

We heard you like consultations, so we’re consulting on consultation

Inspired by the rapper Xzibit putting rims on rims, the government has published its consultation on consultation for Nationally Significant Infrastructure Projects (NSIPs). Here are a few key points.

The consultation goes to great lengths to explain the benefits of pre-application consultation notwithstanding the removal of the statutory requirements to consult on DCO projects. The intention here appears to be to give developers tips on best practice and encourage them to consult. The most important thing to note in this context, is the clear statement that “Following the changes in the Planning and Infrastructure Bill, whether and how consultation and engagement have been undertaken would not be a matter tested at acceptance”. You can read our thoughts on the removal in Blog 1.

On the acceptance test more broadly, as a reminder the Planning and Infrastructure Bill includes changing the test for whether an application is accepted so that requirement that an application must be “satisfactory” will instead be whether it is “suitable to proceed to examination”. The consultation makes clear that a “high quality of applications – and the documents required under section 37 (with the exception of a consultation report) – will still be required…” This will be, perhaps, the most difficult part of the guidance to navigate.

The attempt to effectively re-introduce engagement requirements indirectly as a reason for a project not being ready to “proceed to examination” is a real risk, and it’s something the Government should be alive to. I have to confess when I read the new test of being able to “proceed to examination”, I thought this was a clear rebuke to gold-plated standards, and an acknowledgment that the overall programme (i.e., pre-examination and examination), without needing to agree matters, was perfectly fine. Let's hope the alternative interpretation is not taken.

On the fast-track approach, there is an acknowledgement that “no applicants have applied to be fast-tracked, and therefore it is not possible for [government] to assess the operation of the process” but that “it is overly restrictive and inflexible and is not able to support a wide variety of projects”. The ideas which are being considered in this context include the suggestion that “government takes account of the need to support project-types which are considered by government to be a priority (i.e. those capable of delivering government’s objectives)”. My own view is that without a significant dilution of the quality standards, promoters will continue to see any time savings given by the fast-track route as a lift and shift of time to the pre-application period.

There are quite detailed, and helpful, proposals on changing the Infrastructure Planning (Compulsory Acquisition) Regulations 2010 which apply when land use changes are introduced post-application. The changes include more flexible timescales, removing some of the requirements for specific windows of time for representations, and reducing the requirement for separate procedural decisions in the wider process. 

Helpfully on Local Impact Reports, the consultation moots the idea that “local authorities should avoid carrying out their own environmental or technical assessments of the applicant’s proposals without clear justification” and, for the examination more broadly, “public authorities are encouraged to treat requests to attend hearings and examination deadlines as a priority”.

Morgan and Wise

The Secretary of State has granted development consent for the Morgan Offshore Wind Project: Generation Assets. Importantly, there is a separate application called the Morgan and Morecambe Offshore Wind Farms Transmission Assets which is a separate project which will include the transmission assets for (as the name suggests) this project, and the Morecambe Offshore Wind project (which is due to be determined in October).

One interesting point is the consideration of cumulative effects in the context of the transmission assets. Natural England raised concerns on the separation of the Proposed Development from the transmission assets, raising a concern that there could be a risk of stranded assets.

The Secretary of State disagreed. In my opinion, rightly so. As set out in the Recommendation Report, the approach to separate consenting for grid connections is endorsed in paragraph 4.11 of the Energy National Policy Statement (EN-1) which importantly states that “different elements of a project may have different lead-in times and be undertaken by different legal entities subject to different commercial and regulatory frameworks (for example grid companies operate within OFGEM controls) making it inefficient from a delivery perspective to submit one application”.

The Recommendation Report is clear that there is a distinction in the considerations of wider projects where “Comprehensive levels of environmental information were available” and projects where there is “no further information” or “lack of published environmental information available”.

We mentioned in a previous blog that EIA is growing arms and legs. It is important to keep banging the drum, as the Supreme Court said in the Finch judgment, that “only effects which evidence shows are likely to occur and which are capable of meaningful assessment must be assessed”. If the parameters are simply not known, the answer is not to argue there is some kind of deficiency, it is to acknowledge, as one learned judge once said, that the EIA Regulations “do not impose a standard of perfection in relation to the contents of an environmental statement”.

This does remind me of the case of Khan v Sutton [2014] EWHC 3663 (Admin) where an energy recovery facility did not assess an associated pipeline. In that case, there remained a “want of detail” and the decision-maker had been reasonably entitled not to request more information in an EIA. The desire for unrealistic assessments is helpfully diluted by the Secretary of State’s confirmation that “in the absence of publicly available environmental information… the CEA is as up to date as is possible, is robust and the information on cumulative effects is sufficient for him to determine this Application”.

There is quite a lot on aviation and radar impacts, with concerns cited in relation to Walney Aerodrome, RAF Valley, Ronaldsway Airport, Warton Aerodrome and Blackpool Airport.  Those concerns boil down to the physical presence of the wind turbines and their impact on radar systems and Minimum Sector Altitude. There are some quite detailed requirements dealing with these impacts in Schedule 2 of the DCO (in fact 7 of the 10 requirements address these impacts), which require mitigation schemes to be approved by the Secretary of State (following consultation with the CAA, MoD, NATs and others) before any wind turbines are erected.  After considering the lengthy submissions on these issues, the Secretary of State was satisfied that these requirements were appropriate and sufficient to manage the impacts of the project on aviation and radar systems.

Take note of the Secretary of State’s comment on wake effects (that’s where one wind farm reduces the wind speed of another wind farm). Ørsted were worried about the project’s proximity to its own offshore wind farms, highlighting risks of reduced wind speed or changes to its direction which would affect their operation. Both Ørsted and the Examining Authority thought a detailed assessment of wake effects should be undertaken and submitted. The Applicant refused. 

The DL notes that “the Secretary of State is particularly disappointed to see that the Applicant refused to respond to an express and reasonable request from the ExA for a wake assessment for … legalistic reasons. This issue could and should have been properly addressed during the examination by reasonable parties acting collaboratively, rather than adopting entrenched positions”. These comments are in line with the other recent offshore wind decision (see Blog 11).

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