Infrastructure Planning Blog

Today’s blog looks at the grant of development consent for the Five Estuaries Offshore Wind Farm, the new draft National Planning Policy Framework (NPPF) and two novel consenting routes.

On the fifth day of Christmas, my true love sent to me…

The Five Estuaries Offshore Wind Farm Order 2025 was granted on 17 December, the due date following a three-month delay.  Here is the Order and the Decision Letter (DL).

The project is located around 30km from the Suffolk Coast (near the five Stour, Orwell, Deben, Alde-Ore and Blackwater estuaries) across two seabed areas.  It is essentially a two-part seaward extension to the existing Galloper and Greater Gabbard windfarms. It has a grid connection capacity of just over 1GW, comprising 79 turbines.  RWE is the lead developer.

Here are some of the headlines:

• The first 20 pages of the DL are dominated by the SoS saying that management plans securing offshore windfarm environmental mitigation should include (1) detail relating to data-sharing to enable the efficacy of mitigation/compensation to be documented and contribute to the evidence base for better decision making; and (2) monitoring of mitigation/compensation measures.  The applicant had to update its management plans to that effect in the decision stage. Future applicants take note.

• Para 4.47 of the DL sets out the SoS’s position (now well documented in a number of decisions) on wake effects, i.e., where less wind arrives at a windfarm because it is the wake of one or more others. In summary: (1) National Policy Statement (NPS) EN-3 requires a wake loss assessment to be conducted where there are potential wake effects (here the Applicant produced one but only at the SoS’ request); (2) EN-3 also requires applicants to demonstrate that they have made reasonable endeavours to mitigate the impact of wake effects on other offshore wind generating stations but there is no expectation that wake effects can be wholly removed.  In this case, the assessment concluded that the average wake loss to the neighbouring East Anglia 2 development would be around 1%. The SoS concluded that this was “relatively modest” and that “further mitigation would be counterproductive as it would result in total generating loss greater than the wake impacts”.

• The DCO includes a requirement securing the production of a farmland bird compensation plan, designed to compensate for the loss and/or displacement of skylark and corn bunting territories due to the permanent loss of arable habitat. The applicant sought to resist such a requirement, citing the fact that it could only deliver offsite compensation with the co-operation of willing landowners and would be in a ransom position if none were willing to enter into voluntary agreements. The SoS has imposed a requirement anyway, saying that “other, comparatively smaller developments in proximity to the Proposed Development … have included compensation areas for skylarks and other farmland birds as part of their respective planning applications”.

• Requirement 20 secures a minimum of 10% biodiversity net gain for all onshore works, despite the applicant’s view that such a requirement was unjustified because BNG is not mandatory. The SoS navigates this by citing para 5.4.44 of NPS EN-1, which provides that the SoS should consider “what appropriate requirements should be attached to any consent and/or in any planning obligations entered into, in order to ensure that any mitigation or biodiversity net gain measures, if offered, are delivered and maintained”.

• This application engaged the derogation provisions of the Habitats Regulations, due to potential effects on kittiwake, guillemot, black-backed gull and sandbanks on four different European sites.  This means the SoS has to be satisfied there are (1) no alternative solutions (in this case, those were “do nothing” or alternative offshore windfarm projects, but neither would meet the project objectives with an appreciable reduction in predicted impacts on protected sites); (2) imperative reasons of overriding public interest for the development (present, in this case, given the project’s contribution towards renewable electricity generation and ensuring the security of electricity supply from a domestically generated source); and (c) compensatory measures are secured (the applicant put forward a package of compensatory measures, for example through monetary contributions to strategic compensation through the Marine Recovery Fund).

• The ExA (and the SoS agreed) was not convinced that there had been sufficient regard to principles of good design, or effective collaboration with the neighbouring North Falls offshore wind farm, in relation to the proposed onshore substation. Requirement 5 now says that details of the onshore substation must be submitted to an independent design review before being submitted for approval.

• There’s plenty of DCO drafting stocking fillers at section 9 of the DL.  Some treats: (1) final management plans must be in accordance with the outline version, not substantially in accordance with; (2) failed attempt to disapply provisions of the Wildlife and Countryside Act 1981 requiring notice of proposed works within a SSSI to be given to Natural England; (3) removal of the provision authorising (subject to controls) removal of human remains – this was “not considered necessary or appropriate due to separate statutory requirements”.

O Come All Ye Faithful (to read the draft NPPF)

As a Christmas treat, we don’t just have a new DCO decision, but we also have an entire re-write of the National Planning Policy Framework. On the infrastructure side, there are a few things to note. First, just as a by-the-by, “infrastructure” is mentioned 157 times (compared to 77 in the current NPPF). Does that translate into a significant changes so far as infrastructure is concerned? I think it certainly helps in a few key areas.

The draft NPPF specifies that “Substantial weight should be given to the benefits of improving the energy efficiency of existing buildings and/or drawing energy from district heat networks, renewable and low carbon sources”. The current NPPF, by contrast, sets out this should be “significant” weight. Planners generally consider ‘substantial’ to attach greater weight than ‘significant’, but that’s not the position in law (see, for example, this case where it was accepted that “the word 'substantial' does not denote a greater quantum of weight than 'significant'”).

Importantly, the definition of “renewable and low carbon energy” has been expanded to expressly include “nuclear power.. [and] hydrogen and heat from recoverable sources, such as heat recovered from data centres, as well as the storage of renewable and low carbon energy, such as Battery Energy Storage Systems”. Womp!

One significant change relates to areas which are not allocated for low carbon energy infrastructure in local plans. The current NPPF states that local planning authorities should “not require applicants to demonstrate the overall need for renewable or low carbon energy”, but that “subsequent applications for commercial scale projects outside these areas to demonstrate that the proposed location meets the criteria used in identifying suitable areas”. The draft is much more full-throated in relation to non-allocated areas: “Where proposals for this form of development come forward outside areas which have been identified as suitable for them they should be acceptable when assessed against the national decision-making policies in this Framework”. Wowzer!

In the context of the Green Belt, there is also a significant change in the draft NPPF. As it currently stands, ‘local transport infrastructure’ is not considered to be inappropriate development provided “they preserve its openness and do not conflict with the purposes of including land within it.” This has now been significantly changed to 1) include an expanded list of infrastructure (“transport, electricity network and water infrastructure”) and 2) rather than a severe requirement that it must preserve the openness, and not conflict with the purposes, it now states that it will not be inappropriate where “the impact on the openness of the Green Belt is minimised, and there would not be a significant conflict with the Green Belt purposes”). Whew!

For good measure, even where it is considered that any low carbon infrastructure might be inappropriate development, the requirement for “very special circumstances” has a new express gloss to enable low carbon infrastructure by mandating that “very special circumstances may include the wider environmental benefits associated with increased production of energy from renewable sources”. Whoop!

Outside of the pure infrastructure world, the changes to housing near railways stations could be very radical indeed. In particular, there is a significant and robust policy in favour of new homes and mixed-use developments within walking distance (800m) of train, tube and tram stations. On housing, away from railways, there is substantial weight to be given to “additional development within existing plots (including, but not limited to, the addition of mansard roofs, proposals to fill gaps in the existing roof line, the introduction of higher buildings at street corners and additional units within residential curtilages)”. These, in my view, tally up to make an even more supportive environment for new infrastructure coming forward.

The real test here is whether these robust policies will withstand the consultation, and ultimately whether any backlash they may cause will erode their benefit over time.

Deck the halls (with rarely used consenting routes)

This week also saw the grant of the Special Development Order for the Universal Studios Theme Park in Bedford. Special Development Orders are a tool I’ve written about quite a bit in the past, and I think they are a very useful tool for enabling development. Historically, they have been used for wide-ranging uses from the regeneration of Cardiff Bay, utilities on railway tracks, nuclear waste borehole investigations, through to New Towns. You’ll note that Nuclear Taskforce Report recommended their greater use in the nuclear context too.

But SDOs were not the only new permission using a rarely used consenting route. The Department for Transport has obtained a planning permission for the Sevington Inland Border Facility under the new “Crown Development” route under the Levelling Up and Regeneration Act 2023, the first such permission to be granted (despite having reference 000002). We advised on this monumental application under the new regime. The application was submitted on 28 July, and granted permission on 17 December (i.e., just north of four months).

Driving Home for Christmas

We are taking a hiatus for Christmas, and the blog will return on 9 January. Here’s some reading for Christmas Day whilst we’re eating our mince pies:

• My colleagues Sarah Clark, Tom McNamara and Beth King are hosting a webinar on the Welsh Infrastructure Act, and here’s an early preview in the form an article here. Register your interest in the webinar here.  
• Sam Dumitriu on the NPPF changes discussed above.
• Samuel Hughes on the “Great Downsizing”.
• The Irish Government has published the “Accelerating Infrastructure - Report and Action Plan” – I really recommend reading this even though it’s across the Irish Sea. The diagnosis is strikingly similar to the issues we have in this country.

Merry Christmas! Don’t forget to enter Angus’ annual competition here (the deadline is 6 January!). Also, don’t miss his upcoming webinar on Biodiversity Net Gain – details here.

‍This publication is intended for general guidance and represents our understanding of the relevant law and practice as at December 2025. Specific advice should be sought for specific cases. For more information see our terms & conditions.

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