Infrastructure Planning Blog

Today’s entry takes a look at the Outer Dowsing Offshore Wind Farm, and at streamlining environmental assessment procedures being contemplated by the European Union.

Get Outer my pub

The Secretary of State has granted development consent for the Outer Dowsing Offshore Wind Farm. The decision letter is here, and there are a few interesting points to note.

First, as part of the project, the Examining Authority (ExA) considered the promoter’s choice to not develop its design options for the onshore substation to a greater level of detail “was to the detriment of the application”. The promoter, noting that the detailed design hadn’t yet been carried out, relied on mitigation planting as an option to reduce potential visual impacts, rather than design adjustments. Taken together, the ExA therefore considered this did not align with EN-1 (specifically paragraph 4.7.11, which requires consideration of “both functionality (including fitness for purpose and sustainability) and aesthetics (including its contribution to the quality of the area in which it would be located, any potential amenity benefits, and visual impacts on the landscape or seascape) as far as possible”).

In an interesting commentary on paragraph 4.3.11 of EN-1 (which states that “it may not be possible at the time of the application for development consent for all aspects of the proposal to have been settled in precise detail. Where this is the case, the applicant should explain in its application which elements of the proposal have yet to be finalised, and the reasons why this is the case”), the Secretary of State agreed with the ExA that the detail on the onshore substation provided was “to the detriment” of the application, and concludes that “as it has not been possible to clearly understand the likely impacts of the construction of the [substation] the Secretary of State has therefore amended the weighting to moderate negative weight in the planning balance.”

Second, wake effects rear their head again as is now common for offshore wind DCO decisions (i.e., where neighbouring wind farms affect the output of another wind farm). In this case, one of those neighbouring wind farms stated that their own internal modelling indicated that effects of greater than 1% Annual Energy Production across its assets may be experienced on its assets (as a result of this project, and Dogger Bank South). The promoter drew comparison with the 2% wake effects figure considered sufficiently material to justify a requirement in the Awel y Môr DCO.

The promoter did produce an assessment during the examination, and the Secretary of State had to make a decision on whether to follow the Mona Offshore Wind Farm Order 2025 and the Morecambe Offshore Windfarm Generation Assets Order 2025 (where wake effects were controlled) or the Five Estuaries Offshore Wind Farm Order 2025 (which was the first DCO to not include any protection (in the form of a requirement or protective provisions) for assets affected by wake losses). The Secretary of State elected to go with the former.

They also had to decide whether there was a conflict with the East Inshore and East Offshore Marine Plan which states “opportunities for co-existence should be maximised wherever possible”. The ExA said yes. The Secretary of State said no. This was because “the policy no longer reflects the complexity of the challenges for the consenting of OWFs... and the Secretary of State notes that the Plan provides no effective guidance on how to identify the limits of effective co-existence, which has subsequently been considered as a newly emerging issue in the 2024 and 2025 NPSs” and that “if there is any conflict between policy GOV2 and the 2025 NPSs the Secretary of State considers that the newly designated NPSs approved by Parliament should prevail.” Whew.

Third, the issue of compliance with the new duty in relation to national landscapes crops up again. In this case, the promoter did not identify significant effects for national landscapes assessed, but that “even if a conclusion of an impact on national landscapes had been reached, the policy tests had been met” because the project was “proposed to be located as far away as possible from the coastline to minimise visual effects”.

What would have happened if it was closer? If you followed another recent wind DCO, that would have added a £2m cost. You can read more about that duty here. Since that blog, and in the short two-year period of it being in force, there have been six judicial reviews disputing what the duty means, with many projects having to grapple with compensatory payments, including sums ranging from £2m to £38m. As Sam Dumitiru notes, this new duty has the potential to block development in areas from Sizewell, Hinkley, Oldbury, Wylfa, to Sellafield/Moorside.

Fourth, the promoter sought to acquire permanent rights and to impose a restrictive covenant over 161 hectares of land allowing a grid connection between the promoter’s proposed onshore substation and a new National Grid substation. That substation is intended to form part of a separate application, but would be located at a yet undetermined location within that area. The ExA took umbrage with this, but ultimately decided that, in light of the uncertainty about the proposed grid connection, it was satisfactory. Interestingly, the promoter’s Environmental Impact Assessment notes that “the details of this development [i.e. the substation] are not yet known and therefore the Project has adopted typical assumptions regarding the location and parameters of this infrastructure in order for a cumulative assessment to be undertaken”, and their approach to the grid connection is worth noting.

In a long-running to-and-fro between Examining Authorities, the Secretary of State has said that they ascribe the needs case, based on the National Policy Statements, as “substantial positive weight”, whereas the ExA used the phrase “very great positive weight.” The Secretary of State comments that “while the ExA’s conclusions are different in terminology, the weighting ascribed is the same in every other sense.” I’m glad that’s clear.

What are the Europeans doing?

It’s always useful to see what the rest of the world is up to. In the US, the Department of Energy announced a new categorical exclusion under the National Environmental Policy Act covering the authorisation, siting, construction, operation, reauthorisation, and decommissioning of advanced nuclear reactors. In practice, this means that projects within scope can bypass the usual Environmental Assessment or full Environmental Impact Statement required and instead produce a brief determination explaining why the streamlined process applies. That would, no doubt, be a step too far for many here so let’s look at what our European brothers and sisters are doing.

At the very end of last year, the European Commission published the catchily titled “COM(2025) 984” – no, that’s not an instruction manual for C-3PO – it’s a proposed EU Regulation on “speeding-up environmental assessment”. According to the explanatory notes, this proposed measure is driven by the importance of “renewable energy, electricity grids, storage projects and recharging stations, data centres and AI factories or gigafactories, [and] circular economy-related projects”. There are three points to note.

First, there are measures intended to speed up the screening and scoping exercises (e.g., 30 days for the approval authority to specify the scope and level of detail of the information that must be included in the environmental impact report. Public participation should not take longer than 30 to 90 days). These timescales are not abnormal for most development. Ultimately, then, the existing timescales are not drivers of significant delays, so while welcome, these measures will not change the dial on overall project programmes.

Second, there are measures to amend the Habitats Regulations. In particular, “when assessing whether those mitigation measures [for adverse effects on protected species] are appropriate and proportionate… the competent authority shall take into account whether they ensure that significant adverse impacts on the population of the species concerned is avoided, despite the possible existence of negative impacts on individual specimens of those species”. Whew. What this might mean in practice is more population-level focus on protected species, rather than ‘individual specimen’ focus.

Given the UK already has “taken an inflexible approach, with strict protection of each individual specimen, which has created onerous mitigation and compensation requirements for some species that are relatively common in the UK”, it’s interesting to note that Europeans are moving even further away from that approach by expressly rebuking it.

Finally, there is a regulation innocuously titled “substantial preclusion”, which sets out that “in the context of judicial proceedings relating to environmental assessments… Member States may preclude arguments from being raised before a court of law where they were not raised during the administrative stage” assuming that information was capable of being raised at the time. The Europeans seem to have landed on the very issues we have in ensuring development in the UK, and are taking steps to address this. Back at home, we appear to be following suit.

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