Infrastructure Planning Blog

Today’s entry looks at the grant of development consent for the North Falls Offshore Wind Farm, proposed safeguarding for the transmission network, the King’s Speech, and a legal challenge in Scotland.

Waterfalls

The Secretary of State has given another wind development tender loving care and granted development consent for the North Falls Offshore Wind Farm. Here are a few things to note from the decision letter.

First, on Biodiversity Net Gain (BNG), the Secretary of State has decided that “securing 10% BNG [across all habitat types] in the DCO would be preferable” but “to impose 10% BNG across all habitat types may not be feasible for the Proposed Development, as the Applicant has shown it is unable to meet 10% for watercourses and BNG is not yet a mandatory requirement for NSIPs”. Similarly, on the obligation to maintain, the Secretary of State accepted a 10-year (not 30-year period) for some land on the basis that “land that temporary works and habitat reinstatement will be undertaken on outside the [onshore substation] area will be returned to landowners, and there are not landowner agreements in place for all sites”.

Second, wake effects rears its head again. In this case, the Secretary of State inserted a DCO requirement to secure appropriate consultation and mitigation prior to construction through a wake effects plan. Again, the tone of the Secretary of State’s letter is important, noting that “although the Applicant ultimately provided an adequate assessment of wake effects, the Applicants engaged late and did not reasonably attempt to mitigate wake impacts in line with NPS EN-3.”

Third, there is a common debate about whether mitigation measures being delivered “where practicable” is sufficiently secure. In this case, following a document showing how such measures were assessed, the Secretary of State was content to allow them. In most cases, the mitigation measures were simply assumed as not making a difference to the assessment.

Fourth, this is (yet another) interesting example of the national landscapes duty. The local national landscapes group had initially requested ~£1.5 million, compared to the promoter’s offer of £10,000. Time seemingly heals all wounds, and the former’s request magically came down to just shy of £470,000. The Secretary of State “disagrees with the ExA and considers that the duty can be discharged without the need for further mitigation measures or enhancement in the form of compensatory financial contributions”.

That decision is (now) reflective of Government policy: the Government has committed to primary legislation which would remove the duty being read as a requirement to pay financial compensation. That cannot come soon enough to prevent the wildly differing calculations presented: there is a huge difference between 1.5m, 400k, 10k and, as it turns out, 0.

Finally, for the compulsory acquisition fans, does a golf course constitute public open space? There was a concerning commentary in a now dated Recommendation Report, but the answer from this decision (as well as the Lower Thames Crossing decision) is “no”. That seems to be correct to me: if the current conditions on the use of a space would, in their absence, constitute an interference with an alleged public right, it’s like those conditions mean its not a public space”.

Note, too, this DCO has a compulsory acquisition period of seven years, and a kerfuffle as to whether ports deserved protective provisions was decided in favour of the said ports.

Dogger Bank South has also been granted consent. That will be covered in next week’s blog! We could have three DCOs this week but the Secretary of State has delayed the decision on the Morgan and Morecambe Offshore Wind Generation Assets DCO to 14 September 2026 from its previously extended date of 14 May 2026.

Keep it secret, keep it safe(guarded)

I’d recommend reading this thoughtful blog on a proposal for safeguarding for network transmission lines. The diagnosis is entirely correct that the transmission network would benefit from having safeguarding in place to avoid potential conflicts arising by ensuring future infrastructure is considered at an early stage of planning applications. The solution proposed (i.e., project-specific safeguarding directions) would work, but I actually think there is more flexible, less bureaucratically onerous and ambitious route to take more generally.

The trunk road network benefits from a general safeguarding direction, which includes protection for the wider strategic road network (including new/proposed roads). That direction does not refer to any specific scheme, but practically planning authorities are provided with shapefiles which protect specific projects.

There is no reason, in light of the policy objectives of securing critically important grid connections, why the transmission and distribution network shouldn’t benefit from a similar direction. That seems like a better solution, which would avoid the potential need for consultations on project-by-project safeguarding; it would also ensure that where there are alignment changes, a process of updating the directions does not need to delay the much needed protection.

For King and Country

The King’s Speech includes a raft of Bills relevant to infrastructure:

• Highways (Financing) Bill – which is proposed to enable roads to be built at pace, including the Lower Thames Crossing (one of the projects TLT is advising on);
• Northern Powerhouse Rail Bill – which is proposed to enable the Northern Powerhouse Rail proposals
• Energy Independence Bill – which proposes to “scale-up homegrown renewable energy and protect living standards for the long-term”
• Nuclear Regulation Bill – this will take forward recommendations of the Nuclear Regulatory Taskforce (which, as I understand it, had a very cool lawyer on the Taskforce).
• Clean Water Bill – this will take forward recommendations of the Cunliffe Report, including measures to streamlining regulators (and the potential use of “constrained discretion” welcomed by both developers and regulators alike).

There are a raft of changes in all of these which would meaningfully speed up infrastructure, and it’s welcome that the Government is committed to seeking to actively enable further regulatory reforms through primary legislation. The desire to address high costs and delay via milquetoast measures has been eroded by a combination of well-considered reviews from Messrs Corry, Cunliffe and Fingleton.

Oh, not another one

Following the Raeshaw Farms judgment, covered here, there has been a legal challenge launched in Scotland in connection with the permission for an onshore wind farm which did not include a grid connection. It is reassuring that in England, the National Policy Statements (see section 4.11 of EN-1) are unequivocally clear about the permissibility in policy terms of phased and separate applications for generation and grid aspects of development.

In the English context, a recent appeal decision goes as far as confirming that disaggregation of planning applications for generation and onward transmission/distribution does not mean that “diminished weight should be afforded to the benefits arising from the proposal” (see appeal reference APP/Y3940/W/25/3376878). That is the correct position in both law, and policy - and indeed, a contrary position would cause havoc for reaching our decarbonisation targets.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at May 2026. Specific advice should be sought for specific cases. For more information see our terms & conditions.