Offshore wind in the United Kingdom – Will new regimes help or hinder?

The UK currently has the world’s largest offshore wind farm at Thanet, Kent and a recent study by the Carbon Trust suggests that if the UK invests in more offshore farms, it could capture 22 per cent of the global market by 2050, generating around £76 billion for UK plc.  There have recently been two wholesale legislative changes that will either help or hinder the achievement of that aim.

Firstly, the Planning Act 2008 introduced a new system for authorising major infrastructure in England and Wales intended to be quicker, more predictable and certain.  As part of that predictability, national policy on different forms of infrastructure is to be set out in National Policy Statements (NPSs).  NPSs have been produced for different sectoral areas, for example, ports, national networks and, crucially energy.  The UK Department for Energy and Climate Change (DECC) has recently confirmed an Overarching Energy NPS and, underneath it, a number of separate NPSs for each type of energy production; coal, fossil fuel, renewables, gas and nuclear as well as a further one on electricity networks. 

The Overarching Energy NPS sets out how the UK will meet its energy needs and identifies broad principles common to all aspects of energy production and distribution.  The Overarching Energy NPS accepts that there is a clear need for renewable energy generation and identifies offshore wind as providing the largest single contribution towards the UK Government’s 2020 renewable energy generation targets. 

The Renewables NPS then makes further provision about offshore wind.  Of particular note:

• it does not specify where such development should be sited but acknowledges that location and design will be influenced by Strategic Environmental Assessment and designation by the Crown Estate (an independent UK government body that owns the sea-bed in UK territorial seas) as well as physical characteristics;
• it states that developers should identify the onshore grid connections (in fact or as reasonably likely);
• it accepts that details of scheme may be unknown at the time of seeking authorisation and the consenting authority (the Infrastructure Planning Commission) should accordingly be flexible; and
• it sets out detailed criteria for the assessment of the effects of offshore wind developments, for example on fish, intertidal and subtidal habitats, marine mammals, ornithology, fisheries and navigation.

The affect of these assessment criteria in respect of offshore wind is therefore that:

• consent will not be granted if sea lanes essential to international navigation are to be interfered with;
• sites should be selected to avoid or minimise disruption or economic loss to shipping, with particular regard to approaches to ports and strategic routes;
• the effects on recreational craft should be minimised;
• reasonable attempts should be made to minimise adverse effects on fish stocks and fishing activity; and
• regard should be had to the conservation status of habitats.

The Renewables NPS therefore contains useful detail in relation to the consenting of offshore wind and it makes provision as to associated development that offshore wind developments might require, such as connecting cables and onshore grid connections – the new Planning Act 2008 system allows for all associated development to be authorised at the same time as the offshore wind development by way of a ‘one-stop shop’.  However, no mention or consideration is made of the developments that might be required at UK ports to provide the necessary construction and maintenance facilities that offshore wind requires.

The second change comes under the new Marine and Coastal Access Act 2009.  This Act overhauls the way the UK manages its offshore environment by making provision for marine planning, marine licensing and nature conservation.  Marine planning is an attempt to replicate the planning regime that the UK has on land at sea by providing a hierarchy of plans; at national level, there is a new UK Marine Policy Statement which is then sub-divided into regional marine plans.  The Act requires that all public bodies have regard to both plans in granting any consent. 

The new UK Marine Policy Statement does have energy production, including offshore wind as a stated policy objective, but beyond this does not develop the idea much further.  That is not entirely unexpected as the Marine Policy Statement is intended to set out the principles for decision-making by regulatory bodies.  It is drafted by the UK Department for Environment, Food and Rural Affairs (DEFRA) and its ethos is as such more from the point of view of environmental protection.  However it makes a presumption in favour of sustainable development.  The regional marine plans to carry the Marine Policy Statement through on a regional level have not yet been drafted.

As such, these two changes, meant to simplify now mean that in order to get approval, new offshore wind development will need to be in accordance with a profusion of newly drafted (or to be drafted) statements of policy: the Energy NPSs (Overarching and Renewables), the Marine Policy Statement and any regional marine plan.

Further a degree of uncertainty arises from the new coalition Government’s plans to change the new Planning Act regime before it has really got started by replacing the new consenting body (the Infrastructure Planning Commission (IPC)) with a proposed Major Infrastructure Planning Unit (MIPU) within the Planning Inspectorate.  Unlike the IPC, which was to independently come to its own decisions (with independence from central government and thereby political interference intended to speed up the consenting process), the MIPU will ultimately refer all applications made to it, such as offshore wind farms, to the UK Secretary of State for final decision.  Despite the Government having pledged that decisions will be made within 3 months, the worry is that reverting to political involvement may cause the now familiar delays to applications.

Francis Tyrrell is a solicitor at Bircham Dyson Bell LLP, specialising in the promotion of transport and other major infrastructure projects.  In particular, he deals with the delivery of port, marina and harbour projects from inception, through to final implementation of the real estate, procurement and contract implications.  Bircham Dyson Bell specialises in securing with central government the legislative orders necessary for the development of ports in the UK, often following public inquiry.  Beyond major projects, he advises on varying matters of public law, including legislative drafting, the implementation of European legislation in the UK and matters of public / environmental liability and compliance.  He is a member of the editorial team of Butterworth’s Practical Guide to National Infrastructure.  Recently he has advised P&O Ports/DP World on obtaining statutory authorisation for the port aspects of the London Gateway project and has advised in relation to the proposed privatisation of Dover Harbour Board.  Mr. Tyrrell can be contacted on +44 207 783 3440 or by email at francistyrrell@bdb-law.co.uk.