The total ‘Net Zero Strategy’ suite of documents is now nearly 3,000 pages.
Alongside the publication of Powering Up Britain: Net Zero Growth and Energy Security Plans, DESNZ also published a suite of revised draft Energy NPS for consultation and a further six documents since. There are now 19 policy documents, which will guide decision-making on major energy infrastructure projects.
The publication of all the draft Energy NPS marks a highly anticipated and important step - the current NPSs are over a decade old and the previous consultation drafts were issued in September 2021. In this second bulletin in our Energy NPS series, we look at the key changes from the first revised draft NPS and how it affects renewable electricity generation but with a particular focus on technologies in the marine environment - offshore wind and tidal energy. Our next bulletin will focus on onshore renewable technology.
The headlines are that:
- There are many positive steps for the energy industry and consenting, the updated draft EN-1 re-emphasises that the majority of new generating capacity needs to be low carbon. There is clear direction in favour of the presumption of the delivery of new energy infrastructure required to deliver net zero.
- There is a recognised “urgent” need for implementation of new electricity generating capacity to meet energy objectives and statutory targets for the sixth carbon budget.
- There is a critical national priority (CNP) for the provision of nationally significant new offshore wind infrastructure including its supporting onshore / offshore network infrastructure and related reinforcements (CNP Infrastructure).
- There is anticipation that future development may occur in rounds or piecemeal – possibly outside Crown Estate leasing rounds which will be welcome by industry.
- Consultation and guidance is still eagerly awaited and urgently required on the most difficult issues that developers face offshore in relation to environmental habitat assessment and strategic compensation.
As a reminder, the draft Overarching National Policy Statement for Energy (EN-1), together with draft NPS for Renewable Energy Infrastructure (EN-3) are critical national policy documents for decision making in relation to renewable energy generation projects offshore and in the marine environment including nationally significant infrastructure projects (NSIPs):
- (1) Any relevant DCO applications relating to energy NSIPs must be determined in accordance with the designated NPS (subject to certain caveats). This includes offshore wind and tidal stream >100MW in England and >350MW in Wales or where proposals whose capacity is below the relevant threshold, or offshore transmission directed into the NSIP regime under section 35 of the Planning Act 2008.
- (2) The Marine Management Organisation (MMO) in determination of applications under section 36 and section 36A of the Electricity Act 1989 where they relate to a generating station in English waters and are under the above thresholds
- (3) Variations to existing consents under section 36C of the Electricity Act 1989 for which they may be a relevant consideration.
- (4) They may also be a material consideration in the determination of ancillary on-shore infrastructure applications made under the Town and Country Planning Act 1990.
- (5) They may also be a relevant consideration in decisions undertaken in Scotland and Wales. Although the Secretary of State will not examine generation applications in Scotland, Draft EN-3 may still be a relevant energy policy consideration by the Scottish Ministers, Marine Scotland or planning decisions. The Secretary of State also has no functions in relation to applications in Wales that do not relate to nationally significant infrastructure but again they may be relevant to decisions by the Welsh Ministers, Natural Resources Wales or planning decisions.
- Site Selection and Design
Useful clarification and factors influencing site selection and design, where there are requirements on applicants or the Secretary of State to consider specific factors, are now made clear in the text. For example, the sequential approach is not to be used in the consideration of renewable energy projects by giving priority to the re-use of brownfield land.
- Flexibility In Project Details
Developers will welcome guidance on how applicants and the Secretary of State should manage flexibility. Draft EN-1 and EN-3 reaffirms what already happens in practice - applicants are to explain which elements of the proposal have yet to be finalised; the reason why; and assess the likely worst-case environmental, social and economic effects i.e. undertake a Rochdale Envelope approach.
- Offshore Wind
The key message is that Offshore Wind and associated infrastructure is strongly supported and that it should be “progressed as quickly as possible”. Alongside the coordination of transmission infrastructure, there are a number of measures for addressing some of the key challenges facing the offshore wind industry.
- Draft EN-3 reaffirms British Energy Security Strategy ambitions i) to increase deployment of up to 50GW of offshore wind capacity (including up to 5GW floating wind) by 2030 ii) the need to speed up, and reduce delays in, the consenting process by reducing timescales to 12 months and establish a fast track consenting route for certain projects where quality standards are met and iii) an offshore wind Environmental Improvement Package, including committing to establishing Offshore Wind Environmental Standards (formerly nature-based design standards), required to assist a project’s passage through the consenting process.
- In 2023 Defra will consult on guidance setting out the Offshore Wind Environmental Standards applicable to the design, construction, operation and decommissioning of offshore wind farms. Once the finalised, the Secretary of State will expect applicants to have applied the guidance to their proposals. Applicants should explain how their proposals comply with the guidance and support its targets or, alternatively, the grounds on which a departure from them is justified.
- Draft EN-3 confirms that the public interest and urgent need for CNP Infrastructure will generally outweigh harm in relation to non-HRA residual impacts (i.e. on SSSI's, designated landscapes and heritage) which aren’t capable of being mitigated. This is effectively a presumption in favour of offshore wind and any of its supporting network infrastructure offshore and onshore. The starting point is that such infrastructure is to be treated as if it has met any test requiring a clear outweighing of harm, within Draft EN-1, EN-3 or any other planning policy; other than where the residual impacts present an unacceptable risk/interference with, human health, national defence or navigation.
- The impacts on Special Protection Areas (SPAs), Special Areas of Conservation (SACs) and Marine Conservation Zones (MCZs) remain the primary consenting issue. Applicants must employ the mitigation hierarchy, in particular to avoid as far as is possible the need to find compensatory measures for coastal, inshore and offshore developments affecting HRA sites and/or MCZs.
- However, support to HRA derogation cases is now actively provided which will also help prevent competition between locations as part of "alternative" cases. This is a change in approach where developers and decision makers historically sought to avoid a HRA derogation case.
- Where, following Appropriate Assessment, CNP Infrastructure has residual adverse impacts on the integrity of sites, either alone or in combination with other plans or projects, the Secretary of State will now consider making a derogation under the Habitats Regulations.
- The starting position being that energy security and decarbonisation requires a significant number of deliverable locations for CNP Infrastructure and for each location to maximise its capacity.
- There are no limits to how many such locations may be required and the existence of another deliverable location or of another way of developing the proposed site which results in a significantly lower generation capacity should not be treated as alternative solutions.
- And are capable of amounting to imperative reasons of overriding public interest (IROPI) for CNP Infrastructure, which relate to human health, public safety, and/or beneficial consequences of primary importance to the environment.
- Draft EN-3 recognises that compensatory measures must then be secured to offset the adverse effects to site integrity as part of a derogation. It reiterates the intention to introduce measures for strategic compensation via the Energy Bill but highlights that not every impact for every project will initially fall within the strategic compensation proposals, so applicants should continue to discuss with SNCBs and Defra the need for compensation.
- Developers will also welcome that Draft EN-1, EN-3 reaffirms that a coordinated approach is required to on and offshore infrastructure, involving the connection of multiple, spatially close, offshore windfarms and other offshore infrastructure as relevant. The starting point is that transmission infrastructure should be co-ordinated but it supports novel solutions such as multi-purpose interconnectors and anticipates that some proposals for transmission could be consented separately to array applications. For this to occur, an applicant will need to make a request for a direction under Section 35 of the Planning Act 2008 and demonstrate that options for coordination have been appropriately considered. Guidance reaffirms best practice - that the location of arrays and transmission infrastructure should be assessed strategically (especially where they are not covered by the same consent or marine licence) and the mitigation hierarchy should be used to address any environmental impact.
- In terms of other offshore infrastructure and activities, applicants should use marine plans in considering which activities may be most affected by their proposal and thus where to target their EIA. Applicants are also encouraged to work collaboratively with other developers and sea users including the fishing industry on co-existence/co-location opportunities, shared mitigation, compensation and monitoring where appropriate.
- Clarity is given in re-powering – new applications must be submitted along with required environmental assessments.
- Tidal Stream
- Draft EN-3 acknowledges that Tidal stream developments are in the early stages of commercial development and so there is some uncertainty about the severity of the impact, if any, that they may have on the marine ecosystem
- 100MW NSIP projects may come forward by the late 2020s by which time there will likely be a significantly more robust evidence base from monitoring carried out as part of the scoping, construction, and operation of intermediate-scale tidal stream arrays. It is emphasised throughout that applicants should demonstrate how they have taken account of this evidence base in designing their proposal, and any impact avoidance or mitigation plans associated with it.
- In proposing sites for tidal stream energy applicants should demonstrate that their choice of site takes into account not only the evidence base above and the findings of the government’s Offshore Energy Strategic Environmental Assessment 2016 (SEA) and its successors, but also relevant industry research and modelling.
- For guidance on the proper assessment and mitigation of impacts on receptors, applicants should consult the guidance contained within Draft EN-1 and the relevant sections – where there are obvious similarities – of the guidance for offshore wind. Where the Secretary of State determines that evidence could be supplemented for a given receptor (e.g. there is some doubt that intermediate-scale effects can be extrapolated to larger-scale arrays) the Secretary of State may impose monitoring requirements. In such cases, the Secretary of State must be satisfied that the applicant has given sufficient assurance that the results of that monitoring will be made publicly available for the benefit of the scientific community, and to enable future tidal stream applicants to draw upon those results in the design of their future projects.
- Applicants also need to consider environmental and biodiversity net gain; are expected to have regard to guidance issued in respect of Marine Licence requirements; and also have regard to Good Environmental Status (GES) under the UK Marine Strategy.
- Where adverse effects on site integrity/conservation objectives are predicted including HRA sites, MCZs and SSSIs, the Secretary of State should consider the extent to which the effects are temporary or reversible, and the timescales for recovery.
The offshore industry will welcome policy clarity and there is much to support project pipelines in leasing rounds, including Scotwind where projects might connect directly into England. However, addressing difficult barriers still remain to be addressed - resourcing consenting authorities; coordinating stakeholders; streamlining processes including environmental assessments; and action to overcome strategic compensation and networks must be given urgent priority if there is any hope of delivering 50GW by 2030.
Partner, Planning and Infrastructure Consenting LondonView profile
Partner, Planning and Infrastructure Consenting
Partner, Planning and Infrastructure Consenting
Legal Director, Planning and Infrastructure Consenting
Managing Associate, Planning and Infrastructure Consenting LeedsView profile
Managing Associate, Planning and Infrastructure Consenting