At the end of March, the UK Government published, amongst a wider suite of new Energy policy documents, a new draft National Policy Statement for Renewable Energy Infrastructure (EN-3) (the Renewables NPS). It was published in draft for consultation and builds on an earlier draft and consultation from Autumn 2021.
EN-3, which was first formally designated in July 2011, sets out the Government's policy for biomass, energy from waste, pumped hydro storage, solar, offshore wind and tidal stream. The Renewables NPS has 2 main jobs – first, to set out the needs case for renewable energy and secondly to establish the specific criteria by which applications for development consent for such schemes are to be assessed.
Since the 2021 consultation, the Government has published its British Energy Security Strategy (BESS) which increased the target for the amount of offshore wind generation capacity in the UK and set out an ambition to accelerate the pace of its deployment, including by speeding up the consenting process. April Accordingly, many of the most significant changes in the new draft EN-3 focus on offshore wind.
Separately, the Government has also announced that it is carrying out a review of the current National Policy Statement for Ports, however, it is not expected that there will be any output from that exercise until 2024.
This note looks at whether the new draft EN-3 sets out the an optimal approach to port infrastructure in order to achieve the goal of rapid deployment of offshore wind. It might be argued that the review of the Ports National Policy Statement is the appropriate place to deal with provisions for development at Ports, but that review is not likely to occur in time to meet the timeframes for the offshore wind programme.
The Ovearching Energy NPS (EN-1) and EN-3 establish that there is an urgent need for all generating technologies, including in the renewables space: hydropower, tidal, wave, wind, solar and geothermal. In determining any applications for development consent, the Secretary of State should, the new draft EN-3 says, act on the basis that need for infrastructure covered by the new draft EN-3 has been demonstrated.
Express statements of a need in a NPS are very useful to promoters bringing forward schemes. They avoid the promoter having to establish need on an application-by-application basis and can cut out a lot of examination time reviewing wider policy and economic drivers. Further, where national site network site (i.e. those covered by the Habitats Regulations and formerly referred to as 'European sites') are materially adversely affected by the development, imperative reasons of overriding public interest need to be established for the development – a clear statement of need for the development is useful to a promoter in compiling the case for IROPI. The position is similar in the case of specific heritage or green belt effects.
- Offshore wind – a critical national priority
In relation to offshore wind specifically, the new draft EN-3 goes further. Reflecting the BESS ambitions, the new draft EN-3 concretely states that there is a 'critical national priority' (CNP) for the provision of new offshore wind development and creates the concept of 'CNP Infrastructure' – that comprises the offshore wind development itself and its supporting onshore and offshore network infrastructure and related network enhancements.
The new draft then creates a very strong presumption in favour of CNP Infrastructure - other than where there are impacts on the national site network, the need for CNP Infrastructure outweighs any residual impacts, save only where there might be unacceptable risk to, or interference with, human health, national defence or navigation. So, for example, any residual visual impacts, will simply be overridden. Further, the usual additional tests that apply before consenting development with residual impacts, for example, to green belt, SSSIs, designated landscapes, irreplaceable habitats and heritage assets will be deemed to be satisfied in respect of CNP Infrastructure.
Even where there are residual adverse impacts on the integrity of sites forming part of the national site network, the new draft EN-3 essentially dismisses with the need to consider alternative locations for CNP Infrastructure (on the basis that it is essentially needed in multiple locations) and Imperative Reasons of Overriding Public Interest are to be readily found in the need for energy security and to decarbonise the power sector to combat climate change.
The provisions in relation to CNP Infrastructure are therefore likely to be very useful to promoters of offshore schemes and certainly will assist in their delivery in a manner consistent with the Energy Security Strategy.
- Offshore wind – no recognition of the critical need for port development
Offshore wind requires significant upgrades to port infrastructure. Floating offshore wind (FLOW) in particular is likely to requires substantial improvements to berth depths, quayside strength and dry and wet storage areas. The recent Renewables-UK Industry Roadmap 2040 describes the scale of what is required.
Presently, there is no acknowledgement in EN-3 of the significant upgrades to port infrastructure required, or their programme-critical nature.
EN-3 should contemplate such development at ports as associated development (where they are nationally significant infrastructure projects in their own right) and expressly include such development within the concept of CNP Infrastructure, so that development can also benefit from the same elevated support when it comes to satisfying the various tests. Not to do so is a significant oversight. Further, it would be useful to acknowledge that it may be desirable for the area of jurisdiction of ports to be extended to cover areas needed for the marshalling of completed FLOW turbines before they are deployed.
- Offshore wind – Navigational impacts
The new draft EN-3 amends the provisions relating to impacts on navigation and shipping. It has an emphasis on balancing the impacts on navigation with the benefits of the wind farm application and a new steer that navigational traffic should be reorganised where possible. Further, "engagement should seek solutions that allow offshore wind farms to successfully co-exist with navigation and shipping uses of the sea." Although the new draft EN-3 suggests that such matters should be discussed with Government, the Maritime and Coastguard Agency, the shipping sector and even representatives of recreational users, there is no acknowledgement of the need to engage with the ports sector. Ports are fixed infrastructure, and although ships can change course, ports cannot relocate. Ports affected by offshore wind development will therefore certainly wish to involved in these discussions and may want to make representations on the draft EN-3 accordingly.
In addition, the decision-making criteria has been amended to further reduce the protection afforded to navigation. The concept of "intolerable interference" and "intolerable risk" has been introduced. Now the Secretary of State should only refuse development consent in relation to the construction or extension of a windfarm if the Secretary of State considers that intolerable interference with the use of recognised sea lanes essential to international navigation is likely to be caused by the development. It is very unclear what would be intolerable – potentially that would permit a very high level of impact on shipping on some of the most important of navigational routes. It is also questionable whether such an approach complies with article 60(7) of the UN Convention of the Law of the Sea. It is suggested that these provisions of the draft EN-3 should be revisited in order to avoid challenge risk.
Further, the draft EN-3 has amended the wording dealing with risks to navigational safety (para 3.849) in two ways. Firstly, that wording now refers to consenting "Search and Rescue Response Assessment applications" which it is assumed is an error as that makes no sense – there are no such applications (the new draft EN-3 states elsewhere that a Search and Rescue Response Assessment should be carried out after consent and before construction). More importantly, however, the restriction on granting consent now only bites where the risk to navigational safety (after mitigation) is intolerable. The original form of this paragraph in the original EN-3 was identified by the Secretary of State as the key policy in his decision to refuse development consent for the Thanet Extension Offshore Wind Farm in June 2020, so the importance of these changes is significant and curious. It is not known whether it reveals a desire by Government to have been able to decide the Thanet application differently. That said, the new draft does retain the policies requiring site selection to have been made with a view to avoiding or minimising disruption or economic loss to the shipping or navigation industries, with particular regard to the approaches to ports.
- Offshore wind – port development and identification
The recent Independent Report of the Offshore Wind Champion (under 'Opportunity five') describes the problem to date in aligning the UK ports industry to the opportunities to service the construction and O&M opportunities of the UK offshore wind deployment to date. Part of this is caused by the 'mexican stand-off' of the port authority not wishing to commit to significant capital investment to upgrade the port without a corresponding commitment of custom from the offshore wind developer but the offshore wind developer wishing to maintain competitive tension amongst potential port authorities for the longest time possible.
There is little in the new draft EN-3 in relation to supply chains, however the new draft Overarching NPS does retain the requirement for a socio-economic assessment to set out any indirect beneficial impacts for the region hosting the infrastructure, in particular, in relation to the use of local support services and supply chains. Further, applicants are encouraged to demonstrate that local suppliers have been considered in any supply chains. Arguably, in order to deal with the failure to realise the opportunities identified in the Independent Report, the new draft EN-3 should more explicitly require applicants to demonstrate the arrangements that they have in place with a UK port or ports for the construction and O&M activity for the offshore wind development. That would also allow for sensible inclusion of any port-related development in the development consent, if useful, and provide for the most sensible assessment of any in-combination or cumulative effects.