Advice to Alan Rayner
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- From
- Alan Rayner
- Date advice given
- 17 January 2014
- Enquiry type
The offshore element of this application has already been consented.
There is a suggestion in the real world that the developers wish to make significant changes to the scheme - including a substantial reduction in the overall capacity.
Please advise the formal status under the 2008 Act of proposals for deviation from the implementation permitted by the Consent Order.
If developers are allowed unilaterally to implement in a way different to
the Consent Order, it does reduce confidence in the whole process and could impact upon fulfilment of the 2020 targets for renewable energy.
Consent was granted for 1.2Gw. We need 1.2Gw. How can we ensure that this is what will be delivered (subject to consent for the Electricity connection deemed to be an NSIP in November 2013)?
Advice under s51 is requested. Could this project be re-opened - possibly in connection with the Electrical connection application? Clearly, examination could be condensed as much of the material would remain relevant and presumably would be in evidence - including the previous ExA report and the decision letter etc.
Advice given
Thank you for your email.
We note your concerns about the developer proposing to construct a scheme which would be reduced from the maxima consented by the Secretary of State in the made development consent order (DCO) for this project. As you may know, the authorised scheme is set out in the made DCO at Schedule 1 Part 1, which has been published to the project page of the Planning Portal (link below):
http://infrastructure.independent.gov.uk/document/1891856
You will note that Work no.1 (the generating assets) is described as:
"Work No. 1 ? an offshore wind turbine generating station with a gross electrical output capacity of up to 1200 MW comprising up to 288 wind turbine generators each fixed to the seabed by one of five foundation types (namely, monopile, jacket, tripod, suction bucket monopod or gravity base foundation), fitted with rotating blades and situated within the coordinates for the Order limits shown on the Works plan and specified below, and including the further works comprising.."
By the use of the term 'up to' the developer gains the flexibility to construct a wind farm with a generating capacity of less than 1200MW. Hence, less than this maximum capacity may be constructed as long as what is constructed is in accordance with the terms of the Order. You will note that this practice of setting a maximum, or otherwise allowing for a degree of flexibility in what may be constructed, is also used for other aspects of the development, including the number of wind turbine generators and the foundation type(s).
This approach is commonly referred to as using the 'Rochdale Envelope' and was established in case law under the Town and Country Planning Act 1990 (the 1990 Act) by R. v Rochdale MBC ex parte Milne (No. 1), R. v Rochdale MBC ex parte Tew [1999], and R. v Rochdale MBC ex parte Milne (No. 2) [2000]. You may wish to read our advice note on this topic (link below):
It is also established practice, in relation to planning permissions granted under the 1990 Act, that developers are not required to construct the full quantum of development for which they permission, and may choose to build out less.
For a development such as this, which is Environmental Impact Assessment (EIA) development, the developer must provide an Environmental Statement (ES) with their application which will set out the worst-case scenario assessed as part of their EIA. The constructed development must remain within the parameters of what was assessed in the EIA.
With regard to the ability of the developer to deviate from the consented scheme set out in the DCO, there is provision for this in section 153 and Schedule 6 of the Planning Act 2008 (the 2008 Act) which sets out the two prescribed ways in which an Order can be changed post-consent. The procedures to be followed following an application under these provisions are set out in The Infrastructure Planning (Changes to, and Revocation of, Development Consent Orders) Regulations 2011, which can be found at the link below:
http://www.legislation.gov.uk/uksi/2011/2055/pdfs/uksi_20112055_en.pdf
With regard to whether the examination could be reopened, there is no provision under the 2008 Act for the reopening of an examination once it has been closed. The proposed application for the electrical connection infrastructure will, if submitted, only relate to that infrastructure not the already consented off-shore wind-farm.
You will note however that if an application were made to change the Order under the above regulations, the process set out in Part 2 of those regulations sets out a pre-application, application and examination process that is largely similar to the process that was carried out for the original application. This could result in a further consideration of the project or aspects of it.
The applicant may be able to rely on the original application documents in relation to their application to change the Order, either as originally submitted or as updated. Under Reg 16(i) the applicant is under a duty to provide a statement which:
"(i) identifies the extent to which the information submitted with the initial application for an order granting development consent in accordance with regulations 5 and 6 of the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 is correct and relevant to the application; and (ii) where necessary updates the parts of this information that relate to the application;"
In determining the application the Secretary of State is under a duty to have regard to the following under Reg. 47:
"(a) any national policy statement which has effect in relation to development of the description authorised by the development consent order the subject of the application, (a ?relevant national policy statement?); (b) the appropriate marine policy documents (if any), determined in accordance with section 59 of the Marine and Coastal Access Act 2009; (c) any matters prescribed in relation to development of the description authorised by the development consent order the subject of the application; and (d) any other matters which the Secretary of State thinks are both important and relevant to its decision."
You will note that these obligations are similar to those on the Secretary of State in relation to the original application under section 104 of the 2008 Act.
You may also be aware that there are provisions, under section 72 of the Marine and Coastal Access Act 2009, for variations to be made to the deemed marine licence granted in relation to this DCO. You may wish to contact the Marine Management Organisation in relation to this.