Advice to Bond Pearce LLP
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- From
- Bond Pearce LLP
- Date advice given
- 8 October 2010
- Enquiry type
Whether an onshore grid connection and export cables from an offshore wind farm proposed to be located in Wales can be described as intergral to the project and therefore can be included in the DCO or whether it is 'associated development' (as defined under s.115 of the Planning Act 2008) and therefore where the criteria for associated development is not met cannot be included in the DCO application.
Advice given
It is for applicants to consider, in drafting their DCO, whether a particular element of a proposed NSIP development should properly be described as being integral to the NSIP. It seems to us that whether a particular element is integral or not would at least in part depend on whether it was an essential part of or intrinsic to the NSIP which also has implications for EIA scoping consultation. You may also be aware that in order to comply with Regulation 8(3) of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 it is necessary to provide a plan sufficient to identify the land and a brief description of the nature and purpose of the development and of its possible effects on the environment.
Annex A to the CLG Guidance on Associated Development gives on-shore works, such as sub-stations, as an example of associated development in relation to offshore renewable energy installations. Although such examples in the Guidance are illustrative only this gives weight to the argument that such on-shore works cannot be construed as being integral to the NSIP. In view of this CLG Guidance, to which the Commission must have regard, it is certainly arguable that, on balance, such on-shore works cannot be regarded as being integral to the NSIP.
If a third party wished to challenge a decision by the Commission to accept an application for a DCO which included such on-shore works then there may be grounds for challenge under s.118 of the 2008 Act in the light of this CLG Guidance. This is clearly a risk that you will wish to consider if such on-shore works were to be included in the draft DCO.
This CLG Guidance does not though specifically address the question of whether underwater connection cables from the off-shore array to the shore should be treated as associated development. We note that in the generic list of associated development in Annex A of the CLG Guidance 'grid connections -electricity...' are included, although it is arguable that this may only relate to on-shore connections from an 'NSIP-specific substation' to a National Grid substation. In any event, as noted above, the examples given in the Guidance are illustrative only and are not an exhaustive list of all categories of possible associated development. Clearly, this is a further matter that you will wish to consider in relation to your client's proposed scoping opinion request and in drafting the DCO.
In this regard you may wish to look at our previous s.51 advice, dated 3rd June 2010, in relation to the proposed Brig y Cwm energy from waste facility.