Advice to Burgess Salmon
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- From
- Burgess Salmon
- Date advice given
- 21 July 2011
- Enquiry type
The developer submitted the draft Habitats Regulations Assessment for comment. Advice on the draft Development Consent Order and Deemed Marine License was also provided.
Advice given
Thank you for emailing us your draft Habitats Regulations Assessment (HRA) report on 06 July 2011 for comment. As you know we?re not able to comment on the merits of the assessment, but welcome the opportunity to raise any technical points. Also, following further consideration of the draft DCO and deemed marine licence a number of additional points have arisen which I set out below.
Please note, the following is advice and is not intended to be prescriptive. It is for developers to review their work and satisfy themselves that they have complied with relevant legislation and had regard to relevant guidance obtaining their own legal advice on which they can rely if this is considered necessary. We must also stress the decision of whether or not to accept an application will be taken by a Commissioner who has had no involvement in the pre-application stage for this proposal. All advice the Commission provides at this stage does not prejudice or pre-judge the decision of the Commissioner regarding acceptance or non-acceptance of an application.
Draft Habitats Regulations Assessment Report
Please note that at the pre-application stage the IPC does not undertake a detailed formal review of draft HRA Reports. These initial comments do not prejudice the position of the IPC at further stages of the DCO process including determining whether ?sufficient information? as required under Regulation 5(2)(g) of the Infrastructure Planning (Applications: Prescribed Forms and Procedures) Regulations 2009 has been provided to the IPC when the application for development consent is submitted. In determining the relevant elements/information needed to support an HRA report the IPC refers developers to Appendix 1 of Advice Note 10 which should be completed and submitted by developers at point of application.
General Comments
The IPC has identified several inconsistencies within the draft HRA report and raises these for your consideration:
At page 66, para 6.1.3 and 6.1.4 of Appendix 2 the reader is referred to Table 2 which should demonstrate the heights at which birds are flying as used to inform the assessment of collision risk.
Table 2 is in fact found on page 62 and identifies the list of consultation bodies of relevance to the No Significant Effects Report.
At page 71 Table 5 does not recognise that London Array is now under construction and not just consented as stated.
At page 72 Table 4 demonstrating the interaction values has considered London Array 1 twice but with the same approximate area but a different interaction value.
The IPC has previously issued advice within the EIA Scoping Opinion regarding survey work and methodology. In particular the IPC notes the importance of ensuring that survey work is comprehensive, relevant and up to date. The IPC has also previously expressed the importance of agreeing the approach to assessment with the relevant consultees.
Information on the international sites and their qualifying interest features
The sites considered by the draft HRA are all of those which fall within the Thames Estuary area, all the sites are within 25km of either the offshore wind farm or the landfall. The IPC notes that there is no specified maximum distance from a site boundary beyond which proposals can be dismissed as having no effect. The report does not set out the framework by which decisions have been made regarding the extent of the study area and the sites required for consideration.
Consultation on the HRA
The IPC?s Advice Note 10 (Habitat Regulations Assessment relevant to nationally significant infrastructure projects) emphasises the importance of consultation with relevant statutory nature conservation bodies. In particular Developers are advised to use the pre-application consultation process to seek assurances from the relevant statutory bodies that all potential impacts have been properly addressed in sufficient detail before the application is submitted. The IPC notes that there is evidence of consultation being carried out and selective quotes from relevant responses received. The IPC advises that relevant responses are included in full within the report.
The IPC is aware that an Ornithological Review Group (ORG) has been set-up in connection with the London Array development. The HRA does not appear to mention the activities of this group or state if they are a body with whom KFE has consulted. In assessing the in-combination impacts of the KFE the IPC would expect the HRA fully to consider relevant information prepared for and by this group. Appendix 2: Information to inform the Appropriate Assessment
Disturbance effects on SPA species
The IPC notes that there is a consideration of potential impacts occurring at construction and operation. There is no explanation as to why impacts during decommissioning are not an issue. In-combination assessment
The IPC notes the choice of terminology applied within the assessment of in-combination effects in particular the use of ?cumulative? assessment. The IPC refers the developer to the advice previously provided within the Scoping Opinion with regards to terminology.
Draft Development Consent Order
Article 4
We understand from your letter of 3 June 2011 that you?re proposing to identify the limits of deviation as 160m lateral micrositing tolerance from the grid co-ordinates of each of the turbines identified in schedule 1.
The National Policy Statement for Renewable Energy Infrastructure (EN-3) (which is expected to be designated on 19 July 2011) does not specify a typical tolerance for off-shore wind farms. In relation to on-shore wind farms 30-50m is, however, indicated as typical. It would therefore seem helpful if you could justify in the Explanatory Memorandum the level of micrositing tolerance being sought.
Schedule 1
The description of the authorised development should be detailed and identical to the description of the works included in the deemed marine licence as set out in paragraph 2 of the deemed licence. The DCO must be able to be read as a standalone document and therefore the level of detail in the description of the works should reflect this.
Work No. 1
Currently no minimum/maximum number of inter-array cables has been specified. To ensure that the DCO does not authorise development which could have a greater impact than has been assessed through the Environmental Statement (ES), further clarity on this would seem necessary.
Deemed Marine Licence
Schedule 2, Part 1, Para 2(3)(ii)
The caveat ?except with the prior written approval of the Commission? should be taken out. There are no powers in the 2008 Planning Act which would allow the decision making authority to make a change to a provision in a DCO (which has been made) which relates to a deemed marine licence (Schedule 6 sub-paragraphs 1 and 6).. Furthermore, such a caveat would seem to introduce the possibility of the development authorised by the DCO to be extended beyond what was assessed in the ES/HRA and thus potentially breaching duties under the relevant European Directives.
Schedule 2, Part2, Requirements
Para 1(5) specifies 5 working days notice before commencement of a licensed activity. Para 1(7) specifies 10 (working?) days notice for mariners. Have these timescales been discussed and agreed with the MMO? Para 1(6) should the publication be specified in the DCO or should it simply be in a publication agreed by the MMO? Para 1(7) requires a Notice to Mariners to be issued but would seem to leave it unclear as to how such notice is administered. Para 1(8) what is the definition of ?regular intervals?? Para 4: pre-construction plans and documentation. Will drafts of these documents be submitted as part of the DCO application?
Please note that the issues highlighted above and comments made in our earlier letter of 20 June 2011 do not constitute an exhaustive list. It is the applicant?s duty to ensure that all documents submitted with the DCO application comply with the relevant legislation and required standards.