Letter: Government's wind farm refusal shows that national need for energy does not always trump all other considerations

In a summer which is very important to the offshore wind industry in terms of development consent order (DCO) applications, we were interested to read the decision on the Thanet Extension Offshore Wind Farm.

Ultimately, it was refused consent by the secretary of state due to the likely impact of the project on navigational safety and on major port operators based in the Thames Estuary.

As readers will be aware, the UK government has been unequivocal in its pledge to support clean energy and additional offshore wind capacity. Indeed, the UK's target for installed offshore wind energy has been raised to 40GW by 2030 and there is a clear timetable in place for regular auctions. This decision therefore jumped out as a reminder to the industry that the national need for energy does not always trump all other considerations in decision making. In addition, we consider that the decision was a stark reminder of the importance of pre-application consultation.

The arguments raised by stakeholders during the examination of the application encouraged the Examining Authority to have regard to the National Policy Statement for Ports in addition to policy related to navigation and shipping interactions set out in NPS EN3.

It was interesting to see that the Examining Authority agreed with those arguments and also put very substantial weight on the judgement of the Maritime and Coastguard Agency, who stated in strong terms that they did not consider the project to be acceptable with regards to the safety of navigation.

The secretary of state Alok Sharma was unambiguous in the decision letter. He agreed that the applicant had not minimised impacts on navigation safety and as a consequence there remained a probability of negative effects to the efficiency and resilience of continuing port operations as well as further port development.

Midway through the examination, the applicant Vattenfall offered a Structures Exclusion Zone (essentially an area of seabed free from offshore structures, such as turbines and substations) as a possible compromise to stakeholders. In spite of this concession, it was concluded that there was convincing evidence that the Thanet Extension would increase perception of navigational risk or danger by prudent mariners for pilot transfer and passage for vessels. The Secretary of State was concerned that this would consequently cause some ships masters to change course, thereby having an adverse effect on the resilience of pilot operations and access to ports.

Evidently, the secretary of state was not swayed by the national need for energy and it is clear in policy terms that consent should not be granted where there are residual unacceptable risks to navigational safety after all possible mitigation measures have been considered.

In this case, the generating capacity of circa 300MW was not deemed sufficient to outweigh the impact on navigation. However, we note that in other recent decisions relating to the Hornsea 3 and Norfolk Vanguard offshore wind farms, similar navigation issues have not proved determinative. Therefore, one thought is whether the decision for Thanet Extension would have been the same if the generating capacity had been higher, e.g. circa 2GW as per those other offshore wind farms? Might such capacity have tipped the balance in favour of consent?

We will never know, but it is clear that in terms of future offshore wind projects, one can expect the secretary of state to place significant weight on navigational safety and associated economic impacts.

Yours sincerely,

Gareth Phillips, Partner, Pinsent Masons LLP
Matt Carpenter, Associate, Pinsent Masons LLP

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