Dear Mr Pridham,
The Hornsea Three Development Consent Order application and the implications of Natural England’s recent advice at the Norfolk Vanguard Development Consent Order examination
The RSPB is writing to draw your attention to what we consider to be significant new advice from Natural England in respect of its position on the in combination impacts on seabird populations in the North Sea arising from the construction and operation of offshore wind farms and are copying this letter to the Applicants as well as Natural England and the Planning Inspectorate. We consider it is relevant to your determination of the Hornsea Three Development Consent Order (the Hornsea Three Order).
The new advice from Natural England arose during the course of the examination of the Norfolk Vanguard Development Consent Order (DCO) application which closed on 10 June 2019 and whose Panel will report to you by 10 September 2019, in advance of the deadline for your determination of the Order. We considered it prudent to write, particularly as there is only a limited time (from 10 September to 2 October) when both applications will be with your Department for determination.
Implications for Hornsea Three of Natural England’s advice in respect of Norfolk Vanguard
Natural England’s advice on Norfolk Vanguard
At Deadline 8 of the Norfolk Vanguard DCO examination, Natural England submitted its Comments on Norfolk Vanguard Ltd. Deadline 7 and Deadline 7.5 submissions in relation to Offshore Ornithology Related Matters (30 May 2019). Table 1 summarised Natural England’s position that there would be in-combination adverse effects on integrity on:
• the breeding gannet population at the Flamborough and Filey Coast SPA (in-combination with Hornsea Three);
• the breeding kittiwake population at the same SPA (including or excluding Hornsea Three); and
• the breeding lesser black-backed gull population of the Alde-Ore Estuary SPA.
In addition to its relevance to the Norfolk Vanguard Order, the RSPB considers the first two parts of NE’s advice, relating to in-combination adverse effects on the integrity of the Flamborough and Filey Coast SPA, to be directly relevant and of great importance to your determination of the Hornsea Three Order.
Implications of Natural England’s Norfolk Vanguard advice for determination of Hornsea Three
The RSPB considers the new advice is material to your determination of the Hornsea Three Order as Natural England sets out the interaction between the Norfolk Vanguard and Hornsea Three schemes and concludes there will be an in-combination adverse effects on integrity on the Flamborough and Filey Coast SPA in respect of breeding gannets and kittiwakes, arising out of both applications.
Given Natural England’s unequivocal advice, we consider it both prudent and appropriate for the Secretary of State to take this new advice into account in determining the Hornsea Three Order in respect of the tests set out in the Conservation of Habitats and Species Regulations 2017 (as amended)(“the Habitats Regulations”) and the equivalent tests contained in the Conservation of Offshore Marine Habitats and Species Regulations 2017. The new advice bears directly on the adverse effect on integrity test under Regulation 63 and, if the Secretary of State agrees with Natural England’s advice, the need to address the subsequent derogation tests under Regulation 64 (alternative solutions and imperative reasons of overriding public interest) and Regulation 68 (compensatory measures).
To date, matters under Regulations 64 and 68 have not been fully tested in respect of offshore wind farm schemes in the UK. In this context, we consider it would be important for the Secretary of State to invite further submissions from all interested parties upon these matters. Such matters, especially compensatory measures, were not fully explored at the Hornsea Three examination.
If the Secretary of State agrees with Natural England’s advice, in order to consent the Hornsea Three Order the Secretary of State will need to have clear evidence supplied by the Applicant demonstrating that there are no alternative solutions that would deliver the electricity generation offered by this scheme, that there are imperative reasons of overriding public interest that justify the consenting of this particular scheme, and, critically, evidence of the Applicant’s ability to put in place effective measures to compensate for the impacts of the scheme. The RSPB’s detailed submissions on this to the Hornsea Three Examination are attached.
Therefore, the RSPB recommends that the Secretary of State urgently considers the need to extend the period available to determine the Hornsea Three Order to enable effective consultation to be undertaken. As stated in our submissions to the Hornsea Three Examination, the RSPB is willing to work with the Applicant to explore these issues. However, these are complex issues and we consider it essential that all parties have sufficient time to explore them in order properly to inform your decision.
As the Secretary of State’s decision on the Hornsea Three Order is due by 2nd October we would be grateful for a prompt response.
Head of Environmental Law