UK: First Wind Farm Approved Under Planning Act Regime

Last Updated: 25 February 2013
Article by Angus Walker

Today's entry reports on the approval of the Kentish Flats wind farm extension.

Yesterday, the Secretary of State for Energy and Climate Change approved the application for an extension to the existing Kentish Flats offshore wind farm off the northern Kent coast. The application was to extend it by 10 to 17 new turbines to the south and west of the existing wind farm, with a total maximum capacity of 51 megawatts. The existing wind farm has a capacity of 90 MW, and so the extended wind farm will have a capacity of more than 100 MW, which means it falls to be consented under the Planning Act 2008.  The decision letter can be found here.

It is worth checking out the salient features of this decision as it adds to the limited experience of what is acceptable to the government in granting consent.

The application was made on 14 October 2011.  Its examination lasted from 22 February until 20 August 2012, just under the six months allowed. The single inspector, Glyn Roberts, issued his recommendation on 29 November 2012 (delayed beyond three months because of a fees issue).  By a quirk of the Planning Act as amended by the Localism Act, the Secretary of State had correspondingly less time to make his decision, which had to be within six months of 20 August, i.e. by tomorrow. Time is saved if recommendation is issued early, but it is not lost if the recommendation is late - I had to double-check that, PINS website please note.

This is the fourth application to be approved under the Planning Act regime, but it clocks up a number of firsts.

It is the first application to be approved by the Secretary of State for Energy and Climate Change. It isn't the first energy project, the first was the Rookery South energy from waste project that was the one and only to be approved by the Infrastructure Planning Commission (IPC). This one won't undergo special parliamentary procedure because it doesn't contain any compulsory purchase powers.

It is the first for a wind farm, albeit an extension to an existing wind farm rather than a new one. The original Kentish Flats wind farm was approved under the Electricity Act 1989 in March 2003, just under 10 years ago.

It is the first Development Consent Order (DCO) to contain a 'deemed marine licence'. This is the ability for what would normally require a marine licence from the Marine Management Organisation (MMO) to be included within a DCO. This normally entails deposits on the sea bed such as dredged material or something being constructed - such as a wind turbine.

It is the first DCO to require 'appropriate assessment'. This is an additional step triggered by the potential for an effect on a protected species or habitat - in this case the red-throated diver, a bird that must have become sufficiently familiar during the examination as to be called the RTD in the examining inspector's recommendation.

The Secretary of State concluded that it didn't have an effect on its own, but it might have in combination with a proposed extension to another wind farm, the London Array. The latter had been consented but not built, but needed the prior approval of the Secretary of State to go ahead. The inspector concluded that Kentish Flats should go ahead, and the London Array extension would have to take its chances when prior approval was sought.  The case put forward by Natural England and the RSPB would have led to the application being refused - see paragraph 6.2 of the recommendation. - but the inspector nevertheless recommended consent.

Any qualms about the Secretary of State being able to make a decision within three months - or two months 20 days in this case - should be assuaged, but the big test comes next month when the Hinkley Point C nuclear power station decision is due - alongside the first onshore wind farm, in Wales, and the first highway, in Lancashire.

Of note in the inspector's recommendation is that the test of adverse impacts outweighing benefits in the Planning Act (grounds for refusal) does not include the in-combination effects of the proposed development with other developments (see paragraph 7.12).

Also of note is that one of the issues in this case was the effect on civil aviation at nearby Manston Airport, and as is the way with such things, a requirement (the Planning Act word for condition) has been added to deal with this, introducing a further approval.

Finally, the order comes into force today, the day after it was made - Department for Transport please note.

Two days ago there had been three decisions under the Planning Act: in a month's time this will more than double to seven.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Angus Walker
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