The DCO application for the Navitus Bay offshore wind farm off the Dorset coast is the first to have resulted in an ultimate refusal. What can promoters and investors in UK infrastructure learn from this? We look at an instance of subjectivity in a consenting regime designed for certainty.
The first standing refusal on the DCO books
Last month, Navitus Bay Development confirmed that it would not be judicially reviewing the Secretary of State’s September 2015 decision to refuse its application for up to 194 wind turbines. The proposal was to locate these around 15km off the coast of Dorset and around 17km off the Isle of Wight. This makes Navitus Bay the only application for a development consent order (DCO) to have resulted in an ultimate refusal (Halite Energy Group’s 2013 refusal for underground gas storage in Lancashire was quashed by the Courts and consented in 2015 on re-determination).
Opinions about offshore wind aside, it would be hard for anyone in the infrastructure sector with experience of the work that goes into the DCO consenting process not to feel sympathy for Navitus. Applications have to be in excellent shape on submission; examinations are fast, furious and exhausting for all parties. This is the price of the “fast-track”. But what can promoters and investors in UK infrastructure learn from this refusal?
The planning balance in the DCO regime
The Government introduced its fast-track, one-stop-shop consenting process for nationally significant infrastructure under the Planning Act 2008. Both the Government and its Planning Inspectorate communicate one key message at every opportunity: the process is intended to bring certainty to planning consents for major infrastructure and delivers. Other than Navitus Bay, every DCO application not withdrawn has been consented (43 approved; 1 now rejected).
Much of that certainty of outcome, however, resides in the Government’s national policy statements (NPSs). These set out a policy matrix for certain types of infrastructure against which applications are determined. NPSs make it clear that nobody can question the need for the particular infrastructure, a major cause of delay and uncertainty for historic projects like Heathrow’s terminal five. There are also separate policy and statutory presumptions in favour of projects covered by energy NPSs:
- The key energy NPS, “EN-1”, makes it clear that the Secretary of State should start with presumption in favour of granting consent to applications for energy NSIPs, given the level and urgency of the need. This is unless any more specific and relevant policies set out in the relevant NPSs clearly indicate that consent should be refused.
- Section 104 of the Planning Act requires that a scheme compliant with the relevant NPS (as a whole) should be granted consent unless its adverse impact would outweigh its benefits.
So, what seems to have gone wrong for Navitus?
The Secretary of State’s Examining Authority (ExA) reported to him that the proposed wind farm would be visible when looking out to sea from Dorset and the Isle of Wight. It was concluded that this would produce significant, relatively long-term impacts on areas of outstanding natural beauty and heritage coasts, prevalent in the area, as well as on a UNESCO world heritage site (much of the Dorset coast). The ExA recommendation was therefore for the Secretary of State to reject the application, the first time an ExA has recommended a DCO refusal).
The Secretary of State agreed that the NPS for renewable energy infrastructure, “EN-3” confirmed that the need for Navitus’s proposals was urgent. But he considered that that the presumption in favour of the proposals was rebutted in two ways:
- Firstly, a different policy in EN-1 contained a separate presumption in favour of conserving designated heritage assets, with substantial harm to world heritage sites having to be “wholly exceptional”. Overall, therefore, the proposals were not policy compliant.
- Secondly, even if the proposals had been policy compliant, under section 104 of the Planning Act, the harm outweighed the NPS policy imperatives.
The Secretary of State therefore rejected both Navitus’s original proposals as well as a mechanism submitted during the examination with an option for fewer wind turbines.
Even the Secretary of State conceded, however, that the wind turbines’ impact on the coastline was “a matter which is especially susceptible to subjective analysis”. Policy and statute provide a guide on how harm can outweigh need where visual impact and heritage are involved. However, whether the decision-maker considers that the harm does outweigh the need in the first place is still not something which policy or statute helps a promoter predict. Navitus may well have had no real indication as to how the wind was blowing, so to speak, apart from reading between the lines of the Examining Authority’s written questions, until it saw the Secretary of State’s final decision. By the time of submission, Navitus would have invested enormous time and money in the process, with limited scope for changing its proposals.
In the Town and Country Planning Act system, before submission, a promoter can meet with the local planning authority case officer who will ultimately be making a recommendation to his elected planning committee. For major proposals, with appropriate safeguards, some authorities even encourage a brief session with elected members. Promoters can therefore learn upfront whether the authority just does not think the proposals are a runner. There are helpful meetings with the Planning Inspectorate before DCO applications are submitted. But these are mostly about compliance with the Planning Act. The ExA is not yet appointed. The determining Government Department plays no role until the end of the examination. DCO examinations replicate the approach to public inquiry appeals and call-ins: Inspectors and the Secretary of State remain aloof from the parties as independent arbiters, as if over a first instance Town and Country Planning Act planning decision made by the local planning authority. However, it is questionable how appropriate this approach is for DCO applications, where the ExA’s function is more akin to that of a planning officer.
No rubber stamp
A compelling needs case for infrastructure proposals remains the critical part of the planning balance for NSIPs. Nevertheless, before an application is submitted, promoters of all types of DCO projects will need to think through very carefully where they and their advisers see adverse impacts sitting within that balance, particularly ones open to subjectivity. 43 DCOs have been approved. However, Navitus shows that the DCO process should not be seen as a rubber stamp.