Working out which way the wind blows: Navitus Bay’s windfarm DCO refusal

The Development Consent Order (DCO) application for the Navitus Bay offshore windfarm off the Dorset coast became the first to have resulted in an ultimate refusal in November (Halite Energy Group’s 2013 refusal for underground gas storage in Lancashire was quashed by the Courts and consented in 2015 on re-determination). So, what can promoters and investors in UK infrastructure learn from this? We look at an instance where subjectivity and, perhaps, an element of politics came into a consenting regime designed to provide certainty for investors.

The proposal was to construct up to 194 wind turbines around 15km off the coast of Dorset and around 17km off the Isle of Wight.

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 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 Other than Navitus Bay, and subsequently Mynydd y Gwynt’s onshore wind farm in Powys, every DCO application not withdrawn has been consented (43 approved; 2 now rejected). So, overall, the process is working well and Government should be applauded for this.

Much of the DCO system’s certainty of outcome, however, resides in the Government’s national policy statements (NPSs). 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”, provides a presumption in favour of granting consent to energy NSIPS, unless other 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.

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 and recommended the application be refused. 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 Secretary of State considered that that the presumption in favour of the proposals was rebutted in two ways:

• 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”. 
• Even if the proposals had been policy compliant, under section 104 of the Planning Act, the harm outweighed the NPS policy imperatives.

Even the Secretary of State conceded, when rejecting the proposals, 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. Promoters can therefore learn upfront whether the authority sees any prospect of consenting their proposal.

Under the DCO regime, pre-submission meetings are limited to discussion of compliance with the Planning Act, and the determining government department plays no role until the end of the examination. Inspectors and the Secretary of State remain aloof from the parties as independent arbiters even though their role in DCO applications is more akin to that of a local authority planning officer.

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 and political sensitivity. 43 DCOs have been approved. However, Navitus shows that the DCO process should not be seen as a rubber stamp.

Sheridan Treger and Paul Grace, Berwin Leighton Paisner