Memorandum submitted by Maritime UK
NATIONAL POLICY STATEMENT FOR RENEWABLE ENERGY
INFRASTRUCTURE (EN-3)
Maritime UK brings together the shipping, ports
and maritime business services sectors in the UK on key strategic
and practical issues of joint interest. This collective approach
creates a stronger, louder voice for the maritime services sector,
and is already helping to improve links with Government and other
audiences. As a group, the Maritime UK sectors contribute £25 billion
to the UK's GDP in total and support 500,000 jobs.
In responding to the draft National Policy Statement
(NPS) for Renewable Energy Infrastructure (EN-3), Maritime UK
would first like to emphasise that its partners support the Government's
climate change policy by growing the percentage of UK energy provided
by renewable sources and recognise the role that offshore wind
has to play in the delivery of that policy. We also believe that,
aside from sound environmental and strategic energy considerations,
this policy offers many of our members a significant market opportunity
both initially in the UK and later through "first mover"
expertise elsewhere in the world. Maritime sectors that may see
business opportunities include the ports, survey vessels, offshore
construction vessels, jack-up rigs, maintenance vessels and cable
layers. Our comments below should therefore be seen as offering
positive suggestions that, if acted upon, will help the UK Government
both in the effective and sustainable delivery of this significant
area of government policy and in economic terms.
This memorandum also highlights a number of
principles which should also be adopted for consenting other large-scale
offshore renewable structures involving wave and tidal energy.
Maritime UK is pleased to note that the NPS
gives detailed consideration to the impact on navigation and shipping
from the proposed expansion of offshore wind and takes full account
of the key recommendations on navigation and shipping in the Offshore
Energy Strategic Environmental Assessment post-public consultation
report. Clearly, efforts have been made to address the sometimes
competing needs of the different users of the sea but, while the
suggested processes and ameliorative measures are undoubtedly
well-intentioned, we believe there are a number of areas where
they could be strengthened, in order to provide the necessary
balance that we detect the draft NPS seeks to achieve and to ensure
the orderly consideration of development opportunities.
Our primary concern relates to the consultation
procedures. At present, the NPS requires developers to consult
with the stakeholders but does so without limit and without a
defined process. Experience of previous windfarm developments
has shown that, too often, shipping is not taken account of or
consulted until after the sites have been designed—on the
basis of only the developer's economic and environmental assessments.
By this time, a substantial sum of money has already been spent
by the developers who naturally are defensive of the proposed
sites and less receptive to changes that may subsequently be requested
of them. It follows that they are not receptive to changes or
suggestions that the site is unsuitable, even it would compromise
maritime safety or have a negative economic impact on the shipping
or other industries. We believe that it is imperative that the
NPS make explicit the need for safety of navigation and any potential
impact on shipping routes to be considered at as early a stage
as possible when identifying and deciding on future wind farm
sites.
It is also important that early consultation
is mandatory, to ensure that sites are progressed in a proper
fashion and that shipping, ports and other stakeholders are not
unduly burdened by having to respond at a late stage to thinly-presented
proposals and—in their consultation responses—do not
become effectively a "free consultancy" for developers.
The sheer scale of the proposed expansion of offshore wind installations—in
the light particularly of the projections for Round 3—is
placing a fast-growing and significant administrative burden upon
industry. We believe that a number of simple measures could be
included in the NPS which would serve both to reduce this unnecessary
work and to speed up the consultation process and is in line with
the BIS approach in the better regulation programme "Simplification
2010-15: Call for Evidence".
Firstly, the Crown Estate is relatively "responsibility
free"—at least in relation to navigation and shipping—in
its decisions to offer areas of the sea bed to developers. This
is, in part, compounded by the fact that the Crown Estate also
has a clear financial incentive for making available as many sites
and as large an area as possible to wind farm developers. We believe
strongly that the process could be rationalised to the benefit
of all by the Crown Estate being required to engage in the discussion
on what areas of the sea are or are not suitable for development
before the areas are offered to the market. This could be done
either area by area, or through a central Government holistic
review involving all stakeholders of current and future needs,
either for all or relevant potential parts of the UK's coastline.
We suggest that this would enable and encourage the Crown Estate
to offer from the start areas that are, as far as possible, free
from associated navigational risks and negative economic impact.
Secondly, we believe that the consultation process
could be speeded up and the administrative requirement substantially
reduced if the Government were to codify its recognition of shipping
lanes and shipping "clearways", perhaps taking into
account the process adopted during the "rush for gas"
in the 1970s. Considerable work has already been done on this
in an earlier context within the Department for Transport, which
could serve as a starting point. It is clearly in the national
interest that access to deep-sea routes should be maintained and
short-sea/coastal shipping facilitated. Any assessment of recognised
shipping lanes should not only take into account existing routes
but be future-proofed, so that Government can respond to the policy
need of new routes becoming available. We therefore recommend
that the Central Government should initiate a discussion involving
different departments and bodies (inter alia DfT/MCA, DEFRA/MMO,
BIS, and Crown Estate) to identify current and future routes that
are considered essential and of commercial significance. There
is an urgent need for a system that would keep this under review
as an ongoing process. This should be conducted with input from
our industries and the results owned by the DfT as their sponsoring
ministry.
Thirdly, while developers do have to undertake
a navigational risk assessment (NRA), the validity of this has
to be assessed by the industry. To reduce this burden, we believe
that the existing guidance[93]
to developers (which is currently fragmented and in several different
places) should be brought together in one document and that the
NPS should specify that all NRAs should meet that guidance and
present information in a clear and unambiguous manner. Any NRA
which contravenes that guidance should have to make a specific
case as to why consent for the site in question should be granted.
Developers should also be required to provide
the key stakeholders with all relevant data[94]
prior to the start of the formal consultation process.
In addition, and given the significant workload
involved in assessing these NRAs, consideration should be given
to requiring wind farm developers to reimburse the costs of those
representative organisations that are, practically if not formally,
compelled to perform such actions on behalf of the shipping industry
as a whole, both national and international. Similarly, the initial
work that will also be undertaken by the General Lighthouse Authorities
in assessing the NRAs should also be identified and compensated,
so that the shipping industry (which funds those organisations
through the payment of light dues) does not also end up paying
for this activity.
Finally on the "process" of consultation—and
given the volume of applications anticipated and their potentially
significant impact on shipping and navigation—Maritime UK
considers it pernicious that, should major stakeholders inadvertently
miss the first stages of consultation, their views will not be
taken into consideration at a later stage in the process. We seek
greater flexibility in setting consultation deadlines. Instead
of limiting deadlines to a rigid period of 12 weeks as is
currently proposed, the time allocated for responses to a particular
consultation should be extended to take account of the number
of submissions running at any one time.
In addition to the "process" of the
consultation exercises, we also believe that their scope should
be widened to take into consideration economic impacts and any
consequent need for financial compensation. We note that, as presently
drafted, the NPS contains a clear presumption in favour of future
windfarm development and that, even where "strategic routes
essential to regional, national and international trade"
are affected, wind farm developments might still prove acceptable
when set against the benefits of the wind farm application (para.
2.6.169). Maritime UK feels strongly that it should be possible
for unacceptable economic impacts on other users of the sea to
be considered sufficient grounds for the IPC to reject an application
and that the NPS should make this explicit in a manner similar
to that of the "unacceptable risks to navigational safety"
described in para 2.6.153. We are unsure as to the IPC's approach
or the options it has available, if the developers fail to mitigate
or overcome key concerns during the consultation stages. We therefore
suggest setting up of a pre-scrutiny panel to review responses
and decide whether or not the proposals should progress to the
application stage. Obviously, arbitration in such a case will
be the last resort, but the onus should be on the developers to
prove that they have applied due diligence in preparing their
case, in accordance with the stipulated guidelines and key stake-holders'
views.
It is only right that, where an existing business
is commercially disadvantaged by the (Government-sanctioned) creation
of another business, compensation should be payable. While we
concede that, for practical reasons, it is not possible to compensate
shipping in any generic sense, in those instances where a regular
trade is materially disrupted by the creation of an offshore wind
farm, then those additional costs should be assessed and mitigated.
A number of useful lessons should be drawn from the experience
of the consenting of the West of Duddon Sands wind farm, where
failing to take account of practical evidence has led to lengthy
and costly legal wrangles. While the principle of compensation
has been recognised for the fishing industry in the associated
guidance for wind farms affecting fishing grounds, no parallel
arrangements exist for costs arising from changes to commercial
shipping routes or ports businesses. We would ask that the NPS
be amended to reflect this principle for shipping and ports, so
that developers are aware of all likely associated costs prior
to making an application.
Lastly, Maritime UK would also like to make
a number of detailed comments regarding the draft NPS, which we
hope you also find constructive and conducive to improving the
consenting regime for future offshore wind farms.
DETAILED/TECHNICAL
COMMENTS
— Paragraphs 2.6.160 and 163 mention
a number of bodies whose views should "underpin" consultation.
As other associations are mentioned by name, we feel that the
Chamber of Shipping and Maritime UK should be mentioned explicitly
in these paragraphs as it would make clear to developers that
they must consult those organisations.
— We are unclear as to what para 2.6.158 is
intended to add to the NPS. We do not see that this para adds
anything to that contained in para 2.6.156 and it should
be deleted.
— Paragraph 2.6.168 defines a recognised
sea lane essential to international navigation. We would question
whether the NPS might make reference to this when it discusses
"major commercial navigation routes" and "strategically
important" routes in paras 2.6.169 and 2.6.170. If this
definition is not to be taken, it would be helpful for the NPS
to determine what these terms mean, how the definition has been
developed and who has been consulted during that process.
— We note that in paragraphs 2.6.163, 2.6.166,
2.6.169, 2.6.170 and 2.6.171 the Maritime & Coastguard
Agency is tasked with advising both applicants and the IPC on
an NRA, but apparently it has not been given a statutory status.
Given the pressure on resources already experienced by MCA, we
would consider it appropriate for it to be provided with additional
resource to perform these assessments (possibly paid for by the
developers).
— In that context, we are aware that the
Government does have two Committees already in existence which
are concerned with the safety of navigation and offshore renewables
(the Nautical and Offshore Renewables Energy Liaison Group—NOREL[95]
and; the United Kingdom Safety of Navigation Committee—UKSON[96]).
In our experience, however, we have found that neither of these
have proven to be a forum that allows an in-depth analysis of
the concerns of the maritime sector with regards to site specific
wind farm applications.
— We note that in paras 2.6.173-177 the
IPC is tasked with evaluating risks, mitigation measures and the
overall effect of developments before taking a decision. In order
to do so in a professional and responsible manner it is surely
essential that the IPC has access to sufficient and truly independent
navigational expertise so that objective decisions can be made.
In addition, we feel that financial compensation should be added
as a form of 'mitigation' in addition to other measures that have
already been suggested in the draft.
— It is questionable whether and to what
extent it is permissible for HMG to close off areas of sea or
to inhibit passage of shipping as envisaged in para 2.6.178.
— We note that para 2.6.183 introduces
the possibility of arbitration. We think it would be helpful if
the NPS provide greater detail on what might constitute the need
for arbitration and describe some of the principles that might
underpin that process.
To conclude, Maritime UK believes that an improved
consultation process, which gives due consideration to both the
safety of navigation and commercial needs of the shipping and
ports industries from the earliest possible stage in the development
process, will both improve the process for windfarm applications
and ease the role of the Infrastructure Planning Committee in
reaching a decision on the granting of consent. While this may
increase slightly the pre-application requirements, we would note
that the purpose of the IPC is to speed up the overall approval
process and not necessarily the preparation process.
Member Organisations:
Baltic Exchange; British Ports Association;
Chamber of Shipping; Institute of Chartered Shipbrokers; Maritime
London; Passenger Shipping Association; UK Major Ports Group.
January 2010
93 MGN 371, MGN 372, Future Offshore-A Strategic Framework
for the Offshore Wind Industry, DECCs'-Offshore Energy SEA Post
consultation report, DTI Guidance Notes-Offshore Wind Farm Consents
Process, DECC's-A Prevailing Wind-Advancing UK Offshore Wind Deployment,
Energy Act 2004-Section 99, Section 36B-under which it states
"Duties in relation to navigation"-In which it is clearly
stated that a consent cannot be granted for an OREI which is likely
to interfere with the use of "recognised sea lanes essential
to international navigation" as defined in UNCLOS-Article
60(7), Coast Protection Act 1949-Section 34. Back
94
Prospective developers should be able to present the following
information in relation to navigational impact assessments:
- Clear co-ordinates and details of the size, shape and location
of the Lease Option Area (and in due course the Demonstration
and/or Commercial Site as appropriate);
- A clear description of any navigational risks, and how they
intend to comply with existing guidance/regulations. Developers
are expected to be familiar with current guidance for the development
Offshore Renewable Energy Installations before approaching The
Chamber of Shipping, these include inter alia;
- Where it is shown (the developer having done the research) that
shipping lanes cross (or come close to) a marine energy site,
an assessment by the developer of the impact (close quarters,
diversions, cumulative effect etc) of the site and proactive proposals
to alleviate the impact offering mitigation measures (whatever
those measures may be). Back
95
NOREL is essentially an information exchange which deals with
associated navigational matters once a decision to proceed has
already been taken. It does not have a remit to prevent an application
from progressing if navigational safety concerns are not addressed. Back
96
UKSON, has a full agenda dealing with all navigational safety
matters for the UK and OREIs form only one agenda item. Consequently,
there is insufficient time for UKSON to properly assess potential
OREI sites and, again, by the time discussions reach UKSON a development
is usually well under way with considerable sums already invested.
Indeed, the need for early engagement of stakeholders was one
of the key recommendations in DECC's post-Strategic Environmental
Assessment (SEA) report and specifically for that engagement to
take place in advance of the Scoping Report or EIA. Back
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