Memorandum submitted by Maritime UK (NPS 86)
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 £25bn 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 2010-2015: 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 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 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 and; the United Kingdom Safety of Navigation Committee - UKSON). 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.
Baltic Exchange; British Ports Association; Chamber of Shipping; Institute of Chartered Shipbrokers; Maritime London; Passenger Shipping Association; UK Major Ports Group
 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
 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).
 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.
 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.