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Lord Davies of Oldham: My Lords, the noble Lord, Lord Greenway, is right. Issues have been raised with sufficient force for the amendment not to be necessary. However, I wish to assure the noble Lord, Lord Higgins, who moved the amendment and the noble Duke, the Duke of Montrose, that all maritime interests will be taken into account. I very much agree that it is vitally important that there is full consultation with the representative bodies of marine users, including fishermen, before a decision is made to grant an application for a Section 36 consent. Best practice dictates that such consultation takes place and that is what happens in practice. I see no real need to formalise that process in legislation. I will try to illustrate how we are consulting. All applications for Section 36 consent for offshore wind farms must be accompanied by an environmental statement. The Secretary of State cannot grant a Section 36 consent unless the applicant has provided an environmental statement that meets the content requirement set out in regulation. The statement must

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include an assessment of the likely impact of the development on the environment, including direct and any indirect effects.

The aspects of the environment that must be taken into account are wide-ranging and cover not only the impact on the marine environment itself but users of the sea, such as the fishing community, to which the noble Duke, the Duke of Montrose, referred, recreational sailors, whose interests the noble Lord, Lord Greenway, has at heart, and commercial shipping, which the noble Lord, Lord Higgins, has always emphasised in his contributions to amendments tabled in the past.

A proper assessment of the impact of the proposal requires thorough consultation with all stakeholders with an interest. Developers who do not consult properly run the risk that when it is made the application will be rejected by the Secretary of State or Scottish Ministers as inadequate, or that stakeholders will lodge objections to the project. The developers who have been granted site options by the Crown Estate for the second round of offshore wind farms are at the beginning of the process of gathering information for their environmental assessments and preparing their environmental statements.

The department held a preliminary workshop on 12 March to bring together the developers with key government advisers. When a developer applies for consent under Section 36, he must publish notice of the application in local and national newspapers as well as in the London Gazette or, in Scotland, the Edinburgh Gazette. That process formally alerts all interested parties to the application.

It is therefore not necessary to formalise a requirement for consultation because all interested parties will be given an opportunity to make their views known to the Secretary of State or to Scottish Ministers before they take any decision on such proposals. It is clearly in the interests of the developer to undertake such consultations with marine users. Those who do not run the risk that their application may be rejected by Ministers on the basis of a failure to consult relevant interested parties, or may find that formal objections are made to the project.

The amendment focuses on consultation with representative bodies of marine users alone. I understand the proper concerns that the noble Lord has voiced on shipping matters, but the amendment could cause some confusion by giving the impression that consultation is required with marine users but not with other stakeholders. For example, a large number of environment groups have a clear and obvious interest in offshore wind farms.

I hope that I have indicated to noble Lords that we take consultation very seriously. The amendment is more limited than perhaps might be warranted by the number of stakeholders who have an interest in this matter. We intend that all stakeholders should play

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their part as appropriate in any application. On that basis, I hope that the noble Lord will feel that I have given him the assurances that he required.

Baroness Byford: My Lords, I believe that I heard the Minister say clearly that consultation happens in practice now. However, my noble friend the Duke of Montrose said that the fishermen had not been consulted. I wonder whether the Minister's remarks were relevant to the first wave or the second wave. If one of the major organisations feels that it is not being consulted, that cannot be happening in practice. If the Minister could give us an example, I would be grateful.

Lord Davies of Oldham: My Lords, it is of course the case that we are in the early stage. I can give the assurance that fishermen's interests are taken into account. In fact, they have been present at meetings with the DTI on the whole structure. The noble Duke, the Duke of Montrose, may have met a group of fishermen who have not yet been party to the discussions. It will obviously take some time for the issues to percolate down, particularly with regard to wind farms in particular areas of the country. I seek to indicate, in my admittedly rather general reply, that all those interests are being consulted, and we expect them to be consulted. We cannot conceive of the submission of any application that does not give evidence of the fact that stakeholders have been consulted.

Lord Higgins: My Lords, I am grateful to the Minister for that reply. The noble Lord, Lord Greenway, hit the nail on the head. The reality of the situation is that there was not adequate consultation, as far as one can establish, during round 1. It is really only since these matters have arisen on this Bill that there has been a more positive and active response by the Government regarding consultation. I think that noble Lords should be pleased that they have fulfilled a useful function in that respect.

I understand the point that the Minister made about the narrowness of the amendment. Clearly, it is important that all interested parties should be involved. I hope that environmental groups will take an active interest in the risk of a major environmental disaster compared with what one must say is a somewhat marginal benefit as far as concerns wind farms, given the problems of ship diversion and so on. I hope that they will take that point fully into account and make suitable representations.

I am still somewhat worried about the actual structure. Perhaps the Transport Select Committee in another place might look into this matter. The environmental statement is made by the developer, who clearly has an interest in producing a favourable environmental statement. That is why it is so important that other interests should be considered at an early stage. These interests—shipping, environment and so on—should be very clearly aware of what specific proposal is being made before the Minister considers whether it is appropriate.

The other point that I think is very important is that probably about half of the proposals in round 2 are in areas where a significant number of shipping movements

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take place and where the location of offshore wind farms could infringe Article 60 of the United Nations Convention on the Law of the Sea. We have not really stressed this point, other than to express concern about the extent to which the Government may be in conflict with their treaty obligations regarding international shipping. In that context, it is important that, in addition to the consultations that we have already discussed, and, as the Minister said, taking as widespread a view as possible, they should also be in touch with the International Maritime Organization, which is conveniently located within walking distance down the road. Its interest should be taken into account.

I do not propose to press this amendment to a Division. I hope that as a result of the debates that we have had on the Bill the Government are now aware that they were failing to consult adequately. We must express the hope that they will consult adequately in future. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Higgins moved Amendment No. 13:

    Page 71, line 12, at end insert—

"( ) After the passing of this Act, consents for generating stations offshore shall not be given to applications made under the provisions of the Transport and Works Act 1992 (c. 42)."

The noble Lord said: My Lords, this is a much more technical amendment and it is concerned with the way in which applications are made. As I understand it, it is possible for applications to be made under either the Transport and Works Act 1992 or the Coast Protection Act 1949. I also understand that under round 1 at least half of the farms in territorial waters have been given approval under the Transport and Works Act 1992, even though this tends to be a more expensive way of making an application than if it is done under the Coast Protection Act 1949.

The Transport and Works Act expressly excludes the requirement to obtain consents under the Coast Protection Act. However, unlike the CPA, it does not address dangers to navigation or safety of navigation. Instead, it allows the extinction of public rights of navigation where proposed installations interfere with those rights and could give rise to actions for nuisance.

Consequently, under the TWA, there is no statutory requirement for wind farms causing a danger to navigation to be addressed. The Maritime and Coastguard Agency will be asked to assess draft TWA orders from the safety of navigation perspective and the relevant General Lighthouse Authority may also be involved. However, there is no specific provision that is part of the legal process for giving consent. Therefore, if the Transport and Works Act is used, the important safety issues involved may not be taken into account and, indeed, are effectively avoided.

The absence of a statutory requirement in the TWA route is a serious weakness in the legislative machinery. Many of the possible sites may be in territorial waters. We therefore believe that it is important that future applications should be made under the Coast Protection Act rather than under the Transport and Works Act. The purpose of this

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amendment is to ensure that that is the case. In our view it is obviously wrong that it should be possible not to take into account fully the aspects that involve the safety of navigation. I beg to move.

9.15 p.m.

Lord Greenway: My Lords, I should like to support the amendment. I invited the Minister to respond to the matter on Report and he wisely declined that offer. The noble Lord, Lord Higgins, made an important point. There is no doubt that the Transport and Works Act is not subject to the same checks and balances as the Coast Protection Act in this regard. There is a definite lacuna in respect of there being no requirement to address the problems of offshore wind farms causing a hazard to navigation and therefore affecting safety. I very much support the amendment.

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