Two renewable energy scheme Development Consent Order (DCO) applications were recently decided within a couple of days of each other. The Kent based Cleve Hill Solar Park application was approved by the Secretary of State on 28 May. The application for the extension to Thanet Offshore Wind Farm off the Kent coast was refused four days later.
We look at the detail behind both these decisions – why was one successful and the other not?
With the exception of onshore wind schemes, the development of generating stations exceeding 50 MW output capacity are Nationally Significant Infrastructure Projects (NSIP) and require a DCO under the Planning Act 2008.
The Cleve Hill DCO granted consent for the construction of a solar farm with the option of an additional battery storage, with a total capacity of around 350 megawatts. It is the first DCO to be granted for a solar farm. It succeeded without the support of a National Policy Statement (NPS) specifically supporting solar and battery schemes, relying heavily on national Net Zero targets and the need to address climate change.
Cleve Hill sets a consenting model for the size and scale of solar farms that are so much more attractive in the absence of subsidies.
Cleve Hill took advantage of the benefits that a DCO can bring over a simpler Town and Country Planning Act planning permission. Without a DCO the resolution of issues relating to land ownership, highway access and installation of grid connection cables either has to be resolved by way of options prior to the grant of planning permission, or by licence applications and agreements after the grant. The DCO bundles them together with the grant. So for Cleve Hill, where the coastal location meant there was a flood risk, the DCO included a deemed Marine Licence for the management of flood defences. The street works licences for installing cable and other apparatus the highway were also included, as were the temporary stopping up of those highways and rights of way the operator required to deliver the operational solar farm.
Significantly, the Cleve Hill DCO also granted the operator the right to compulsorily acquire land in its entirety or just the subsoil as necessary, and acquire rights over land and rights to temporarily use land in which it had no interest. These compulsory purchase powers allow the Cleve Hill operator to acquire the land for the construction of the solar farm which it had not to date successfully acquired by negotiation. It also granted them the rights to land for the installation of underground cables, drainage, the maintenance of existing flood defence and to deliver the habitat management land necessary to mitigate the impacts of the scheme without which the DCO may have been refused.
The success rate of DCO applications is much higher than the success rate for planning applications, and the improved prospects of success is another attractive feature of the DCO process. However, the DCO process even when combined with the possibility of making significant progress on achieving net zero, does not guarantee success. The Thanet Extension decision joins a small group of refused DCO applications.
The refused application was for a 340 MW extension to the existing Thanet Offshore Wind Farm. The key reason given for the refusal was the statutory requirement to have regard to the need to prevent interference with legitimate uses of the sea. For the Thanet Extension this meant that the navigation risk had to be reduced to the ‘As Low As Reasonably Practicable’ range. The Secretary of State concluded this had not been achieved by the scheme.
A clear contrast between the Thanet and Cleve Hill decisions is the weight given to progress towards Net Zero. The Cleve Hill approval was significantly influenced by Net Zero, but Net Zero was not even mentioned in the Thanet decision. It is unclear why particularly as the Examining Authority prompted the Secretary of State to give it consideration. DCO decisions cannot be appealed, and in the alternative to an expensive resubmission that may take 12-18 months to be submitted and determined, this may provide a point of challenge to the Courts should Vattenfall, as the applicant, be so inclined.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at June 2020. Specific advice should be sought for specific cases. For more information see our terms & conditions
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