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  • Norfolk Boreas Offshore Wind Farm

    Implications of the Norfolk Vanguard Decision and Hornsea Three Letter on Norfolk Boreas

    Applicant: Norfolk Boreas Limited Document Reference: ExA.AS-3.D13.V1 Deadline 13

    Date: July 2020 Revision: Version 1 Author: Womble Bond Dickinson

    Photo: Ormonde Offshore Wind Farm

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    Norfolk Boreas

    Implications of the Norfolk Vanguard decision and Hornsea Three 'minded-to' letter for Norfolk Boreas

    1. INTRODUCTION

    1.1 On 1 July 2020 the Secretary of State (SoS) granted development consent for the Norfolk Vanguard Offshore Wind Farm (Norfolk Vanguard) and published the Secretary of State's decision letter, the Development Consent Order as made by the SoS, the Examining Authority's Recommendation Report and the Habitats Regulation Assessment.

    1.2 On the same date the SoS issued a minded to grant letter to Orsted Project Three (UK) Limited stating that he was minded to grant development consent for the Hornsea Three Offshore Wind Farm Order (Hornsea Three) subject to the Hornsea Three applicant providing sufficient evidence that compensatory measures have been secured.

    1.3 This submission by the Applicant considers the extent to which the SoS's decision on Norfolk Vanguard and, to a more limited extent, the SoS's minded to grant letter on Hornsea Three, have implications for decision making by the SoS on the DCO application for Norfolk Boreas Offshore Wind Farm (Norfolk Boreas).

    1.4 It concludes that both are highly material considerations in decision making on Norfolk Boreas to the extent that, should the SoS decide to depart from, in particular, his decision on Norfolk Vanguard, when making a decision on Norfolk Boreas, he would need to give very clear reasons for doing so in view of the similarities between the projects in terms of the form of development, the location of the development and the relevant policies to be taken into account.

    2. PREVIOUS PLANNING DECISIONS AS A MATERIAL CONSIDERATION

    2.1 The broad principle of materiality of previous planning decisions is that a previous decision is capable of being a material consideration in a subsequent similar or related decision. The principle is based on the reasoning that consistency is important to both developers and development control authorities, as well as securing public confidence in the operation of the development control system.

    2.2 While the principle does not mean that cases must necessarily be decided alike, since the decision maker must always exercise his or her own judgement, he or she must, before disagreeing with the judgement of another, on a previous, or similar, planning decision, first have regard to the importance of consistency and also give reasons for departing from the previous decision before doing so.

    2.3 The Court of Appeal1 have suggested that a previous decision may be a material consideration because, for example:

     it relates to the same site

     it relates to the same or a similar form of development on another site to which the same policy of the development plan relates, or

     it relates to the interpretation or application of a particular policy common to both cases.

    1 Baroness Cumberledge the Secretary of State for Communities and Local Government (2017) EWHC 2057

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    2.4 A brief summary of case law related to the principle is set out at Appendix 1. The Baroness Cumberledge judgement of the Court of Appeal is included with this submission at Deadline 13 as document [ExA.AS-9.D13.V1].

    3. THE PRINCIPLE – THE SAME OR A SIMILAR FORM OF DEVELOPMENT

    3.1 Norfolk Vanguard and Norfolk Boreas each comprise the construction and operation of an offshore wind farm with a generating capacity of up to 1,800MW with associated offshore and onshore development in the southern North Sea (in the northern half of the former Zone 5 (East Anglia Zone)) and in the County of Norfolk. Norfolk Boreas is the second wind farm proposal being developed in this part of the southern North Sea by Vattenfall Wind Power Limited (the Applicant's parent company).

    3.2 Each project, as applied for, would comprise construction and operation of up to 158 wind turbine generators; offshore electrical platforms; export cables using HVDC transmission; onshore transmission works at landfall; onshore cable route; accesses and trenchless crossings; an onshore project substation; and an extension to the Necton National Grid substation and overhead line modifications.

    3.3 Both projects have been planned together such that, in the event that both projects proceed to construction (Scenario 1), the onshore cable ducts for Norfolk Boreas would be constructed by Norfolk Vanguard. In the event that only Norfolk Boreas were to proceed to construction (Scenario 2), the onshore cable ducts would be constructed by Norfolk Boreas. The Interrelationship Report (Document 3.4) explains the relationship between the two projects with regard to project infrastructure and Order Limits. As stated in the Explanatory Memorandum to the Boreas draft DCO:

    "4.10 The interrelationship between the Norfolk Vanguard and Norfolk Boreas infrastructure is described in more detail in the Inter-relationship Report (document reference: 3.4). This document sets out some of the efficiencies and synergies in the event that both projects are delivered by explaining the relationship with respect to the project infrastructure and Order limits. Whilst Scenario 2 envisages that Norfolk Boreas only may be delivered, the Applicant considered it important to explain the interaction that Norfolk Boreas would have with Norfolk Vanguard where both projects proceed to construction, particularly with respect to the onshore project substation area."

    3.4 Norfolk Vanguard and Norfolk Boreas are therefore substantially the same form of development.

    3.5 Hornsea Three occupies different sites, both offshore and onshore, but its landfall is also in Norfolk; its onshore cable route would cross the Norfolk Vanguard onshore cable route; and construction of the two onshore cable routes could potentially overlap and interact.

    4. THE PRINCIPLE – SIMILAR SITE LOCATION

    4.1 Broadly, Norfolk Vanguard and Norfolk Boreas share the same, or adjacent sites.

    4.2 Offshore, the Norfolk Vanguard and Norfolk Boreas offshore wind farm arrays are on adjacent sites in the southern North Sea. Both projects share the same export cable corridor between Norfolk Vanguard East and the coast at Happisburgh, and the same onshore landfall at Happisburgh.

    4.3 Onshore, both projects share the same onshore cable corridor between Happisburgh and Necton and have the same grid connection point at the National Grid substation at Necton. They have immediately adjoining onshore substations at Necton and both would require an extension to the National Grid substation.

    5. THE PRINCIPLE – SAME POLICY

    5.1 Norfolk Vanguard, Norfolk Boreas and Hornsea Three are Nationally Significant Infrastructure Projects (NSIPs) as defined in sections 14 and 15 of the Planning Act 2008 and in the first

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    instance the decision maker needs to consider whether the proposed NSIP accords with the relevant National Policy Statements (NPSs).

    5.2 National Policy Statement EN-1 (the Overarching Policy Statement for Energy) and EN-3 (the National Policy Statement for Renewable Energy Infrastructure) set out a national need for development of new nationally significant electricity generating infrastructure of the type proposed by the two projects. NPS EN-1 sets out that the assessment of development consent applications should start with a presumption in favour of granting consent. NPS EN-5 (the National Policy Statement for Electricity Works Infrastructure) sets out the tests applicable to offshore and onshore cables and substations.

    6. APPROACH TO CONSTRUCTION AND MITIGATION OF PROJECT IMPACTS

    6.1 The DCO applications for Norfolk Vanguard and Norfolk Boreas are in similar form. In addition to the documents required by Regulation 5(2) and 6(1) of the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 (as amended), the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 (as amended) and the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017, each application was accompanied by the same set of documents.

    6.2 The documents to be certified under Article 37 of the respective Orders include, for example, an Outline Code of Construction Practice, a Design and Access Statement, an Outline Landscape and Ecological Management Strategy, and Outline Traffic Management Plan, a draft Marine Mammal Mitigation Protocol, an in-principle Southern North Sea SAC Site Integrity Plan and an Outline HHW SAC Site Integrity Plan.

    6.3 Identical mitigation proposals, as set out in the Schedule of Mitigation, have been incorporated in the Norfolk Boreas proposals to those put forward by Norfolk Vanguard. These include all the mitigation measures noted by the Secretary of State in the Norfolk Vanguard decision letter (NVDL) including:

     Substation mitigation planting (4.26 and 4.30)

     Substation – siting to take advantage of existing hedgerows and plantations of trees (4.27)

     Cable route – replacement planting of hedgerows and trees (4.36, 4.37 and 4.41)

     Cawston construction traffic – highways intervention scheme (4.69, 4.73, 4.74 and 4.79)

     Contamination – DCO requirements (4.93)