Challenge Navitus Response to Deadline 3 Planning Issues · 2.3.1. First, that there has since EN-1...

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Challenge Navitus CN-D3-1 page 1 of 20

Challenge Navitus Response to Deadline 3 Planning Issues

Application Reference EN010024 The Navitus Bay Wind Park

Interested Party: 10029314

Document Reference: CN-D3-1

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Contents

(1) Introduction

(2) Site Selection & Policy Background

(3) Rampion & Gwynt Y Mor

(4) EN-1 & EN-3

(5) The World Heritage Site

(6) Conclusion

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1. INTRODUCTION

1.1. In the „Navitus Bay Wind Park : Written Response to Deadline II‟ document (“the D2 Response”) Navitus Bay Development Limited (“NBDL”) has advanced a case in support of its application for the making of a Development Consent Order (“DCO”) predicated upon the following propositions :

1.1.1. that both : (i) the policy of the Secretary of State (“SoS”); and

(ii) the process prior to the current examination into the Application establish a framework within which NBDL can claim that the current stage of the decision-taking process is pre-disposed in its favour;

1.1.2. that this Proposed Wind Farm (“PWF”) should be authorised because two other large scale off-shore wind farms have already been approved by the SoS;

1.1.3. that this PWF would be in accordance with EN-1 and with EN-3 in respect of – amongst other issues :

1.1.3.1. Seascape Landscape & Visual Impacts; 1.1.3.2. Nationally Designated Landscapes; 1.1.3.3. Tourism; and

1.1.4. that this PWF would not materially harm the World Heritage

Site.

1.2. These propositions are advanced – either expressly or impliedly – by

NBDL within the D2 Response either: (i) in Part 1 in summarising its written representation as a whole; or (ii) in Part 2 in responding to the ExA‟s rule 8 questions, or both.

1.3. These propositions are all however - at the least highly questionable - and some of them are not rationally tenable at all. They certainly cannot bear the weight which NBDL seeks to place upon them at this stage and NBDL‟s further efforts to do so only serve to underline how flawed the proposal to site this PWF in this sensitive and highly valued seascape can be seen to be.

1.4. In these offering these comments at this stage CN has for ease of

reference used the same acronyms as have been previously adopted in its own written representations for the deadline II stage. For the avoidance of doubt these have been confirmed in full within the body of this document where the relevant term first appears.

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2. SITE SELECTION AND POLICY BACKGROUND

2.1. In the D2 Response NBDL summarises its written representation in Part

1. It thereby puts forward its core arguments in favour of this PWF in 11 short numbered sections but the first six of these do not address the current actual merits of siting this PWF in this specific proposed location at all.

2.2. Furthermore it is not the case that the site selection and policy background upon which NBDL appears to place reliance is favourable to this PWF at this proposed location.

2.3. NBDL thereby appears to invite the ExA to draw two important

inferences:

2.3.1. First, that there has since EN-1 was promulgated in July 2011 been a “presumption” in favour of the PWF;

2.3.2. Second, that the Round 3 process whereby a zone was established for the purpose of entering into commercial agreements between TCE and potential developers has somehow established that the presence of the PWF somewhere within the Zone has been pre-determined to be acceptable in principle.

The “presumption”

2.4. In the D2 Response at section 4 headed “..4. Relevant Policy..” NBDL

states that :” The primary policy guidance for decisions by the Secretary of State on offshore wind farms is NPS EN-1, EN-3 and EN-5. EN-1 makes clear the urgent need for new energy NSIPs to be brought forward and that the Secretary of State should start with a presumption in favour of granting consent unless any more specific and relevant policies set out in the relevant NPS clearly point towards refusal...”.

2.5. In Part 4 of EN-1 at paragraph 4.1.2 the precise wording of the policy is

however as follows :

“Given the level and urgency of need for infrastructure of the types covered by the energy NPSs set out in part 3 of this NPS, the IPC should start with a presumption in favour of granting consent for applications for energy NSIPs. That presumption applies unless any more specific and relevant policies set out in the relevant NPSs clearly indicate that consent should be refused. The presumption is also subject the provisions of the Planning Act 2008 referred to at paragraph 1.1.2 of this NPS”.

2.6. First, the „presumption‟ is a policy presumption only. It is capable of being rebutted by other policy or other material non-policy considerations accordingly. It is not a matter of law and the decision-taking is expressly - according to that policy itself - to be subordinate to the legal provisions of the PA08.

2.7. Second, the specific provisions of the Planning Act 2008 (“PA08”) state

that the Application must be decided in accordance with any relevant

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NPS except to the extent that one or more statutory exceptions apply (section 104 (3) PA08).According to the statute it is therefore the whole of the relevant NPS policies – including those which give considerable weight to the avoidance of adverse visual and other effects upon landscape , seascape and designated heritage assets – which must be considered.

2.8. Third, even in its own terms the presumption does not “apply” if “..any more specific and relevant policies set out in the relevant NPSs clearly indicate that consent should be refused...” In the case of this PWF there are manifestly “specific and relevant” policies which clearly indicate that no DCO should be made notwithstanding the presumption. EN-1 envisages exactly that possibility and the SoS has been careful rto word the “presumption” as above to make clear that he does not expect those “specific and relevant” policies to be set aside lightly.

2.9. Fourth, The presumption is also capable of being rebutted by policy outside the NPS including that which is set out in the National Planning Policy Framework (“”NPPF”) . the position is summarised at paragraph 3 of the NPPF itself as follows :

“This Framework does not contain specific policies for nationally significant infrastructure projects for which particular considerations apply. These are determined in accordance with the decision-making framework set out in the Planning Act 2008 and the relevant national policy statements for major infrastructure, as well as any other matters that are considered both important and relevant (which may include the National Planning Policy Framework).(emphasis added).

2.10. The position of the SoS is not therefore that that NPPF is merely relevant to the decision-taking under the PA08 in respect of whether or not to make a DCO for an NSIP, but he also considers the NPPF to be “important” in that context. The NPPF therefore falls within the category of “important and relevant” matters in section 104 (2)(d) of the PA08, to which the SoS has a statutory duty to have regard.

2.11. Fifth, the statutory exception in PA08 s 104 (4) also arises insofar as the SoS may be fully satisfied that in the case of this PWF in this sensitive location within 12 NM of the WHS to authorise its intrusive presence there would place the UK in breach of its international obligations in any event.

2.12. The “presumption” is not therefore a sound basis for affording any

benefit of the doubt to the Applicant in respect of any procedural or substantive issue. On the contrary, it expressly gives way to the statutory framework as it legally must, and is said in terms not to apply where there are specific NPS policies which “indicate” that consent should be refused. It is of no assistance to NBDL accordingly.

Round 3

2.13. Furthermore in respect of “Round 3” the D2 Response starts in section 3 headed : “3. Project Background and Site Selection ” that “.Selection of offshore wind farm sites during the Round 3 development phase has

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been undertaken by a strategic national level of planning including a Strategic Environmental Assessment (now completed), followed by the planning of individual projects by developers. Following the award of rights to develop the Round 3 Zone 7 to the Applicant a robust process of site selection and review of alternatives was undertaken by the Applicant to select an appropriate development area within the Zone...”.

2.14. CN does not concede that Round 3 itself was ever subject to a proper strategic environmental assessment (“SEA”). The OESEA1 was really nothing more than a preliminary assessment of a whole set of disparate plans (including oil & gas and renewables) which only established the feasibility in principle of a certain general level of exploitation (e.g. 25GW for offshore wind) - it is quite clear in OESEA1 that Round 3 lay in the future. Insofar as OESEA1 gave general locational guidance about future siting of off-shore wind farms that guidance was adverse to this PWF in this proposed location.

2.15. The Round 3 process is deficient or at least non-determinative in other important respects also. The existence of the Round 3 process in no way restricts the legal requirement to consider “satisfactory alternatives” in the context of the licensing requirements for Eurpoean Protected Species to which CN has drawn attention in other comments now made on the D2 Response ; and in any event it is noted from the Examining Authority‟s question 1.8 that in that particular context the Project is not even in conformity with the Offshore Energy SEA – post public consultation report (DECC- 2009) and the subsequent publication of OESEA2 (DECC- 2011) Recommendation 4.

2.16. The material conclusions of OESEA1 are moreover of direct relevance to the issues with which the ExA is addressing within the current examination process into the PWF. Those OESEA1 conclusions begin with the following statement :

“Conclusions

The SEA considered the alternatives to the draft plan/programme and the

potential environmental implications of the resultant activities in the

context of the objectives of the draft plan/programme, the SEA

objectives, the existing regulatory and other control mechanisms, the

wider policy and environmental protection objectives, the current state

of the environment and its likely evolution over time, and existing

environmental problems”.

2.17. That statement emphasises the comprehensive character of the

“contextual” factors taken into account. Those objectives included not only the current state of the environment but also its “...evolution over time...”.

2.18. In respect of off-shore wind OESEA1 then expressed two conclusions about the significant environmental effects on coastal areas which this would have, the first more general in character and the second highly specific and relevant to NBDL‟s proposed siting for the PWF:

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2.18.1. The General „Coastal Effects‟ Conclusion : “ Coastal

areas typically have higher environmental sensitivity, both in ecological terms (for example waterbirds and seabed habitats), and in existing human uses (for example shipping, fishing and yachting). Tourism and recreation are key activities and industries in coastal areas, many of which are also protected landscapes such as National Parks...”; and

2.18.2. The Specific „Coastal Effects‟ Conclusion : Reflecting the

relative sensitivity of multiple receptors in coastal waters, this report concludes that the bulk of this new generation capacity should be sited well away from the coast, generally outside 12 nautical miles (some 22km)....”.

(emphases added).

2.19. Whilst therefore paragraph 4.1.2 of EN-1 and OESEA1 pre-date the

current examination process neither of them actually establishes anything indicative that this PWF in this proposed location is somehow already acceptable in principle. On the contrary, OESEA1 strongly suggests that this PWF is not acceptable in this location .

2.20. For completeness in this respect it is noted that in its D2 Response

NBDL has also sought to pray in aid a third pre-existing „process outcome‟ under the heading :

Location of the Zone and Site Selection 6.1 EN-3 makes specific reference to the process through which Government has planned for the provision of some 25GW of new offshore wind capacity, and Government's conclusion that "there are no overriding environmental considerations to prevent the achievement of the plan/programme for offshore wind if mitigation measures are implemented to prevent reduce and offset significant adverse impacts". EN-1 also makes clear that the consideration of alternatives should only be given weight in very limited circumstances and that "the Secretary of State should not reject an application for development on one site simply because fewer adverse impacts would result from developing similar infrastructure on another suitable site". (emphasis added).

2.21. What EN-1 also states amongst other things however is (at paragraph 1.7.11): “ ...the principal area in which consenting new energy infrastructure in accordance with the energy NPSs is likely to lead to adverse effects which cannot always be satisfactorily mitigated is in respect of landscape and visual effects. EN-1 already contains policies which severely limit the prospects for development of large-scale energy infrastructure in the most attractive landscapes...”. (emphasis added).

2.22. The fact that the generality of the programme for 25 GW of off-shore wind generation was considered achievable if mitigation measures were implemented therefore tells one nothing about whether this specific PWF at this particular proposed location could even begin to be acceptable.

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3. RAMPION AND GWYNT Y MOR

3.1. NBDL has also chosen to highlight in the D2 Response (at paragraph 7.3) that “Other operational consented and proposed off shore wind farms around the UK and within sight of the coast are referred to in the Planning Statement including the recently consented Rampion Offshore Wind Farm (13 km from the South Downs National Park and Sussex Heritage Coast and visible from Brighton and surrounding areas) and Gwynt Y Mor Wind Farm (13 km off the coast of north Wales and visible from Llandudno and surrounding areas)”.

3.2. NBDL appears to thereby invite the ExA to infer that „two other wind farms visible from within designated areas on the coast‟ and that this is somehow a material consideration weighing in favour of making a DCO for this PWF in this proposed location. CN rejects any such suggestion.

3.3. Since each project is unique and must have its specific and detailed

environmental effects assessed through a process compliant with certain public and private projects on the environment and the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 there is no basis for treating either of those schemes as material considerations weighing in favour of this PWF.

3.4. Furthermore NBDL although makes the point that those schemes would

be “visible from” within certain designated areas of the respective parts of the coast, in the immediately following paragraph (8.1) in its DS2 Response it has also cited EN-1 to the effect that simply being “...visible from within a designated area should not in itself be a reason for refusal”. Since what matters is the detailed assessment of the quantitative and qualitative impacts of each specific project proposal

NBDL‟s point “other wind farms” is – in the context of EN-1 itself – a somewhat empty point.

3.5. Moreover there is no system of binding “precedent” for decision-taking

by the SoS under this part of the PA08 in any event. Whether or not DCOs have been made for other schemes does not bind the SoS or fetter his discretion to refuse to make a DCO for this PWF in any way.

3.6. There is nothing in EN-1 or EN-3 to suggest that other NSIPs are in themselves material considerations capable of weighing in favour of a

proposal. Whilst EN-1 does acknowledge in respect of Landscape and Visual matters (at paragraph 5.9.19) that examples of existing permitted infrastructure with a similar magnitude of impact on sensitive receptors may be helpful to the decision-taker, this is specifically proposed for their assistance “..in judging the weight it should give to the assessed visual impacts...” rather than such permitted infrastructure being independently a material factor in favour of making a DCO.

3.7. On the contrary, it is the cumulative effects on the environment of a

proposed NSIP and other NSIPs which have already been consented or may be consented which the applicant is required to assess in order to satisfy The Infrastructure Planning (Environmental Impact Assessment) Regulations 2009.

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3.8. Furthermore both Rampion and Gwynt y Mor are obviously distinguishable on their facts from the PWF in this case since – amongst other things - neither of them involved adverse impact upon a world heritage site. A general comparison with Rampion in terms of heritage assets and designated landscapes in fact only serves to high-light the richness of the tapestry of landscape and cultural assets which would be prejudiced by this PWF - not only a National Park and one area Heritage Coast (as Rampion) but also a further area of Heritage Coast, two areas of outstanding natural beauty and of course the WHS itself. At least 100 km of relevant coastline would be affected by this PWF. The prevalence of sensitive interests of planning importance on the coastline affected by this PWF is of a higher order of magnitude than at Rampion. As far as the contribution which the PWF would make towards meeting a need for additional renewable energy capacity is concerned, the imminent development of alternative schemes such as Rampion (175 turbines producing up to 700 MW) would logically reduce the urgency of meeting the need for such additional capacity in any event.

3.9. The authorisation for off-shore wind farms at Rampion and Gwynt Y Mor

is not therefore a material consideration weighing in favour of the making of a DCO for this PWF in this proposed location.

4. EN-1 & EN-3

4.1. NBDL‟s references to EN-1 and to EN-3 within its prior Planning

Statement and within its D2 Response are selective and raise questions as to the interpretation of the relevant parts of these NPSs. The general inference which NBDL seeks to invite the ExA to draw is that the PWF would be in accordance with EN-1 and with EN-3.

4.2. The PWF would however not be in accordance with EN-1 or with EN-3 in material respects.

4.3. Before summarising these in commenting on the D2 Response however it may be helpful to indicate the approach which as far as the interpretation of policy is concerned, [CN has been advised that] the position articulated in Tesco v Dundee [2012] UKSC 13 by Lord Reed

can be understood to be a principle which applies with equal force to the interpretation of the NPS. Lord Reed stated : “...The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained. Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality. On the contrary, these considerations suggest that in principle, in this area of public administration as in others (as discussed, for example, in R (Raissi) v Secretary of State for the Home Department [2008] EWCA Civ 72,

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[2008] QB 836, [2008] 2 All ER 1023), policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context...” (paragraph 18). (emphases added).

4.4. When the relevant sections of the NPSs are interpreted objectively in accordance with the language used in its proper context, it is clear that the PWF would not be in accordance with the NPSs in significant and material respects.

Seascape Landscape and Visual Impacts & Nationally Designated Landscapes

4.5. In its D2 Response NBDL has stated under this heading that : “ EN-1

recognises that “ ..virtually all nationally significant energy infrastructure projects will have effects on the landscape...” and that “..the aim should be to minimise harm to the landscape”. NBDL then lists the character of the changes it has made to the PWF to reduce its scale. (paragraphs 7.1 and 7.2 of the D2 Response).

4.6. The ExA is being invited to interpret EN-1 as if it required no more than reasonable efforts on the part of an applicant to scale back its original proposals at which point – since “virtually all” such development will some effects anyway – it will be treated as having fully complied with EN-1 in this respect.

4.7. That is an indefensible interpretation of the policy however. The SoS has

at paragraph 1.7. 11 of EN-1 stated :

“...the principal area in which consenting new energy infrastructure in accordance with the energy NPSs is likely to lead to adverse effects which cannot always be satisfactorily mitigated is in respect of landscape and visual effects. EN-1 already contains policies which severely limit the prospects for development of large-scale energy infrastructure in the most attractive landscapes and townscapes...”. (emphasis added) .

4.8. The other parts of EN-1 which address the limitations upon how far such infrastructure can be permitted to cause adverse landscape and visual impact must therefore be interpreted objectively and in accordance with all the relevant language of EN-1 including this language. This language clearly states that the relevant policies in EN-1 are to be construed as imposing severe limitations upon how far “large scale” infrastructure

such as the PWF could permissibly be developed within the “most attractive landscapes”.

4.9. EN-1 addresses generic effects of energy projects at paragraph 5.9. In introducing that issue (in paragraphs 5.9.1 to 5.9.4) DECC advises that : 4.9.1. Landscape and visual effects will vary on a case by case

basis;

4.9.2. The generic guidance offered in EN-1 in respect of landscape “..should be taken as covering seascape...as appropriate”; and

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4.9.3. Some built features of energy infrastructure (in that example,

cooling towers are discussed) “,,may be up to 200 metres, although this would be exceptional”.

4.10. In similarly general terms to those in which the issue begins to be addressed in this part of EN-1, it is reasonable to describe the landscape/seascape which would be affected by the PWF as one of the most sensitive in the British Isles. NBDL‟s own summary appears at page 70 of the ES chapter 13 as follows : “[13.4.95] National designations and definitions are considered within the 45 km study area . The following are included in the assessment : >New Forest National Park...

>Isle of Wight Area of Outstanding Natural Beauty... >Cranborne Chase and West Wiltshire Downs Area of Outstanding Natural Beauty... > Dorset Area of Outstanding Natural Beauty... > Dorset Heritage Coast : Purbeck Coast... > Isle Of Wight Heritage Coast : Tennyson Coast... [13.4.96] In addition...within the study area..Dorset and East Devon Coast World Heritage Site is an internationally designated site”.

4.11. At paragraph 5.9.7 of EN-1 it is stated that : “ The assessment should include the visibility and conspicuousness of the project during construction and of the presence and operation of the project and potential impacts on views and visual amenity. This should include light pollution effects, including on local amenity, and nature conservation.” (emphasis added).

The concept of “conspicuousness” is used in EN-1 for a reason and the SoS in expressing his policy in that way has been mindful to extend the scope of his concern beyond quantitative “visibility” and into the experience of the presence of the infrastructure in its immediate context, which in the case of the PWF is one of seascape in active use for commercial and leisure sailing only with no pre-existing industrial structures or screening whatsoever. CN considers the SLVIA undertaken by the NBDL to be inadequate in these qualitative terms, and to under-

state the impact of the PWF accordingly.

4.12. The emphasis placed by the SoS within EN-1 upon qualitative concerns is carried forward into paragraph 5.9.8 which states that “Landscape effects depend on the existing character of the local landscape, its current quality, how highly it is valued and its capacity to accommodate change. All of these factors need to be considered in judging the impact of project on landscape....”.

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4.13. There follow within EN-1 two short paragraphs (5.9.12 and 5.9.13) which address “Developments outside nationally designated areas which might affect them”:

4.13.1. Paragraph 5.9.12 affirms that “ The duty to have regard to

the purposes of nationally designated areas also applies when considering applications for projects outside the boundaries of these areas which may have impacts within them. The aim should be to avoid compromising the purposes of designation ...”; (emphasis added) and

4.13.2. Paragraph 5.9.13 states that : “ The fact that a proposed project will be visible from within a designated area should not in itself be a reason for refusing consent.”

4.14. The use of the word “compromise” in EN-1 is of importance. It is clearly

not necessary that the purpose of designating a nationally designated area should be negated or defeated before the interposition of an NSIP would cease to comply with policy in EN-1. It is only necessary that that purposes should be „compromised‟ i.e. that it should no longer to be capable of being realised to the same extent as it would be in the absence of such an NSIP.

4.15. The threshold is set relatively low in that sense for the obvious reason that the nationally designated areas are by their nature of great importance and intrinsic sensitivity.

4.16. The language of paragraph 5.9.13 might seem on first reading to rescue

the PWF from non-accordance with this part of EN-1, but that first impression is mis-leading. In paragraph 5.9.13 the SoS was clearly dealing with „visibility‟ – a quantitative concept in the sense that if it is empirically true that light reflected from the NSIP would be detectable within the designated area then it will be “visible” irrespective of qualitative considerations. The SoS cautions in that paragraph that visibility in this sense would not in itself be a reason for refusing consent as a matter of his policy.

4.17. What paragraph 5.9.13 does not say however is that compromising the purposes of designation is ever excusable; clearly if the SoS were to

agree with CN that those purposes have been compromised that is capable of being an unassailable reason for refusal which has been plain on the face of EN-1 since July 2011.

4.18. The PWF would be largely outside nationally designated areas but

would clearly affect them.

4.19. EN-1 goes on to address “Developments in Other Areas” and reinforces the importance of relevant policy in local plans, in respect of the PWF, the local plans made by coastal local planning authorities.

4.20. Paragraph 5.9.14 states that “Where a local development document in England or a local development plan in Wales has policies based on landscape character assessment, these should be paid particular attention.....”

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4.21. The concept of “particular attention” clearly goes beyond simply “taking account” of such policies; it is a policy direction to give them greater weight than would otherwise be the case. If it simply meant “take account of” it would have simple for the SoS to use that expression but he has not done so.

4.22. In respect of “Visual impact” paragraphs 5.9.18 and 5.9.20 of EN-1

address this and begin with a clear recognition that the adverse visual impacts which are of serious concern to CN are capable of out-weighing

the benefits of a renewable energy development however great a contribution to energy capacity that might make.

Paragraph 5.9.18 states that “The IPC will have to judge whether the visual effects on sensitive receptors, such as local residents, and other receptors, such as visitors to the local area, outweigh the benefits of the project...”In its ES however NBDL has ascribed lower sensitivity to local residents as receptors than to visitors to specific recognised points on the coast from which seaward vistas are visible . Whilst the exceptional sensitivity of those locations is appreciated EN-1 does not support the “down-grading” of the sensitivity of local residents as receptors – the policy of the SoS is clearly to recognise local residents as sensitive receptors in their own right.

4.23. The parts of the south-coast affected by the PWF – and from which it would be a new and conspicuous presence within the seascape – include undeveloped landscape of the highest value but also heavily populated areas. They also benefit from high visitor numbers.

4.24. EN-1 spells out in the clearest terms the approach which the SoS takes towards the visual impact of off-shore infrastructure such as the PWF:

“Coastal areas are particularly vulnerable to visual intrusion because of the potential high visibility of development on the foreshore, on the skyline and affecting views along stretches of undeveloped coast.”

4.25. Furthermore EN-3 addresses “Seascape and Visual Effects“ at

paragraphs 2.6.198 to 2.6.210. CN considers that the PWF would have serious adverse seascape and visual impact for the reasons more particularly set forth in its own written representations at the Deadline 2 stage.

4.26. Paragraph 2.6.199 affirms the separate and particular relevance of “seascape” as a material policy consideration where off-shore wind farm proposals are concerned, in the following terms :

“Seascape is an additional issue for consideration. Seascape is a discrete area within which there is shared inter-visibility between land and sea. In some circumstances it may be necessary to carry out a seascape and visual impact assessment (SVIA) in accordance with the relevant offshore wind farm EIA policy”.

4.27. The site of the PWF is within a seascape for the purposes of the NPS.

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4.28. The current general character of that part of the seascape which is to be occupied by the 153 square kilometres of the PWF, is that of open coastal waters. Those waters are currently traversed by:

4.28.1. Leisure sailing vessels in some of the largest concentrations

to be found in UK coastal waters; and 4.28.2. Commercial vessels and is over-looked by ferries (some of which will currently stray intothe Turbine Area or pass down the western boundary of it) serving the Poole/Cherbourg route and the Portsmouth/Santander and given the recognition within EN-3 itself of the importance of seascape in its own right the ExA is invited to ascribe significant weight to the adverse effects of the PWF on seascape.

4.29. Paragraph 2.6.200 of EN-3 acknowledges exactly this confluence of economic and cultural value whose vulnerability to harm from this PWF located as it is proposed to be, is apparent. It states that : “The seascape is an important resource and an economic asset. Coastal landscapes are often recognised through statutory landscape designations.”(emphasis added)

4.30. Paragraphs 2.6.202 & 2.6. 203 then state :

“[202] Where a proposed offshore wind farm will be visible from the shore, an SVIA should be undertaken which is proportionate to the scale of the potential impacts. Impact on seascape should be addressed in addition to the landscape and visual effects discussed in EN-1. [203] Where necessary, assessment of the seascape should include an assessment of three principal considerations on the likely effect of offshore wind farms on the coast: ●● limit of visual perception from the coast; ●● individual characteristics of the coast which affect its capacity to absorb a development; and ●● how people perceive and interact with the seascape”.

4.31. The perception and interaction with the seascape on the part all those

people who do so is therefore a key qualitative consideration for assessing impact upon seascape high-lighted within EN-3. The weight to be given to the concerns raised by CN and others in this respect is all the greater accordingly. Those who experience and inter-act with seascape must very much include marine users such as the leisure sailing community, fishermen and divers and all those receptors including ferry passengers whose views across open water would be utterly changed if the PWF were to be located there.

4.32. The 153 square kilometre area would be subject to change of use from open waters to industrialised seascape. This industrialisation of seascape is recognised as a material consideration in the ES. This PWF would affect amongst the highest concentration of marine users as could be found anywhere in UK coastal waters – their direct use of the Turbine Area is effectively terminated by the industrialisation of the seascape. The weight to be ascribed by the ExA to these adverse effects is all the

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greater accordingly. Even though the DCO even in its amended form suggests that rights of navigation would be suspended only around each individual turbine the practical effect of the presence of the PWF is that except in exceptionally benign sea conditions leisure sailing vessels would be obliged for safety reasons to avoid that area entirely.

Tourism (Socio economics)

4.33. In its D2 Response and the answers it has given to the ExA‟s rule 8

questions NBDL has continued to focus its consideration of socio-economic effects almost exclusively upon tourism. That there would be a negative impact upon the local economy including the crucial tourist economy is acknowledged by NBDL. CN considers the ES to materially understate the magnitude of that adverse impact for the reasons more fully set forth in CN‟s own Deadline 2 representations. CN also considers the ES to have focussed upon tourism to the relative exclusion of other important aspects of socio-economic impact.

4.34. EN-1 acknowledges the materiality of “Socio-economic” impact within

decision-taking in respect of a renewable energy facility which is an NSIP: It states at paragraph 5.12.1 that :

“The construction, operation and decommissioning of energy infrastructure may have socio-economic impacts at local and regional levels. ...”

4.35. It is clear that this expression encompasses all socio-economic effects

and paragraph 5.12.3 of EN-1 requires an assessment of these accordingly, in the following terms : “This assessment should consider all relevant socio-economic impacts, which may include:

●● the creation of jobs and training opportunities;

●● the provision of additional local services and improvements to local infrastructure, including the provision of educational and visitor facilities;

●● effects on tourism;

●● the impact of a changing influx of workers during the different construction, operation and decommissioning phases of the energy infrastructure. This could change the local population dynamics and could alter the demand for services and facilities in the settlements nearest to the construction work (including community facilities and physical infrastructure such as energy, water, transport and waste). There could also be effects on social cohesion depending on how populations and service provision change as a result of the development; and

●● cumulative effects – if development consent were to be granted to for a number of projects within a region and these were developed in a

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similar timeframe, there could be some short-term negative effects, for example a potential shortage of construction workers to meet the needs of other industries and major projects within the region. (emphasis added).

4.36. CN does not consider the ES to have accurately characterised existing

socio-economic conditions nor to have used credible and accurate data or methods to arrive at its conclusions; as a result CN considers the ES to materially under-state the relevant impact.

4.37. In particular having regard to the adverse:

4.37.1. Landscape and visual impact ;

4.37.2. Seascape impact; and

4.37.3. Impact upon marine and other recreational users;

CN considers that such adverse effects are cumulatively linked to the nature and scale of the actual impact which would result in socio-economic terms.

4.38. EN-1 expressly recognises this potential for linkage in paragraph 5.12.5

which states : “Socio-economic impacts may be linked to other impacts, for example the visual impact of a development is considered in Section 5.9 but may also have an impact on tourism and local businesses.”

4.39. The ExA is respectfully invited to consider the alternative evidence and

submissions of CN with particular care in respect of this issue, informed as it is by local knowledge and experience of living and working within the very coastal communities who will be worst affected by the PWF. Paragraph 5.12.6 of EN-1 emphasises the important role which information sourced other than from the applicant, as follows (emphasis added): “The IPC should have regard to the potential socio-economic impacts of new energy infrastructure identified by the applicant and from any other sources that the IPC considers to be both relevant and important to its decision.

4.40. In its D2 Response NBDL has repeated certain points it made at the

Open Floor Hearing on 14 October 2014 in respect of the weight to be ascribed to “perceptions survey” findings (as these had indicated significant levels of concern in respect of this PWF). CN notes that NBDL apparently now dis-avows its own evidence in this respect: “...The perceptions survey is less robust as evidence; it is used to quantify risks; it cannot be used to quantify an economic impact on tourism in a mechanistic way...” (Part 6 of the D2 Response in relation to “Impacts on Tourism”).

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4.41. Instead of its own relevant findings in its own perceptions survey in respect of this PWF, NBDL is instead inviting the ExA to give greater weight to “...ex post studies of what actually happened”.

4.42. Since those studies relate to other wind farms at other sites they have

no specific relevance to this PWF at this proposed location at all. The general point which NBDL seeks to make is however equally unsound but for a more fundamental reason.

4.43. Where a consented wind farm has been authorised and brought into

operation, there may well be a difference between pre-development perceptions and post-development experience. That however may reflect the fact that since it was consented in the first place, the wind farm in question was in fact acceptable to the decision-taker notwithstanding perceptions on the part of local residents or visitors to the contrary beforehand.

4.44. The „ex post facto‟ studies which NBDL invites the ExA to give weight to

are by definition studies of consented schemes – they cannot as a matter of logic be a material consideration within a decision-taking process whose purpose is to assess whether or not a scheme should be consented or not in the first place.

4.45. Logically there cannot be any “ex post facto” study data for schemes

which were refused consent and therefore not built.

4.46. CN would therefore respectfully caution the ExA about ascribing any weight to ex post facto studies for the purposes for which NBDL is inviting the ExA to use them. CN would instead invite the ExA should concentrate upon the actual evidence relevant to this PWF including the perceptions surveys and reasonable inferences drawn therefrom.

5. WORLD HERITAGE SITE

5.1. In its D2 Response at Part 1 NBDL summarises its planning argument in

respect of the WHS at section 10. Its argument pivots upon the proposition that the PWF is acceptable because “...the Project would not physically impact on the elements of the WHS that contribute to its [Outstanding Universal Value], and there would be no significant impacts on its protection and management”.

5.2. Such a proposition – if it were true – would entail that outstanding universal value could be understood so narrowly that mere lack of physical impact from a development upon the physical fabric of a WHS would be sufficient to satisfy NPS policy, NPPF policy, domestic law and the international obligations of the UK.

5.3. That proposition is however untenable. The universal value of a WHS

cannot be divorced from its character as an area visited by people to indivisibly experience the world and our place within it. To argue that where the interests informing the designation of a WHS are focussed upon its natural characteristics, this renders the cultural value of that

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area and the quality of human experience of it an irrelevance to decision-taking, is unsound.

5.4. Furthermore NBDL appeared in the ES to have accepted this (and in

particular in respect of the WHS has promulgated an “Alternative” approach (technical appendix; Volume D – Project Wide Assessment: Chapter 5 – World Heritage Site Appendix 5.1- Alternative Approach) (“the Alternative Approach Document). It was right to do so insofar as merely evidencing a claim that there is no physical effect on the geology and other physical elements of the WHS could not be sufficient to address its outstanding universal value and the irreducible cultural component of human experience which is central to the concept of a world heritage site.

5.5. Once that is acknowledged, CN considers it clear that the PWF will lead to substantial harm to one or more designated heritage assets and in particular the WHS. The independent expert body best placed to offer impartial specialist judgment on that issue is however the IUCN. NBDL‟s protestations in the D2 Response to the effect that UNESCO per se has not objected to this PWF do not alter the substantial weight which must be attached to the views which IUCN has expressed.

5.6. IUCN‟s views clearly remain cogent and compelling accordingly. In respect of the WHS the letter from Kirshore Rao, states the following unequivocal conclusions: 5.6.1. “IUCN considers that the Project will have a significant

impact on important views from the property, in that it would adversely impact on the natural setting of the property, including views from the main visitor centre at Durlston Castle towards the Isle of Wight, where the Project would replace the Isle of Wight as the dominant feature on the horizon.”

5.6.2. “Any potential impacts from the Project on this natural

property are in contradiction to the overarching principle of the World Heritage Convention as stipulated in its Article 4, as the completion of the Project would result in the property being presented and transmitted to future generations in a form that is significantly different from what was there at the time of inscription and until today. Specifically, the property will change from being located in a natural setting that is largely free from human-made structures to one where its setting is dominated by human-made structures.”

5.7. Any authorisation of the PWF would not only be contrary to policy, but

would also place the UK in breach of its international obligations accordingly.

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6. CONCLUSION

6.1. In the D2 Response NBDL has summarised its own position at this stage as dependent upon the following propositions :

6.1.1. hat both : (i) the policy of the Secretary of State (“SoS”); and

(ii) the process prior to the current examination into the Application pre-dispose the current decision-taking in favour of the PWF;

6.1.2. that this Proposed Wind Farm (“PWF”) should be authorised because two other large scale off-shore wind farms have already been approved by the SoS;

6.1.3. that this PWF would be in accordance with EN-1 and with EN-3 in respect of – amongst other issues :

6.1.3.1. Seascape Landscape & Visual Impacts; 6.1.3.2. Nationally Designated Landscapes; 6.1.3.3. Tourism; and

6.1.4. that this PWF would not materially harm the World Heritage

Site.

6.2. Neither the policy “presumption” to which NBDL refers nor the Round 3 process pre-dispose the current examination process in favour of the PWF at all. The „presumption‟ in EN-1 is clearly stated in EN-1 itself not to apply where there are more specific and relevant policies set out in the relevant NPSs which clearly indicate that consent should be refused.

6.3. There are clearly such specific and relevant policies – in EN-1 and EN-3 – which indicate that consent should be refused. The „presumption‟ does not apply accordingly.

6.4. Furthermore the presumption is also subject to the provisions of the

Planning Act 2008 – the PA08 however expressly establishes the materiality of NPPF policy – much of which is contrary to the PWF – and the statutory “exceptions” which include cases such as the present in which the Project would result in the UK finding itself in breach of its international obligations (including in this case the World Heritage Convention).

6.5. As far as prior process outcomes are concerned OESEA1 in fact pre-

disposes the current process against this PWF in this proposed location because notwithstanding the warning in OESEA1 concerning the risks of attempting siting within 12 NM of the coast this PWF is proposed substantially within that very limit.

6.6. The authorisation of two other off-shore wind farms at Rampion and

Gwynt Y Mor does not assist NBDL‟s cause either – they are factually distinguishable in many ways including the absence of a World Heritage Site from the respective affected sections of coastline - and in any event there is no doctrine of precedent in respect of decision-taking under this part of the PA08.

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6.7. The PA08 requires the Application to be decided in accordance with the whole of the relevant policy in the NPS, not merely such parts of it as the Applicant might consider supportive. Furthermore such policy is to be interpreted in objective terms according to the language used – there is nothing in EN-1 or EN-3 to suggest that a renewable energy facility is of greater importance than preservation of natural and cultural assets of national and international importance.

6.8. Even if the PWF in this proposed location were considered to accord

with the NPS (which CN does not concede) the statutory exceptions include the avoidance of decision-taking which would place the UK in breach of its international obligations. There is nothing in the D2 Response which establishes that this PWF in this proposed location could be acceptable in all these circumstances.

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Challenge Navitus Response to Deadline 3 Ecological Issues




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COMMENTS ON

NBDL’S “SUMMARY OF THE APPLICANT’S WRITTEN

REPRESENTATIONS”

RELATING TO CERTAIN ECOLOGICAL ISSUES

ExA’s question 1.3 How does the proposed development conform with the

objectives of the Marine Strategy Framework Directive? and ExA question 1.7:

How does the proposed development conform to the objectives of the emerging

South Marine Plan?

1. Under regulation 4 of the Marine Strategy Regulations 2010, the Secretary of

State must exercise his functions under the Planning Act 2008 so as to secure compliance with the requirements of the Directive. Under regulation 9 of the Marine Strategy Regulations 2010 the Secretary of State must have regard to the marine strategy developed under regulation 5 of the Marine Strategy Regulations 2010. At present these obligations cannot be met by the Secretary of State.

2. This is because we have demonstrated through CN-WR-6 “Challenge Navitus

Written Representation: Deficiencies in NBDL’s Assessment of the Marine Environment” that NBDL is incorrect to conclude that:

2.1. the project meets the Marine Strategy Framework Directive descriptors

identified for Good Environmental Status by 2020 as listed, in particular number 1, number 4, number 6, number 7, at paragraphs 1.3.6 and 1.3.9 and 1.3.11 and 1.3.12 of NBDL’s “Summary of the Applicant’s Written Representations”. Indeed it is clear from paragraph 1.3.6 that no agreement has as yet been reached as between the relevant stakeholders and NBDL on effective mitigation for adult migrating salmon; and

2.2. the Project conforms with the emerging South Marine Plan, in particular

at paragraphs 1.7.1 1.7.5, 1.7.6, 1.7.8 of NBDL’s “Summary of the Applicant’s Written Representations”

ExA question 2.1.1 Offshore EPS licences: can the applicant provide details of

which species and EPS licences are likely to be required and how this is to be

secured through the DCO?

3. We noted deficiencies in NBDL’s assessment of impacts on Cetaceans in CN-

WR-5 “Challenge Navitus Written Representation: Deficiencies in NBDL’s Assessment of effects on European Protected Species”.

4. NBDL now concedes at 2.1.1.1 of NBDL’s “Summary of the Applicant’s Written

Representations” that an EPS licence is likely to be required for harbour porpoise and bottlenose dolphin. By conceding that EPS licences are needed, NBDL is accepting that one or more of the following criminal offences is likely to be triggered by the Project (the information provided does not state which of these offences will be triggered):

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4.1. Deliberate killing or injury or capture of one or more dolphins or porpoises

4.2. Deliberate disturbance of the dolphin species or the porpoise species

4.3. Damage or destruction of any breeding site or resting place of any

dolphin or porpoise.

5. In CN-WR-5 “Challenge Navitus Written Representation: Deficiencies in NBDL’s

Assessment of effects on European Protected Species” we set out at paragraphs 1-4 the relevant legislation and Supreme Court case law relevant to EPS. We noted in that document that, for any EPS licence to be granted, three licensing tests must be met:

5.1. That there are imperative reasons of overriding public interest justifying

the licensable activity

5.2. That there is no satisfactory alternative; and

5.3. That the action authorised will not be detrimental to the maintenance of

the population of the species concerned at favourable conservation status in their natural range.

6. Para 2.1.1.3 NBDL’s “Summary of the Applicant’s Written Representations”

states that the MMO has confirmed it will use the information contained within Vol B Chapter 11 of the ES to make a decision in principle and that this would be captured as part of the SoCG process. Chapter 11 of the ES contains only ecological details.

7. Para 2.1.1.4 of NBDL’s “Summary of the Applicant’s Written Representations”

states that NE has confirmed in its SoCG (Fish and Shellfish) that an EPS licence would be granted at the point of construction. However there is in fact no such statement in the NE SoCG (Fish and Shellfish). This statement is in fact found in the NE SoCG on all other species (not on Fish and Shellfish).

8. However we have severe doubts that the licensing tests could ever be met by

NBDL, in particular the “no satisfactory alternative” (“NSA”) test and the “maintenance of the population of the species concerned at favourable conservation status in their natural range” test.

9. In order to meet the NSA test there needs to be a thorough analysis tailored to

the specific relevant species demonstrating why there is no satisfactory alternative to meet the identified need that would be less damaging for the relevant species. Consideration of the following must be included:

9.1. Alternative locations: Note that, by contrast to the requirements of the

EIA Directive, this analysis of alternative locations is not to be limited to alternative locations considered by NBDL but instead requires a full and

objective analysis of all alternative locations which could (alone or in combination) be used to generate the levels of electricity to be provided by the Project. It is noted that this legal requirement to consider

alternatives is wrongly expressed in NBDL’s Planning Statement (para 5.4.4) as a policy requirement. It is by contrast a requirement of European law, from the Habitats Directive. Therefore, as set out in para

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5.4.5 of the Planning Statement, this legal requirement overrides the advice to the Examining Authority and the Secretary of State in EN-1. Paragraph 6.1 of NBDL’s “Summary of the Applicant’s Written Representations”, which discusses EN-1 and alternatives, also fails to recognise this. The existence of the Round 3 process in no way restricts the legal requirement to consider “satisfactory alternatives”; and in any event it is noted from the Examining Authority’s question 1.8 that the Project is not even in conformity with the Offshore Energy SEA – post public consultation report (DECC- 2009) and the subsequent publication of OESEA2 (DECC- 2011) Recommendation 4.

9.2. Alternative methodologies

9.3. Alternative layouts

9.4. Alternative timeframes

9.5. The do nothing option

10. In order to meet the “favourable conservation status test” compensatory

measures must be taken in respect of the relevant species. It is far from clear what those compensatory measures would or could in this case be. NBDL states at para 2.1.1.3 that the MMO has confirmed it will use the information contained within Vol B Chapter 11 of the ES to make a decision in principle and that this would be captured as part of the SoCG process. It is clear that the mitigation proposed in ES Chapter 11 is, however, not adequate otherwise the view would have been taken by NE and the MMO that, taking into account that mitigation, no EPS licences are needed at all. On the contrary both NE and MMO confirm that EPS licences are needed. Furthermore NBDL, at its answer to ExA question 2.1.20 (at paragraph 2.1.20.1), states that no mitigation is proposed / required for harbour seals. What compensatory measures therefore are being proposed so as to meet this key licensing test? In the absence of this information there can be no prospect of the licences being granted.

11. Given the Supreme Court case law and the concerns highlighted above, which

immediately throw into doubt the assertion by NE and MMO in their respective SoCGs that EPS licences will be granted at the point of construction, the Secretary of State is required to satisfy himself that these licensing tests can be met prior to determining the DCO, so that he can have confidence that the assertion by NE and MMO that EPS licences will be granted at the point of construction is substantiated and is based on relevant and accurate considerations. At present the Secretary of State has inadequate information on these points.

ExA question 2.2.1: Onshore EPS licences: The applicant has submitted a draft

EPS Licence for sand lizard and smooth snake for review. Is NE in a position to be

able to provide a letter of no impediment?

12. We noted deficiencies in NBDL’s assessment of impacts on land based EPS in

CN-WR-5 “Challenge Navitus Written Representation: Deficiencies in NBDL’s Assessment of effects on European Protected Species”.

13. NBDL now concedes at 2.2.1.1 of NBDL’s “Summary of the Applicant’s Written

Representations” that an EPS licence will be required for sand lizard and smooth

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snake. At paragraph 2.2.1.1 the applicant refers to the Landscape and Ecological Management Plan at Appendix 20. This document considers the ecological strategy which is relevant to the third EPS licensing test ie that the action authorised will not be detrimental to the maintenance of the population of the species concerned at favourable conservation status in their natural range.

14. However this document makes no reference to remaining two legal tests which

must be met for a licence to be granted:

14.1. That there are imperative reasons of overriding public interest justifying the licensable activity; and

14.2. That there is no satisfactory alternative.

15. In addition it is clear from NE’s answer to the ExA’s question 2.2.1 that to date

the discussions as between NBDL and NE in relation to these species have been confined to the avoidance and mitigation methodology only. As noted above there must in particular be an analysis of the no satisfactory alternative test so as to test whether there is any alternative which would be less damaging to the sand lizard or smooth snake. This analysis must include:

15.1. Alternative locations or routes. Note as above that, by contrast to the

requirements of the EIA Directive, this analysis is not to be limited to alternative locations / routes considered by NBDL but instead requires a full and objective analysis of all alternative locations / routes which could (alone or in combination) be used to generate the levels of electricity to be provided by the Project and yet have a lesser impact on the relevant species.

15.2. Alternative methodologies

15.3. Alternative layouts

15.4. Alternative timeframes

15.5. The do nothing option

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Challenge Navitus Response to Deadline 3 Benthic Habitats




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Benthic Habitat Assessment response

1. INTRODUCTION

1.1. This paper contends that there are significant deficiencies in

methodology and processes - and lack of completeness - in respect of the evidence that NBDL provided in responses to ExA Questions 1.3, 2.1.2, 4.1.7, 4.18, 4.19.

1.2. NBDL‟s replies to these questions - relating to the assessment and maintenance of benthic habitats and biodiversity, and the susceptibility such of habitats to piling residues both suspended and bed loaded - cannot be substantiated.

1.3. They also raise further questions as to what evidence was provided to

the MMO in order that this development area is to be designated, within the DCO, as a waste disposal site, and what further damage would then result. It is understood that such an application would require a separate application and a major change in emphasis of the assessment process.

2. BENTHIC HABITAT

2.1. There is incontrovertible, indicative evidence that the benthic habitat within the proposed turbine development area is extremely diverse and has a high probability of containing many annex 1 reefs. (Appendix 1). This evidence is apparent both from within the NBDL EIA benthic assessment (9.4.1.6) and other authoritative sources (Appendix 1) not cited by NBDL.

2.2. It is difficult to determine, from this evidence, how NBDL could have concluded that the area was homogeneous and only required a “snapshot” survey (Appendix 2).

2.3. As previously indicated in the CN relevant representation document

(CN-WR-6) NBDL did not follow, as they asserted (Appendix 3) the industry guidelines (Appendix 4) which would have indicated the requirement for a much more detailed habitat assessment including a side scan sonar survey and at least 120 grab samples.

2.4. The development zone habitats are clearly heterogeneous. In earlier

documentation by ENECO it was asserted that sonar surveys (side-scan and multi-beam) had taken place (Appendix 5) but no evidence of this has been presented within the EIA. Was such sonar data presented to NE and MMO in their approval of the benthic assessment process?

2.5. There are clear indications (Appendix1) of the potential presence of a wide variety of geogenic reefs within the turbine development area. These range from:

Soft chalk bedrock reefs

Boulders and cobbles

Outcropping bedrock

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Mosaic of habitat types including rocky ledges, sediment covered rock and mixed sediments.

The presence of a distinct underwater sea cliff running through the zone.

2.6. In CN‟s written representation document (CN-WR-6,) CN also

highlighted the lack of a detailed assessment of biodiversity on NBDL‟s part, contrary to the Habitats Directive.

3. ADDITIONAL THREAT TO BENTHIC ENVIRONMENT : WASTE

3.1. In reply to question to ExA question 4.1.17, NBDL confirmed “The

potential for the project area to be designated as a disposal site under the OSPAR Convention has been discussed with the MMO and a disposal site report has been submitted to the MMO for review. Following receipt and review of the report, the MMO confirmed that the site will be designated and reference to the designation of the Project area as a disposal site included in the DCO.”

3.2. CN questions the procedural approach which is being taken towards this

in the context of the Marine Licence procedures regime (2014). Insofar as its use for such waste disposal purposes requires the effects of waste to be considered in conjunction with all the other environmental effects of the wind farm project, CN is concerned that a separate and non-integrated approach is seemingly being taken towards this. As a result CN questions NBDL‟s response to the rule 8 questions posed by the ExA.

3.3. Absent are appropriate publicity and consultation processes integrated

with the current process for the making of the DCO itself, including consultation with the public, there is no clear information as to what waste is being disposed across the site and over what time period. For example the cabling and cable protection disposal during decommissioning, stubs of iron work and concrete foundations and any other construction or demolition rubbish.

3.4. The EIA requirement for waste disposal requires a totally different emphasis from that of a wind farm development, particularly in relation to the benthic environment. There is an a priori assumption within marine

waste disposal that the dumpings will cause damage. Large amounts of waste dumped on the sea bed will inevitably cause major habitat damage and loss. Within the wind farm development the emphasis as indicated in ExA‟s leading question 1.3, is the compliance of the development with the Marine Strategy Directive to both maintain and sustain the environment.

3.5. NBDL, in using the site as a waste disposal area, cannot therefore make the claim, as in its reply to ExA 1.3 question, that the development will not have a significantly negative effect on the benthic habitat, and biodiversity and therefore will fail to comply with the Marine Strategy Directive.

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3.6. The certainty of damage from waste dumping on the benthic habitat requires an even greater emphasis on assessing the benthic habitat and biodiversity and the ecological value of the site as a whole. This is both to indicate the ecological value of the site itself and the extent of the proposed development on that site, and also the requirement to assess potentially less damaging sites for the development. The “snapshot” of 12 grab samples is inadequate for this purpose and far removed from the suggested 120 samples required, as indicated by Ware and Kenny (2011).

4. BEDLOAD & SEDIMENT EFFECTS

4.1. In document (CN-WR-6) detailed consideration was given to the

deficiencies in NBDL bedload sediment effects assessment.

4.2. Given the additional use of the site as a waste disposal site, there is an even higher probability that bedload and sediment dispersal, arising from drillings and trenching, together with dumped material would damage large amounts of seabed in the development area.

4.3. It could not be concluded beyond reasonable doubt that the dispersal of

such waste would not have a significant impact on the Wight Barfleur reef SAC. On the contrary, there is a likely environmental effect and the impact should have been assessed. An unsupported assertion of the lack of a credible pathway is not an adequate response to this issue in the context of EIA.

4.4. If the development goes ahead there is a high probability that some of

the most valuable benthic habitats in UK territorial waters would sustain major damage and there would also be a major loss of biodiversity.

4.5. Neither within its “Written response for Deadline II” nor within the other documentation submitted to the ExA by the Applicant at that time have the material deficiencies identified herein been addressed.

5. IMPLICATIONS OF DEFICIENCIES IN APPROACH TOWARDS THE BENTHIC ENVIRONMENT

5.1. Those omissions have serious implications in terms of non-compliance

with EU law including Directive 2011/92/EU which governs the assessment of the effects of certain public and private projects on the environment and the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 state current UK regulatory requirements in respect of EIA.

5.2. The deficiencies in the ES are such that no decision to make the DCO could in CN‟s respectful view be taken without breach of the Directive and of the regulations.

5.3. A purposive approach towards the application of the Directive is to be

taken and where the decision-taker is not in reality furnished with „environmental information‟ in respect of relevant matters he cannot

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perform his duty to have regard to the effects of the project upon the environment. The practical implications are important. In advice note 9 on Wind Farm schemes in respect of “ The Rochdale Envelope” reference is made to R v Rochdale MBC ex p Milne (No. 1) and R v Rochdale MBC ex parte Tew [1999] and R v Rochdale MBC ex parte Milne (No. 2) [2000].

5.4. The Advice Note reports that amongst other things the Court expressly cautioned that: “„The assessment may conclude that a particular effect may fall within a fairly wide range. In assessing the „likely‟ effects, it is entirely consistent with the objectives of the Directive to adopt a cautious „worst case‟ approach. Such an approach will then feed through into the mitigation measures envisaged…. It is important that these should be adequate to deal with the worst case, in order to optimise the effects of the development on the environment” (para.122 of the Judgment).

5.5. The Advice Note records that the Court went on to say in respect of the “level of information required” that this had to be “.: „sufficient information to enable „the main,‟ or the „likely significant‟ effects on the environment to be assessed….,and the mitigation measures to be described….‟ (para.104 of the Judgment); the omissions which we have highlighted however are such that likely significant effects have not been assessed adequately or in some cases at all.

5.6. Furthermore in respect of the “flexibility” which the “Rochdale envelope” may allow for, the Advice Note states that the Court spelt out that such „flexibility‟ must not be abused by developers : „This does not give developers an excuse to provide inadequate descriptions of their projects. It will be for the authority responsible for issuing the development consent to decide whether it is satisfied, given the nature of the project in question, that it has „full knowledge‟ of its likely significant effects on the environment. If it considers that an unnecessary degree of flexibility, and hence uncertainty as to the likely significant environmental effects, has been incorporated into the description of the development, then it can require more detail, or refuse consent‟ (para.95 of the Judgment).

5.7. As far as the examination process is concerned our understanding is

that pursuant to the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 regulation 17 it is open to the ExA – where it is of the view that an ES should contain further information – to formally require the Applicant to provide this.

5.8. Where a power exists there is a legal duty to consider exercising that power (Stovin v Wise [1996] 3 WLR 389).

5.9. We respectfully request that the ExA should exercise its power to require

the Applicant to address these serious material deficiencies in the ES as a matter of urgency. We would expect that all concerned including CN would be afforded a reasonable opportunity to consider and make informed representations upon such further environmental information as must be provided in order to address those deficiencies once that information is forthcoming.

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5.10. Unless those deficiencies in the ES can be and are addressed, the

Advice Note suggests that the failure to address the environmental impacts of the proposal would entail refusal of development consent.

6. REQUEST FOR ADDITIONAL INFORMATION

6.1. It is therefore requested that the following information be provided by

NBDL:

6.2. The illustration of the biotope complexes shown in the EIA 6.1.2.9 fig 9.8 uses exactly the same illustration as presented in PEI 3 ch 9 fig 9.8 with sampling in exactly the same locations but the interpretations shown are different. In PEI3 of the 27 locations identified 17 are assessed as having a medium risk of geogenic reefs, 6 as a low risk of having no geogenic reefs. i.e. 67% of sites had a medium risk of containing a geogenic reef. Could NBDL provide:

Details of the logic behind the appraisal of the sites being of medium risk?

Details of the characteristics at each of these sites that were applied to derive the risk assessment?

Explain why when 67% of the sites surveyed had medium risk of containing geogenic sites, it could conclude in absolute terms that there was no risk of Annex 1 geogenic habitats being present?

Explain why in vol B 6.1.2.9 fig 9.8 showing exactly the same presentation no interpretations of risk were given, merely indicative presence of classified biotopes, some of which could indicate presence of stony reefs but whose presence was not recognised.

6.3. In 6.1.2.5 vol B illustration 5.10 combines the data from sample sites into a table showing composite data. The local data on each individual site and the number of sites showing no sediment present would provide the strongest indication of seabed mobilisation forces present within the site.

Could NBDL provide individual data for each site showing particle size, particle frequency and bare rock substrate?

6.4. In Vol B 9.5.8 on biodiversity and the benthic habitat NBDL assert “Image data and samples were subsequently analysed in an accredited marine laboratory and subjected to statistical ecological analysis”. Can:

NBDL provide copies of the image data and samples supplied?

NBDL confirm the name of the accredited marine laboratory.

NBDL provide copies of the statistical ecological analyses.

6.5. In its Zone - 7 West of Isle Wight Dorset AONB meeting (Feb 2011, Appendix 5) Eneco revealed that 2260 sq km of the zone had been surveyed and 98% of target data acquired. This included Sidescan, Multibeam, Magnetometer Seismic and grab samples.

Could NBDL please provide copies of the Sidescan and Multibeam data copies?

Copy of conclusions drawn from the data.

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Provide direct access to the primary data from these sources in order to independently confirm a quantitative assessment of the character of the benthic habitat.

6.6. The wind farm development site it has now been confirmed, will also be developed as a waste disposal site. Procedures for application for a Marine Licence for such sites are clearly laid out by government in Marine Licence application advice (2014) and procedures required for the benthic assessment detailed in Ware and Kenny (2011). Could NBDL please provide.

Date and details of the application to develop a waste disposal site in Poole Bay.

Details of consultations with statutory consultees and the general public in relation to this waste disposal site application.

Details and content of the information provided to MMO for its approval of a Waste Management site.(as indicated in response to ExA Q 4.1.17.1)

Details of MMO response to this application.

Details of communications with planning authorities in relation to approving such a development.

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Appendix 1 Evidence for presence of heterogeneous habitats

including Annex 1 stony reefs. 1. The details of the biotope complexes in 6.1.2.9

2. Presence of sea cliff

The structure of the substratum is a major habitat characteristic. Generally surface area

and the number of available microhabitats increase with topographical complexity,

leading to greater biodiversity. The presence of an underwater sea cliff indicates high

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topographical complexity with the possibility of sea caves. See 6.1.2.9 fig 9.8 along a

line of approximately [(585000 – 588000W), 5585300N] 3. Geology transects through development zone

The general topography of the turbine development area is also indicative of highly

diverse benthic habitat from EIA physical processes 5.4.40. The development site

chosen is the most topographically diverse possible. It also indicates the presence of sea

cliff topography.

4. Recent surveys (Geogenic Reefs and the Marine Aggregate Industry,

Houghton et al, ABP Marine Environmental Research, Jan 2011) on the possibilities of the location of geogenic reefs in the Uk waters indicate Poole Bay as an area with the highest probability of containing such reefs. See below:

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5. Heterogeneity and biodiversity

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6. There are further indications of the potential for diverse topography and Annex 1 reefs in Dorset integrated sea bed survey 2014. Presence of

submarine sea cliff is also indicated.

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7. Indicative evidence from : Coggan R, Diesing M and Vanstaen K (2009) Reefs in the central english channel. Scientific Series Technical Report.

Appendix 2 Justification for snapshot survey

It is difficult to see from the data presented in Appendix 1 how this has been concluded.

Appendix 3 Methodology employed

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Appendix 4 Ware and Kenny guidelines

The sea bed assessment guidelines (Ware and Kenny 2010) are as follows: (page 16)

“Information is required to describe the detailed biology of the relevant area. The information should include:

• A summary of all the techniques used and details of all species identified including their

abundance at each sampling station. • A description of all the benthic communities present within and adjacent to the

development area. This should include an evaluation of the typical assemblages of species,

covering biodiversity, abundance, extent, species richness, representativeness, naturalness,

rarity and fragility. • An indication of the sensitivities of particular habitats and species e.g. Sabellaria

spinulosa reefs.

• An assessment of the predator prey relationships and measures of the abundance of dominant species..

This information will then be utilised to make analyses and predictions regarding sea floor

sediments, biological impacts and biodiversity assessments.”

Appendix 5

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References (1) Ware and Kenny (2010) “Guidelines for the Conduct of Benthic Studies” (2) Tyler-Walters et al (2001) “Identifying species and ecosystem sensitivities”.

Marine Biological Association.

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Challenge Navitus Response to Deadline 3 Socio-Economic Issues




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Contents 1 Summary ............................................................................................................... 3

2 General Observations ............................................................................................. 3

3 Comments on Specific Answers by the Applicant .................................................. 4

4 Comments on Appendix 68 .................................................................................... 8

4.1 Tourism Impacts ............................................................................................. 8

4.2 Economic Impacts........................................................................................... 9

5 Mitigation .............................................................................................................. 9

6 Conclusions ........................................................................................................... 9

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1 Summary This document responds to parts of NBDL‟s document “Written Response to Deadline

III (Responses to Examining Authority‟s Rule 8 Questions)” and in the related

Appendix 68 relating primarily to socio-economic issues.

This document includes:

1. general observations,

2. comments on answers to certain specific questions and on Appendix 68, and

3. requests for additional information from the Applicant.

2 General Observations EN-1 5.12.3 requires assessment of all relevant socio-economic impacts, which in this

case we would expect to include visitors & tourism, recreation and marine

users/businesses, and attractiveness (in the broadest sense) of the region as a place to

live in, work in or retire to. However, the applicant‟s analysis is much narrower than

this and fails to capture all relevant impacts.

In the Application and in Part 2 of the Applicant‟s Written Representation, Recreation

activities (and businesses supporting them) appear to be considered as a sub-set of

Tourism (and businesses supporting tourist activities). Recreation, however, is a

separate sub-sector of the local economy, overlapping only in part with the Tourist

economy. The Applicant‟s assumption that in attempting to measure the Tourist

economy and the likely behaviour of the economic agents within it, it has also captured

the Recreation economy, is false.

A. The Tourism Assessment Baseline (document 6.2.4.3.3 of the Application)

appears to rely1 on the standard UN World Tourism Organisation (WTO)

constituents (numbered according to 2007 SIC codes) as set out on p.29 of a

VisitEngland document2 to capture economic and employment data. The WTO

constituents, however, do not – and are not intended to - capture all aspects of

recreation. Taking as an example marine leisure activities, the WTO

classification includes marinas, but not

i) boat-building, repair or maintenance;

ii) chandlery (specialist marine supply);

iii) yacht clubs or sailing schools; or

iv) agency activities such as brokerage (sales) and insurance3.

Review of the economic activities associated with other Recreation activities will

similarly demonstrate that large parts of these are not captured within the WTO

constituents / SIC codes, and are therefore absent from the data presented by the

Applicant.

1 This is implicit in its use of GBTS Analysis, such as table 5-5-4 (p.46) of the Tourism Assessment Baseline (Appendix 3.3), from which the – in CN’s view, misleading - figure of £637 million shown in para. 3.4.35 of the Socio-economics and Tourism assessment (Volume D, Chapter 3 of the ES) is drawn. 2 “What is tourism worth? Understanding the value of tourism at regional and sub-regional level” at http://www.visitengland.org/Images/Summary%20Paper%20-%20Sub-Regional%20Tourism%20Value_updated%20links_tcm30-30057.pdf. 3 SIC (2007) Codes for these activities available on request.

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B. The Tourism Business Survey (document 6.2.4.3.6 of the ES) is not clear about

the types of businesses it polled, since the survey methodology set out in

paragraphs 1.3 and 1.4 of that document refers to SIC codes that do not appear

to be from the standard 2007 classification. It seems from the classification

headings, however, that the authors have sought to replicate the WTO

classification, potentially leading to the same failure to capture a representative

slice of businesses supporting Recreation as well as Tourism activities.

C. Lastly, the Visitor Surveys (documents 6.2.4.3.1 and 6.2.4.3.4 of the

Application) undoubtedly under-represent many types of recreational participant

simply because of the sampling locations.

As a result, the Tourism Assessment Baseline, the Tourism Business Survey and

the Visitor Surveys, and therefore Chapter 4.3, Socio-Economics and Tourism

(document 6.1.4.3 of the ES), are each unreliable as a source to take account of the

socio-economic impacts associated with Recreation activities.

The discussion about Tourism impacts in Appendix 68 of the Applicant‟s Written

Responses focusses narrowly on Tourism, ignoring Recreation, and makes no useful

contribution to the issue of the potential socio-economic impact of the project on

Recreation activities and businesses.

3 Comments on Specific Answers by the Applicant

Q. 4.1.18

In the ES Volume D Chapter 4, paragraph 4.5.10, recreational offshore angling is

assessed as regionally important and that the sensitivity is higher than that used in the

Commercial Fisheries assessment. However, assessed impacts are drawn directly from

Volume B Chapter 17 in assessing the significance of recreational fishing.

a. Can the applicant explain this discrepancy?

b. If a more sensitive assessment was made for recreational offshore angling than

currently used would the significance change?

Comment

In its answer to part (a) the Applicant states that “the recreational assessment considers

this [availability of fish stocks] as well as the potential effect on the enjoyment of the

activity and the ease at which recreational users can undertake the activity.” “[T]he

impact is considered to be Not Significant following mitigation (refer to section 4.6(a)

of Volume D, Chapter 4 (Recreation) of the ES).” (para 4.1.18.3 of the Answers).

Section 4.6(a) offers three mitigations:

a. information to anglers and boat-owners about the work, and the closure of

fishing marks

b. disruption agreements with boat-owners; and

c. potential for improvement in marine habitat.

We do not agree that these mitigations will have the beneficial impact presumed by the

Applicant, for the following reasons:

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In the case of (a.), this is not mitigation.

In the case of (b.), recreational users‟ loss of “ease and enjoyment of the

activity” is not mitigated at all – only the boat-owner is compensated.

In the case of (c.), we concur with the Applicant‟s own assessment (in para

4.1.20.3 of the Answers), which is “Any possible consequential “benefit” [of

indirect operational effects] for anglers and divers would… be of low

significance.”

The Applicant does not address part (b) of ExA‟s question. Similar observations could

be made about the impacts on recreational diving.

Q. 12.11

ETC International College Language School, Anglo-Continental Language School and

Bournemouth Tourism Management Board have raised concerns regarding adverse

impacts on language schools. Can the applicant respond?

Comment

Having gathered the evidence that the majority of language schools who responded are

concerned about negative impacts on their businesses, the applicant discards it with the

statement, “There is no conclusive evidence that the visual environment is a key factor

in students choosing to attend language schools, nor that the Project would reduce the

attractiveness of the schools in the area. Given the position from EN-1 that limited

weight is to be given to assertions of socio-economic impacts that are not supported by

evidence, it is considered that there is no way to deduce a significance to any potential

impact.” Surely the task of the applicant is to assess impacts based on the evidence it

gathers. If the applicant is dubious about the quality of its own evidence, it should seek

better evidence.

Q. 12.15

Following representations from a number of interested parties, including Professor

Denys Brunsden, Conor Burns MP, Mrs M Field, Trish Lane, Ashley Fox MEP and

others, could the applicant comment on the importance of the UNESCO World Heritage

Site in attracting visitors to the area and how the risk of this designation being lost can

be mitigated?

Comment

The Applicant here, as elsewhere in its Application, adopts a highly tendentious

approach to the interpretation of its own survey work. In para 12.15.2 of its Answers,

it states merely that “the area‟s cultural landscape/heritage was the main motivation for

visiting the area for 3% of the visitors surveyed and 17% identified it as a secondary

reason (Table 9a).” Table 9a4 also shows, however, that „seaside, beaches and coast‟

were the main reason for 53% of all visitors, and the secondary motivation for a further

24%, and that „Sea views‟ were cited by 8% as the principal, and by 48% as the

secondary motivation for their visit. Taking these three drivers together, almost

two-thirds of visitors cited coast and sea as the primary motivation for their visit.

4 On p. 11 of the Summer Season Visitor Survey (document 6.2.4.3.1 of the Application)

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Q. 12.16

A number of interested parties… have raised concerns regarding impacts on property

values. Can the applicant respond on this and the extent to which impacts on property

values should be considered a socio-economic impact?

Comment

The courts have addressed this issue primarily in the context of potential devaluation of

individual neighbouring properties or groups of directly affected properties in the

immediate vicinity of a proposed development site. In that context a reduction in the

value of a residential property or properties should not in isolation cause planning

permission for a development otherwise in the public interest to be refused (although

factors such as the loss of amenity, loss of privacy, over-shadowing and so on may well

cause planning permission to be refused in relevant cases even those are the same

factors which would contribute towards the loss in value of the house(s)).

The situation here is different, and environmental impact assessment is being

undertaken against the background of the NPS which make clear that socio economic

effects are important material considerations. The effect on capital values - positive or

negative - cannot be readily excluded from such an assessment. A purposive approach is

to be taken towards the underlying Directive pursuant to which EIA is undertaken, and

that purpose would be defeated if the potential impact on value via the mechanism of

damage to the fundamentals of the local economy, affecting a wide range of commercial

and residential property values, were to be artificially excluded from the assessment.

This, we contend, is therefore necessarily within the scope of ExA‟s enquiry and should

weigh in its determination.

Q. 12.17

Environmental Statement document 6.1.4.3 paragraph 3.3.6 refers to historical marine

accident data. Have the socio-economic impacts of additional marine accidents been

assessed?

Comment

The Applicant‟s answer can be summarised in one word: no. The navigational risk has

been assessed, but there is no recognition that a consequence of increased risk will be

reduced participation and recreational use value, both of which will have an economic

impact on a substantial sub-sector of the local economy (for details, see CN-WR-10

Written Representation on Socio-Economics).

Qs. 12.18, 12.20

12.18: Reference to Environmental Statement document 6.1.4.3 table 3.3 and paragraph

3.3.16. Have the socio-economic impacts associated with recreation been considered?

12.20: Reference to Environmental Statement document 6.1.4.3. How are the combined

effects of the socio-economic impacts and tourism impacts considered?

Comment

The Applicant states that “The socio-economic effect of any residual adverse effects

would be manifested in reduced visitor numbers and reduced turnover in tourist and

recreation related businesses” and that “the assessment of socio-economic effects

includes the effects intrinsically linked to recreation activities”. But the Applicant

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overlooks the fact that, notwithstanding some overlap, tourism and recreation – and the

participants, businesses, their employees and the economic activity generated thereby -

are not the same, and provides little useful data with which to address this failing.

Please see „General Observations‟ above.

Q. 12.19

Could the applicant justify how the methodology used to assess magnitude of effect in

Environmental Statement document 6.1.4.3 table 3.7 is sufficient to satisfy the NPS

requirements to consider the “likely significant social and economic effects of the

development” and the“effects on tourism”? Would this be better quantified in terms of

jobs and GVA?

Comment

The applicant refers to Appendix 68, but this question is not answered there. We hold

this issue to be a fundamental flaw in the applicant‟s assessment. It is impossible to

compare the benefits of the wind farm against the potential impacts on the rest of the

economy on the basis of the information in the ES. Both factors need to be assessed

with a common methodology.

Q. 12.21

Environmental Statement document 6.1.4.3 table 3.7 states that the magnitude of effect

is very low “where fewer than 5% of business survey respondents considered the

perceived impact on turnover/customer base to be high”. Environmental Statement

document 6.1.4.3 paragraph 3.5.95 states that it is unlikely that construction phase

impacts across the tourism sector as a whole will be significant. However, the impact

on particular tourism (and recreation) sub-sectors or individual businesses or at

particular locations could be high.

How are these “finer scale” impacts identified and mitigated?

Comment

The Applicant states in its Answer that “The Socio-economics and Tourism assessment

has been undertaken at a local and regional scale”. Figures in that document relating to

participation in Recreation activities, however, are almost all scaled from national data5,

rather than by direct assessment of their local importance. We believe it is certainly the

case in most Marine Recreation activities, and probably in a number of other activities

as well, that this significantly underestimates local participation.

Q. 12.22

Environmental Statement document 6.1.4.3 paragraph 3.5.102 introduces other criteria

that results in a sensitivity rating being redefined to low when table 3.6 suggests high.

Could the applicant advise why the criteria were changed and provide justification for

this change?

Comment

The Applicant refers to the “standing of the receptor, in this case the relative importance

and attraction of tourism as a business sector” and to its “overwhelmingly strong”

5 See Table 4.8, on p.23 of the Recreation Chapter (document 6.1.4.4 of the Application).

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current business performance, as being the reason to reduce the presumed sensitivity of

inland tourism to the impact of the proposal. This relativistic approach leads to the

absurdity that damage, if it occurs to a large and highly successful part of the economy,

may be considered insignificant precisely because of that sector‟s size and success. It is

not appropriate to adjust sensitivity in this way – a business‟s sensitivity to change is a

separate issue from its size or (current) strength. Also, in absolute terms, a small change

in the fortunes of a large business may be far more important than a large change in the

fortunes of a small business, but that fact is lost when only relative changes are

assessed.

4 Comments on Appendix 68

4.1 Tourism Impacts Given the data that is presented and discussed, it is clear that Appendix 68 addresses

Tourism in its normal sense; there is no discussion of impacts on specific Recreation

activities. The Visitor Surveys will (in view of the locations chosen for survey)

inevitably under-represent participants in these activities, and should be disregarded as

evidence in relation to Recreation.

The Applicant asserts (paragraphs 2 – 5 of Appendix 68) that a perceptions survey is a

less robust source of evidence than a limited review of existing literature and

experiences in chosen locations elsewhere. In our view, site-specificity must be the

prime qualifying characteristic for any relevant argument about a specific application.

There is ample evidence in many different forms – not least the existence of a multi-

billion pound market research industry - that evidence from effectively conducted

surveys is a more reliable source of data for analysis and decision-making than a

reliance on others‟ findings of debatable relevance to the case in hand.

The Applicant refers to a survey (referenced in footnote 8 below) conducted by Ipsos

MORI / Ipsos Public Affairs - a business that presumably would not exist if the

Applicant‟s view of the relevance of perceptions surveys was commonly shared –

relating to a Planning Application by York Potash Ltd. The Applicant‟s argument

(although not stated so directly) set out in paragraphs 7 – 10 is that a comparison

between the survey carried out by the Applicant‟s retained advisers and by Ipsos MORI

shows that the visitor survey work supporting the Navitus Bay application was poorly

specified and as a result is unreliable and should be disregarded.

It illustrates this unreliability by drawing (in paragraphs 11 – 13) on its own subjective

conclusions in the Seascape, Landscape and Visual Assessment. These SLVIA

conclusions, however, are themselves unreliable, as many Written Representations

make abundantly clear. In CN‟s view, the Visitor Surveys still remain a useful source

of information, after making allowances for their limitations.

The Applicant develops (in paragraphs 14 – 16) its argument in favour of preferring

selected opinion from other locations to actual survey evidence about this application.

It would be more helpful if it could present a table showing those instances for which

there is methodologically sound ex-ante and ex-post data relating to visitor and resident

perceptions and socio-economic impacts, adjusted in each specific case for climate and

for national and local economic and behavioural trends.

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In conclusion (paragraph 17), the Applicant appears to rely on the proposition that EN-1

requires “evidence” of socio-economic impacts and the absence, in its view, of such

evidence presented by other parties. The only thing that is clear from the Application is

that the Applicant has reached its own conclusion as to project impact on the basis of

information and opinion that falls well short of acceptable evidential standards.

4.2 Economic Impacts The Applicant discusses positive economic aspects at the national level in paragraphs 18

– 23. We understand that these are irrelevant to ExA‟s consideration. A fuller analysis

at national scale (including the negative impact of above-market prices for electricity

paid to a project ultimately controlled and owned by foreign investors) would be

required to present a more balanced picture.

The Applicant discusses positive economic impacts at the “local” – including Portland –

level in paragraphs 24 – 29. Certain of its statements contradict, or at any rate are not

supported by the information in the BVG Report (Appendix 3.2., Volume D), for

instance:

i. the scope for concrete foundation construction in “local” – including

Portland – ports6; and

ii. the difference in local long-term operational workforce between the

„Medium‟ and „High‟ scenarios7.

5 Mitigation We request confirmation from ExA and/or the Applicant that draft s.106 Agreement(s)

and/or Unilateral Undertaking(s), as discussed in paragraphs 30 – 32, will be made

available to any Interested Party on request at deadline III.

We will comment on mitigation at that stage.

6 Conclusions Whether or not the assessment prepared in support of the Application “complies with

policy” (paragraph 35), we do not accept, in part for the reasons set out above, that it

meets the evidential standards that the Applicant believes is required under EN-1.

There can be no direct evidence, except on an ex-post basis, that “visual impacts will

necessarily be borne out as a tourism impact” (paragraph 36). What is evident is that

i. the Applicant seeks to understate the significance of visual impact as

reported in its own surveys (see comment above to Q 12.15);

ii. methodology exists8 to address “respondent over-claim” and to weight

survey responses in a way that allows for non-mechanistic quantification of

6 See p. 63 in Appendix D of the BVG Report.

7 See p.28 of the BVG Report – the OMS scenario is the same in both cases. 8 See, eg “North York Moors Visitor Survey”, by Ipsos Public Affairs, dated 18 July 2014, pp 2, 52 – 59,

http://planning.northyorkmoors.org.uk/MVM.DMS/Planning%20Application/811000/811019/ac%20Ipsos%20MORI%20Visitor%20Survey.pdf, accessed 03/11/2014.

http://planning.northyorkmoors.org.uk/MVM.DMS/Planning%20Application/811000/811019/ac%20Ipsos%20MORI%20Visitor%20Survey.pdf

http://planning.northyorkmoors.org.uk/MVM.DMS/Planning%20Application/811000/811019/ac%20Ipsos%20MORI%20Visitor%20Survey.pdf

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visitor intentions, even if the Applicant‟s survey work is too flawed to allow

it be applied in this case (see Tourism Impacts above)

We reserve our position on the appropriateness of a “package of measures to enhance

the local benefits”.

Suggested Additional Information Requirements

1. A clarifying note on the selection criteria for the Tourism Business Survey,

together with the SIC (2007) codes used.

2. The raw data in respect of the Tourism Business Survey.

3. A clarifying note on statements in Appendix 68 that contradict, or at any rate are

not supported by the information in the BVG Report (Appendix 3.2., Volume

D), in particular:

the scope for concrete foundation construction in “local” – including

Portland – ports; and

the difference in local long-term operational workforce between the

„Medium‟ and „High‟ scenarios.

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Challenge Navitus Response to Deadline 3General Comments

Application EN010024


IP number 10029314

Last updated: 5 November 2014


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Blank page


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Contents

1 Revisions 4

2 Abbreviations 4

3 Summary 5

4 Questions & Comments on Responses 5


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1 Revisions

Revision Date Originator Checked Notes

1.0 5 Nov 2014 A Langley N/A 1st issue

2 Abbreviations

AONB Area of Outstanding Natural Beauty

CN Challenge Navitus

DCO Development Consent Order

ES Environmental Statement

LI Landscape Institute

MW Megawatt

NBDL Navitus Bay Development Ltd. (the applicant)

nm nautical mile

NP National Park

OS Ordnance Survey

RWCS Realistic Worst Case Scenario

WHS World Heritage Site

WR Written Representation


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3 Summary

This document is a partial response to NBDL’s “Written response to Deadline II”relating to the ExA’s first questions and NBDL’s responses to them.

4 Questions & Comments on Responses

Q. 1.6 What weight was attached to the designation of the World Heritage Sitestatus of the Dorset Coast in selecting the location of the wind turbines?

Q. 8.4.7 The methodology used for assessment of impacts has been informedby the ICOMOS guidance. It is said by IUCN to be adapted to culturalheritage. Should the project have been additionally assessed taking accountof IUCN’s World Heritage Advice Note: Environmental Assessment (2013)?

We disagree that sufficient weight has been given to the siting of turbines relative tothe WHS (and the Dorset AONB/Purbeck Heritage Coast) or that all of theprinciples of IUCN guidance on environmental assessment have been followed andapplied.

Section 5.8.3.4 of OESEA2 logs the existence of the WHS in regional sea 3 asfollows.

Further west, designations include the Tennyson and PurbeckHeritage Coasts, the Isle of Wight and Dorset AONB sites, the NewForest National Park and the Dorset and East Devon World HeritageSite – these extend from the Isle of Portland to the Isle of Wight. Peopleon the relatively rural stretch of coast from Weymouth to Bournemouth,which includes the South West Coastal Path, are likely to be impactedby offshore developments. Some of the coast along the same routereaches elevations of up to 150m, increasing the viewable distance.Larger developments may diminish the scale of these cliffs though theyshould be sufficiently offshore for this to be negligible in views from landto sea, but not sea to land or on certain cruising routes. This area ofcoast is quite complex, with enclosed views through The Solent and outfrom Weymouth Bay. The urban settlements of Weymouth,Bournemouth, and Portland Island and Harbour may be less sensitive tooffshore infrastructure due to the level of development in these areas.

However, as far as Round 3 is concerned, OESEA1 is the relevant document andits equivalent section 5.6.6.5 is as follows.

Central Channel and Isle of Wight area Designations include theTennyson and Purbeck Heritage Coasts, the Isle of Wight and DorsetAONB sites, the New Forest National Park and the Dorset and EastDevon World Heritage Site – these extend from the Isle of Portland tothe Isle of Wight. People on the relatively rural stretch of coast from


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Weymouth to Bournemouth, which includes the South West CoastalPath, are likely to be impacted by developments of 3.6MW or largerwithin 13- 24km from the coast. Some of the coast along the same routereaches elevations of up to 150m, increasing the viewable distance. Thescale of larger developments may diminish the scale of these cliffsthough they should be sufficiently offshore for this to be negligible inviews from land to sea, but not sea to land or on certain cruising routes.This area of coast is quite complex, with enclosed views through TheSolent and out from Weymouth Bay. The urban settlements ofWeymouth, Bournemouth, and Portland Island and Harbour may be lesssensitive to wind farms due to the level of development in these areas.

With significant visual effects from the proposal for key stretches of the coast, the“negligible in views from land to sea” envisaged in the OESEAs is not beingachieved.

With respect to IUCN guidance principles:

Principle 1: All proposals that may adversely affect a natural WorldHeritage site must undergo a rigorous Environmental Assessment earlyon in the decision-making process, whether they are located within oroutside its boundaries.

Principle 4: Reasonable alternatives to the proposal must beidentified and assessed with the aim of recommending the mostsustainable option to decision-makers.

Principle 5: Mitigation measures should be identified in line with themitigation hierarchy, which requires first avoiding potential negativeimpacts and secondly reducing unavoidable residual impacts throughmitigation measures.

The intention to select Zone 7 of Round 3 for offshore wind farm development in2008 should have been communicated to the WHC under the OperationalGuidelines for the Implementation of the World Heritage Convention. WorldHeritage considerations should have been explicitly included in a strategicenvironmental assessment of Round 3. This should have considered alternativesites, and been fully consulted according to IUCN guidance. Instead, the zoneselection process contained no assessment of the WHS (see CN-WR-2), leavingthe entire justification to the project level. At the project level, however, theconsideration of alternatives and the “no project” option required by the IUCNguidance are clearly much more heavily constrained. This is precisely the situationthat the Operational Guidelines and IUCN guidance aim to avoid.

Even at the ZAP stage, the presence of the WHS appears to have beendiscounted, as the area selected by the applicant included areas of the zone thatwere as close as possible to the WHS. At the application stage, the WHS is still theclosest landfall to the turbine area, and the visual effect is greatest at Durlston -“Gateway to the Jurassic Coast”. There is no proposal to mitigate these significantvisual effects further, having failed to avoid them in the first place.


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Principle 7: The assessment must be publically disclosed andsubject to thorough public consultation at different stages.

The assessment by the applicant on the WHS itself was not publically consulted atany stage. The WHS chapter in the ES (Vol. D Chap. 5) was omitted from the PEI3and so the public was not able to comment on it during the statutory consultationperiod.

Q. 1.7 How does the proposed development conform to the objectives of theemerging South Marine Plan?

Q. 1.8 A number of interested parties have referred to the Offshore EnergySEA – Post public consultation report (DECC - 2009) and the subsequentpublication of OESEA2 (DECC - 2011) in which Recommendation 4 states“Reflecting the relative sensitivity of multiple receptors in coastal waters, thisreport recommends that the bulk of this new generation capacity should besited well away from the coast, generally outside 12 nautical miles (some22km).” How has this recommendation been accommodated in the proposeddevelopment and how does the proposal conform with this recommendation?

The OESEA was a legally-required and publically consulted process. As such, thepublic has a right to expect its findings to be carried forward into decision-making.That specific provisions have not been explicitly incorporated into NPSs does notchange the material significance of the SEA. On the contrary, the lack of anyoverriding policy in the NPSs shows that the SEAs are accepted.

Nothing in this ministerial statement of 19 Nov 2013 (Michael Fallon, HansardColumn 319WH) is inconsistent with the OESEA recommendations

I was asked about how far offshore wind farms have to be from thecoast. I confirm that we have not issued guidance on any minimumdistance. The offshore strategic environmental assessment clarified thatthe environmental sensitivity of coastal areas is not uniform, and incertain cases, offshore wind projects may be acceptable closer to thecoast than in others.

The recommendation of the OESEA (post-consultation report 2009)contemporaneous with the Round 3 process was

Reflecting the relative sensitivity of multiple receptors in coastalwaters, it is recommended that the bulk of this new generation capacityshould be sited away from the coast, generally outside 12 nautical miles(some 22km). This recommendation is not intended to exclude OWFfrom this area, since there may be scope for further offshore winddevelopment within this area. It is proposed as mitigation for thepotential environmental effects of development of the scale andtechnological uncertainty which may result from this draftplan/programme. The environmental sensitivity of coastal areas is notuniform, and in certain cases new offshore wind farm projects may beacceptable closer to the coast. Conversely, siting beyond 12nm may be


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justified for some areas/developments. Detailed site-specific informationgathering and stakeholder consultation is required before theacceptability of specific major Round 3 or subsequent wind farmprojects close to the coast can be assessed.

We believe the proposal is not acceptable in its location well inside 12nm, affectingan exceptionally long stretch of coastline because of the “bay”, in an area of veryhigh sensitivity.

Q. 1.12 Is it possible that during the examination the applicant will offer toreduce the number of turbines below the current range of 121 - 194 and/orremove those closest to terrestrial viewpoints?

We note that the first change in the project was necessary because of a conflict inthe original plan with the navigational approach to the Hurst Leading Lights and thewestern Solent Channel.

We agree that the second change was an attempt by the applicant to reduce visualeffects. However, since the original plan was entirely at the applicant’s discretion,what matters is the proposal that remains, not how it has been modified.

There is a financial incentive for the applicant to use the fewest, largest windturbines, so it is not surprising that the Rochdale envelope has been narrowed atthe bottom end of the turbine size range now that larger turbines are enteringservice.

The proposal, at 970MW, is still bigger than the 900MW “bugetted” capacity forzone 7 in the Round 3 scheme.

We still believe that the proposal is unacceptable in its current location.

Q. 1.14 Does a minimum voltage need to be specified in the DCO for the inter- substation and export cables?

We believe the applicant’s response is incorrect. For EMFs and probably also heatemissions, the minimum cable voltage is the worst case scenario. Therefore, thereshould be a specification on cable voltage (although a maximum cable currentwould be a better technical requirement for EMF).

We are concerned that too much detail of the cabling is being left to post-consentagreement with the MMO. We would expect that the key requirements which arenecessary to deliver the assumptions made in the EIA would be specified in theDCO, otherwise there is no clear framework within which the cabling design has tosit. Design requirements should follow from all the assumptions made in the EIAabout the various RWCSs.

Qs. 5.2.2 & 5.2.3 also relate.

Q. 1.16 The maximum hammer blow energies used in the noise modellinghave not been included in the DCO/DMLs. Can the DCO/DMLs be amended toensure noise impacts do not exceed what has been assessed?

We would like to know the technical details of how the noise is intended to bemonitored. We are also concerned that the only sanction mentioned in the DCO


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(e.g. in the case of unexpectedly high noise levels that might invalidate EIAassumptions) is additional monitoring. Q. 5.1.11 also relates.

Q. 2.1.5 There is no commitment to burial of all subsea electricity cables, oruse of cable protection within the DCO. Does draft condition 11(g) of the DMLneed to be further refined to commit to burial or protection of the cable alongits length?

Please see comments on cabling requirements in Q. 1.14 above.

Q. 2.1.17 How should the key assumptions about cable specification used inthe impact assessments be secured in the description of the AuthorisedDevelopment and elsewhere in the DCO?

Please see comments on cabling requirements in Q. 1.14 above and CN-WR-13 onEMFs and heat emission.

Q. 2.1.24 The Applicant proposes the provision of flashing warning lightingfor aircraft to reduce the potential for lighting to attract birds towards thewind turbines during the hours of darkness or during bad weather. (a) Canthe applicant explain how the flashing lights will be secured in the projectdesign? (b) The ES has not explicitly considered the potential impacts oflighting on bird species. Can the applicant address this omission? (c) Canthe applicant provide survey details of the risks to migrating birds at night?

We note that the lights are designed to flash Morse W to distinguish them from shipnavigation lights, not to deter birds. What evidence is there that a flashing redaviation light will deter birds from the general area of the turbine (i.e. within oneblade length)? Only a proportion of the turbines is likely to have aircraft navigationlights in any case.

Q. 2.1.35 Can the applicant and NE provide an update on progress made withregards to migratory nightjars and explain whether any further mitigation isrequired? If so, how will this be secured in the DCO?

We don’t understand how an avoidance rate of 95% has been chosen for a birdmigrating at night. Nightjars may have good night-vision, but those blades movevery quickly. Is there any evidence is there to support this? Would it make anydifference to the overall significance of effect if the avoidance rate were 0%?

Q. 5.1.18 Interested parties, including Simon Wright and Rebecca Mack, haveraised concerns about impacts on divers. Can the applicant respond?

It is surprising that underwater noise contours for human receptors of piling noisehave not been presented to support the proposed size of avoidance zones. Q. 7.10also relates.

Q. 5.1.23 G Peacock has suggested that the sub-station site selected is theone least popular with the local population near it and appears to be the mostvisually and auditorily most intrusive of all the possible sites offered and thatthe one most preferred by locals was considered too difficult by theapplicant. Can the applicant respond?

Having offered both locations, the public had a clear preference for the one notselected by the applicant. Could the applicant explain what factors made it


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necessary to overrule the consultation feedback from the public (in more detail than“visual impact and technical viability”) despite having offered both options?

Q. 8.1.9 (b) English Heritage has raised the possibility of views of theturbines in the background to St Aldhelm’s Chapel when viewed from thenorth west. Can the applicant provide a visualisation showing this view toenable an assessment to be made on the asset’s importance/value

The photomontage CN-WR-1-3-St-Aldhelms-Chapel-(SA4,5MW)-54deg-planar.pdfshows this view.

Q. 9.1.2 Has the applicant addressed the concerns about visualisationsexpressed by various consultees at the consultation stages?

We disagree with the statement in 9.1.2.1 in that clear explanation andmethodological justification to support our concerns were readily available to theapplicant (e.g. [4]) as described in CN010314-1_AoC_visual_v2.0_s.pdf submittedas part of the Adequacy of Consultation stage which also details cases where theapplicant failed to follow SNH2006[1] and/or LI 01/11[3] during the consultation.

References

[1] Visual Representation of Wind farms Good Practice Guidance. Scottish NaturalHeritage 2006 (published 2007).

[2] Visual Representation of Wind farms Version 2. Scottish Natural Heritage July2014.

[3] Photography and Photo-montage in Landscape and Visual Impact Assessment.Landscape Institute Advice Note 01/11.

[4] Visualisation Standards for Wind Energy Developments. The Highland CouncilMay 2013.


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