EN-3 is the National Policy Statement which is specific to Nationally Significant Infrastructure Projects (NSIPs) for renewable energy generation (both onshore and offshore). EN-3 applies to the following electricity generating NSIPs:
- energy from biomass and/or waste including mixed waste containing non-renewable fractions (>50 MW in England and >350MW in Wales);
- pumped hydro storage (>50 MW in England and >350MW in Wales);
- solar photovoltaic (PV) (>50 MW in England and >350MW in Wales);
- offshore wind (>100MW in England and >350MW in Wales); and
- tidal stream (>100MW in England and >350MW in Wales).
EN-3 does not apply to onshore wind. Although the Secretary of State will not examine applications for nationally significant electricity generating stations in Scotland, EN-3 may still be a relevant consideration for planning decisions in Scotland.
As was briefly highlighted in our EN-1 Law Now (available here), there is a new proposed designation of offshore wind projects to be of ‘critical national priority’ (CNP). EN-3 goes into more detail on this and this CNP designation effectively operates as a presumption in favour of offshore wind and follows previous recommendations from the Government.
Draft EN-3 provides that for residual non-HRA impacts, of any sort other than those that present an unacceptable risk to, or unacceptable interference with, human health, national defence, or navigation, these are unlikely, in all but the most exceptional cases, to outweigh the urgent need for this type of infrastructure and are therefore unlikely to result in an application being refused. Draft EN-3 goes on to provide that the Secretary of State will take as the starting point for decision-making that such infrastructure is to be treated as if it has met any test requiring a clear outweighing of harm, exceptionality, or very special circumstances within EN-1, EN-3 or any other planning policy.
Therefore, the primary consenting issue for offshore wind remains impacts on Special Protection Areas and Special Areas of Conservation (as are assessed in an HRA). The historic approach of developers and decision makers to seek to avoid an HRA derogation case is being superseded in practice by the Government approving a number of HRA derogation cases, and a number of projects now submitting applications accompanied by a without prejudice HRA derogation case. A ‘derogation case’ is where adverse effects cannot be excluded, and so the project must demonstrate no alternative solutions, imperative reasons of overriding public interest, and compensation must be secured. The updates to draft EN-3 provide further support to HRA derogation cases, with the starting position being that energy security and decarbonising the power sector to combat climate change:
- require a significant number of deliverable locations for CNP Infrastructure and for each location to maximise its capacity. EN-3 recognises that there are no limits to how many such locations may be required and that the existence of another deliverable location to meet the need for CNP Infrastructure should not be treated as an alternative solution. This is important, and it should prevent “friendly fire” between competitors in the offshore wind industry; and
- are capable of amounting to imperative reasons of overriding public interest (IROPI) for CNP Infrastructure. This is welcome, in establishing a start point for the Secretary of State’s decision.
Draft EN-3 recognises that compensatory measures are likely to be required and reiterates the Government’s intention to introduce measures for strategic compensation via the Energy Bill. Alongside the coordination of transmission infrastructure, this is a welcome measure for addressing one of the key challenges to the continued success of the offshore wind industry.
Another point to note from draft EN-3 is that for offshore wind, including those projects from the Crown Estate’s Leasing Round 4 onwards, many connection agreements will be limited to coordinated connection points. These points will be proposed through a variety of strategic network design exercised, including National Grid’s ‘Holistic Network Design’ (HND). Coordinated offshore transmission is a relatively new concept for offshore wind so it is important to note the inclusion of this within draft EN-3. We will comment on this further in a LawNow on EN-5, which sets the framework for coordination in the context of the HND in greater detail.