Acronyms

Acronym

Definition

AA

Appropriate Assessment

AEOI

Adverse Effect on Integrity (of a European site)

AR3

(CfD) Allocation Round 3

AR4

(CfD) Allocation Round 4

BEIS

Department for Business, Energy and Industrial Strategy

BESS

British Energy Security Strategy

CCC

Committee on Climate Change

CES

Crown Estate Scotland

CfD

Contract for Difference

COP

The UN's Conference of the Parties

Defra

Department for the Environment, Food & Rural Affairs

EC

European Commission

ECJ

European Court of Justice

EIA

Environmental Impact Assessment

EU

European Union

GB / UK

Northern Ireland operates under a different electricity market framework to the rest of Great Britain (GB). Great Britain (GB) is referenced in relation to electricity generation and transmission, and Scotland, or the UK, are referenced as the nation(s) which have legally committed to Net Zero carbon emissions.

GHG

Greenhouse Gas

GIS

Geographical Information Systems

GVA

Gross Value Added

HND

Holistic Network Design

HRA

Habitats Regulations Appraisal (or Assessment)

INTOG

Innovation and Targeted Oil and Gas Decarbonisation (CES leasing round)

IPCC

Intergovernmental Panel on Climate Change

LAT

Lowest Astronomical Tide

LCoE

Levelised cost of energy

LSE

Likely Significant Effect

MHWS

Mean High Water Springs

MN 2000

Managing Natura 2000 Sites

MPA

Marine Protected Area

MS-LOT

Marine Scotland Licensing Operations Team

NETS

National Electricity Transmission System

NPF

National Planning Framework (Scotland)

NPS

National Policy Statements for Energy Infrastructure

OWF

Offshore Wind Farm

PIA

Project Identification and Approval process

PDE

Project Design Envelope

REZ

The UK Renewable Energy Zone. An area of sea outside the UK territorial sea over which the UK claims exclusive rights for production of energy from water and wind under section 84 of the Energy Act 2004.

RIAA

Report to Inform Appropriate Assessment

SAC

Special Area of Conservation (a type of European site)

SMP

Sectoral Marine Plan for Offshore Wind Energy

SNCB

Statutory Nature Conservation Bodies

SofS

Secretary of State (for BEIS)

SPA

Special Protection Area, for birds (a type of European site)

STW

Scottish Territorial Waters

TCE

The Crown Estate

TEC

Transmission Entry Capacity

UXO

Unexploded Ordinance

ZAP

Zone Appraisal and Planning

Executive Summary

  1. The derogation case provides the reasons and evidence to enable Scottish Ministers to consent the offshore components of the Berwick Bank Wind Farm (the Proposed Development) under the Habitats Regulations Assessment (HRA) Derogation Provisions.
  2. The first section gives an overview of the Proposed Development and provides information on the relevant Scottish and UK legislation. A summary of the consultation is provided followed by a summary of the Report to Inform Appropriate Assessment (RIAA) and demonstrates how the Applicant has engaged with statutory and non-statutory consultees to develop a robust set of compensation measures. The Applicant’s position on Adverse Effect on Integrity (AEOI) is explained in relation to the different layers of precaution applied within the RIAA, and the need for a derogation case is set out.
  3. Two approaches have been taken in the RIAA to assess the potential for AEOI on the relevant Special Protection Areas (SPAs). The Scoping Approach has used the parameters advised in the scoping opinion. The Applicant has also presented an alternative assessment that uses parameters more in line with standard practice/ guidance – the Developer Approach
  4. Using the Scoping Approach, the RIAA concludes that an AEOI cannot be excluded at eight SPAs – Buchan Ness to Collieston Coast, East Caithness Cliffs, Farne Islands, Flamborough and Filey Coast, Forth Islands, Fowlsheugh and St Abbs to Fast Castle. Four species are affected – Kittiwake, Guillemot, Puffin and Razorbill.
  5. Using the Developer Approach, the RIAA concludes that an AEOI cannot be excluded at five SPAs. East Caithness Cliffs, Flamborough and Filey Coast, Forth Islands, Fowlsheugh and St Abbs to Fast Castle. Only Kittiwake is affected using this approach.
  6. Section Two gives more detail on the guidance and planning precedent that has informed the development of the derogation case and demonstrates that Applicant has considered in detail all the relevant information. Section Three provides a summary of the need for the Project and the key role that the Project must play in delivering Scottish and UK targets. This section is supported by an additional Statement of Need, which is provided with the application and demonstrates that the project is an essential part of the future generation mix.
  7. Without the Project, it is probable that delivery of a multitude of policies will fall short, including: the Scotland Sectoral Marine Plan, Scottish Energy Strategy, the Ten Point Plan, UK Net Zero Strategy and UK Offshore Wind Sector Deal, as well as the targets set by the Climate Change (Scotland) Act 2009, Climate Change (Emissions Reduction Targets) (Scotland) Act 2019, the (UK) Climate Change Act 2008 (as amended) and the Net Zero Strategy: Build back Greener.
  8. The next three sections deal with the legal tests that must be considered under the Habitat Derogation provisions. Firstly, alternative solutions to the Proposed Development are considered by identifying the core objectives of the project, then considering the “Do Nothing” scenario before assessing any feasible alternatives. A robust case is presented that sets out a comprehensive assessment of possible alternative locations and a range of potential alternative designs to meet the project objectives. In all cases no feasible alternative solutions were identified that could meet the project objectives.
  9. Secondly, the compelling case for authorising the Proposed Development for IROPI is made. The project must be carried out for imperative reasons given the urgent need to address climate change and meet legally binding targets. The long-term public interest of decarbonisation and security of supply of affordable energy supplies are in the overriding long-term public interest and demonstrably outweigh any AEOI which is predicted in respect of the identified SPAs.
  10. Finally, the process whereby the applicant has identified and assessed the feasibility of the necessary compensation measures is set out. The applicant has carried out extensive consultation and research to develop these measures and supporting information is provided in the three reports submitted with the application.
  • Colony based compensatory measures evidence report – provides detailed information on the development of the colony measures and the quantification of predicted benefits
  • Fisheries based compensatory measures evidence report - provides detailed information on the development of the colony measures and the quantification of predicted benefits
  • Implementation and monitoring plan – provides an outline of the tasks and timelines to deliver the measures.
    1. The final part of this section demonstrates the sufficiency of the benefits that will be delivered by the proposed compensation measures and that the overall coherence of the national site network will be protected if they are implemented. These measures, assuming the worst case assessed in the RIAA and the most precautionary benefit from compensation measures, will provide very high compensation ratios of at least 8X the impacts. This provides considerable confidence to Scottish Ministers that the measures will be effective.


Part A: Background Information

1. Introduction

1.1. The Proposed Development Overview

  1. Berwick Bank Wind Farm Limited (the Applicant) is proposing to develop the Berwick Bank Wind Farm (The Project), in the outer Firth of Forth and Firth of Tay within the former Round 3 Firth of Forth Zone.
  2. The Project will include offshore and onshore infrastructure including an offshore generating station (array), offshore export cables to landfall and onshore transmission cables leading to an onshore substation with electrical balancing infrastructure, and connection to the electricity transmission network. The offshore components of the Project seaward of MHWS are referred to as the Proposed Development.
  3. The array comprises 307 wind turbines, with an estimated capacity of 4.1 gigawatt (GW). The array will be approximately 47.6 km offshore of the East Lothian coastline and 37.8 km from the Scottish Borders coastline at St, Abbs. It lies to the south of the offshore wind farms (OWF) known as Seagreen and Seagreen 1A, south-east of Inch Cape OWF and east of Neart Na Goaithe OWF.
  4. The Proposed Development has secured Grid Connection Offers from National Grid Electricity System Operator (NGESO) for 4.1GW of Transmission Entry Capacity (TEC).
  5. A grid connection will run from the southern/south-western boundary of the array and make landfall at Skateraw on the East Lothian coast. The Applicant is also developing an additional export cable and grid connection to Blyth, Northumberland (the “Cambois connection”). Applications for the necessary consents (including marine licences) for the Cambois connection will be applied for separately once further development work has been undertaken on this offshore export corridor.
  6. Chapter 3 (Project Description) of the Offshore EIA Report provides a detailed description of the Proposed Development and should be referred to for further detail.
  7. The construction and operation of an OWF in Scottish waters (i.e., Scottish territorial waters (STW) and the Scottish offshore region) requires consent under Section 36 of the Electricity Act 1989 and Marine Licences under the Marine (Scotland) Act 2010 (within STW) and under the Marine and Coastal Access Act 2009 (within the Scottish offshore region, between 12 – 200 nautical miles (nm)).
  8. The Scottish Ministers are responsible for determining applications for Section 36 Consent and for Marine Licences. Where both are required, Marine Scotland’s Licensing Operations Team (MS-LOT) can process both applications jointly on behalf of the Scottish Ministers.
  9. This Report supports applications by the Applicant for Section 36 Consent and Marine Licences for the Proposed Development. As part of the Scottish Ministers determination of these applications, a Habitats Regulations Appraisal (HRA) is required under the applicable Habitats Regulations, as summarised in the following sections.

1.2. Origins of HRA: EU Habitats & Birds Directives

  1. The European Union (EU) Habitats Directive[1] and Wild Birds Directive[2] seek to conserve particular natural habitats and wild species across the territory of the EU by, amongst other measures, establishing a core network of sites for the protection of certain habitat types, species and wild birds (“European sites”).
  2. The overall aim is to ensure the long-term survival of viable populations of Europe's most valuable and threatened species and habitats, throughout their natural range, to maintain and promote biodiversity. European sites make up an EU-wide network known as “Natura 2000”.
  3. The UK has withdrawn from the EU. However, legislation transposing the Habitats and Birds Directives remains in place (subject to technical amendments), and case law and guidance referenced in this Report largely reflect or continue to refer to the Habitats and Birds Directives. Therefore, before turning to the UK legislation, it is useful to set out their terms for context.
  4. The protection and management of European sites is governed by Article 6 of the Habitats Directive. Amongst other things, Articles 6(3) and 6(4) lay down an assessment and permitting process concerning the authorisation of any plan or project likely to have a significant effect on any European site.
  5. Articles 6(3) and 6(4) prescribe a staged process: firstly, any such plan or project must be subject to an assessment to determine whether it would adversely affect the integrity of any European site and if so that plan or project may not proceed (Article 6(3)); secondly, a derogation process such that a plan or project found to adversely affect site integrity may still proceed, despite a negative assessment, if certain requirements are met (Article 6(4)). The full legal text is set out in Table 1   Open ▸ below.
Table 1 :
Legal text of Articles 6(3) and 6(4)

Table 1 Legal text of Articles 6(3) and 6(4)

1.3. Scotland and UK Habitats Legislation

  1. Articles 6(3) and 6(4) of the Habitats Directive were transposed into UK law by, amongst others, the regulations identified in Table 2   Open ▸ below, each commonly referred to as the Habitats Regulations.
  2. Where in this Report the need arises to refer to a specific legislative provision, for simplicity reference is made only to The Conservation of Offshore Marine Habitats and Species Regulations 2017. However, the relevant provisions in the different sets of Habitat Regulations are materially the same and there is no legal or practical need to differentiate between them in this Report and the term Habitats Regulations is used as a collective reference encompassing all three sets of Regulations.
Table 2 :
Habitats Regulations relevant to the Proposed Development

Table 2 Habitats Regulations relevant to the Proposed Development

 

  1. The procedure established by Articles 6(3) and 6(4) of the Habitats Directive relating to the authorisation of plans or projects, is known in Scotland as Habitats Regulations Appraisal (HRA) and is commonly regarded as a four stage process, which is summarised in Sections 1.4 and 1.5 below.
  2. In Scotland and the wider UK, the HRA process is applied, either as a matter of law or policy, to Special Areas of Conservation (SAC), Sites of Community Importance, candidate SACs and Special Protection Areas (SPAs), potential SPAs and possible SACs.
  3. The substantive HRA process and requirements are largely unchanged notwithstanding the UK’s withdrawal from the EU, albeit the Habitats Regulations have been subject to some technical changes. In particular, the Habitats Regulations continue to use the term “European sites”, but they now comprise a UK network which is called the “national site network” (previously they were part of Natura 2000). Therefore, references in the Habitats Regulations to the “coherence of Natura 2000" must now be read as references to the coherence of the UK’s "national site network".

1.4. Overview of HRA Stages 1 – 2: Screening and AA

  1. The Habitats Regulations require that a project[3]
  • not directly connected with or necessary to the management of a European site, and
  • “likely to have a significant effect” (LSE) on a European site (whether alone or in combination with another plan or project)
  • must be subject to an “appropriate assessment” (AA) of the implications for that European site in view of the site's conservation objectives[4].
    1. The legal obligation to undertake an AA ultimately rests with the relevant “competent authority” under the Habitats Regulations. For the Section 36 Consent and Marine Licence applications, that is the Scottish Ministers[5]. However, the Applicant has an obligation to provide such information as the Scottish Ministers may reasonably require for the purposes of carrying out an AA[6].
    2. The identification of LSE is commonly referred to as HRA stage 1 and typically an applicant will conduct a screening exercise and provide an HRA Screening Report to inform this stage. The carrying out of an AA is commonly referred to as HRA stage 2 and typically an applicant will provide the Competent Authority with the necessary evidence and assessment in a Report to Inform an Appropriate Assessment (RIAA).
    3. Subject to a derogation process (HRA stages 3 and 4) as outlined in Section 1.5 below, a project can only be authorised if at the end of HRA stage 2, the competent authority is able to conclude, beyond reasonable scientific doubt in light of the findings of the AA, that the Proposed Development will not adversely affect the integrity of any European site(s).
    4. Further information on HRA stages 1 and 2 is contained in the Applicant’s RIAA and is not repeated here.

1.5. Overview of HRA Stages 3 & 4: Derogation Provisions

  1. The Habitats Regulations provide an exception to the general prohibition set out above, known as a “derogation”. A project can be allowed to proceed notwithstanding a conclusion that there will be an adverse effect on site integrity (AEOI) in respect of any European site(s) if the competent authority is satisfied that the following tests are met[7]:
  • There are no alternative solutions to the project (Stage 3A); and
  • There are “imperative reasons of overriding public interest” (IROPI) for the project to proceed (Stage 3B).
    1. If the Stage 3 requirements are met, the Scottish Ministers are then subject to a legal obligation to “secure that any necessary compensatory measures are taken to ensure that the overall coherence of the [national site network] is protected”[8] (HRA Stage 4).
    2. For ease of reference, the applicable legal text (hereinafter the HRA Derogation Provisions) which provide the framework for HRA Stages 3 and 4 is set out in Table 3   Open ▸ below. The process for HRA Stages 3 and 4 is addressed in extensive detail in Parts B, C and D of this Report.
Table 3 :
Relevant Scottish / UK Derogation Provisions[9]

 Table 3 Relevant Scottish / UK Derogation Provisions[9]

1.6. HRA Process to Date & Applicant’s Position on AEOI

  1. While ultimately it is the duty of the Scottish Ministers to apply the HRA process and to carry out an AA, the Applicant acknowledges it has an obligation to present such information as the Scottish Ministers may reasonably require for that purpose.
  2. To that end, the Applicant has compiled the necessary evidence and information to support an AA decision by the Scottish Ministers and this information is contained in the RIAA. The RIAA enables an AA of each relevant European site screened in for assessment.
  3. The Applicant’s RIAA has for the most part adopted the advice on ornithological assessment parameters advised in the Scoping Opinion. Nevertheless, the Applicant considers elements of the Scoping Opinion to be over-precautionary and a departure from standard advice/practice. As such, in the RIAA the Applicant has presented a dual assessment of potential displacement/barrier effects and collision effect pathways during operation based on:
  • The ‘Scoping Approach’ and
  • The ‘Developer Approach’.
    1. The Scoping Opinion contained advice on the displacement rates and displacement mortality rates. These rates have been used for the purposes of assessment under the Scoping Approach.
    2. Under the Developer Approach, these displacement rates differed in some cases, based upon available evidence for displacement, the extent of a features ranging behaviour (particularly in the non-breeding periods), previous precedent and a need to incorporate precaution within the assessment.
    3. Assumptions on the collision impacts for Kittiwake also differed between the Developer and Scoping approach.
    4. Table 4   Open ▸ sets out the annual adult bird mortalities[10] from the Proposed Development alone, apportioned to each SPA where the Scoping Approach has found an AEOI. For the majority of features a conclusion of AEOI is due to the in-combination effect of other plans and projects.  Only for two features at three SPAs was an AEOI identified from the Proposed Development alone (guillemot at Forth Islands, Fowlsheugh and St Abb's Head to Fast Castle, and kittiwake at St Abb's Head to Fast Castle).
    5. If Scottish Ministers choose to adopt this assessment approach, kittiwake, razorbill, guillemot and puffin would require compensatory measures to be secured at the SPAs listed in Table 4   Open ▸ .
Table 4 :
SPAs and qualifying features for which AEOI has been concluded based on the scoping approach to calculate adult mortality. The mortalities for kittiwake represent a combined impact value for collision and displacement. The mortalities for all other species are a result of displacement only

Table 4 SPAs and qualifying features for which AEOI has been concluded based on the scoping approach to calculate adult mortality. The mortalities for kittiwake represent a combined impact value for collision and displacement. The mortalities for all other species are a result of displacement only

 

  1. Table 5   Open ▸ sets out the annual adult bird mortalities from the Proposed Development alone, apportioned to each SPA where the Developer Approach has found an AEOI. In all but one SPA (kittiwake at St Abbs Head to Fast Castle) an AEOI was due to the in-combination effect of other plans and projects.
  2. If Scottish Ministers choose to adopt this assessment approach, only kittiwake would require compensatory measures to be secured at the SPAs listed in Table 5   Open ▸ .

 

Table 5 :
SPAs and qualifying features for which AEOI has been concluded based on the developer approach to calculate adult mortality. The mortalities for kittiwake represent a combined impact value for collision and displacement. The mortalities for all other species are a result of displacement only.

Table 5 SPAs and qualifying features for which AEOI has been concluded based on the developer approach to calculate adult mortality. The mortalities for kittiwake represent a combined impact value for collision and displacement. The mortalities for all other species are a result of displacement only.  

 

  1. The Applicant is confident that the Developer Approach is the most appropriate methodology for the RIAA as the scoping approach is over-precautionary. Nevertheless, the Applicant has provided the necessary information and justification (the Derogation Case) to satisfy the HRA Derogation Provisions in respect of all features identified under the scoping approach. This demonstrates that sufficient compensation can be secured for any scenario for which the RIAA has found an AEOI.  
  2. It should be noted that, in addition to several Scottish SPAs, both approaches have identified an AEOI at English SPAs. In circumstances where AEOI are identified for a European site outside Scotland or the Scottish offshore region, the Scottish Ministers must notify the Secretary of State (SofS) and can only agree to the Proposed Development after having been notified of the SofS’s agreement.
  3. As such, this Report provides a comprehensive Derogation Case that can be relied upon by the Scottish Ministers and SofS to the extent required.

1.7. Summary of Consultation to Date

  1. The Applicant recognises the importance of engaging with relevant stakeholders with respect to its Derogation Case, in particular with statutory nature conservation bodies (SNCBs) with regards to the development of potential compensation measures.
  2. The Applicant has sought the advice of the SNCBs and other key stakeholders and kept them updated on project developments. The Applicant has engaged openly and transparently including by issuing an initial questionnaire and / or undertaking interviews, followed by a series of online meetings from October 2021 to November 2022, including with NatureScot, MS-LOT, RSPB, Scottish Seabird Centre, Centre for Ecology and Hydrology, National Trust for Scotland, National Trust, Scottish Wildlife Trust, a local ornithological consultant, local bird ringer/ornithological experts, Defra, SFF, FRS, Seabird centre Board and Natural England. A full report of consultation carried out specifically with regard to derogation and compensation matters is provided in Appendix 1 of this document. A summary of the wider consultation process carried out for the Project is set out in Volume 1 Chapter 5 Stakeholder Engagement and Consultation of the EIA.

1.8. Supporting Information

  1. This Report refers to other documents which have been submitted as part of the Application. For brevity, this information is not reproduced in full here. A list of the key documents supporting the Applicant’s Derogation Case is provided in below. Full details for material referenced within this Report are provided in the References section at the end of this Report.
  • Report to Inform Appropriate Assessment
  • Statement of Need
  • Offshore Planning Statement
  • Enhancement, Mitigation and Monitoring Commitments (Volume 3, Appendix 6.3)
  • Offshore EIA: Project Description (Volume 1 Chapter 3)
  • Offshore EIA: Site Selection and Consideration of Alternatives (Volume 1 Chapter 4)
  • Onshore EIA: Socioeconomics (Volume 1 Chapter 13)
  • Offshore EIA: Socioeconomics (Volume 1 Chapter 18)
  • Socio-Economics and Tourism Technical Report (Volume 3 Appendix 18.1)
  • Implementation and Monitoring Plan