From: Marine Scotland Licensing Operations Team Marine Scotland 25 March 2019 Cabinet Secretary for Transport, Infrastructure and Connectivity APPLICATIONS FOR CONSENT UNDER SECTION 36 AND FOR A DECLARATION UNDER SECTION 36A OF THE ELECTRICITY ACT 1989 (AS AMENDED) FOR THE CONSTRUCTION AND OPERATION OF AN OFFSHORE GENERATING STATION, INCH CAPE OFFSHORE WIND FARM, APPROXIMATELY 15 – 22 KM EAST OFF THE ANGUS COASTLINE 1. Purpose 1.1 To seek your determination on an application submitted by Inch Cape Offshore Limited (Company Number SC373173) (“ICOL” or “the Company”) for consent under section 36 (“s.36”) of the Electricity Act 1989 (as amended) (“the Electricity Act 1989”) to construct and operate an offshore generating station, comprising up to 72 wind turbine generators (“WTGs”), with a combined maximum generating capacity of around 700MW (“the Application”) and for a declaration under section 36A (“s.36A”) of the Electricity Act 1989 to extinguish public rights of navigation so far as they pass through those places within the territorial sea where structures forming part of the offshore wind farm are to be located. 1.2 The Application has been submitted for your determination, based on advice from the Cabinet, Parliament and Governance Division. Due to impacts on the St. Abb’s Head to Fast Castle Special Protection Area (“SPA”), which is within Mr Wheelhouse’s constituency, Scottish Natural Heritage have objected to the Application. As such, there could be a perceived conflict of interest should Mr Wheelhouse determine the Application. 2. Priority 2.1 Routine. 3. Background 3.1 The Company currently holds a s.36 consent (“the Original Consent”) and marine licences (which the Scottish Ministers granted in October 2014) for an offshore wind farm development within the same boundary as the current Application. 3.2 The Company has made the current Application in order to take advantage of new developments in relation to offshore wind technology, meaning turbine numbers can be reduced, leading to a reduction in the associated environmental impacts (when compared to the Original Consent). 1 4. Description of the Application and Site 4.1 On 15 August 2018, the Company submitted the Application to construct and operate the Inch Cape Offshore Wind Farm (“the Development”), approximately 15-22km east off the Angus coastline. The Application was supported by an Environmental Impact Assessment report (“EIA Report) and Habitat Regulations Appraisal report (“HRA Report”). 4.2 The Application is for the construction and operation of an offshore energy generating station, with a maximum generating capacity of around 700MW and comprising up to 72 WTGs and associated offshore transmission infrastructure. A full description of the Development is set out in Annex C. 4.3 The location and boundary of the Development site is shown in Annex C, Figure 1. This location was selected based upon: wind resource and energy yield, environmental receptors (incorporating ornithology and marine mammals and landscape/seascape and visual impact), grid connectivity, suitable port availability, geotechnical conditions and foundation design options. 4.4 It is proposed than an offshore electricity export cable corridor approximately 1,400 metres at its widest point, reducing to about 250 metres in shallower areas, will contain up to two cables that will transmit the electricity generated by the turbines to the onshore transformer location, to be located at the site of the Cockenzie Power Station, East Lothian. The proposed cables will each measure not more than 83.3km in length. The cable burial method and/or scour protection requirements will be finalised when the layout is confirmed. 5. Key considerations 5.1 In light of the legislative and regulatory background, the results of the consultation exercise and the supporting information submitted as part of the Application, including the EIA Report, the key considerations in relation to the determination of this Application are set out at Annex C, section 9. 5.2 The Appropriate Assessment (“AA”), as set out in Annex B, concluded that the Development would not adversely affect the integrity of any European offshore marine site or European protected site, either alone or in- combination with other plans or projects. 5.3 This Application should be considered in the context of the existing s.36 consents and new applications for s.36 consent in relation to offshore wind farms within the Firth of Forth and Firth of Tay region. These comprise: the Original Consent; the previous consent for Neart na Gaoithe offshore wind farm (granted October 2014) and the existing consent for the Neart na Gaoithe offshore wind farm (Revised Design) (granted December 2018); the existing consents for the Seagreen Alpha and Seagreen Bravo offshore wind farms (granted October 2014) and the applications for new consents in respect of the Seagreen Alpha and Seagreen Bravo offshore wind farms (submitted September 2018). Combinations of these consents are referred to as the “Forth and Tay Developments” within this submission. For the 2 ornithology in-combination assessment in the AA, the Worst Case Scenario (“WCS”) is considered to be the Development in-combination with the s.36 consents granted in 2014 for the NnGOWL Development and the Seagreen Developments. 5.4 Marine Scotland Licensing Operations Team (“MS-LOT”) considers that the key issues identified have been resolved, mitigated and/or successfully addressed through the use of conditions. All legislative requirements have been complied with throughout the determination process and policy documents identified are considered to be broadly supportive of the Development. 5.5 Further, MS-LOT concludes that the Company has had regard to the potential interference of recognised sea lanes essential to international and national navigation. Any obstruction or danger to navigation has been addressed through specific consent conditions at Annex C. The s.36A declaration to extinguish public rights of navigation is included at Annex D. 6. Key issues raised by consultees 6.1 A full summary of the consultation exercise is set out in Annex C, at sections 4, 5 and 6. The key issues raised by consultees were as follows: Potential impacts on seabirds, and in particular the qualifying interests of the Forth Islands SPA, Fowlsheugh SPA and St Abb’s Head to Fast Castle SPA, as a result of the Development in-combination with the other Forth and Tay Developments; Potential impacts on marine mammals; Potential impacts on diadromous fish; Potential impacts on commercial fisheries; Seascape, landscape and visual potential impacts arising as a result of the Development, particularly in-combination with the other Forth and Tay Developments; Potential impacts on cultural heritage receptors; and Potential impacts on air defence radar. 7. Maintained objections 7.1 Detail on the means by which the concerns and objections set out in this section have been considered and addressed are set out in Annex C. 7.2 Scottish Natural Heritage (“SNH”) maintains its objection relating to the impacts on the qualifying interests of the Forth Islands SPA, Fowlsheugh SPA and St. Abb’s Head to Fast Castle SPA arising from the Development in- combination with the Forth and Tay Developments. 3 7.3 The Royal Society for the Protection of Birds Scotland (“RSPB Scotland”) maintains its objection due to its concerns regarding the predicted impacts on the protected seabird populations arising from the Development in isolation and in-combination with other Forth and Tay Developments. 7.4 The Ministry of Defence (“MOD”) maintains its objection regarding unacceptable interference to Air Traffic Control (“ATC”) radar, used by Leuchars Airfield, and to Air Defence Radar at Remote Radar Head (“RRH”) Buchan and Brizlee Wood. The MOD is not currently in a position to agree to suspensive conditions at this time due to the impacts on Air Defence. 7.5 The River Tweed Commission (“RTC”) and Tay District Salmon Fisheries Board (“Tay DSFB”) maintain their objections due to its concerns over lack of information about migration routes for diadromous fish, lack of consideration of sea trout and concern as to whether the turbine bases could result in increased predation of diadromous fish by seals. 7.6 The Scottish Fishermen’s Federation (“SFF”) maintains its objection to the Development. SFF objects on the basis of impacts arising during the construction and operational phases of the Development on a range of fishing operations. SFF further objects to the socio-economic assessment presented in the EIA Report. Similar concerns regarding impacts on fishing operations were raised by Port Seton Fishermen (“PSF”), Firth of Forth Lobster Hatchery and the Dunbar Fishermen’s Association (“DFA”). 7.7 Aberdeenshire Council confirmed its objection that the Development would not comply with Policy E1 of the Aberdeenshire Local Development Plan 2017 on the basis that SNH advised that there would be an adverse effect on the site integrity of the Fowlsheugh SPA in respect of the black-legged kittiwake and razorbill qualifying interests. 8. Advice on whether to cause a Public Local Inquiry (“PLI”) to be held 8.1 If a s.36 application contains an onshore element of an offshore generating station, a maintained objection from a planning authority will automatically trigger a PLI, which will be confined to the onshore element of the application. Paragraph 7A(7) of Schedule 8 to the Electricity Act 1989 gives the Scottish Ministers powers of direction in relation to the scope of any PLI. 8.2 In this case there is no onshore element relating to the s.36 application, therefore there is no automatic requirement to cause a PLI to be held. 8.3 The circumstances of the case are such that there is no statutory requirement under Paragraph 2(2) of Schedule 8 to the Electricity Act 1989 for the Scottish Ministers to cause a PLI to be held. The decision to hold a PLI in this case is entirely at the discretion of the Scottish Ministers.