2. Requirement for a Derogation Case

  1. Ultimately it is the duty of the Scottish Ministers to apply the HRA process and to carry out an Appropriate Assessment (AA) for the Array. Should the AA undertaken by Scottish Ministers align with the Applicant’s RIAA, Scottish Ministers can only agree to the Array if the requirements of the derogation provisions in the  Conservation of Offshore Marine Habitats and Species Regulations 2017 (the Habitats Regulations) are met. These provisions are set out at  Regulations 29 and 36 of the Habitats Regulations.
  2. Regulation 29 of the Habitats Regulations states that the competent authority may agree to a project if:
  • firstly, it is satisfied that there are no alternative solutions;
  • secondly, the project must be carried out for imperative reasons of overriding public interest (IROPI), notwithstanding a negative assessment of the implications for a European site.
  • Thirdly, regulation 36 of the Habitats Regulations requires that where a project is agreed to in accordance with regulation 29, notwithstanding a negative assessment of the implications for a European site, the Scottish Ministers shall secure that any necessary compensatory measures are taken to ensure that the overall coherence of the UK site network is protected.
  1. These three derogation tests must be considered by the Scottish Ministers sequentially and each one must be satisfied before consent can be granted on the basis of these provisions.
  2. The following sections provide the information for the Scottish Ministers to consider in respect of each of these tests. In this document the three tests are presented in the following sequential order:
  • Assessment of Alternatives;
  • Imperative Reasons of Overriding Public Interest; and
  • Compensatory measures put forward to ensure the protection of the overall coherence of the network.

3. Consultation

  1. The Applicant has undertaken pre-submission consultation with relevant stakeholders and Statutory Nature Conservation Bodies (SNCBs) as part of the preparation of the Derogation Case (including, Marine Directorate – Licencing Operations Team (MD-LOT), Marine Directorate – Science Evidence, Data and Digital (MD-SEDD), NatureScot, and the RSPB). Further detail on this pre-submission consultation is presented in the Consultation Log which is found in Annex A of Appendix 2 of the Derogation Case.

4. Guidance and Precedent

4.1. Guidance

  1. All relevant guidance has been considered during the development of this Derogation Case, including the following:

4.1.1. Scottish Guidance

  1. Scottish guidance considered includes:
  • NatureScot (2022). European Site Casework Guidance: How to consider plans and projects affecting Special Areas of Conservation (SACs) and Special Protection Areas (SPAs)
  • CMS (2021) report for SOWEC (Habitats Regulations Appraisal (HRA) Derogations for Offshore Wind Projects in Scotland - Legal Framework for Decisions)
  • Scottish Government (2018). Marine Scotland Consenting and Licensing Guidance: For Offshore Wind, Wave and Tidal Energy Applications
  1. In addition to the above published guidance, and of relevance to Scottish projects, is an advice note prepared by DTA Ecology called ‘Policy Guidance Document on Demonstrating the Absence of Alternative Solutions and Imperative Reasons of Overriding Public Interest under the Habitats Regulations for Marine Scotland’. This was circulated to offshore windfarm developers in 2021, but it is yet to be formally consulted on or published.

4.1.2. UK and European Guidance

  1. UK and European Guidance considered includes:
  • Defra (2021a) Habitats regulations assessments: protecting a European site.
  • Defra (2021b). Draft best practice guidance for developing compensatory measures in relation to Marine Protected Areas
  • (Defra, 2024c) Consultation on policies to inform updated guidance for Marine Protected Area (MPA) assessments
  • DTA (2021) The Habitats Regulations Assessment Handbook.
  • European Commission (2020): EU Guidance on wind energy development in accordance with EU nature directives.
  • Defra (2012): Habitats and Wild Birds Directives: guidance on the application of article 6(4) Alternative solutions, imperative reasons of overriding public interest (IROPI) and compensatory measures.
  • European Commission (2001). Assessment of Plans and Projects Significantly Affecting Natura 2000 Sites: Methodological Guidance on the provisions of Article 6(3) and 6(4) of the ‘Habitats’ Directive 92/43/EEC. November 2001.
  • European Commission (2018). Managing Natura 2000 Sites: The provisions of Article 6 of the 'Habitats' Directive 92/43/EEC (2000) published by the EC in 2000 but updated in November 2018.

4.2. Planning Precedent

  1. The Applicant has developed this Derogation Case in view of the precedent set by all previous derogation cases attached to UK offshore windfarm decisions.
  2. Scottish Ministers have to date consented one offshore wind farm with a derogation case. This was the Green Volt windfarm, which was consented in April 2024. A derogation case was required because Scottish Ministers were unable to conclude beyond reasonable scientific doubt that the project in-combination with other plans and projects would have no adverse effect on seabird features of five SPAs.
  3. In England the UK Government’s Secretary of State for Energy, Security and Net Zero (DESNZ) has consented to eight offshore wind farm projects with associated derogation cases. These are: Hornsea Three (2020); East Anglia ONE North, East Anglia TWO, Norfolk Vanguard, Norfolk Boreas (2022); Hornsea Four (2023) and the Dudgeon and Sheringham Shoal Extensions (2024). A Derogation Case has also been made for the Round 4 Plan Level HRA.

4.3. Ec opinions

  1. The EC has adopted and published a number of opinions on Article 6(4) derogation cases between 1996 and 2022 (European Commission, 2018). These EC opinions have also been reviewed and considered during the development of this Derogation Case.