5. Assessment of Alternatives

5.1. Introduction

  1. This section examines whether there are any feasible alternative solutions to the Array. A range of potential alternatives have been considered in this Part, as set out in more detail below, ranging from “doing nothing”, to alternative sites, designs, scales and methods of operation.
  2. The conclusion reached is that there are no feasible alternative solutions to the Array.
  3. The analysis set out in this section is supported by, and draws upon, the following documents that accompany the Section 36 Consent and Marine Licence applications for the Array.
  • Ossian OWFL (2024a). Ossian Array Environmental Impact Assessment Report:

–           volume 1, chapter 1: Introduction;

–           volume 1, chapter 3: Project Description;

–           volume 1, chapter 4: Site Selection and Consideration of Alternatives;

–           volume 1, chapter 5: Stakeholder Engagement and Consultation;

–           volume 2, chapter 17: Climatic Effects; and

–           volume 3, appendix 6.3: Commitments Register;

  • Ossian OWFL (2024b). Ossian Array: Report to Inform Appropriate Assessment; and
  • Ossian OWFL (2024c). Planning and Need Statement.

5.1.1. Approach to assessment of alternatives

  1. The legal context of the Habitats Regulations Assessment process surrounding the Array application and this Derogation Case is set out in section 2. The Habitats Regulations do not define the concept of “no alternative solutions” or the parameters of the exercise, and there is limited case law at a UK or EU level. Therefore the approach adopted by the Applicant primarily draws upon relevant Scottish, UK and EC guidance and precedent from previous  Offshore Wind Farm derogation decisions (Section 4).

                        Project Objectives – Step 1

  1. A consistent theme of guidance and previous Offshore Wind Farm derogation decisions is that possible alternative solutions must achieve the core objectives of the Array.
  2. In this regard, European Commission (2018) provides [underlining added]: “it is for the competent national authorities to ensure that all feasible alternative solutions that meet the plan/project aims have been explored to the same level of detail”. The EC’s Methodological Guidance reflects European Commission guidance (2018) and suggests a three-step approach for examining the possibility of alternative solutions, the first step being to identify the key objectives of the project in question.
  3. This approach has also been endorsed by the English High Court in Spurrier[1], which commented as follows [underlining added]:
  4. “Even by itself, the noun “alternative” carries the ordinary, Oxford English Dictionary meaning of a “thing available in place of another”, which begs the question what are the relevant objectives or purposes which an alternative would need to serve. However, article 6(4) does not refer simply to the absence of an “alternative” but to an “alternative solution”, “alternative” appearing as an adjective, which makes this meaning plain beyond any doubt. In our view, “an alternative” must necessarily be directed at identified objectives or purposes; but it is beyond doubt that “an alternative solution” must be so aimed,”
  5. This approach was also endorsed by the Court of Appeal in R (Plan B Earth) v Secretary of State for Transport  [underlining added]:
  6. “Under the Habitats Directive, if a suggested alternative does not meet a central policy objective of the project or plan in issue, then it is no true alternative and will properly be excluded. It is not then, and cannot be, an “alternative solution”. In short, the Habitats Directive has a determining effect on the inclusion or exclusion of alternatives”.
  7. Defra (2012) similarly states that alternative solutions are “limited to those which would deliver the same overall objective as the original proposal”. In making this point, it uses the example of an offshore wind farm:
  8. “For example, in considering alternative solutions to an offshore wind renewable energy development the competent authority need only consider alternative offshore wind renewable energy developments. Alternative forms of energy generation are not alternative solutions to this project as  they are beyond the scope of its objective. Similarly, alternative solutions to a port development will be limited to other ways of delivering port capacity, and no other options for important freight”.
  9. Defra’s 2021 guidance echoes this advice: “Examples of alternatives that may not meet the original objective include a proposal that…offers nuclear instead of offshore wind energy”.
  10. The Appropriate Assessment made by the Secretary of State for the Hornsea Project 4 Offshore Wind Farm adopted this approach, stating that: “In accordance with relevant guidance, the Secretary of State does not consider that alternative forms of energy generation meet the objectives for the Project. Alternatives to the Project considered by the Secretary of State, and assessed by the Applicant, are consequently limited either to ‘do nothing’ or to alternative offshore wind farm projects”.
  11. Additionally, Defra’s 2012 guidance states that documents setting out Government policy provide important context for a competent authority when considering the scope of alternative solutions.
  12. In conclusion, the first step in a Derogation is to identify the core objectives of the Array. These core objectives respond to and must be understood in the policy context and needs case which the Array delivers. It is noted that a similar approach has been followed in all UK offshore wind farm Habitats Regulations derogation cases to date and as illustrated below.

                        Do Nothing – Step 2

  1. A second consistent theme of HRA guidance is that a “do nothing” or “zero option” should be considered, i.e. the outcome of not proceeding with the project at all.
  2. For example, European Commission (2018) states: “Crucial is the consideration of the ‘do nothing’ scenario, also known as the ‘zero’ option which provides the baseline for comparison of alternatives.” DTA Ecology 2021 (in draft) similarly suggests this allows a baseline from which to gauge other alternatives and provides a different viewpoint from which to understand the need for the proposal.
  3. The English courts[2] have cast doubt on the proposition that “do nothing” is a true alternative, though it was recognised by the judge that whether there are IROPI clearly raises the question of whether it is better to do nothing. The do nothing option, which in the context of the Array would comprise not proceeding with the proposed development at all, would fail to achieve any core project objective and would immediately be discounted where it is clear there are IROPI to proceed with a given project.
  4. However for completeness and given reference to it in pre-existing guidance, the “do nothing” option is considered in this Derogation Case. This is consistent with the approach adopted by the decision-makers in the existing offshore wind farm derogation decisions taken to date.

                        Identify Feasible Alternative Solutions – Step 3

  1. If the “do nothing” option is discounted, the next step is to identify any or all feasible alternative solutions that meet the core project objectives and would avoid or be materially less damaging for the European site(s) in question, whilst also not resulting in AEOI for another (unaffected) European site.
  2. Again, all guidance is aligned in indicating that this could (subject to the core project objectives) theoretically include consideration of different location(s), scale(s), design(s) of development or alternative operational processes. However, there are practical limitations to this exercise.
  3. At this point it is relevant to note that in each of the previously granted English offshore wind farm HRA derogation decisions, the decision-maker concluded that alternative forms of energy generation would not meet the core objectives for the proposed offshore wind farm and that alternatives can consequently be limited to either “do nothing” or “alternative wind farm projects”. This reflects Defra’s 2012 and 2021 guidance and is therefore adopted in this Report. It also reflects the Appropriate Assessment recently made by the Scottish Ministers in determining the Green Volt Offshore Wind Farm project:
  4. “The Scottish Ministers do not consider alternative forms of renewable technologies or onshore wind farms to be “alternatives” to offshore wind given the policy objectives identified for the Project. It follows that identification of reasonable alternative solutions will consist of either a ‘Do Nothing’ approach, or consideration of an alternative project location, scale or design.”
  5. European Court of Justice (ECJ) case law confirms that hypothetical options can be discounted. European Commission (2018) similarly makes clear that the consideration of alternative solutions should be limited to “feasible” alternative solutions. Defra 2021 helpfully explains that a potential alternative should be: “financially, legally and technically feasible”. The recent Appropriate Assessment made by the Scottish Ministers for the Green Volt Offshore Wind Farm also confirms this approach for Scottish Offshore Wind Farms:
  6. “Any alternative identified must be capable of meeting the identified policy objectives, be legally, technically and financially feasible, and have a lower impact on the designated sites.”
  7. On legal feasibility, relevant practical examples can be found in English Offshore Wind Farm derogation decisions. In the HRA for East Anglia ONE North Limited, the Secretary of State concluded:
  8. “The site selection for all offshore wind proposals in the UK is controlled by The Crown Estate (TCE) leasing process. Sites not within the areas identified by TCE leasing process or outside of that which the Applicant has secured (the southern East Anglia Zone) are not legally available, and therefore do not represent alternative locations.”
  9. Similarly, in the HRA for Hornsea Project 4 the Secretary of State found that:
  10. “In his assessment of alternatives, the Secretary of State has not constrained himself solely to those alternatives that could be delivered by the Applicant. Nevertheless, the Secretary of State acknowledges that any alternative must be economically feasible for the developer and allow the developer to fulfil the terms of its lease with TCE.”
  11. This establishes that feasible alternative locations can only be within areas or sites currently identified for leasing either by Crown Estate Scotland (CES) or TCE.

                        Assessment of any Identified Alternative Solutions – Step 4

  1. Finally, European Commission (2018) advises that where feasible alternative solutions that meet the core project objectives are identified, those alternatives should each be analysed and compared with regard to their relative impact (if any) on any European Site(s).
  2. An assessment of feasible alternative solutions should comprise an assessment of the adverse effects on the specific European site in question, but also any adverse effects on other European sites and qualifying features must be considered.
  3. At this stage it is not necessarily the case that any feasible alternative that reduces effects on the European site in question results in failure of the alternatives test. Some ECJ case law and EC opinions indicate that the impact of a feasible alternative solution should be materially lower in order for a potential alternative to be considered a genuine alternative.

5.1.2. Content and Structure

  1. Drawing on the guidance and planning precedent identified above, a staged process has been adopted, to provide a structured and sequential method for examination of alternative solutions:
  • Step 1 Identify the core project objectives for the Array, in the context of the identified need
  • Step 2  Consider the “do nothing” scenario
  • Step 3 Identification of any feasible alternative solutions that meet the core project objectives
  • Step 4 Comparative assessment of any feasible alternative solutions on European site(s)