Turning the tide

Charles Hendry, an ex-energy minister, found in his recently published report that tidal lagoons can play a cost effective role in meeting the UK’s energy needs: ensuring security of supply, low carbon power and “real and substantial opportunities for the UK supply chain”.

A team of infrastructure planning lawyers from DLA Piper secured development consent for the Tidal Lagoon Swansea Bay (TLSB ) in June 2015, and continue to advise developer Tidal Lagoon Power on its future tidal lagoon projects. We advised that TLSB was a nationally significant infrastructure project, and so needed to be promoted outside the more familiar planning system under the Town and Country Planning Act 1990. Instead, Tidal Lagoon Power had to make an application for a development consent order (DCO) under the Planning Act 2008.

The benefit of a DCO is that is can authorise a nationally significant infrastructure project within a specified time frame, under a single consent and against a policy background (a regime of national policy statements) containing a presumption in favour of policy-compliant development going ahead. The result is that a decision on an application can be made within about 15 months of the initial application. The process is intended to be a ™one stop shop∫ for unifying the various consents which any major construction project requires ± everything from tree protection, to local byelaws. As the time frame is specified in the legislation, it is easier for developers to predict their programme and assess their financial exposure, compared with the normal planning process. However, an application for development consent remains a relatively expensive process, and expert advice is required as early as possible in the development cycle.

As with every large scale construction project, TLSB faced some potential environmental consequences – mainly around visual effects and in relation to the marine environment. Almost any environmental issue may become significant, for example, other nationally significant infrastructure projects may have habitats or air quality issues.

As with every large scale construction project, TLSB faced potential environmental consequences

Securing development consent for projects like a tidal lagoon is a rigorous process: the application for consent is tested for six months in a public forum, known as an examination. The examination is an inquisitorial process ± both written and oral. The developer (and other parties) are subject to rounds of written questions, often in the tens or hundreds, and these need to be responded to. As the same time, the developer team needs to be finalising design, dealing with multiple regulatory bodies and often large numbers of landowners and statutory obligations. Local people, environmental bodies and businesses are all able to have their say, and the developer needs to respond. Environmental impact is fully explored during this process and can be lessened through mitigation, tweaks to the design, and other protective measures. This is extremely resource-heavy, and requires a significant and dedicated team for the duration of the examination.

The issue with set timescales is that, unlike a normal planning application, there is little scope to make good an application during the examination. For TLSB this required significant front-loading of the project planning process - particularly in relation to environmental information. Of course, this in itself created issues, as fixing an engineering solution for an emerging technology five years from breaking ground is a Herculean task. Tidal Lagoon Power was continuously developing better, and more efficient, technology and modelling.

To resolve this, it adopted a worst case scenario approach for assessing environmental impact, in order to allow certainty as to the worst environmental consequences. This, in turn, allowed the firm the flexibility to adopt developing engineering solutions which had less environmental impact. Mitigation was also vital, and Tidal Lagoon Power plans to provide environmental opportunities and benefits within their lagoons. For example, the seawalls can provide the habitats allowing coral formation and shellfish to thrive. Future lagoons will need to be just as mindful of their environmental obligations, and will provide similar programmes.

Tidal Lagoon Power estimates that a Cardiff lagoon would support over 2,232 full-time equivalent construction jobs and the scale of construction would have very positive benefits for the supply chain, including in advanced manufacturing, such as turbine construction. 

We hope the government acts swiftly to ensure that tidal lagoon energy forms part of the UK’s energy mix as soon as possible. As well as the hard-nosed economic and energy security cases, there is something deeply satisfying about the UK being at the forefront of a green engineering technology that highlights our excellence in construction and manufacturing.

Howard Bassford is a partner in and Michael Fry a senior associate at DLA Piper’s real estate group