The Norfolk Boreas Offshore Wind Farm Order 2021

PART 1 E+W Flamborough and Filey Coast Special Protection Area: Delivery of measures to compensate for kittiwake loss

1.  In this Part— E+W

“FFC” means the site designated as the Flamborough and Filey Coast Special Protection Area;

“KIMP” means the kittiwake implementation and monitoring plan for the delivery of measures to compensate for the predicted loss of adult kittiwakes from the FFC as a result of the authorised development;

“kittiwake compensation plan” means the relevant principles for kittiwake compensation set out in the document certified as the In Principle Habitats Regulations Derogation, Provision of Evidence, Appendix 1 Flamborough and Filey Coast SPA In Principle Compensation by the Secretary of State for the purposes of this Order under article 37 (Certification of plans etc); and

“KSG” means the Kittiwake Steering Group.

Commencement Information

I1 Sch. 19 para. 1 in force at 1.1.2022, see art. 1

2.  The authorised development may not be commenced until a plan for the work of the KSG has been submitted to and approved by the Secretary of State. Such plan must include: E+W

(a) terms of reference of the KSG:

(b) details of the membership of the KSG;

(c) details of the schedule of meetings, timetable for preparation of the KIMP and reporting and review periods; and

(d) the dispute resolution mechanism.

Commencement Information

I2 Sch. 19 para. 2 in force at 1.1.2022, see art. 1

3.  Following consultation with the KSG, the KIMP must be submitted to and approved by the Secretary of State, in consultation with the local planning authority or authorities for the land containing the artificial nest sites, and the relevant statutory nature conservation body. The KSG must be consulted further as required during the approval process. E+W

Commencement Information

I3 Sch. 19 para. 3 in force at 1.1.2022, see art. 1

4.  The KIMP must include measures to increase the number of adult kittiwakes available to recruit to the FFC in accordance with the principles contained in the kittiwake compensation plan, must contain the relevant matters identified in section 4.6.3 of the kittiwake compensation plan and must include in particular: E+W

(a) details of the location where the compensation measures will be delivered and the suitability of the site to deliver the measures (including why the location is appropriate ecologically and likely to support successful compensation);

(b) details of landowner agreements demonstrating how the land will be bought or leased and assurances that the land management will deliver the ecology objectives of the KIMP;

(c) details of the design of the artificial nest structures, including the projected number of nests that will be accommodated on the structures, and how risks from avian or mammalian predation and unauthorised human access will be mitigated;

(d) an implementation timetable for the delivery of the artificial nest structures that ensures all compensation measures are in place to allow four full kittiwake breeding seasons prior to the operation of any turbine forming part of the authorised development;

(e) a maintenance schedule for the artificial nest structures;

(f) details of the proposed ongoing monitoring and reporting on the effectiveness of the measures, including: survey methods; success criteria; adaptive management measures; timescales for the monitoring and monitoring reports to be delivered; and details of the factors used to trigger alternative compensation measures and/or adaptive management measures;

(g) provision for annual reporting to the Secretary of State, to include details of the number of birds colonising the site including: evidence of birds prospecting; nesting attempts; egg laying; hatching; and fledging, to identify barriers to breeding success and target alternative or adaptive compensation measures;

(h) details of how natal dispersal and colony interchange with the FFC kittiwake colony should be investigated, potentially using colour-ringing of chicks; and

(i) minutes from all consultations with the KSG.

Commencement Information

I4 Sch. 19 para. 4 in force at 1.1.2022, see art. 1

5.  The undertaker must implement the measures as set out in the KIMP approved by the Secretary of State, unless otherwise agreed in writing by the Secretary of State in consultation with the relevant statutory nature conservation body and the relevant local planning authority. In particular, no operation of any turbine forming part of the authorised development may begin until four full breeding seasons following the implementation of the measures set out in the KIMP have elapsed. For the purposes of this paragraph each breeding season is assumed to have commenced on 1 March in each year and ended on 30 September. E+W

Commencement Information

I5 Sch. 19 para. 5 in force at 1.1.2022, see art. 1

6.  The undertaker shall notify the Secretary of State of completion of implementation of the measures set out in the KIMP. E+W

Commencement Information

I6 Sch. 19 para. 6 in force at 1.1.2022, see art. 1

7.  Results from the monitoring scheme must be submitted at least annually to the Secretary of State and the relevant statutory nature conservation body. This must include details of any finding that the measures have been ineffective in securing an increase in the number of adult kittiwakes available to recruit to the FFC and, in such case, proposals to address this. Any proposals to address effectiveness must thereafter be implemented by the undertaker as approved in writing by the Secretary of State in consultation with the relevant statutory nature conservation body. E+W

Commencement Information

I7 Sch. 19 para. 7 in force at 1.1.2022, see art. 1

8.  Unless otherwise agreed in writing by the Secretary of State or unless the measures set out in the KIMP have already been delivered, the undertaker must not commence construction of Work No.1 until it has first— E+W

(a) provided a reasonable estimate of the cost of delivery of the compensation measures; and

(b) put in place either—

(i) a guarantee in respect of the reasonable estimate of costs associated with the delivery of the compensation measures; or

(ii) an alternative form of security for that purpose,

that has been approved by the Secretary of State.

Commencement Information

I8 Sch. 19 para. 8 in force at 1.1.2022, see art. 1

9.  The artificial nest structures installed under this Part must not be decommissioned without the written approval of the Secretary of State, in consultation with the relevant statutory nature conservation body. The artificial nest structures shall be maintained beyond the operational lifetime of the authorised development if they are colonised, and routine and adaptive management measures and monitoring must continue whilst the artificial nesting structures are in place. E+W

Commencement Information

I9 Sch. 19 para. 9 in force at 1.1.2022, see art. 1

10.  The approved KIMP includes any amendments that may subsequently be agreed in writing by the Secretary of State, in consultation with the relevant statutory nature conservation body. Any amendments to or variations of the approved KIMP must be in accordance with the principles set out in the kittiwake compensation plan and may only be approved where it has been demonstrated to the satisfaction of the Secretary of State that it is unlikely to give rise to any new or materially different environmental effects from those considered in the kittiwake compensation plan. E+W

Commencement Information

I10 Sch. 19 para. 10 in force at 1.1.2022, see art. 1

11.  In the event of any conflict or inconsistency between the terms of the kittiwake compensation plan and the provisions of this Order, the provisions of this Order shall prevail. E+W

Commencement Information

I11 Sch. 19 para. 11 in force at 1.1.2022, see art. 1