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Explanatory note

Original text. Later amendments are not shown.

(This note is not part of the Regulations)

These Regulations are made under section 293 of the Energy Act 2023 (c. 52) which enables regulations to make provision about the taking or securing of measures in compensation for adverse environmental effects of offshore wind activities (“compensatory measures”). Such measures must be secured where offshore wind activity is agreed to, notwithstanding a negative assessment of the implications for certain marine sites, in accordance with regulation 68 of the Conservation of Habitats and Species Regulations 2017 (S.I. 2017/1012) (“Inshore Regulations”) and regulation 36 of the Conservation of Offshore Marine Habitats and Species Regulations 2017 (S.I. 2017/1013) (“Offshore Regulations”).

These Regulations are made by the Secretary of State in relation to compensatory measures for offshore wind activities (as defined in section 290 of the Energy Act 2023) in relation to which the Secretary of State is the “appropriate authority” within the meaning of section 293(2) of that Act. These are, broadly, offshore wind activities taking place in the UK offshore waters, the English inshore region and certain activities in the Welsh and Northern Ireland inshore regions (referred to in the Regulations as “relevant offshore wind plans or projects”).

These Regulations modify certain provisions of the Inshore and Offshore Regulations, by amending the text of those Regulations. The principal effect of the amendments is that:

  • the duties in regulation 9(1) and (3) of the Inshore Regulations, and regulation 6(1) of the Offshore Regulations, to exercise functions so as to secure compliance with, or to have regard to the requirements of, Council Directive 92/43/EEC on the conservation of natural habitats and wild fauna and flora, and with Directive 2009/147/EC on the conservation of wild birds, do not apply to the function of securing that compensatory measures are taken in respect of relevant offshore wind plans or projects (regulations 4 and 14);

  • the duties on the appropriate authority in regulation 68(1) of the Inshore Regulations and regulation 36 of the Offshore Regulations to secure that compensatory measures are taken to ensure the protection of the overall coherence of the national site network are disapplied in relation to relevant offshore wind plans or projects. The duty in regulation 68(2) of the Inshore Regulations in relation to Ramsar sites is similarly disapplied. These duties are replaced by a duty (in new regulation 68ZA of the Inshore Regulations and new regulation 36A of the Offshore Regulations) to secure that “appropriate” compensatory measures are taken. Appropriate compensatory measures are those which benefit the UK network of marine protected areas in a manner which is reasonably proportionate to the damage that the relevant offshore wind plan or project would cause (regulations 5 to 7 and 13, 15 and 16);

  • appropriate compensatory measures must be selected in accordance with a compensation hierarchy published by the Secretary of State, the Welsh Ministers or, in relation to the Offshore Regulations, the Scottish Ministers (new regulation 68ZA(7) and (11) of the Inshore Regulations and new regulation 36A(7) of the Offshore Regulations confer duties and powers in this regard);

  • if the measures are “wider compensatory measures” (measures which benefit the UK network of marine protected areas otherwise than by benefitting the features of site which are, or which may be, adversely affected by the relevant offshore wind plan or project), they must be approved by the Secretary of State, the Scottish Ministers or the Welsh Ministers, as appropriate;

  • the person publishing the compensation hierarchy must also publish guidance about the exercise of the function of securing that appropriate compensatory measures are taken, and the person exercising that function must have regard to it when doing so.

Part 4 imposes obligations on the Secretary of State in relation to reviewing the Regulations, and on the Secretary of State, the Scottish Ministers and the Welsh Ministers in relation to reviewing the guidance and compensation hierarchy.

A full impact assessment of the effect that this instrument will have on the costs of business, the voluntary sector and the public sector is available from the Department for Environment, Food and Rural Affairs, Seacole Building, 2 Marsham Street, London SW1P 4DF, and is published with an Explanatory Memorandum alongside the instrument on www.legislation.gov.uk.