The story that follows might be described as labrynthine, perhaps even Byzantine, such are the twists and turns. It all stems from the plans by Equinor (the Norwegian state-owned oil and gas company now specialising in blighting the UK with wind farms) to develop extensions to both the Dudgeon Offshore Wind Farm and the Sheringham Shoal Offshore Wind Farm, both of which are described as being in the waters of the Greater Wash off Norfolk. A Development Consent Order to this end was granted in April last year, but the plans have been afoot for some time, and our story begins (for our purposes) in the summer of 2022.

As a brief digression, the reader might better understand the scale of the project by visiting the self-congratulatory section of Equinor’s website which trumpets its success under the heading “Innovative approach enables Sheringham Shoal and Dudgeon Extension Projects to progress as a joint development”:

Partners have agreed to bring the two projects under a joint ownership structure in one legal entity, subject to regulatory approvals being obtained before closing. The projects are extensions to the operational Sheringham Shoal and Dudgeon Offshore Wind Farms, which currently power around 710,000 UK homes… [somewhat intermittently].

…Development consent approval for both projects was obtained in April 2024 which was the first time in the UK that two offshore wind projects under separate ownership were awarded consent under a shared application. The consent allowed for single, joint or sequential development options. The new ownership structure enables a cost-effective joint development of the two projects whilst minimising environmental and local impact in Norfolk, contributing positively to the UK’s ambition of delivering clean [sic] power by 2030…[sic].

…The Dudgeon Extension Project is owned 35% by Equinor, 35% by Masdar and 30% by China Resources Power, whilst Sheringham Shoal Extension Project is currently 100% owned by Equinor, with Equitix Offshore 3 Limited (co-owned by funds managed by Equitix and The Renewables Infrastructure Group (TRIG)) and Macquarie Asset Management (via Macquarie GIG Renewable Energy Fund 1) having options to acquire a total of 60% interests at Final Investment Decision (FID)…

Yet more UK energy infrastructure completely in the hands of foreign companies (including the Chinese), in other words.

As Jit has discussed in Hornsea 3 and the Kittiwake Hotels and as I have discussed more recently in Displacement Activity, offshore wind farm developers can be required to make some (albeit inadequate) gesture with regard to the harms their development will cause to wildlife. In the case of Equinor and its planned extensions to Dudgeon and Sheringham Shoal, the affected wildlife forming the focus of our tale is the sandwich tern (though of course other birds are adversely affected too).

Which brings us back to the summer of 2022, and the west side of Loch Ryan, in the west of Galloway. A land agent appeared, seeking to ascertain land ownership in the area. Local landowners received letters and telephone calls from Equinor and its land agent wanting to find out who owned the land at Kirkcolm shore. The reason for their interest was that they “needed a site for compensation for Sandwich terns”. Which is rather odd, given that the “compensation” was in respect of a proposed development several hundred miles away off the east coast of England. They said that they had ‘looked elsewhere’ but no other sites were available. The site at Scar Point was considered suitable as it previously hosted Sandwich terns until approximately 2008. However, when they nested at Scar Point in the past, they nested on an island slightly offshore. It was a low-lying sand island that was gradually eroded by the wash generated by fast ferries plying the loch at the time. (The ferries are slower now, the wash is reduced, and perhaps the island could be reinstated). The “All About Birds” website tells us that sandwich terns “nest on sandy barrier beaches and barrier islands close to the ocean”. A mere technicality – why let that be a problem when you’ve a massive windfarm extension in the wings and a bit of greenwashing is required?

Recreating the low-lying offshore island would obviously be a major undertaking, so instead they were looking at a field next to the shore, where they hoped to dig a pond habitat for the terns. This field, and every other field they ‘considered’ has never hosted a colony of Sandwich terns. It seems that their plans were largely based on a ‘similar pool’ which was built in the past – St John’s Pool in Caithness, which is a wildlife habitat, and, in fairness, Sandwich terns do now nest there.

I have, in confidence, been made privy to terms offered for a lease of one of the fields that Equinor had their eyes on. Of course, I respect the confidence, and will say no more about that, other than to note that the solicitors Equinor would routinely use were Burges Salmon, a firm whose representatives regularly feature as speakers at the Westminster Energy, Environment and Transport Forum conferences about which I have written a few times. It’s a cosy and lucrative world, this world of renewable energy.

But I digress. There’s a lot of money to be made from wind farm extensions, especially if there’s state-guaranteed funding available in the form of a Contract for Difference (currently guaranteed for fifteen years, but with talk of extending that guarantee to twenty years), and so huge amounts of paperwork are generated, including something called “Sheringham Shoal and Dudgeon Offshore Wind Farm Extension Projects Appendix 5 – Derogation Funding Statement (Habitats Regulations and Marine and Coastal Access Act) (Revision B)” dated July 2023. This tells us that:

Natural England and Royal Society for the Protection of Birds (RSPB) have both indicated through the ETG meetings (see Annex 1D Record of HRA Derogation Consultation, document reference 5.5.1.4) a preference for developing an inland pool for Sandwich tern at Loch Ryan, Scotland and so the Applicant intends to progress this as the preferred project-led measure. This option (rather than the floating pontoon option) has therefore been included in the cost estimate given in this document.

Compensation is to be provided not only for sandwich terns, but also for kittiwakes and guillemot and razorbill, at a total cost of £16.9 million, of which £615,625 is development expenditure (professional fees?) related to the Loch Ryan project, with a further £95,000 for artificial nesting boxes/shelters. Capital expenditure of £1,607,500 includes the construction costs for the pool, with £180,000 for predator management and artificial nesting boxes/shelters. Operating expenditure of £1,462,500 is provided for habitat restoration and another £301,400 for predator management and artificial nesting boxes/shelters (although that latter figure presumably includes nesting boxes at Blakeney Point, as none are proposed for Loch Ryan). Decommissioning expenditure (“ABEX”) amounts to a further £50,000 and £15,000 for the same two categories respectively.

That Equinor and its business partners are prepared to spend such sums of money indicates the lucrative nature of the wind farm business to them in the UK. It also means that when they have settled on a habitat compensation plan that will ease the way for them to receive the necessary consents to go ahead with their planned wind farm extension, they are not inclined to take no for an answer. Thus, when one of the landowners who was approached to make land available was not prepared to play ball, compulsory purchase powers reared their ugly head. In this connection, a Freedom of Information request has revealed a rather remarkable email sent on 4^th January 2023 to the Scottish Energy Consents Unit. It claimed that the matter was “becoming somewhat urgent”, due to the fact that a “Development Consent Order application was submitted to the Planning Inspectorate for the projects in September 2022 and has since been accepted for examination. The examination process is due to start this month.”

Attempts to negotiate terms for land to be used for sandwich tern compensation measures had not come to fruition, and so “we would like to explore CPO powers as an alternative route to assure the Planning Inspectorate that another option for securing the necessary compensation land is, in principle, available to the projects should this be required.”

Somewhat cheekily, the email said “we would welcome the opportunity to discuss this with the ECU and whether a CPO could be promoted jointly…”

Happily, the ECU declined to get involved with such shenanigans, and so a KC’s opinion was sought. This produced the desired result, namely advice to the effect that they had powers under section 10 of and Schedule 3 to the Electricity Act 1989 compulsorily to purchase land for the purposes of wildlife compensation for an offshore wind farm 400 miles away. Specifically, the advice regarding the distance from the development was:

That the land which is being contemplated is remote from the projects does not affect the principle of application of the provision. The answer would be no different if it were immediately adjacent. The required connection is not physical but functional.

We lawyers like to express our wisdom by trotting out bits of Latin, and in this context I note that reductio ad absurdam may be relevant. I won’t explain it, since I think the thing speaks for itself (or should I say res ipsa loquitur?). In essence, if the KC’s opinion is correct, then a developer building a wind farm off the Kent coast could exercise compulsory purchase powers to acquire land on Unst or Yell in Shetland, or perhaps on St Kilda. That does seem absurd, especially as in this case they could have used powers normally reserved to the state, to force the acquisition of a piece of land that is an integral part of a small farm, the loss of which might render the farm unviable. This despite the fact that there is no guarantee that the mitigation measures will succeed. The KC did acknowledge that he has not been able to find any case law directly on point, the issue has not previously been litigated, and there is an argument against his interpretation. Still, his opinion was to the effect that his clients had the necessary compulsory purchase powers, and armed with that, they can now feel free to throw their weight around. Thus, in one of many lengthy documents associated with this story (the “Applicant’s Responses to the Examining Authority’s Second Written Questions” in May 2023, which runs to 203 pages) they make it clear that although they prefer to acquire by compensation the land to be used for compensation measures, they will use CPO powers if necessary.

Happily (or not for the sandwich terns, depending on the outcome), an adjacent landowner appears to have come to terms with Equinor, so the threat of a foreign company compulsorily purchasing farm-critical land for a speculative compensation venture appears to have receded.

Meanwhile, things seem to be (temporarily, one assumes) in abeyance. Equinor produced a glossy “community newsletter” in which it claimed that it “strives to be a good neighbour and has aimed to reach as many people as possible with details of these proposals, including two rounds of maildrops to over 7,000 homes locally advertising the consultation events held earlier this year prior to our proposals being finalised.” Consequently, the strength of feeling at a public meeting held on 27^th January 2025 seems to have come as something of a shock. I don’t imagine they were expecting a well-researched powerpoint presentation, which included the information that the RSPB input into the exercise had been as follows:

We are concerned about the site being constrained by rising land and woodland. This is likely to make the site feel too enclosed for Sandwich terns, as they prefer an open aspect. Disturbance in the surrounding area will need to be carefully managed to ensure birds are not put off from using the site

Nor, I suspect, did they expect Freedom of Information requests to yield this gem:

The Applicant acknowledges there is uncertainty about whether or not Sandwich terns would recolonise Loch Ryan if suitable breeding habitat was created, and how quickly this may occur…

They were probably also shocked to be confronted with a firm suggestion that meaningful community benefit should be on offer. It was pointed out that the existing windfarms:

have established community funds which have, in total, awarded well over £1.4 million to projects in Norfolk. The funds were set up to provide grants to Norfolk community groups, including schools and charities, for projects that focus on renewable energy, marine environment, safety, sustainability, or education within the project areas.

Yet for us the intention is to permanently damage our landscape with a nil intention to provide community benefit funds.

Following the meeting, Equinor started discussing what community benefit measures might be considered by the local community, but things have ground to a halt pending the outcome of their planning application in respect of the proposed sandwich tern works at Kirkcolm by Loch Ryan. One distinct possibility is that Equinor has concluded that it would be simpler to scrap the proposed badly thought-out sandwich tern mitigation plan, save itself both the cost of the works and some more community benefit payments, and fall back on a payment into any forthcoming Marine Recovery Fund (MRF) of the type which I discussed here. After all, as the UK government becomes increasingly desperate, following the withdrawal of Orsted from Hornsea 4, it is likely to throw the kitchen sink at making offshore windfarm developments as easy and as attractive as possible for the developers. If Equinor could make a payment to a MRF and walk away from Loch Ryan, I strongly suspect it would regard that as a good result. The understandably disgruntled locals would be happy too, and the sandwich terns would probably be no worse off than if the mitigation project went ahead.

But is anyone thinking about the birds? Best of all would be if Equinor “did an Orsted” and pulled the plug. Let’s give nature a chance.