SCHEDULES
SCHEDULE 17COMPENSATON TO PROTECT THE COHERENCE OF THE NATIONAL SITE NETWORK
PART 1KITTIWAKE COMPENSATION
1. In this Part 1 of Schedule 17—
“the FFC SPA” means the site designated as the Flamborough and Filey Coast Special Protection Area;
“Final KIMP” means the final kittiwake compensation implementation and monitoring plan for the delivery of measures to compensate for the predicted loss of adult kittiwakes from the FFC SPA as a result of the authorised development which shall accord with the principles identified in the kittiwake implementation and monitoring plan;
“Kittiwake implementation and monitoring plan” means the document certified as the kittiwake implementation and monitoring plan by the Secretary of State for the purpose of this Order under article 49 (certification of plans and documents etc);
“the Marine Recovery Fund” means the fund to be established and operated by Defra pursuant to section 292 of the Energy Act 2023 for the implementation of strategic compensation or any equivalent fund established by a Government body for that purpose;
“Marine Recovery Fund Payment” means a contribution to the Marine Recovery Fund to compensate for the predicted loss of adult kittiwakes from the FFC SPA as a result of the authorised development the sum of which shall be agreed with Defra or other organisation responsible for the operation of the Marine Recovery Fund;
“the OKEG” means an offshore kittiwake engagement group which has been or shall be established to assist, through consultation, the undertaker and the developer of any other project with whom the undertaker is to collaborate in the delivery of the onshore kittiwake compensation measures; and
“the onshore kittiwake compensation measure” means measures which improve kittiwake habitat within or outside the FFC SPA onshore, or improve breeding success through reducing avian predation.
2.—(1) No offshore works may commence until the undertaker has confirmed in writing to the Secretary of State that—
(a)it will make a Marine Recovery Fund Payment wholly in substitution for the onshore kittiwake compensation measure and that it has received confirmation from Defra or the Marine Recovery Fund operator that suitable measures are available; or
(b)it will submit a Final KIMP to the Secretary of State for approval.
(2) If the undertaker confirms that it intends to make a Marine Recovery Fund Payment under paragraph (1)(a) then no offshore works are to commence until the Secretary of State has provided consent in writing to the Marine Recovery Fund Payment being made in substitution for the onshore kittiwake compensation measure.
3. Where the undertaker elects to submit a Final KIMP no offshore works are to commence until a plan for the work of the OKEG has been submitted to and approved by the Secretary of State, such plan to include—
(a)the identity of, or the arrangements for establishment of, the OKEG;
(b)its terms of reference;
(c)its membership shall (as a minimum) include the local planning authority for the area in which the onshore kittiwake compensation measure is to be provided and statutory nature conservation body as core members and the Royal Society for the Protection of Birds as advisory member;
(d)details of the proposed schedule of meetings, reporting and review periods;
(e)the dispute resolution mechanism and confidentiality provisions; and
(f)a schedule of preparation and delivery.
4. Following consultation with OKEG, the Final KIMP must be submitted to and approved by the Secretary of State.
5. The Final KIMP (if required) must be based on the strategy for kittiwake compensation set out in the kittiwake implementation and monitoring plan and include—
(a)the location where the compensation measures will be delivered and the suitability of that location (including why the location is appropriate ecologically and likely to support successful compensation), and confirmation that the necessary landowner agreement(s) are in place;
(b)where the compensation measures comprise an artificial nesting structure details of the capacity of such structure(s) and its ability to accommodate at least 10 additional nesting spaces for pairs of kittiwake to compensate for the impact of the authorised development on the population of the FFC SPA;
(c)an implementation timetable for delivery including any arrangements made with a third party for implementation of the measures provided that if the measures comprise an artificial nesting structure that has already been delivered the details submitted shall comprise confirmation as to when the structure was completed;
(d)details of any contribution to be made to a third party to ongoing management and maintenance of the compensation measures delivered in collaboration with a third party;
(e)details for the ongoing monitoring and reporting of the effectiveness of the compensation measures identified in the Final KIMP including—
(i)survey methods;
(ii)survey programmes;
(iii)success criteria; and
(iv)timescales for the monitoring reports to be delivered;
(f)details of any adaptive management measures, with details of the factors used to trigger any alternative and/or adaptive management measures; and
(g)confirmation as to how it has had regard to output of consultation with OKEG.
6. Where the Final KIMP identifies the provision of artificial nesting structures in collaboration with one or more other offshore wind farm projects the details submitted pursuant to paragraph 5(b) and (e) shall identify how the effectiveness of the compensation measures and any requirement for adaptive management measures are to be attributed to the authorised development.
7. The undertaker must implement the measures set out in the Final KIMP approved by the Secretary of State, unless otherwise agreed by the Secretary of State following consultation with the relevant statutory nature conservation body and the local planning authority for the area in which the onshore kittiwake compensation measure is to be provided.
8. No operation of any wind turbine generator forming part of the authorised development may begin until the Final KIMP has been implemented, and completed (where appropriate) and has been notified to the Secretary of State, and where the compensation comprises an artificial nesting structure this has been in place for at least four full kittiwake breeding seasons prior to such operation. For the purposes of this paragraph each breeding season is assumed to have commenced on 1 March in each year and ended on 31 August.
9. Where the undertaker has confirmed that it intends to make a payment to the Marine Recovery Fund there shall be no operation of a wind turbine generator unless and until the undertaker has received confirmation from Defra or the operator of the Marine Recovery Fund that suitable measures are available, the Marine Recovery Fund Payment has been quantified, such payment has been made by the undertaker and the Secretary of State has confirmed in writing that such payment fulfils the requirement for compensation measures. Following such payment the undertaker shall not be required to implement any further compensation measures for kittiwake pursuant to this Part 1 of Schedule 17.
10. Results from the monitoring and reporting scheme referred to in paragraph 5(e) must be submitted at least annually to the Secretary of State and members of the OKEG, including the relevant statutory nature conservation body. This must include details of the effectiveness of the compensation measures delivered. If the undertaker, or on receipt of a monitoring report, the Secretary of State, determines that the compensation measures delivered have been ineffective the undertaker must provide proposals agreed by the OKEG for any alternative and/or adaptive management measures to address this. Any proposals to address the ineffectiveness of the compensation measures 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.
11. The Final KIMP approved under this Part 1 of Schedule 17 includes any amendments that may subsequently be approved in writing by the Secretary of State. Any amendments to or variations of the approved Final KIMP must be in accordance with the principles set out in the kittiwake implementation and monitoring 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 implementation and monitoring plan.