Energy Bill [HL]

Part of the debate – in the House of Lords at 6:16 pm on 23 March 2004.

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Photo of Lord Triesman Lord Triesman Lords in Waiting (Whips) 6:16, 23 March 2004

My Lords, this is an important provision in the legislation and I wish to resist its removal strongly. As the legislation stands it is not entirely clear whether a consent for the construction and operation of a generating station under Section 36 of the Electricity Act extinguishes public rights of navigation. The result for a developer is that although he has a consent from the Government to build, say, a wind farm in territorial waters, he is laid open to the possibility of being sued in the courts for causing a public nuisance because the wind farm is interfering with rights of navigation. This situation is plainly not conducive to attracting investment in offshore renewable energy projects. Investors need certainty before they will commit the significant funds needed to bring a wind farm to fruition. They will need to know how they stand.

The concept of extinguishing the right of navigation is not novel. An order under the Transport and Works Act 1992 can include provision to extinguish rights of navigation and several offshore wind farm developers have already used this legislation to gain development consent for their projects. What we want to achieve by this provision is to make the Electricity Act more appropriate for offshore generating stations. Without this power developers will be forced to use the Transport and Works Act for projects in territorial waters if they want to extinguish the right of navigation. This Act was not drafted with offshore wind farms in mind. We would have lost a real opportunity to bring the Electricity Act up to date and to make it more appropriate to marine projects. I make those comments to set the scene in terms of the purpose of the clause.

The point needs to be borne in mind that the power to extinguish the right of navigation applies only to the physical structure itself. I believe that that was one of the key questions that noble Lords have asked. It does not extend to any of the waters around the installation, so that, if they are small enough, vessels can continue to navigate through a wind turbine array, so long as a safety zone is not in place which may prevent their entry. Fishing vessels may well be small enough to navigate through such areas whereas vessels with a much greater draught may not be able to do so.

It is probably an appropriate moment to clear up another question. The proposal here relates to the extinguishment of domestic public rights of navigation, not international rights. It is not intended to touch upon international rights. Public rights will be extinguished out only to the limits of the territorial sea and not beyond in the renewable energy zone, which addresses the question noble Lords have understandably asked.

We recognise that extinguishing a public right of navigation is a serious matter and that there must be a robust, fair and open process in place for the Secretary of State to decide whether the issue of a declaration is justified. Clause 91 amends Section 36 of the Electricity Act, so that the well tried and tested process for deciding whether to grant a consent for the construction and operation of a generating station will also apply to applications for a declaration extinguishing rights of navigation. There will be full consultation with all stakeholders with an interest in the matter, and there is provision for the holding of a public inquiry where the issues raised are of particular importance. I emphasise that the Electricity Act process has stood the test of time well, and it seems to be the best way of ensuring that this process is one that would be conducted in the interest of all parties and stakeholders, in the fairest possible way.