CLOSING SUBMISSIONS
OF CAPRI
INTRODUCTION
1. CAPRI is a group of residents local to the
area within which National Grid Gas plc (“NG”) propose to construct the
Pressure Reduction Installation (“PRI”) which is the subject of this
appeal. CAPRI objects to this proposed
development. The proposal has engendered
considerable public interest and concern over a number of years. CAPRI was represented at the 2007 public inquiry and has followed
the subsequent developments closely. It
is now over 3 since the last inquiry and over 2½ years since the SSs dismissed
NG’s appeal. These timescales are
themselves anathema to any perceived urgent national need. NG’s actions in the meantime have not been
consistent with any such need. The
reason is that any perceived need in 2007 has been off-set by subsequent
developments such that the current need, not for the pipeline but merely for
the difference between the capacity of the currently operational pipeline and
its potentially greater capacity that would be enabled by the construction of
the proposed PRI, is not evident. Not
only has the need for the proposed PRI not been the subject of any current
national policy proposal (which would be expected for a truly urgently needed
project of national importance) but up-to-date and rigorous stress testing by
DECC suggests adequate resilience of the gas supply system without it. Thus the need case is substantially weaker
than it was in 2007. Further the new
site selection process undertaken pursuant to the requirements of the 2007
inquiry is flawed and should not be relied upon to demonstrate that there is no
more suitable site for the accommodation of a PRI should a need be proven. Furthermore the difficulties of the assimilation
of this industrial PRI in the local sensitive countryside have not reduced and
the planting proposals are subject to adverse climatic and soil conditions that
make reliance upon the alleged success of the landscaping proposals
difficult. NG’s track record on landscaping
is not good but the problem is not essentially one of the implementation of the
Landscape Management Plan but of the inherently likely failure rate and its
impact upon the success of the perceived screening and the timescales involved.
2. Thus CAPRI’s case will be presented under the
following headings:
(1) Need for the proposed development;
(2) Site selection process for
alternative sites;
(3) Landscape and visual intrusion;
(4) Conflict with planning policy; and,
(5) Security.
(1) Need for the proposed development
3. CAPRI does not accept that there is now in
2010 either a national or an urgent need for the PRI proposal or that the
National Transmission System (NTS) is inadequate. There is now more than sufficient import
capacity for Liquid Natural Gas. Neither
is there any need in terms of NG’s statutory or Licence requirements, nor any
operational necessity to construct the PRI.
4. CAPRI does not accept that projected
demand and supply estimates justify the development and challenges assertions
of inadequate capacity and infrastructure.
5. It is important to recognise that need
issues have moved on since the matters that informed the 2007 Inspectors’ Report
(‘IR’) and SSCLG’s Decision Letter (‘DL’) and CAPRI has examined the current position
through cross-examination and reference to up-to-date Government documents and
demand/supply forecasts.
6. At the outset it is important to
distinguish between the commercial interests of the Milford Haven (‘MH’)
operators and the national interests of the UK: they are not necessarily the same thing.
7. NG is required to provide capacity if
asked to do so by shippers, subject to the ‘efficient and economical’ test
(s.9, Gas Act 1986); NG is required to operate that capacity in an ‘efficient
and economical’ manner; but where there is a satisfactory resilience of
capacity, simply adding to it at the behest of the shippers could make the
system less economic and less efficient.
As AKS accepted in XX (T1/77/24) it would be futile to provide capacity
that was not needed.
Annual Supply Overcapacity
8. The relevant figures would seem to be
(see XX AKS T1/76 onwards):
a.
Total
annual gas demand: 100 bcmy as shown on AKS02 (and described by AKS as “fairly
constant” (para. 3.9) but estimated by DECC to fall to 65 bcmy in 2020 as the
Governments’s lower carbon targets are met (see C13/NG15 Chart 5.3 p.57). Increased efficiency, higher prices and the
recession are ensuring that this reduction is being brought about, and
renewable energy and new nuclear power are envisaged to sustain this to and
beyond 2020. The Coalition Government
has recently re-iterated its commitment to even more demanding targets for
carbon reduction.
b.
Annual
LNG import demand 2009: 12 bcmy.
c.
(ditto) 2019: 26 bcmy.
d.
MH
potential pipeline capacity: 88 mcmy (AKS 6.4) or 32.2 bcmy, i.e. significantly
more than the annual total LNG demand (12 bcmy) and in addition to this there
is very significant additional import capacity at Isle of Grain (20.5 bcmy),
Gasport at Teeside (4 bcmy) etc amounting to considerable further capacity. Thus there is significant over-capacity on an
annual basis which would help not only to contribute to the winter peak day 1
in 20 year demand, but also to provide capacity in the event of peak day
disruption.
e.
The
material issue of need is the 18 mcmd in 2010 (AKS XX at T1/99/3.
f.
The
potential existing restricted annual
input capacity to the MH pipeline (i.e. without the 20% addition to full
capacity) would be 70 mcmd, that is 25.55 bcmy i.e. 25% of total current
overall gas demand. But the actual
annual supply of the MH pipeline in 2010 is broadly between 10 to 20% (i.e. 30
to 60 mcmd gas send out - see C37 for 2010 figures). This demonstrates substantial reserve
capacity to help meet unforeseen failures, as in fact happened in winter 2010,
when MH helped to offset the failure of the Norwegian supply during a severe
winter.
9. As the Energy Statement of Need (16th
May 2006) (CD29) made clear, at para 18, new import projects are expected to
increase import capacity by 100 bcmy by 2010 i.e equivalent to the current
total demand for gas. Moreover domestic
UKCS production will still be significant in 2020 (i.e. 20% or 34 bcmy: see AKS02). The 2007 Energy White Paper (CD30) promoted
the MH terminals in the interests of diversity but they are now already in
danger of providing a disproportionate amount leading to the problem of
over-dependence (see C12/NG16, para 1.20, Gas Security of Supply) with a potential
full capacity contribution of nearly 33% (i.e. 32.12 bcmy).
Falling Annual/Rising Peak Demand Balance
10.
DECC’s most recent Government projections (C12/NG16, para 1.7, April
2010, Gas Security of Supply, DECC) show that UK annual gas demand will fall through
to 2020. Furthermore there will be a
“considerable surplus of import capacity in the UK” (C14/NG17, para 4.1, p45 (middle)
TYS 2009 and also see para 4.6.2, p60/61 re the global surplus).
11.
NG accept that “import capacity far exceeds import requirements” (NG19: Consultation
Document - Development of Energy Scenarios (TBE 2010), para 3.3, p16 (below
middle). See also the import requirement
v de-rated import capacity chart at Fig 6, p17).
12.
The NG seminar slide “Awash with gas?” (C32/NG30) is also evidence of
this perception. The information on the
Grain facility (p2), and the peak winter 07/08 day (419 mcmd) and how it was
met (p3), serve to reinforce the robustness of the historic position but, of
course, the forecasts are now well out of date (the document only deals with
the position at January 2008).
13. But we do now have independent
and authoritative up-to-date reliable government-endorsed figures. These are set out in the ‘policy statement’
from DECC entitled Gas Security of Supply and dated April 2010 (C12/NG16). For the impartial definitive position for the
purposes of this inquiry there is no need to look further. I set out some references (as put to AKS in
XX, T1/105 onwards):
(i)
E2/3/4 – Gvt commitment to
decarbonisation – a low carbon system reducing dependence on fossil fuels – but
gas still has a central role particularly in wind intermittency;
(ii)
E7 - ample sources of gas reserves creating scale and diversity;
(iii)
E11 – “Existing mechanisms are working well”;
(iv)
E12 – our infrastructure is now capable of importing around 125%of annual gross
demand – “this allows the UK to … increase gas flow in response to high
demand”; storage capacity has been increased over the last decade by around
25% (to 4.3 bcm) – “this enables the UK to store more gas, which can
be used to meet peak demand”.
(v)
E13 – retail gas prices have tended to be the lowest in the EU15;
(vi)
E16 – 22 commercial gas storage projects are planned, which could quadruple
GB’s gas storage capacity by around 2020;
(vii)
E17 – the UK’s gas market has been tested by
extreme circumstances this winter, prolonged cold spells led to unprecedented
levels of demand at the same time as a major external suppler in Norway experienced technical difficulties.
Nonetheless, supplies continued to meet demand and the system
demonstrated its resilience;
(viii)
E19 – heading “Risks to gas security are very low up to 2020 and beyond”
– “High annual demand projections can be met up to 2020 and beyond, by existing
import capacity and projected supply from indigenous resources. 2020 peak demand can also be met by
capacity this is existing or under construction. After 2020, planned infrastructure would
provide sufficient capacity to supply the highest peak demand scenarios,
even if only a minority of the planned projects succeeded in coming to market”;
(ix)
E20 – the Gvt tests the resilience of the system with periodic risk
assessments – the most recent assessment tested a number of scenarios including
loss of the UK’s largest gas storage facility, gas import
terminal or largest source of imports for a whole year and within the
context of a severe winter. Combined shock scenarios were also
tested: for example, loss of the Bacton terminal and loss of Russian gas
through Ukraine for a whole year and a severe
winter. This assessment concluded
that the UK gas system is highly resilient;
(x)
E21 – DECC’s analysis goes further, by considering the probability of risk
events occurring; it finds that the probability is very low, and that
our gas market is resilient.
14.
These statements demonstrate DECC policy that both annual and peak
demands can be met; that the system has been stress tested and has been found
to be highly resilient.
15.
There is further detail at para 2.21 re import capacity; para 2.31 re 1
in 20 year peak day demand; and paras 3.5 to 3.9 re the experience of the
winter 2009/10. After the “coldest
winter” since 1978/79, it states that improvements over the past few years have
“increased the resilience of the system substantially. The UK’s security of supply position has
been significantly more favourable in 2009/10 than it was in 2005/6,
despite very difficult circumstances”.
Demand for gas surpassed the previous record, peaking at 465 mcmd,
coinciding with the Norwegian disruptions but with the GBAs, which provided the
incentive for additional supplies to come forward and for gas demand to fall,
the tightness was short-lived.
16.
These factors all informed the Government’s view that the system is
highly resilient even at the exceptionally high winter peak. The long term assessment is that “there is ample
capacity within the system to supply our gas needs up to 2020 and beyond”
(para 4.3); that “potential peak deliverability from capacity currently exceeds
estimated peak demand by around 40%” and that “analysis by NG in
consultation with DECC shows that even if we were to lose the largest
infrastructure facilities, there would still be enough capacity to meet
peak demand” (para 4.4).
17.
In further sensitivity tests it was concluded that “capacity is still
expected to exceed even the highest peak demand scenario until 2024 and beyond”
(para 4.7).
18.
Under the heading ‘Assessing the resilience of the system’, the results
of the stress tests are set out at para 4.8.
“Although these scenarios are extreme, and highly unlikely to
arise, the analysis suggested that the gas market is robust to them …
None of these scenarios would result in shortages of gas that would necessitate
involuntary interruptions to industrial consumers”. It is repeated that “the UK gas market is highly resilient and
will continue to remain so for the foreseeable future” (para 5.1) and this is
in the context of meeting the highest winter peak demand as well as annual
demand (para 4.7 and NB all scenarios include ‘severe winter’ – Table 4c).
19.
The Government’s (DECC’s) conclusion is that “the UK has a robust and resilient
gas market which functions well under stress.
Analysis of evidence concludes that it will remain so for the
foreseeable future” (para 6.2).
20.
The system is designed for a 1 in 20 winter day demand which for winter
2009/10 was 510 mcmd (AKS para 7.10) but that worst winter for over 30 years
gave rise to a record peak demand day of only 465 mcmd. While the design capacity may rise to 530
mcmd by 2020 (AKS para 3.15), and peak demand may rise through the use of CCGT
power stations to compensate for wind intermittency, the fact remains that the
up to date (April 2010) DECC, having considered likely demand and capacity have
clearly concluded that the UK system is robust and highly resilient
(C12/NG16). Moreover there is no
indication that capacity that has never been available (e.g. the 18 mcmd
potential of the MH pipeline has been included in the figures: see AKS XX
(T1/120/3) – AKS did not draw attention to any such reference).
21. The DECC conclusions are clear, definitive,
independent and up to date. They
demonstrate that there is no need, let alone an urgent need, for the proposed
PRI. If there were a ‘critical’ (AKS
para 4.14) need for the PRI as part of an urgent national need, one would
expect it to have been identified as a planned project or needed capacity but
neither is the case. The appeal project
is not identified in any current Gvt policy as either needed or contributing to
an urgent national need. AKS (XX
T1/127/4) was unable to point to any such national Gvt policy statement. Furthermore AKS described the PRI as
“critical” to the delivery of gas supply in the UK (Proof para. 4.14) but
failed to support this in XX when asked to justify it: he explained that this
merely meant that “It’s part of the infrastructure required to allow the MH
terminals to operate at full capacity” (T1/76/22). Furthermore, there is no DECC or NG policy
document that identifies a national need to provide the full capacity on the MH
pipeline and AKS was unable to identify one (T1/126/15 to T1/128/12; T1/126/25;
and T1/120/2)
22.
Moreover it is singularly notable that, for the purposes of this
inquiry, neither NG (nor any of its proofs) saw fit to draw attention to the
most up to date DECC ‘policy statement’ – Gas Security of Supply, April 2010
- and it was left to CAPRI to produce
this (C12/NG16) together with extracts from other more recent policy
documents. Although the full versions
now bear NG numbers, they were not introduced by NG to the inquiry and not
referred to in NG’s need proof (AKS).
23.
Indeed NG primarily relied upon, and frequently reciting, the 2007
inquiry findings. Of course this is
insufficient, not only because need is peculiarly a function of the present,
but also because the 2007 need that was identified was inextricably bound up
with the whole pipeline project which was then being proposed as it had not
been constructed. AKS accepted this in
XX (at T1/95/23 & T1/95/8).
2007 Inquiry
24.
The SSs found that “there is an important national need (IR 8.24), and
urgency (IR 8.113), to transport LNG from the LNG terminals at MH to England (IR 8.44). The IR conclusions were (at 8.24) that “it is
clear that there is an important national need to transport LNG from MH to England and (at para 8.44) that “there is an
important national need to transport LNG from Milford Haven to England” and the subsequent conclusions
followed on from that. The PRI was
treated as part of overall pipeline project (and see T1/96/3) and
not as simply the extra 18 mcmd capacity.
As a result, although the appeal proposal was merely for a PRI, the
conclusions on need were plainly influenced by the overall pipeline
project. It was a reasonable finding
that the pipeline to carry gas from MH to England carried an urgent national need but
to suggest that the PRI was equally important is fanciful. There was and is no urgent national need for
a PRI alone, considered separately from the pipeline (AKS XX T1/95/8). Furthermore to suggest that there is now an
urgent and national need for a PRI is not borne out in the latest DECC policy
statement (C12/NG 16) and is belied by the singular lack of urgency in pursuing
the proposal (it would be a further 6 years from the 2007 inquiry to the
earliest potential PRI completion date).
Furthermore any project properly described as being the subject of an urgent
national need, and well behind schedule, would be expected to be referred to in
the DECC policy statement along with other planned infrastructure. AKS T1/127/4 could not point to any such
reference.
Statutory/licensing/contractual obligations
25. In the same way as undue reliance has been
placed on the 2007 inquiry observations on need, so too the import of the
contractual/statutory/licensing obligations has been overstated. Apart from section 9 of the Gas Act 1986,
none of the primary source documents has been produced, and it became apparent
(in the XX of AKS at T1/97-98) that there is no absolute legally enforceable
contractual or licensing obligation to uprate the pipeline to full capacity. Furthermore there has been no such claim, or
complaint, directed at NG over the last few years or at all (T1/98/8). Indeed AKS in XX (T1/99/8) agreed not only
that if there were no need for the PRI then it would not be consistent with the
section 9 duty to provide one (being neither
‘efficient’ nor ‘economical’), but also that the extra 18 mcmd capacity
needed to be shown to be material (T1/96/12).
The ultimate remedy it would seem is simply that the unrequired capacity
is reimbursed the auction price (a small and neutral price to pay for something
that was not necessary): see AKS XX (T1/98/20 re s.9 duty/ contractual &
licence obligations, and buy back facility – T1/187/12 & T1/188/3. This may or may not result in a miniscule
increase in prices, but the point is that NG has mistakenly contracted for
something they did not have and which is not needed, and is now seeking to take
the planning process for granted. In
these circumstances there would seem to be little or no actual loss at all, over
and above the true or real position.
26. It
would be odd if the situation were otherwise as (i) the auction could not
presuppose the grant of planning permission – although the approach of NG to
this appeal has been close to presupposing such an overriding need based upon
the auction process, and (ii) NG was seemingly contracting to deliver something
that it was not in its power to deliver, so on any view there must be
safeguarding terms to protect it from a reasonable failure to deliver. Anyway the operators have not taken any
action against NG for breach of duty, obligation, licence or contract (AKS XX
T1/98/13). Accordingly there is no
reason why the planning system should feel compelled by these theoretical matters
to permit an otherwise inappropriate proposal.
26.
In any event the section 9 duty absolves NG from any requirement to
carry out inefficient and uneconomical works.
27.
Accordingly these matters should not serve to protect an unnecessary
proposal. The full potential capacity of
18 mcmd/950Gwhd has never been delivered or deliverable and are not built into
the stress testing that has determined that the peak position is robust and
highly resilient.
28.
Indeed the statement from
Qatargas (C36) demonstrates the market view that the British LNG market is
saturated and oversupplied.
29.
Furthermore the peak winter 1in 20 supply is not only robust and highly
resilient according to DECC (C12/NG16) but his is reinforced in the DECC/Ofgem
report – Energy Markets Outlook: December 2009 (C13/NG15). In relation to import capacity, this notes (at
para 5.6.4, p65) that total import capacity now has a deliverability
sufficient to meet demand on a typical winter’s day alone – even in the absence
of gas supplies from storage and UKCS.
Chart 5.9 (p66) shows current and potential deliverability and Char 5.10
(p67) shows peak daily winter gas demand and supply capacity. Para 5.6.6 notes the requirement for a buffer of spare capacity
and para 5.6.7 concludes,
“Analysis by
NG, in consultation with DECC, … suggests that in the event of disruption of
the largest gas supply infrastructure, the remaining infrastructure has the
capacity to deliver the necessary volume of gas to satisfy total gas demand …
during a period of 60 days of exceptionally high gas demand in a 1 in 20
winter”.
(This was in the context of Ofgem’s
Project Discovery which assesses whether current market arrangements are
capable of delivering secure and sustainable energy supplies over the next
10-15 years: see para 2.1.4). These
conclusions are entirely consistent with (C12/NG16) Gas Security of
Supply. But they are also both more
authoritative and independent than the untested NG view set out only yesterday
in NG47 (section 4) which purported to deal with storage projects. In this context it is also worth referring to
section 5.7 on storage in DECC/Ofgem: EMO, Dec 2009 (C13/NG15).
30.
It is of interest that Ofgem is a signatory to this document as the
steadfastly refuse to comment on the merits of individual planning cases. Indeed in XX AKS repeated that there was no
point in even asking Ofgem for a view and that NG had not done so and would not
do so as part of normal practice (see T1/78/14 & T1/132/14 & T1/186/7). But a few days later NG put in a letter from
Ofgem (NG34) dated on the opening day of this inquiry that they solicited (but
without the soliciting letter): but on a close reading this does not express a
view on the merits.
31.
The need case is not made out.
There is no national or urgent national need. None is identified in any statement of Gvt
policy and the latest figures and policy statement published by DECC demonstrate
by reference to the harsh 2009/10 winter that the supply system remains robust
and highly resilient. The four daily gas
alerts did their job and the worst winter for 30 years passed without a problem
even though there was a concurrent major supply failure from Norway.
Further it would be absurd to suggest that the proposed PRI should be
built just to meet an exceptional worst case on just four days: the harmful
effects on the countryside would not be justified by such an insubstantial
need. Moreover the MH send out figures
(C37) and the evidence of summer peak flows (NG46, para 1.3.6) would suggest
otherwise.
32.
Overall, the recent explicit need assessments carried out by DECC,
namely EMO, Dec 2009, (C13/NG15) and particularly Gas Security of Supply, April
2010 (C12/NG16) belie any current or foreseeable national need (let alone
urgent) case for the PRI proposal.
(2) Site selection process and alternative
sites
33. CAPRI does not accept that the site selection process is
sufficiently robust to justify the selection of the appeal site through that
process. It has not been satisfactorily demonstrated
through that process that the appeal site is the best location or there is not
another site that would have significant advantages, particularly in
environmental terms, over the appeal site.
Moreover, the balance between environmental harm, commercial cost,
engineering factors and other matters is essentially a subjective one and one that
NG has used to justify its original plans.
This is a matter that is also inter-related with the issue of need to
the extent that the significant harm inherent in a PRI proposal may be
justified only by a strong and urgent need, if not a nationally urgent need. Other unconstrained sites plainly exist and
some would be potentially better alternatives in environmental terms but then
only on the assumption that the strength of the current need justifies such a
location. The selection of
Representative Locations is a flawed, unexplained and undocumented process that
essentially invalidates the exercise: for example, the choice of the location
of NG Site 16 is odd when the site that has been assessed is plainly not a good
one and there is a much superior site (as advocated by CPRE) within Candidate
Area 16: but this has not been formally assessed through the site selection
process. Given that even the NG Site 16
was assessed to be potentially superior in environmental terms to the appeal
site, the optimum CPRE Site 16 might well have shifted the whole balance had it
been part of the equation.
34. CAPRI view this as an obvious example of where the methodology of
the site selection process was flawed rendering its conclusions unjustified and
unreliable. As the assessment of Site 16
is one obvious example of this failing, it cannot be concluded that there are
not other more favourable sites that have been allowed to escape closer
examination. As PReid stated more than
once (T3/46/4 & 8) it is not the responsibility of other parties to select
the sites for examination. It is for NG
to demonstrate to the SSs that the exercise they have carried out in pursuance
of the requirement of the 2007 inquiry process is thorough and robust.
35. The first point to make is that the Site
Selection Report was not an independent report and neither was it validated by
independent consultants. It was an
in-house NG report. This is surprising
given the history of the failed 2007 appeal and the clear criticism of the 2007
site selection and landscaping proposals.
Yet the same people, whose judgement had been impugned by the SSs and Inspectors,
were asked to carry out and supervise the selection of the new appeal
site. This is the root of much local scepticism about this process.
36. LP for NG summarised the 2007 findings in
this way:
“However,
there were two “fundamental problems with
the development of the site, namely its location and size” (IR 8.54)
reflected also In the conclusion that the proposed 3m high bund would have a
negligible effect; the proposed bunds would not be the “sinuous and flowing
mounds of a more natural landform” to be expected in such a location; the flues
would remain in view as an “alien,
intrusive and harmful industrial feature in the rural landscape” (IR 8.58); and the overall quality of the
landscaping proposed would be poor and the size of the appeal site was “wholly inadequate” to accommodate
the proposal so as to respect the local landscape character (IR 8.59). The quality of landscaping in particular,
therefore, therefore, fell far short of what should be expected from this
statutory undertaker for this PRI development in a sensitive rural landscape.”
(LP, para 3.9,
ninth bullet point, p7 – my underlining)
37. These
were serious criticisms and the first
scepticism is that those who got it so wrong were given the job of further
site selection without any independent scrutiny.
38. The site selection process is set out in the
Site Selection Report (SSR) (CD52). Stage
1 (SSR Fig 4) and Stage 2 (SSR Fig5) led to a composite map of unconstrained
areas (SSR Fig 6) and these were taken on to Stage 3. The Site Selection Report (SSR) deals with
this Stage 3 process at para 1.7 (p.5).
This concerned the evaluation of the areas not excluded by Stages 1 and
2. These areas were designated with
numbers 1 to 23 as shown on Figure 7, and called ‘Candidate Areas’.
39. These Candidate Areas were then compared in a
rather odd manner: “Comparison of the Candidate Areas was undertaken by
nominating ‘Representative Locations’ within the Candidate Areas and evaluation
of the likely environmental, engineering /operational and cost implications of
potentially siting a PRI in each of the Representative Locations” (para 1.7
SSR). Thus the identification of the
criteria for the choice of the Representative Locations was very important as
was the detail of the judgments made.
Para 1.7 states that “It is important to stress that these areas were
established with a view to enable a balanced evaluation of the comparative
merits of the Candidate Areas to be completed”.
However there was no documented evaluation at all and so it is
impossible to justify the integrity of this important ‘balanced judgment’: see PReid’s evasive answers to this question
beginning at T3/13/24 and over subsequent pages; the point was put again at
T3/17/3; the answer was finally given at T3/17/24 and T3/18/1 that this
assessment has not been provided as to the subjective judgments made (T3/18/4). Moreover the nature of the evaluation is odd
indeed: as para 1.7 states quite clearly of the Representative Locations, “They
do not constitute a pool of potential optimum PRI sites”. Thus obviously the idea was not to
identify a pool of the best sites for comparison purposes through the
identification of the Representative Locations.
NG was not looking for the best sites: see T3/10/25 – “we weren’t
looking for the optimum site in any one area”; T3/12/2 - the Representative
Locations “do not constitute a pool of potential optimum PRI sites”; T3/12/22 –
“the remit within the job is not to find the optimal environmental site”. Indeed it seems that the Representative
Locations exercise was not a site selection exercise at all: “it represented locations that it was felt
had merit. We weren’t choosing the site
at eh time. It was a means of comparing
locations” (T3/20/16).
40. How then were the best sites identified? They were not ever done so. That was not the nature of the exercise (see
references in para 39 above). This is
odd since the one would have thought that the objective, following the 2007
decision, was to find the best of the potential alternative locations for
comparison purposes so that the optimum site could be identified and taken
forward. However this exercise was
simply not carried out. This is the second scepticism. SSR para 1.7 simply states that “the aim was
to ensure that the chosen location [the Representative Locations] would
represent an appropriate balance between local environmental sensitivities such
as existing planting and visibility of the area and accessibility”. Whatever this means, and it is not clear what
it does mean (see T3/21/4-13), it is quite apparent that it was not an exercise
to find the best or even any site (see T3/20/16 – “we weren’t choosing the site
at the time”.). In order to find the
best site for the PRI, or at least a range of potential sites, in accordance
with the 2007 decision, it would have been necessary to carry out some further assessment
to identify the potential optimum PRI sites.
This was never done. Indeed the
objective was not to find the best or optimum sites (see SSR para 1.7 and T3/12/22).
41. It follows therefore that there was not much
merit in assessing the Representative Locations against each other if that, as
it was, was the extent of the site selection exercise.
42. But the Representative Locations were assessed against each other in a
manner that led directly to the ostensible preference for the appeal site. The comparison of the Representative Locations
is documented at SSR Appendix D and Table D1.
43. The problem with this is that inferior sites
within the Candidate Areas could be chosen for comparison purposes. For example, NG Site 16 was selected and cut
into the rising ground rather than sensitively locating a site in the bowl at
the bottom of the fold (as advocated by CPRE) which would allow the site to be
more easily hidden from view at the bottom of the bowl and between established
woodland. The merits of this will have
been observed on the site visit (The CPRE Site 16 was discussed with PReid (at
T3/18/9 – T3/20/16) by reference to as
the field to the north-west of the NG site 16 as shown on NG9, Fig 23 by
reference to the ridge along the red line of the NG Site 16 north-western
boundary (see T3/19/14) – the transcript references to ‘west’ of the
watercourse should of course read ‘east’ of the watercourse and west of the
track as shown on NG9 Figure 23).
43A. So NG were not choosing a site through the
Representative Locations process (T3/20/16); there was no focusing on the best
sites (T3/21/4-11); there were no documented judgments or assessments of the
identification of the Representative Locations (T3/22/25); and no detailed
explanations were provided (T3/23/5).
Furthermore there was no documented assessing the relative merits of
various locations according to ‘the three key parameters’, namely
environmental, engineering and accessibility (T3/23/23-25).
44. This illustrates the serious inadequacy of
the SSR methodology.
45. Nevertheless the SSR ‘findings’ in favour
of sites 2 and 3 were made known and it was then decided that six of the
previously identified sites (Nos 4.5.6.7 &16) “should be further tested
along with Candidate Areas 2 and 3” (SSR para 1.7.4, last para).
46. But NG had reached their conclusions in early
August 2008 (T3/27/7). What neither the
SSR nor NG’s proofs of evidence mention is that, and this is the third scepticism, NG had already made
their decision and published it before the 18th
August 2008
in ‘Fact Sheet 7’ (C16). This made is
plain that SSR Stage 3 “had narrowed the number of potential sites for the new
PRI to two” (inside left page, bottom right), namely sites 2 and 3. That is, the Stage 3 process had been
completed and NG had concluded that there were only the two potential
sites. Not only that, but as at 18th
August 2008
this document was circulated to CAPRI and others, stating that the forthcoming public consultation
were being carried out “to establish whether the community has a preference for
either site” (inside right page, middle first column). Thus NG’s intention was to offer a choice
between the two favoured sites (sites 2 & 3) and no more. There is no mention of any other site. The obvious conclusion is that NG had
completed its work and done enough to establish its view of the merits of it
favoured sites and that nothing else needed to be done. Nevertheless the SSR omits this inconvenient
truth and seamlessly suggests that the Stage 3 findings were taken forward for
further evaluation as though part of a pre-planned and continuous process: see
SSR para 1.7.3 (last para). In stating
that “it was recommended that these two candidate areas should be taken forward
to public consultation prior to further evaluation”, NG was unable to produce
any such documented recommendation or to explain its inconsistency with Fact
Sheet 7.
47. The rejection of all the sites bar 2 and 3
was made without reasons, or any documented comparative reasoned analysis.
48. Nevertheless the SSR ‘findings’ in favour of
sites 2 and 3 were made known and it was then decided that six of the
previously identified sites (Nos 4.5.6.7 &16) “should be further tested
along with Candidate Areas 2 and 3” (SSR para 1.7.4, last para).
48. Moreover, and this is the fourth scepticism, the proposed re-evaluation was to be carried
by the same people and on the same sites, according to similar criteria, as the
previous exercise – and so it was not an open-minded process, particularly in
the light of Fact Sheet 7.
49. Further, site 16 had been already been rejected
in the Stage 3 process but when subsequently dismissed was said to be ‘hard to
call’, which suggests that (a) the first unexplained evaluation was wrong, and
(b) that had the better site within Area 16 (i.e. in the CPRE bowl rather than
cut into the side of the hill) been assessed then a different decision may have
been made. But at no stage did the SSR
process revisit the Candidate Areas to seek to identify a pool of the best or
optimum locations – this exercise was completely absent.
50. In any event, a “final Stage 3 evaluation”
was carried out. This odd description
also suggests that it this was not pre-planned.
But we see, from SSR para 1.7.4 (last para) that SSR chapter 2 (p.14)
describes the rest of the process. Oddly
two of the six sites were immediately dismissed as having “significant
detriment to the landscape character and visual context of the local
area”. As this was a ‘final stage’
evaluation of sites previously considered it is odd that they should have been
included at all for serious further consideration. But at the very least it suggests that even
NG Site 16 was not perceived to have any such ‘significant’ landscape and
visual detriment. Indeed at SSR para
2.8.1 (p.27) the virtues of the site are expressed – contained, integrated,
screened, away from property etc. and para 2.8.3 – no views, mitigated: but it
is disputed that NG Site 16 was situated in the ‘least visually prominent part
of the Candidate Area’ (but this is a matter for the Inspector and the Site
Visit). Nonetheless Site 16 was accorded
lesser impacts than other sites including the appeal site (SSR p31, end of last
para). But the final consideration of
the ‘Recommended Site’ (SSR para 2.9.4, on p34, top para) was that, despite
finding lesser site specific impacts for NG Site 16, this was outweighed by
other factors (principally cost and AGI considerations) in a purely subjective
view that was not documented at the time or the subject of any independent or
external review. The same people who had
originally recommended Site 2 now re-recommended Site 2, and not because it was
inherently a better site in terms of its intrinsic landscape character and
other qualities but because of other considerations, although this is a
conclusion (on the site specific merits) that PReid has sought to revisit in
his evidence now to suggest parity of immediate impact.
51. Furthermore, throughout there has been no
technical objection to site 16 (T1/134/6)
52. None of this inspires confidence in the subjective
views expressed, but those views were all based upon the Representative
Locations and not comparison of the best sites.
SSR para 1.7 (p5, middle page) stated that the Representative Locations
“do not constitute a pool of potential optimum PRI sites”. PReid stated in XX (T/12/22) that their remit
was not to find the optimum or best sites.
Certainly at no stage in the subsequent SSR process were the Candidate
Areas or Representative Locations revisited with a view to identifying the best
or optimum sites. This is a serious
flaw. As PReid repeated (T3/46/3 & 8)
it is not for the objectors or other parties to find the sites but it is for NG
to carry out the exercise to the satisfaction of the Inspector and SSs. The SSR should be rejected on this basis.
53. Finding a pool of the best or optimum sites
for comparison with the appeal site is an important preliminary stage in the
site selection process. Placing a major
industrial installation in the countryside is bound to have a significantly
detrimental impact upon the local landscape, so it is important that a proper
assessment of alternative sites is carried out in order to ascertain (a)
whether those effects can be satisfactorily accommodated at all (as they were
not on the 2007 appeal site), (b) especially when balanced against the strength
of any need arguments, and (c) whether there are available alternative sites
where those effects might be significantly reduced or accommodated in a more
acceptable manner.
54. It is CAPRI’s submission that this process has
not been properly carried out, and that a balanced judgment cannot be made on
the submitted material.
(3) Landscape and Visual Intrusion
55. CAPRI, through KT has given evidence of the sensitivity of the
appeal site in landscape and visual terms together with the corresponding
policy context. The proposed PRI would
cause significant visual harm to the rural landscape on account of the
industrial scale, character and incongruous appearance of the development. This harm would be aggravated by:
(a) The location of the appeal site;
(b) The industrial nature and appearance
of the development;
(c) The proximity of many public
viewpoints, including footpaths and the local highway network;
(d) The adverse impact that industrial
development will have on the attractions of the area to visitors;
(e) The propensity of the development to
create light pollution; and
(f)
The
inability of the proposed landscaping and planting proposals to mitigate such
harm, quickly and reliably, owing to the scale and nature of the proposed development
and the physical characteristics of the surrounding area including local soils
and the local climate. The landscaping
proposals are intrinsically inadequate, relying as they do upon the
introduction of alien landscape features in the extensive bunding (up to
5m). Furthermore the landscaping
proposals are unsatisfactory and are unlikely to provide any effective
ameliorating impact for many years. This
impact is of itself sufficient to justify dismissal of the appeal.
55A. KT’s proof (C21) dealt with
these issues: and see his additional evidence at T6/88/17 onwards.
(4) Conflict with Planning Policy
56. By virtue of the above matters CAPRI submits that there is a conflict
with planning policies which seek to protect the character and appearance of
the countryside and its landscape and visual amenity. The industrial scale and character of the
proposals would be particularly intrusive and damaging to the character and
appearance of the rural area. The
proposals are therefore contrary to the development plan for the area.
57. TBC has led on these policy matters and CAPRI has not sought to duplicate these
matters.
(5) Security
58. CAPRI, mindful of the Inspector’s concerns, does not wish publicly
unnecessarily to illustrate these concerns.
To this end CAPRI refers the submitted documents which encapsulate those
concerns and perceived weaknesses, namely CAPRI’s R6 statement (C1, p4, para
(e)); Carole Magloyden’s written statement to the inquiry dated 10th
May 2010; Carole Magloyden’s written and oral evidence to the inquiry (T6/27/20
onwards); and CAPRI’s written questions to NG which are now attached to NG43. These written questions encapsulate CAPRI’s concerns. NG43 provides little comfort that these site
specific matters have been specifically addressed. Furthermore it is unsatisfactory that CPNI should
not be consulted on the details of the site specific proposal until after the
grant of planning permission. Reliance
upon a generic plan is no substitute for proper detailed consideration and there
seems to be no good reason why this could not be done as part of the initial
design process. It is conceivable that
CPNI’s detailed requirements may result in modifications to the scheme that
would require planning permission and affect the site is such a way that they
should be considered as part of the planning application process rather than
after the planning decision has been taken in principle.
59. The SSs in the 2007 DL (CD25, para 30 – and
the IR (CD26) para 8.95 to 8.102) added the proviso that NG undertake and implement security advice
of the security agencies. Until the
detailed site specific advice of those agencies is known, this requirement is
inchoate. The SSs R6(12) list of issues
in relation to this appeal, at item (g), asks what security issues are raised by the proposed development, and how they have been dealt with. It does not seem to CAPRI, in answer to the latter part, that
these matters have yet been satisfactorily addressed, dealt with or
implemented.
Conclusion
60. For the above reasons CAPRI invite the Inspector to recommend
refusal of the appeal and SSs to dismiss it.
Jonathan
Milner,
Francis Taylor Building,
Inner Temple.
EC4Y 7BY
23 vii 2010