MSP Ross Geer continues to raise questions in the Scottish Parliament about the lack of an EIA. Referring to information unearthed by the Friends of the Firth of Clyde (FoFoC) Ross asked the minister during a session of Portfolio Questions on 6th March ’19 why an EIA was not required for the decommissioning project at Hunterston when there is evidence that both Marine Scotland (MS) and Scottish Natural Heritage (SNH) were of the opinion that an EIA would be required if the project was considered in its entirety.
MSP Mairi Gougeon, Minister for Rural Affairs and the Natural Environment, explained that due to changes in the project which have arisen since the original decision was made, the need for an EIA is currently being reviewed.
Ms Gougeon reiterated her answer when strongly challenged by MSP Kenneth Gibson. Shockingly, in defence of there being no EIA required, Mr Gibson referred to the fact that the £10m grant funding recently awarded by Scottish Enterprise to Clydeport would have to be returned if environmental damage is caused, apparently ignoring the fact that once irreparable damage is done to the SSSI and the surrounding marine environment it is done.
In addition, we understand that the Scottish Environmental Protection Agency (SEPA) has applied an extension until the end of March 2019 to decide upon the Waste Management License (WML) application submitted by Clydeport in October 2018.
The following press release was issued by the office of MSP Ross Greer on 7th March 2019:
Green MSP Ross Greer has welcomed a statement from a minister that, following significant changes to the proposals for oil rig decommissioning off the coast at Hunterston, the Scottish Government are revisiting their decision not to require a full Environmental Impact Assessment. The facility, which would require an estimated half a million tonnes of dredging on a site adjacent to the Southannan Sands, a Site of Special Scientific Interest (SSSI), received planning permission last year. Following Freedom of Information Requests from local residents, it emerged that two government agencies, Marine Scotland and Scottish Natural Heritage, had advised North Ayrshire Council that they would expect a full EIA. NAC decided that a full impact assessment was not necessary, a decision backed by the Scottish Government until this week.
In response to a question from Greer during Wednesday’s (6th March’19) Environment Portfolio Questions, the Minister for Rural Affairs and the Natural Environment, Mairi Gougeon conceded “Since the time the proposal was initially introduced… the proposals that have come forward have substantially changed, so officials are considering whether revised plans… require an impact assessment.”
Ross Greer, Green MSP for the West of Scotland, commented: “I’m delighted to hear the government are reconsidering the need for a full environmental impact assessment, give how much the plans have changed. Decommissioning is a great way to create jobs as we move away from fossil fuels but there’s no need for it to come at a cost to the local environment, residents and workers. There’s certainly no reason not to even bother assessing that risk before such a huge project.
“I hope that the Scottish Government and North Ayrshire Council recognise this and finally listen to what many local residents and experts have been saying all along, that an EIA needs to be carried out and considered in detail. These checks exist for a reason. Two government agencies thought they were a good idea. It’s time to follow through on that advice.”
In December the FoFoC sought the advice of Douglas Armstrong QC and wrote to MS putting forward our serious concerns about flaws in the original decision not require an EIA and outlining the case for reviewing the decision before the Marine Licence application is considered. We are cautiously encouraged to hear that the plans for oil rig decommissioning at Hunterston appear to be being more thoroughly scrutinised at this point in time.
The FoFoC will continue to press all regulatory authorities and all interested stakeholders for an EIA.
The negative EIA screening opinion has been affected by Peelports and planning authorities’ repeated insistence that development will not directly infringe the SSSI.
It is widely accepted that the surveying techniques that are used to determine Ordnance Survey tidelines are inadequate and do not properly represent Mean Low Water springs.
In Scotland, the current Mean Low Water Springs is the legal cadastre. This tideline is used as the Local Authority jurisdictional boundary and is the seaward limit for marine SSSIs.
Surveys of the intertidal zone indicate that the hammerhead quay dredging will take place above MLWS level, within the Local Authority jurisdiction boundary, thus directly impacting the SSSI.
Peelports are committing offences under both the Town & Country Planning and Marine Scotland Acts in providing misleading information in planning documents.
1. Peelports have provided misleading information to the planning and environmental authorities, repeatedly insisting that the development will not infringe the SSSI, in order to achieve a negative EIA screening opinion.
During the EIA screening process Peelports have repeatedly stated that:
“no significant direct impact on SSSI” (Cormack & Fleming 2012)
“avoids encroachment in to the SSSI” (Cormack 2017a & 2017b)
“proposed development is outside the SSSI” (Cormack 2017a & 2017b)
“No direct impacts on the SSSI are anticipated with dredging activity taking place out with the SSSI” (Cormack 2017a & 2017b)
“As the proposed development is out with the SSSI, direct impact is considered unlikely, although post dredging siltation may settle within the SSSI” (Cormack 2017a & 2017b)
“blanking of sensitive benthic communities and the eelgrass beds within the SSSI (>1km away) is therefore considered to be highly unlikely” (Cormack 2017a & 2017b)
Marine Scotland and SNH accept “the proposal could adversely affect natural heritage interests of national importance”, but have provided a negative EIA screening opinion, in part because they were mislead by Peelports and told that the SSSI would not be directly impacted by development. They have stated:
“no dredging within the SSSI” (Bland 2012 ).
“no additional impacts to the SSSI” (Walker 2016).
Using reserved planning powers, NAC planners provided a negative screening opinion, on the basis of information submitted by Peelports. The planning committee and Council are mistaken in their belief that the SSSI will escape direct impacts. They have stated in planning application responses:
The applicant has confirmed that no dredging would occur or be deposited within the SSSI (Yeomans 2018a & 2018b)
The overall integrity of the SSSI would not be compromised (Yeomans 2018a & 2018b)
“No infringement of the SSSI” (Gallagher 2018)
Elected representatives, including Paul Wheelhouse MSP & Kenneth Gibson MSP, have stated that:
“We know the protection of the SSSI is a paramount consideration for Peelports and protection of the SSSI has been included in the feasibility work” (Wheelhouse 2018)
“Marine Scotland state that any potential impacts can be identified and mitigated during the marine licensing process without requiring the support of a full EIA” (Gibson 2018)
“The dredge pocket at the hammerhead quay is designed with a stable 1:6 dredge slope which avoids encroachment into the SSSI” (Gibson 2018).
2. It is widely accepted that historic surveying techniques used to determine OS tidelines are inadequate and do not properly represent Mean Low Water Springs datum.
The Ordnance Survey tidelines that have been adopted by developers, planning and environmental authorities provide an inadequate representation of Mean Low Water Springs around the proposed Hunterston development. This is accepted by marine planners and it is normal practice for developers to survey coastal development sites. All parties are currently relying on proxy based tidal datum generated in the 1960s before the Hunterston construction yard was ever reclaimed from the sea.
Sutherland (2012) conducted extensive research on errors involved in Ordnance Survey tideline mapping. The positional accuracy for tide line capture is constrained by the precision and stability of the feature being measured. Tidal marks that lie on unconsolidated material such as mud or sand may be subject to frequent vertical and horizontal movement resulting from erosion or accretion.
Tidal marks on shallow sloping surfaces are prone to significant changes in horizontal position as a result of a small change in tidal height. (Fitton 2017, Ruggiero 2003 & 2009).
Ordnance Survey reported problems in matching the OS topographic representation of MHW line and MLW line and the UKMO depth area polygon, concluding that their maps do not have a clean and coherent MLW line. Therefore, judgement must be used in analysing even the most recent digital maps which utilise outdated tideline information gathered using what are now considered inappropriate survey techniques (Ordnance Survey; 1882, 2003, 2004, 2006)
Mean Low Water Springs mark, and hence Extent Of the Realm is subject to continuous change but the captured alignment of a tide line (in Ordnance Survey products) is a snapshot on one day. It is not practical to revise tide lines very frequently (Edina A) and must be used with caution.
A variety of modern survey techniques were used to determine errors in Ordnance Survey datum at Millport and indicated considerable changes in datum since the 1962 MLWS OS survey (Seet Poh Aik 2002).
Isostatic re-balance in the Hunterston area has been estimated to be 1.4mm per year (Shennan 2009), which equates to 56 cm that the land has uplifted in the 40-odd years since OS tideline was last surveyed.
There is an extensive body of literature that supports the need for up-to-date mapping of marine boundaries and inadequacy of Ordnance Survey datum to properly describe the Mean Low Water Springs tideline. A recent response from Ordnance Survey to a Marine Scotland consultation highlighted the need for revision of tideline boundaries (Snell 2011). The use of Ordnance Survey maps and datum, by government authorities, are a function of mapping agreements with the Scottish Government and understood that they cannot be relied on to accurately determine the level of Mean Low Water Springs. This is particularly relevant for coastal marine construction proposals in highly dynamic sedimentary environments like Southannan SSSI.
Southannan Sands SSSI is located within Sub-cell 6B2 of the Ayrshire Coastal Management Plan. The policy for shoreline protection recommends an Advance The Line policy and recommended that “The effect of this on the sediment regime within sub-cell 6b2 will require careful study prior to implementing any works, however this area has already been shown to be accreting thus a policy of advance the line is equitable with its present status“. Further modification of the coast in this sub-cell are stated to have: “Potential significant negative impacts to the Southannan Sands SSSI and on local habitats from construction or rehabilitation of hard defences and reclamation of land” (RPS 2018).
It is incredulous for developers to offer, and planners to accept, marine planning proposals and drawings that use historical (1960’s) tideline datum from the era before the Hunterston construction yard was reclaimed from the sea. It is clear to anyone that actually visits the site that the level of Mean Low Water Springs is significantly different from what is being offered by Peelports. Peelports are aware of the real tide levels around Hunterston but have suppressed this crucial information to elicit a negative screening opinion from planning and environmental authorities.
3. It is accepted by Scottish Law Commission and various Acts that Mean Low Water Springs is the tideline used for Local Authority jurisdictional boundaries and is the seaward limit for marine SSSIs.
The cadastre and legal seaward boundary, in Scotland, for Local Authority jurisdiction is the current seaward extension of the Mean Low Water Springs tideline (Hansom 2017).
The seaward planning boundary for marine SSSI’s, in Scotland, is the Mean Low Water Spring mark – equivalent to the Local Authority jurisdictional area (JNCC a&b).
The planning and licensing process that has been offered by Peelports has been progressed to subjugate terrestrial and marine planning regimes but is based on an inaccurate Mean Low Water Springs mark.
NAC have taken authority of land planning issues down to the MLWS tideline and Marine Scotland have stated that, in this case, they will be responsible for planning and licensing issues below the MLWS tideline.
Peelports are aware that the SSSI bounds all sides of construction yard apart from West facing aspect (Fleming 2016).
Peelports accepts that SSSI “may extend into intertidal areas, out to the jurisdictional boundaries of local authorities, Mean Low Water Spring mark in Scotland” (Cormack 2017a & 2017b).
The physical and current Mean Low Water Spring tideline marks the North Ayrshire Council jurisdictional boundary and seaward limit of the Southannan Sands SSSI.
North Ayrshire Council planners are incorrect in their assumption that the 1960’s Ordnance Survey datum tideline forms the local authority jurisdictional boundary. The council have actually created their own precedence and have already accepted the 2018 MLWS jurisdictional boundary in a recent planning application (17/01005/PP). This planning application involved the expansion of an oyster farm below the 1960’s Ordnance Survey datum tideline but was above the current 2018 MLWS tideline. The NAC Report of Handling accepts that the zone for oyster farm expansion forms part of the Fairlie Sands (northern compartment of SSSI) and located within their jurisdictional intertidal foreshore zone.
4. Surveys of the intertidal zone indicate that the hammerhead quay dredging will take place above MLWS level, within the Local Authority jurisdiction boundary, thus directly impacting the SSSI.
There is a high degree of certainty that the proposed hammerhead quay dredge pocket will directly impact the Southannan SSSI. We have conducted numerous surveys in the area. These surveys have used a variety of GPS devices, during different weather conditions (wind direction & air pressure), and have been calibrated using tidal information from the nearby National Tidal & Sea Level Facility tidal gauge at Keppel Pier. We have calculated that 18,385 m2 of SSSI will be directly impacted by the dredge pocket.
Peelports are aware that the SSSI extends out to MLWS and the limit of local authority boundary (Cormack 2017a & 2017b).
Peelports are aware that dredging at hammerhead quay will take place above the MLWS tideline (within NAC jurisdiction and legal boundary of SSSI). This is evidenced in their own reports (Webley 2012, Anon 2018) where they have published the MLWS level for Hunterston area is 0.4m above admiralty chart datum.
5. Peelports are committing offenses under Town & Country Planning and Marine Scotland Acts by providing misleading information in planning and supporting documents.
All the site drawings and other plans submitted by Peelports, in planning applications, are misleading, as they do not show the current Mean Low Water Spring tideline. Readers are left with the assumption that the depicted tideline represents the current NAC jurisdiction and SSSI boundary. Also, they make no reference to the datum that is used on their diagrams.
Source: Peelports planning and supporting documents. Image modified under fair use.
It is common knowledge that the level of Mean Low Water Springs at Hunterston is 0.4m above chart datum. Indeed, Peelports are aware of this and have cited this information in supporting documents. Admiralty Charts of the area indicate the intertidal area to be dredged beside the quay is 0.4-0.5m above chart datum and therefore located within the NAC and SSSI boundary.
The sea level information presented on developer’s technical drawings is incorrect and misleading and does not correspond Hunterston tidal information.
Source: Peelports planning and supporting documents. Image modified under fair use.
Peelports own reports actually indicate the real level of MLWS but information has been suppressed:
The environmental consultant’s Intertidal Survey Report was submitted alongside their Environmental Review to support a ‘negative screening decision’. Scrutiny of these documents clearly indicate that the Developers are aware that MLWS is 0.4m above Chart Datum and that an area of SSSI will be dredged.
On the day (3/5/12) that the environmental consultants chose to conduct their intertidal survey, the lowest the tide that day was predicted and recorded as 0.4m. Normally, intertidal surveys are best conducted during periods of spring tide and no reason was offered in the report why the survey was conducted near the neap tidal range.
Data Source: National Tidal Sea Level Facility. Tidal levels on the day of intertidal survey 3/5/12 not less then 0.4m
The consultants and developers accept that the SSSI “may extend into intertidal areas, out to the jurisdictional boundaries of local authorities, Mean Low Water Spring mark in Scotland” (Cormack 2017a & 2017b)
The consultants provide photographs in the report that show the intertidal sands area immediately beside the quay. The sea level in the report photographs cannot be less than 0.4m and at the level of MLWS on the day of survey.
This means that the sandflats in the photographs are above the level of MLWS and are located within the jurisdictional boundary of NAC and form part of the SSSI. The environmental consultants. Peelports are aware that this area will be destructively dredged.
The Peelports photograph (below) provides smoking gun evidence that the developers are wilfully misrepresenting, and have full knowledge of actual, MLWS sea levels around the Hunterston construction yard and that the SSSI will be dredged, contrary to information they presented to elicit a negative screening opinion.
The developers have modified satellite/aerial imagery in planning and supporting documents that misleads the true extent of the sand flats, and the area of SSSI around the Hunterston construction yard.
Image modified under fair use. Source: Peelports planning and supporting documentation.
The photograph on the left (above) provides a realistic interpretation of MLWS around the development site. The photograph on the right has been overlaid with the inaccurate, Ordnance Survey Datum derived, GIS shapefile that provides misleading representation of sand flats at Hunterston.
Conclusion
It is an offence under the Nature Conservation (Scotland) Act 2004 to intentionally or recklessly damage any natural feature specified in a SSSI notification. The notified features of Southannan Sands SSSI are: Biological, Intertidal marine habitats and saline lagoons: Sandflats. Development threat to these SSSI features and/or threat to the OSPAR listed Priority Marine Features are considered a significant impact of national scope. Any direct threat to the SSSI or PMF’s should trigger a mandatory EIA.
The Developers have continually insisted that there will be no infringement to the SSSI. This was accepted in good faith by planning and environmental authorities and used to justify the negative EIA screening opinions. It is clear to anyone that visits the site during the period of MLWS tides that the proposed dredging activity will directly, and destructively, impact the SSSI. These concerns have been expressed and indicated on site visits with SNH Area & Policy Officers, Chair of Clyde Marine Spatial Planning Partnership, NAC Local Authority Councillor, but no actions have yet been progressed. We have also informed NAC planning and legal officers but have had no response. All public bodies and officers are reminded that under the Nature Conservation Act 2004 they have a duty to further to conservation of biodiversity and prevent destruction of the SSSIs notified features.
It is clear from the developers planning and supporting documents that they are fully aware that the historic MLWS level they have offered on planning documents does not coincide with the NAC jurisdictional and seaward boundary of the SSSI. We have been told by Scottish Government Ministers that “the protection of the SSSI is a paramount consideration for Peelports and protection of the SSSI has been included in the feasibility work”. However, we would like to reiterate to all authorities that Peelports have and continue to suppress key environmental information that has directly influenced EIA screening decisions and continue to systems game the planning process.
We believe there has been and continues to be a systemic and manifest breach of EIA Legislation which is wholly contrary to the Scottish Government’s stern commitment to uphold European environmental legislation. We also believe that there will be breaches of the Nature Conservation (Scotland) Act 2004 and international OSPAR agreements.
Peelports have wilfully offered misleading information, which has without doubt changed the course of EIA screening and planning outcomes. Material misrepresentation and omitting vital environmental information can be considered an offence under various Town & Country Planning, Marine Scotland Acts and related regulations. We are aware that Peelports may now amend documentation for marine license applications. We believe it would be incredulous for authorities to progress or for applications to be further massaged through the application of planning conditions to concord with planning and environmental regulations.
Recommendations
Peelports must be investigated for submitting misleading documentation and for offences under Town & Country Planning Act, Marine Scotland Act, Nature Conservation Act and other regulations.
North Ayrshire Council and/or Ministers must call-in the existing planning applications, reconsider and reapply EIA screening procedures and implement a full Public Enquiry.
Marine Scotland should advise that, due to substantial material change, a full consultative EIA is now required for the whole Hunterston PARC development.
SNH should properly review the natural heritage features at the SSSI. And to include SSSI notification external to the current 2018 MLWS baseline.
Bland, M. (2012) Screening decision under Part 2, Regulation 11 of the Marine Works (EIA) Regulations 2011 (As Amended). Clydeport – Hunterston Port proposed upgrade and extension to existing quay on north of construction yard and associated dredging. Marine Scotland [Online] Available at http://www.fairliecoastal.org/13-03-12-screening-opinion-by-marine-scotland/
EDINA A, Boundary Line – Guidance Notes, edina.ac.uk., [Online] Available at https://digimap.edina.ac.uk/webhelp/os/data_information/os_products/supporting/boundaryline_guidance.htm#coast
Fitton, J.M., Hansom, J.D., and Rennie, A.F. (2017) Dynamic Coast – National Coastal Change Assessment: Methodology, CRW2014/2.
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National Tidal and Sea Level Facility (2017) Definitions of tidal levels and other parameters [Internet]. Available from: (http://www.ntslf.org/tgi/definitions).
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Ordnance Survey (2004) The Positional accuracy improvement programme companion. [Online] Avaliable at http://www.ordnancesurvey.co.uk/
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RPS (2018) Ayrshire Shoreline Management Plan. RPS Group, NAC, SAC [Online] Available at https://www.north-ayrshire.gov.uk/Documents/FloodProtection/ayrshire-smp.pdf
Ruggiero P, Kaminsky GM and Gelfenbaum G (2003) Linking proxy-based and datum-based shorelines on a High-Energy coastline: Implications for shoreline analyses. Journal of Coastal Research Special Issue 38: 57-82.
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Shennan, I. and Milne, G. and Bradley, S. L. (2009) ‘Late Holocene relative land – and sea-level changes : providing information for stakeholders.’, GSA today., 19 (9). pp. 52-53.
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Sutherland, J. (2012) Error analysis of Ordnance Survey map tidelines, UK. Proceedings of the ICE – Maritime Engineering, 165, pp.189–197.
Fairlie Coastal believe that the irrational approach the Developers and Planning Authorities have and continue to take in relation to the scoping, screening, planning and consenting processes constitutes an ongoing and manifest breach of the EIA Directive. This approach is contrary to the stern commitment from Government to uphold and correctly transpose European Law. This strategy is already having a significant environmental impact, fragmenting and polluting the nationally protected SSSI while threatening OSPAR listed habitats and European Protected Species. Public Bodies and Planning Officers are failing their legislative duty to further the conservation of biodiversity through institutional failure to properly affect the environmental screening procdures. This is being exacerbated by pursuing a paper chased mitigation strategy which is being used purposively as a surrogate and to circumvent the EIA Directive and transposed legislation.
(1) There has been a failure to apply ‘Wide Scope and Broad Purpose’ when considering Schedule 1 Paragraph 8(b) EIA Directive project descriptions.
(2) There has been additional failure to apply Schedule 2 EIA project descriptions.
(3) The planning procedure has been purposively subdivided (salami-sliced) to avoid application of the EIA Directive. This restrictive process using delegated powers further deprive the community the opportunity to challenge decisions.
(4) Demolition works must be considered under EIA Directive and recent paper-chased and catch up screening procedures have been used to breach the purpose of the EIA Directive with planners making it up as they go along.
(5) The developer and all authorities (NAC, SNH, SEPA, MS) have failed to fully identify the scale of environmental impacts during the EIA scoping and screening process.
(6) The desk-top environmental appraisal process and inadequate site visits have failed to identify OSPAR listed Priority Marine Features that are currently impacted by developers pollution and under significant environmental risk from further development.
(7) The ‘negative’ screening opinion is contrary to the SNH Site Management Plan that acknowledges the risk of significant environmental impact from further coastal development.
(8) Mitigation proposal during screening procedures were used to frustrate the purpose of the EIA, and serve as surrogate for it. It is contrary to directive to start from premise that although there may be significant impacts, that these can be reduced to insignificance by the application of various conditions.
(9) The SSSI is misrepresented in the CMPP Clyde Assessment and within the marine spatial planning framework. The site is at risk of further fragmentation and being de-notified as the Clyde Marine Plan progresses despite community efforts to highlight issues.
(10) Statutory Consultees CMPP were not informed of screening / planning / license procedures by fellow board member. This avoided environmental scrutiny and prevented CMPP of performing their Statutory function to screen for marine related EIA. This is contrary to ecosystems approach, the ethos that underpins Clyde 2020 Vision and contrary to the function of the marine planning that Ministerial Direction CMPP was granted to effect.
(11) Peelports have exerted an overt influence over the terrestrial and marine planning procedure. This conflict of interest extends to membership of CMPP and relations to Clyde Harbour Authority.
(12) The SNH screening opinion was made without site examination, realisation of environmental impacts, knowledge of marine ecosystems, and relied on the developer’s desk-top environmental appraisal. SNH’s failure to attend to environmental concerns, during the local authorities subjugated planning process, has led to an increase in environmental risk.
(13) There has been manifest and material changes in the development proposal and environmental appraisal since original screening opinion and must be re-considered under Schedule 2 Paragraph 13 (a/b) EIA.
(14) The subjection of Terrestrial and Marine Planning legislation has exacerbated the negative planning issues in developments concerning Integrated Coast Zone Management. Procedural idiosyncrasies between Terrestrial and Marine Planning are being exploited by developers and local authority to circumvent the EIA Directive.
(15) The Petroleum Act EIA legislation is being incorrectly offered by NAC local authority and planning committee as a surrogate for a mandatory Schedule 1 EIA that would otherwise examine decommissioning, construction and operations at the Hunterston decommissioning port
(16) There has been a lack of openness and transparency during whole Hunterston Project process. This has frustrated the communities ability to adequately challenge aspects of planning process and leading to possible time barr on review or ministerial appeal.
