NORTH AYRSHIRE COUNCIL
5th December 2018
Title: Hunterston Construction Yard – SEPA Consultation Response
Purpose: To agree the consultation response on behalf of the Council to SEPA with respect to the application for a waste management license at Hunterston Construction Yard.
Recommendation: The Planning Committee agree the consultation response attached at Appendix 1.
1.1 SEPA has consulted the Council as Planning Authority on an application for a Waste Management Licence at Hunterston Construction Yard. SEPA’s guidance advises that the planning function and the licensing function should complement each other, rather than duplicating controls.
1.2 On 25th April 2018 the Planning Committee resolved to grant planning permission to three applications, mainly: i)Application under Section 42 of the Town and Country Planning(Scotland) Act 1997 to vary Condition 1 of Planning Permission ref16/00268/PP to allow use of the site for decommissioning of large marinestructures (Ref.17/01273/PP); ii)Erection of caisson gates and subsequent removal of existing bund (Ref.18/00132/PP); and, iii)Replacement and enlargement of existing jetty (Ref. 18/00134/PP).
1.3 The applications were granted subject to conditions.
1.4 In order to implement the planning consent the applicant, Clydeport Operations Limited, must apply to Marine Scotland and SEPA for certain licenses relating to the construction works and general operations on site.
1.5 On 3rd October 2018 Clydeport Operations Limited applied for a Waste Management Licence under the Environmental Protection Act 1990 (As amended) and Waste Management Licensing (Scotland) Regulations 2011. SEPA has issued a consultation to North Ayrshire Council.
1.6 This report summarises the Councils response to SEPA with respect to the consultation.
2.1 Planning permission was granted for the decommissioning of large marine structures at Hunterston Construction Yard. The use would result in the production of waste from decommissioning marine structures. In order to operate the site the applicant requires a Waste Management License from SEPA. Whilst Clydeport had proposed to seek a Pollution Prevention and Control (PPC) permit it is understood that SEPA has taken the decision that the decommissioning works would fall below the level of activities that would require a PPC and SEPA has therefore advised Clydeport to apply for Waste Management License.
2.2 As part of the Waste Management License (WML) procedure SEPA has consulted North Ayrshire Council on the content of the application and the activities on site.
2.3 The WML application contains the application form, supporting documentation in the form of a Certificate of Incorporation for Clydeport, a lease for the site, the approved planning application forms, a Working Plan for the site and the Ports Emergency Plan.
2.3 SEPA’s guidance states that the planning system controls the development and use of land. It therefore has an important role to play in determining the location of development including waste management and disposal facilities. Planning controls are not an appropriate means for the detailed control of pollution from waste management facilities. This should always be done by SEPA through the licensing system. In the same way, licence conditions should not cover issues which are fundamentally about development and land use, except where there is not any planning permission. Important issues in the context of this consultation response would be the contents of the proposed Working Plan. The Working Plan contains details of the general operation of the site including operating hours, exported waste types, waste storage, decommissioning operations, pollution control and emergency procedures.
2.4 The application states that the proposed operation hours would be Monday to Friday 7am to 7pm and Saturday 7am to 1pm. A list of the expected types and annual quantities of waste to be handled by the site is outlined within the Working Plan as are the quantities that could be stored on site. Members should note that the values provided are annual rather than daily quantities. The expected start date is as soon as the WML is granted.
2.5 The WML was submitted to SEPA on 3rd October 2018. A consultation request was issued by SEPA on 16th October 2018. Whilst there is a deadline to respond within 28 days of the consultation request SEPA has agreed to an extension of the consultation period until 6th December 2018.
2.6 As part of the Council’s internal consultation process, Planning Services has consulted with Environmental Health, who offer the following response: The Hunterston Marine Services Centre Working Plan document dated 3 October 2018 submitted with the application confirms in Section 6.5 Noise Control “All site operations shall be carried out so they do not give rise to nuisance noise beyond the site boundary”. The relevant planning permission relating to noise emission from the site requires “The rated noise level, as defined in BS 4142:2014, from activities associated with the construction, repair and decommissioning of large marine related structures, permitted under Condition 1, must not exceed the background noise level by 5dB(A) or more at the curtilage of any noise sensitive property. For the avoidance of doubt this condition would not apply to any operations that are licensed by SEPA or Marine Scotland” It is recommended that the inclusion of a similar condition be imposed on any waste management licence for site activities licensed by SEPA in order that the operations do not give rise to nuisance noise beyond the site boundary. There is no objection to the application provided SEPA is satisfied that the limits set for any relevant discharges to air, land and water will be protective of the environment. The planning permission (Ref. 17/01273/PP) contains a number of conditions including condition 3, quoted above. Whilst the applicants Working Plan does outline a number of measures to avoid nuisance noise (Section 6.5) it would be appropriate to request that SEPA place a similar restriction on noise from the site to protect amenity.
2.7 It is noted within the Working Plan that the operator proposes to export scrap metal from the Hammerhead Quay or the Hunterston Coal Jetty with all other wastes exported by sea, rail or road. The planning permission controls, under condition 1, all operations within the existing dock and quay. It does not extend to the areas identified within the Hunterston Coal Yard or Jetty.
2.8 No details regarding the export of materials by road have been provided. The traffic implications on the road network would be assessed by Transport Scotland, as Trunk Road Authority. However in the interests of residential amenity, it would be recommended that the Council seek the application of a condition, ensuring that any Heavy Goods Vehicles or other larger vehicles transporting waste from the site are subject to an approved routing agreement.
2.9 Members will be aware of a number of objections to the Waste Management License. These objectors have been referred to SEPA so that they may consider the concerns being raised.
3.1 Subject to the proposed Waste Management License and the contents of the applicants Working Plan it is recommended that North Ayrshire Council in the response to SEPA state that certain aspects of the waste export do not benefit from planning permission and request that should the WML be granted the following conditions be applied:
(i) That the rated noise level as defined in BS 4142:2014, from activities licensed by SEPA must not exceed the background noise level by 5dB(A) or more at the curtilage of any noise sensitive property. Reason: To ensure that the site activities licensed by SEPA do not give rise to nuisance noise beyond the site boundary.
(ii) That any vehicles exporting waste materials by road shall be subject to a routing agreement to be approved by SEPA in conjunction with North Ayrshire Council. Reason: In the interests of amenity and road safety.
(iii) That no waste materials from the site shall be exported via the Hunterston Coal Yard or Jetty. Reason: To ensure the Waste Management License complies with the approved planning permissions.
3.2 A copy of the draft response is provided with Appendix 1. 4.
Financial: The Consultation has no financial implications out with normal budgetary provisions.
Human Resources: The matters raised can be addressed within existing staff resources
Legal: Environmental Protection Act 1990 (As amended) and Waste Management Licensing (Scotland) Regulations 2011
Equality: Children and Young People: N/A
Environmental & Sustainability: To ensure environmental practices are in line with appropriate regulation.
Key Priorities: The consultation response supports the Council Plan priority – “Protecting and enhancing the environment for future generations.”
Community Benefits: N/A
Karen Yeomans Executive Director Economy & Communities For further information please contact Ross Middleton, Planning Officer on 01294 324379
Background Papers N/A
Executive Director (Economy & Communities): Karen Yeomans ECONOMIC GROWTH
Head of Service: Caitriona McAuley Cunninghame House, Irvine KA12 8EE Tel: 01294 310000 www.north-ayrshire.gov.uk
Your Ref: W/M/L/1173385 Our Ref: RM/17/01273/PP
6th December 2018
Registry Angus Smith Angus Smith Building 6 Parklands Avenue Eurocentral Holytown ML1 4WQ
APPLICATION FOR WASTE MANAGEMENT LICENSE APPLICATION ID: WML/L/1173385
APPLICANT: CLYDEPORT OPERATIONS LIMITED LOCATION OF SITE: HUNTERSTON MARINE SERVICES CENTRE
Thank you for your consultation and for the extension of time in which to submit comments.
Advice to SEPA
The Council would have no objection to the license, provided that the proposals to utilise Hunterston Coal Jetty are omitted from the license and that SEPA is satisfied that the limits set for any relevant discharges to air, land and water would be protective of the environment.
The Council has considered the detail of the proposals and can provide the following comments.
On 25th April 2018 North Ayrshire Council as Planning Authority granted planning permission for a variance of Condition 1 of Planning Permission ref 16/00268/PP, to allow use of the Hunterston Construction Yard for decommissioning of large marine structures (Ref.17/01273/PP).
The Council would note that the applicants form contains a copy of the planning consent.
The applicants Working Plan refers to the export of materials via sea, rail or road with proposals to export waste through Hunterston Coal Jetty as well as the docking of structures at the jetty prior to their movement to Hunterston Construction Yard. The Council would advise that planning consent does not exist for the use of the Hunterston Coal Jetty in association with the decommissioning site at Hunterston Construction Yard and would raise objection to any operations associated with the Waste Management License that proceed without the benefit of planning permission.
The export of waste materials via the road may be acceptable subject to information with respect to vehicle movements, type of vehicle and transport routes. The Council would advise that any waste materials being exported from the site by road are minimised and where unavoidable, are subject to a routing agreement.
The Hunterston Marine Services Centre Working Plan document dated 3 October 2018 submitted with the application confirms in Section 6.5 Noise Control “All site operations shall be carried out so they do not give rise to nuisance noise beyond the site boundary”.
The relevant planning permission relating to noise emission from the site requires “The rated noise level, as defined in BS 4142:2014, from activities associated with the construction, repair and decommissioning of large marine related structures, permitted under Condition 1, must not exceed the background noise level by 5dB(A) or more at the curtilage of any noise sensitive property. For the avoidance of doubt this condition would not apply to any operations that are licensed by SEPA or Marine Scotland”
The Council would recommend the a similar condition be imposed on any Waste Management Licence for site activities licensed by SEPA in order that the operations align with the planning permission and ultimately do not give rise to nuisance noise beyond the site boundary.
Should SEPA be minded to grant the proposed Waste Management License, North Ayrshire Council would highlight that the proposed Export procedures outlined within the Working Plan do not benefit from planning permission. The Council therefore request that the following conditions be applied to any license:
(i) That the rated noise level as defined in BS 4142:2014, from activities licensed by SEPA must not exceed the background noise level by 5dB(A) or more at the curtilage of any noise sensitive property.
To ensure that the site activities licensed by SEPA do not give rise to nuisance noise beyond the site boundary.
(ii) That any vehicles exporting waste materials by road be subject to a routing agreement to be approved by SEPA in conjunction with North Ayrshire Council..
In the interests of amenity and road safety.
(iii) That no waste materials from the site shall be exported via the Hunterston Coal Terminal.
To ensure the Waste Management License complies with the approved planning permissions.
Should you have any queries regarding the contents of this letter please do not hesitate to contact James Miller on 01294 324315.
Yours Sincerely Executive Director (Economy & Communities): Karen Yeomans Caitriona McAuley Head of Service (Economic Growth)
- 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.
- 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.
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.
- 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.
- 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.
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.
- 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.
Anon (2018) Feb 2018 Hunterston Construction Yard: Coastal Assessment. Enviro Centre [Online] Available at http://www.fairliecoastal.org/18-00132-pp-coastal-assessment/
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/
Cormack, E. (2017a) Jan 2017 Draft Hunterston Construction yard Environmental Review. Enviro Centre [Online] Available at http://www.fairliecoastal.org/17-01-17-draft-environmental-review-by-enviro-centre-ltd-obtained-under-foi/
Cormack, E. (2017b) Feb 2017 Hunterston Construction Yard Environmental Review. Enviro Centre [Online] Available at http://www.fairliecoastal.org/09-02-17-envirocentre-ltd-environmental-review/
Cormack, E., Fleming, C.G. (2012) Clydeport – Hunterston Port, Proposed upgrade and extension to existing quay on North of construction yard and associated dredging. [Online] Available at www.fairliecoastal.org/27-01-12-request-for-screening-opinion-from-enviro-centre-ltd-to-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.
Fleming, C.(2016) Briefing document from Enviro Centre Ltd to Marine Scotland. [Online] Available at
Gallagher (2018) Full NAC Council Meeting: Answers to Councillors Questions. [Online] Available at http://www.fairliecoastal.org/19-09-18-meeting-of-nac-council-answers-to-questions/
Gibson, K. (2018) Leaflet endorsing Peelports plans distributed to Fairlie community. [Online] Available at http://www.fairliecoastal.org/14-09-18-kenneth-gibson-msp-hunterston-parc-propaganda-leaflet/
Hansom, J.D., Fitton, J.M., and Rennie, A.F. (2017) Dynamic Coast – National Coastal Change Assessment: Coastal Erosion Policy Context, CRW2014/2. [Online] Available at http://www.dynamiccoast.com/files/reports/NCCA%20-%20Coastal%20Erosion%20Policy%20Context.pdf
JNCC A, Guidelines for the selection of biological SSSI’s [Online] Available at http://jncc.defra.gov.uk/pdf/SSSIs_Chapter01.pdf
JNCC B, Defining ASSI/SSSI with ‘Marine Biological Components’ and setting out a process for determining their contribution to the UK MPA network. [Online] Available at http://jncc.defra.gov.uk/pdf/Defining%20SSSIsASSIs%20with%20marine%20components_final.pdf
National Tidal and Sea Level Facility (2017) Definitions of tidal levels and other parameters [Internet]. Available from: (http://www.ntslf.org/tgi/definitions).
Ordnance Survey (1882) OS 307 Instructions to Surveyors. Ordnance Survey, Southampton, UK.
Ordnance Survey (2003) ISB Project 195 – ICZMap Project Manager’s project completion report. Pp44.
Ordnance Survey (2004) The Positional accuracy improvement programme companion. [Online] Avaliable at http://www.ordnancesurvey.co.uk/
Ordnance Survey (2006) MasterMap User Guide. Version 6.1.1, April, 2006. [Online] Available from http://www.ordnancesurvey.co.uk/.
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.
Ruggiero P and List JH (2009) Improving accuracy and statistical reliability of shoreline position and change rate estimates. Journal of Coastal Research 25(5): 1069-1081.
Seet Poh Aik (2013) Accurate low-water line determination: The influence of Malaysia’s legislation and coastal policies on maritime basline integrity. MSc(res) Thesis, Glasgow University.
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.
Snell (2011) Formal Response by Ordnace Surevy to Scottish Government Consultation. [Online] Available at www.gov.scot/resource/doc/349075/0116654.pdf
Sutherland, J. (2012) Error analysis of Ordnance Survey map tidelines, UK. Proceedings of the ICE – Maritime Engineering, 165, pp.189–197.
Walker, G. (2016) SNH response to NAC Planning Application 16/00268/PP. [Online] Available at http://www.fairliecoastal.org/16-00268-pp-snh-response/
Webley (2012) Hunterston Quay Remedial Works: Eelgrass and Horse Mussel Intertidal Survey. Enviro Centre [Online] Avaliable at www.fairliecoastal.org/09-12-eelgrass-and-horse-mussel-intertidal-survey/
Wheelhouse MSP, P. (2018) Letter from Paul Wheelhouse MSP to Ross Greer MSP. [Online] Available at http://www.fairliecoastal.org/27-06-18-letter-from-minister-paul-wheelhouse-to-ross-greer-msp/
Yeomans, K. (2018a) NAC Planning Application decision and responses. NAC [Online] Available at http://www.fairliecoastal.org/17-01273-pp-application-approved-subject-to-conditions/
Yeomans, K. (2018a) NAC Planning Application 17/01273/PP: Decision and Responses. NAC [Online] Available at http://www.fairliecoastal.org/17-01273-pp-application-approved-subject-to-conditions/
Yeomans, K. (2018b) NAC Planning Application 18/00134/PP: Decision and Responses. NAC [Online] Available at http://www.fairliecoastal.org/18-00134-pp-application-approved-subject-to-conditions/
The Friends of the Firth of Clyde believe that EIA Legislation and due process has been corrupted and Hunterston PARC Oil-Rig Decommissioning Project must be realigned with the EIA Directive and transposed legislation. The approach that Peelport Developers and Planning Authorities have taken, 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 with direct impact to OSPAR listed habitats and European Protected Species. Public Bodies and Planning Officers are failing their legislative duty to further the conservation of biodiversity through non-implementation of robust environmental screening processes, pursuing a paper chased mitigation strategy that is being purposively used as a surrogate for a full Schedule EIA investigation.
1.2 The planning procedure has been purposively subdivided (salami-sliced) to avoid application of the EIA Directive. This restrictive process, using delegated powers, further deprives the community the opportunity to challenge decisions.
1.3 Demolition works must be considered under the EIA Directive; recent paper-chased screening procedures have been used to breach the purpose of the EIA Directive.
1.4 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.
1.5 The NAC Planners and Planning Committee have made environmental screening and other decisions without consulting their own Biodiversity Officer during any of the planning or screening procedures. Those charged with making decision are largely unaware of their statutory responsibilities with respect to enhancing and promoting biodiversity.
1.6 The desk-top environmental appraisal process and inadequate site visits have failed to identify OSPAR listed Priority Marine Features that are currently impacted by developer’s pollution, and are at significant environmental risk from further development.
1.7 The ‘negative’ screening opinion is contrary to the SNH Site Management Plan that acknowledges the risk of significant environmental impact from further coastal development.
1.8 Mitigation proposals during screening procedures were used to frustrate the purpose of the EIA, and serve as surrogate for it. It is contrary to the Directive to start from the premise that although there may be significant impacts, these can be reduced to insignificance by the application of various conditions.
1.9 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.
1.10 Statutory Consultees CMPP were not informed of screening / planning / license procedures by fellow board members Peelport, NAC & SNH. This avoided environmental scrutiny and prevented CMPP from performing their Statutory duty to screen for marine related EIA. This is contrary to the ecosystems approach and ethos that underpins Clyde 2020 vision.
1.11 Peelports have exerted an overt influence over the terrestrial and marine planning procedure. This conflict of interest extends to membership of CMPP and links to the Clyde Harbour Authority.
1.12 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 increased environmental threats.
1.13 There has been manifest and material changes in the development proposal and environmental appraisal since the original screening opinion. Consequently, this must be re-considered under Schedule 2 Paragraph 13 (a/b) EIA.
1.14 The subjugation of Terrestrial and Marine Planning legislation has exacerbated the negative planning issues that are accepted to exist in Integrated Coast Zone Management. Idiosyncrasies in procedure between Terrestrial and Marine Planning are being exploited by developers and the local authority to circumvent the EIA Directive.
1.15 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. A Petroleum Act EIA will not be enforced to examine decommissioning, construction and operations at the Hunterston decommissioning port and is being used to frustrate a mandatory EIA by NAC.
1.16 There has been a lack of openness and transparency during the whole Hunterston process, frustrating the community’s ability to adequately challenge aspects of planning process and leading to a possible time bar on review or ministerial appeal.
1.17 Some FOI requested documents have been withheld or lost by the Authorities. We believe if these documents are related to Screening and the associated due process, they may be highly relevant to our concerns and should be released to us.
1.18 We are dissatisfied that public money has been awarded by the Decommissioning Challenge Fund to advance Hunterston PARC proposals without a stipulation that a full EIA must be conducted.
Wide Scope and Broad Purpose
Schedule (Annex) 1 Paragraph 8(b): Trading ports, piers for loading and unloading connected to land and outside ports (excluding ferry ports) which can take vessels over 1350 tonnes. (REF)
The Developers interpretation of Paragraph 8(b) from their ‘Clarification to Request for Screening Opinion’ correspondence to NAC Planning states:
“The development is not and would not be a trading port which this paragraph is intended to address, it would be a construction and decommissioning yard and the proposed activity is a recovery, reuse and recycling operation, not trading goods”
Contrary to the Developer’s insistence that Paragraph 8(b) is only meant to address ‘Trading ports’, the logical semantics of this paragraph 8(b) clearly address:
- Trading Ports;
- Piers for loading connected to the land;
- Piers for unloading connected to the land;
- Outside ports (excluding ferry ports) which can take vessels over 1350 tonnes.
2.2 The Courts have consistently held that the EIA Directive must be interpreted as having a ‘wide scope and broad purpose’ (Kraaijveld (Dutch Dykes) Case C-72/95). An example of how the ‘wide scope and broad purpose’ applies is found in the Court of Appeal judgment relating to a planning proposal to construct a storage and distribution facility (Goodman and another v Lewisham London Borough Council  EWCA Civ 140). The planning authority took the view that as such development was not specifically described in either the Directive or Regulations, there was no need to consider an EIA. However, following legal challenge, the Court of Appeal quashed the application because they said that the Annex description goes far wider than the normal understanding. They also held that the planning authorities decision ‘not to examine the reach of Annex descriptions’ was ‘outside the range of reasonable responses’.
2.3 The project descriptions are exactly the same for The Town and Country Planning EIA and the Marine Works Regulations EIA. North Ayrshire Council and Marine Scotland’s failure to assign this project to Paragraph 8(b) is wholly contrary to the ‘wide scope and broad purpose’ court rulings and failure to examine the interpretation of project descriptions is unreasonable.
2.4 The true extent of the Hunterston PARC project and specific purpose of hammerhead pier development were concealed from the Planning Authorities during screening process but the material changes since these decisions were made requires scrutiny.
2.5 I have used the Annex 1 Paragraph 8(b) as an obvious example but the interpretation of project descriptions, in both EIA Schedule 1 & 2, has been treated in a similar way at the bequest of the Developer towards NAC and also Marine Scotland. These include:
- Schedule 1 Paragraph 5: Installations for the extraction of asbestos and for the processing and transformation of asbestos and products containing asbestos.
- Schedule 2 Paragraph 4: Production and processing of metals
- Schedule 2 Paragraph 10: Infrastructure projects
- Schedule 2 Paragraph 13: Any change to or extension of development of a description mentioned in Schedule 2 where that development is already authorised, executed or in the process of being executed.
- Schedule 2 Paragraph 14: Any change or extension of development of a description mentioned in Schedule 1 where that development is already authorised, executed or in the process of being executed.
3.0 The ‘Planning Consent Process offered by the Developer has been progressed using multiple Local Authority planning consents:
- Application (16/00268/PP) to delete Condition 1 of planning permission ( 11/00230/PPM) to remove the temporary restriction on the use of the site at Hunterston Constrcution Yard.
- Application for variation of condition No.1 of Planning Permission (16/00268/PP, 17/01273/PP Large Marine Structures).
- Consents for improvements to quay (18/00134/PP),
- Creation of caisson dock gates (18/00132/PP) and shore based infrastructure.
3.1 Clear evidence of ‘salami slicing’ is contained in Enviro Centre’s letter of 10 January 2018 to North Ayrshire Council (obtained under FOI). This letter confirms NAC’s agreement that subdivision of Peel Port’s planning application should be instigated to ease the passage of the consent without EIA. Such collusion is illegal under current environmental legislation.
3.2 The EU Court of Justice approach to environmental protection where projects were being sub divided involves is illustrated in case C1-42/07 Ecologistas en Accion-CODA v Ayuntamineto de Madrid  PTSR 458. Where the planning authorities sub-divided a project into 15 independent sub projects, only one of which triggered an EIA. The court rejected the Developer’s argument stating that the project was contrary to the ‘very wide purpose of the Directive’ and should not fall outside its scope simply because the Annexes do not specifically refer to that particular kind of Project.
3.3 It has only been since the variation in planning to decommission large marinestructures (NAC 16/00268/PP, 17/01273/PP), and the release of the Developer’s marketing video (REF), that the true purpose of the pier development, via marine license process, and larger Project, are now being drip-fed to the Public. There is little doubt that the small pier at the construction yard is being redesigned and will involve intermodal trading, heavy lift, loading, unloading, storage and all other activities involved with operating a port complex that it is a trading port that will be involved in loading and unloading oil rigs and other large marine structures.
3.4 The splitting-up of Hunterston planning and licensing permissions is too restrictive a process and deprives a large number of affected people the opportunity to challenge decisions (Karoline Gruberv Unabhängiger Verwaltungssenat für Kärnten (C-570/13) Env LR D6). This ‘strategy’ has also prevented statutory marine planning consultees, having any input and restricted access to the EIA Scoping, Screening and Clarification decisions. The authorities have a duty to ensure a ‘wide access to justice’ even when making contentious decisions during early stages of the EIA Directive. (R. (on the application of Simmons) v Bolton MBC  EWHC 2729 (Admin)). And failing accepted procedures all affected parties should be shown courtesy and be entitled to a review. Liechtensteinische Gesellschaft fur Umweltschutz v Gemeinde Vaduz (Case E-3/15)  3 CMRL 15,
3.5 We believe it is a matter of urgency, interest, public record and with reference to (Mellor v Secretary of State for Communities and Local Government (C-75/08)  P.T.S.R. 880.), that the Competent Authorities have a responsibility to provide the reasons for underlying determinations. We accept the recent momentum, consultation and attempts to ease legislative burden and transposition of the EU EIA Directive into member state legislation. However the EIA Directive is explicit and should not be sacrificed by the subjugation of projects through the planning and licensing process.
Demolition and Site Preparation
3.6 The courts have defined that demolition and decommissioning works as a ‘phase’ of a ‘project’ and concluded that demolition works come within the scope of EIA Directive and constitute a project within the meaning of Article 1(2) thereof. (C-50/09, paragraphs 86-107). They concluded that demolition works cannot be excluded from the scope of national legislation and are within the Projects context in the EIA Directive.
3.7 Environmental pollution from the preparation and current ‘demolition phase’ of the Hunterston Project is already occurring over the SSSI, on Protected Shellish Waters, and poses a significant environmental impact to OSPAR listed bio-reef features. The pollution is within reach of European Protected Species, Cumbraes Marine Consultation Area and plagues our community and beaches. Screening for an EIA to do with demolition was submitted after demolition works actually started. There are hundreds of witnesses and evidence to testify that coal pollution was impacting the marine environment. The screening opinion was quickly paper-chased though delegated planning powers in an attempt to satisfy environmental requirements.
3.8 Demolition works are considered a phase of project under the Directive. It is contrary to the Directive to split up projects so they are less easily defined. Paper-chased, screening procedures for sub-projects cannot be used as a surrogate for an EIA and constitutes a manifest breach of legislation.
Significant Environmental Impact
4.0 Case law supports the Community’s opinion that this development should proceed with a mandatory Schedule 1 EIA. However for any avoidance of doubt we offer evidence that EIA Schedule 2 Directives test for ‘Significant Environmental Impact’ is achieved.
Site of Special Scientific Interest
4.1 The Project site is located on reclaimed land that has already reduced the area available for SSSI by up to 40%
4.2 Further fragmentation, environmental degradation and cumulative impacts that are occurring on the SSSI include but are not limited to: (1) Nuclear outflow pipe effects and related activities, (2) Non native oyster cultivation, (3) Persistent and ongoing pollution from Hunterston coal terminal, (4) Commercial bait and shellfish collection.
4.3 The Hunterston PARC Project proposes to remove an undetermined amount of capitol and maintenance dredge material from within, on the boundary and around impact zone of the SSSI. The Developers estimate that 200,000m3 of sand will be removed from the dredge pocket around the hammerhead quay and caisson gate. This equates to roughly 306,000 tonnes of dry sand. A staggering amount when you realise that this is 8800% more than the existing maintenance license allows.
4.4 The developers suggest the proposed 1:6 dredge slope will limit slumping from sand flats into dredge pocket. However, this slope will restrict the dynamic movement of sediment, which in turn will alter the sediment composition and related biotope communities on the SSSI.
4.5 A recent SNH survey (REF) of Southannan SSSI has indicated that the sandflats next to the development have an exceptionally high diversity of taxa (48 taxa per 0.08m2) and contains a heterogeneous and unique assortment of biotopes that are depend on sediment composition, grain size and sorting. The removal of material from the system will affect the biomass and diversity of animals on the sands.
4.6 We believe it is incredulous for anyone to suggest that there will be little environmental impact from altering the structure and removing the ‘sand flat’ feature the SSSI is actually designated for. The sediment dynamics on this site are critical for the ‘newly discovered’ Priority Marine Features mentioned below.
4.7 The boundary of a marine SSSI is a function of the Local Authority boundary at Mean Low Water Springs. As far as biological and system dynamics are concerned this is an arbitrary boundary and does not encapsulate or protect the sedimentary features and dynamic processes that fuel the SSSI. As such, the designation, it is not fit for purpose and in light of recent discovery of PMF’s and potential presence of others in the sub littoral requires more robust and emergency protection from imminent destruction.
4.8 The quasi designated Cumbraes Marine Consultation Area missed the grade during MPA designation cycle and also fell short during the NGO driven Nationally Important Marine Areas assessment. Our community believes that the marine area around Cumbraes including the SSSI’s deserve to be reassessed and could benefit distant and other protected areas if there was motivation to re-designate the areas as a Research & Development MPA.
Priority Marine Features in the SSSI
4.9 So far we have identified 4 OSPAR threatened / in-decline Priority Marine Features in the SSSI, 4 BAP Priority Marine Features & 3 Annex 1 Habitats Directive features. Apart from dwarf eelgrass these features have never been identified by SNH.
4.10 The SSSI contains large expanses (>50 ha) of dwarf eelgrass beds (Zostera noltii), of both local and national importance. Eelgrass beds are listed as a Priority Habitat in UK, Scottish and Local Biodiversity Action Plans. They are susceptible to disturbance, sedimentation, turbidity, marine and hydrocarbon pollution and are at risk from the developments and operations proposed for this site. The Developer’s desk-top environmental appraisal has excepted that there is likely to be smothering of eelgrass. Seagrass beds are on Annex 1 of Habitats Directive, OSPAR Threatened/decline and BAP Priority Habitat. As such any development that threatens them must be considered significant impact of national scope.
4.11 The SSSI contains a rather large biogenic reef structure that is clearly visible on Google Earth. The reef is composed of native oysters and living maerl. This structure is located within 100 metres of the proposed dredge pocket and is in imminent danger of destruction. It is highly unlikely that a still-to-be-produced paper-chased mitigation plan will ameliorate this impact. Oyster and maerl beds are both Priority Marine Features, OSPAR threatened/declining & BAP Priority Habitat. Maerl beds are also listed on Annex 1 Habitats Directive. As such any development that threatens them must be considered a significant impact of national scope.
4.12 The SSSI contains blue mussel beds on sediment, distinct from the Oyster/Maerl reef biotope described above. Again, this feature is highly sensitive to disturbance, sedimentation, turbidity, marine and hydrocarbon pollution and is at risk from the developments and operations proposed for this site. Blue mussel beds on sediment are listed on Annex 1 of the Habitats Directive, OSPAR threatened/ declining habitat & BAP priority habitat. As such any development that threatens them must be considered significant impact of national scope. Enviro Centre have concealed the presence of these features in the Eelgrass / Blue Mussel survey they have presented as part of desk top appraisal strategy.
4.13 The Community believe that other ‘listed’ habitats and species are present in the boundary of the SSSI. This sublittoral zone is within the Impact Zone of the SSSI and will be destructively impacted by the dredging activities mentioned above. These definitely include kelp and seaweed communities on soft sediment, and maybe the location of maerl and oyster beds, zostera marina beds, fan and horse mussel beds.
European Protected Species
4.14 The waters around Hunterston are home to resident cetacean species. A resident solitary common dolphin has a home range within 500 metres of the construction yard site and will be severely impacted and disturbed by percussive pile driving and proposed operational activities at Hunterston PARC. Clyde Porpoise CIC is working in partnership with the Sea Mammal Research Unit at St Andrews University and is committed to a long term study of the density, abundance and conservation status of harbour porpoise in the Clyde.
4.15 A postgraduate student has recently completed an MSc thesis that indicates the local waters are indeed a hot spot for this animal, with comparable densities to other high density areas of the newly created Porpoise Special Area of Conservation. Our data indicates that this area of the Clyde is an important calving and nursery area for this species.
4.16 Although originally concealed by the developer, it has now become evident that there will be extensive ‘percussive’ pile driving at the construction yard quay and caisson gate sites. Information supplied by the developer during the scoping and screening process provided misleading information and extended the impression that it was a simple modification to the quay, using sheet piling that utilises quieter vibration techniques. It is now known that over 120 percussively installed piles will be used to construct what is in effect a complete redesign and new quay structure. This intentional omission constitutes a material misrepresentation of constructional techniques and misrepresents true levels of acoustic impact, making the underwater noise assessment superfluous. As such it must be considered a material change since the original screening opinions were provided and project should be subject to re-screening as described in Schedule 2 Paragraphs 13/14 of the EIA Directive.
4.17 The underwater noise assessment supplied the Developer bases results and noise thresholds on 50 pile strikes per day. It is common knowledge that the ground around the Hunterston coal terminal and construction yard is difficult to set piles into. It is highly likely that it will take more than 50 strikes to set each pile and the operation will last for an undetermined amount of time. The underwater noise assessment is based on one pile being hammered in at a time and makes no allowance for other cumulative noise impacts or multiple pile drivers operating simultaneously.
4.18 There will be considerable and long term acoustic impacts from construction and ongoing under water noise pollution during the operation of the oil rig decommissioning port. If the EPS licence process is applied robustly, it is clear that this development proposal will fail the recommendations in the EPS Guidance Notice. There are no overriding, exceptional social or economic reasons for locating this decommissioning port at Hunterston. This should not be considered as justification in the EPS license procedures.
4.19 The Local Authority planning department set as a condition that developers must conduct extensive marine mammal surveys. The developer has not instigated this although construction works are presumed to start in Q1 2019.
4.20 The exact nature of pile driving activities and site investigation reports have not been made available but it is clear that percussive pile driving activities will go beyond tolerable and threshold limits discussed in the assessment.
4.21 The area around Cumbraes are known to be a hot spot for Basking Sharks and may be a critical location at the population level for this species. A full EIA would necessarily examine this issue and identify potential impacts from the construction and operation of a new oil rig decommissioning port.
4.22 The developers insist that there will be no disturbance to birds from construction and operation of this facility. The community would like to note that an existing gull nesting site has been seriously disturbed during the demolition of the coal conveyor belt system and likely will not be available during the next nesting season. The re-wilded construction yard is a known nesting location for many species of birds and the site will largely become unavailable to ground nesting birds.
4.23 The Developer’s environmental consultants have cited desk-top and out of date bird surveys conducted for the Offshore Turbine Test Facility, the Coal Fired Power Station EIA and nuclear facility. We would like to note that the methodology, results and assumptions from these surveys were heavily criticised by the Scottish Wildlife Trust and RSPB. These criticisms were a contributory factor for the Power Station application to be rejected. The environmental consultants cite their own ‘flawed’ surveys as credible peer reviewed work but they are neither scientifically credible, or fit for purpose.
4.24 The SSSI contains extensive mudflats that provide a critical food source for overwintering wild fowl. No meaningful assessment has been produced to determine impacts to them or loss of habitat to ground nesting birds. A mandatory EIA would have highlighted this fact and necessitated a scientifically credible survey and monitoring program.
SNH Management Statement
4.25 The Scottish Natural Heritage Southannan Sands SSSI Environmental Management Statement (20/03/13) for the site sates:
- The sandflats are of national significance
- Contains UK LBAP priority habitats
- 170ha (40%) of intertidal sand flats have already been lost to industrial land reclamation.
- SNH wish to “protect the site and to maintain and where necessary enhance its features of special interest”.
- That SNH aim to “maintain the extent of the intertidal sandflats by ensuring protection from damaging impacts, in particular any future coastal development”.
- The SNH SSSI Management Statement reiterates that “Coastal development could have an adverse impact on the sandflats through direct habitat loss and interfering with the natural processes in the coastal ecosystem”.
- With reference to existing and other industrial developments it says, “These development proposals all have the potential to have adverse effects on the sandflats feature of Southannan Sands SSSI”.
4.26 This current SNH management statement indicates that the SSSI is susceptible to the development impacts being proposed by this type of project. This situation should have automatically triggered an EIA Schedules in either Annex I or II.
4.27 It beggars belief, other than eelgrass, that the Priority Marine Features mentioned above are not included in the description section for the SNH management statement, that was updated as recently as 2013. It is also worrying that these features were not picked up and reported in a recent SNH benthic analysis 2015 survey. It seems equally bizarre that investigators choose a survey transect that completely missed aggregations of high priority species. The presence of these protected species and habitats will be submitted to the current SNH consultation on Priority Marine Features. With respect to the precautionary principle, the SSSI and surrounding waters should be considered for an emergency MPA protection order until the nature and true extent of PMFs is realised.
4.28 The community find it hard to believe that someone at SNH did not have knowledge about these protected features. The discovery and presence of these features constitutes a material change in circumstances since the original opinion. It is highly likely that SNH would have offered a completely different screening opinion if they were disclosed at the relevant planning stage. We informed SNH about the presence of native oysters and potential bio-risk from the pacific oyster farm but SNH officers failed to properly address concerns and missed these important reefs:
- 2013 SSSI Site Management Plan update.
- 2015 Benthic analysis survey.
- 2017 Pacific oyster farm inspection.
- 2017 Site visit to inspect coal terminal pollution.
- Any SNH site visit in connection with this development.
- Enviro Centre have also failed to report these features during eelgrass/mussel survey and site during any site visits.
4.29 During a recent site visit we showed the priority features, highlighting the potential environmental impacts to the SNH Area Officer and Chairperson of CMPP. We were informed that the SNH officer, who offered the screening opinion, is involved with Enterprise Development Agency. He is, therefore, perceived by us to have a conflict of interest that is weighted towards facilitating commercial developments through and over environmental legislation. We also noted his expertise in terrestrial ecology, despite apparently lacking rudimentary marine ecology skills or understanding of sediment dynamics.
Mitigation proposals used as a surrogate for EIA
5.0 The Developers and Competent Authorities Scoping, ‘Clarification’ and Screening opinions make reference and relate to an old project proposal. These screening opinions were agreed, clarified and accepted before the true extent of the larger Oil Rig Project (17/01273/PP) and operational purpose of the pier development (18/00134/PP) was known or could be reasonably contemplated. This constitutes a material change from the original screening process and EIA screening decision must be reconsidered.
5.1 Referring to the pier development (18/00134/PP),
- The Developer states: The same proposed development (the refurbishment of existing quay and associated dredging) was screened jointly by Marine Scotland and North Ayrshire Council under the same EIA regulations and considered not to be an EIA development.
5.2 Many inconsistencies and errors have been noted in the scoping and screening process for the Hunterston project. For instance, the developers have presented an out of date scoping opinion created for an older development and have pursued this as their basis to acquire beneficial ‘negative’ screening opinions at future dates. They are also referencing a singular EIA screening opinion from a smaller pier development, to endorse their environmental appraisal process, and to negate the requirements for an EIA across the whole decommissioning Project at Hunterston.
5.3 The Ecologistas en Accion-CODA case demonstrates that the Courts take a robust approach and that the entire purpose of the EIA Directive would be frustrated if local planning authorities could circumvent their obligations by simply artificially dividing up projects that have significant effects on the environment. It is therefore questionable whether the strategy used by the Developers to ‘paper chase’ favourable opinions is in accordance with the purpose of the EIA Directives.
5.4 It is clear from the Developer’s scoping requests are not only scoping for a favourable EIA decision, but also for the terms and conditions designed to mitigate impacts and repeatedly presenting this as an alternative to EIA. The Competent Authorities may be avoiding care or proper judgment to ensure that conditions designed to mitigate the likely effects of a project are not used as a substitute for an EIA or to circumvent the requirements of the EIA Directive. This strategy is evident in several planning documents.
5.5 Parallels with the Hunterston Project can also be drawn with Regina oao Lebus v South Cambridgeshire DC  EWHC 2009 where mitigation measures were being offered to frustrate the purpose of the of the EIA directive and then serve as a surrogate for it.
In Lebus case, the planning officer took the view, after meetings and discussions, that it was not an EIA development and the applicant was told informally that an EIA would not be required. The planning case officer made no written record of his conclusions. At the planning meeting the officers concluded that adverse impacts of the development would be insignificant with proper conditions under planning obligations. The application was challenged and planning permission was quashed.
5.6 So far as planning conditions and EIA the courts have stated, “it is not appropriate for a person charged with making a screening decision to start from the premise that although there may be significant impacts, these can be reduced to insignificance by the application of conditions of various kinds”.
Marine Spatial Planning
6.0 The community have previously corresponded with the Clyde Marine Planning Partnership that the Southannan SSSI is under represented in the Clyde Marine Region Assessment. It is one of the largest SSSI on the Clyde fails to appear on the Protected Areas Topic Sheet map. The site entry for it states that there is “No site condition” and that it’s “Within area zoned for industrial development around Hunterston”. We accept that the graphical omission is an oversight but would like the text entry changed to highlight the fact that the SSSI is out with any industrial zone and industrial land reclamation has actually encroached on the SSSI reducing its area by up to 40%.
6.1 The Clyde Marine Assessment is meant to offer the most current assessment of the condition of Clyde Marine Area. The Community cannot comprehend how an environmental screening opinion can be made on a ‘hunch’ when there is a lack of knowledge about the site and no comprehensive site visit was made to inform the decision or for the updated SSSI Site Management Statement. You could reasonably conclude that without the necessary environmental information it is impossible to offer a screening opinion, further strengthening the argument to review this decision.
6.2 Our community has made previous representation to CMPP about the transparency and openness of decision-making process and how this has affected marine planning issues around Fairlie and Hunterston. We understand the benefits and appreciate the value of MSP but are disappointed that our community’s concerns about Hunterston issues are not properly or systematically represented within the marine spatial planning framework. If this development proceeds without mandatory EIA it will reflect an inadequacy of marine spatial planning.
6.3 Peelports and North Ayrshire Council are members of the CMPP and meet regularly with other members to discuss marine planning issues and progress the Clyde Marine Plan. North Ayrshire Council have an agenda to advance their Local Development Plan that is often contrary to Community wishes. We believe Peelports have adopted a ‘systems gaming’ strategy to advance their Hunterston PARC proposals while avoiding environmental scrutiny from other CMPP board members.
6.4 Both Peelports and NAC have had many opportunities to inform CMPP members of the true state of the terrestrial and particularly marine planning applications for the Hunterston PARC project. This information has been withheld from other members, undermining the CMPP responsibility as Statutory Consultees for marine planning on the Clyde. We believe there may have been a massive conflict of interests when the board, including Peelports and NAC, discussed whether to provide screening opinions or make marine planning decisions before the Clyde Marine Plan is fully adopted. It was decided they would avoid making these decisions unless there was ‘exceptional circumstances’. I hope that both Peelports and NAC abstained from this decision in light of their concurrent omission to inform board members about marine screening, planning and licensing proposals that were effecting.
6.5 In fact it was our community that informed the Chair of CMPP that they were meant to be informed and consulted for the statutory marine pre consultation. The event was presumably rescheduled to fulfil this ‘legal’ obligation. We argue that if this holds true for a statutory pre consultation it is equally relevant to the original EIA screening process and CMPP should be afforded the opportunity to present a screening opinion and for other board members to examine the potential for ‘significant environmental impact’.
6.6 It has become clear to the Community that the SNH Case Officer who provided the original screening decisions has a conflict of interest with regards to Hunterston planning issues as he is involved in progressing sustainable economic development proposals and ‘greasing’ the Hunterston Project wheels through environmental legislation.
6.7 Our community made an application for membership to the CMPP but was rejected and believe it is a matter of public interest whether Peelports, NAC and SNH participated in the closed discussions and meeting vote. Our community relies on the appreciated good will of CMPP staff to carry forward and examine our concerns. We do understand the necessity and value of Marine Spatial Planning but deeply concerned about our lack of representation within this planning framework. This concern is compounded by the fact that some current members are perceived to have undeclared conflict of interests, insufficient knowledge, are non Clyde area residents and will become increasingly more involved in making decisions that are wholly contrary to the ambitions of our coastal community.
NAC Response to Councillors Supplementary Questions
7.0 NAC have stated in response to a North Coast NAC Councillors Supplementary Questions that “there is no requirement for Planning Officers to consult with external bodies as part of the (screening) process”.
7.1 NAC have stated in response to a North Coast NAC Councillors Supplementary Questions that “Officers adopt a screening opinion based on the information supplied by the applicant”.
7.2 NAC have stated in response to a North Coast NAC Councillors Supplementary Questions that “NAC approached SNH to ascertain if they had any comments on the screening opinion and said that “SNH did not respond to this consultation”.
7.3 NAC have stated in response to a North Coast NAC Councillors Supplementary Questions that “Marine Scotland as part of screening for their assessment as to whether an EIA is required for their purposes, did consult with SNH and it is that letter that cannot be located”. NAC continue by stating “A letter from SNH to Marine Scotland on the subject of the Marine Scotland assessment for requirement for an EIA has no relevance in the assessment whether North Ayrshire Council require an EIA as part of the Planning Act.”
Time Barred Review
8.0 In a letter from a Scot Gov Policy Officer we were advised that in terms of planning applications, planning consent was issued by NAC on 25/04/18 and Scottish Ministers have no remit to call them in, or make a screening direction, nor can they comment on the authorities handling of the case.
8.1 However, there have been considerable time delay and restrictions imposed on us when gathering important information. These include but not limited to:
- 20 days for MS to reply to a FOI EIR request
- 40 days for SNH to reply to a FOI EIR request
- 6 weeks wait for response to Cllr Ian Murdoch’s Supplementary Questions to NAC.
8.2 These requests have been delayed by the various respondents for as long as possible, totalling a minimum of 102 days (over 3 months). This has severely restricted our ability to be properly informed. We would like you to note that critical documents that we were hoping would clarify our concerns are still being withheld under regulation 10(4)(d) and, contrary to FOI rules, our document request to SNH is still not being properly fulfilled. We have also been told from SNH (email dated 01/03/18) that critical documents pertaining to screening process cannot be found and have also been lost by NAC.
8.3 I hope you understand that these delays have limited the time available to us to inform a coherent response to the screening process and subjugated planning applications as a whole. In this case it is clear that authorities have overtly manipulated time periods to their advantage in an attempt to avoid review and/or legal challenge. As such we would hope that any Action Officer examining this request for a mandatory EIA will use their discretion, consider and make careful examination of this case.
Developer: Peelports, Clyde Operations Ltd, Clyde Port Harbour Authority, Cesscon Decom, Enviro Centre Ltd, Arch Henderson.
Local Authority: North Ayrshire Council (NAC) Planning Department.
Marine Planners: Marine Scotland License Operations Team (MSLOT).
Marine Planning Partnership: Clyde Marine Planning Partnership (CMPP).
Community: Fairlie Coastal, Clyde Porpoise CIC, 3200+ Signatories
EIA Directive: EU EIA Directive and transpositions to Town and Country Planning and Marine Works EIA Regulations.
Project: Hunterston PARC development, Marine Structure Decommissioning, Hammerhead Quay Construction, Caisson Gate Construction, Dredging.
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.