Debate on the Marine Environment – Patricia Gibson MP

On November 14th 2017 Patricia Gibson MSP participated in a debate on the Marine Environment in the Westminster Parliament. It is interesting to look back on this speech and relate to to the current proposals by Peelports to develop an oil rig decommissioning port at Hunterston. It would be great if Patricia could support her constituents requests for an EIA and help inform marine management decisions about a protected SSSI habitat located just a short distance from her constituency office?

“I thank the hon. Member for Huddersfield (Mr Sheerman) for securing this debate. As we have heard today, we do not own the, seas; we are simply caretakers of them. It is important that we bequeath a rich and healthy marine environment legacy to future generations, and do so to the best of our ability. Some progress has been made. The UK and Scottish Governments are working together, as we heard earlier, to deliver on a commitment to implement a ban on microbeads in personal care products to tackle the scourge of microbead pollution.”

“Marine protected areas have now been established in waters around the United Kingdom with the Scottish marine protected network covering around 20% of the seas around Scotland. Those protected areas are important since this means that any proposed development or use of such areas will have to take into account the need for recovery.”

“Scotland’s seas are a vast and rich natural resource. It is our sacred duty to keep them healthy and protected for current and future generations. Much of our coastline and surrounding seas are globally important habitats ​for many bird species, providing food, a place to rear young, and winter refuge. The future of our marine environment must be sustainable for our precious yet vulnerable marine habitat. The national marine plan in Scotland was adopted in March 2015 and provides a framework for consistent decision making that takes account of the marine environment. Work is now ongoing to implement marine planning on a regional scale.”

“Marine protected areas provide additional protection to important locations in our seas, and the network covers 20% of our marine area. The marine protected area monitoring strategy monitors and surveys some of Scotland’s most vulnerable marine habitats. It ensures that detailed information is collected from the marine protected area network to create a more accurate picture of the health of marine environments. In addition, the Scottish Government launched Scotland’s first ever marine litter strategy for Scotland, which details almost 40 new actions to minimise coastal and marine litter. Yet the challenges we face are ongoing.”

The fish farming industry has admitted that it has to discard significant numbers of its stock because of disease. Some are now calling for a shift to a closed containment system that would protect the fish and the marine environment. The same demand has been made by the wild fish campaign group, Salmon & Trout Conservation Scotland. That seems at least worth examining. Fish and shellfish farming contribute £620 million to the Scottish economy every year, supporting more than 12,000 jobs. We have a duty to protect Scotland’s marine environment, and the health and welfare of farmed fish is of utmost importance to the industry. The Scottish Government are committed to working with the aquaculture sector to develop a strategic health framework that ensures we make progress in tackling major problems, including emerging disease. That is essential for the future and sustainability of our marine environment.

“There is also concern about the need to protect vulnerable habitats from scallop dredging. Indeed, an investigation by the Scottish Government and Scottish Natural Heritage into claims that the vulnerable habitat in Loch Carron had been damaged by scallop dredging has confirmed that damage to the flame shell beds was consistent with the impact of scallop dredging. Subsequently, the endangered sea bed habitat of the north-west coast was designated as a marine protected area by the Environment Secretary, Roseanna Cunningham MSP. The investigation found there was a viable prospect of recovery because part of the bed had survived and another bed had thankfully remained intact. It is right, as I mentioned in the House today, that such matters are investigated comprehensively and that all options are considered to militate against such an occurrence in the future, in the light of the damage and marine devastation it can cause.”

However, the marine environment does not recognise borders or boundaries. It is essential that all Governments across the United Kingdom work together co-operatively to ensure that the health and sustainability of our waters and marine life are secured. Our marine environment is extremely important. We must be able to enjoy the benefits that the sea offers us, but we must also respect the need for sustainable use. We owe that to future generations.​

All the parliamentary speeches on this debate in marine environment can be found here 

A manifest breach of Environmental Impact Assessment Legislation.

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.

Summary Points

1.0  There has been a failure to apply ‘Wide Scope and Broad Purpose’ when considering both Town & Country Planning EIA and Marine Works EIA Schedule 1 Paragraph 8(b) project descriptions.

1.1  There has been additional failure to apply Town & Country Planning EIA and Marine Works EIA   Schedule 2 project descriptions.

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

2.1  Projects subject to mandatory EIA are included in both Town & Country Planning EIA and Marine Works EIA regulations:

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 [2003] 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.

Salami Slicing

3.0  The ‘Planning Consent Process offered by the Developer has been progressed using multiple Local Authority planning consents:

  1. 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.
  2. Application for variation of condition No.1 of Planning Permission (16/00268/PP, 17/01273/PP Large Marine Structures).
  3. Consents for improvements to quay (18/00134/PP),
  4. 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 [2009] 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)[2015] 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 [2011] 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) [2016] 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) [2010] 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.

Bird Surveys

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 [2002] 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.