‘The Devil Is In The Detail’ – Marine Scotland Must Clearly Define ‘The Project’

6th November 2019

Whilst we wait for the outcome of Marine Scotland’s Environmental Impact Assessment (EIA) Screening Opinion we have been making sure that no stone is unturned and the public eye remains focussed on ensuring the regulatory and planning authorities are rigorously held to account for their decision on whether an EIA is required before Peel Ports’ plans for oil rig decommissioning can progress.

Having been delayed for a third time by Marine Scotland (MS), their current date for publication of the EIA Screening Opinion date is January 2020.

Following our meeting in Edinburgh with MS we have been in correspondence to clarify an outstanding issue regarding the exact definition of  ‘The Project’ and the way in which the ‘salami slicing‘ of the planning and licensing applications into smaller discrete elements avoids full scrutiny of the overall cumulative impact of Peel Ports’ decommissioning plans.

Never has it been truer that ‘The Devil is in the Detail’.

There are a number of EIA regulatory provisions that, in consultation with our QC, Scottish Natural Heritage (SNH) and other experts, we believe must be taken into account:

Defining ‘The Project’

Reading across the regulations the scope of the ‘The Project’ under consideration in an EIA screening must include the cumulative impact of the work to be carried out; and that, if the project consists of a number of different works, all elements of the work should be considered as part of  ‘The Project’ if one part of the works would not go ahead without the other.

  • Schedule 3 of The Marine Works (Environmental Impact Assessment) (Scotland) Regulations (2017) (http://www.legislation.gov.uk/ssi/2017/115/schedule/3/made) clearly states that  “The characteristics of works must be considered having regard, in particular, to – cumulation with other existing works and/or approved works” (Section 1(b)) and that  “The likely significant effects of the works on the environment must be considered in relation to criteria set out in paragraphs 1 and 2 above, with regard to the impact of the works on the factors specified in regulation 5(3), taking into account …. .the cumulation of the impact with the impact of other existing and/or approved works  (Section 3(g))
  • Section 45 of the Planning Circular 1/ 2017 (https://www.gov.scot/binaries/content/documents/govscot/publications/advice-and-guidance/2017/05/planning-circular-1-2017-environmental-impact-assessment-regulations-2017/documents/00518122-pdf/00518122-pdf/govscot%3Adocument/00518122.pdf ) also  provides the following advice – “In determining whether significant effects are likely, planning authorities should have regard to the cumulative effects of the project under consideration, together with any effects from existing or approved development. Generally, it would not be feasible to consider the cumulative effects with other applications which have not yet been determined, since there can be no certainty that they will receive planning permission. However, there could be circumstances where 2 or more applications for development should be considered together. Such circumstances are likely to be where the applications in question are not directly in competition with one another so that both or all of them might be approved, and where the overall combined environmental impact of the proposals might be greater or have different effects than the sum of the separate parts. The consideration of cumulative effects is different in principle from the issue of multiple applications which need to be considered together

So What Does All This Technical Stuff Mean?

Section 45 in particular sums up the situation at Hunterston, as there can be absolutely no doubt that the “overall combined impact of the proposals” will “be greater or have different effects than the sum of the separate parts.” They are all one project. The dredging works and the caisson gates and the jetty extension are all part of the larger decommissioning project. The dredging works and the caisson gates and the jetty extension are only required if the decommissioning of marine vessels goes ahead.

In reality these works are all mutually dependent on one another as the decommissioning of marine vessels cannot go ahead without the dredging, the formation of the new jetty and the caisson gates. They must therefore be considered together as ‘The Project’ in evaluating the need for an EIA before a dredging licence is issued.

That being the case, we believe:

1) That ‘The Project’ under consideration in the EIA Screening must include the larger decommissioning project, because of the cumulative impact of the dredging as part of the larger Project

2) That ‘The Project’ must be properly defined to all of the consultees in order to avoid the confusion that we are observing between consultees, who are giving advice based on differing views about which  Schedule 1/Schedule 2 definition, if any at all, the proposed works fall under.

Port V’s Terminal – What’s the difference?

Finally, Peel Ports have asserted that it is impossible for the proposed works to be considered as a Schedule 2 development as Hunterston is a ‘Terminal’ not a ‘Port’. Despite hard evidence of Peel Ports itself referring to Hunterston as a Port – for example most recently in its own 20 year Plan as the ‘The Hunterston Port and Resource Centre’ for the purposes of its application to MS it asserts it is in fact a Terminal.

This is another technical distinction, that would normally pass most of us by as of no importance, however it is crucially important in the case of Hunterston as it being used to directly influence the shape and scope of the EIA screening opinion.

Despite Peel Ports assertions our understanding is that Schedule 2 (13) refers not only to an extension to a port but to a change which means that it is not as Peel suggest, impossible for the proposed works to be a Schedule 2 development.

All of this amounts to a highly compelling case that ‘The Project’ should be defined as encompassing all the separate salami sliced elements of the decommissioning proposals at Hunterston and an EIA is required under the legislation.

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