Select Committee on Environment, Transport and Regional Affairs Appendices to the Minutes of Evidence

Memorandum by English Nature (P 08)



  1.1  English Nature is the statutory body that champions the conservation and enhancement of the wildlife and nature features of England. We do this by:

        advising—Government, other agencies, local authorities, interest groups, business, communities, individuals;

        regulating—activities affecting the special nature conservation sites in England;

        enabling—helping others to manage land for nature conservation, through grants, projects and information;

        enthusing—advocating nature conservation for all and biodiversity as a key test of sustainable development.

  1.2  In fulfilling our statutory duties we:

    —  establish and manage National Nature Reserves;

    —  notify and safeguard Sites of Special Scientific Interest (SSSIs);

    —  advocate to Government departments and others effective policies for nature conservation;

    —  disseminate guidance and advice about nature conservation;

    —  promote research relevant to nature conservation.

  1.3  Through the Joint Nature Conservation Committee, English Nature works with sister organisations in Scotland, Wales and Northern Ireland to advise Government on UK and international conservation issues.

  1.4  Our comments on the implications of ports for nature conservation are set out below.


  2.1  In April 1999 English Nature responded to DETR invitations to comment on the draft outline of Government's new ports policy. In that response we drew attention to our views based on four key themes:

    —  establishing sustainable development policies;

    —  developing the role of ports in positive management of the marine environment;

    —  fitting ports into an integrated transport policy; and

    —  reforming the regulatory system under which ports operate.

  2.2  Our submission in 1999 was based upon experience gained over the preceding decade during which the port industry was undergoing major changes. The drivers for these changes arose partly through de-regulation and partly through revolutionary changes in world shipping markets. Vessels have got bigger with much greater draughts, requiring new quay facilities and deeper navigation channels: this is an ongoing process. Market analysis shows the UK container and roll-on-roll-off (ro-ro) businesses to be expanding far quicker than overall economic growth. (RSPB/MDS Transmodal 1997[3]; Ocean Shipping 2000,[4] Ocean Shipping 2000[5]). These predictions suggest that UK ports will reach capacity in the very near future and that expansion at a rate of around one new quay length per year will be needed thereafter.

  2.3.  As this expansion must go through a robust consents procedure, development plans are already at an advanced stage. In the period since our initial submission on the ports sector in April 1999, English Nature have become aware of the proposed major port development at Liverpool, Immingham, Felixstowe, Ipswich, Harwich, Shellhaven, Thamesport and Southampton (Dibden Bay). All of these proposals in some way affect Special Protection Areas[6] (SPA) and candidate Special Areas of Conservation[7] (cSAC). Major impacts on the nature conservation interest largely involve direct loss to land-take such as the proposals for Dibden Bay, or major geomorphological changes to the estuary, for example the recent deepening of the Harwich approach channel.

  2.4  Impacts of these ports on the nature conservation interests exemplify the pressures that ports place on the features of interest of all designated sites. The majority of impacts comprise morphological change to estuaries affecting the way they behave, and of course direct loss of land of nature conservation interest. This involves:

  2.4.1  Ongoing operational impacts: Main issues relate to the impact of any maintenance dredging on estuarine sediment budgets, possible increased erosion through shipwash and possible losses of terrestrial habitats where the layout of facilities is modified.

  2.4.2  Expansion of existing port envelope: Principal issues include the impact of increased depth and width of dredged channels affecting the tidal prism, tidal propagation and sediment draw-down. Inter-tidal habitat loss affecting bird and benthic communities is frequent: this may be both from within a designated site or close to a designated site and affecting the interest features for which the site is designated. Increased vessel size and number of movements may also lead to increased shipwash and erosion of foreshore.

  2.4.3  New ports: The impacts of a new port are similar to those of an expanding port, but may also involve changes to an estuary which is largely at or around equilibrium, thus pushing the estuary away from "most probable state".

  2.5  English Nature recognises that UK ports are fundamental to the economic well-being of the country. We are aware of the possible risks that may arise from difficulties experienced in achieving the necessary infrastructure investment in time to respond to demand. In this submission we consider some of the key issues which we think need greater Government involvement and guidance which would ensure that aspirations to streamline the consents procedure are achieved. This, we think, is currently the highest priority for both the industry and the regulators.


  3.1  English Nature welcomes the publication of Modern Ports: a UK Policy in November 2000.

  3.2  English Nature welcomes the commitment to securing the highest environmental standards and support for sustainable development (Ch 1, para 1.2.2. bullet point 4). We also welcome the key messages in Modern Ports: a UK Policy in relation to applying standards and regulatory requirements efficiently and consistently, with the object of avoiding unnecessary burdens (Ch 1, para 1.2.2. bullet point 1, para 1.2.3. bullet point 2). We think, however, that Modern Ports: a UK Policy fails to provide the framework for efficient decision-taking and giving added value to regulation. Overall, however, Modern Ports: a UK Policy provides very clear commitment to environmental best practice which we warmly endorse.

  3.3  English Nature notes that Modern Ports: a UK Policy gives an implicit indication that the current spread of major container and ro-ro ports are of national importance, contributing both to the national and regional economic well-being (Ch 2, para 2.1.4.). Thus Modern Ports: a UK Policy may be interpreted as indicating that proposals for new port development would be considered to meet the national and regional imperatives required as a test in the Habitats Regulations. Modern Ports: a UK Policy expands on this issue in paragraphs 2.4.6. to 2.4.9. We recognise that this approach ensures that no individual ports are identified as priorities for further development but believe that this is the foundation for ongoing problems with the regulatory process.

  3.4  English Nature welcomes the recognition of the disparity between UK and European port funding (Ch 2, para 2.3.1.). In our discussions with the ports and their trade associations, significant differences in the levels of state aid and interpretation of the Birds and Habitats Directives across Europe seem to exist and these may potentially disadvantage our ports. Such differences mean that the debate over measures to safeguard nature conservation often concentrates more on this issue and deflects resources away from positive measures. This also leads to a strained relationship between the ports industry and nature conservation and is demanding on staff and financial resources on both sides.

  3.5  English Nature notes the references to the EC green paper on Ports and Maritime Infrastructure (Ch 2, para 2.3.1.). The possible implications of this green paper have been drawn to our attention previously and we would expect to be amongst the consultees on any specific proposals. In the meantime, we think it should be emphasised that proposals which in any way lead to reduced efficiency in our ports could have important implications for nature conservation, including increased demand for port land over and above that which might be needed for the most efficient port operations. Among other issues, we think such reduced efficiency could lead to increased demand for inter-tidal habitat which is important for birds. This, we think, would be to the detriment of any measures undertaken elsewhere to achieve an environmentally sustainable approach to port development.

  3.6  English Nature welcomes the messages provided by Modern Ports: a UK Policy in relation to ports and sustainable development (Ch 2, para 2.4.12.). We would like to see greater consideration given to the use of environmental and other performance indicators for measuring progress towards the delivery of strategic objectives. To this end we are encouraging the trade associations to develop appropriate indicators.

  3.7  English Nature agrees that the protection measures afforded to special sites are essential safeguards and that the ports industry should rise to the challenges they present. We have worked closely with a number of port operators who propose expansion and can offer an insight into this process which reflects the range and variation of approach. We think that operators are at different stages of appreciation of a positive approach and that progress could be made more quickly with appropriate guidance from Government on nationally important developments which would be likely to secure consent. Recent experience has also shown that a wide variety of measures to offset detrimental impacts have been proposed. These often involve techniques which may have additional detrimental effects and are unlikely to meet sustainability principles in the long-term. Thus, the current situation tends to encourage operators to adopt offsetting measures which do not fit the accepted interpretation of the Habitats Regulations.

  3.8  English Nature particularly welcomes the message given in paragraph 2.4.19. which emphasises the need for proposals to show net benefits (in addition to compensation where a SPA or cSAC is involved), including other environmental benefits, if they are to go ahead despite having adverse affects on an environmentally sensitive site. We think major biodiversity benefits should form an important driver in this respect and will expand further on this in section four. We welcome the very clear indications of determinants (para 2.4.20.) which will be used to evaluate projects which should proceed in the public interest. We agree that the tests should be most demanding (para 2.4.21.) and that compensatory measures, such as habitat creation through coastal realignment, will be required to ensure the overall coherence of the Natura 2000[8] sites.

  3.9  English Nature warmly welcomes the introduction of the Countryside and Rights of Way Act and the environmental responsibilities this places on port and harbour authorities to achieve better protection and management of nationally important nature conservation sites. We think that encouraging some of these authorities to make a meaningful contribution will be a challenging process.

  3.10  English Nature welcomes the commitment to develop a framework for good practice by port and harbour authorities (Ch 3, para 3.2.6.). We think that there is considerable scope to do this in terms of nature conservation and look forward to participating in this process.


  4.1  In the past 18 months there has been unprecedented activity in the ports industry with proposals around the country which demonstrate high market confidence in expansion possibilities and potentially huge investment in port infrastructure. English Nature recognises the importance of the ports industry to the UK economy, and the public imperatives for maintaining a vibrant industry which can compete with other major European ports. This is the foundation of a framework for utilising the benefits that can be achieved in using shipping to reduce CO2 emissions and road transport pressure. We believe that many of the bigger ports on the south and east coast have the potential to attract substantial trans-shipment trade. However, as markets concentrate on ever-larger vessels with greater draughts, the numbers of such ports which can service this need are likely to diminish as a result of the strains such changes place on the provision of infrastructure and navigable channels.

  4.2  Those UK ports which are best placed to meet this challenge are currently seeking to consolidate their position against a regulatory background which is fundamental to maintaining nature conservation interest, but which also makes heavy demands on public and private resources which might be better targeted to meeting the challenges of sustainability.

  4.3  Proposals which affect European sites (SPA/cSAC) and Ramsar sites are evaluated using the Conservation (Natural Habitats, &c.) Regulations 1994 (as amended), (The Habitats Regulations). These regulations set a series of robust tests which must be met before a proposal may proceed. Those which fail the tests of environmental acceptability may only proceed provided there are no alternatives and that there are imperative reasons of over-riding public interest. In such circumstances, compensatory measures, as acknowledged in Modern Ports: a UK Policy (Ch 2, para 2.4.20.) will be required; this is a matter which requires a decision by the Secretary of State.

  4.4  Measures to mitigate adverse effects may only be undertaken within the boundaries of a European site, compensatory measures may occur elsewhere however. In the context of estuarine habitats, largely affecting migratory waterfowl, this is important because there are possibilities that compensatory measures may be undertaken within the biogeographic zone and not adjacent to the affected site (the area of search for an appropriate site would be as near as possible to the affected site in the first instance and would move further afield as inappropriate options are discarded). Such measures have the potential to have wider benefits such as meeting the needs for compensation together with using the commercial power of the ports to deliver additional habitat to offset the effects of sea level rise and related impacts on biodiversity. English Nature does not think that habitat loss should occur unless there are no alternatives and there are imperative reasons of over-riding public interest. But, we are conscious that the ports are constrained because of the unique range of the limited number of possible locations for their expansion and development.

  4.5  Until now, the major emphasis of discussions with the ports sector have concentrated on finding mechanisms to mitigate the adverse effects of their proposals. If the foreseeable adverse effects of the proposals can be avoided, then the tests of alternatives and public imperatives do not need to be addressed. Experience has shown, however, that the definitions of mitigation to avoid adverse effects, and compensation, are still developing at the same rate as influential casework. This is illustrated by experience with Harwich Haven Authority on their most recent channel deepening consent, where a package of measures believed to be acceptable in nature conservation terms was subsequently deemed to include a component which was compensation rather than mitigation. Thus, the HHA were locked into an expensive package of habitat creation which might have delivered more nature conservation gain at a lower price had it been located elsewhere.

  4.6  The drive to seek a package which can be deemed as mitigation has also been an important component of the development of proposals for Dibden Bay. Such efforts place enormous demands on the scheme's proponent, but also on bodies such as English Nature. Unfortunately, they do not necessarily represent best value for money as the funds might be better directed towards positive nature conservation enhancement measures, and resources could be concentrated on overall nature conservation gain.

  4.7  The need to provide compensation at a reasonable price, has meant that there has been an emerging debate on the merits and possibilities of habitat banking as a means of offsetting lost habitat. Such a mechanism might be expected to resolve concerns about the likely success of compensatory measures. It leads, however, to other concerns such as the possible erosion of the robustness of the tests of the Habitats Regulations that might lead to piecemeal development in estuaries and elsewhere. Thus English Nature thinks that there is a need to evaluate possible models and develop an approach which can be applied to the ports sector in particular. A similar approach is being developed for flood and coastal defence through the English Nature/Environment Agency CHaMPs (Coastal Habitat Management Plans) LIFE project.

  4.8  Many ports have responsibility for navigation within a particular stretch of water or entire estuary. This statutory responsibility means that they are a competent authority as defined by regulation 3 and a relevant authority as defined by regulation 5 of the Habitats Regulations. It is the responsibility of the relevant authorities to develop a management scheme for European marine sites under regulation 34 of the Habitats Regulations.

  4.9  It is our experience that the levels of engagement and positive involvement in the development of management schemes for European marine sites by ports have been very variable. Some, such as Associated British Ports have played a pivotal role in developing management schemes; unfortunately engagement by a few others has been less positive. Management schemes developed by all of the key organisations involved in the site provide an excellent opportunity to resolve conflicting objectives and to deliver the management regime to sustain sites in the future. Ports should be actively encouraged to participate fully in their development and delivery.

  4.10  Where ports are a competent authority, there may be a need for them to consent their own development proposals. Under the Habitats Regulations this means that there is a need for such developments to be consented in line with the regulations and the strict tests which are required. However, this process runs the risk of perceptions in the wider community that the conclusions of an appropriate assessment (under regulation 48) favour the developer. At the moment we think that some Harbour Masters are not fully aware of these responsibilities or of their need to consult English Nature, and are concerned that there may be occasions where commercial pressures affect the decisions taken. Whilst this situation is not unique, we think that there is a need for Government to give further thought to ways in which such conflicts of interest can be avoided.

  4.11  English Nature have also noted that some ports which are competent authorities have yet to embrace fully the principles of openness and transparency in the decision-making process. This has on occasions led to an environment of secrecy which greatly increases public concern about the consents process.

  4.12  It is also apparent that UK and European interpretations of the Habitats Directive differ on which activities may be considered plans and projects rather than ongoing operations. This is a matter which has considerable implications for development and implementation of management schemes and the consents processes for ongoing operations such as maintenance dredging.


  5.1  English Nature believes that a high level of port efficiency is an essential component of sustainable development and the primary alternative to expansion; this is clearly emphasised in Modern Ports; a UK Policy (Ch 2.4.10.). Thus, any proposed port expansion must be based on the assumption that no further efficiency gains can be made in existing port facilities, or that higher levels of efficiency can only be achieved through expansion that would mean a need for less development elsewhere.

  5.2  Recent studies provide no clear indications of ports which will need to expand. This is recognised in Modern Ports: a UK Policy (Ch 2, para 2.4.16.). English Nature knows, however, that there are major economic drivers which mean that there will inevitably be a need for additional port infrastructure and that market confidence is such that huge investment is proposed at a number of locations, especially in south and eastern England. Furthermore, we recognise that the geography of the UK and transport infrastructure means that major port facilities will be needed at a number of locations if multi-modal transport options are to be offered and CO2 emissions are to be minimised by efficiency gains. We think that much greater direction is needed to ensure that any new port development is fully integrated with strategies to reduce pressures within the transport network and to achieve the environmental benefits that should accrue as a result.

  5.3  Given these drivers and the strains they place on both the industry and the regulators, English Nature thinks that a detailed framework is needed for identifying nationally important development proposals at an early stage in the evaluation process. Without additional guidance there is a strong possibility that the UK economy will ultimately suffer. Moreover, English Nature believes that an unnecessarily high level of public and private resources will be needed to service the inevitable range of public inquiries. This means that an opportunity for overall biodiversity gain will be lost, together with many of the resources and good will which might yield even greater biodiversity gain.

  5.4  Taking other development proposals as a model, it is not uncommon for the owner of strategically important land to receive financial compensation over and above its normal value. English Nature suggests that there is a need to consider conservation in the same way ie if habitat is to be lost for essential development, the replacement habitat should comprise three elements:

Meeting requirements of Habitats Regulations

  replace habitat of the same quality or potential quality as that lost;

  additional habitat creation to offset the risks associated with loss of primary habitat and time-lags in creating habitat of equal quality;

Biodiversity Gain

  a habitat levy which in effect is the "profit" for biodiversity which can be achieved by using the economic power of a major developer in the national interest.

  5.5  Modern Ports; a UK Policy advocates evaluation of port development proposals on a case-by-case basis. This is consistent with other consents processes but this approach locks both the industry and regulators into a consents mechanism which is inefficient.


  6.1.  In the light of the above, English Nature therefore offers the following recommendations:

  6.1.1  Recommendation 1. Government should undertake an urgent review of development pressures in the UK ports in relation to the need for container and ro-ro expansion. The review should provide clear indications of the likely national imperatives for such development and identification of those expanding ports which will need to consider compensatory habitat creation. The usual tests of the Habitats Regulations should then apply, but this would allow a positive approach to value for money compensatory measures.

  6.1.2  Recommendation 2. Robust guidance should be provided on the relative areas, type and quality of compensatory habitat creation required when port development is considered likely to be in the public interest. This should bear in mind the need for real biodiversity gain in addition to compensation for habitat loss from European sites.

  6.1.3  Recommendation 3. Government should establish a project working group to evaluate models for habitat banking for port development which should report within a year. Having reported, the adopted model should be given legal backing.

  6.1.4  Recommendation 4. DETR should urgently investigate and evaluate trade claims that there are major disparities in application of the Birds and Habitats Directives across Europe. Such an evaluation should be placed in the public domain at the earliest opportunity and addressed throughout European Community procedures.

  6.1.5  Recommendation 5. In the light of more detailed understanding of disparities in the application of the Birds and Habitats Directives, Government should seek an improvement in the standard across Europe and not to diminish the standard in the UK.

  6.1.6  Recommendation 6. DETR should undertake a review of possible conflicts of interest where competent authorities are responsible for evaluating their own proposals. Following such a review, measures should be established to minimise such conflicts and to ensure greater transparency in the decision-making process.

  6.1.7  Recommendation 7. There is a need to provide a much more robust strategic framework for integrating port development into sustainable transport strategies, ensuring that multi-modal options are fully embraced, including the encouragement of short-sea shipping to reduce pressure on the road and rail networks.

January 2001

3   Port Development and Nature Conservation, RSPB, Sandy. Back

4   North European Containerisation, August 2000. Back

5   The Global Containerport Market, October 2000. Back

6   Special Protection Areas under the EC Birds Directive. Back

7   Candidate Special Areas of Conservation under the EC Habitats Directive. Back

8   The network of SPA and SAC sites classified under the Birds and Habitats Directives. Back

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