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

Memorandum by the Royal Society for the Protection of Birds (P 10)



  1.  This submission address three specific points of the inquiry's terms of reference: what problems and opportunities currently face ports, particularly with respect to the environment; whether the proposals contained in Government's document Modern Ports: a UK Policy are adequate; and what other policies should be pursued to benefit ports (and from RSPB's perspective, the environment).

  2.  The Society has a strong track record in the field of ports, shipping and transport issues. We provided detailed responses to Lord Donaldson's inquiry in the Braer incident and have developed wider transport policy (Vital Spark: RSPB's policy on energy and biodiversity and Breaking Point: RSPB's policy on transport and biodiversity). Subsequently, RSPB has focused attention on the future development of the ports industry in Great Britain and have fed the results of a detailed economic analysis into our responses to Government consultations on Trust Ports and integrated transport, and the European Commission's Green Paper on sea ports and maritime infrastructure. The RSPB is now looking at the role of shipping in the context of progressing a more integrated approach to transport and the environment costs and benefits this may involve.


  3.  The Society is concerned that the White Paper fails to provide the strategic planning framework which the ports industry requires in order to make effective long-term plans for the future. Such long-term planning is not only important for the ports industry, but it is also essential for effective implementation of integrated transport policies and for achieving environmental objectives. Two prerequisites of long-term planning are:

    —  forecasting future demand for port services and like supply needs; and

    —  a degree of government involvement or "intervention" to deliver plan objectives.

  Unfortunately, the White Paper specifically avoids doing either of these.


Government must take a stronger lead in planning the role of the ports industry in delivering integrated and sustainable transport objectives

  4.  The White Paper makes quite clear that it is not Government's intention to "interfere" in the ports industry (eg [1.18], [2.1.11]). However, there are numerous statements in the White Paper which contradict this. For example, Government states that it is opposed to complex and inappropriate interference in the ports market [2.3.4]. This implies that it is prepared to intervene where this is appropriate. Furthermore, Government states that in general port infrastructure should be commercially funded [2.1.11] and that port operations should not in general receive public money [2.1.13]. However, the White Paper fails to identify when Government does feel it appropriate to intervene with public money. In contrast, the National Assembly for Wales clearly identifies the circumstances when it will contribute to the funding of port related infrastructure projects (over and above the Freight Facilities Grant)—where this will improve integration of transport modes [2.2.18].

  5.  The RSPB believes that whilst Government "interference" in the ports industry is inappropriate, greater involvement is both justifiable and necessary particularly where strategic environmental objectives (such as avoiding damage to a site or reducing CO2 emissions) may be met.


Forecasts of both demand for and likely supply of port facilities are possible and should be carried out by Government to inform a strategic planning framework for the ports industry

  6.  Taking a stronger lead and providing a strategic planning framework for ports in order to achieve wider sustainability objectives requires a clear understanding of the supply of port facilities and demand for them. The need for a clear picture of trends and the potential need for port development is identified by the White Paper [2.4.10]. However, the Paper goes on to say that Government does not make or endorse forecasts of port traffic as it does for roads and airports [2.4.16]. It argues that it is not easy to measure port capacity and whether it will meet expected growth in demand [2.4.1] not least because there are no models to estimate changes in the distribution of cargo and passengers using ports as a result of infrastructure development [2.4.16]. This contrasts with the approach of the national Assembly of Wales which has carried out "market analysis" to identify the role of ports and infrastructure needs [2.2.18] and is keen to work with the Republic of Ireland to predict and meet future demand [2.2.19].

  7.  The RSPB believes that the White Paper attempts to avoid this issue whilst actually acknowledging that there are indicators of supply and demand. For example, Government accepts that forecasts point to a prospective shortfall in freight ferry and container port capacity [2.4.6] and that some ports will need to increase capacity to meet future demand [2.4.7]. Furthermore, it is difficult to see how, without supply and demand forecasts, Government can conclude that whilst port traffic growth will continue to place pressure on road network at key points, it won't have a significant impact on the network as a whole [2.6.19].

  8.  There are many examples of port supply and demand forecasts which have been carried out demonstrating tested methodologies exist:

    —  Strategic planning by the Port of London involved an analysis of future growth trends using economic indicators and commercial information;

    —  Hampshire County Council commissioned work to assess the inclusion of port development sites in the new structure plan by assessing the supply and demand conditions for the port facilities which could be offered in the context of competing ports and trade growth; and

    —  A ports strategy was prepared by Kent County Council, port and ferry operators and Eurotunnel to address issues associated with the opening of the Channel Tunnel and the growth in international traffic in Kent.

  9.  More recently, detailed supply and demand studies have been carried out by Associated British Ports in relation to their development proposals in Southampton Water. This work looked not only at supply and demand in the UK container sector, but also placed this in a European context.

  10.  The White Paper argues that forecasting supply and demand is unwise because demand for port facilities shifts—trading patterns change, leaving spare capacity where there was none and creating pressure to expand elsewhere [2.4.1]. RSPB agrees that this is the case. Certainly, it would have been difficult for the Port of London to predict the closure of Shellhaven refinery. However, as one leading transport consultant stated, "predicting the future is easy, it is predicting when it will arrive which is difficult". RSPB argues that it is the very fact that changes in the ports industry create pressures both on the environment and wider transport networks which makes such "capacity" planning essential despite inherent uncertainties.


There is strong evidence that demand for some port facilities will continue to increase. Government should take account of this as part of its integrated transport policy framework

  11.  A number of detailed studies have been carried out which look at global trade trends and the capacity of ports to meet demand. It is clear that over the past 15 years there has been a steady growth in container throughput throughout the world, with particularly strong growth in East Asian markets. Within Europe, growth in container trade has been strongest at north west European ports. Based on these trends and econometric forecasts, growth in container traffic is predicted to increase between 2000 and 2015 at an even greater rate, both worldwide and throughout most of Europe. In Europe, container traffic is predicted to grow quickest in north west Europe.

  12.  These predictions in trade growth can be used to estimate the proportion of the total port capacity available which will be utilised. In Europe, about 85 per cent of available container port capacity is currently utilised. It is predicted that this will decline to about 75 per cent in 2003 due to a number of port developments already underway. However, by 2010 capacity utilisation will have returned to current levels. In the UK, it has been predicted that by the year 2010 there are likely to be shortfalls in port capacity in most sectors if the industry remained unchanged. The greatest capacity shortfall is predicted to be in the container (lo-lo) and trailer (ro-ro) sectors (35.6 million quasi-tonnes and 10.4 million quasi-tonnes (central estimate) respectively). With respect to containers, this equates to a need for possibly an extra 4 million TEU capacity in the UK by 2005.

  13.  Whilst the precise scale of the capacity needs in the foreseeable future can be debated, RSPB believes that based on even the most conservative estimates it is clear that pressure for port capacity in the UK and Europe will continue to grow. It is essential that Government ports policy provides a sound framework within which to make strategic decisions about how to meet future demand for port capacity. This does not amount to "interference" in the industry, but sound planning to ensure that integrated transport policies as a whole are met. In addition, it will facilitate long-term planning to enable the environmental costs and benefits to be assessed and the most sustainable solutions developed.

The RSPB does not accept that a commensurate increase in port infrastructure will be necessary in order to meet the predicted increase in port traffic and the likely shortfall in facilities to handle it.

  14.  One response to predicted shortfalls in port capacity is to increase capacity through the construction of new port infrastructure. Predictions of future supply and demand can be used to estimate the extra port infrastructure needed, assuming that this is the only response to capacity shortfalls. However, RSPB supports the policy of making best use of existing capacity in preference to new transport infrastructure [2.4.10, 2.4.15]. The various options presented in the White Paper for increasing existing port capacity have been considered in detail by the RSPB. Some ports such as the Port of Felixstowe and Southampton are already investing heavily in new technology (such as new cranes and paperless freight transfer) to increase the efficiency of the existing port estate. However, a significant impediment to delivering integrated transport policies is the lack of an assessment of what these measures might achieve overall.

There is an urgent need to benchmark the performance of measures to increase existing port capacity and to establish the scope of what they can achieve [2.4.10].


Government must provide a clear policy framework for facilitating the long-term planning of ports and related transport links at a national, regional and local level.

  15.  The emphasis of the White Paper on regional planning for port development is welcome. However, as the White Paper states, port hinterlands do not conform to neat regional boundaries [2.5.9]. Whilst consideration of interests in neighbouring areas will assist, the White Paper should provide the context within which decisions about port development can be made at a regional level. It currently fails to do this. It is possible that the forthcoming Planning Policy Guidance Note on transport (PPG13) might contribute to this, but earlier drafts were not promising.

  16.  The RSPB supports the development of Regional Transport Strategies which assess the role of ports and how port traffic fits in with the capacity of road and rail networks [2.5.7]. Work has already begun on the development of these (eg the South East & Anglian Ports Local Authority Group—SEAPLAG). However, the work of such groups is likely to be hampered by the lack of a national overview and framework within which regional strategies fit.

  17.  Once a Regional Transport Strategy which includes ports has been developed, it should provide the basis on which transport decisions in structure plans should be made. Such decisions should be long-term, looking 10 or even 20 years in advance. The White Paper reflects existing guidance on including transport policies in development plans and states that plans should only include proposals which are firm, with a reasonable degree of certainty of proceeding within the plan period and ideally are programmed and have finance committed [2.5.10]. However, given the significance of ports as part of the transport infrastructure of the UK and the need to ensure port allocation reflects Transport 2010: the 10 year plan, RSPB believes that greater emphasis should be placed on the protection of those sites and routes (both existing and potential) which could be critical in developing infrastructure to widen transport choices.


RSPB believes that the full environmental costs and benefits of decisions relating to the provision of integrated transport including ports must be established.

  18.  The White Paper states that sustainable development requires the consideration of alternative proposals when there are adverse consequences (environmental, social and economic) of proposals [2.4.12]. This is a welcome recurring theme within the White Paper [eg 2.4.15, 2.4.20]. RSPB supports the role of Government in balancing conflicts arising from port related proposals [2.1.7]. The Society agrees that such balancing should go far wider than a straight-forward consideration of the proposal itself. Consideration of alternatives must be in the widest sense.

  19.  The RSPB accepts that there may be circumstances when it is desirable for a port related proposal to proceed despite local environmental impacts, on the grounds that significant wider environmental benefits are achieved. The White Paper states that new capacity may be appropriate if it can be shown that there are significant additional benefits [2.4.11] and that the net benefits clearly override the environmental disadvantages [2.4.19]. Whilst RSPB supports this approach, it must be clear that the benefits referred to here must be wider environmental benefits (eg reduction in resource use or pollution).


The true environmental costs and benefits of different transport modes are currently poorly understood and it is not possible to make well informed integrated transport decisions

  20.  In order to make environmental trade-offs between different modes of transport, the immediate, long-term, direct and indirect environmental impacts must be fully understood. However, many of the impacts of different transport modes are either not quantified or are transport mode specific making direct comparison impossible. For example, it has been estimated that up to 47,000 badgers, 3,000-5,000 barn owns and between 20-40 per cent of amphibian breeding populations are killed on roads each year. Others impacts are indirect. For example, it takes 120,000 tonnes of aggregates to build one kilometre of motorway. Aggregate extraction has significant impacts of a number of important habitats such as lowland wet grasslands and heathland.

  21.  The White Paper states that deepwater, dredged environments are still of high importance to wildlife demonstrating that port operations need not be incompatible with nature conservation [2.5.15]. It is true that many estuaries within which ports operate are of considerable nature conservation value. However, it is wrong to suggest that even in these estuaries, port operations are not having an impact.

  22.  Ports usually require substantial areas of land for berths and handling facilities. Often, this leads to the permanent loss of intertidal land of high conservation interest. Recent major land claim activities include Felixstowe Docks, Sheerness Docks, facilities on the Humber and Mostyn Docks with further proposals at Dibden Bay and Bathside Bay amongst others. A key impact of land claim is that estuarine processes are altered. Any interference with these processes may have a significant effect on estuarine geomorphology. It may also reduce the ability of the estuary to absorb wave energy. This can result in increased tidal energy reaching parts of the estuary not previously adjusted to this, leading to the erosion of intertidal areas upstream of the land claim.

  23.  The other key impact of port development is that approach channels normally need to be dredged in order for ships to access port facilities. It is estimated that some 30 million tonnes of sediment were dredged by ports in 1993. At the same time, some estuaries are undergoing massive habitats loss—the Stour has lost 44 per cent of its saltmarsh between 1973 and 1988. There is concern that the continued removal of sediment from such estuaries is making the matter worse. Changes in estuarine length and/or depth due to dredging can result in major changes to tidal properties. This may lead to loss of intertidal and subtidal habitat and increases in flood risks due to increased wave and tidal amplitudes.

  24.  Whilst the construction of transport facilities such as roads and ports can be destructive, it is often the routine use of constructed facilities that is more damaging in the long term. For example, noise can harm flora and fauna with many species of bird avoiding areas close to roads for nesting. For example, recent research has shown that stone curlew are more likely to nest in fields at least three kilometres away from a major road. However, a far more insidious impact on biodiversity results from the indirect effects of burning fossil fuels. Of particular concern in terms of their impacts on wildlife are the greenhouse gas emissions that lead to climate change and the emissions that lead to acid rain. These emissions appear to provide the only currently available environmental data for comparison between modes of transport.

  25.  All forms of transport that use fossil fuels emit greenhouse gases and usually acid rain precursors. In Europe, transport (all forms) contributes 69 per cent of CO emissions, 58 per cent of atmospheric NOx and 1 per cent of SOx emissions. Whilst it is clear that road transport contributes by far the greatest amount to atmospheric pollution, shipping contributes the next greatest in terms of gross pollution.

  26.  However, in comparison to other modes of transport, ships can move large volumes of freight relatively efficiently. Only freight transport by pipeline is more efficient. When contributions to atmospheric pollution take account of this, shipping is one of the cleanest forms of transporting large amounts of freight in terms of atmospheric emissions. However, this does not mean it is a clean form of transport. Shipping still makes a significant contribution to certain atmospheric pollutants such as sulphur dioxide. In addition, there are a number of other environmental impacts which are difficult to compare with other modes of transport, such as tributyltin (TBT) pollution and the introduction of alien species in ballast water.

  27.  In order to properly assess the role ports have in integrated transport, it is essential that the environmental costs and benefits are established. This must go beyond simple comparisons of habitat lost under concrete. It must assess the contribution ports can make to the reduction of wider transport impacts (eg reductions in atmospheric pollution, noise, consumption of resources such as fuel) by facilitating transportation of freight by more environmentally sustainable modes of transport such as rail and coastal shipping.

  It is a matter of considerable concern that integrated transport policy, including the development of ports policy has apparently been developed without full knowledge of the environmental costs and benefits of the policies. This must be addressed as a matter of urgency.


Most ports take their environmental responsibilities very seriously. However, their ability to contribute to the conservation and enhancement of wildlife is hampered by out-dated and conflicting duties, functions and powers.

  28.  The White Paper suggests that the strength of ports in the UK is that each has powers to suit its needs and that commercial decisions and responsibility for operations rests with those with the powers and duties which go with them [1.1.8]. The RSPB does not entirely agree. Indeed, the White Paper goes on to state that local port legislation has not always remained fit for the purpose as new duties tend to be overlaid on existing requirements [3.2.3]. Some of these new duties are environmental duties (eg the general duty to have regard to nature conservation interests by virtue of Section 48A to the Harbours Act 1964—note this does not apply in Northern Ireland). Only a few ports appear to have powers specifically relating to the implementation of this and other environmental duties (eg Crouch, Chichester, Fosdyke and Hayle). The White Paper points out that port authorities may if they wish seek additional powers relating to the environment (eg to make byelaws for environmental purposes). However, it is suggested that because none have done so must mean that existing powers are broadly adequate [2.5.27]. It is far from clear whether this is actually the case.

  29.  A key problem is that it is unclear whether a Harbour Revision Order (HRO) could be used to give a harbour authority powers to make byelaws for environmental purposes. This is because new powers conferred on statutory authorities cannot be open ended: they must relate to their statutory functions. In other words, new powers for nature conservation must be consistent with the basic functions of harbour authorities (ie to improve, maintain or manage the harbour or facilitate the transport of goods and passengers by sea). Indeed, the appropriate Minister can only make a HRO if he is satisfied that the making of the order is desirable in the interests of securing improvement, maintenance or management of the harbour in an efficient and economic manner or of facilitating the efficient and economic transport of goods and passengers by sea or in the interests of the recreational use of sea-going ships.

  30.  A Government review of coastal byelaw making powers concluded that a wider enabling power to enable harbour authorities to make byelaws for environmental purposes without having to seek a HRO should not be pursued. It was argued that this would conflict with the prime duties of port authorities to have regard to commercial considerations. Therefore, RSPB welcomes the suggestion in the White Paper that it could be made easier for ports to assume environmental duties and powers [2.5.57]. However, the Society has not yet seen any such proposals from the ports industry.

  In the interests of open Government and transparency, DETR should make proposals to change the way in which ports assume environmental duties and powers, available for public comment.

  31.  These issues are even more important now that the Countryside and Rights of Way Act 2000 (CroW Act) imposes more environmental duties on port authorities in England and Wales [2.5.24].

  Port authorities now have a duty to take reasonable steps, consistent with the proper exercise of their functions, to further the conservation and enhancement of Sites of Special Scientific Interest. It is essential that the scope and extent of port authorities powers is clarified and that they are sufficient for the effective implementation of these new duties.

  32.  In addition, ports, as Section 28G Authorities under the CroW Act, must inform the statutory nature conservation agencies if they intend to carry out an operation likely to damage an SSSI. The conservation agencies can advise that the operation should not go ahead. However, the White Paper is wrong to suggest that port authorities have a duty to follow the advice of the conservation agencies [2.5.24]. The CroW Act merely requires the port authority to demonstrate how (if at all) it has taken account of the advice received. During the Committee states of the CroW Act, amendments were tabled which would have ensured that at the very least, such damaging operations could be "called in" for determination by independent arbiter. Unfortunately, Government felt that it was better to rely on the courts and the process of judicial review for resolving such situations. The RSPB disagrees. Therefore, it is of interest that the White Paper suggests that Government plans to seek reserve powers to use where a port authority is failing to discharge any of its legal functions and a risk of loss of life, injury, danger to navigation or marine pollution is likely [4.2.8]. This power would be warmly welcome if it was extended to include environmental reasons.

  33.  It will be essential that clear advice and guidance is provided to ports on meeting their new duties under the CroW Act. Government must ensure that the proposed statutory guidance on Section 28 of the Wildlife and Countryside Act 1981 (as amended) provides clear, unequivocal guidance for ports.

  RSPB believes that effective implementation of the Countryside and Rights of Way Act 2000 will require:

    —  clarification about the extend of the environmental powers of port authorities and whether they are fit for the purpose of conserving and enhancing SSSIs;

    —  procedures to ensure that inappropriate damaging operations cannot be carried out against the advice of the statutory nature conservation agencies; and

    —  clear advice to port authorities on meeting their new environmental responsibilities.

  34.  Port authorities are competent authorities under the "Habitats" Regulations. As competent authorities, harbour authorities have certain environmental duties relating to Special Protection Areas (SPAs) and Special Areas of Conservation (SACs). They must exercise their functions so as to secure compliance with the requirements of the Habitats Directive. It is far from clear how harbour authorities should implement these Regulations.

  35.  Furthermore, port authorities may establish a management scheme for a European marine site. Note that the White Paper says that the Habitats Directive requires port authorities to take part in the preparation of management plans [2.5.23]. Whilst this would be welcome, and indeed the vast majority of port authorities operating within European marine sites where a management plan is being prepared are believed to be involved, this is not a statutory requirement. Guidance on the establishment of management schemes for European marine sites states that where regulation is needed the measures may be based entirely upon the existing powers of the relevant authorities if they are capable of being used to achieve the objectives of designation. In other cases, relevant authorities may need to consider seeking changes to the ways their existing statutory jurisdiction is applied using the established procedures for that purpose. It is suggested that harbour authorities might need to apply for new powers by means of a harbour revision order. However, as discussed above, it is unclear whether this is, in law, a route open to harbour authorities.

  RSPB believes that the ability of port authorities to make a full contribution to the conservation and management of European marine sites may be curtailed due to restrictions in the extent of management powers.


  36.  The White Paper outlines the framework within which decisions should be made about port development proposals. The RSPB welcomes key features of this framework. Ports planning expansion are expected to demonstrate that:

    —  existing facilities with increased efficiency could not meet demand [2.4.11];

    —  the full range of alternative options have been considered [2.4.15];

    —  the proposals are commercially viable [2.5.15];

    —  measures to reduce or eliminate any adverse affects (mitigation measures) have been fully considered early at the design stage [2.4.17]; and

    —  if adverse affects remain, that the net benefits clearly override the environmental disadvantages [2.4.19].

  37.  It is the Government's intention to maintain a balanced policy on development and support sustainable projects "where there is a clear need" [1.2.2, 1.2.3, 2.4.7]. Whilst such objects are laudable, there is little indication as to how Government intends to strike a balance, what constitutes a "sustainable" project or a "clear need". The White Paper states that all ports serve the national interest and that it is in the national interest that ports remain able to handle current trade as well as potential development [1.1.2]. This at least provides some indication of how a balance is to be struck. However, whilst RSPB believes that achieving this for the ports industry as a whole is in the national interest, this does not mean that maintaining every single port is a national interest.

Government must provide greater clarity on how it intends to strike a balance between port development and environmental considerations in order to deliver sustainable port development.

  38.  For new developments, the White Paper draws on the approach outlined in the Integrated Transport White Paper. The RSPB broadly supports the approach outlined [2.4.20]. However, there is an urgent need to clarify some of the principles included.


  39.  The White Paper asks whether there are alternatives which serve the purpose of the proposal at "reasonable cost". It is important to consider precisely what the purpose is. In the context of an individual port's commercial aspirations, the purpose of a damaging dredge proposal might be to ensure larger ships can access port facilities and thus increase their market share. However, if ports are considered a national interest, then the purpose of the proposal must be to serve that national interest. Therefore, it would be inappropriate to define the purpose in terms of an individual port. Instead, the purpose must be defined in terms of national socio-economic interests (eg delivery of integrated transport objectives) as well as national environmental objectives. Such decisions are of critical importance with respect to implementing Article 6 of the Habitats Directive.

Government should develop a clear and transparent process for establishing what constitutes national interests in the terms of port development and the environment


  40.  The White Paper raises the issue of reasonable costs, both in the context of alternative proposals and with respect to mitigation or compensation measures. However, no guidance exists concerning how to make decisions about reasonableness. The RSPB is aware of only one occasion where costs to a port in terms of alternatives has been considered. The Secretary of State concluded whilst considering the revocation of a planning permission to dispose of dredge material at Barksore in the Medway, that although pursuing alternative sites would be more costly (up to four times), current dredge disposal costs only amounted to 0.7 per cent of port turnover. Whilst this would affect the competitiveness of the port, it was concluded that it was not clear that this would jeopardise the continued commercial success of the port. Indeed, it was pointed out that there is nothing in Regulation 49(1) of the Habitats Regulations (and by implication Article 6.4 of the Habitats Directive) to suggest that alternative solutions considered must be equivalent in terms of costs.

Government should develop criteria for establishing what it considers to be "reasonable costs" in terms of alternatives to damaging proposals as well as mitigation and compensation.


  41.  The White Paper requires port developers to consider the likely success of mitigation and compensation proposals. It provides further guidance in this respect in relation to mitigation and compensation measures which involve habitat creation [2.4.22]. It states that the quality of the habitat created would be expected to become good enough to safeguard the coherence of the network of protected sites and that this should happened within a clear timescale. RSPB believes that these objectives do not reflect guidance from the European Commission in relation to European wildlife sites. For example, in a reasoned opinion, the Commission stated that the compensation measures relating to the construction of the A20 in Germany had to be taken simultaneously with the construction works. Furthermore, the Commission's guidance note on Article 6 of the Habitats Directive states that compensation "has normally to be operational at the time when the damage is effective on the site concerned with the project unless it can be proved that this simultaneity is not necessary to ensure the contribution of this site to the Natura 2000 network". In addition, RSPB would argue that simultaneity may be unwise where the impacts of a proposal are uncertain.

Government should as a matter of policy, require compensatory habitats to be established and shown to be operational prior to a site sustaining damage

  42.  This presents developers with a problem: they should invest in appropriate habitat creation in advance of proceeding with a damaging development. This has two consequences:

    (i)  If a developer waits until their proposal has received consent, then starting work on the development itself would have to be delayed until the required habitat has been created and shown to function; or

    (ii)  If a developer wishes to proceed with a damaging proposal as soon as consent is received, then habitat will need to be created in advance of knowing whether it will actually be required.

  43.  To an extent, the White Paper recognises this as an issue when it states that ports must carry out assessments at an early stage of project preparation if they are not to limit their ability to respond quickly to new customer demands [2.4.19]. However, RSPB would reiterate the cautionary note of the White Paper, that habitat creation may be costly, difficult or ecologically untried [2.4.22].

  44.  The difficulties in providing adequate new habitat as mitigation or compensation measures, both in terms of the uncertainties of the developer as well as for nature conservation, has led to a debate about the merits of "habitat banking". In effect, this is where the developer either creates habitat in advance of firm development proposals, or buys "credits" from an "entrepreneur" who has created new habitats for the purpose of selling them to developers who need to offset damage. The RSPB has looked at the habitat land banking issue in some detail albeit in relation to providing new coastal habitats to replace those lost due to rising sea levels. However, there are a number of significant issues which need to be considered before such ideas can be progressed.

  45.  The most significant issue to address is the relationship between any habitat banking framework and existing nature conservation policy and law. For example, the RSPB would be very concerned that the provision of the habitat "up-front" might short-cut the provisions of Article 6 of the Habitats Directive by allowing developers to conclude that a damaging development along with a habitat bank would mean no overall adverse affect on a site. This would mean important issues such as the search for less damaging alternatives and establishing an imperative reason for overriding public interest would not be addressed. This is not to say that such an approach should be discounted out of hand, but that the framework in which it can operate whilst meeting international and national nature conservation obligations must first be established.

Government should establish a working group consisting of the DETR, industry, statutory nature conservation agencies and NGOs, to assess the relevance of the habitat banking concept and its compatibility with wildlife conservation policy and law.


  46.  The consenting regime for developments below the low water mark (generally outside local authority jurisdiction and the Town and Country Planning process) is complex, fragmented and lengthy. For example, a port authority wishing to construct a new quayside is like to have to deal with at least two Government Departments (DETR and MAFF) as well as two separate divisions within DETR (European Wildlife and Ports). In addition, it is likely to require the permission of the Crown Estate and may require other consents such as for discharges from the Environment Agency. This fragmented approach to maritime planning and management has been subject to extensive reviews. More recently, the issue has once more been considered by DETR's Review of marine Nature Conservation working group. All conclude that the consenting regime in the maritime environment needs rationalising.

  47.  Therefore, the RSPB welcomes the proposals in the White Paper for a simplification and rationalisation of procedures for port development [3.2.8] and for better co-ordination of Government Department activities [3.2.10]. However, in doing so, care must be taken to ensure transparency, rigour and the involvement of all interested parties is not compromised. It has been suggested that the "needs" case could be established before an assessment of the implications of a proposal is made, thus avoiding time-consuming and expensive work to establish impacts, only to find the project cannot proceed because there is no overriding public interest. However, this approach would not be consistent with the logic of Article 6 of the Habitats Directive which correctly places this decision at the end of the process. It is essential that this is the case. A decision about "needs" cannot be made in the absence of knowledge about the impacts. The decision must include consideration of the scale of impacts, likelihood of them occurring, the irreversibility of the impacts.

  The proposed review of maritime consenting procedures which relate to port developments is welcome. However, it is essential that current environmental safeguards and especially the requirements of wildlife conservation policy and law are not undermined.


  48.  Work carried out by the RSPB suggests that at least 77 ports in the UK operate within or have jurisdiction over 44 internationally important bird sites which are, or should be classified SPAs. This analysis would now need to also include estuarine sites included on the proposed SAC list. The UK ports industry has often suggested that because the coastline of the UK is so important for wildlife, that it constrains their activities and places them at a competitive disadvantage with their mainland Europe counterparts. For example, the Port of Bristol was opposed to the inclusion of the Severn estuary on the SAC list in part because it would in their view disadvantage the port by requiring development proposals to go through lengthy inquiry procedures. The matter was resolved to an extent at the European Court of Justice which ruled that economic, social and cultural requirements could not be taken into account when identifying sites under Article 4(1) of the Habitats Directive.

  49.  The majority of ports on the northwest coast of Europe also operate within or adjacent to internationally important bird areas. However, it is clear that the implementation of the Birds (and probably the Habitats Directives), that the delineation of sites close to ports varies considerably from country to country. This is an issue which has not escaped the notice of the European Commission. For example, the French Government was found in breach of the Birds Directive due to a failure to designate sufficient area of the Seine estuary as a SPA. The proposed area had been defined in agreement with the Autonomous Ports of Le Havre and Rouen.

  RSPB believes that the selection of European wildlife sites varies considerably throughout Europe especially where economic interests such as ports are involved. The UK Government should apply pressure on the European Commission to ensure that the application of the Directives is consistent throughout Europe so as to avoid competitive distortions.

  50.  It would also be wrong to suggest that all ports in Europe operate within a less stringent environmental regime. Increasingly, other ports are now actively involved in the development and provision of mitigation and habitat compensation measures (eg Bremerhaven). Work by the International Navigation Congress (PIANC) in which RSPB participates, has identified a wide range of different environmental works carried out by ports throughout Europe in response to the environmental implications of their operations. PIANC intend to publish a "good practice" guide based on these examples. Government should consider this work when promoting agreed national standards and good practice for port management and operations [1.2.2].

  The RSPB believes that where European sites have been designated, that ports throughout Europe are increasingly taking their environmental responsibilities very seriously and thus reducing the potential for competitive distortion.

Duncan Huggett

18 January 2001

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