Examination of Witnesses (Questions 360-379)
7 JANUARY 2004
MR ELLIOT
MORLEY MP AND
MR JOHN
ROBERTS
Q360 Alan Simpson: I am not asking for
specifics about fragments or sections, I am saying at what point
do you think you will be in a position to identify the whole picture
that you are seeking to address?
Mr Morley: When you talk about
a whole picture, it is a whole picture of what and what you mean
by that, what you intend by that. We have a whole picture around
our coastlines, quite a detailed one. We have a picture in relation
to sensitive seabed areas for a variety of reasons. We have a
picture of where there is gas and oil developments taking place,
where there have been blocks which have been allocated in relation
to aggregates dredging. They themselves have been subject to environmental
impact assessments. They all fit into the overall picture. That
is in place now.
Q361 Alan Simpson: I just wanted to see
if that included the deep sea as well as the coastal areas.
Mr Morley: The deep sea is more
difficult because a lot of that is outside our territorial waters.
Once you are outside our territorial waters then of course you
are into international agreements, where they exist. There is
a great deal lacking in international agreements. That is why,
from the UK point of view, we want to try and progress this at
the UNCBD meeting this year.
Q362 Joan Ruddock: We move on now to
the more mundane issue of dredging. The UK Major Ports Group told
us that Defra have proposed that in future maintenance dredging
should be treated as a plan or project under the Habitats Directive
which would mean that any dredge could require that there was
an assessment as required by the Directive. Can you tell us what
led Defra to make that proposal?
Mr Morley: Do you mean in relation
to the assessments?
Q363 Joan Ruddock: They said any maintenance
dredging would have to be considered as a plan or project under
the Habitats Directive and that would mean that an assessment
would have to be made of that maintenance dredging.
Mr Morley: It is basically that
all dredging has an environmental impact. We do not want to be
too restrictive in relation to maintenance dredging but it can
have consequences and therefore there does need to be a plan of
action for how it is carried out. My impression was that the plan
for maintenance dredging was to make life a bit easier rather
than more difficult.
Q364 Joan Ruddock: I do not think that
was the impression they gave us at all. We had a really lengthy
exchange about that. If there was going to be a new development
then everybody was quite clear, you started from scratch, but
if you were doing maintenance dredging the impression they gave
us was that this was something that was not such a regular occurrence,
that masses of material was coming in and going out and you had
to keep dredging otherwise your ports would silt up etcetera,
so why make such a fuss about it. They were saying it had been
going on forever.
Mr Roberts: I will make a couple
of points. First of all, we have always taken the view that in
principle maintenance dredging is potentially subject to the Habitats
Directive, so it is not a change of view. Secondly, our view is
based on our advice on the legal interpretation of the Directive
and that view is consistent with the guidance which the European
Commission has given, that although the activity is ongoing it
is potentially subject to the requirement under the Habitats Directive
for an assessment to be made.
Q365 Chairman: Can I just ask you, you
said "potentially", is it or is it not?
Mr Roberts: Sorry?
Q366 Chairman: You used the word "potentially".
Mr Roberts: I was using the word
potentially in the sense that an assessment is required if there
is going to be an environmental impact. So the process is when
any project under the Habitats Directive comes in the first test
is whether there is an impact on the environment and then, if
there is, an assessment is required and our statutory nature advisers
will advise the consenting authority on whether there is likely
to be an impact on the environment.
Q367 Chairman: Just to be a little bit
rude to Joan Ruddock, can I just say have you checked that other
Member States' interpretation and methodology is in parallel with
the one you have just outlined to the Committee?
Mr Roberts: I am not aware of
the position in other Member States but if we have legal advice
and the Commission guidance points us in that direction—they
are consistent—then we would feel the need, I think, to
apply the directive as we think it needs to be applied. Can I
say we are aware of the issue which arises here and the potential
burden that this imposes potentially so what we have been doing
with DfT and the Nature Conservation Agencies is working with
the ports industry to try and find a protocol for applying this
in a way which is less burdensome.
Q368 Joan Ruddock: Before you get on
to that, can I just check, you said you had Commission advice?
Mr Roberts: Yes.
Q369 Joan Ruddock: So we presume all
Member States have got the same advice from the Commission?
Mr Roberts: Yes.
Q370 Joan Ruddock: Defra then sought
to get legal advice. Would that be what you would normally do?
Is it possible that other Member States, having had the same advice
from the Commission, choose not to take legal advice and therefore
could move no further from what the Commission says? Why did you
take legal advice specifically?
Mr Roberts: I think if there is
any doubt about the application of a legal requirement then any
good regulator will seek to get legal advice to clarify that.
Q371 Joan Ruddock: Does that suggest
that the Commission's advice caused there to be some doubts in
your minds?
Mr Roberts: I am afraid I cannot
give a direct answer to that because it is not an area for which
I have personal responsibility so I do not know the order in which
the various pieces of advice were received.
Q372 Joan Ruddock: I think the evidence
that we were being given orally was suggesting that the UK, perhaps
once again, is more strictly interpreting this measure or the
advice of the Commission and other Member States might not do
similarly.
Mr Morley: All I can say to you
is that we are very careful to check whether or not we are gold
plating regulations. That is also one of the reasons why sometimes
legal advice is sought as to whether or not we do have to take
such steps. As you have heard the position the UK has taken is
consistent with the Habitats Directive, the advice we received
both legally and from the Commission.
Q373 Joan Ruddock: I do not think I am
surprised but I think the British Major Ports Group was.
Mr Morley: As John has said, we
are very happy to work with the ports to try and minimise the
impact of this on them.
Q374 Joan Ruddock: Right. Sorry, I interrupted
you.
Mr Roberts: The way that we hope
to approach this is through a protocol which has just been agreed
and it is being trialled in three areas during 2004 that is Cowes,
the Humber and Truro/Penryn. The idea is that each port will produce
a base line document bringing together existing data which it
largely routinely collects about the status of the site. Then
if the conservation agencies are satisfied that the scale of any
proposed continuing maintenance dredging operation is not going
to have a detrimental effect on the site then it is unlikely that
any further assessment will be needed. So once the environment
has been characterised and the impact of routine maintenance dredging
has been assessed once then it will not be necessary for that
assessment to be repeated whenever maintenance dredging is required
to be done. In that way we can satisfy the requirements of the
Habitats Directive, we can be certain that the environment is
not being damaged without imposing additional burdens on the port
industry.
Q375 Joan Ruddock: Can I assume that
is what came out of a meeting on December—it would have
been about 3 December? They said they were having a meeting with
Defra the next day.
Mr Roberts: That is that process.
Q376 Joan Ruddock: That is what has come
out of that protocol and that process.
Mr Roberts: Yes.
Q377 Joan Ruddock: I think one of the
other questions that arose during that evidence was whether the
Department treated applications for dredging licences from the
Queen's Harbourmaster differently from the way in which it treated
applications from commercial ports? I wonder what your answer
to that is?
Mr Morley: They are not treated
differently.
Q378 Joan Ruddock: Thank you very much.
Mr Morley: The MoD could theoretically
use Crown immunity in relation to matters of dredging, they do
not. The dredging is normally carried out by private commercial
contractors and they go through the same procedures for consents
as any other dredging company.
Q379 Joan Ruddock: Can we assume—with
all this new protocol in relation to dredging—it would be
theoretically possible that maintenance dredging was found to
be so harmful that action had to be taken, and one of the things
they raised as a possibility was could a port actually be closed
as a consequence of maintenance dredging not being permitted as
a result of this new arrangement?
Mr Morley: I think that is very
unlikely for the very reason, as you quite rightly said, that
the dredging has been taking place in many cases for a very long
time. Of course many ports are in special areas of conservation.
There is an environmental impact and in relation to your question
about what are other EU Member States doing, I understand that
the Department is actively checking to see exactly what other
Member States do in relation to dredging through SACs.
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