Memorandum submitted by Port of London
Authority
"We are the Environment Agency. It's our
job to look after your environment and make it a better place—for
you, and for future generations"
from the Environment Agency website
EXECUTIVE SUMMARY
The Port of London Authority works closely with
the Environment Agency at a local level and our powers, duties
and expertise are often complementary. We try to use this fit
to deliver effective environmental protection, for which we share
responsibilities.
Unfortunately, we sometimes find the Agency's
central policy direction to be unhelpful in particular cases,
but seeking resolution with local operational teams can prove
slow and time-consuming at best, impossible at worst. Examples
are given of both the positive and the negative aspects of the
relationship.
Further, we also encounter a tendency by the
Agency to exceed the purposes for which it was established—exemplified
by the quote above—and to be dismissive of others' roles,
even where duties and powers are complementary; this is tiresome
and counterproductive.
INTRODUCTION
1. The Port of London Authority (PLA) welcomes
the Committee's decision to inquire into the work of the Environment
Agency (the Agency) and is pleased to make this submission to
aid the process.
BACKGROUND
2. The Port of London Authority was established
by Parliament in 1908 to own and run the dock systems on the Thames
and to control and regulate the river from the tidal limit by
Teddington Lock in West London to the sea (about 95 miles). It
presently operates under the Port of London Act 1968 (PoLA). The
PLA reports annually to parliament through the Secretary of State
for Transport who also appoints the Chairman and a number of other
members of the Authority. It is a Harbour Authority, a Competent
Harbour Authority (ie a pilotage authority) and a Navigation (lighthouse)
Authority under various other enactments.
3. The PLA receives no financial support
from the government, it has no shareholders and it makes a surplus
only for the purposes of paying tax and providing for its future
expenditure. The PLA is run on commercial lines and collects its
revenues from its users, some of them regulated by statute such
as conservancy charges under the Harbours Act, some on normal
commercial terms in competition with other providers.
4. The PLA has environmental duties and
responsibilities flowing from section 48A of the Harbours Act;
it acts as a competent authority under the European Birds and
Habitats directives and implementing UK Regulations for a number
of important European Marine sites that fall within the PLA's
jurisdiction; and it has responsibilities for SSSIs under the
Wildlife and Countryside Act 1981 and the Countryside and Rights
of Way Act 2000.
5. The PLA owns most of the riverbed between
Teddington and Southend-on-Sea, and has statutory licensing responsibilities
under PoLA for any works or dredging in the river or estuary within
the PLA's jurisdiction (over 400 square miles). This has three
further consequences for its environmental obligations:
(a) the PLA routinely acts as an environmental
regulator for the river and estuary and has become expert in those
areas for which it is the lead authority, particularly hydrodynamics
and the environmental effects of dredging;
(b) the PLA exercises varying levels of stewardship
over a number of European and national conservation sites, not
only as a competent authority or due to any impacts under review,
but also as the owner of the foreshore on which a number are located;
and
(c) because of the extent of these responsibilities,
the high conservation importance of some of the areas it controls
and the wide technical span of these interests, the PLA has actively
built good working relationships with other environmental regulators
and NGOs whose expertise can assist it to fulfil its responsibilities
for the environment. These include English Nature, the Agency
and the RSPB.
6. A good example of productive working relationships
on these matters is the Dredging Liaison Group for the Thames,
set up under an independent Chairman by the Thames Estuary Partnership
of which the PLA, the Agency and English Nature are founding members,
to improve two-way understanding, information sharing and transparency
in the PLA's decision making on dredging. The Group is attended
by the three organisations noted above along with other public
and private sector interests. It has been extremely successful
over the last five years in achieving its objectives, and it is
regarded as a model by Defra and DfT who both attend its regular
sessions.
THE PLA'S
RESPONSE TO
THE TERMS
OF REFERENCE
7. The PLA's geographic interest covers three
Agency regions and direct working relations between the PLA and
the Agency are many and varied. They are generally good and constructive.
Examples include:
(a) local operational and wider policy liaison
between the Agency (running the Thames Barrier) and the PLA (managing
navigational safety in the vicinity of the Barrier);
(b) liaison on dredging matters, both at
the Dredging Liaison Group (see 6. above) and directly;
(c) liaison on river works applications to
the PLA and responses to planning applications affecting the river;
(d) constructive engagement on the Water
Framework Directive and its future application to the Thames,
particularly the work carried out by the Agency on initial water
body characterisation, etc, on which the PLA submitted detailed
responses during the consultation programme;
(e) constructive engagement on the Thames
2100 flood risk project being conducted by the Agency on behalf
of Defra, including extending and sharing the PLA's hydraulic
model of the Thames, and being consulted by the Office of Government
Commerce during its examination of this project;
(f) making routine applications to the Agency
where the PLA's interests impinge on the Agency's responsibilities
for flood defences;
(g) liaison between the PLA and the Agency
on recreational use of the Thames and operational matters as adjacent
navigation authorities; and
(h) liaison during consideration of major
projects, including the London Gateway scheme, to ensure mutual
understanding.
8. In this way, the PLA respects the Agency's
statutory role and co-operates in efforts to discharge it. However,
the PLA has had a number of concerns from time to time over the
Agency's approach to the PLA's statutory role, as another environmental
regulator (alongside its safety responsibilities) and as the lead
regulator, by statute, for a number of areas of activity on the
Thames. It is in these areas that good liaison and productive
working relationships come under strain from time to time.
9. These problem areas seem to be policy led
from the Agency's centre as we appear to get caught up in strategic
initiatives which outstrip the Agency's statutory powers, or otherwise
infringe the PLA's own powers and obligations. Two examples of
this are given below (para 14 et seq).
10. Under the managerial model which the Agency
operates, Policy— Process—Delivery, there has been
a proper effort, in our view, to centralise Policy formulation
to a greater degree and to restrict local units to interpretation
and implementation on the ground, in pursuit of efficiency and
consistency. At one level, we applaud this: formerly it was a
regular complaint that different regions and areas took differing
approaches when fulfilling statutory responsibilities. In the
event, however, this centralisation and prescription has given
rise to two new problems: one probably unavoidable, the other
more serious.
11. Firstly, local interpretation of central
policy in the light of local facts or conditions—as moderated
by prescribed processes—inevitably can lead to inconsistencies,
something that perhaps should be accepted since the alternative
would be complete centralisation and a consequent sclerosis.
12. The second problem is perhaps the more serious,
namely, that policy and, to a large extent, ready-made interpretations
of it now come from the Centre to operating units who have little
discretion to take account of the local facts or circumstances.
This would be acceptable provided those affected by the regulatory
processes were able to engage in an informed discussion with central
staff whose generic decisions and guidance drive the regulatory
decisions on the ground. We have found in practice that this is
often not the case, as shown in the examples below. Policy makers
are willing to share their conclusions widely, but do not respond
to reasoned cases on why their opinion is at variance in particular
situations with court decisions or statutory frameworks.
13. To summarise on this point, therefore, we
perceive a growing problem with the Agency's recent organisational
restructuring. While most routine operations are handled efficiently
on the ground within central policy frameworks, the occasional
more difficult or novel issue, perhaps stimulated by a change
of Agency thinking (as in the case of waste regulation, see below),
tends to become a major obstacle to relationships between the
PLA and the Agency. The PLA always seeks to ensure that it operates
within current law and its own part of it, but Agency officers
with whom it interacts can find themselves unable to answer for
Agency policy, or even to answer policy questions, and simply
hand down contentious decisions as settled. This is an inadequate
response to regulation where there are good cases to be made that
the Agency is acting outside its proper or lawful authority.
Example 1: The nature of clean dredged fine sand:
waste not, want not.
14. The PLA requires the Princes Channel, several
miles out to sea north of Herne Bay in Kent, to be deepened to
improve navigational access to the port and safety. This operation
will produce about five million tonnes of uncontaminated fine
silty sand which could either be disposed of to sea (under a Food
and Environment Protection Act licence from Defra), or made use
of on land.
15. Physically suitable dredged material that
is not contaminated is a resource that should be used elsewhere;
it is not waste in the usual understanding of the word. Government
policy presses for alternative and beneficial use of such material
wherever possible, before it considers a licence for disposal
to sea. This accords with OSPAR and the London Convention on deposits
at sea to which the UK is a signatory.
16. The sustainability agenda clearly requires
such dredged material to be used beneficially to avoid a requirement
to source virgin material. The government's commitment to sustainability
is evident in the aggregates tax regime that explicitly discourages
unnecessary use of virgin materials where suitable alternatives
are available, and includes an exemption from tax for material
from navigational dredging to improve its take-up in the market
place.
17. The Agency meanwhile has repeatedly stressed
its aim to pursue "risk-based" or "light-touch"
regulation, thereby placing minimal impediments in the way of
a flourishing economy and ensuring those restrictions that have
to be maintained in the interests of environmental protection
are fit for purpose and commensurate with the hazards and risks
they prevent or protect against.
18. In this case, however, things are not working
out that way. The Agency has declared that all material dredged
for navigational purposes and used on land should be regarded
as waste and regulated under a waste management licence. It should
be noted here that although the PLA is addressing the issue from
the perspective of its Princes Channel project, we know from other
ports that the problem is widespread and represents a significant
departure from sustainability and risk-based/light-touch regulation.
19. We therefore see an Agency that is increasing
bureaucracy, preventing compliance with government policy (or
making it more difficult and expensive), adding difficulties in
achieving sustainability, increasing costs to industry, and in
some cases delaying the achievement of the ODPM's housing targets
on brownfield sites, such as the Thames Gateway, which can often
require substantial amounts of low-cost but clean material for
land raising or remediation.
20. This is an unnecessary obstacle as all the
required controls for using such material are already in the planning
system and would be applied in exactly the same way for navigational
dredged material as for virgin material. The PLA recognises that
waste controls have a proper place, but they are being misused
in this case.
21. The Agency's position is based on the European
Waste Framework Directive (WFD) and its legal definition of waste
which, it contends, gives no leeway. We are confident that this
view is incorrect following judgements by the European Court of
Justice (ECJ) since 2002.
22. The Agency has not explored its reasoning
with us in any detail, but it appears to be drawn from a simple
reading of the WFD's definition of waste (which could indeed be
held to catch dredged material in its net, however counter-intuitive
that seems). However, this reading can undermine the formal policy
objectives included in the WFD that stress the need to make full
use of materials rather than treat them as waste.
23. In an important judgement by the European
Court of Justice (ECJ) on the definition of waste in 2000 (Arco
Chemie), the court included in its judgement the UK Government's
response to this contradiction:
"The United Kingdom Government further states
that production residues, which may constitute useful by-products,
and may be used as a raw material without further processing,
in the same way as any other raw material of non-waste origin,
comprise part of the commercial cycle and do not constitute waste."
24. At the time, this was a prescient view by
the UK government as it took the ECJ several further cases, beginning
with "Palin Granit" in 2002, to give full legal force
at a European level to the re-interpretation of the definition
of waste that the UK was calling for in 2000. We see here, therefore,
a situation where the UK's common-sense solution to a previous
flaw in European legislation had been picked up and corrected
through formal European mechanisms, and in pretty quick time too.
Unfortunately, the Agency does not yet appear to have taken these
judgements on board and so rejects the direction taken by the
ECJ since 2002.
25. The PLA sought legal advice on this from
Rt Hon Lord Kingsland QC who found that the Agency is incorrect
in its interpretation of the WFD, and we supplied copies of his
advice to the Agency, Defra and others in September. We have had
no response yet on why the Agency feels his conclusions to be
incorrect. It should be noted that although the instructions were
drafted in terms of Princes Channel, the legal arguments and Lord
Kingsland's conclusions could be expected to apply in other similar
cases.
26. It is also regrettable that while the Agency
is responsible for managing operational waste issues as the competent
authority on behalf of Defra, Defra has been slow to issue the
necessary policy guidance in a changing situation. Defra's guidance
on the definition of waste (11/94) has not been regarded by Defra
or the Agency as authoritative for some years, owing to a string
of ECJ judgements, but its revision is still awaited thereby allowing
a policy vacuum at government level to endure.
27. The PLA is disappointed that the Agency
will not engage on this complicated and technical/legal matter,
as it remains convinced that the Agency is regulating incorrectly,
failing in its proclaimed pursuit of "light-touch" or
"risk-based" regulation, wrongly stifling sustainability,
and is costing the economy money. In one scheme in the Thames
Gateway, the proposed imposition of a waste management licence
led the contractor to cancel plans to use about a million tonnes
of material from Princes Channel and use more expensive virgin
material instead. The switch of delivery transport from river
to road will add 90,000-100,000 tipper truck movements to an already
congested area, a direct result of over-zealous environmental
protection.
Example 2: Misuse of the Thames Region Land Drainage
Byelaws
28. These Byelaws dating from 1981 support the
Agency's work in land drainage on the Thames, providing a range
of necessary powers to manage its responsibilities, particularly
the integrity of flood defences along the river banks.
29. The Byelaws include general and widely drawn
savings for anything done under statutory rights or powers by
a number of other bodies, including any navigation, harbour, pilotage
or conservancy authority (ie the PLA). This means the Agency does
not have the power under these bylaws to interfere with the PLA's
proper management of the river under its own statutory powers,
just as the PLA respects the Agency's responsibilities to look
after its flood walls and ensure their continued fitness for purpose.
30. Recently, however, the Agency has begun
pressing for control over dredging and construction works in the
Thames, all of which are regulated by the PLA under PoLA (as well
as planning controls), in part by claiming powers under these
Byelaws that have not been granted to it. The Byelaws were made
for an explicit land drainage purpose, and although the governing
Act has now been subsumed into wider legislation, we are advised
that the purposes of the Byelaws must remain restricted to land
drainage until or unless explicitly amended and confirmed as such
by the Secretary of State.
31. The PLA has drawn this excessive zeal to
the Agency's attention a number of times, in private and in public,
as river users have become concerned and confused. An informal
agreement was quickly reached at senior level that the Agency
was acting incorrectly by exaggerating their powers to third parties,
but that has not resolved the problem which has now been running
locally for over two years. The PLA offered a memorandum of understanding
some months ago to document its oral reassurance to the Agency
that, as always, it would continue to respect the Agency's duties
in respect of its flood walls, in return for which the Agency
was asked to make greater efforts to have its operational staff
desist from making improper representations to applicants for
works on the Thames. That offer is still being considered by the
Agency.
I trust that this reflection on the relationship
between the PLA and the Agency, which includes both positive aspects
and areas of concern, will be helpful to the Committee and inform
its inquiry as it proceeds.
Port of London Authority
December 2005
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