Teesport Harbour Revision Order decision letter
Eversheds
Senator House
85 Queen Victoria Street
London
EC4V 4JL
21 February 2008
Dear Sir
HARBOURS ACT 1964
APPLICATION FOR THE PROPOSED TEESPORT HARBOUR REVISION ORDER
TRANSPORT AND WORKS ACT 1992
APPLICATION FOR THE PROPOSED TEESPORT (LAND ACQUISITION) ORDER
1 I am authorised by the Secretary of State to inform you that consideration has been given to the application you submitted on behalf of your client, PD Teesport Limited (“the applicants") on 27 April 2006 for the making of the Teesport Harbour Revision Order (“the HRO”) under Section 14 of the Harbours Act 1964.
2 I am further authorised to inform you that consideration has been given to the application made on behalf of your client on 26 May 2006 for the Teesport (Land Acquisition) Order under sections 3 and 5 of the Transport and Works Act 1992 ("the TWA Order").
Summary of the Secretary of State's decision
3 The Secretary of State has authorised the making of the HRO, with some minor amendments and other modifications not substantially affecting the character of the HRO, which appear to her to be necessary.
4 The Secretary of State has also decided to make the TWA Order, subject to a qualification with regard to a proposed compulsory purchase of an interest in land, and with some minor drafting modifications.
Application Procedure
5 The Secretary of State, after consulting with the applicant and such bodies with environmental responsibilities as she thought appropriate, decided that the proposed HRO application related to a project which fell within Annex I of the Directive (Council Directive 85/337/EEC as amended by 97/11/EC) and an Environmental Statement (ES) to accompany the application was therefore required.
6 Notice of the application for the HRO, and the Environmental Statement, was advertised in the London Gazette of 3 May 2006 and in The Northern Echo, The Evening Gazette and The Middlesbrough Herald and Post of 3 and 10 May 2006.
7 A supplement to the Environmental Statement was produced by the applicants and similarly advertised in March 2007.
8 The Secretary of State received objections to the HRO from three organisations within the statutory period of forty-two days provided for in Schedule 3 of the Harbours Act 1964. All objectors subsequently withdrew their objections. The Secretary of State has therefore determined that she is not required to hold a public inquiry into the HRO.
9 The Secretary of State also received written representations about the HRO from Stockton-on-Tees Borough Council, Hartlepool Borough Council and Natural England. She also received comments from a number of bodies whom she consulted in the process of her consideration of the application.
10 In making the TWA Order application, your client complied with the publicity requirements of the Transport and Works (Applications and Objections Procedure) (England and Wales) Rules 2000 ("the 2000 Rules"). This included serving copies of the application and the accompanying documents on those specified in the 2000 Rules and making the documents available for public inspection. As also required by the 2000 Rules, your client served, posted and published notices giving information about the application and how to make representations.
11 The Secretary of State received seven objections to the TWA Order in response to these statutory notices. All objections have since been withdrawn, although two were withdrawn conditionally.
The Applicant’s case
12 The primary objects of the HRO are to authorise the following works in the Borough of Redcar and Cleveland:
- Work No.1: Construction of a wall, including a quay face, 1035 metres in length forming berths for vessels, extending into the River Tees enclosing an area of 9 hectares.
- Work No.2: A floating pontoon steel fabrication linkspan bridge commencing on the bank of the River Tees and terminating in the River Tees; a series of dolphins, forming a mooring and berthing line, including the excavation of that part of the bank of the river under the proposed linkspan bridge and the removal of the Queen Elizabeth II Quay.
13 The object of the TWA Order is to confer upon your client powers to acquire compulsorily land, and rights in or over land, required for the works authorised by the HRO. The need for the TWA Order is therefore dependent upon the granting of the HRO.
14 The applicants state that strong growth in the manufacturing industry in the Far East has led to an increase in the volume of ship and cargo movements (in particular, container volumes) from east to west. At the same time, the size of container vessels is increasing to accommodate more exports and larger containers. The size of containers is also increasing in order to accommodate this export growth more efficiently. These combined factors have led to a requirement for increased UK and mainland Europe port capabilities both in terms of better handling processes, and in particular deep sea port/berthing capacities to accommodate the new bigger ships, each carrying more than 8,000 TEU.
15 The applicants say they are committed to creating a deep sea container port at Teesport, requiring over £200m investment. The proposed port development will help to ensure that the UK is in a position to exploit the growing global shipping market, and that the UK will be on a level playing field with European competitors. The existing port and the future planned development will attract retailers and others to construct import/distribution centres in the Tees area.
16 The development is predicted to create between 200 and 300 new dock-related positions, in addition to a significant number of indirect jobs within the ports, logistics and shipping sectors, estimated at between 1,000 and 1,800. In addition the capacity to build six distribution centres could provide up to 3,000 new jobs. The creation of a Northern container port on an available brownfield site will create both a sustainable development of derelict land and also contribute to sustainable transport by reducing UK road freight mileage.
17 The proposed terminal directly supports regional and Government policy in relation to ports strategy, regional spatial strategy and integrated transport strategies to ease congestion on the roads.
Objections
18 Within the statutory time period allowed, the Secretary of State received objections to the proposed HRO from the Environment Agency, Hutchison Ports (UK) Limited and ntl: Group Limited.
19 In response to the TWA Order application, the Secretary of State received seven objections, from: ICI Chemicals and Polymers Limited; the BOC Group; CAT UK Services Limited; ntl: Group Limited; Northumbrian Water; SembCorp Utilities (UK) Limited; and Network Rail Infrastructure Limited.
The Environment Agency
20 In a letter dated 9 June 2006, the Environment Agency objected on the grounds that as the Agency with statutory responsibilities regarding biodiversity, conservation, fisheries, water quality and flood defence, they felt they had not had the opportunity to fully assess the potential environmental impact of the proposed works. The Agency were concerned that the proposed works, in particular the proposed dredging, would have an unacceptably adverse effect on the environment of the River Tees, including sites of acknowledged national and international nature conservation importance, and also on the marine environment including marine flora and fauna.
21 The Environment Agency were also concerned that there were no protective provisions for their benefit included in the HRO.
22 In a letter dated 20 August 2007 the Environment Agency informed the Secretary of State that they had concluded an agreement with the applicants for the HRO, which the Agency considered protected their position in the event that the HRO was made.
DLA Piper Rudnick Gray Cary – on behalf of Hutchison Ports (UK) Limited
23 In a letter dated 13 June 2006, Hutchison Ports (UK) Limited (HPUK), raised an objection to the HRO application. In summary, the objection covered the following points:
- The need to assess the increased impact of road and rail traffic nation-wide as a result of the proposed development;
- The need to ensure the development achieved a suitable and sustainable level of rail traffic;
- The need for a requirement for the proposed development to achieve a rail mode share that is at least as stringent as that applied to other major port proposals serving the whole UK market;
- Deficiencies in the Environmental Statement on the topics of rail capacity and the need for associated gauge clearance works.
24 Following discussions with the applicants, Hutchison Ports UK Limited, in a letter dated 10 September 2007, withdrew their objections to the HRO.
ntl: Group Limited
25 In a letter dated 14 June 2006, ntl: Group Limited wrote that they were concerned that their property and apparatus would be affected by the proposals contained within the HRO.
26 Further to discussions with the applicants, ntl: Group Limited, in a letter dated 18 September 2006, withdrew their objections to the HRO.
ICI Chemicals and Polymers Limited
27 This objection to the TWA Order was withdrawn following the applicant's decision not to proceed with the application for the compulsory acquisition of any interest in plot 7 shown on the land plans originally submitted with the application. The applicant accordingly submitted revised land plans which omitted that plot.
The BOC Group
28 This objection to the TWA Order was also withdrawn, subject to article 3 of the TWA Order being amended to qualify that the applicant shall not under the powers of the TWA Order acquire compulsorily any interest held by BOC Limited in the land numbered 10 on the land plans.
29 The remaining objections to the TWA Order were also withdrawn following negotiations with the applicant. As such, the application for the TWA Order is now unopposed.
Written Representations
Hartlepool Borough Council
30 The Council in their letter dated 8 June 2006, considered that they would have no objection to the development subject to their being no objections from Natural England.
The Countryside Agency (now Natural England)
31 In their letter dated 22 June 2006, the Agency stated their opinion that the proposed development was unlikely to result in significant environmental effects on the surrounding or nearby designated landscape or on the Countryside Agency's access or recreation interests, but that the Agency would expect to see that there would be no negative effect on access and recreation and rights of way either during or as a result of the development. The Agency commended the Landscape Character Assessment approach taken by the applicant.
32 In their letter dated 11 October 2007, Natural England stated that they were of the opinion that the further information provided in the Supplement to the Environmental Statement does not change the original response by The Countryside Agency and they felt that the proposal remained unlikely to have significant impact on its landscape, access and recreational interests.
Comments on the HRO application
33 Another of the Secretary of State's consultees was the Centre for Environment Fisheries and Aquaculture Science (CEFAS). They had various comments, raised in a letter dated 25 July 2006. Since then they and the applicants have discussed the issues and in a letter of 1 August 2007, CEFAS said there were three outstanding issues remaining covering monitoring of offshore disposal sites, impacts on benthic communities and final choice of construction of the quay.
34 The Secretary of State has since received further notification from CEFAS in an e-mail of 11 December that these issues can appropriately be addressed as part of consideration of an application by the applicants to Defra for a Food and Environmental Protection Act Licence, should the HRO be approved.
Letter of Support for the HRO application
35 Stockton-on-Tees Borough Council, in a letter dated 5 June 2007, wrote that at its meeting held on 3rd May 2006, the following motion was agreed:
“The proposal by PD Teesport to establish a deep sea container terminal on the Tees is of local and regional significance in terms of employment opportunity and would significantly uplift the local economy and act as a catalyst for the regeneration of the Northern Region. There would be a reduction in road transport distances for containers being delivered to the North and Midlands and would be a sustainable redevelopment of a brown field site. The applicant has stated that there will be minimal environmental impact and only minor disturbance to the local population, being an isolated site in a wholly commercial area.
"The Council supports the application in principle; but that such support is subject to any views expressed by the local planning authority should it be consulted on the planning application, the consideration of which will be determined on its own merits; and informs all relevant local and National Government Agencies of our commitment”.
Appropriate Assessment
36 It is a requirement of the Conservation (Natural Habitats &c) Regulations 1994 (“the Regulations”) that a competent authority proposing to authorise a project which would have a significant effect upon a European classified or designated site undertake an appropriate assessment of the likely environmental impact of the project.
37 In their letter dated 30 June 2006, Natural England advised that the application lies close to areas which form part of South Gare & Coatham Sands SSSI, Seal Sands SSSI, and Tees & Hartlepool Foreshore and Wetlands SSSI. These areas of land form part of the Teesmouth and Cleveland Coast SPA and Ramsar site, and as such Natural England objected to the proposed development because the competent authority would need to ascertain that the proposal would not adversely affect the integrity of the site. It was Natural England’s opinion that the proposed development was not directly connected with or necessary to site management for nature conservation and was ‘likely to have a significant effect’ on the interest features for which the site was internationally designated. It was Natural England’s advice therefore that the competent authority should undertake an appropriate assessment of the implications of the proposals in view of the site’s conservation objectives.
38 The Secretary of State agreed with the advice offered and requested further advice from Natural England on the content of an Appropriate Assessment and on what she might reasonably conclude from it. Natural England, in their letter dated 11 October 2007, said that the advice which they gave in their letter dated 30 June 2006 was identical to that they provided for the Appropriate Assessment conducted by Redcar & Cleveland Borough Council regarding issues raised in response to the planning application for this proposal. Natural England advised therefore that the Appropriate Assessment provided for Redcar & Cleveland Borough Council’s planning application would be adequate for the purposes of the Appropriate Assessment to be carried out by the Secretary of State, as all the relevant issues were addressed either alone or “in combination” by the assessment already undertaken.
39 Natural England have further advised that (subject to the imposition of conditions or obligations) the appropriate assessment will be able to ascertain that the proposed development would not adversely affect the integrity of the European / Ramsar site, and would not be likely to cause damage and disturbance to the SSSIs.
Secretary of State’s Consideration
Harbour Revision Order
40 Section 14(2) (b) of the Harbours Act requires that a Harbour Revision Order shall not be made in relation to a harbour unless the appropriate Minister is satisfied that the making of the HRO is desirable in the interests of securing the improvement, maintenance or management of the harbour in an efficient and economical manner, or of facilitating the efficient and economical transport of goods or passengers by sea or in the interests of the recreational use of sea-going ships.
41 The Secretary of State notes and agrees with the case for the proposal by PD Teesport Limited, as set out in paragraphs 14 to 17 above.
42 The Secretary of State notes that all objections to the HRO have now been withdrawn. The Secretary of State accepts the case for the inclusion of the amendments and considers that they do not substantially affect the character of the HRO and that there is no requirement for further consultation on the HRO as a result of the amendments.
43 Having consulted Natural England, as her statutory adviser and appropriate nature conservation body, the Secretary of State accepts Natural England’s advice that she can rely on the Appropriate Assessment prepared on behalf of Redcar and Cleveland Borough Council, and that the project would not adversely affect the integrity of the European/Ramsar site.
44 The Secretary of State has noted that Natural England have suggested some conditions to be attached in order for the Appropriate Assessment conclusion above to be reached. She agrees these conditions, which are:
- The Northern Gateway Container Terminal: Dredging Protocol submitted as Appendix 2 of the Northern Gateway Container Terminal, Supplement to the Environmental Statement, February 2007 will be implemented in full during the period of capital dredging operations;
- A programme of monitoring of dissolved oxygen and suspended solid concentrations during capital dredging activities will be designed and implemented;
- The Seal Sands monitoring protocol submitted as Appendix 3 of the Northern Gateway Container Terminal, Supplement to the Environmental Statement, February 2007 will be implemented in full; and
- A programme of monitoring of waterbird usage/behaviour and of noise levels will be designed, instituted and implemented on the Vopak foreshore during the period of percussive piling operations on the new Northern Gateway Container Terminal quay frontage.
TWA Order
45 The Secretary of State notes that there are no outstanding objections to the TWA Order. She considers that all of the land and rights that remain subject to compulsory purchase powers in the TWA Order are necessary for carrying out the proposed development and that there is a compelling case in the public interest for giving those powers, to enable the scheme to be implemented. She is satisfied that the proposals in the TWA Order are consistent with the policy guidance on compulsory purchase, as set out in paragraphs 16 to 23 of OPDM Circular 06/2004 ("Compulsory Purchase and the Crichel Down Rules").
The Secretary of State’s Decisions
Harbour Revision Order
46 The Secretary of State is satisfied, for the reasons given above, that the making of the HRO is desirable in the interests of securing the improvement, maintenance or management of the harbour in an efficient and economical manner and that the HRO should be made, with the amendments indicated. She does not consider that these amendments substantially affect the character of the HRO as originally proposed.
47 The Secretary of State authorises the making of the HRO, with the amendments already indicated above, and other modifications not substantially affecting the character of the HRO, which appear to her to be necessary.
TWA Order
48 The Secretary of State has decided, for the reasons stated in paragraph 45, to make the TWA Order, but subject to the following modification:
- To include, in Article 3, for the reason set out in paragraph 28, a qualification that your client shall not under the powers of the TWA Order acquire compulsorily any interest held by BOC Limited in the land numbered 10 on the land plans.
49 She also intends to make other minor drafting modifications which will not affect the substance of the TWA Order. The Secretary of State is of the opinion that none of the intended changes will make a substantial change in the proposals.
50 She hereby gives notice under section 14(1)(a) of the Transport and Works Act 1992 of her determination. A notice of the determination will shortly be published in the London Gazette, after which the TWA Order will be made.
Challenge to Decisions
51 The circumstances in which the Secretary of State’s decisions may be challenged are set out in the note attached as an Annex to this letter.
Yours sincerely
Richard Bennett
Head of Ports Division
Annex
Right to challenge decisions
Right to challenge orders made under sections 14 and 16 of the Harbours Act 1964
Any person who desires to question the making of the Order on the ground that there was no power to make the Order or that a requirement of the Harbours Act 1964 was not complied with in relation to the Order, may within 6 weeks from the date on which the Order becomes operative make an application for the purpose to the High Court or the Court of Session, as the case may be.
Right to challenge orders made under the TWA
Any person who is aggrieved by the making of the Order may challenge its validity, or the validity of any provision in it, on the ground that –
it is not within the powers of the TWA, or
any requirement imposed by or under the TWA or the Tribunals and Inquiries Act 1992 has not been complied with.
Any such challenge may be made, by application to the High Court, within the period of 42 days from the day on which notice of this determination is published in the London Gazette as required by section 14(1)(b) of the TWA. This notice is expected to be published within three working days of the date of this decision letter.
A person who thinks they may have grounds for challenging one or both of the decisions to make the Orders is advised to seek legal advice before taking any action.
