D O C U M E N T N T D O C U M E 12.1

Written Summaries of Oral Evidence and Supporting Information Report

The Yorkshire and Humber (CCS Cross Country Pipeline) Development Consent Order

Application Reference: EN070001 February 2015 Deadline 3 1

Document 12.1 The Yorkshire and Humber (CCS Cross Country Pipeline) DCO Written Summaries of Oral Evidence and Supporting Information Report

TABLE OF CONTENTS

Written Summaries of Oral Cases Put At Hearings. Pages 3 to 60

APPENDICES

APPENDIX HEARING AGENDA ITEM TITLE PAGE NO. NUMBER

1 AGENDA ITEM SCHEDULE 3 REQUIREMENTS “COMMENCE” 61 11 • NFU / NG DIALOGUE FOLLOWING HEARING.

2 AGENDA ITEM SUBMISSION ON TIMINGS OF RELATIVE PARTS OF THE PROJECT 65 17 (WHITE ROSE ETC.)

3 AGENDA ITEM 4 STATEMENT ON REINSTATEMENT AND COMPENSATION 67 (IX) DCO ISH

4 AGENDA ITEM 8 DETAIL FROM IDB SOCGS (DOCUMENT REFS .9.10, 9.11 AND 71 9.12) ON CONSENTS FOR MAIN RIVER CROSSINGS

5 AGENDA ITEM COMPENSATION – CONSTRUCTION PRACTICE MEASURES 75 22 (B)

6 AGENDA ITEM AFFECTED FISHPOND 77 24

7 MINERALS ISH SUBMISSION SIGNPOSTING TO BOREHOLE LOGS 262A- 267A 80 DOCUMENT 11.2

8 SUBMISSION RELEVANT EXTRACTS FROM THE LOCAL AGGREGATES 82 DOCUMENT 11.2 ASSESSMENT [CHAPTER 3 – ASSESSMENT OF SUPPLY

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AND DEMAND]

9 AGENDA ITEM FLEXIBLE DRAINAGE AREAS (FDAS) 93 1.5 A) ACCESS TO LAND FOR SURVEYS

B) FUNCTION OF FDAS AND POSSESSION OF LAND

10 AGENDA ITEM 2 FUNDING 99

COMPULSORY A)STATEMENT IN RELATION TO DECC ACQUISITION HEARING B)WHITE ROSE FUNDING STATEMENT

C)POSITION IN RESPECT OF OFFSHORE SCHEME/STORAGE

11 AGENDA ITEM 3 HUMAN RIGHTS - CASE LAW PASCOE VS FSS 112

12 MATTER RAISED LEGAL POSITION ON P ACT DCO VS TCPA PP 151 AT CLOSE OF HEARING

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NATIONAL GRID CARBON

HUMBER CCS

WRITTEN SUMMARIES OF ORAL CASES PUT AT HEARINGS

DEADLINE 3 – 17TH FEBRUARY 2015

Agenda Item National Grid response

1. Article 5 - Although “maintain” is broadly defined, the power is not expressly The legal context to this question is whether the definition of “maintain” in Article 2 (interpretation), as limited to the ES. Article 5 limits the power to the authorised development in qualified in Article 5 (maintenance of authorised development), permits the construction of a project “which Schedule 1 save in immaterial respects and it seems that the deviations that could be very different in scale or impact from that applied for, assessed or permitted” (R (Midcounties Co- might be permitted as immaterial could potentially lead to works outside those operative Ltd) v Wyre Forest DC [2009] EWHC 964 (Admin)). assessed by the ES if the article is not limited. Has the applicant considered making alterations to the definition to clarify this? (12.4) Article 5(b) clarifies that “save in immaterial respects”, after any maintenance is carried out, the “authorised development” must not vary from that described in Schedule 1 (authorised development).

The Infrastructure Planning (Environmental Impact Assessment) Regulations (the “EIA Regulations”) require the assessment of a project’s likely “significant” effects. National Grid has already considered and assessed the likely significant effects of the authorised development, as defined in Schedule 1 of the DCO, in accordance with the EIA Regulations (see the Environmental Statement (document reference 6.0). As the draft DCO stands, no materially new or different likely significant effects may arise as a result of maintenance of that authorised development, because either those maintenance works will not lead to any variation in the authorised development (the likely significant effects of which have been assessed) or, if they did, the variation in the authorised development would be not be immaterial, and the effects would fall foul of the restriction in Article 5(b).

Accordingly, the wording of Article 5(b) already prevents any "deviations" from Schedule 1 leading to “works outside those assessed by the ES”, the concern raised in Agenda Item 1.

Paragraph 4.1.7 of the “Overarching Policy Statement for Energy (EN-1)” (“EN-1”) states that the “IPC [now the Examining Authority] should only impose requirements in relation to a development consent that are necessary […] and reasonable in all respects.” Whilst limiting the scope of the article would not involve the imposition of a requirement, the effect would be no different and thus it is appropriate to test the appropriateness of any additional restriction against this test.

Additional wording to further restrict the essential power to maintain the authorised development is not “necessary” for the reasons stated above.

It is also not “reasonable” because, in the context that it is not necessary, it would place a substantial and unwarranted additional burden on the efficient and economic operation of the authorised development. This is because the effect would be to require the undertaker to carry out some form of environmental assessment exercise in relation to every maintenance activity it wished to undertake, before it could be certain that the activity was authorised by the DCO. It would thus create unnecessary scope for uncertainty and argument as to whether necessary tasks to keep the pipeline operational were beyond the scope of the powers granted

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Agenda Item National Grid response under the DCO.

Once a decision has been made by the Secretary of State that it is appropriate in the public interest for the authorised development to be constructed and brought into operation (which would be consistent with what is said in the NPS about carbon capture and storage being “a priority for UK energy policy” – see paragraph 3.6.5) it is essential that the DCO is drafted in a way that allows the authorised development to be kept in operation to fulfil its important function without undue restrictions. National Grid therefore considers that no alteration to Article 5 (maintenance of authorised development) is appropriate or should be made.

Separately, at the issue specific hearing of 29 January 2015 in relation to the drafting of the proposed development consent order (the “DCO ISH”), Mr Kinmond and Mr McBryde of the MMO suggested that they would like to see a “traffic light system” setting out those maintenance activities which had been environmentally assessed and fell within the deemed marine licence at Schedule 10 (Deemed Marine Licence under Part 4 (Marine Licensing) of the Marine and Coastal Access Act 2009) and those which did not and required a further licence. National Grid explained that it does not consider this necessary for the following reasons:

• The safeguard in Article 5(b) of the DCO, described above, applies to maintenance works to the authorised development below mean high water spring tide, the area to which the deemed marine licence relates, as much as it does to the authorised development elsewhere;

• In any event, as the MMO had raised the point in its response to Q12.42 of the first round written questions, National Grid agreed to amend the definition of “maintain” in paragraph 1 of the deemed marine licence in Schedule 10 of the DCO to clarify that it “does not include maintenance activities which give rise to any materially new or materially different significant environmental effects from those assessed in the environmental statement”. This does create an additional and unnecessary burden for the undertaker when maintaining the authorised development in terms of a creating the need for an EIA exercise in the event that maintenance is needed. However, National Grid was willing to accommodate the MMO’s request in this instance, as set out in the row for paragraph 1 of Schedule 10 of the DCO in the Commentary on Revision B of the Draft Development Consent Order (document reference 3.3), i.e. because of:

o the limited size of the intertidal area in the context of the Order limits for the remainder of the 67km long pipeline;

o the limited number of receptors in the intertidal area; and

o the limited scope for third party interference with the limited section of pipeline in the intertidal area which might necessitate maintenance works in practice.

• The combined effect of Article 5(b) and the addition to the definition of maintenance in paragraph 1 of Schedule 10 of the DCO, therefore, is to resolve any concerns the MMO had in respect of whether any maintenance works could fall outside of the authorised development which has been assessed and require a further marine licence. There is no reason for a definitive “traffic light system” setting out every conceivable maintenance activity to form part of the DCO, even if the compilation of such an exhaustive list were reasonable or practicable. Mr McBryde of the MMO confirmed to National Grid by

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Agenda Item National Grid response email on 6 February 2015 that:

o following National Grid’s explanation of the definition of “maintain” in Schedule 10 of the DCO, the MMO is satisfied that its “safeguards are met” in it; and

o whilst the MMO would still welcome an informal discussion after the making of the DCO about what maintenance activities might require applications from it for further licences, this is not a matter which needs to form part of the DCO.

2. Article 5 - Article 6(b) - The applicant has explained why specific locations for the As a very minor point of clarification, the term used in Article 6(b) (limits of deviation) is “construction work cannot be identified at this stage, but has failed to explain what construction activities” not “works”. works actually are and why there is no need for a definition in the DCO. Is the applicant able to remedy this? (12.5) For information purposes the Construction Report (document reference 7.6) provides an overview of how the authorised development (termed in it the “Onshore Scheme”) will be constructed.

The concern in Q12.5 of the Examining Authority’s first written questions (document reference 10.2) appeared to be that the absence of a definition for “construction activities” in Article 2 “could potentially authorise substantial works to be undertaken.”

However, there is no scope in the draft DCO for the term “construction activities” authorising works outwith the authorised development at all:

In terms of background, it common in DCOs to have a provision such as Article 4 (Development consent etc. authorised by the Order) which provides that the authorised development can be “carried out within the Order limits”, i.e. constructed there.

There is then a separate article in DCOs, here Article 6 (limits of deviation), clarifying that works can be carried out within certain limits of deviation, to account for unknown ground conditions etc. In respect of the authorised development, however, the Order limits are wider than the limits of deviation, so as to reduce the area subject to the compulsory acquisition of permanent rights (see paragraphs 4.3.6 to 4.3.7 of the Explanatory Memorandum (document reference 3.2 rev B) Article 6 is only clarifying, for locational purposes, that whilst the authorised development itself, the pipeline, must fall within the narrower limits of deviation, construction activities for the pipeline can be carried out both within and on either side of those limits of deviation. This accords with the approach to temporary possession as opposed to the compulsory acquisition of permanent land rights on the land plans, again as described in paragraphs 4.3.6 to 4.3.7 of the Explanatory Memorandum (document reference 3.2 rev B).

In the context of the locational purpose of Article 6 (limits of deviation), this is not any construction activity. The activity must be for the purposes of the authorised development. So, the term “construction activities” is not a separate “species” of works and does not add anything to Article 4(a) in terms of what activities are being authorised – and every DCO has an Article 4(a) equivalent. The activities could be challenged if they are not for the purposes of the authorised development; and this would be a breach of a term of the DCO, which carries a criminal sanction.

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Agenda Item National Grid response

For those reasons, a definition is not necessary.

3. Article 13(1) - The applicant should justify the power to stop up any street, and The authorised development covers a wide geographical area, being an approximately 67km long cross- explain why it is necessary in their particular case. The model provisions no country pipeline between Camblesforth Multi-junction and the coast (plus approximately a further 5.6km longer have any statutory authority and in many circumstances they are no longer between the Camblesforth Multi-junction and Drax). up to date or relevant. An applicant should be able to justify the need for the inclusion of each specific provision within its DCO without relying on it being a There may be cases where in future it is asserted that the highway boundary is not as shown on the local model provision. Nevertheless, are the street authorities happy with the inclusion highway authorities’ plans of the extent of public highway (as such plans are never considered definitive) or of the provision? (12.7) highway is created within the Order limits after the DCO is made but before it is constructed. The risk is all the greater because of the length and linear nature of the authorised development.

Such newly asserted or simply new public highway could impede the construction, maintenance or operation of the authorised development if not permanently stopped up.

This residual power therefore provides certainty for the construction of a linear scheme the scale and length of the authorised development, proportionate to its urgency in policy: as set out above, paragraph 3.6.5 of EN-1 describes carbon capture and storage as “a priority for UK energy policy”, even amongst the urgency of other nationally significant energy projects.

The Planning Act 2008 provides that particular provision may be made in a DCO for “The stopping or diversion of highways” (Sub-sections 120(3) and (4) and paragraph 17 of Part 1 of Schedule 5). Providing a mechanism for permanently stopping up highway is a matter which relates to or is ancillary to this development for the purposes of sub-sections 120(3).

A key objective of the Government under the Planning Act 2008 is to provide as far as possible a “one stop shop” in terms of consents required for nationally significant infrastructure projects, so it is entirely appropriate for this residual power to be contained in the DCO. The objective is not to compel promoters to seek powers such as this, which are available elsewhere, outside of the DCO. This is not only for the purpose of facilitating the more expeditious authorisation and implementation of nationally significant infrastructure projects in the national interest. It is also (1) to ensure that the safeguards contained in the DCO will apply to powers required for the project in question and (2) all parties can see and understand the extent of powers and restrictions on them in one place: in the DCO.

Article 13(1) is not an unlimited power by any means. It is subject to important safeguards (which reflect those included in equivalent provisions in other recently made DCOs), namely that:

the local highway authority must consent and may attach reasonable conditions, so National Grid cannot simply stop up streets unfettered;

the stopping up must be in connection with the authorised development;

the local highway authority may require a substitute street;

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Agenda Item National Grid response

land on either side of the street to be stopped up must be owned by National Grid (or have agreement of the owners to the stopping up) and not have rights of access to the stopped up street or there must be reasonable alternative access.

Page 34 of the Statement of Common Ground between East Riding of Yorkshire Council (“ERYC”) and National Grid at Deadline 1 (document reference 9.2) records agreement on Article 13:

“Article 13 Permanent stopping up of streets

ERYC note that Article 13 of the draft DCO allows National Grid to stop up a street if required to carry out the authorised development, with the consent of the highway authority. It is agreed that no streets have been identified to be permanently stopped up as part of the Works at the time of this statement.”

North Yorkshire County Council (“NYCC”) commented by email on 28 January 2015 that it was in agreement with Article 13(1) but questioned as a matter of drafting, whether "sub-paragraph 13" should read "article 13". NYCC has correctly identified an incorrect cross reference in the Article. It should be “paragraph (1)” and this has been amended in Rev C of the DCO.

Neither ERYC nor NYCC raised any comments on Article 13 at the DCO ISH when asked by the Examiner.

The analysis above is independent of reliance on the Infrastructure Planning (Model Provisions) (England and Wales) Order 2009 (the “DCO Model Provisions”), and is specific to the circumstances of this particular nationally significant infrastructure project.

4. Article 14(1) - See 3 above. Notwithstanding the provisions in other development The answer here is the same as that in respect of Article 13(1) at Agenda Item 1 above. National Grid, consent orders that have been made, each article needs to be justified in the however, further notes as follows: context of the specific DCO. Is the applicant able to justify the article in this case? (12.8) • The power to temporarily stop up any street is not an untrammelled power but subject to consent by the highway authority under Article 14(4)(b).

• The highway authorities have no objection to the power:

o Page 35 of the Statement of Common Ground between ERYC and National Grid at Deadline 1 (document reference 9.2) records agreement on the following point:

o “Article14 Temporary stopping up of streets and public rights of way

o It is agreed that Article 14 of the draft DCO gives National Grid the power to temporarily stop up, alter or divert any street or right of way specified in Schedule 6 Part 1 Streets to be Temporarily Stopped Up without the need to obtain a Traffic Regulation Order from ERYC.”

o NYCC commented by email on 28 January 2015 that it is in agreement with Article 14(1).

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Agenda Item National Grid response

o Neither ERYC nor NYCC raised any comments on Article 14(1) at the DCO ISH when asked by the Examiner.

The analysis above is independent of reliance on the DCO Model Provisions, and is specific to the circumstances of this particular nationally significant infrastructure project.

5. Article 23(4) - A DCO cannot authorise the compulsory acquisition of any There can be no doubt that section 135 (Orders: Crown land) of the Planning Act 2008 has been complied interests in Crown Land that are owned by the Crown. Any Crown interests held with in the DCO. This is because Crown interests have been clearly excluded from compulsory acquisition on otherwise than by the Crown can only be acquired with the consent of the Crown the face of the DCO in Articles 23(4) – (6) and 24(6), and thus from the Book of Reference which is given Authority. Can the applicant confirm that all the Crown interests owned by the effect by the DCO (through the definition of “Order land” in Article 2 (interpretation)): Crown in the Book of Reference (BoR) have been excluded from compulsory Acquisition? Can the applicant confirm whether any compulsory acquisition is • In Article 23(4), no interest in Crown land, i.e. of any kind, be it land or rights, may be acquired sought of Crown interests held other than by the Crown? If so, does the applicant pursuant to the entire Order unless the appropriate Crown authority consents to such acquisition. have the necessary consent for this? Is The Crown Estate (TCE) satisfied with Article 23(5) clarifies that the entire Order applies to Crown land only to the extent that the appropriate the adequacy of protection afforded to its interests; and can TCE specifically Crown authority consents to such application, i.e. the DCO has no force at all (compulsory acquisition confirm this? Can TCE confirm that they consent to the inclusions of article 23(4) powers or, for that matter, any other power) in respect of any parcel of the Order Land where there is – (6) and proposed article 24(6)-(7) in the DCO? (12.13; 12.14) a Crown interest in that land, irrespective of who else owns interests, unless the Crown consents. This mirrors wording from section 135 of the Planning Act 2008 and is sufficient as it stands for the purposes of both Articles 23 and 24.

• However, National Grid had no objection to accommodating the request in Q12.13 of the first round written questions for further wording to be inserted into Article 24, which at paragraph (6) makes it clear that no existing right in Crown land may be acquired or new right created and/or acquired pursuant to the entire Order unless the appropriate Crown authority consents.

Separately, the descriptions of the form of rights which National Grid is seeking to acquire compulsorily in each Plot in the Book of Reference (document reference 4.3) specifically exclude Crown interests where present (see for example Plot 1280 on page 700).

National Grid has been in negotiation with The Crown Estate (the “TCE”) for leasehold rights across the River Ouse and Barmston beach. The TCE has provided draft contractual documentation to National Grid for its consideration and negotiations are ongoing.

National Grid has written to the TCE for its consent to the current wording in respect of Crown land under Articles 23 and 24 of the Draft DCO and awaits its response.

The TCE has also been written to in respect of a Crown interest held other than by the Crown, namely the leasehold interest of the beach granted to the East Riding of Yorkshire Council. Again, a response is awaited.

A similar approach is being pursued in relation to the land in the ownership of the Secretary of State of Transport adjacent to the A1079.

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Agenda Item National Grid response

6. Article 37 - Article 23 relates to the compulsory acquisition of land and 23(2) There are key differences in purpose between Articles 37 (Private rights of way) and Article 23(2) provides that once a compulsory acquisition notice is served in relation to that (Compulsory acquisition of land). land all rights are discharged so far as their exercise is inconsistent with the exercise of the order. Article 37 extinguishes all private rights of way over land Article 37(3) specifies that private rights of way over land of which National Grid takes temporary possession that is subject to compulsory acquisition. Can the applicant provide justification for under Articles 28 and 29 are suspended and unenforceable for as long as National Grid remains in lawful article 37 in the light of article 23? possession of the land; Article 23(2), however, does not deal with temporary possession, only the permanent acquisition of land.

Separately, Article 37 is intended to provide a useful mechanism for reducing the interference with private rights of way of landowners (likely to be the most prevalent private rights along a long, rural, linear route) where compulsory acquisition has had to be used:

• Article 23(2) extinguishes rights where they are “inconsistent with the exercise of powers under the DCO”. This would be a question to be assessed objectively on the facts in each case.

• Article 37, however, allows National Grid (by way of notice) to clarify to a person with the benefit of particular right of way that, so far as its engineers are concerned, i.e. a subjective judgment in favour of that person, the right is not inconsistent with its powers under the DCO and the person may continue to use it.

National Grid therefore does not consider that removal of Article 37 is appropriate and its removal would not assist persons with the benefit of private rights of way.

The value of the article, for the reasons given above, has been recognised by the Secretary of State by its inclusion in the following made DCOs:

Article 28 (Private rights of way) of the Hinkley Point C (Nuclear Generating Station) Order 2013;

Article 46 (Private rights of way) of the Thames Water Utilities Limited (Thames Tideway Tunnel) Order 2014.

7. Article 40 and Schedule 8 - What rights are contained in the lease to the Council It is worth explaining by way of context that it is not necessary to set out the details of the lease in Article 40 on plot 1280 which is owned by the Crown that the applicant seeks to acquire (Open space) or in Schedule 8 (record of the satisfaction of the Secretary of State pursuant to section 132 of which enable the project to be constructed. (12.25) the 2008 Act). This is because that Article and that Schedule simply identify the plots in relation to which National Grid is seeking a certificate from the Secretary of State under section 132 of the Planning Act 2008, i.e. that special parliamentary procedure for the acquisition of rights in certain open space is not necessary.

Separately, the form of rights which National Grid is seeking to acquire compulsorily in Plot 1280 (“Permanent Type 2”; “Temporary – General”; “Temporary – Drainage”) are set out on page 700 of the Book of Reference (document reference 4.3), in the same manner as in respect of other plots in which those forms of rights are being sought (apart from the exclusion of the Crown interest). The definitions for these forms of rights can be found on pages 3 – 4 of the Book of Reference (document reference 4.3).

For information, in response to the Agenda Item, the TCE has granted leasehold rights to ERYC to maintain

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Agenda Item National Grid response the foreshore, control certain activities on the beach, erect and maintain coastal protection, create drainage works, and create local bylaws subject to landlord’s reservations. The lease reserves the right to the landlord to install, or authorise the installation of, new conduits (pipes) through the tenant’s demise.

National Grid continues to negotiate a voluntary agreement with ERYC in respect of rights sought over Plot 1280 in the same way as it is doing in respect of other plots in which ERYC has interests.

National Grid continues to liaise with the TCE in relation to the Crown consents it requires in relation to the rights it is seeking to acquire over ERYC’s interests, pursuant to section 135 (Orders: Crown land) of the Planning Act 2008, and as separately required on the face of the DCO in Articles 23(4) – (6) and 24(6).

National Grid notes that ERYC had no comment on these points when asked by the Examiner at the DCO ISH.

8. Article 45 “any other plans...” - The phrase may well have historically been This agenda item is understood to relate to article 49(1)(n), not article 45. standard wording but as can be seen from recent DCO’s for which permission has been granted, this is no longer considered acceptable by DECC or DFT. This National Grid agrees to remove paragraph (n) “any other plans or documents referred to in this Order,”. is reinforced in PINS Advice Note 15 on DCO drafting. The applicant must ensure that all plans on which they seek to rely are listed in this article and is requested to remove the general catch all. (12.28)

9. Article 53 and Schedule 14 - Are the local planning authorities satisfied with the ERYC provisions of the bespoke procedures, in particular with the time limits and fees proposed? (12.29) Ms Hannah Harne, Development Management Team Leader of ERYC confirmed by email to National Grid on 29 January 2015, and again to the Examiner at the DCO ISH, that ERYC is satisfied with Article 53 and Schedule 14 (Procedure in relation to certain approvals etc.) subject to, where an application from National Grid would require liaison with a consultee under paragraph 1(4) of Schedule 14:

• the deadline for passing on application materials supplied by National Grid to the consultee being extended from one to two business days;

• the deadline for passing requests for information from consultees onwards onto National Grid being extended from one to two business days after they are received.

NYCC

NYCC indicated by email on 28 January 2015 that it would be satisfied with a position agreed by Selby District Council (“SDC”) and raised no comment at the DCO ISH.

SDC

Following constructive discussions between SDC and National Grid after the DCO ISH, Jo Sullivan, Planning Officer for SDC, confirmed by email on 6 February 2015 that SDC is satisfied with Schedule 14 subject to:

• the two changes requested by ERYC (described above) being made; and

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Agenda Item National Grid response

• where no consultee is involved in determining an application by National Grid paragraph 1(3) of Schedule 14, the deadline for making requests for further information being extended from 7 business days to 10.

National Grid

In the context of the urgency of a project described at paragraph 3.6.5 of EN-1 as “a priority for UK energy policy”, National Grid is mindful of the importance of an expeditious mechanism in Schedule 14 for the determination of applications to discharge Requirements. Schedule 14 is derived from the equivalent Schedules in the Hinkley Point C (Nuclear Generating Station) Order 2013 and the Thames Water Utilities Limited (Thames Tideway Tunnel) Order 2014, which were scrutinised in significant detail during their Examinations. However, National Grid considers that ERYC and SDC’s three requested changes can be accommodated without giving rise to undue delay in the processing and determination of the approvals required in order to implement this urgently needed project. Paragraphs 1(3) and 1(4) of Schedule 14 have been amended accordingly and paragraph 1(4) divided into three paragraphs, (a) – (c), for clarity as agreed with ERYC and SDC by email.

Schedule 14 is therefore agreed as between National Grid and the local authorities.

10. Schedule 1 Further Associated Development - The DCO should not permit any As set out in National Grid's response to Q12.30 in the first written questions of December 2014 (document works that are outside the scope of those assessed within the ES. Therefore, is reference 10.2), there are effectively two types of works in the “further associated development” section of the applicant able to consider an amendment to Schedule 1 so that the restriction descriptions of the authorised development in Schedule 1 of the DCO: is applied to all further associated development in the paragraph not only to those works in (e), (g), (h) and (o)? (12.30) The first type The first is of the residual type at the current paragraph (n), i.e. the former paragraph (o) referred to in the Agenda Item: “other works [etc.] as may be necessary for […] the construction or operation of the authorised development”.

The inclusion of paragraph (n) is to acknowledge the need to make provision for unforeseeable matters, which are subservient to the works set out in the work numbers in Schedule 1. In the context of a large and complex nationally significant infrastructure project such as this, it is acknowledged and understood that there may well be some minor works required for the purposes of carrying out and or operating the authorised development which were not specifically foreseen and thus individually itemised in the Schedule of Works at the time the DCO is granted.

That is a common feature of such developments, and therefore equivalents to paragraph (n) have been common in made DCOs. The Secretary of State has historically made them subject to the test that these kinds of unspecified (because unknown and unforeseeable) works for the purposes of the authorised development are only authorised to the extent that they do not give rise to any materially new or different effects from those assessed in the environmental statement (see for example paragraph (p) on page 62 of the recent Thames Water Utilities Limited (Thames Tideway Tunnel) Order 2014).

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Agenda Item National Grid response

Further to Q12.30 of National Grid’s Responses to the first written questions, on review, National Grid considered that the categories of works identified in paragraphs (e), (g) and (h) could, arguably, be viewed as being of a similar type; though even here, the need for these types of works was clearly understood at the time of the environmental impact assessment process carried out for the authorised development and, therefore, taken into account as part of that process. Strictly speaking, therefore, those categories of works are not really unknown and unforeseeable in the same way as the works comprised in the current paragraph (n). Thus the need for the additional caveat does not therefore arise in the same way. To go some way towards accommodating the concern expressed in Q12.30, however, National Grid agreed to wording being added to paragraphs (e), (g) and (h) that the works must not give rise to any materially different effects from those assessed in the environmental statement.

The second type

The second type of “further associated development” comprises works which were clearly contemplated at the time of the environmental impact assessment process for the authorised development as foreseeable activities, and in some detail. One example is those forms of “further associated development” included in this final part of Schedule 1 (authorised development) simply as a drafting approach so as not to relist each form of associated development with every single related pipeline section Work No.: e.g. the pipeline construction works in (b) or markers in (f).

The significant environmental effects likely to be caused by this second type of work were therefore within the contemplation of the environmental impact assessment process which has taken place to date in just the same way as the other items of development set out in Schedule 1 (authorised development).

The legal context to this question is as follows:

The Infrastructure Planning (EIA) Regulations 2009 (the “EIA Regulations”) require applications for DCOs to be accompanied by an environmental statement which contains a description of the development, a description of the aspects of the environment likely to be affected by the development and a description of the likely significant effects of the development on the environment. However, the description of the development must be proportionate – clearly it would not be practicable to describe every piece of material, no matter how small, or every movement or minor operation which will be undertaken in order to complete the development. Case law simply requires the description of the proposed development to be sufficient to enable the main effects which that development is likely to have on the environment to be identified and assessed (R. v Rochdale MBC Ex p. Milne (No. 1) [1999] 3 P.L.R. 74; [2000] Env L.R. 1);

The second type of “further associated development” described in this response would not permit the construction of a project “which could be very different in scale or impact from that applied for, assessed or permitted” (R (Midcounties Co-operative Ltd) v Wyre Forest DC [2009] EWHC 964 (Admin)).

In other words, whether this second type of “further associated development” would require a retrospective, second environmental assessment mechanism after the DCO is made needs to be understood in the context of the appropriate level of detail that was required under the EIA Regulations the first time, and whether it could give rise to very different effects to what was contemplated and assessed that first time, sufficient to justify a second assessment.

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Agenda Item National Grid response

None of the other types of further associated development described in the paragraphs in the list at the end of Schedule 1 (authorised development) could justify a second environmental assessment exercise to determine whether or not they fall within the scope of the authorised development. This is because they clearly form part of what has been assessed and could not give rise to a very different scheme to the one which has been assessed. The wording proposed in this Agenda Item for this second type of “further associated development” therefore is neither “necessary” nor “reasonable in all respects” for the purposes of paragraph 4.1.7 of EN-1.

The imprecision and uncertainty that the wording proposed in the Agenda Item would cause to the definition of “authorised development”, if attached to these second types of “further associated development”, is undesirable in principle, and is to be avoided. This is because the environmental statement, which is of significant length, was drafted in compliance with the EIA Regulations, but it was not drafted as a statutory instrument in contemplation of becoming a de facto extension of the definition of “authorised development”. To create unnecessary uncertainty as to what has or has not been granted development consent, requiring a further stage of environmental assessment post-consent to determine that fact, would not be in the public interest, particularly where the project is urgently needed.

National Grid therefore considers that no further alterations to the list of “further associated development” should be made.

National Grid has carried out the exercise, as described in its response to Q12.32 of the first written questions of December 2014 (document reference 10.2), of identifying three separate definitions of 11. Schedule 3 Requirements “commence” - To consider whether any pre- “commencement”. This is to ensure that it is able to carry out the works it needs to in advance of the main commencement works retained in the DCO would give rise to any significant construction without the project being held back by having to discharge Requirements which are unrelated to environmental effects prior to the discharge of requirements. (12.32) that work. This is in keeping with the policy impetus to carry out the authorised development expeditiously.

Separately, National Grid does not consider it “necessary” or “reasonable in all respects” for the purposes of paragraph 4.1.7 of EN-1 for works to be prevented before discharge of particular Requirements when those works would not give rise to any significant environmental effects prior to the discharge of those particular Requirements.

National Grid considers that the tiered approach currently set out in the DCO achieves an appropriate and proportionate balance in this regard.

The details are set out in National Grid’s response to Q12.32 of the first written questions of December 2014 (document reference 10.2) but, in summary, the three types of commencement are as follows:

• The first one is where there is no link between the Requirement and the commencement in terms of the potential for likely significant effects, i.e. all pre commencement works can take place without there being any risk of an associated significant environmental effect occurring;

• The second is where no pre commencement work can take place, e.g. in respect of European protected species, the Barmston Pumping Station design and trees and hedgerows;

• The third type of commencement is one that is a “middle ground”. There are some specified

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Agenda Item National Grid response activities that National Grid would be able to carry out before a particular Requirement is discharged, as there is no relationship between the activity and the Requirement, but not other specified activities as those could lead to significant environmental effects occurring.

The Examiner noted at the DCO ISH that this was a move in a generally helpful direction and asked whether a similar approach had been adopted on other DCOs. National Grid has looked into the matter:

• This draft DCO is the first time that this exact tiered approach has been proposed. National Grid notes, though, that paragraph 1(5) of Schedule 3 (requirements) of the Thames Water Utilities Limited (Thames Tideway Tunnel) Order 2014 clarifies that where there are different sites, commencement before particular Requirements specific to a site mean only commencement on that site, i.e. in the context of a long, linear project, works unrelated to a particular Requirement are not to be delayed by discharge of that Requirement. Otherwise, DCOs have historically allowed a universal set of pre- commencement works for all Requirements akin to the first type proposed in this DCO above.

• National Grid notes that in relation to The Northumberland County Council (A1 – South East Northumberland Link Road (Morpeth Northern Bypass)) Development Consent Order 2015, the Secretary of State for Transport deleted the promoter’s single definition of “commence”. This contained a number of pre-commencement works allowing the promoter to carry out certain activities before all Requirements had to be discharged:

o The Secretary of State’s decision letter of 12 January 2015 states that he did this because “he considers that it is inappropriate to substitute this definition for the provisions in section 155 (when development begins) of the 2008 Act or to enable potentially significant works to be carried out before mitigation measures such as the CEMP have been approved by the relevant planning authority.”

o National Grid considers that the tiered approach it is proposing avoids exactly the possibility that potentially significant works could be carried out before the relevant mitigation measures contained in the relevant Requirements are in place. As described above, National Grid does not consider it “necessary” or “reasonable in all respects”, for the purposes of paragraph 4.1.7 of EN-1, for works to be prevented before discharge of particular Requirements when those works would not give rise to any significant environmental effects prior to the discharge of those particular Requirements.

o National Grid does not consider the statutory definition in section 155 of the Planning Act 2008 to be relevant to this issue: it defines when development is considered to have begun, i.e. the “earliest date on which any material operation comprised in, or carried out for the purposes of, the development begins to be carried out” for the purposes of stipulating when DCOs will expire if they have not been so “begun”, i.e. implemented, rather than for any purpose associated with the proper securing of environmental mitigation; and the tiered approach described above in this proposed DCO secures such environmental mitigation in any case.

Separately, Mr Copeland, the Environment & Land Use Adviser for NFU North East, asked certain questions at the DCO ISH about the nature of pre-commencement surveys after National Grid explained the above approach to the definition of “commencement”. Following constructive correspondence thereafter between

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Agenda Item National Grid response National Grid and Mr Copeland, Mr Copeland confirmed by email on 30 January 2015 that the mechanism was clearer to him and he has no intention of submitting any alternative wording.

12. Requirement 3 Use of the word “... general... ” - The applicant is considering National Grid agreed in the DCO ISH to removal of the word “general” in Requirement 3. reviewing the imprecise wording for this Requirement; a draft is awaited. (12.34) However, it was also explained that in the particular circumstances of this case there is a need to provide scope for the later approval by the local planning authority of minor changes to the detail of what is shown on the plans, subject of course to the necessary safeguards to ensure that what is built does not go beyond what has been assessed.

The need for this small but important element of flexibility arises because of the relatively new and untested nature of the proposed development, which may not be commenced for several years. The FEED process has not been concluded, contractors have not been taken on and materials have not been ordered. Technical requirements for the layout of the AGI may change. Thus there is significant potential for some of the minor details to change, though not in ways that could realistically generate any controversy, or make any difference to the potential for likely significant environmental effects.

The principles that would need to be reflected in the drafting mechanism were explained at the DCO ISH.

The authorised development would need to be carried out in accordance with the approved details. The approved details would either be the approved plans, or revised versions of those plans. If National Grid wished to implement in accordance with revised plans, three criteria would then need to be met.

Firstly, the relevant local planning authority would need to approve any revision.

Secondly, any revised details would need to remain within certain parameters set by the DCO to reflect what has been assumed for the purposes of assessment.

Thirdly, the relevant local planning authority would need to be satisfied that the revisions would not give rise to any materially new or materially different significant environmental effects.

Whilst the principles reflect those commonly applied to 'outline' schemes, and are well understood, the detailed drafting and relevant parameters need to be collated into the DCO carefully. It is therefore proposed to supply the detailed drafting at Deadline 4.

13. Schedule 11 Protective Provisions - The applicant supplied a table in response See “Position in respect of statutory undertakers and others” (document reference 12.3) submitted under to ExA question 12.45 which summarised the position in respect of the separate cover. negotiations with statutory undertakers of asset protection agreements, protective provisions or voluntary agreements. The ExA would find it extremely useful to have an update of that table. (12.45)

14. Schedule 12 Miscellaneous Controls - How are local byelaws to be treated in Satisfaction of the Environment Agency (“EA”) the DCO? Are the EA and the IDBs satisfied with the disapplication or amendments of local byelaws? Are the IDBs satisfied with the amendments to The EA confirmed on page 14 of its statement of common ground with National Grid (document reference

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Agenda Item National Grid response schedule 14?(12.47) 9.6) as follows:

“The Environment Agency agrees with the approach of disapplying certain Yorkshire Land Drainage Byelaws, as they apply to Main Rivers, which impose prohibitions that conflict with activities required for the carrying out of the Onshore Scheme (authorised development)”

Satisfaction of internal drainage boards (“IDBs”)

Selby Area Internal Drainage Board confirmed it is satisfied with the amendments to Schedule 12 and 14 made at Deadline 2 in its email to National Grid of 27 January 2014.

Ouse & Humber Drainage Board has provided verbal confirmation to National Grid that it is satisfied with the amendments to Schedule 12 and 14 made at Deadline 2.

Beverley and North Holderness Internal Drainage Board informed National Grid on 13 February 2015 that it is still considering the Schedules and a response is awaited.

General approach to local byelaws

As described on page 16 of the Explanatory Memorandum (document reference 3.2 Rev B), National Grid has made diligent efforts to search for relevant local legislation and byelaws. However, such searches can never be entirely definitive but unknown byelaws could impede the authorised development. It therefore important to make provision for such byelaws.

Article 3(2) (Application, modification and disapplication of legislative provisions) would therefore exclude statutory provisions of local application (such as byelaws) having effect but only so far as these would be inconsistent with powers exercised under the DCO. Paragraphs 3(3) and 3(4) provide clarity on what inconsistent means. Paragraph 3(6) requires National Grid to set out why it believes an exclusion applies, given the safeguards contained in the Article, if the matter were ever raised.

Approach to IDB byelaws

The approach in relation to the byelaws of the three IDBs (namely the Selby Area Internal Drainage Board Byelaws, Ouse and Humber Drainage Board Byelaws and Beverley and North Holderness Internal Drainage Board Byelaws) is set out in detail on pages 12 to 14 of the Commentary on Rev B of the Draft DCO (document reference 3.3). It is summarised as follows:

• byelaws which do not conflict with the carrying out of the authorised development are not excluded or amended in the DCO and remain unaltered;

• byelaws which prohibit an activity required for the carrying out of the authorised development but which refer to scope for obtaining the consent of the relevant IDB are not excluded in the DCO - it has been agreed with the IDBs that such consents will be sought following the making of the DCO and there is no particular reason why consent should not be given; and

• byelaws which conflict with activities required for the carrying out of the authorised development but

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Agenda Item National Grid response which do not provide scope for consent under the terms of those byelaws were originally excluded in the draft DCO submitted with the application. However, in constructive discussions with the IDBs, National Grid was asked to explore an alternative drafting approach so as to ensure that there was no impediment to carrying out the authorised development but the byelaws in question would not be excluded. The mechanism agreed with two of the IDBs and which the third is considering is as follows:

• Article 3(2)(a) (Application, modification and disapplication of legislative provisions) clarifies that the particular IDB byelaws listed in Part 2 of Schedule 12 (Miscellaneous controls) do apply to the authorised development but only as amended in Part 2, i.e., as agreed in discussions with the IDBs, they are no longer outright prohibitions on activities required for the authorised development but requirements for consent.

• Paragraph 8 of Schedule 12 provides an IDB with the residual option of consenting to actions under any of its byelaws if it considers this appropriate;

• As the IDB byelaws are to remain in effect but subject to consents, it is appropriate for these to be subject to the same mechanism in Schedule 14 (Procedure in relation to certain approvals etc.) for the determination and appeal of applications for consent as other consents under the DCO. Schedule 14 is a mechanism derived from previous DCOs made by the Secretary of State, particularly the Hinkley Point C (Nuclear Generating Station) Order 2013 and Thames Water Utilities Limited (Thames Tideway Tunnel) Order 2014.

15. In the DML, there is a now a definition of the ES which is different to that in Article The definitions were originally different. However, for consistency, they were amended at Deadline 3 so that 2 of the DCO. Why is it necessary to have 2 separate definitions? This could be they are now the same apart from (as underlined below) the definition in the deemed marine licence in very confusing when there is only one ES. It seems that in the DML the applicant Schedule 10 referring to the Schedule in which it is located, i.e. Schedule 10, as “this licence” rather than by wishes the ES to mean the ES as certified plus any other environmental reference to “Schedule 10”. As explained at the DCO ISH, this is because it would make more sense when information. Perhaps it would be more appropriate to call this something else? the reader is already in Schedule 10 for a definition in it to refer to “this licence”, so the reader knows they do not need to go elsewhere:

Article 2 (interpretation): “environmental statement” means the document(s) certified as the environmental statement by the Secretary of State for the purposes of this Order together with any supplemental or additional environmental statement submitted for the purposes of complying with and/or discharging the Requirements in Schedule 3 (requirements) or conditions in Schedule 10 (deemed marine licence under Part 4 (marine licensing) of the Marine and Coastal Access Act 2009);

Paragraph 1 (interpretation) of the deemed marine licence in Schedule 10: “the environmental statement” means the document_ certified as the environmental statement by the Secretary of State for the purposes of the Order together with any supplemental or additional environmental statement submitted for the purposes of complying with and/or discharging the Requirements in Schedule 3 (requirements) of the Order or conditions in this licence;

The other difference, which is corrected in Rev C of the DCO, is that “document” should be “documents” in

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Agenda Item National Grid response the deemed marine licence definition.

There is thus no difference in meaning between the two definitions, which are now consistent.

The reason that it is necessary for there to be two definitions is because deemed marine licences can potentially be varied by the MMO directly under the Marine and Coastal Access Act 2009. This could result in a document which is physically separate to the DCO, so the convention in DCOs is for the deemed marine licence, with all the safeguards it contains, to be capable of being read independently from the start.

Mr McBryde of the MMO stated at the DCO ISH that he did not see any material difference in the two definitions, which National Grid considers are now clear and consistent.

16. The DML also appears to introduce the concept of staged works. Could the The provisions of Schedule 10 (deemed marine licence under Part 4 (marine licensing) of the Marine and applicant explain why this is necessary? Is the MMO content with this? Coastal Access Act 2009) have been revised to reflect that the licensed activities may in practice be divided into two stages, under two separate construction contracts, namely pipeline works at the Ouse and separate works at the landfall location.

Mr Kinmond of the MMO confirmed at the DCO ISH that it content with the revisions made for this purpose at Deadline 3.

17. The DCO does not appear to include an article imposing a time limit (eg 5 years) The time limit referred to in the Agenda Item can be found in Article 36 (Time limit for exercise of authority to for acquiring the land compulsorily. Does the applicant consider one is necessary acquire land compulsorily), which states as follows in respect of compulsory acquisition: and, if not, what is the justification? “36.—(1) After the end of the period of 8 years beginning on the day on which this Order is made—

(a) no notice to treat is to be served under Part 1 of the 1965 Act; and

(b) no declaration is to be executed under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981( ) as applied by article 27 (application of the Compulsory Purchase (Vesting Declarations) Act 1981). […]”

Mr McBryde of the MMO indicated at the DCO ISH that he wished to comment on Article 9 (Transfer of Benefit of Order) and the Examiner requested a response from National Grid to this at Deadline 3. Mr McBryde provided his substantive comments by email to National Grid following the DCO ISH: the MMO wishes any potential transfer of any or all of the benefit of the DCO not to affect the MMO’s ability to discharge its duties, and determine who the undertaker is at any given time, under the Marine and Coastal Access Act 2009. There have been subsequent constructive discussions between National Grid and the MMO, who have agreed to explore appropriate approaches which balance the concerns of both arising from these points for inclusion in the DCO at Deadline 4.

Issue-specific hearing on Construction Operations (including water resources, drainage and reinstatement) 3 February 2015

1. At what depth would the pipeline cross beneath the River Ouse and should this At what depth would the pipeline cross beneath the River Ouse and should this be secured in the DCO? be secured in the DCO? Would the underlying Sherwood Sandstone be used as a route? (1.1)(5.15) The depth at which the pipeline would cross beneath the River Ouse is related to the chosen trenchless crossing technique, and the crossing technique and depth cannot be decided until a detailed study of ground and groundwater conditions and engineering requirements and constraints has been done. That study will

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Agenda Item National Grid response not be undertaken until detailed design, one or more years hence.

The ES assumes the minimum amount of cover, which is 2.0m, although the depth will actually be greater.

Would the underlying Sherwood Sandstone be used as a route? (1.1)(5.15)

The crossing methodology is likely to be chosen from one of the following three trenchless crossing techniques: microtunnel, direct pipe, and horizontal directional drill (HDD).

Microtunnel or direct pipe would involve the excavation of pits or shafts either side of the crossing. In this case the underlying Sherwood Sandstone would not be used as a route, because that geological stratum is too deep (about 19 metres below ground level adjacent to the River Ouse). A suitable stratum above the Sherwood sandstone would be targeted.

If HDD were to be the chosen technique, it is anticipated that the pipeline would be routed through the Sherwood Sandstone as it crosses beneath the River Ouse. This is possible because terminal pits or shafts are not required with this technique, which starts and finishes at ground level. Descriptions of the different crossing techniques are provided in the Construction Report (Doc 7.6).

No likely significant adverse environmental consequences have been identified should the HDD be thorough the Sherwood Sandstone.

Nevertheless, National Grid will commit to a minimum depth of 3.5 metres beneath the True Clean Bottom of the River Ouse, (as requested by the Canal and River Trust) whichever trenchless crossing technique is chosen. This will be achieved via an amendment to the description of Work No. 5C in DCO Schedule 1 (Doc 3.1) at Deadline 3 to say:

“Work No. 5C – A carbon dioxide pipeline from and beneath Church Dike Lane, approximate chainage 7458 metres, to Barmby Road (Work No. 5D), approximate chainage 11,089 metres, laid in trench, in sleeves or by trenchless methods (save beneath the true clean bottom of the River Ouse where it must be laid by trenchless methods); such pipeline to be not less than 1.2 metres below ground surface (or not less than 1.7 metres below the true clean bottom of rivers, streams, open drains, canals or dykes, but excluding land drains, culverts or sewers and not less than 2 metres below public highways and not less than 3.5 metres below the true clean bottom of the River Ouse where applicable).”

2. Would Area B of the Multi-junction be limited to a height of 4m? How would the Taking each point in turn; Multi-junction be developed in the short term and the longer term to serve future projects? Would additional surface development be needed in the longer term 1. Height. and would further authorisation be required. (1.14) It was explained that the above ground structures installed within Area B of the Multi-junction (MJ) will be limited to 4m in height, but that it will be necessary to make some additional provision in the DCO to ensure that is secured. A suitable additional parameter will be added to requirement 6 in the next iteration of the DCO at Deadline 4.

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Agenda Item National Grid response

2. How would the multi-junction be developed in the short and the long term?

On day 1 the landscaping for the entire site, including area B will be established. Initially only two PIG trap reception facilities and associated equipment will be required. The associated equipment will enable operation of the PIG trap facilities and the necessary connections to enable the flow of Carbon Dioxide from the 300mm pipeline from the power station and more fully described in Work Number 3 of the Draft DCO to the 600 mm diameter pipeline that will take the Carbon Dioxide towards the coast and is described in Work Number 5 onwards of the Draft DCO.

Thereafter each additional pipeline connection, pig trap and associated equipment will be connected as required. New connections will most likely be done sequentially.

The Draft Order allows up to 3 additional pipelines to be connected at the multi-junction.

National Grid has calculated that the maximum capacity for the 600mm diameter pipeline from the Multi- Junction to the store, including the pumping station and other facilities, will be 17 million tons per annum. The initial load from Drax is of the order of 2.6 million tons, so there is a high degree of confidence that further pipelines can be connected at the Multi-Junction without breaching the transportation system capacity limit.

3. Would additional surface development be needed in the longer term and would further authorisation be required? There is sufficient land in area B, no additional surface work beyond that described in Work Number 4 of the Draft DCO will be required for completion of the 3 connections in the longer term.

3. Where and how is the “drainage strategy” (Requirement 16) be defined? Should Where and how is the “drainage strategy” (Requirement 16) be defined? the drainage plans form part of the strategy as well as Document 7.7? How would field drainage operations be completed which fall outside the DCO limits? In other Requirement 16 has now been amended to include a definition of the “drainage strategy” as follows: words, what power would the applicant have to undertake these works, with particular reference to those on Sheet Nos. 1, 8, 10, 11, 16 - 20, 24 and 25? 16. Subject to Requirement 11 (AGI hard landscaping and drainage), the authorised development must take (1.16) place in accordance with the drainage strategy, unless otherwise agreed in writing by the relevant planning authority; and in this Requirement “drainage strategy” means the document certified by the Secretary of State for the purposes of this Order as the drainage report dated June 2014 (given application document reference 7.7) but does not mean the plans given application document reference 7.7.1.”

Should the drainage plans form part of the strategy as well as Document 7.7?

Requirement 16 makes it clear that the drainage plans (document 7.7.1) are not intended to form part of the drainage strategy, they are for information and essentially illustrative purposes only. They help to identify why the redline boundary has been drawn as it is. The actual drainage work that would be undertaken in accordance with the drainage strategy would need to be determined once detailed design has been completed and would be informed by conditions on the ground at the time of implementation.

(Please also refer to our response to First Written Questions Q1.16).

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Agenda Item National Grid response

How would field drainage operations be completed which fall outside the DCO limits? In other words, what power would the applicant have to undertake these works, with particular reference to those on Sheet Nos. 1, 8, 10, 11, 16 - 20, 24 and 25? (1.16)

All land drainage operations will be carried out within the DCO Order Limits – subsequent to the Land Drainage Survey the redline boundary was amended to ensure that all land drainage outfalls are within the Order Limits as submitted with the DCO Application.

The illustrative drainage plans have been reviewed in response to this question and some amendments will be carried out to remove some annotations from the plans that may be mis-leading. (Some are survey notes; others remain from National Grid’s review of the red-line boundary).

Insofar as ditches outside the order limits need to be cleaned from time to time in order to maintain drainage flows, these works would be carried out as part of the routine maintenance of drainage ditches by the relevant landowner in the usual way. They are not required in order to deliver the drainage strategy, or more generally to implement the Onshore Scheme.

Amended Illustrative Drainage Plans to be submitted at Deadline 3 (Document Reference 7.7.1).

4. The Code of Construction Practice (CoCP)(Document 7.5) is fundamental to the No Response Required. DCO and is secured in Requirement 14. Local planning authorities, the Environment Agency and Natural England accept that it is an appropriate document for managing the construction practices. No interested party challenges its appropriateness. Nevertheless, there are issues about details.

(i) How would any winterisation measures be secured? Are they included in the Winterisation will be secured through the CoCP which is secured through Requirement 14. Provisions CoCP? If not, should they be included? (1.7) regarding winterisation have been included in the CoCP submitted at Deadline 2 at Section 9.3.12:

“9.3.12 In the unlikely event that construction works cannot be completed within one season the working width will be ‘winterised’ and water management measures (e.g. buffer strips, earth bunds, silt fences adjacent to watercourse; grips; and silt bags on land drainage outfalls) will be regularly inspected and maintained during the winter period. Additional measures will be installed where required.”

This section is being reviewed and the CoCP amended to provide a clear definition of the term 'winterisation' and to specify what measures will be implemented to achieve winterisation.

(ii) NE suggests measures for inclusion in the CoCP to protect flows in West This query relates to the potential effect of groundwater management required for the trenchless crossing of Beck (River Hull). Should they be included? (1.18) the River Hull & Driffield Canal at Wansford on water levels/flow of water in West Beck.

The measures requested by Natural England have been included at Section 10.3.17 of the CoCP. Following consultation with the Environment Agency a slight modification was made to strengthen the requirement..

The Environment Agency has indicated that they are satisfied with this amendment to the CoCP.

NE have agreed the updated wording and this was confirmed in an email from James Walsh, received on

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Agenda Item National Grid response 02/02/2015 (and again orally at the ISH for biodiversity)..

Section 10.3.17 now reads:

“The timing of the crossing works beneath the River Hull/West Beck will avoid the typical period when low flows occur in West Beck. Based on the historic flow data from Snakeholme Lock gauging station provided by the Environment Agency the lowest low flows occur between October and March. The normal construction season for pipeline installation is April to October.

Should water flows in West Beck drop below the Q95 level of 0.368 cubic metres per second (cumecs) (measured at the Environment Agency’s Snakeholme Lock gauging station) then the contractor will discharge water from the water management scheme for the pipeline crossing into West Beck at a point just upstream of the proposed pipeline crossing. The quantity of water discharged will be equal to the amount being pumped from the ground save for incidental loss i.e. ‘without loss’. The water quality would be controlled by putting the water through a series of settlement lagoons and /or filtering system before controlled discharge into West Beck. The discharge would be subject to the conditions of an Environmental Permit from the Environment Agency (which would need to be issued in advance of the activities).” •

(iii) EA suggests amendments to the CoCP to control operations in the event of The CoCP submitted at Deadline 2 has been amended by the insertion of the text requested by the EA after slippage, to cover contractor management and to minimise the total length of Section 1.4.6. bare open ground. Does the applicant agree?(5.4) The Environment Agency has confirmed this amendment is acceptable and serves to address their outstanding concerns on this matter (Letter to PINS dated 23 January 2015). This will be included in the next revision of the Statement of Common Ground between National Grid and the Environment Agency.

Section 1.4.7 now reads:

“Individual contractors/crews/teams dealing with those tasks listed in 1.4.6 will be managed to ensure that they work collaboratively with the aim of keeping the ‘production line’ as compact as possible without slowing overall progress.”

(iv) Should the definition of “Construction work” in Requirement 14 encompass National Grid recognises that the CoCP covers various matters which would precede construction work pre construction surveys and plan preparation? (1.18) including as indicated in the question, pre-construction surveys and plan preparation required to control the construction works.

It is also recognised that there is potential ambiguity in defining Requirement 14 as requiring only the construction work to be carried out in accordance with the CoCP which raises the question whether other measures are covered by the Requirement.

National Grid will suggest a suitable mechanism for removing the ambiguity and thus more clearly securing all the elements included in the CoCP. This may require some re-drafting of the CoCP to resolve the ambiguity so we propose submission at Deadline 4 (March 4th).

Rather than changing the definition of “construction work” so as to extend its natural meaning to include

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Agenda Item National Grid response activities that precede construction (which is likely to have knock-on implications elsewhere in the DCO and could well be confusing) the most appropriate solution may be to have a simpler form of trigger, for example, that the authorised development must be carried out in accordance with the CoCP, and then to make sure that the CoCP itself makes clear when the various measures that it contains need to be undertaken. This will require a careful review of the CoCP to make sure its temporal scope is clear in all instances, and that review is currently underway.

(v) How can the restoration plans for the Temporary Construction Compounds Requirement 19. “Restoration of land used temporarily for construction” requires that any land within the which located are on best and most versatile (BMV) land be secured in the Order limits which is used temporarily for construction as part of the authorised development must be CoCP? (7.2) reinstated to a condition fit for its former use.

The same approach will be taken whatever the agricultural land classification of the land.

This is also supported by Section 3.8.2 of the CoCP (secured through Requirement 14) which states:

“On completion of the construction works, plant, temporary cabins and vehicles no longer authorised will be removed from the site. All land, including highways and public rights of way crossed by the works or other land temporarily occupied will be made good to the satisfaction of landowners and/or the relevant highways authority”.

The Code of Construction Practice sets out how soils will be handled in Section 14.3 and how the integrity of land drainage will be maintained in Section 9.3.13.

The restoration of agricultural land (including BMV land) is therefore secured through both Requirement 19 and Requirement 14 and the Code of Construction Practice.

(vi) Should the CoCP include a reference to the soil storage and re-instatement Should the CoCP include a reference to the soil storage and re¬instatement advice from Defra “Good for advice from Defra “Good for Handling Soil” as requested by the NFU? How Handling Soil” as requested by the NFU? would a voluntary agreement between the applicant and a landowner for making good any damage to land work in practice and how could it be Section 3.2.1 of the CoCP states: secured in the CoCP? (7.6) “Soil moved, handled or stored on site will be treated in accordance with Defra’s Construction Code of Practice for the Sustainable Use of Soils on Construction Sites (2009) or any replacement thereof.”

Defra (2009) also makes reference to the MAFF (2000) “Good practice guide for handling soils” which the applicant understands to be the document referred to in the Examining Authority’s question. Within the DEFRA guidance “Good Practice for Handling Soil” 2000 Sheets 1 – 19 only one sheet is applicable to pipeline construction, however, the soil handling methods promoted in the DEFRA guidance sheets are not compatible with the soil handling measures used for pipeline construction. For example topsoil stripping is carried out using excavators and bulldozers to push the topsoil to one side of the working width without the need for dumper trucks. Machinery is not permitted to track on top of the stored topsoil.

Soils will be handled, stored and reinstated in accordance with Section 14.3 of the CoCP (Doc 7.5) - National Grid’s approach has been developed over four decades of constructing cross-country gas pipelines.

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Agenda Item National Grid response

(vii) Would a “pre-entry record of condition” survey include land drainage and Would a “pre-entry record of condition” survey include land drainage and should this be specified in the should this be specified in the CoCP? (7.8) CoCP? (7.8)

Land drainage does form part of the scope of discussions with land owners prior to construction and as discussed above land drainage design will be discussed with land owners and further surveys carried out as required. This will be secured through the CoCP and the Drainage Strategy (Doc 7.7):

Please refer to Section 14.2.4 of the CoCP (Doc 7.5) which states:

“arrangements for fencing of the working width / works areas, farm accesses, access to severed fields and temporary supply of services and water supplies for livestock and irrigation, land drainage and reinstatement will be agreed prior to construction (pre-entry agreements) and implemented by the Contractor;” (emphasis added)

“A record of condition survey will be undertaken prior to construction to assess crops, condition of field boundaries etc and agreed with the occupier to facilitate reinstatement to original conditions” (emphasis added)

and the Land Drainage Report (Doc 7.7) Paragraph 5.3:

“A survey will be undertaken prior to entry to identify outfall locations”

9.3.18 of the CoCP states that “Drainage will be installed to ensure that agricultural drainage systems continue to function as they did previously."

The drainage surveys will be reviewed in liaison with landowners/occupiers prior to construction and further drainage surveys conducted where required. It is best to agree the final design in association with the landowner if possible since they will have to maintain the drains once they are installed and sometimes landowner preferences can be taken into account; and to maintain good relations with landowners/ occupiers during the works and into the future.

(viii) Has adequate provision been made in the CoCP for an Yes Agricultural Liaison Officer and what would be his/her duties? (7.9) The CoCP has been amended at Section 14.2.2 to read:

“Agricultural liaison officer(s) will be employed to liaise with land owners and occupiers prior to and throughout the construction phase of the project and agricultural inspectors to monitor the construction and reinstatement works.”

Those employed for the posts will be suitably qualified to fulfil those duties.

(ix) What would be the frequency of monitoring restored land after re-instatement What would be the frequency of monitoring restored land after re-instatement works have been completed works have been completed and how can this be secured in the CoCP? At and how can this be secured in the CoCP?

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Agenda Item National Grid response what point would any remedial work be considered necessary and who would make that judgement? (7.11) Due to the nature of the land which is predominantly farmland the majority of the pipeline route will be returned to the landowner/occupier for agricultural use immediately on completion of construction.

Requirement 19 and Article 28 (4) require land to be reinstated to the reasonable satisfaction of the land owner/ occupier.

The landowner is under no obligation to accept land back from National Grid that is not deemed to be satisfactorily reinstated.

The reinstatement works themselves will be monitored by inspectors during the reinstatement operations to ensure that soils, land drainage and field boundaries are reinstated correctly. See Section 14.2.2 of the COCP.

Once a landowner has accepted a handover from National Grid, the landowner would be responsible for monitoring the condition of the land, and notifying any emerging defects to National Grid. An agricultural landowner/ farmer will know his land better than anyone else, will see it in all sorts of conditions at all times during the year, and will subject it to all sorts of operations. It is a much more reliable way of picking up problems than any form of regular inspection by National Grid along the pipeline could ever achieve.

This approach has been developed from National Grid’s extensive experience of cross country pipeline construction. National Grid and has not routinely monitored reinstated land after completion of pipeline works, because its consistent experience is that defects are reported as they occur by landowners or occupiers.

At what point would any remedial work be considered necessary and who would make that judgement? (What would the trigger for that be? How would it work in practice?)

In practice, any defects reported by the landowner/occupier would be jointly inspected with National Grid and a remedial plan agreed.

National Grid would always seek to reach an agreement as to the need for any specific reinstatement works, but in the absence of agreement National Grid would have to make the judgement.

National Grid would have the power under the DCO to go onto the land during a 5 years maintenance period to make good under Article 29. If there is something that requires to be put right then during the maintenance period National Grid has the power to go in and do it, rather than simply relying on compensation.

If for any reason the landowner was not satisfied, then it would be possible to seek compensation in accordance with the Compensation Code. Whilst National Grid considers that scenario to be very unlikely in practice (not least because it will be in National Grid's direct financial interest to avoid it), in either event the landowner will be left no worse off as a result of the authorised development.

5. Does the EA consider that the Construction Water Management Plan and the Does the EA consider that the Construction Water Management Plan and the Pollution Prevention and Pollution Prevention and Control Plan sought in Requirement 9, and for which Control Plan sought in Requirement 9, and for which provision is made in Sections 9.2 and 9.3 of the CoCP, provision is made in Sections 9.2 and 9.3 of the CoCP, should be agreed with should be agreed with them as suggested by the ERYC?

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Agenda Item National Grid response them as suggested by the ERYC? Should there be a Silt Management Plan and a Spillage Emergency Response Plan as suggested by the EA? (3.28) Under Requirement 9 a Construction Water Management Plan and Pollution Prevention and Control Plan must be prepared and approved by the relevant planning authority in consultation with the Environment Agency.

This requirement has been revised further to comments by the Environment Agency and is now agreed.

The Environment Agency have confirmed in a letter to PINS dated 27 January 2015 in relation to this question:

“Whilst we are content with the current proposed wording of requirement 9, i.e. submissions to the relevant planning authority with the EA being consulted, we would have no specific objection to the Environment Agency acting as the sole approval body in this case.”

Should there be a Silt Management Plan and a Spillage Emergency Response Plan as suggested by the EA? (3.28)

The provisions or procedures that would comprise a Silt Management Plan or a Spillage Emergency Response Plan will be encompassed within the Water Management Plan and Pollution Prevention and Control Plan albeit under a different name. Both these documents are secured via Requirement 9 of the draft DCO.

The CoCP Sections 9.2 and 9.3 provide a description of the content of the Water Management Plan and Pollution Prevention and Control Plan.

The Environment Agency have confirmed in a letter to PINS dated 23 January 2015 that in relation to Sediment, changes made to the CoCP are acceptable and address their outstanding concerns.

Please refer to National Grid’s response to Q3.28 in Document 10.2 submitted at Deadline 1.

6. The applicant states that chemicals, diesel and other substances will not be It is not National Grid’s intention to store large volumes of chemicals or diesel at the Pumping Station site stored at the pumping station during its operational phase and only transported to during the operational phase. Any chemicals brought on site must be stored, handled and disposed of in the site as required. How can this be ensured after the construction phase of the accordance with the Control of Substances Hazardous to Health Regulations 2002 (COSHH) this controls project has ceased and the operational phase has begun? (3.29) environmental hazards as well as health hazards.

In circumstances where a separate statutory regime of control exists which is capable of addressing this issue, the Secretary of State must proceed on the basis that the statutory regime will operate effectively, and thus there is no need to make additional provision in the DCO to duplicate or supplement those controls.

7. Which pipeline installation method would be used offshore and would the National Grid has amended the wording of the DML Condition 10 as per the MMO's suggestion in that the monitoring of sediment trapping and downdrift sediment starvation be required for term `reference site' is used rather than `control location' (see 3.1 Rev B) which ever technique is used? Should the DML be amended as suggested by the A range of pipeline methods is being considered for the construction of the offshore pipeline, and the actual

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Agenda Item National Grid response MMO? (3.30) methods to be used are not yet fixed.

On behalf of National Grid, Mr Hartley explained that a detailed review had been undertaken of existing information on sediment transport routes, direction and volumes of material moved on a seasonal and annual basis. The conclusion from this work is that no additional monitoring would be required, given that National Grid will not be fluidising the sediment and thereby potentially creating very large sediment plumes.

The current plans are as follows: A shallow water s-lay vessel is likely be used to install the pipeline in the nearshore area. As the working depths are shallow (0-60m) along the entire route, the same vessel may be used to lay the pipe continuously from the shore to the storage location. The vessel is likely to use anchors to hold position although the use of a vessel with dynamic positioning is possible for the offshore section of pipeline.

An access channel may need to be dredged in the nearshore to accommodate the vessel in shallow waters up to the cofferdam (if used) entrance. The width of the channel is likely to be in the region of 160m, and will have a length sufficient to maintain a depth of ~6m from the closest shore approach required out to the 6m depth contour. These dimensions will provide sufficient working draught and width to accommodate the pipelay vessel. The pipelay vessel is likely to be anchored and will require 2 anchor handling vessels. Additional survey of the mooring pattern width along the length of the pipeline will be undertaken if the anchor spread would exceed the surveyed corridor. Post lay anchor scar remediation will be incorporated within the pipelay contract scope of work, with proposed activities to be discussed with local fishermen’s representatives.

Prior to pipelay, a trench will be constructed out to approximately the 36m depth contour. Methods employed may include a suction cutter dredger due to the presence of stiff clay and shallow sub-cropping chalk, backhoe dredger or plough. The trench will take some 10 days to excavate, although timings are weather dependant. A maximum of 6,000m3 of rock with an average diameter of 400mm may be required for pipeline stabilization during construction, extending from the tie-in location to 1km offshore. This material would not outcrop at the seabed but be buried during pipeline backfilling. Spoil from the trench will be set on the seabed alongside the trench for use in backfill after pipelay. Post-lay trenching may be undertaken on a section of pipeline between KP16 and KP27 to reduce scour and the potential for free spans. The trenches are designed to be of a suitable depth to prevent the pipeline becoming exposed during project life.

The seabed topography varies along the pipeline route, and near the storage site includes the presence of mobile bedforms (sandwaves and smaller megaripples). Where the pipe is to be surface laid, several areas have been identified as requiring pre-sweeping to avoid pipeline freespans on installation and to maintain pipeline integrity. Pre-sweeping will generally take place between KP47 and the storage site, and will reduce sandwave height by between 2m and 5m to a trench bottom width of 10m with 30˚ sides. It is estimated between 150,000 and 550,000m3 of material would need to be removed as a result of the pre-sweeping work.

It was explained that there is a lot of evidence available from experience of aggregates dredging, and research into its effects, to inform the assessment.

In response to the ExA's question, Mr Hartley confirmed that there is a very significant erosion of the cliffs, particularly during winter storms. The resulting sediment is transported by a longshore drift, both in the

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Agenda Item National Grid response intertidal area when the tide is in, and the shallow sub-tidal area.

In the context of natural sediment transport along the whole pipeline route (see Document 11.9 in particular sections 4 and 7) monitoring of sediment trapping and downdrift sediment starvation is not considered to be required.

Flood risk, climate change, water resource

8. At open cut river crossings, the Environmental Statement states at 6.3.2 that bank National Grid has made a commitment which is secured via the CoCP (Section 9.2.13) under Requirement stabilisation will be discussed with the EA, IDB, and Local Lead Flood Authority 14, that the pipeline will be installed under main rivers using non-open cut techniques. Main rivers are (LLFA). Are those bodies content that such works will be dealt with under the controlled by the Environment Agency. This question relates to open cut river crossings. Water Resources Act 1991 and the Yorkshire Land Drainage Byelaws for main river or the IDB/LLFA for ordinary watercourses under the Land Drainage Act For clarity it is not proposed to dis-apply or amend byelaws that include provision for obtaining consent from 1991 and Land Drainage Byelaws of the relevant IDB despite the disapplication of the EA or IDBs. IDB byelaws? (1.12) National Grid will have to obtain consents as required under the Water Resources Act and the Yorkshire Land Drainage Byelaws from the EA (SoCG Doc 9.6 Table 3 Page 14) for works in on over or under main rivers.

National Grid will have to obtain consents as required under the Land Drainage Act and Land Drainage Byelaws from the relevant IDBs and ERYC (as Lead Local Flood Authority) and as part of those consent applications details of crossing methods and vehicle access will be prepared and submitted to the relevant IDB / ERYC.

As part of discussions with both the Environment Agency, the Internal Drainage Boards and ERYC as Lead Local Flood Authority, National Grid has discussed the requirement to apply for consents and in the relevant Statements of Common Ground with the IDBs and ERYC it has been agreed that the details of crossing methods and vehicle accesses will be prepared during detailed design and submitted to the IDBs / ERYC as part of the post DCO consents process.

9. Please could the ExA be informed of the latest position from the applicant and EA The information submitted at Deadline 1 in answer to Q5.6 has been considered by the EA who have and NE about water abstraction for hydrostatic testing of the pipeline in both the confirmed the following in their letter to the Planning Inspectorate: southern and northern sections with particular reference to the appraisal of options provided by the applicant? (5.6) “Hydro-static Testing – As per our Deadline 2 submission (responses to comments on Relevant Representation) we are now satisfied with the additional information and assessment provided by National Grid. We therefore do not wish to make any further representations on this matter.”

Natural England provided verbal confirmation on 2nd February that they would allow such an abstraction to take place, but stressed that it would be for the EA to permit such an abstraction.

10. Please could the EA confirm:

(i) it is content with the applicant’s proposed amendment to Requirement 11 The Environment Agency have confirmed in a letter to PINS dated 23 January 2015 that the changes made dealing with drainage issues at the AGIs. (5.7) to the DCO requirements 5, 6 and 9 are acceptable and they do not currently wish to make any further

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Agenda Item National Grid response representations: (ii) it is content with the applicant’s proposed amendments to Requirements 5, 6 and 11 dealing with the specification and mitigation measures within the “Development Consent Order – National Grid submitted a revised DCO at Deadline 2, which incorporated approved Flood Risk Assessment? (5.8) changes to requirements 5 and 6, as well as a number of additions (sub-clauses 5-10) to requirement 9. These amendments/additions were in response to our previous comments and are acceptable to us. As such, we do not currently wish to make any further representations about the DCO.”

The Environment Agency has subsequently confirmed in a letter to PINS dated 27 January 2015 in relation to these questions:

“We can confirm that we are content with the proposed revised wording for requirements 5, 6 and 11 included within the revised DCO submitted by National Grid at deadline 2. We are also content with the additional sections 5-10 of requirement 9. We are therefore content that flood risk and drainage measures are adequately secured.”

11. Are the Selby IDB, ERYC and the NFU content that the expressions of intent in Paragraph 9.3.18 relates to Flexible Drainage Areas and the assumptions applied in the ES that will be the CoCP (para) 9.3.18 would safeguard land drainage interests in agricultural adhered to during construction. The list of measures are binding on National Grid under Requirement 14. land within and adjacent to the application site? If not, how should the CoCP be Reference should also be made to paragraphs 9.3.13 and 14.3.2 of the CoCP. Land drainage will be carried amended? (5.11) out within the Order Limits (redline boundary) to maintain the integrity of the existing land drainage systems.

ERYC confirmed at the hearing that they were content that the CoCP would sufficiently safeguard land drainage interests.

The IDBs have not specifically been asked about paragraph 9.3.18 in the CoCP however, Selby Area IDB and OHDB have confirmed verbally they have no issues with land drainage.

EA have confirmed in meetings that land drainage issues fall within the remit of the IDBs and LLFA.

12. Has Yorkshire Water secured the appropriate Protective Provision in the DCO to No response required. safeguard its equipment from damage or interference associated with the construction and operation of the project? If not, what should be included and how should it be phrased? (5.12)

13. Additional environmental enhancement measures are being proposed by the The correct interpretation and application of the policy test for environmental enhancement measures is set applicant in the Planning Statement (paras 5.3.25 – 5.3.30). Have these out in document 10.3.2 submitted at deadline 1. additional enhancements been secured? If not, how should they be secured so they can be delivered? In this project, opportunities for ecological enhancement as contemplated by NPS EN-1 arise on land surrounding the above ground installation sites that is retained for the purpose of landscaping. National Grid will retain control of this land as part of the operation of the project and accordingly is able to manage the land for the benefit of biodiversity. This approach is consistent with the expectation of EN-1 as set out in paragraph 5.3.18. The proposed measures for enhancement at these sites are set out in document 10.2, submitted at deadline 1 in response to Question 3.17. A suitable mechanism to secure these measures has been drafted for Deadline 3 [note, this is now included as Document 12.5 which will ultimately form an

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Agenda Item National Grid response appendix to the Code of Construction Practice which is secured via Requirement 14] .

In addition, there is a secondary category of what might be described as 'potential opportunities for enhancement' which may in due course emerge on land that is that is subject to restoration following the installation of the pipeline.

National Grid is only seeking an easement over the pipeline route for the purposes of facilitating the ongoing operation, maintenance and protection of the pipeline, and will hand the land back to the landowner, once it has been reinstated. In most cases the land is expected to be reinstated so as to allow for the previous agricultural practices to continue.

As National Grid will not retain operational control over this land, and it will often be desirable for the previous agricultural use to be resumed, there may well be no opportunity to achieve lasting biodiversity enhancements in the same way as it is possible for the land surrounding AGI sites. Opportunities to implement biodiversity enhancement measures as part of the restoration of this land must therefore be subject to agreement with the land owner, who would be responsible for land stewardship and therefore the retention and maintenance of any enhancement features in the longer term.

Measures that could be introduced for the benefit of biodiversity are likely to be restricted to field margins rather than by taking existing agricultural land out of production. Where measures can be agreed, these secondary potential opportunities are only likely to be capable of delivering relatively .minor gains in terms of biodiversity. It is this secondary category of potential opportunity that is considered in paragraphs 5.3.25 – 5.3.30 of the Planning Statement.

It is not appropriate to secure these secondary potential enhancement opportunities. Requirements should only be imposed that are, in summary, necessary and reasonable (paragraph 4.1.7 of EN-1). Given the absence of any ability on the part of National Grid to ensure the retention of any measures implemented (without third party agreement), and the limited scope and significance of the likely benefits, it would be both unnecessary and unreasonable to impose a requirement to the effect that National Grid must deliver this secondary category of potential enhancement.

Nevertheless, National Grid has volunteered to discussi this issue with stakeholders and is considering whether there is an appropriate mechanism to reflect its intention to do what it reasonably can to take these opportunities where they emerge and it is reasonable to do so. One option may be to develop a protocol that is appended to the Code of Construction Practice, identifying National Grid's approach. [note, this is now included as document 12.5 which will form an appendix to the Code of Construction Practice which is secured via Requirement 14]

Noise

14. What should be the pipeline construction noise threshold on Sundays and Bank What should be the pipeline construction noise threshold on Sundays and Bank Holidays at noise sensitive Holidays at noise sensitive receptors (NSRs) given the difference in view between receptors (NSRs) given the difference in view between the applicant (65dB LAeqT) and Selby DC the applicant (65dB LAeqT) and Selby DC (55dB LAeqT)? Would on site (55dB LAeqT)? mitigation enable the lower noise threshold to be met? If so, how could it be secured? Whether the amendments proposed by the applicant to Requirement 15 • The construction noise thresholds on a Sunday and Bank Holiday should be 65dB in respect of pipeline

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Agenda Item National Grid response at Deadline 2 are reasonable? (8.3) construction works and 55dB in respect of AGI construction works.

• 55dB has been applied to the AGIs because the construction work at these locations is static not transient, which makes it much easier to mitigate/attenuate noise, primarily by enclosing the site in acoustic fencing and using specific temporary plant enclosures.

• As set out in Section 3.1.1 of the Code of Construction Practice (Document 7.5) and as explained at the hearing, working on Sundays and Bank Holidays, whilst not usual, cannot be excluded. The ability to work on Sundays and Bank Holidays is required to allow any delay, for example through unforeseen ground conditions or weather events, to allow the programme to catch up, maximising the opportunity to complete the pipeline works in one construction ‘season’. As such any works in relation to pipeline construction on a Sunday or Bank Holiday would be no different to those works taking place Monday to Saturday and accordingly it is not appropriate for us to limit activities to 55 dB(A).

• There is a possibility that a 55dB level will be met anyway, as a result of the presence of a topsoil/subsoil bund along either edge of the working width. However it is not certain that it can be met, as additional site mitigation would not be reasonably practical for pipeline construction activities due to the linear transient nature of the works (i.e. this is very different from a static construction site, where site acoustic hoardings can be erected).

• In line with BS5228:2009, National Grid's proposed noise limit of 65dB would mean that any noise generated would have only a minor effect (not significant) as confirmed in Table 7 of ES Chapter 13 (Document 6.13). It is not therefore considered necessary to set a level of 55dB to avoid likely significant effects. Setting a lower level would therefore impose an unnecessary additional burden on the ability of National Grid to carry out the works expeditiously, thus extending the amount of time that is likely to be required to undertake the works. Rapid completion of the works is in itself an important means of mitigating adverse impacts.

• This was discussed at the hearing and confirmation was obtained from Mr Hymers that this point was understood and agreed. However, as discussed at the hearings, we will update the CoCP to include a statement to say we will notify residents of such works in advance.

ERYC queried the wording of Requirement 15 in relation to low frequency noise as an aspect of the noise report to be prepared for the pumping station. Since the hearing a meeting was held on 11th February and we are confident that common ground will be achieved in readiness for Deadline 4.

15. How would noise levels be monitored along the pipeline during construction, at CoCP Section 7.4 states: the AGIs and at Rose Cottage, near the Barmston Pumping Station and by whom? (8.8, 8.9) "7.4.1 Noise sensitive locations adjacent to the construction site and/or pipeline route will be identified in consultation with the relevant Environmental Health Officer(s) to which the noise thresholds set out in Requirement 15 of the draft DCO (Document 3.1) will apply.

7.4.2 A baseline survey will be undertaken during working hours before construction begins.

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Agenda Item National Grid response

7.4.3 Noise monitoring will be undertaken periodically throughout construction in order to check compliance with the noise thresholds set out in Requirement 15 of the draft DCO (Document 3.1). Should any compliance issues be identified, prompt action will be taken to resolve those issues."

In practice, these surveys will be carried out by the contractor. National Grid will require the contractor to prepare a method statement and the results of noise monitoring will be provided to the National Grid Project Manager/Team who will be responsible for ensuring compliance issues identified are resolved promptly.

16. Would vehicles movements to TCA2 and the Camblesforth Multi-junction site Section 7.2.24 of Document 6.13 discusses the potential effects of vibration. The nearside of the new access cause significant vibration to the properties on Wade House Lane south of the road is approximately 17.5 m east of the five dwellings located to the west of Wade House Lane. The Corus A645? If so, how can this be minimised? What would be the effects of noise from Group document “Piling Vibration and Noise Control” provides, in Figure C2, a graph showing peak particle the construction operations on those properties and how could this be mitigated velocities measured on construction sites, which shows that a heavy lorry travelling on a poor road surface should it be deemed unacceptable? (8.3) gives rise to peak particle velocities of 0.1 mms-1 at a distance of 8 m. Therefore, given that the distance from the nearside access route is more than twice this distance the vibration levels at the nearest noise sensitive receptors are predicted to be approximately 0.03 mms-1. This value is below the 1.0 mm/s level stated in BS 5228-2:2009 (see Table 10 of Document 6.13) where it is likely that vibration in residential environments will result in complaints, but can be tolerated if prior warning and explanation is given to residents. The level of vibration that could cause cosmetic building damage is an order of magnitude higher than for human sensitivity to vibration and is therefore clearly unlikely to occur.

Speed limit along the access road will be restricted to 10 mph as set out in Section 8.3.1 of the CoCP and the temporary access routes will be maintained during the construction period to ensure that any potholes are filled in and uneven surfaces smoothed out to minimise any vibration; this is set out in section 3.2.1 of the CoCP (Document 7.5 Revision B). The CoCP is secured through Requirement 14 of the draft DCO (Document 3.1 Revision B).

As stated in Section 9.2.4 of Document 6.13 the residual significance of effects associated with HGV induced vibration when using the access road is, at worst, minor adverse therefore additional mitigation is not required.

Based on the predicted levels and residual significance it would not be necessary or proportionate to undertake a further assessment or to monitor vibration levels during construction.

17. Under Requirements 24 and 25, what would be the frequency and duration of Requirement 24: Venting for AGI maintenance venting operations at the PIG trap site and the Camblesforth Multi-junction and the noise levels which are predicted? How many NSRs would be affected by the • At Drax PIG Trap and Camblesforth Multi-junction the internal inventory of carbon dioxide may only noise? Where are the nearest points of public access? What are the noise limits be vented twice a year. which are proposed at the NSRs and at the nearest points of public exposure? How will the applicant forewarn NSRs and users of public access points of • Where the duration of a vent does not exceed one hour venting operations and how can such arrangements be secured by the DCO? • between the hours of 07:00 and 19:00 Monday to Friday.

Requirement 25: AGI venting for pipeline inspections

• At Drax PIG Trap and Camblesforth Multi-junction the initial frequency of planned internal

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Agenda Item National Grid response inspections of pipelines using PIGs will be set at once every five years. Again, only the internal inventory of carbon dioxide would be vented.

• Over time the frequency will be adjusted following examination of previous inspection data.

• Venting duration of no more than one hour for each site, which may be repeated on multiple days over a period which does not exceed 14 days at each AGI;

• between the hours of 07:00 and 19:00 Monday to Friday.

The noise levels for both venting for AGI maintenance and AGI venting for pipeline inspections at both Drax PIG Trap and Camblesforth Multi-junction will not exceed a maximum of 70dB LAeq, 1h at the nearest existing noise sensitive receptor;

National Grid has considered the test results from an actual CO2 venting exercise, during which unmitigated noise levels were recorded Based on these results, it can be confirmed that the actual levels of unmitigated noise at properties on Wade House Lane could range between 71 dB and 65dB dependent on where exactly the vent was located between the nearest and furthest point within the security fence. The final vent location would be modelled and set to ensure that the noise limits set by requirements 24 and 25 are comfortably complied with.

Noise limits have been set to minimise the adverse effects of venting noise during the maintenance, therefore the residual effects will be Minor Adverse (not significant) during the short period of venting and no change for the remainder of the time.

We have considered noise bands down to 60dB in order to identify the number of properties that could be affected at each AGI.

AGI Noise Band

Facility 60-65dB 65-70dB 70-75dB 75-80dB 80dB

Barmston PS 5 0 0 0 0

Camblesforth MJ 10 0 5 0 0

Dalton BV 1 1 0 0 0

Drax PIG Trap 1 1 0 0 0

Skerne BV 2 0 0 0 0

Tollingham BV 16 0 0 0 0

The noise levels for both venting for AGI maintenance and AGI venting for pipeline inspections at the NSRs for both Drax PIG Trap and Camblesforth Multi-junction will not exceed a maximum of 70dB LAeq, 1h at the nearest existing noise sensitive receptor;

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Agenda Item National Grid response

We recognise that there is a need for a mechanism for forewarning local residents and landowners. We would welcome an opportunity to submit a written protocol to ensure this happens.

NB, although the above table indicates that there are properties within the 70-75dB range, this is based on the worst case location of the vent, being adjacent to the security fence at the closest point to properties, which gives the 71dB figure identified above. However, as stated above there is some flexibility regarding where the vent will be located (although it must be on the PIG trap) which means the 70dB LAeq can be comfortably complied with.

18. In addition to the Barmston Pumping Station, are there other locations along the Pumping will be required for ground water management at locations along the pipeline where excavations pipeline where, during construction, generators would be working to pump water are required in areas of high water table. Such activities will need to comply with the construction noise or generate electricity? If so, what would be the frequency and duration and thresholds set by Requirement 15. mitigation for any nearby NSRs? (8.5) Some construction activities, such as horizontal directional drilling, microtunnelling, and hydrostatic pressure testing require 24 hour operations during which pumps and generators will be operational.

Crossings with the potential for 24 hr construction works are listed in Table 23 of Document 6.13

The duration of work at these crossings is set out in Sections 7.2.4 and 7.2.5 of Document 6.13 and Table 8 of Document 6.3, but this is considered to be very much a worst case.

Additional mitigation measures are set out in Section 7.3 of the Code of Construction Practice and include:

Static plant (such as pumps, compressors and generators) and equipment liable to create noise and/or vibration whilst in operation will, as far as reasonably practicable, be positioned so as to cause minimum noise disturbance, located away from sensitive receptors.... If necessary, acoustic barriers or enclosures will be provided (A robustly constructed barrier, of dense boarding or close boarded fence type, with a minimum mass per unit surface area of 7 kg/m2, with no gaps, could reduce noise levels by 5 – 10 dB)

On sites where a generator is required for prolonged periods of time, consideration will be given to the use of a silent generator.

Since the ISH, National Grid has written to Selby District Council on this matter as follows:

• As explained in Section 3.3.1 of Chapter 3 of the ES, Onshore Scheme Description (Document 6.3) Temporary Construction Areas are areas where more temporary land is required for construction, beyond just the typical 36 m working width (or 51 m at crossings). This is in areas for example, where pipes need to be ‘strung’ for large non open cut crossings. Table 1 in Document 6.3 explains the need for each of these areas; of these, TCAs 1, 2 and 3 fall within SDCs area.

• Neither TCA 1 nor TCA 2 would require 24 hour operations and they would not be regarded as static construction sites, in the same way as AGIs, but rather as part of the Pipeline

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Agenda Item National Grid response construction. These TCAs were identified to accommodate extra spoil storage to facilitate the non open cut crossings of Main Road and the A645, however these crossings would be undertaken during the daytime and are likely to be completed in a couple of weeks. As the works are of such short duration a level of 65 dB(A) is necessary to ensure work can proceed without the risk of delay.

• TCA3 is to accommodate the non open cut crossings of the River Ouse, which will require 24 hour operations; however it is probable that any equipment that will be operated for 24 hours will be to the north of the River in TCA4. As this TCA is required for 24 hour crossing it is likely to be utilised for a number of months, albeit the 24 hour operations would not be continuous for the whole of this period, it will be possible to extend the 55 dB(A) level limit set for AGIs on a Sunday and Bank Holiday to include TCAs 3 and 4 which will facilitate the crossing of the River Ouse.

19. Are the applicant and local Councils satisfied that the revised BS4142: 2014 Both National Grid and ERYC are aware that BS4142:2014 came into force on the 31.10.14 and supersedes “Methods for rating and assessing industrial and commercial sound” does not BS4142:1997, however National Grid and (as confirmed at the ISH) ERYC are of the opinion that the materially alter any of the assessment methodologies, input/output data or superseded methodology is sufficient for the purposes of the requirement. conclusions of the assessment in relation to operational noise of the Barmston Pumping Station? (8.6)

Traffic, Travel and Transportation

20. In para 6.4.3 of the LIR, ERYC seek amendments to Requirement 18 to ensure In response to paragraph 6.4.3 of the ERYC Local Impact Report we provided our response in Document that the highway is appropriately maintained and that any necessary improvement 11.1 (submitted at Deadline 2) to the proposed requirements that were put forward by East Riding. and repairs are appropriately made. Does the applicant agree with those amendments? If not, should there be provision by other means? National Grid has subsequently had confirmation back from East Riding's Principal Highways Management Officer to say that he confirms that the measures set out in the Code of Construction Practice are acceptable and consequently the additional requirements previously proposed by ERYC are not now necessary and can be superseded by the measures in the Code of Construction Practice.

21. Should the funding of repairs and improvements be included as part of For clarification the questions refers to repairs and improvements. Requirement 18, or is such funding available under alternative legislation? Improvements will relate to the permanent works to the public highway. National Grid are negotiating agreements with the Highways Authorities for works under Articles 11 & 12 of the draft DCO and listed in Schedule 5 Part 2. The agreements provide for a bond.

In relation to temporary works listed in Schedule 5 Part 1 the highways authorities have agreed that the provisions in the CoCP to make good temporary works (as discussed under Item 20) are satisfactory. CoCP Section 1.4 Demobilisation of Construction Site includes: “Survey of highway network condition, assessment and remedial action at National Grid’s cost.” Secured through Requirement 14.

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Agenda Item National Grid response

In relation to street works carried out under Article 10 of the DCO will be covered by the provisions under Section 70 of the New Roads and Street Works Act which requires for reinstatement to be carried out after street works.

Between these measures funding for repairs and improvements is covered.

22. Whether the proposed access arrangements for construction traffic to the It was explained that either routeing construction vehicles along Sand Road of directly onto the construction Barmston Pumping Station are acceptable? spread via the main Bridlington Road was permissible in the DCO.

National Grid’s preference had been to route construction vehicles along the pipeline working spread via a haul road which would minimise traffic using Sands Road which is a local road with access to the village of Fraisthorpe. In addition, it is possible that National Grid could have up to three contractors working in vicinity of the pumping station: those for the construction of the pipeline, those for the construction of the pumping station and those for the construction of the landfall. Allowing vehicles to be routed along the pipeline working spread would enable to three contractors to work in three separately divided and clearly distinguishable CDM zones.

Whilst it is less preferable and potentially more complex from the perspective of the management of construction activities, it is possible that the construction compounds could be orientated to allow vehicles for the construction of the pumping station and the landfall to be routed along Sands Road. Vehicles for the construction of the pipeline would however still need to be routed along the working width to facilitate the construction of the pipeline.

In any case, Requirement 18 of the draft DCO ensures that a traffic management plan must be submitted and approved by the relevant planning authority in consultation with the local highway authority. Any final decision on the routeing of traffic in this area would be subject to the discharge of requirement 18.

Other matters

23. (22 [sic]) The NFU seek confirmation that the terms which would apply under any Response to NFU written representation dated 2nd February 2015 Agri-Environment Schemes or Single Farm Payment Schemes (CoCP 14.2.5) would still occur under the new Basic Payment Scheme which replaces the Single Farm Payment. Please could the applicant comment? (7.5) The National Farmers Union (North-east) (NFU) have requested that National Grid provide further information for consideration in relation to paragraph 14.2.5 of the Code of Construction Practice, and have requested that National Grid provide assurance they will compensate the Grantor or the Occupier (as appropriate) for any loss of payment.

With respect to the first of these requests, National Grid have agreed to amend Paragraph 14.2.5 to read [amended text for all subsequent claim schemes]. National Grid believes that this amendment demonstrates the commitment to the principal of compensating for losses to appropriate and reasonable subsidy payments that landowners and occupiers who may be entitled to claim for as participants in such grant schemes.

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Agenda Item National Grid response

With respect to the second the NFU’s second request, they have specified the following:

“To compensate the Owner or Occupier against any deductions or the Basic Payment Scheme, including Greening, or any Rural Deve omission by the Applicant (or any part duly authorised to act on breach of the Cross Compliance requirements in relation to scheme.

To compensate the Owner or Occupier for any loss of Basic Pa penalties applied to any payment claimed by the Owner under some or part of the Property being rendered ineligible for th the Applicant (or any party duly authorised to act on their behalf) their lopmentonbehalf) the Property carryingRegulation outincluding schemethe Works any and costson arising the borne Property from by anytheincluding Owneraction orto transfer out where possible those Basic Pa the Basic Payment Scheme or any Rural Development Regulation Payment Scheme entitlements to replace that loss of Basic Payment Scheme entitlements in 2015. Should the Owner or Occupier be unable to purchase Basic Payment Scheme entitlements to repl scheme.”

yment Scheme entitlements in 2015 incurred as a consequence of yment Scheme entitlementse Basic Payment by 15 Scheme May 2015 arising and from the theconsequent Works being purchase carried of out Basic by National Grid understands that the new Basic Payment Scheme (BPS) uses entitlements as the mechanism any to enable owner/occupiers to make claims, with land being classed as eligible if in agricultural production. While the initial number of farmer’s entitlements are those existing in October 2013 under the previous scheme, land that ceases to be in agricultural productionace theeither loss, temporarily compensation - mustsuch be as paid would for the occur length under of the construction of the pipeline - or permanently cannot be used (“activated”) to make a claim with the entitlements transferred to the National Reserve. In order to reclaim these lost entitlements, owner/occupiers would have to buy them back from the National Reserve when needed again. As yet there is no certainty as to how the entitlements market will operate during the life of the Basic Payment Scheme.

The loss of active entitlements would mean that owner/occupiers would not be able to make a claim for the BPS subsidy attached to those entitlements; neither would they be able to claim for any subsidy under any other rural development or agri-environment scheme.

National Grid recognises that there is a risk that owner/occupiers will be caused to breach cross-compliance rules (as part of the contract for receiving Basic Payment Scheme or other grant aid payments). However, there is as yet no clarity as to what extent National Grid (as with other developers) should be liable for the compensation: Defra has advised that it may be possible for owner/occupiers to get an exemption from the Rural Payments Agency. National Grid would also like to see a return to the use of force majeure for owner/occupiers to be cleared of any liability for cross-compliance breach as a result of these works.

The NFU would like a commitment from National Grid to compensate for losses to entitlements incurred in 2015. The significance of this year is that it will set the entitlements for the next ten years. National Grid do not intend to take entry for construction in 2015 and so the issue of compensation arising from this particular

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Agenda Item National Grid response year is not relevant.

In summary, therefore, National Grid will retain the commitment to compensate under Paragraph 14.2.5, but believes that precise way in which compensation will be paid cannot be agreed until the uncertainties surrounding the introduction of Basic Payment Scheme have been fully addressed.

24. (23) [sic] In their Local Impact Report, NYCC & Selby DC refer to the value of the The fishponds (CT25) associated with Drax Augustinian Priory are located within the pipeline envelope. medieval fishponds adjacent to the scheduled monument at Drax Priory and seek further archaeological investigation into them. What is the location of the The fishponds appear to have been extensively damaged by ploughing and subsequent infilling and are fishponds in relation to the pipeline? Does the applicant accept that further considered to be of low value. investigation is required and, if so, how should this be achieved? Mitigation measures committed to (Section 8 in 6.10 Archaeology and Cultural Heritage) comprise archaeological evaluation, followed by open area excavation or archaeological watching brief, where the preferred preservation in situ is not possible.

This will result in a residual significance of effect of no more than Minor Adverse which is not considered to be significant in EIA terms.

See Appendix 6.

Minerals

1. Whether any deposit of minerals of local or national importance underlie the Using Figure 3.1 of the Minerals Report (Document 11.2) Mr Barry on behalf of National Grid showed the pipeline route ExA where the pipeline corridor crossed the proposed sand and gravel MSA. He advised that much of the MSA south west of Market Weighton has been recorded as clay in the NG boreholes, and that the sand and gravel in the Gransmoor area was clearly of local significance since it is being worked. He advised that where sand and gravel occurred in the MSA, it was often of variable thickness.

Using Figure 3.2 he showed that the MSA for crushed rock at Market Weighton was too narrow to be worked. Using Figure 3.3 he showed that the MSA for chalk at Bracken quarry was actually outside the pipeline corridor. Using Figure 3.4, he showed that the MSA just touched the “feather edge” of the silica sand MSA at Market Weighton.

Mr Barry advised the ExA that the borehole logs at Stonehills (to the east of Gransmoor) showed significant variations in thickness of sand and gravel and there was evidence of thicknesses of 3m and 8m in boreholes which are quite close together.

Mr Barry advised the ExA that the NG borehole was drilled on land with an elevation of 5m AOD whereas the trial pit excavated by Clifford Watts was 4m deep on land at about 9m AOD so the trial pit was in material which is above the pipeline corridor.

2. Whether any of those minerals would be sterilised by the pipeline and to what Mr Barry advised the ExA that the Gransmoor and Park Farm quarries are clearly associated with a linear

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Agenda Item National Grid response degree? feature shown as alluvium on the geological plans. He advised that in reality this material might not be alluvium. That channel narrows to about 40m wide east to west alongside Barf Hill Wood.

Mr Barry advised that the geological plan and the borehole logs were the only geological evidence available on the pipeline corridor. He explained how he had arrived at his estimate of the tonnage of material that would be in a pillar of support for the pipeline. He explained that he had used the word “material“ deliberately since he did not know how much of it would be sand and gravel.

Mr Barry explained that his volume calculation was based on an assumed depth of 15 metres for material comprising a pillar of support.

Mr Barry suggested that he may be able to identify areas of agreement and disagreement with Mr Ratcliff in discussions outside the hearing.

3. What are the development plan policies for minerals safeguarding? This agenda item was answered by ERYC whose officer summarised the current stage of their strategy document which went in front of an inspector in October 2014 and is expected to be adopted in 2015. They highlighted policy EC6.

ERYC confirmed that the current adopted minerals plan is the Joint Minerals Local Plan 2004 which identifies an area of search at Gransmoor. They then proceeded to summarise the current stage of the joint minerals development plan document for which the preferred approach was consulted in 2010 and a further consultation is anticipated in 2015. They are aiming for adoption in the summer of 2016.

National Grid notes that there was no reference during the ISH to the National Policy Statement and the guidance that it provides in relation to the consideration of potential impacts of energy NSIPs on mineral resources. As National Grid's Minerals Report explains (see section 2) this policy is the principal guide to decision-making for the DCO application and the local plans are not the governing policies. The Minerals Report also explains that (a) the NPS does anticipate that energy NSIPs such as this could have impacts locally which are unavoidable although the application should seek to mitigate the effect of these on mineral reserves, and (b) its policies on minerals safeguarding are not drafted so as to treat impact on minerals reserves as a basis for refusing development consent (see paragraphs 2.1.13 to 2.1.28 of the Minerals Report and paragraph 4.1.2 of NPS EN-1 which states that: "Given the level and urgency of need for infrastructure of the types covered by the energy NPSs set out in Part 3 of this NPS, the IPC should start with a presumption in favour of granting consent to applications for energy NSIPs. That presumption applies unless any more specific and relevant policies set out in the relevant NPS clearly indicate that consent should be refused" (emphasis added). As explained in the Minerals Report, that is not the case with the Minerals policies in the NPS.

4. What alternative deposits of those minerals would be available? The primary response to this was provided by ERYC whose officer indicated that sites are coming forward and the mineral planning authority is confident about meeting its targets. The current sand and gravel land bank in ERYC is estimated at 7.2 years so above the statutory minimum and the local aggregates assessment indicates that the ERYC area is a net exporter of sand and gravel.

In response to unsubstantiated, un-evidenced and largely anecdotal concerns about alternative deposits

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Agenda Item National Grid response raised by Mr Ratcliff on behalf of Watts and the MPA (a trade association), the following points were made by National Grid :-

ERYC (in its role as mineral planning authority, representing the public interest in respect of minerals matters) evidently does not feel there is a shortage of reserves in the region, but merely that there has been a shortage of planning applications in recent years because of the recession. ERYC's view was that it was likely now that a recovery was underway that demand would improve and companies would be prepared to invest money in obtaining new planning consents. The problem appeared to be one therefore of planning applications coming forward rather than a shortage of resources in the region.

Mr Ratcliff touched on the issue of the land bank and the effect of silica sand, but the local aggregates assessment had indicated a land bank figure of 21 years if silica sand resources were included, which was still in excess of 16 years if they were excluded. (See Local Aggregates Assessment for Humber Region 2013, para 3.8).

The availability of marine aggregates must also be considered as these have historically been imported into the port of Hull and provided part of the resource for the region. The Crown Estate, who own all marine dredging material, believe that this has potential to be significantly increased as a source of sand and gravel for the future and marine supplies offer great flexibility in terms of increase in volumes as dredging ships can quickly be diverted to the point of demand.

It should also be noted that insofar as assertions are made as to the adverse socio-economic impacts of alleged mineral sterilisation (either on the economy of the area as a whole, or on the prospects of individual businesses), NPS EN-1 makes plain that "The IPC may conclude that limited weight is to be given to assertions of socio-economic impacts that are not supported by evidence (particularly in view of the need for energy infrastructure set out in this NPS)."

5. Whether the pipeline route would impinge on any areas permitted for mineral Although this Agenda item was not separately addressed, it was nevertheless established in the oral extraction? evidence at the ISH that the pipeline route does not impinge on any areas permitted for mineral extraction.

Instead, after the short adjournment following consideration of Agenda item 4, the discussion focused on the site-specific issues concerning the Watts sand and gravel operation, and its aspirations to obtain planning permission to expand its operations into the area traversed by the pipeline route.

It was established that a planning application had been submitted, but not yet registered as valid, let alone determined, and that the examination had not yet been supplied with plans showing the area covered by the application or the existing planning permission. These are to be agreed and submitted in due course.

It was also agreed that Mr Ratcliff and National Grid would seek to agree common ground as to the amount of material that would be directly sterilised, and the assumptions made as to how much of that is or would be workable sand and gravel, assuming that planning permission was granted in the future.

Alternative route(s)

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Agenda Item National Grid response

In relation to the alternative route(s) advanced by Mr Ratcliff, National Grid made the following points:

These are alternatives which involve going outside the scope of the draft DCO, and outside the scope of what has been assessed in the EIA. They are, therefore, unable to be achieved within the scope of this application, and are thus necessarily alternatives put forward by the minerals trade association to seek to persuading the Secretary of State to refuse to grant development consent for this urgently needed project, which is identified as a priority for the UK.

Any alternative which would require a fresh application, a fresh EIA, different land being acquired, and fresh statutory consultation, would have very substantial timing implications. On the basis of a decision on this application being received at the end of 2015, National Grid would be facing a delay measured in years from the receipt of that decision to being in a position where it might hope to have received a DCO. That is highly material in the context of what is said about alternatives in the NPS.

This project is identified in the NPS as being urgently required, and that even in the context of a document which identifies an urgent need for all energy NSIPs of the type covered by EN-1, paragraph 3.6.5 identifies CCS as a priority for UK energy policy. Its urgency is, of course, linked to the fact that there is a power station whose carbon capture features will be dependent for their efficacy on National Grid's project being delivered.

Paragraph 4.4.1 of the NPS explains that it does not contain any general requirement to consider alternatives or to establish whether the proposed project represents the best option.

Paragraph 4.4.3 goes further and explains that because of the urgency of the need for new energy infrastructure, decision-making should be guided by certain principles when determining the weight to be given to alternatives. These include:

a) The requirement to carry out a consideration of alternatives in a proportionate manner.

b) Whether the alternatives will deliver the same infrastructure capacity in the same timescale.

c) Where an alternative is proposed by a third party after an application has been made, the IPC may place the onus on the person proposing the alternative to provide evidence of its suitability.

There is currently a factual dispute as to whether the specific alternative(s) now being promoted on behalf of Watts and the MPA were proposed before the application was made (as opposed to routing through the existing quarry). National Grid is investigating its own records in this regard, with a view to resolving that dispute. In any event, the point is not likely to be determinative having regard to item b. above, the NPS guidance as a whole, the absence of any objection on behalf of the mineral planning authority (whose role is to protect the public interest so far as minerals are concerned) and the limited weight that can properly attach to any likely local mineral sterilisation in this case when compared to the benefits of allowing this urgently needed energy infrastructure to be delivered expeditiously in the national interest.

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Agenda Item National Grid response

Furthermore, it was made clear by Mr. Ratcliff that:

1. not all land required for the alternative routes suggested was within his client's control; and

2. The alternative routes suggested were incomplete, as they do not seek to show where or how the pipeline would be reconnected to the pipeline route as shown on the application plans.

National Grid will have the opportunity to respond in writing to any further written submissions to be made by on behalf of Mr Ratcliff's clients, which are to be submitted at Deadline 3. National Grid would therefore respond by Deadline 4.

Mining Code

National Grid's response to the submissions made by Mr Ratcliff in respect of the Mining Code are as set out above in the summary of its submissions at the DCO ISH.

6. Whether, if minerals would be sterilized by the project, any prior extraction would National Grid explained that prior extraction is not possible as a matter of principle in this case, because the be possible? additional works that would be involved have not been included in the DCO, and have not been subject to EIA. Nor is it known what (if any) areas of additional land might be required in order to facilitate such works. See National Grid's submissions about alternatives (above) which would also apply to prior extraction.

Furthermore, it is clear that prior extraction would not be an appropriate course of action in this case in any event, because:

1. it would inevitably lead to delay in implementing this urgently needed project; and

2. the likely benefits of prior extraction in this case are limited, both intrinsically because of the relatively small quantities of mineral involved (see the Minerals Report) and by comparison with the benefits of early and certain delivery of the pipeline in the public interest.

In addition to the points noted above, if prior extraction were to be undertaken, the material that was extracted would have to be replaced by an equivalent volume of material to create an embankment on which to lay the pipeline. The embankment would have to be constructed of a material which is capable of being compacted to engineering standards in order to provide adequate stability for the pillar of support. This requirement means that the embankment would have to be constructed of naturally occurring materials – it would not be possible to use inert waste for such a purpose as it is too heterogeneous to be compacted to an acceptable density. The MPA states at paragraph 45 of its written representations that there is no interburden (which is clay or silt) in the two quarry locations, so the quarries are unlikely to be a source of suitable material. It follows that the material for an embankment would have to be sourced from elsewhere, from an excavation referred to as a “borrow pit”. If this was outside the pipeline corridor, it would need planning permission, which introduces uncertainty as to whether planning permission would be granted, and uncertainty as to timing of any grant of planning permission.

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Agenda Item National Grid response

1. The applicant has stated that the small operational wind turbines will be deleted It was confirmed that the wind turbines would be deleted from all relevant parameter plans and the DCO. from the Above Ground Installation (AGIs). As part of the confirmation of this intention, has the applicant also deleted them from all parameter plans and the The revised plans will be submitted at Deadline 4. DCO? (3.2)

2. Is Natural England (NE) satisfied that there would be no cumulative effects In response to WQ 3.4 National Grid provided additional information at Deadline 1. between the proposed scheme and those at the White Rose CCS and the Don Valley Projects? (3.4) In summary, there are no cumulative effects on ecological receptors identified for the White Rose CCS project, or the DVPP project (power station and probable connecting pipeline). As such there is no need for any additional or modified mitigation.

Natural England (NE) confirmed that it was satisfied that there would be no such cumulative impacts.

3. Requirement 14 of the DCO requires that construction works must be carried out It was confirmed on behalf of National Grid that the CoCP Section 10.3.8 has been amended to include in accordance with The Code of Construction Practice (CoCP). Please could the mitigation (including a temporary acoustic barrier at the Pumping Station) and monitoring of barn owl nest applicant confirm that, following the submissions at Deadline 2 the CoCP has boxes. been amended to resolve issues about the mitigation and monitoring of barn owl nesting sites, which may include noise attenuation measures where appropriate. As a secondary approach, installation of barn owl nest boxes at locations to be agreed has also been (3.10; 3/11; 3.19) included in the CoCP. The relevant landowner has agreed to this subject to identifying suitable locations. Please refer to responses to Examining Authority’s First Written Questions Q3.10, Q3.11 and Q3.19.

NE confirmed that it has no outstanding issue with this item.

4. In order to protect habitats within the River Hull Headwaters SSSI which may be The EA, in response to the information provided at deadline 1, have confirmed the following, in their letter to sensitive to dewatering, measures were sought by NE to restrict dewatering at the PINS dated 23 January 2015 River Hull/Driffield Canal crossing when river flows would be low, with the Snakeholm gauging station on West Beck being the appropriate measuring point. “River Hull/Driffield Canal Crossing - National Grid made further submissions about this issue in their At Deadline 1, rather than adding an additional requirement to the DCO, the comments on our Written Representation. These comments propose an amendment to section 10.3.17 of the applicant proposed additions to the CoCP. Are the EA and NE content with the Code of Construction Practice – an amended version incorporating these changes was submitted by National operations proposed for dewatering and whether they would be satisfactorily Grid at Deadline 2. The proposed change is acceptable to us and serves to address our outstanding monitored and controlled? Has a supplementary note been produced by the concerns on this matter.” applicant as intended. (3.13) NE have agreed the wording and this was confirmed in an email from James Walsh, received on 02/02/2015, and again orally at the ISH.

The ExA confirmed that the need for a supplementary note had now been overtaken by events.

5. How would the Barmston pumping station and the Multi-junction be managed to How would the Barmston pumping station and the Multi-junction be managed to ensure that ecological ensure that ecological receptors do not recolonize the areas during pauses in receptors do not recolonize the areas during pauses in construction or after completion? construction or after completion? Could the applicant explain the duration of the CoCP and when it ceases to apply? In other words, when is “construction“ The intention is that if the whole of the pumping station site is not constructed at the same time, the areas complete and when does “operation” take effect? Does this result in an inability to within the footprint of the second phase of construction would be left as hardstanding. These areas would be enforce the CoCP after the period of construction is over? How can the mitigation within the operational area of the site. This should be sufficient to ensure that the area is not colonised by

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Agenda Item National Grid response be managed after construction? (3.16) species or habitats of value.

At the multi junction the Planting Drawing (Document 2.30) includes a commitment (in Note 9) to seeding Area B with a wildflower rich mix. Prior to subsequent phases of development to accommodate new pipeline connections and associated PIG Traps - the areas within the Multi-junction would be surveyed and mitigation measures applied in the same way as areas outside of the AGI.

For example - Grassland within areas to be developed could be subject to a mowing regime prior to construction to dissuade wildlife from using those areas. Areas of shrub planting may need to be removed to accommodate pipeline connections, these would be removed prior to the bird nesting season.

The control measures included in Section 10 of the CoCP would be applied to subsequent phases of development within Area B. (Secured via Requirement 14).

Could the applicant explain the duration of the CoCP and when it ceases to apply?

Following on from discussions at the Issue Specific Hearing on Construction National Grid proposes to undertake a review of the Code of Construction Practice and Requirement 14 to make clear the trigger for its application and within the CoCP make it clear when particular activities are to be carried out.

The CoCP makes provision for some activities that need to be carried out before construction commences; measures that need to be done when the work is being constructed; and some activities that would happen after construction.

Does this result in an inability to enforce the CoCP after the period of construction is over?

The CoCP applies to all construction stages and phases of the DCO development and so will also apply to the construction of subsequent phases of works at Barmston Pumping Station; and at Camblesforth Multi- junction for those works within the AGI (Area B) carried out under this DCO.

How can the mitigation be managed after construction?

Requirement 8 requires that a Scheme of Ecological Mitigation must be submitted, approved and implemented for each stage of the authorised development which includes the AGIs. The management of Area B would therefore fall under the Scheme of Ecological Mitigation prepared for that stage.

The grassland areas within Area B would be managed for the benefit of wildlife until such time as the next pipeline connection. Then surveys and mitigation required under the CoCP would be applied as appropriate.

6. The EA, the Yorkshire Wildlife Trust and Selby and NYCC seek the This item had been addressed at the previous day's ISH. National Grid summarised its approach for the implementation of environmental enhancements which are being proposed. benefit of those Interested Parties present, who each confirmed that they were content with it. Would they be secured by Requirement, legal agreement or a combination of both and are the above interested persons satisfied with the approach taken by the applicant? (3.17)

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Agenda Item National Grid response

7. In their representations to date, NE has stated they do not agree sufficient Further to the submission of additional information, in the form of a Habitats Regulation Assessment Report, information has been provided by the applicant to rule out a likely significant which included a Shadow Appropriate Assessment Report as an appendix, Natural England has confirmed, effect on a number of European sites when considering the project (the onshore on 3rd February 2015, that there is now sufficient information available to confirm that there are no effects on scheme) along with the offshore scheme which is to be consented separately. the integrity of European Sites and to allow the Secretary of State to undertake HRA of the Onshore Scheme Has NE’s view changed as a result of submissions made by the applicant at alone and in combination with the Offshore Scheme. Deadline II (specifically Document 11.3 Offshore Scheme Technical Evidence Report)? Please can NE and the applicant agree where there would be, or would not be, a likely significant effect (LSE) on any European site, and which, if any, qualifying features of the site(s) are disputed between NE and the applicant with reference to this project in combination with other plans or projects? (3.24) If NE cannot agree to no LSE, is there sufficient information to enable the Secretary of State to undertake an appropriate assessment? If further information is required, what would be the applicant’s time frame for providing it? At the hearing, the ExA will seek to consider each European site in turn and confirm agreement/disagreement of no LSE, alone and in-combination. If there is disagreement, the ExA will wish to know which feature is disputed.

8. The applicant has submitted additional data on the effects of the offshore project What the SAAR confirms is that behaviours of guillemots and razorbills, such as preening, bathing and on sea bird activity of species from the SPA and pSPA based on Flamborough displaying, tend to occur in close proximity (1-2km) to colonies. Due to the distance between installation Head. NE has commented that young guillemots and razorbills should be activities (approximately 4km from the nearshore pipeline) the installation of the pipeline will not result in any included in the assessment. Has this been done by the applicant and are there implication on the conservation objectives or an adverse effect on integrity in relation to these behaviours. outstanding issues about the assessment of the effect of the project on the bird Flightless young will be accompanied by adult birds, and will therefore be located in the same areas. population at the SPA and the pSPA? (3.25) NE confirmed that this issue had now been resolved to its satisfaction.

9. Regulation 61 of The Conservation of Species and Habitats Regulations 2010 (as It was confirmed on behalf of National Grid that the Project is not directly connected with or necessary to the amended) (the Habitats Regulations) requires the competent authority to consider management of a European Site. whether the proposed development is directly connected with, or necessary to, the management of the European Sites screened into the HRA (Regulation 61(1)(b)). Consideration is given to this issue in paragraph 1.4.1 of the NSER (Document 5.4). For clarity, can the applicant please confirm whether the proposed development is directly connected with, or necessary to, the management of the European Sites identified?

10. Could NE confirm that permanent noise from the Barmston Pumping Station NE confirmed that permanent noise from the Pumping Station would not have a significant adverse effect on would not have a significant adverse effect on breeding, feeding or foraging birds breeding, feeding or foraging birds from any protected sites or on any other sensitive ecological receptor. from any protected sites or on any other sensitive ecological receptor? (3.27)

1. The general principles applicable to the compulsory acquisition of land and rights over land

1.1 Whether the purposes for which the compulsory acquisition powers are • This issue is addressed in section 7 of the Statement of Reasons (SoR) (Doc. 4.1) (pp. 31-32), and sought comply with s122(2) of the Planning Act 2008? specifically [7.2.1], which refers back to sections 5 and 6.

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• Section 5 [5.0.8] identifies in summary form which part of the development each piece of land to be acquired relates to. This is a summary encapsulation of what can be seen from the Book of Reference (BoR) (Doc. 4.3) and Land Plans (Doc. 2.1), and the Works Plans.

• [5.0.10] provides a similar summary for the temporary possession powers.

• Section 6 identifies the purpose for which the powers are sought in more detail. The Tables describe the particular works applicable to each plot as identified on the Land Plans and BoR [6.0.2].

• Table 1 (permanent acquisition of land)

• [6.1.2] explains which parts of the authorised development give rise to the need for those plots of land.

• [6.1.3] explains why freehold is needed in those instances.

• [6.1.5] explains how the spatial requirements for the operational stage of those parts of the development have dictated the necessary land take.

• The document then considers each of the AGIs in turn:

• Drax PIG Trap [6.1.6]-[6.1.11]

• Multi-Junction [6.1.12]-[6.1.18]

• Block Valves [6.1.19]-[6.1.22]

• Pumping Station [6.1.23]-[6.1.26]

• Table 2 (permanent acquisition of rights in land)

• The Table specifies the rights to be taken by reference to the plots identified in the left hand column.

• Each one of the rights referred to would either form part of the development for which consent is sought, or would constitute some activity which is needed in order to facilitate or is incidental to that development.

• An explanation of the need for these rights is to be found in [6.2.2]-[6.2.8].

• In addition to justifying the Compulsory Acquisition (CA) of land and rights in land, the final part of section 6 justifies the need for temporary possession.

• Thus the SoR and the associated documents show that all of the land to be acquired is required for the development to which the DCO relates, or is required to facilitate or is incidental to that

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Agenda Item National Grid response development.

1.2 The DCLG guidance on associated development and compulsory acquisition Introduction for the application. In addressing item 1.2, it was explained on behalf of National Grid (NG) that all of the development proposed in the DCO was either part of the NSIP (the pipeline) or was Associated Development (AD). All of the development proposed can therefore be relied upon to justify the use of CA powers pursuant to section 122(2)(a).

Thereafter, the Examiner sought a specific response in relation to the proposed Multi-Junction (MJ), and how the CA of the land needed for that particular AGI would sit with the guidance documents. Thus NG's response to agenda items 1.2 and 1.3 were closely linked.

AD Guidance

The DCLG Guidance on AD makes clear that AD can be larger than needed to serve the 'principal development' if it provides capacity likely to be needed for another proposed major infrastructure project [5(iv)].

The example is given of overcapacity in the transmission infrastructure for an offshore windfarm to cater for one or more planned future projects that can make use of the infrastructure.

Applying that guidance, in the East Anglia One examination the Examining Authority (ExA) and Secretary of State (SoS) accepted that additional ducts to accommodate cables for two future NSIPs were AD and CA powers could be used to take the land needed for them. It was accepted that overcapacity in this context need not be confined to a larger cable or more cables than were needed, but could be approached more broadly to include all of those elements of development required to provide capacity.

In this case the MJ has the capacity to accommodate future connections from other emitters. That is because the principal development in this case is a cross-country pipeline whose purpose is not just to serve the initial emitter. As set out in NPS EN-1 (see [3.0.9] and [3.0.10] of the SoR) it is intended and designed to accommodate more than one emitter, and indeed to become the trunkline in a network for transporting carbon dioxide. This is identified in various places in the application documents - see e.g. Need Case (Doc. 7.4):

p. 2, [1.2]

p. 3 [1.9]

p. 25 [8.2.5]

Thus the pipeline itself (as well as the provision of a multi-junction) is on a larger scale and has greater capacity than is required for the single-emitter, as the Government wants and expects.

If the nature and purpose of the principal development (i.e. the NSIP (the pipeline)) is taken into account, it is clear that the multi-junction is not in fact designed to provide more capacity than necessary

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Agenda Item National Grid response to serve that principal development. It is more than is necessary to serve the White Rose emitter, but it is the pipeline and not the White Rose emitter that is the principal development for which development consent is sought in this case.

In any event, even if the White Rose Project was to be treated as the 'principal development' (which it should not be, for the reasons set out above), the AD Guidance would still mean that the provision of additional capacity to serve future emitters would properly be regarded as AD in this case.

The likelihood of future connections in this area is addressed at [3.0.12]-[3.0.16] and [3.0.22]-[3.0.24] of the SoR, and in more detail in the Need Case (Doc. 7.4) (see section 6).

CA Guidance

The SoR has been drafted so as to address the matters identified in the CA Guidance (see e.g. p. 2 [1.1.3]), and thus it should be referred to in order to understand the applicant's case on how that guidance applies to the facts of its application for CA powers.

General [8]-[10]

The proposed CA is for a legitimate purpose, namely to allow the development to which the application for development consent relates to be implemented (see NG's response to agenda item 1.1 above, and sections 5, 6 and 7 of the SoR).

The proposed CA is necessary - NG cannot carry out the works without acquiring the necessary interests in land. It has explored the alternatives to CA and been able to agree terms to acquire many of the necessary interests by agreement, but not all. In any event it requires the certainty provided by the availability of CA powers to implement the project (see section 8 of the SoR).

The proposed CA is proportionate - NG is not seeking to take any greater area of land or interests in land than it can properly justify by reference to the practicalities of implementing the development (see sections 5 and 6 of the SoR). No IP has set out a coherent case to counter NG's evidence in this regard either generally or specifically in relation to any part of the Order Land.

NG has a clear idea of how it will use the land acquired (see what is said under item 1.1 above).

Funding - see the Funding Statement.

Compelling case in the public interest (Multi-Junction)

NG's submissions in respect of the compelling case for the CA powers when considered as a whole is set out by way of a summary of its response to agenda item 1.6 below. So far as the MJ in particular is concerned, its submissions can be summarised as follows:

The public benefits of creating the capacity for future emitters to connect to the pipeline are very clearly spelt out in the application documents (see esp. Need Case (Doc. 7.4), sections 6-8), and reflected in the NPS. They are very substantial, and the Government plainly sees CCS as playing an important role in

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Agenda Item National Grid response addressing climate change.

The additional private loss associated with creating that future capacity is limited. Only a relatively small area of land would be needed, in the context of a large NSIP. The additional private loss associated with the inclusion of Area B is very limited indeed. This is a very small additional area of land for a very substantial public benefit. Any loss associated with the taking of that land would of course be fully compensated.

In any event, the background to this would be a situation in which the SoS had concluded that in this additional development would be likely to occur in the future (see further below).

1.3. The justification for seeking compulsory acquisition powers in respect of • The CA Guidance explains [15] that there is an overlap between the factors the SoS must have additional land required to accommodate the Camblesforth Multi-junction as regard to when considering whether to grant development consent, and the factors that must be opposed to a single emitter project. taken into account when considering whether to authorise any CA of land.

• The underlying rationale for the principal development (the pipeline) includes its future ability to facilitate CCS at other emitters in the region, as made clear in NPS EN-1 (see pp. 31-32 [3.6.5] and pp. 54-55 [4.7.7]). The Government clearly regards this as important, and would look to NG to ensure that its pipeline was capable of serving that purpose.

• If it is accepted by the SoS, applying his guidance on AD, that on the facts of this case the multi- junction is AD, and that development consent should be granted for those works, then he will necessarily have accepted that the following points have been demonstrated:

• there is at least a reasonable prospect that other emitters will wish to connect to the pipeline (concluding otherwise would involve accepting that the policy in the NPS is likely to fail);

• the multi-junction is likely to be required in due course to enable such connections to occur;

• the environmental effects of constructing the multi-junction, having regard to the likely timing of such construction, would be acceptable; and that

• having regard to the NPS, the evidence of need and benefits, and the matters set out above, it is appropriate in the public interest to allow the multi-junction to be built.

• Therefore the issue of whether CA would also be justified would fall to be addressed against that background. In particular:

• If it is in the public interest and in accordance with the NPS for the MJ to be built so as to facilitate and catalyse the growth of CCS in this region, that in itself provides a compelling case for granting such powers of CA as are needed to enable that to happen.

• No IP is suggesting that the land shown for CA in order to provide the MJ is more than is needed for that purpose (see e.g. CA Guidance at [16]).

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• The MJ is an essential and indispensible part of the scheme for which development consent is granted. If it cannot be built the project cannot be implemented. It follows that in weighing the public interest against any private loss, the ExA/SoS need to consider the public benefit in allowing the project as a whole to proceed, and the public disbenefit of preventing it, against a background where the need and the urgency of the need are established both in the NPS and the evidence.

• The MJ is needed in order to make the scheme complete, and for it to function as intended, and as is anticipated in national policy. It is plainly appropriate for the land needed for the facility should be included.

• The additional impact associated with the greater land take would be clearly and comprehensively outweighed in the public interest by the benefits of facilitating future emitters and encouraging confidence in the capacity of the transmission network to accommodate them.

1.4 What consideration has been given to all reasonable alternatives to In response to this agenda item, it was explained on behalf of NG that two matters fell to be addressed. compulsory acquisition? The first is the consideration of alternatives to CA in general, in other words acquisition by agreement. The second is alternatives to the particular land for which CA powers are sought.

So far as the first matter is concerned, it was noted that the CA guidance acknowledges in paragraph 25 that "Whilst, as a general rule, authority to acquire land compulsorily should only be sought as part of an order granting development consent if attempts to acquire by agreement fail, where proposals would entail the compulsory acquisition of many separate plots of land, such as for long linear schemes, it may not always be practicable to acquire by agreement each plot of land. Where this is the case, it is reasonable to include provision authorising compulsory acquisition, covering all the land required at the outset."

Section 8 of the SoR explains NG's approach to acquiring the required land and rights in land by agreement and the position as at the time of submitting that document.

It was explained that NGC had negotiated terms with the National Farmers Union and Country Landowners Association for precedent voluntary agreements including Option agreements and Deeds and to payment terms which would be offered to all affected landowners and occupiers.

Formal offers of terms for voluntary agreements were issued in April 2104 to all affected parties

Negotiations with representatives of East Riding Valuers Association defined an agreed set of heads of terms and documents which their member firms would recommend to landowners as offering better terms than those under a CPO process

Negotiations are now well advanced in all cases save for agreement over compensation and site specific issues. An updated Schedule of Compulsory acquisition Doc 11.5 is submitted and a further updated Schedule will be supplied at Deadline 4.

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So far as the second matter is concerned, NG has prepared and submitted the Proposed Scheme Report (Doc. 7.8), which documents the consideration of alternatives, the route that has been chosen and the alternatives to individual sites for the AGIs.

1.5 How can the Secretary of State be satisfied that the land to be acquired is no Section 6 of the SoR explains why, in relation to each part of the development, the areas that are shown for more than is reasonably necessary for the purposes of the development? acquisition are needed, and it gives reasons for the dimensions in each case. That is to be read alongside the Construction Report (Doc. 7.6), which provides more detail in terms of what will happen at the various stages of the development, and for the various elements of the development.

In response to an invitation to the Examiner to identify any specific questions there may be in relation to specific parts of the scheme and the land required, the Examiner sought further clarification in relation to the Flexible Drainage Areas.

Flexible Drainage Areas

Flexible Drainage Areas shown in the ES (Document 6.3 Figure 3.2) were identified prior to land drainage surveys being carried out to ensure that there was sufficient flexibility within the Order Limits to accommodate land drainage outfalls. These areas have subsequently been reduced following the results of the preliminary land drainage surveys and the preparation of the indicative drainage design (Document 7.7.1).

The Land Plans (Document 2.1) show in hatch “Land subject to temporary possession for drainage works only”.

Where access was not permitted for drainage surveys to be carried out wider areas remain these are located at:

Plot 297, 301, 307, 312, 319 Land Plan Sheet 4 of 25

In other locations wider areas are required to accommodate land drainage outfalls these are at:

Plot 387 and 392 Land Plan Sheet 5 of 25

Plot 658, 661, 671, 674, 678 Land Plan Sheet 10 of 25

Plot 687, 691, 695, 699 Land Plan Sheet 11 of 25

Plot 709 Land Plan Sheet 11 of 25

In the drainage works only areas, only temporary access is required to install land drainage. No permanent rights are required because the land will be handed back to the landowner/ occupier who will maintain the newly installed land drains as part of the overall land drainage system on their land.

The indicative drainage surveys (Documents 7.7.1) submitted with the DCO application will be reviewed in liaison with landowners/occupiers prior to construction and further drainage surveys conducted where required. It is best to agree the final design in association with the landowner if possible since they will have

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Agenda Item National Grid response to maintain the drains once they are installed and sometimes landowner preferences can be taken into account; and to maintain good relations with landowners/ occupiers during the works and into the future.

1.6 Having regard to s122(3) of the Planning Act 2008 is there a compelling case • The compelling case is demonstrated by the combined effect of the various elements that go to in the public interest for the land to be acquired compulsorily? make up the case for CA. See the SoR and the documents it refers to:

• The need for the project, the resulting benefits in the public interest, and the NPS support for it are summarised in the SoR [7.3.1]-[7.3.9] (and see section 3). Further, the Need Case (Doc. 7.4):

• demonstrates that there is a need for the proposed development, that the need is urgent, and that this is reflected in the relevant NPS (EN-1) (sections 1, 4 and 5);

• demonstrates the significant potential to apply CCS across multiple emitters in the region (section 6);

• explains the role of the White Rose CCS project as an anchor scheme, with a number of other follow on loads in preparation (sections 7 and 8); and

• explains the role of the MJ in facilitating and catalysing the growth of CCS in the region.

• NG's consideration of alternatives to compulsion is summarised in SoR [7.4.1]-[7.4.6] (and see also section 8)

• The proposed CA is for a legitimate purpose and is necessary and proportionate (summarised in the SoR [7.5.1]-[7.5.5] and [7.6.1], and see sections 5 and 6)

• Those whose interests are to be interfered with will be properly compensated for any economic loss (see the SoR [7.7.1]).

2. Whether adequate funding is likely to be available?

2.1 The financial status of National Grid Carbon Section 2 of the Funding Statement (doc 4.2) describes that the ultimate parent company of National Grid Carbon is National Grid plc.

The immediate parent company of National Grid Carbon is National Grid Holdings 1 (NGH1).

A table at the end of that section describes the turnover of the respective companies. In the table, the entry at the top of the second column is “National Grid”. This should be read as National Grid Carbon.

A large part of the work undertaken so far has been funded by a grant from the European Union’s Energy Programme Recovery (EEPR) funding programme to the Don Valley CCS project. Included in this work programme are the DCO consenting activities associated with the Yorkshire and Humber CCS cross-country pipeline. Funding of detailed Engineering work and purchase of consumables such as land are outside the scope of the EEPR programme. On completion of the DCO application the EEPR programme will be largely

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Agenda Item National Grid response complete (there remains funding for a consent application to complete a pipeline ink between the Camblesforth Multi-Junction and the Don Valley Power Station and completion of other matters). The EEPR programme is scheduled for completion at the end of 2015.

Paragraph 3.0.1 of the Funding statement confirms that since 2010 National Grid has spent over £70m on developing the infrastructure to transport Carbon Dioxide from the Yorkshire and Humber region and store it safely in the southern North Sea.This has been funded from a mixture of sources. Completion of the programme is expected to cost around £82m Indicating that around £12m is yet to be paid (much has been committed but not invoiced). With respect to the DCO process the total cost is forecast to be £14.5m of which £6m has been invoiced. In summary the maturity of the EEPR programme and the limited amount of outstanding work indicates that there is only a very small risk that the programme will not be funded to completion. The EEPR programme is a mixture of private (National Grid) and public (EEPR) funding. Approximately 25% is funded by National Grid which has required EEPR to provide around £52m as of May 2014 (described in paragraph 3.1.3 of the funding statement).

Front End Engineering Design (FEED) and land purchases will be conducted with the benefit of funding from the DECC Commercialisation Programme. Two important objectives of the FEED project are to evaluate and reduce project risks and provide greater cost certainty to the project. The FEED contract will provide funding for the outstanding National Grid development work, which is due to be completed in late 2015.

2.2 The funding for the White Rose CCS project and the offshore scheme (ie the The application for a DCO for the White Rose CCS Generating Station is proceeding through the origin and destination of the captured carbon). examination process at the moment. In support of that application a Funding Statement has been supplied by CPL (their doc ref 3.3). This provides the best available information on funding for that project, and a copy is attached at Appendix 2.

National Grid is responsible for developing both the transportation and the storage solution for the White Rose scheme as part of the DECC Commercialisation programme. The capital cost of the transportation system and the store is referenced (£750m) in section 6.0.2 of the Funding Statement (Doc 4.2). National Grid is interested in developing partnerships for operating and owning the store. A further description of the funding arrangement is provided at Appendix 10.

3. Whether the purposes of the proposed compulsory acquisition justifies interfering At the CA Hearing, items 3.1 to 3.3 were dealt with together as a whole. The following points were made on with the Human Rights of those with an interest in the land affected? behalf of NG.

• The question of human rights and justification for interference is dealt with in Section 12 of the SoR. On page 40 the relevant Convention rights are identified:

• 12.2.3 identifies Article 6 as being relevant;

• 12.2.4 deals with Article 8; and

• 12.2.5 deals with Article 1 of the First Protocol.

• In each case the SoR explains what these articles comprise.

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• Article 6 is a procedural right; the right to a fair and public hearing by an independent and impartial tribunal.

• Article 8 is the first of the substantive rights, and that is the right of an individual to respect his private and family life, home and correspondence.

• Article 1 of the First Protocol is the right for everyone of the peaceful enjoyment of their possessions.

• In both cases, the substantive rights that are engaged here are qualified rights, i.e. there are certain matters that have to be satisfied before infringement of those rights can be authorised. Effectively, any interference with those interests has to be in accordance with the law; necessary in the public interest; justified; and proportionate.

• NG's submissions at the CA Hearing included an overview of how the compulsory acquisition system deals with human rights. The PA 2008 requires there to be a compelling case in the public interest before any compulsory acquisition is approved. The factors identified above that go to establishing that there is a compelling case in the public interest are also the factors which justify any interference with relevant human rights and ensure that each of the steps that are required to authorise interference with such rights is met.

• The test of 'compelling case in the public interest' effectively mirrors the requirements for justifying interference with those qualified rights in the Human Rights Act. In both cases, it is necessary to demonstrate that the interference is for a legitimate purpose; that it is necessary; and that it is proportionate. And, therefore, if the test in the compulsory acquisition guidance and in the statute are met, the requirements of the Human Rights Act will also be satisfied. There is authority to that effect (Pascoe v the First Secretary of State [2006] EWHC 2356 and it's also available [2007] 1 WLR 885 at 909, provided at Appendix 24). The Pascoe case establishes that the tests that the Government has put in place, both through statute and through guidance, to decide whether compulsory acquisition to be authorised, mirror, as they are intended to, the Human Rights Act provisions that are engaged in compulsory acquisition cases.

• So far as Article 6 is concerned, the SoR explains that the safeguards associated with the Examination process are sufficient to satisfy Article 6, coupled with the fact that insofar as there is any legal issue arising out of the making of the Order, the Act provides for the ability of a person aggrieved to take that dispute to the High Court. Insofar as there is any dispute about compensation, there is the ability to apply to the Upper Tribunal at the Lands Chamber for an independent adjudication on those matters.

• Against that background, looking at the individual agenda items:

• 3.1 - The regard had to those rights is spelt out in Section 12 of the Statement of Reasons. It will be apparent from that that the Applicant has concluded that the compelling case is made out, and that any interference with human rights is justified in those circumstances.

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• 3.2 - The existing uses of the land proposed to be acquired are identified and addressed in some detail in the Environmental Statement and that feeds into the determination of whether there is a compelling case, looking at the need for this development as against the importance of the existing uses. In addition, the Proposed Scheme Report (Document 7.8) identifies the consideration of alternatives along the route, and documents the sensitivity that was shown towards existing uses and how NG has sought to minimise disruption where that was consistent with the scheme.

• 3.3 - The weighing exercise effectively involves a repetition of the submissions made by reference to the existence of a compelling case in the public interest (see above).

3.1 What regard has been had to Article 8 of the European Convention on Human See above. Rights and Article 1 of the First Protocol?

3.2 The degree of importance attributed to the existing uses of the land proposed to See above. be acquired.

3.3 The weighing of any potential infringement of Convention rights against the See above. potential public benefits if the Order is made.

4. The acquisition of statutory undertaker’s land - s127 of the Act. There are two “statutory undertakers” for the purposes of section 127 of the Planning Act 2008, who have made representations and whose interests will be subject to the compulsory acquisition powers: the Environment Agency and Network Rail.

Environment Agency

The EA has made representations on a wide variety of issues, including the proposed compulsory acquisition of its land (the flood banks near the River Ouse). The EA has a wide ranging role in the process for development consent under the Planning Act 2008, and so the representation from the EA in relation its own interests should be separated from its representations in its various statutory capacities on issues such as flooding and ecological effects. The former is relevant to section 127 of the Planning Act 2008.

The EA and National Grid have agreed heads of terms for the grant of an easement, and the matter is in solicitors’ hands.

Network Rail

Negotiations are progressing well, but have not yet concluded. Both parties, as undertakers in relation to linear assets, are well used to these sorts of negotiations, and well used to negotiating opposite one another. Network Rail have confirmed that, in principle, they are willing to treat, subject to terms.

There are a number of other statutory undertakers whose assets are to be crossed by the authorised development, and with whom asset protection arrangements are being negotiated. However, compulsory acquisition powers are not being sought in relation to interests held by those statutory undertakers.

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5. The acquisition of commons, open space etc – s132 of the Act. • NG's case is set out in full in the s. 132 Application, the contents of which were summarised in the submissions made on NG's behalf at the CA Hearing.

The relevant land

There are two areas of land affected: referred to in the application as the Wansford Strip and the Beach Strip.

Wansford Strip

• The land is identified on page 4, section 6 as agricultural land, together with part of the riverbed and the banks of the River Hull with plans and photographs at the back of the application document.

• Evidence that suggests it is likely to be 'open space' as defined is at [6.1.5]

• The works proposed are identified at [6.1.6] and involve installing a section of the cross country pipeline by trenchless methods under the land.

Beach Strip

• The land is identified on page 6, with plans and photographs at the back of the application document.

• Evidence that suggests it is likely to be 'open space' as defined is at [6.1.15]-[6.1.16]

• The works proposed are described at [6.1.17], and involve:

• installing a section of the cross country pipeline by trenchless methods under the land to a tie-in point with the offshore pipeline; and

• a temporary construction compound and working area capable of supporting either tunnelling or horizontal directional drilling.

Application of s.132

On page 6, paragraph 6.1.11 explains that section 132 of the Act relates only to powers of compulsory purchase and not to powers of temporary possession. Where installation is to take place pursuant to temporary possession powers, that does not trigger section 132. The section is triggered by the proposed compulsory acquisition of rights, which are addressed as follows.

• The underground easements:

• do not engage s. 132 because they do not concern the land (i.e. the surface land) that is in fact used as public open space [7.1.1]-[7.1.2]; and

• in any event s. 132(3) is satisfied for the reasons set out in [7.1.3].

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• The above ground access and maintenance easements: s. 132(3) is satisfied as the land will be no less advantageous as a result for the reasons given in [7.1.5].

• The construction easements:

• ss.(4B) is engaged to the extent and for the reasons explained in [7.1.6]-[7.1.8]

• ss.(3) applies to the construction activities and to any marker posts etc. that are installed for the reasons explained at [7.1.9]-[7.1.11].

6. The position in relation to Crown land having regard to the provisions of s135(20 National Grid advise that this matter is also addressed in the response to Question 8 raised in the ISH Draft of the Act. DCO Hearing, but nonetheless report that National Grid is in on-going negotiations with The Crown Estate (TCE) with regards their interests at the River Ouse and the foreshore at Barmston.

With regards to the River Ouse Crossing, we understand from Carter Jonas, agents for TCE, that the HoTs subject to discussion between them and ourselves are waiting to be approved by the Crown Estate.

With regards to the foreshore crossing, draft lease agreements – leases and agreement for a lease – have been circulated between ourselves and the Crown Estate.

The Crown Estate also have an interest at the A1079 which has been subject to a de-trunking order whereby the land is vested back to the East Riding of Yorkshire Council. National Grid understands that as part of that de-trunking order the land interest is transferred; initial discussions with East Riding of Yorkshire Council indicate that final registration needs to be completed but the Council will accelerate the registration process as much as they are able to do so.

National Grid has sought confirmation from TCE that the Estate agree to the inclusion of their land in the draft DCO as subject to acquisition of both temporary and permanent rights under s.135 PA 2008. National Grid sent correspondence to the Crown Estate at the end of January and have asked for an update to this correspondence. On the morning of 5th February National Grid has received correspondence advising that the matter is still under consideration by the Crown Estate’s legal team.

National Grid endeavour to have an agreement in place by the end of the Examination.

7. The relevant draft Development Consent Order provisions. Please refer to the Statement of Reasons (document reference 4.1), and in particular to Sections 5 (“Extent of the Compulsory Purchase Powers and Certain Other Powers Sought”) and 6 (“Purpose for which the Powers are sought”). There are broadly two types of rights: permanent and temporary.

Permanent

There are two types of permanent rights - those for the AGIs (where the freehold is sought) and those for the pipeline (where rights are sought). Sections 6.1 and 6.2 of the Statement of Reasons set out the land to which the provisions as to permanent rights are relevant, in more detail. Paragraph 5.0.9 of the Statement of

The Yorkshire and Humber CCS Cross Country Pipeline 57

Document 12.1 The Yorkshire and Humber (CCS Cross Country Pipeline) DCO Written Summaries of Oral Evidence and Supporting Information Report

Agenda Item National Grid response Reasons identifies that Articles 23-27 inclusive of the draft DCO (document reference 3.1 - Rev C of which is being submitted at Deadline 3) are the relevant provisions as they relate to the compulsory acquisition of permanent land and rights.

Temporary

There are two types of temporary rights - those for general construction activity including drainage works, and those for drainage works only. Section 6.3 of the Statement of Reasons sets out the land to which the provisions as to temporary rights are relevant, in more detail. Paragraphs 5.0.10 and 5.0.11 of the Statement of Reasons identify that Articles 28 and 29 of the draft DCO are the relevant provisions as they relate to the acquisition of temporary land and rights.

Further, paragraph 5.0.12 of the Statement of Reasons identifies a number of other powers, the exercise of which may interfere directly or indirectly with private rights and interests. These are Articles 11-15, 18-20, 26, 37, 40 and 42 of the draft DCO.

8. Any particular issues relating to the compulsory acquisition powers sought in Matters raised by Ms Morley, George F White, on behalf of Messrs Atkinson and Messrs Wright: respect of sites where agreement with those with an interest in the land has not been reached. • Justification for eight year DCO rights. Please refer to Document 10.3 Response 30 Part 8 (page 56) further to the representation submitted by Messrs George F White. In particular, the important points to note are that the onshore scheme must have been constructed to coincide with the construction of the White Rose Power Project, which is projected to have been completed in mid- 2021. Given that the intention would be to construct the authorised development under temporary powers and then execute compulsory acquisition powers retrospectively (in order that this can be done when the precise “as built” location of the pipeline is known), the 8-year period will only allow for a small amount of programme slippage relative to the overall scale of the construction activity.

• Financial resources in place to complete the development. Please refer to agenda item 2 in the Compulsory Acquisition hearing, and National Grid’s submissions in relation to the latest position on funding (document reference 12.1, appendix 10) and the Funding Statement that accompanied the application at submission (document reference 4.2).

• Five year re-valuation. This is a matter of negotiation relating to the terms of settlement between National Grid and Messrs George F White on behalf of their clients. Negotiations between the parties are on-going although the issue of re-valuation has been agreed with the East Riding of Yorkshire Association of Agricultural Valuers of which Ms Morley is a member.

• Length of construction and exposure of working area. Reference should be made to the Code of Construction Practice (Section 3.1) in which National Grid explains the length that main construction works in relation to the pipeline will typically take place within the period April to September (this might be extended if weather conditions allow and works are incomplete). National Grid stresses that construction has to be undertaken in the period April to September to avoid the need to winterise construction activities and prolong works. Land occupied for construction will be delineated and controlled by National Grid to ensure that it is secure and does not conflict with the use of the remainder of the landowner’s land.

The Yorkshire and Humber CCS Cross Country Pipeline 58

Document 12.1 The Yorkshire and Humber (CCS Cross Country Pipeline) DCO Written Summaries of Oral Evidence and Supporting Information Report

Agenda Item National Grid response

• Appointment of an independent land drainage consultant. Reference should be made to the Code of Construction Practice Paragraph 9.3.13 which explains how National Grid will appoint an appropriate drainage consultant to design an appropriate drainage scheme in consultation with the landowner.

• Biosecurity. Reference should be made to paragraph 14.2.5 of the Code of Construction Practice, which confirms that biosecurity arrangements will be discussed with landowners prior to entry.

• Limits of deviation. The purpose of the limits of deviation is to minimise the impacts on the affected land and interests and retain sufficient flexibility to take account micro-routeing issues that may be encountered between the granting of development consent and the commencement of construction activates or indeed during the construction works themselves, these may include for example encountering challenging ground conditions or responding to a reasonable request from the landowner. The approach adopted on this Nationally Significant Infrastructure Project is to use temporary possession powers to acquire access for construction, but then only exercise compulsory acquisition powers of permanent rights once the exact route and location of the pipeline is known, any alternative approach would require more land being compulsory acquired to ensure the effective implementation of the scheme.

• Impact on development. Once constructed, the protection and the safe operation of the pipeline is critical to National Grid’s operations. Whilst National Grid will regularly inspect the route of the pipeline to ensure the easement is clear of any works that may have an adverse effect on its operations. In addition, it will routinely monitor nearby planning applications which could have the potential to adversely effect the asset and will respond to any planning application accordingly. It is essential that it is appropriate to object to a development that is likely to have an adverse effect on the pipeline and the pipeline construction works to ensure that the integrity of the pipeline is maintained. It is in the public interest for National Grid to be able to do so, especially if it is a matter of safety. National Grid will compensate landowners unable to proceed with development as a result of the implementation of the project on submission of a reasonable and substantiated claim.

• Sterilisation of the land. With respect to Ms Morley’s comments on restrictions on wind farm development, this issue is addressed in the above point on Impact on Development.

Matters raised by David Watts and Malcolm Ratcliff;

• Mr Watts suggested that the mineral deposit would be significantly and adversely affected by National Grid proposed route: National Grid has explained that it does not accept these arguments and has set out its reasons at Section 4 of Document 11.2. However where loss is established through land in which W C Watts has any interest then the provisions of compensation code and the mining code in particular would apply as envisaged in the Draft DCO.

• Mr Watts explained that 3 alternative routing options have been put forward by them: National Grid responded to the viability of constructing through made ground at Section 5 of Document 11.2

The Yorkshire and Humber CCS Cross Country Pipeline 59

Document 12.1 The Yorkshire and Humber (CCS Cross Country Pipeline) DCO Written Summaries of Oral Evidence and Supporting Information Report

Agenda Item National Grid response Minerals Report.

• Mr Watts and Mr Ratcliff suggested that routing alternatives had been rejected without discussion or consultation by National Grid: National Grid has undertaken discussions with all affected parties including W C Watts at pre-application stage and during the statutory consultation stage. During those discussions, routeing was discussed in general terms relating to the area of land as relevant to the land owners/occupiers in question, including W C Watts.

• Mr Ratcliff raised the issue of lift and shift including constructing an embankment in which to route the pipeline: This issue was raised at the Mineral Hearing and National Grid has undertaken to consider the Draft DCO provisions and incorporation of the Mining Code with particular reference to timescales for Notices of approach by mineral operators and responses by the scheme developer (Document Reference 12.2). National Grid has already set out its concerns about constructing through made ground in Doc 11.5 at Section 5.

• Mr Meade raised a query regarding planning consent for mineral extraction at the site and the prospect of W C Watts extracting sands and gravels before National Grid build the pipeline: National Grid explained that this possibility was speculative as there was neither DCO consent or consent to extract minerals but National Grid has undertaken to provide a detailed written response to possible scenarios around the timing of consents and working of minerals and pipeline construction ( Appendix 12).

• National Grid remain committed to liaising with W C Watts and to continuing constructive dialogue with them to address their concerns within the scope of the order limits.

• Generally speaking, National Grid’s position as to the minerals issues raised by Mr Ratcliff and Mr Watts are set out in the minerals report (document reference 11.2).

END

The Yorkshire and Humber CCS Cross Country Pipeline 60

Appendix 1 – Schedule 3 Requirements “Commence”

• NFU / NG dialogue following Hearing.

The Yorkshire and Humber CCS Cross Country Pipeline 61

Wade, Tom

From: Pilkington, Nigel B Sent: 10 February 2015 11:00 To: Wells, Liz Subject: FW: CCS DCO Hearing: Commencement definitions

Here you go

Nigel Pilkington BSc (Hons) PGDip CEnv MCIEEM Regional Director, Environment M +44(0)7540970024 [email protected]

Exchange Court 1 Dale Street Liverpool L2 2ET United Kingdom T +44 (0)151 331 8900 F +44 (0)151 331 8999 www.aecom.com

AECOM and URS have joined together as one company. Learn more

From: James Copeland [mailto:[email protected]] Sent: 30 January 2015 14:28 To: Pilkington, Nigel B Cc: Subject: RE: CCS DCO Hearing: Commencement definitions

Dear Nigel, Thank you for this clarification, As we discussed this is a lot clearer and I have no intention to submit any alternative wording.

Kind regards

James

James Copeland Environment & Land Use Adviser

NFU North East 207 Tadcaster Road York YO24 1UD

Tel: 01904 451569

Follow us on Twitter

The voice of British farming – www.nfuonline.com 1

From: Pilkington, Nigel B [mailto:[email protected]] Sent: 30 January 2015 10:20 To: James Copeland Cc: Subject: CCS DCO Hearing: Commencement definitions

Dear James

It was good to meet you at the DCO hearing on Thursday. I thought I would write to confirm what we discussed regarding the ‘Commencement’ types that are now included in the DCO, in the hope we may be able to agree them as ‘common ground’.

On the specific issue of commencement types, the Draft DCO now includes the following in the interpretation section of Schedule 3:

The interpretation section then goes on to define the types of commencement in greater detail as follows:

In relation to the specific issue of Ecology, you will see that no works at all can commence until Requirements 7 (European protected species) and 10 (trees and hedgerows) have been discharged. Requirement 7 requires that further surveys for European protected species are undertaken, the results to be provided to Natural England and a scheme of protection and mitigation submitted to and approved by the local planning authority. In such circumstances there would also clearly be a need to a obtain appropriate licences from Natural England.

Likewise for hedgerows and trees no work at all can take place until details lof al trees and hedgerows to be removed have been submitted to and approved by the relevant planning authority.

2 As discussed we may make a minor change relating to archaeology to ensure no archaeological investigations or removal work can take place until Requirement 12 (which requires there to an agreed written scheme of investigation in place) is discharged.

However other than that minor change, could you confirm that you are content with the commencement definitions as drafted? If not can you suggest any alternative wording?

Best regards

Nigel

Nigel Pilkington BSc (Hons) PGDip CEnv MCIEEM Regional Director, Environment [email protected]

Exchange Court 1 Dale Street Liverpool L2 2ET United Kingdom T +44 (0)151 331 8900 F +44 (0)151 331 8999 www.aecom.com

AECOM and URS have joined together as one company. Learn more

This e-mail and any attachments contain AECOM confidential information that may be proprietary or privileged. If you receive this message in error or are not the intended recipient, you should not retain, distribute, disclose or use any of this information and you should destroy the e-mail and any attachments or copies.

This e‐mail is from the National Farmers' Union ("the NFU") or one of the organisations ("the Organisations") permitted by the NFU to use the NFU network. The information contained in this e‐mail and in any attachments is intended for the named recipient and may be privileged or confidential. If you receive this e‐mail in error please notify the NFU immediately on 024 7685 8500. Do not copy it, distribute it or take any action based on the information contained in it. Delete it immediately from your computer. Neither the NFU nor the sender accepts any liability for any, direct indirect or consequential loss arising from any action taken in reliance on the information contained in this e‐mail and gives no warranty or representation as to its accuracy or reliability. Nor does the NFU accept any liability for viruses which may be transmitted by it. It is your responsibility to scan the e‐mail and its attachments (if any) for viruses. The NFU may monitor and read both incoming and outgoing e‐mail communications to protect its legitimate interests.

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3 Appendix 2 – Submission on timings of relative parts of the project (white rose etc.)

The Yorkshire and Humber CCS Cross Country Pipeline 65

WHITE ROSE CCS TRANSPORTATION AND STORAGE CONSENTING TIMELINE

Major Milestones

During the DCO hearing of 29th January National Grid confirmed that it would provide a summary of the timetable of the various major components that make up the White Rose CCS scheme. The various consenting activities have different timetables depending upon the jurisdiction applicable to each consent. All consents are required to be in place before a Final Investment Decision (FID) can be made. The FID date is scheduled for Q2 2016.

Offshore Pipeline Consent

DECC PWA application submitted 30th June 2015

(PWA = Pipeline Works Authorisation) (Petroleum Act)

DECC PWA Granted 15th December 2015

Storage Consent

(Energy Act / Storage of Carbon Dioxide Regs)

Permit application submitted 5th June 2015

Permit Granted 4th December 2015

White Rose Power Station Consent

DCO application accepted 23rd December 2014

Registration of interested parties closes 12th February 2015

Examination Period Q2 to Q3 2015

Decision Q2 2016

Cross Country Pipeline

Recommendation to S.O.S 19th Aug 2015

Consent Award November 2015

Final Investment Decision Q2 2016 Appendix 3 – Statement on Reinstatement and Compensation

The Yorkshire and Humber CCS Cross Country Pipeline 67

APPENDIX 3 STATEMENT ON REINSTATEMENT AND COMPENSATION

1 Reinstatement – practical steps

National Grid has been asked to provide additional information on how reinstatement of the land following pipeline construction would be monitored and any reported defects rectified.

National Grid does not monitor reinstated land after completion of pipeline works because it is known that, in the event issues occur, they are reported promptly by landowners or occupiers. Landowners and occupiers are on the land significantly more often than National Grid, and are more familiar with their own land, in particular there are key times in the agricultural calendar when they would take access for farming operations and so would be in a first-hand position to observe and report any issues defects.

Defects are reported by landowners and occupiers either directly to National Grid (to, for example, National Grid’s Lands department or pipeline maintenance technicians), or via their land agents, who would in turn report to National Grid. Once reported National Grid will jointly inspect with the landowner or occupier, and where necessary and appropriate a remedial plan is agreed.

In the majority of these types of cases National Grid are able to agree a remedial plan with the landowner or occupier, or agree a suitable compensation package to enable the landowner or occupier to address the defect himself.

In the context of the Onshore Scheme, National Grid will continue to maintain this approach and seek to reach an agreed outcome. However, in the absence of reaching an agreement National Grid would make its own judgement of the appropriate remedial measures. Article 28(4) of the draft DCO requires that National Grid must restore the land to the reasonable satisfaction of the landowners once it has given up possession taken temporarily. Article 28(5) provides the landowner with an entitlement to compensation “for any loss or damage arising from the exercise in relation to the land of the provisions of any power conferred by [Article 28].” 2 Payment of compensation

National Grid will pay an appropriate compensation sum when there is a voluntary land agreement in place. In those circumstances where compulsory acquisition powers have been exercised, the landowner will have the right to claim compensation to the extent any relevant loss can be proven.

The principal difference between the situations where compulsory acquisition powers do and do not need to be exercised is that, where compulsory acquisition powers are exercised, the claim for compensation through the Upper Tribunal (Lands Chamber) would be a one-off award, albeit that the award would take account of ongoing circumstances to the extent the same

can be proven. Where there is a voluntary agreement, there is a broader scope for addressing issues as they arise, and remedying them accordingly.

Voluntary agreements

National Grid’s approach to compensation where there is voluntary agreement is set out in the following documents:

• National Grid Carbon Limited: Agreement to Grant an Easement • National Grid Carbon Limited: Deed of Grant

The Agreement to Grant an Easement states that National Grid will compensate the grantor’s reasonable and appropriate costs for crop losses, timber, death or injury to livestock, sporting rights, surface damage, land management payments (for example, Basic Payment Scheme), remedial works (if agreed that payment will be made in lieu of National Grid arranging for those works), and the reasonable and appropriate costs of the grantor’s professional advisors.

The Deed of Grant states that National Grid will compensate in respect of restrictions on certain development, a general duty to rectify land damage, and incorporation of the mining codes under Part II of Schedules 2&3 of the Mines (Working Facilities and Support) Act 1923 and sections 78 and 85 of the Railway Clauses Consolidation Act 1845. These possible heads of claim are in addition to the easement consideration.

The process for submitting and settling a claim is set out in the Agreement to Grant an Easement. This is states that National Grid will respond to any claim submitted by the grantor within 21 days, detailing whether the claim is accepted or not.

National Grid will consider all submitted claims fairly but must see the evidence to support such claims and will expect that claimants have attempted to mitigate their losses.

With respect to claims submitted in the year of entry for construction, National Grid will pay 75% of the submitted claim up front. The following provisions apply to the remaining balance to be paid – ‘balancing payment’. These provisions therefore also apply to claims submitted in subsequent years.

If the claim is accepted, then National Grid will pay the due compensation within 21 days, or, if appropriate, agree a timescale with the grantor to remedy any land defects.

If the claim is rejected by National Grid, the grantor should then accept or reject National Grid’s counter-proposal within 21 days.

If the counter-proposal is accepted by the grantor, then National Grid will pay the appropriate compensation and/or carry put any necessary reinstatement works.

If the counter proposal is rejected by the grantor, then the claim shall be referred to a jointly agreed independent expert; in the absence if that agreed appointment, the President of the Royal Institution of Chartered Surveyors will appoint.

National Grid will pay interest on the balancing payment from the date of entry until the date the balancing payment is agreed. Interest on subsequent claims is payable from the date received by the grantee until it is agreed.

National Grid may agree a full and final settlement or a deed of variation (to the easement in respect of crop loss claims) with the grantee at any point.

Compulsory acquisition

Where land is taken under compulsion National Grid the Compensation Code will apply.Under the Compensation Code grantors will be able to submit claims for the land or right in land taken, severance and injurious affection, disturbance (crop and other losses due to National Grid’s temporary occupation of the land), and their professional advisors’ fees.

All claims should be substantiated with relevant and appropriate evidence, and should be reasonable. Loss of development can be claimed (again, subject to substantiated evidence), but the nature of the scheme means that it is unlikely that there would be a claim for severance.

National Grid would expect that following compulsory acquisition claimants would submit a claim to include all current and future anticipated losses as one-off capitalised sum in return a full and final settlement would be agreed with National Grid. This should be submitted within six years of the completion of the works in accordance with the Statute of Limitations. However, it is possible that future land damage may be reserved for a later claim.

Claims that cannot be agreed mutually would be referred to the Upper Tribunal (Lands Chamber).

Appendix 4 – Detail from IDB SoCGs (Document Refs .9.10, 9.11 and 9.12) on consents for main river crossings

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APPENDIX 4

CONSTRUCTION ISSUE SPECIFIC HEARING ITEM 8

“Refer ExA in D3 submissions to IDB SoCGs confirming agreement to approach to securing consents for main river crossings.”

Consents for Main Rivers

Main rivers are controlled by the Environment Agency (EA). National Grid will have to obtain consents as required under the Water Resources Act and the Yorkshire Land Drainage Byelaws from the EA for works in on over or under main rivers. The EA has agreed to this approach as stated under “EA Consents” in Table 3 of the Statement of Common Ground between the Environment Agency and National Grid (Document 9.6). Document Document Title Relevant text in Table 3 No. 9.6 Statement of Common “National Grid and the EA agree Ground between the that where applicable National Grid Environment Agency and will apply to the EA for consents / National Grid at Deadline 1 permits required for activities under: - section 109 of the Water Resources Act 1991; - Yorkshire Land Drainage Byelaws 1980; - Environmental Permitting Regulations 2010; - Water Act 2003; and - Greenhouse Gas Emissions Trading Scheme Regulations 2005; separately from the DCO.”

Consents for Other Watercourses

For other watercourses National Grid will have to obtain consents as required under the Land Drainage Act and Land Drainage Byelaws from the relevant IDBs and ERYC (as Lead Local Flood Authority). The Internal Drainage Boards have agreed to this approach as stated under “IDB Consents” in Table 3 of the following Statements of Common Ground:

Document Document Title Relevant text in Table 3 No. 9.10 Statement of Common “National Grid and the IDB agree Ground between Selby Area that for ordinary watercourses IDB and National Grid at within IDB district, National Grid will Deadline 1 apply to the relevant IDB for Land Drainage Consents under section 23 of the Land Drainage Act 1991; separately from the DCO. For watercourses within IDB control National Grid will apply to the IDB for consents required for activities under the Drainage Byelaws created under section 66 of the Land Drainage Act 1991; separately from the DCO.” 9.12 Statement of Common “National Grid and the OHDB agree Ground between Ouse and that for watercourses within IDB Humber Drainage Board and control, National Grid will apply to National Grid at Deadline 1 the relevant IDB for Land Drainage Consents under section 23 of the Land Drainage Act 1991 and for consents required for activities under the Drainage Byelaws created under section 66 of the Land Drainage Act 1991; separately from the DCO.” 9.11 Statement of Common “National Grid and the IDB agree Ground between Beverley that for ordinary watercourses, and North Holderness IDB National Grid will apply to the and National Grid at Deadline relevant IDB for Land Drainage 1 Consents under section 23 of the Land Drainage Act 1991, separately from the DCO. For watercourses within IDB control National Grid will apply for consents required for activities under the Land Drainage Byelaws created under section 66 of the Land Drainage Act 1991, separately from the DCO.”

East Riding of Yorkshire Council as Lead Local Flood Authority for areas that are outside IDB Districts has agreed to this approach as stated under “Drainage (Water Resources and Flood Risk)” in Table 3 of the Statement of Common Ground between East Riding of Yorkshire Council and National Grid (Document 9.2).

Document Document Title Relevant text in Table 3 No. 9.2 Statement of Common “National Grid and ERYC agree that Ground between East Riding for watercourses within ERYC of Yorkshire Council and control, National Grid will apply to National Grid at Deadline 1 ERYC for Land Drainage Consents under section 23 of the Land Drainage Act 1991, separately from the DCO. ERYC do not agree to the removal of the requirement for a consent under section 23 of the Land Drainage Act 1991 as permitted under section 150 of the Planning Act 2008.” “National Grid and ERYC agree that the need to apply for section 23 [and section 66] Land Drainage Consents post-DCO would not be an impediment to the Onshore Scheme. National Grid agree to apply for the necessary consents and ERYC agree that consent will not be unreasonably withheld or delayed.”

The text quoted from the Statements of Common Ground at Deadline 1 remains in the Statements of Common Ground that have been updated at Deadline 3.

Appendix 5 – Compensation – Construction Practice Measures

The Yorkshire and Humber CCS Cross Country Pipeline 75

APPENDIX 5 COMPENSATION – CONSTRUCTION PRACTICE MEASURES

(22 [sic]) The NFU seek confirmation that the terms which would apply under any Agri-Environment Schemes or Single Farm Payment Schemes (CoCP 14.2.5) would still occur under the new Basic Payment Scheme which replaces the Single Farm Payment. Please could the applicant comment? (7.5)

National Grid has agreed to amend Paragraph 14.2.6 to read: “ Discussions will be held with the individual landowners to ensure that disruption to any Agri-environment Schemes, Single Farm Payment or similar agricultural subsidy scheme contracts is minimised. Habitats or features relevant to stewardship payments that are affected by construction works will be reinstated.”

With respect to compensation provisions for interference to agricultural subsidy schemes (as submitted in the NFU’s letter of 2nd February 2015), National Grid will compensate for proven losses as a result of the works, but stress that the claimant has a duty to mitigate. The extract above from the Code of Construction Practice demonstrates that National Grid will enter a dialogue with each landowner to ensure that it minimises any adverse effect on payments that would be due under agricultural subsidy schemes, and this process should assist a landowner in the mitigation of their own loss.

The terms of compensation are not a matter for the examination into the application for development consent, there are on-going discussions with landowner and farmer organisations at a national level concerning the wider operation and effect of the Basic Payment Scheme (which is yet to be fully tested). It is not appropriate for these discussions to be undermined on a project specific basis, nor is it appropriate to create an artificial rule as to an ability to claim compensation through this process.

Appendix 6 – Affected Fishpond

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DRAX ABBEY FISHPOND

National Grid Carbon accepts as a working hypothesis that the former location of the Drax Abbey fishpond is as depicted on the map entitled "Drax Abbey Fishpond" and dated 30th January 2015, as supplied by North Yorkshire County Council (NYCC). The fishpond depicted on that map is centred approximately upon Ordnance Survey National Grid reference 466656 428568. This depicted location is equivalent to that contained in Geographical Information System (GIS) Historic Environment Record data supplied by NYCC to the project at an earlier date. Those GIS data have, inter alia, informed the Archaeology and Cultural Heritage chapter of the Environmental Statement (Document 6.10).

Appendix 7 – Signposting to Borehole Logs 262- 267

The Yorkshire and Humber CCS Cross Country Pipeline 80

SIGNPOSTING TO BOREHOLE LOGS 262A- 267A

At the Issue Specific Hearing on Minerals, Mr Radcliff advised that Borehole logs 262A to 267A were not appended to the Minerals Report (Document Reference 11.2).

National Grid advised that these were not appended to Document 11.2 as they were not material to the document.

These Borehole Logs were provided to the ExA as part of the original DCO submission documents and can be found at the following locations:

Borehole Log Submission Document Reference 262A Document 6.7.2 Pages 263 - 269 263A Document 6.7.2 Pages 270 - 276 264A Borehole never been drilled - No Log 265A Document 6.7.2 Pages 277 - 284 266A Borehole never been drilled - No Log 267A Document 6.7.2 Pages 285 - 290

Appendix 8 – Relevant Extracts from the Aggregates Assessment [Chapter 3 – Assessment of Supply and Demand]

The Yorkshire and Humber CCS Cross Country Pipeline 82

12 HUMBER AREA LOCAL AGGREGATE ASSESSMENT

3. ASSESSMENT OF SUPPLY AND DEMAND

3.1 In planning ahead for future aggregates provision, it is essential that there is a good understanding of existing levels of supply and demand. This section of the document will provide an overview of existing aggregate sales, extraction operations and reserves alongside details of existing apportionments. The information is based on the annual survey of mineral operators, planning applications and RAWP reports as well as national guidelines.

Sand & Gravel 3.2 Sales of sand and gravel in the Humber area for the ten year period between 2002 and 2011 are shown in Table 1. Total sales for 2011 are currently an approximate figure based on actual sales data retrieved from Aggregate Monitoring Survey (AMS) returns.

Table 1: Sand & Gravel Sales in the Humber area 2002 to 2011 (million tonnes) 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 Av 0.8 1.0 1.1 1.1 1.2 1.3 1.0 0.9 0.6 0.9 0.99 Source: Yorkshire & Humber Region Aggregates Working Party - Annual Reports (2002 To 2009) and Annual Aggregate Monitoring Survey, 2010 & 2011

3.3 Sand and gravel sales have been broadly consistent over the last ten years, averaging just below 1 million tonnes per annum. Production peaked at 1.3 million tonnes in 2007. Since this point sales have decreased. Figure 5 provides a comparison of the Humber area’s sales figures over the period 2002 to 2011 against the area’s former apportionment during this period. It is clear that sales have consistently exceeded the annual apportionment identified for the area. However, it has dropped below this level for 2010, which is a reflection of the prevailing economic circumstances but has since picked up again. The sand and gravel apportionment as set out in the former Yorkshire & Humber Plan (May 2008) was 0.78 million tonnes per annum.

Figure 5: Comparison of Sand & Gravel Sales in the Humber Area 2002 to 2011 and Annual Apportionment

1.4

1.2

1

0.8

0.6

Sales (Million Tonnes) 0.4

0.2

0 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

Sand & Gravel Sales (2002 to 2011) Apportionment (2001 to 2016)

Source: Yorkshire & Humber Region Aggregates Working Party - Annual Reports (2002 To 2009) and Annual Aggregate Monitoring Survey, 2010 & 2011

3.4 A total of 1.2 million tonnes of sand and gravel were sold from quarries in the Humber area in 2011. This included silica sand. However, silica sand sales have not been included include in the overall sales as it is classed as an industrial mineral. This is despite some of it being used for aggregate purposes. Excluding that overall sales for 2011 were 0.9 million tonnes. The level of sand and gravel extracted in North

NOVEMBER 2013

HUMBER AREA LOCAL AGGREGATE ASSESSMENT 13

Lincolnshire was around 0.1 million tonnes. This sand was used for concreting and in industry. In the East Riding, around 0.8 million tonnes of sand and gravel was extracted in 2011, most of which was used for aggregate purposes. Information on the precise end uses is not available.

3.5 For the record of the silica sand extracted, 0.2 million tonnes was used for non-aggregate uses, particularly within industrial processes. The remaining 0.1 million tonnes was used for aggregate purposes including building stone, sand for concreting and constructional fill.

Current Supply

3.6 In 2012, the Humber area had eleven active operations producing sand and gravel. These are shown in both the table and the map below.

Table 2: Permitted Sand & Gravel Extraction Sites in the Humber Area Quarry Operator Status Turtle Hill Clifford Watts Active

Brandesburton Sandsfield Gravel Active

North Cave Humberside Aggregates Active

Park Farm, Burton Agnes Clifford Watts Active Garton Quarry, Driffield Clifford Watts Active

Little Catwick Yarrows Aggregates Active Cove Farm, Haxey Sibelco UK (silica sand/sand) Active Kettleby Parks Breedon Aggregates Active Messingham Sibelco UK (silica sand) Active Eastfield Farm, Winteringham A & F Dowson (silica sand and gravel) Active South Farm, Manton A & M Borrill (silica sand) Inactive

Figure 6: Permitted/Operational Sand and Gravel Sites in the Humber Area

Landbanks 3.7 Government policy set out in the National Planning Policy Framework requires landbanks to be maintained for all aggregate minerals, with the recommended landbank period for sand and gravel

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14 HUMBER AREA LOCAL AGGREGATE ASSESSMENT

required to be at least 7 years. Landbanks are stock of reserves with planning permission. The estimated permitted reserves of sand and gravel (including silica sand reserves) in the Humber area as of 31st December 2011, amount to around 21 million tonnes. This figure is based on reserve information retrieved from the 2011 Aggregate Minerals Survey returns.

3.8 Under the NPPF, silica sand is considered to be an industrial mineral and subject to the provision of its own 10 year landbanks. Although silica sand sales have been included in the overall sales data for 2011, it has been agreed not to include silica sand reserves within the overall sand and gravel landbank for the Humber area. If these reserves are removed from the land bank, it drops to 16.5 million tonnes, the majority of which are found in the East Riding area. However this is sufficient to provide a 16 year landbank which is more than double the requirement for a 7 year landbank.

Table 3: Landbanks for Sand & Gravel in the Humber Area (2011) 2011 aggregate sales (Mt) 0.9* Reserves as at 31.12.2011 (Mt) 16.5 Average annual sales 2002 – 2011 (Mt) 0.99 Former apportionment (Mt) (RSS) 0.78 Landbank based on former RSS apportionment (years) 21.2 Landbank based on 10 year average sales (years) 16.7 *excludes silica sand sales

Sand and Gravel Consumption 3.9 The most recent information regarding sand and gravel consumption in the Humber area is set out the 2009 Aggregate Minerals Survey, published by the British Geological Survey and the Department for Communities & Local Government. The survey showed that the Humber area consumed 743,000 tonnes of sand and gravel (549,000 tonnes of land-won sand and gravel, 194,000 tonnes of marine dredged sand and gravel).

Sand and Gravel Imports and Exports 3.10 The 2009 Aggregate Minerals Survey (AMS) undertaken by the Department for Communities & Local Government (DCLG) and the British Geological Survey (BGS) included information and analysis of the movements (imports and exports) of aggregates for each Mineral Planning Authority in England and Wales. It showed that movements of sand and gravel into and out of the Humber area are not self- balancing (Table 4). The area is a net exporter of sand and gravel overall, exporting around twice as much sand and gravel than is imported.

3.11 In 2009, the Humber area produced 764,000 tonnes of sand and gravel (including marine dredged). 35% (264,000 tonnes) was sold within the area, whilst 52% (401,000 tonnes) was exported other parts of the Yorkshire and Humber region. The remaining 13% (99,000 tonnes) was exported to unknown destinations. This is a change from the 2005 Aggregate Minerals Survey which showed that 44% of sand and gravel (477,000 tonnes) was sold within the Humber area, whilst 50% (538,000 tonnes) was exported to other parts of Yorkshire & Humber and 6% (69,000 tonnes) exported elsewhere in the country. The 2009 AMS also showed that the Humber area imported 287,000 tonnes of sand and gravel. However, the origins of which were not made clear. Again, this was a major change from the 2005 AMS, which showed that the Humber area imported 908,000 tonnes of sand and gravel.

3.12 The 2011 annual survey showed that some of the sand extracted in North Lincolnshire was used within the area, whilst there were some exports to the North West of England and the East Midlands (outside Lincolnshire and Nottinghamshire). For the East Riding, some was used in the Humber area, with exports to other areas of the Yorkshire and Humber region as well as Scotland and Tyne and Wear.

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Table 4: Humber Sand & Gravel Imports and Exports 2005 & 2009 Import amount Export amount Region Origin Balance (tonnes) (tonnes) (tonnes)

2005 2009 2005 2009 2005 2009

Yorkshire & Humber Area 0 0 538,000 401,000 -538,000 -401,000 Humber

Elsewhere Humber Area 0 0 69,000 99,000 -69,000 -99,000

Humber Unknown 908,000 287,000 0 0 +907,000 +287,000

Total 908,000 287,000 607,000 500,000 +300,000, -213,000 Source: Collation of the Results of the 2005 & 2009 Aggregate Minerals Surveys for England and Wales (DCLG, BGS & Welsh Assembly Government, May 2011). Note: In balance column, a “-“ prefix indicates a net export, and a “+” prefix indicates a net import

Crushed Rock

Sales 3.13 Total sales of crushed rock for the ten year period between 2002 and 2011 are shown in Table 5. These figures are based on survey returns. It should be noted that there was a change after 2003 in the way that annual crushed rock sales were measured. Since 2004, around 2 million tonnes of sales of industrial, non-aggregate minerals extracted from five sites across the East Riding and North Lincolnshire have been excluded.

Table 5: Crushed Rock Sales in the Humber area 2002 to 2011 (million tonnes) 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 Average 3.1* 2.4* 0.3 0.4 0.3 0.3 0.2 0.1 0.2 0.3 0.76 * Sales figures for crushed rock in 2002 and 2003 are a combined figure for East Riding and North Lincolnshire (2002 – East Riding: 0.5mt; North Lincs: 2.6mt; 2003 – East Riding: 0.5mt; North Lincs: 1.9mt)

3.14 These sales figure show that production has averaged 0.76 million tonnes of crushed rock per year over the 10 year period from 2002 to 2012. Since 2004, sales have been fairly consistent, with minor variations. This pattern mirrors that of the whole Yorkshire and Humber region, where production between 2004 and 2008 averaged around 12 million tonnes per year. Regionally, sales in 2009 fell significantly to only 7.7mt. The fall was most evident in North Yorkshire and South Yorkshire. This slump in sales does not appear to have affected the Humber area to the same extent.

3.15 Figure 7 provides a comparison of the Humber area’s total crushed rock sales over the period 2002 to 2011 against its apportionment during this period. The current crushed rock apportionment was 0.49 million tonnes per annum. During the early part of the ten year period, sales were significantly in excess of the apportionment. However, since 2004 sales have been consistently been below it. This has been due to the circumstances outlined in paragraph 3.13 (above).

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Figure 7: Comparison of Crushed Rock Sales in the Humber area 2002 to 2011 and Annual Apportionment

3.5

3

2.5

2

1.5 Sales (Million Tonnes) 1

0.5

0 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

Crushed Rock Sales (2002 to 2011) Apportionment (2001 to 2016)

Source: Yorkshire & Humber Region Aggregates Working Party - Annual Reports (2002 To 2009) and Annual Aggregate Monitoring Survey, 2010 & 2011

3.16 Around 2.1 million tonnes of crushed rock was sold from sites within North Lincolnshire in 2011, the majority of which was chalk. Just over 2 million tonnes was used for non-aggregate uses, particularly within industrial processes. This has been discounted from the sales figures. The remaining 0.1 million tonnes was used for aggregate purposes including roadstone and screened/graded aggregates. In East Riding, around 0.2 million tonnes of chalk was extracted in 2011. The majority, 0.15 million tonnes was used for aggregate purposes with 0.05 million tonnes being used for non-aggregate purposes.

3.17 It should be noted that the figures do not include any aggregate sold from a ‘windfall’ site – i.e. where the removal of aggregates was necessary to permit other development. In 2012 a significant amount of chalk is known to have been produced in this way in the Humber region which was not included in the Aggregate Minerals Survey and may have artificially increased supply.

Current supply 3.18 In the Humber area there are currently ten crushed rock sites with planning permission. The details of these are presented in Table 6. Figure 8 shows the location of these sites within the area.

Table 6: Permitted Crushed Rock Quarries in the Humber Area Quarry Operator Aggregate Status

Greenwick Fenstone Chalk Active Partridge Hall Creaser Robinson Chalk Active Riplingham Stoneledge Chalk Active Swinescaife Clifford Watts Chalk Active Melton Omya Chalk Active Lund Minelco Chalk Active South Ferriby Cemex Chalk Active Melton Ross Singleton Birch Chalk Active Slate House Farm Welton Aggregates Limestone Active Kirton Lindsey Welton Aggregates Limestone Active

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HUMBER AREA LOCAL AGGREGATE ASSESSMENT 17

Figure 8: Permitted Crushed Rock Extraction Sites in the Humber Area

Landbanks 3.19 As described in paragraph 3.8, Government policy set out in the National Planning Policy Framework requires landbanks to be maintained for all aggregate minerals, with the recommended landbank period for crushed rock required to be at least 10 years. Estimated crushed rock reserves in the Humber area as of 31st December 2011 are 61 million tonnes. This figure is based on reserve information retrieved from the 2011 Aggregate Minerals Survey returns. This includes substantial reserves located adjacent to major industrial operations. As such these reserves are not genuinely part of the overall supply. This would reduce the landbank to below the 10 year requirement.

Table 7: Landbanks for Crushed Rock in the Humber Area 2011 2011 aggregate sales (Mt) 0.3 Reserves as at 31/12/2011 (Mt) 7.18

Average annual sales 2002 – 2011 (Mt) 0.76 Former RSS apportionment (Mt) 0.49 Landbank based on former RSS apportionment (years) 14.7 Landbank based on 10 year average sales (years) 9.4

3.19 However there are currently two planning applications for chalk quarries in the planning system in the Humber region which, if approved, would represent another 0.47mt of reserves so despite a landbank shortfall, the situation may be different in the next LAA, depending on outcome of the planning applications, therefore no drastic action is proposed in the short term. Also the landbank based on ten year average sales is artificially high as it included the non aggregate industrial use crushed rock which is no longer included in the data.

Consumption 3.20 Details regarding the consumption of crushed rock in the Humber area were set out in 2009 Aggregate Minerals Survey. It shows that 789,000 tonnes of crushed rock was consumed in the area. This is almost 100,000 tonnes more than total production and imports.

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Imports and Exports 3.21 The 2009 Aggregate Minerals Survey showed that movements of crushed rock in and out of the Humber area are not self-balancing (Table 8). The Humber area is a net importer of crushed rock overall, importing 592,000 tonnes. This was the same in 2005, when the area imported 594,000 tonnes. In relation to exports, none were shown to have taken place in 2009, with all the crushed rock extracted in the Humber area being utilised within it. However, the 2011 annual survey showed that crushed rock was being exported from extraction sites in North Lincolnshire to neighbouring areas including North East Lincolnshire, Lincolnshire, Nottinghamshire and South Yorkshire. Information about tonnages was not available. Similarly for East Riding of Yorkshire, the 2011 annual survey showed chalk being exported to other parts of the Yorkshire and Humber region as well as the East of England and Tyne and Wear.

3.22 The 2005 Aggregate Minerals Survey, however, showed that 32% (106,000 tonnes) of the crushed rock extracted in the East Riding was exported to other parts of the Yorkshire and Humber region. None was exported from North Lincolnshire.

Table 8: Humber Area Crushed Rock Imports and Exports 2009 Import amount Export amount Balance Region Origin (tonnes) (tonnes) (tonnes)

Humber Unknown 592,000 0 +592,000 Total 592,000 0 +592,000 Source: Collation of the Results of the 2009 Aggregate Minerals Survey for England and Wales (DCLG, BGS & Welsh Assembly Government, May 2011). Note: In balance column, a “-“ prefix indicates a net export, and a “+” prefix indicates a net import

Secondary and Recycled Aggregates 3.23 Secondary and recycled aggregates are becoming an increasingly important part of the nation’s aggregates supply. Recycled aggregates including concrete, stone and brick, are sourced from reprocessed materials that have previously been used in construction, demolition and excavation (CD&E) work. Other recycled aggregates can arise from asphalt planings from resurfaced roads or railway track ballast. After processing they have been mainly used as fill in the construction industry. Secondary aggregates are usually by-products of other industrial processes that have not been used in construction. They include both natural and manufactured materials such as china clay, slate, flue ash and slag. In general the level of supply for secondary or recycled aggregates is dependent on the process or material of which they are a by-product.

3.24 In the Humber area there are a number of sites with planning permission for the recycling of inert construction, demolition & excavation waste to produce secondary aggregates. North Lincolnshire has 8 sites with planning permission for recycling/reclamation of inert waste, whilst East Riding has 9, Kingston upon Hull 3, and North East Lincolnshire 2.

3.25 The data available on secondary and recycled aggregate is variable and not considered completely reliable, particularly at the sub-regional level. The most recent national studies on secondary and recycled aggregates were undertaken in 2005 and published in 2007. These studies were entitled “Survey of Arisings and Use of Alternatives to Primary Aggregates in England, 2005; Construction, Demolition and Excavation Waste” and “Survey of Arisings and Use of Alternatives to Primary Aggregates in England, 2005; Other Materials”.

3.26 The first of these studies estimated that East Riding, North Lincolnshire and North East Lincolnshire produced over 1.7 million tonnes of construction, demolition and excavation waste. It was estimated that 774,327 tonnes of recycled graded and ungraded aggregate was produced in the area. This represented around 45% of all construction, demolition and excavation waste arisings.

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Table 9: Sub-Regional Estimates of CDEW Recycled by Crushers and/or Screens, Used/Disposed of at Landfills, and Spread on Paragraph 9a(1) And 19a(2) Registered Exempt Sites In 2005 (Tonnes)

East Riding, North Lincolnshire & North East Lincolnshire Adjusted estimate of population of recycling crushers 18 Estimated production of recycled graded aggregate 407,072 (tonnes) Estimated production of recycled ungraded aggregate 367,255 (tonnes) Estimated production of recycled soil (excl topsoil) 71,243 (tonnes) Estimated tonnage of unprocessed CDEW entering licensed landfills, and its use/fate Engineering Capping Waste Total Clean hard C&D Waste 18,379 3 15,171 33,552 Contaminated hard C&D waste 180 0 1,681 1,861 Clean excavation waste 60,416 132,083 360,410 552,908 Contaminated excavation 1,915 0 24,950 26,864 waste Clean “mixed” CDEW 8,143 400 87,315 95,858 Contaminated “mixed” CDEW 29 0 10,031 10,060 Other 7,302 278 28,863 36,443 Total 96,363 132,763 528,420 757,547 Estimated weight of waste materials (mainly excavation waste) used on 151,618 Paragraph 9A(1) and 19A(2) registered exempt sites (tonnes) Total estimated arisings of CDEW in 2005 (tonnes) 1,735,735 Source: Survey of Arisings and Use of Alternatives to Primary Aggregates in England, 2005; Construction, Demolition and Excavation Waste (DCLG, 2007)

3.27 North East Lincolnshire Council has surveyed their operators and identified that 69,150 tonnes of secondary and recycled aggregates was produced in their area during 2012. Overall production has increased since 2009, where production levels were 48,000 tonnes. There was slight reduction in production during 2010 to 45,000 tonnes, however this increased again in 2011 to 53,500 tonnes.

3.28 The second study set out the amount of secondary or recycled aggregates generated from various industrial processes. In Yorkshire and Humber, the following tonnages were produced. It is likely that this will continue to increase, especially given the sustainability of recycled aggregates and the rising cost of landfill. It is intended that more data on this will be included in the next Local Aggregates Assessment.

Table 10: Arisings and Use Of Alternatives To Primary Aggregates In 2005 (million tonnes) Aggregate Potentially Total Arisings Other Use Use Available Pulverised Fuel Ash (pfa) 1.68 0.29 0.61 0.77 Furnace Bottom Ash (fba) 0.33 0.29 0.00 0.00 Blast Furnace Slag (Iron) 1.00 0.25 0.75 0.00 Basic Oxygen Furnace Slag 0.25 0.13 0.00 0.12 (Steel) Electric Arc Furnace Slag (Steel) 0.22 0.22 0.00 0.00 Colliery Spoil 1.97 0.41 0.00 1.56

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Source: Survey of Arisings and Use of Alternatives to Primary Aggregates in England, 2005; Other Materials (DCLG, 2007)

3.29 Of particular interest to North Lincolnshire is the blast furnace slag and basic oxygen furnace slag which are by-products of the iron and steel industries. The 2005 survey highlighted that Scunthorpe was the sole source of both of these by-products, producing 1 million tonnes and 0.25 million tonnes of each respectively. It should be noted that only part of the total arising was used for aggregate purposes.

Marine Aggregates 3.30 Marine aggregates, in the form of sand and gravel are dredged in a number of places around the UK coastline including off the Humber Estuary, and the north eastern and eastern coasts of England. The resources located off the Humber Estuary are thought to be extensive. Crown Estate information produced in May 2012 shows that there are 10 licensed dredging areas in the North Sea off the Humber, with applications pending for a further 10. The sand and gravel resources found in this area range from fine sands to coarse gravels.

3.31 Around 5 million tonnes per year can be extracted under existing licenses. However, it is estimated that only 76% of this overall tonnage has been extracted, which means that there is potential to extract a further 2.1 million tonnes per year.

3.32 The sand and gravel extracted from the seabed can be used for construction, reclamation fill or beach nourishment projects. In the construction industry its use can range from concrete making to road sub- base and fill, whilst for reclamation fill sediment is used to infill areas in ports and harbours. It can also be used to reclaim land from the sea before engineering works take place. For beach nourishment sediment is placed on beaches for coastal protection or amenity and economic enhancement

3.33 Nationally, around 10.9 million tonnes of marine dredged primary aggregates were landed at English ports and wharves. Of the aggregates dredged off the Humber, 65% is delivered to mainland Europe, with 24% being delivered to ports/wharves in the Humber area and the rest being delivered to the Thames Estuary, East Coast and eastern English Channel. At present they are landed on the Humber, Tees and Tyne Estuaries.

3.34 Between 2003 and 2008 between 0.2 and 0.3 million tonnes per annum were landed to supply the Humber area and the wider region beyond. In 2009, this dropped to 0.1 million tonnes4. The national guidelines for aggregate provision in the Yorkshire and Humber region for the period 2005 to 2020 assume that 5 million tonnes of the total aggregate supply will come from Marine Aggregates. The former regional apportionment did not provide a figure for predicted landings on a mineral planning authority specific basis.

3.35 The Crown Estates noted that a total of 108,927 tonnes of marine dredged primary aggregates were landed at the River Humber wharves5. The great majority of landings are at the purpose-built wharves located in Hull Docks. Humber Sand and Gravel is landed at Alexandra Dock and Stema Shipping brings imports of crushed rock aggregates from their coastal quarries in Norway, and sand from Denmark to Queen Elizabeth Dock. It is proposed to move sand and gravel landing to King George Dock (which can also take bigger vessels) and is large enough to land 2 million tonnes, so that Siemens can take over the use of Alexandra Dock. Processed aggregate can be loaded onto a barge or train for onward transportation.

3.36 There are other opportunities for landing marine dredged aggregates within the Humber area. ABP also owns the port of Goole, plus there are wharves on the River Trent near Scunthorpe which can be accessed by similar sized vessels to Goole. The River Trent wharves and New Holland Pier are equipped to handle mineral imports. However, it is not possible to ascertain the amount of minerals landed at these locations. It is likely that they only handle these minerals on an “as and when” basis. Anecdotal evidence suggests that no landings of marine dredged sand and gravel have taken place in North Lincolnshire.

4 Yorkshire & Humber Region Aggregates Working Party, Annual Report 2009 & Aggregates Monitoring 2009

5 Marine Aggregates – Summary of Statistics 2011, The Crown Estates NOVEMBER 2013

HUMBER AREA LOCAL AGGREGATE ASSESSMENT 21

3.37 The ports of Grimsby and Immingham currently do not handle marine dredged aggregates on a regular basis, other than project related short term campaigns, however the capacity is available should there be a future requirement.

3.38 Existing planning policy in the Humber area broadly supports the envisaged increase in marine won aggregates, however it does not identify or safeguard present or future sites for the handling of marine aggregate. Safeguarding of the capacity for handling imported and marine aggregates at existing wharves is part of government policy in the NPPF. This will need to be given due consideration as part of emerging planning policy in the Humber area.

3.39 The use of marine dredged aggregates as an alternative to primary land-won aggregates has been given prominence in recent times. With this in mind, the Aggregates Working Party have commissioned a study into the potential deliverability of a substantially greater supply of marine dredged aggregate into the Yorkshire and Humber region, in substitution for an element of supply currently provided by land- won resources. This need arises as a result of the increasing potential for shortfalls in availability of indigenous concreting sand and gravel in the Region in the medium/longer term and the need for more evidence on the scope of any potential for increased supply of marine aggregate, as a possible alternative source of supply, to help inform statutory planning processes, safeguard wharves and investment in infrastructure. The study will report in late 2013.

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Appendix 9 – Flexible Drainage Areas (FDAs)

A) Access to land for Surveys B) Function of FDAs and Possession of Land

The Yorkshire and Humber CCS Cross Country Pipeline 93

APPENDIX 9 FLEXIBLE DRAINAGE AREAS (FDAS)

A) ACCESS TO LAND FOR SURVEYS

B) FUNCTION OF FDAS AND POSSESSION OF LAND

This note responds to the Examining Authority’s request to National Grid to clarify what attempts were made to gain access to land to survey for drainage, those land parcels where National Grid was unable to obtain access, and the extent to which it was successful and therefore able to reduce the Order Limits. This note also seeks to explain the function of the Flexible Drainage Areas (FDAs) and under what circumstances that land is to be possessed. This note should be read together with the Drainage Strategy (document reference 7.7 and 7.7.2 (the latter submitted in December 2014 at Deadline 1)).

Background as to approach to drainage

National Grid has included in its application for development consent measures to install post-construction drainage to allow the order land to be in no worse condition than as prior to the implementation of the project. The Drainage Report (Document 7.7) includes details on this issue and explains how National Grid will undertake remedial drainage and what has been done at this stage of the application to initiate effective remedial drainage measures.

The draft Development Consent Order (DCO) sets out those necessary rights sought by National Grid to carry out drainage works within the order limits. The description of the authorised development in Schedule 1 of the DCO, at paragraph (m) of the “Further Associated Development”, is the “installation of drainage, drainage attenuation and land drainage including outfalls…”.

In addition, at paragraph 9 (page 4) of the “Introduction” to the Book of Reference (Document 4.3), there is a classification of temporary rights solely for the drainage works, labelled “Temporary – drainage”. This classification of right is sought in every plot along the pipeline route, including the AGIs (see the fourth column in Part 1 of the Schedule to the Book of Reference). There are areas where only temporary drainage rights are sought (see for example Plot 7 on Sheet 1 of the Land Plans).

In Summer/Autumn 2013 National Grid conducted consultation pursuant to section 42 of the Planning Act 2008. At the time National Grid did not have detailed information on agricultural land drainage, therefore the proposed order limits were set at field boundaries sufficiently wide to ensure the location of suitable outfalls for any new drainage installed as part of the authorised development. These wider areas have been referred to as ‘Flexible Drainage Areas ‘ (FDAs).

Drainage Surveys

In response to feedback generated by consultation and discussions with land owners, National Grid commissioned a drainage survey to identify more accurately the location of necessary drainage outfall with a view to ‘bringing in’ the proposed order limits accordingly. The purpose of this drainage survey was to develop an indicative and preliminary post-construction remedial drainage scheme that was sufficiently detailed to enable order limits to be brought in whilst still delivering appropriate remedial drainage.

Notification of the need to undertake the survey was made by letter by National Grid For those land parcels where surveys were undertaken, National Grid has been able to bring in the order limits for that land. So while National Grid has been able to reduce the order limits for the vast majority of the pipeline, National Grid has retained the wider limits (“Flexible Drainage Areas”) to ensure that the necessary drainage scheme can be implemented.

Further to those plots referenced above, there remain the following land plots that are included in the Flexible Drainage Areas, even though surveys were undertaken, which in most cases relates to the fact that land drainage works over a more extensive area cannot be precluded: • Plot 658, 661, 671, 674, 678 Land Plan Sheet 10 – order limits wide to allow access to nearest drainage outfall; these fields are noted for their long thin linear shapes • Plot 687, 691, 695, 699 Land Plan Sheet 11 – order limits wide to allow access to nearest drainage outfall; these fields are noted for their long thin linear shapes • Plot 709 Land Plan Sheet 11 – order limits wide due to localised complexity of the existing drainage apparatus which might require more extensive works • Plot 941 Land Plan sheet 17 – order limits wide due to local topographic complexities (due to a valley feature) • Plots 1014, 1019 and 1023 Land Plan Sheet 19 – order limits wide to allow access to drainage outfalls north and south of the railway crossing • Plot 1169 Land Plan Sheet 22 – order limits wide to allow remedial drainage to minimise impact on severed drains in an intensively drained area of the River Hull headwaters • Plots 1171 and 1178 Land Plan Sheet 22 – order limits wide to allow access to nearest drainage outfall • Plots 1207 and 1215 Land Plan Sheet 23 – order limits wide to allow access to nearest outfall • Plot 1232 Land Plan Sheet 23 - order limits wide to allow access to nearest outfall • Plots 1239 and 1249 Land Plan Sheet 23 - order limits wide to allow access to nearest outfall

Where the DCO limits have been drawn more widely because of the absence of detailed survey information, the approach to determining the appropriate drainage solution is no different to those areas where the order limits have been able to be reduced. By reference to paragraph 5.3, it can be noted that National Grid will only occupy those areas of land needed for construction and drainage (that is, fenced off from the surrounding land), that no extra land would be taken, and that these works will be discussed with the landowner/occupier prior to implementation. No permanent rights are required because the land will be handed back to the landowner/ occupier who will maintain the newly installed land drains as part of the overall land drainage system on their land.

By reference to the Drainage Design Sheets Document 7.7.1, it will be noted that the drainage plans are not intended to form part of the drainage strategy, being for information and illustrative purposes only. The actual drainage work that would be undertaken would need to be determined once detailed design has been completed and would be informed by conditions on the ground at the time of implementation. The indicative drainage surveys will be reviewed in liaison with landowners/occupiers prior to construction and further drainage surveys conducted where required. This approach has been adopted because it is preferable to agree the final design in association with the landowner since they will have to maintain the drains once they are installed, as well as enabling landowner preferences to be taken into account.

Liaison Officer, the survey then comprised a site visit to assess the existing drainage characteristics of the land parcels affected by the proposals, as well as a review of any existing drainage plans for existing field drainage systems currently in the possession of that the owners or occupiers. Following the site visits indicative and preliminary drainage schemes were developed for the affected land parcels (see Document 7.7.1 Drainage Design Sheets). Licences for access were agreed and surveys were completed at all but a few land parcels along the pipeline route. Surveys were not undertaken on a small number of parcels either because access was not required, or because access was not granted. These Land Plan plots are: • Plot numbers 307, 312, 319 (Land Plan Sheet 4 ) – the order limits with this owner have been agreed to remain at the field boundaries in order to adopt a precautionary approach and ensure that sufficient land is available to carry out the works to land drainage that will be required. • Plot numbers 383 and 387 (Land Plan Sheet 5) - the only Plots along the pipeline route where it has not been possible for National Grid to agree access arrangements to complete detailed site drainage surveys. This is despite lengthy discussions with the landowner concerned and their agent.

to all relevant landowners and occupiers on 9 September 2013. Following contact by National Grid’s Agricultural Liaison Officer, the survey then comprised a site visit to assess the existing drainage characteristics of the land parcels affected by the proposals, as well as a review of any existing drainage plans for existing field drainage systems currently in the possession of that the owners or occupiers. Following the site visits indicative and preliminary drainage schemes were developed for the affected land parcels (see Document 7.7.1 Drainage Design Sheets). Licences for access were agreed and surveys were completed at all but a few land parcels along the pipeline route. Surveys were not undertaken on a small number of parcels either because access was not required, or because access was not granted. These Land Plan plots are: • Plot numbers 307, 312, 319 (Land Plan Sheet 4 ) – the order limits with this owner have been agreed to remain at the field boundaries in order to adopt a precautionary approach and ensure that sufficient land is available to carry out the works to land drainage that will be required. • Plot numbers 383 and 387 (Land Plan Sheet 5) - the only Plots along the pipeline route where it has not been possible for National Grid to agree access arrangements to complete detailed site drainage surveys. This is despite lengthy discussions with the landowner concerned and their agent.

Changes to the Order Limits

For those land parcels where surveys were undertaken, National Grid has been able to bring in the order limits for that land. So while National Grid has been able to reduce the order limits for the vast majority of the pipeline, National Grid has retained the wider limits (“Flexible Drainage Areas”) to ensure that the necessary drainage scheme can be implemented.

Further to those plots referenced above, there remain the following land plots that are included in the Flexible Drainage Areas, even though surveys were undertaken, which in most cases relates to the fact that land drainage works over a more extensive area cannot be precluded: • Plot 658, 661, 671, 674, 678 Land Plan Sheet 10 – order limits wide to allow access to nearest drainage outfall; these fields are noted for their long thin linear shapes • Plot 687, 691, 695, 699 Land Plan Sheet 11 – order limits wide to allow access to nearest drainage outfall; these fields are noted for their long thin linear shapes • Plot 709 Land Plan Sheet 11 – order limits wide due to localised complexity of the existing drainage apparatus which might require more extensive works • Plot 941 Land Plan sheet 17 – order limits wide due to local topographic complexities (due to a valley feature) • Plots 1014, 1019 and 1023 Land Plan Sheet 19 – order limits wide to allow access to drainage outfalls north and south of the railway crossing • Plot 1169 Land Plan Sheet 22 – order limits wide to allow remedial drainage to minimise impact on severed drains in an intensively drained area of the River Hull headwaters • Plots 1171 and 1178 Land Plan Sheet 22 – order limits wide to allow access to nearest drainage outfall • Plots 1207 and 1215 Land Plan Sheet 23 – order limits wide to allow access to nearest outfall • Plot 1232 Land Plan Sheet 23 - order limits wide to allow access to nearest outfall • Plots 1239 and 1249 Land Plan Sheet 23 - order limits wide to allow access to nearest outfall

Where the DCO limits have been drawn more widely because of the absence of detailed survey information, the approach to determining the appropriate drainage solution is no different to those areas where the order limits have been able to be reduced. By reference to paragraph 5.3, it can be noted that National Grid will only occupy those areas of land needed for construction and drainage (that is, fenced off from the surrounding land), that no extra land would be taken, and that these works will be discussed with the landowner/occupier prior to implementation. No permanent rights are required because the land will be handed back to the landowner/ occupier who will maintain the newly installed land drains as part of the overall land drainage system on their land.

By reference to the Drainage Design Sheets Document 7.7.1, it will be noted that the drainage plans are not intended to form part of the drainage strategy, being for information and illustrative purposes only. The actual drainage work that would be undertaken would need to be determined once detailed design has been completed and would be informed by conditions on the ground at the time of implementation. The indicative drainage surveys will be reviewed in liaison with landowners/occupiers prior to construction and further drainage surveys conducted where required. This approach has been adopted because it is preferable to agree the final design in association with the landowner since they will have to maintain the drains once they are installed, as well as enabling landowner preferences to be taken into account. Appendix 10 – Funding

A) Statement from DECC B) White Rose Funding Statement C) Position in respect of Offshore Scheme/Storage

The Yorkshire and Humber CCS Cross Country Pipeline 99

NATIONAL GRID’S ROLE AS DEVELOPER OF CARBON DIOXIDE STORAGE

National Grid has entered into an agreement with DECC, through the Commercialisation Programme and with Capture Power Limited (CPL) for whom it acts as a key sub-contractor, to provide both the transportation and the storage solution for the White Rose scheme. Both agreements, the contract with DECC and the contract between CPL and National Grid are the subject of confidentiality clauses that prevent release of all or part of the agreements.

However, National Grid’s participation in the Commercialisation competition along with its partner CPL, and its role in developing the transportation and storage solution can be evidenced through public statements from DECC, the Crown Estate and National Grid.

DECC Statement

The award of Front End Engineering Design (FEED) contracts as a result of the CCS Commercialisation competition was confirmed in December 2013 by DECC in its public statementi.

“CCS Commercialisation competition

The UK Carbon Capture and Storage (CCS) Commercialisation competition makes available £1 billion capital funding, together with additional operational funding through the UK Electricity Market Reforms, to support the design, construction and operation of the UK’s first commercial-scale CCS projects. This will:

• generate learning that will help to drive down the costs of CCS • test and build familiarity with the CCS specific regulatory framework • encourage industry to develop suitable CCS business models • contribute to the development of early infrastructure for carbon dioxide transport and storage

The current competition opened in April 2012, and closed to bids in July 2012. Four full chain (capture, transport and storage) projects were shortlisted in October 2012. On 14 January 2013, all the shortlisted bids submitted revised proposals. On 20 March 2013 the government announced two preferred bidders, the White Rose Project and the Peterhead Project, who in December 2013 and February 2014 respectively were awarded multi-million pound contracts to undertake Front End Engineering and Design (FEED) studies. FEED is a programme of detailed engineering, planning and financial work to finalise and de-risk aspects of the proposal ahead of taking final investment decisions, and proceeding to construction. White Rose

The White Rose CCS Project is in Yorkshire, England. This project involves capturing around 90% of the carbon dioxide from a new super-efficient coal-fired power station at the Drax site in North Yorkshire, before transporting offshore and storing it in a saline rock formation beneath the North Sea. The project developers are Capture Power Ltd. (a consortium of Alstom, Drax Power and BOC) and National Grid.

If built, the planned c.£2 billion state-of-the-art coal power plant with full CCS could provide clean electricity to more than 630,000 homes, capturing approximately 2 million tonnes of carbon dioxide per year. The proposal also includes the development of a large capacity pipeline - the Yorkshire Humber CCS Trunkline - which will have capacity for additional carbon capture projects in the area.”

Crown Estate Statement

In developing the storage site it is necessary for National Grid to agree a lease for the relevant acreage of the sea bed under which the store will be created. An agreement for lease (AFL) between National Grid and the Crown Estate was announced in February 2013 and is summarised as follows by the Crown Estateii.

“Agreement for Lease for an offshore CO2 storage site signed with National Grid

We can today announce the signing of an Agreement for Lease for the permanent geological storage of carbon dioxide.

This agreement is with National Grid for an offshore saline aquifer which predominantly underlays in petroleum licence blocks 42/25 and 43/21 approximately 70 miles from the east Yorkshire coast. The wider Agreement for Lease area overlaps parts of petroleum licence blocks 42/19, 42/20, 42/24, 42/25, 42/29, 42/30, 43/16, 43/21, 43/22, 43/26 and 43/27.

The National Grid storage project is linked to their development of transportation and storage infrastructure serving emitters in the Humber region and is co-funded by the European Energy Programme for Recovery Package (EEPR) award.”

National Grid Statement

Following the announcement by DECC that National Grid and CPL could proceed with the White Rose CCS project as part of the Commercialisation competition National Grid announced, in July 2014, that it would proceed with FEED studies for both the transportation and storage systemsiii.

“National Grid Carbon awards development contract for its CCS project

National Grid Carbon Limited (NGC) has awarded the multi-million pound Front End Engineering and Design contract for its carbon capture and storage pipeline to oil and gas engineering specialists Genesis.

National Grid Carbon Limited (NGC) has awarded the multi-million pound Front End Engineering and Design contract for its carbon capture and storage pipeline to oil and gas engineering specialists Genesis.

Genesis Oil and Gas Consultants will carry out the risk evaluation and cost estimates as well as the engineering and design work associated with the transportation and storage system. This will run from Drax power station in Humberside to the storage site in the North Sea

This follows the Government’s announcement last December that the White Rose project could begin its FEED study as part of its CCS commercialisation programme. National Grid Carbon is providing the transportation and storage elements for the CCS project.

National Grid Carbon is working with Capture Power Limited, a consortium of Alstom, Drax and BOC on the White Rose project to capture carbon dioxide emissions and store them permanently in the North Sea.”

i https://www.gov.uk/uk-carbon-capture-and-storage-government-funding-and-support

ii http://www.thecrownestate.co.uk/news-and-media/news/2013/afl-for-offshore-co2-storage-with- national-grid/

iii http://www2.nationalgrid.com/Mediacentral/UK-Press-releases/2014/National-Grid-Carbon-awards- development-contract-for-its-CCS-project/

White Rose Carbon Capture and Storage (CCS) Project Document Ref: 3.3 PINS Ref: EN10048

The White Rose CCS (Generating Station) Order

Land within and adjacent to the Drax Power Station, Drax, near Selby, North Yorkshire

Funding Statement

The Planning Act 2008

The Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 - Regulation – 5(2)(h)

Applicant: Capture Power Limited Date: November 2014

Document History

Document Number 3.3

Revision 1 – Submission version

Author Capture Power Limited (CPL)

Signed Robert Rattee (RR) Date 14.11.14

Approved By RR

Signed RR Date 14.11.14

Document Owner CPL

Revision History

Revision No. Date Reason for Revision Authorised By 1 14.11.14 Submission version RR

Funding Statement Document Ref. 3.3 Page i

Glossary of Abbreviations and Definitions

DCO Development Consent Order Applicant Capture Power Limited. Application The Application for a Development Consent Order made to the Secretary of State under Section 37 of the Planning Act 2008 in respect of the Project, required pursuant to Section 31 of The Planning Act 2008 because the Project is a Nationally Significant Infrastructure Project under Section 14(1)(a) and Section 15 of the Planning Act 2008 by virtue of being an onshore generating station in England or Wales of 50 Megawatts electrical capacity of more. Capture The Applicant. A joint venture comprised of Drax Power Limited, ALSTOM UK Holdings Power Limited and The BOC Group Limited. Limited CfD Contract for Difference. The mechanism that the Government is using to support investment in low-carbon electricity generation. CCS Carbon Capture and Storage.

CO 2 Carbon Dioxide. CPL Capture Power Limited. DCLG Department for Communities and Local Government. DCO Development Consent Order. DECC Department for Energy and Climate Change. FEED Front End Engineering and Design. MWe Megawatts electrical. A measurement of power. NER300 New Entrant Reserve 300. A European Union funding programme for CCS and renewable projects. NGCL National Grid Carbon Limited. NGET National Grid Electricity Transmission plc. the The shareholders of Capture Power Limited. Sponsors

Funding Statement Document Ref. 3.3 Page ii

CONTENTS

1.0 INTRODUCTION ...... 1 2.0 PROJECT AND CPL BACKGROUND...... 2 3.0 LAND ACQUISITION ...... 3 4.0 ESTIMATED PROJECT COSTS...... 4 5.0 SOURCE OF FUNDING ...... 5

Funding Statement Document Ref. 3.3 Page iii

1.0 INTRODUCTION

1.1 This Funding Statement relates to the application (the “Application”) by Capture Power Ltd (“CPL”) for a Development Consent Order (“DCO”) for the construction, operation and maintenance of a new up to 448 MWe gross ultra-supercritical coal-fired power plant, with an option for biomass co-firing, that will be fitted with CCS technology and associated development (the “Project”). The Project will include a connection to the National Grid Carbon Limited (“NGCL”) CO 2 pipeline for the onward transport of CO 2 for permanent storage beneath the North Sea. That pipeline and the storage of the CO 2 are not part of the Project, and are being separately promoted by NGCL. The Project together with the CO 2 pipeline and storage project that is promoted by NGCL are referred to as the “Full Chain White Rose CCS Project”. 1.2 This Funding Statement has been prepared further to the requirements of Regulation 5(2)(h) of The Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 and in accordance with the Department for Communities and Local Government (“DCLG”) guidance, “Planning Act 2008: nationally significant infrastructure projects – Application Form Guidance” and “Planning Act 2008: guidance related to procedures for the compulsory acquisition of land.” This Funding Statement accompanies the Application. 1.3 This Funding Statement has been submitted as powers of compulsory acquisition of land or interests in land have been sought in the DCO, and Regulation 5(2)(h) requires that any application for a consent order authorising compulsory acquisition must be accompanied by a statement explaining how such an order is proposed to be funded. The DCLG guidance on compulsory purchase explains that this statement should provide as much information as possible about the resource implications of both acquiring the land and implementing the project for which the land is required. This Funding Statement therefore explains how CPL proposes to fund the implementation of the Project, including the acquisition of rights and interests in land. It should be read alongside the Statement of Reasons (Document Ref. 3.2) that justifies the powers of compulsory acquisition that are sought in the draft DCO (Document Ref. 2.1). 1.4 The Application includes all the works to export electricity from the Project, so that consent for these will be in place. The electricity cable and works up to the extended busbars (in the sub-station) will be delivered and funded by CPL, whilst the provision of a connection bay and extension of the busbars will be delivered and funded by National Grid Electricity Transmission plc (“NGET”). References to the funding of the Project in the remainder of this Funding Statement therefore exclude the aforementioned transmission works which are to be separately funded by NGET pursuant to a grid connection agreement that is expected to be in place by the time when the DCO is issued (CPL and NGET are currently discussing the terms of the offer to be made in support of the Project’s connection to the NGET infrastructure).

Funding Statement Document Ref. 3.3 Page 1

2.0 PROJECT AND CPL BACKGROUND

2.1 Since inception, in 2010, the Project has been promoted by a consortium comprising Drax and Alstom, with BOC joining in 2011. 2.2 CPL is an English private company limited by shares and was incorporated on 16 December 2011 as a fully owned subsidiary of Drax CCS Ltd (a company fully owned by Drax Group plc). On 6 December 2013 ALSTOM UK Holdings Ltd (an Alstom group company) and The BOC Group Ltd (a Linde group company) each acquired a one-third stake in CPL. CPL is now therefore a joint venture company equally owned by Drax CCS Ltd, ALSTOM UK Holdings Ltd and The BOC Group Ltd (the “Sponsors”). 2.3 The latest audited accounts for each of the Sponsors' parent companies show: • Drax Group plc stated total net assets of £1.4 billion (accounts for financial year ending 31 December 2013); • ALSTOM stated total net assets of €30.4 billion (accounts for financial year ending 31 March 2014); and • Linde AG stated total net assets of €20.2 billion (accounts for financial year ending 31 December 2013). 2.4 Together the Sponsors have already spent in excess of £10 million in the promotion of the Project. 2.5 On 20 December 2013 CPL entered into a FEED Contract with the Secretary of State for Energy and Climate Change, for the undertaking of certain front-end engineering and design, knowledge transfer and other services related to the development of the Full Chain White Rose CCS Project (the “FEED Contract”). The FEED Contract was awarded to CPL by the Department of Energy and Climate Change (“DECC”) as part of its Carbon Capture and Storage Commercialisation Programme (the “CCS Commercialisation Programme”). Beyond technical deliverables, the FEED Contract includes deliverables relating to the permitting and commercial aspects of the Full Chain White Rose CCS Project and the project financing in respect of the Project.

Funding Statement Document Ref. 3.3 Page 2

3.0 LAND ACQUISITION

3.1 The development of the Project requires the acquisition of interests in land, rights under and over land, and the temporary use of land, as further described in the Statement of Reasons (Document Ref. 3.2). 3.2 The majority of the land required for the implementation of the Project is owned freehold by Drax Power Ltd, a company within CPL’s Sponsors group. Other interests in the Project site are set out in the Book of Reference (Document Ref. 3.1) and considered in the Statement of Reasons (Document Ref. 3.2). 3.3 CPL is currently in discussions with Drax Power Ltd with the intention of securing the necessary rights and interests in the land required for the life of the Project. The land agreements with Drax Power Ltd are part of a suite of agreements to be agreed with Drax Power Ltd and other Drax Group companies as well as with other Sponsors group companies and NGCL, for the implementation of the Project. 3.4 Notwithstanding CPL’s intention to acquire interests and rights in land by voluntary agreement, as set out in the Draft DCO (Document 2.1), CPL is requesting powers to compulsorily acquire land, interests and rights. This is to provide assurance to CPL that the necessary interests and rights in land can be secured without unnecessary delay.

Funding Statement Document Ref. 3.3 Page 3

4.0 ESTIMATED PROJECT COSTS

4.1 The current capital cost estimate for the Project is £1.2 billion. This cost estimate includes consenting, construction and land acquisition costs.

Funding Statement Document Ref. 3.3 Page 4

5.0 SOURCE OF FUNDING FEED WORK 5.1 Since January 2014, CPL has funded its operations and the further promotion of the Project through the following sources: a) CPL’s shareholders provide funding to CPL, in equal shares, as follows: − quarterly capital loans; and − bridging loans; and b) quarterly payments by DECC under the FEED Contract. IMPLEMENTATION OF THE PROJECT 5.2 CPL will apply in due time (currently expected to be in the course of 2015) under the CCS Commercialisation Programme for: a) a capital grant for construction funding under a Project Contract to be entered into with the Secretary of State for Energy and Climate Change (the “Project Contract”). Such capital funding is expected to amount to £450 million; and b) a Contract for Difference for the Project (“CfD”, the mechanism that the Government is using to support investment in low-carbon electricity generation as part of the programme for reforming the electricity market) that is intended to be a vehicle for funding operating period costs and (potentially) further contributions towards capital costs. The CfD is intended to be agreed at the same time that the Project Contract is executed. 5.3 The award by DECC in respect of the above is currently expected to be around the end of 2015. 5.4 On 8 July 2014, the European Commission announced a funding award decision for the Full Chain White Rose CCS Project of up to €300 million under the European NER300 programme. The award represents a significant milestone in the promotion of the Project and an important potential source of funding for the Project. 5.5 CPL intends to raise a sufficient amount of project debt financing and equity capital in addition to the above-mentioned funding to construct the Project and to pay for other ancillary costs. Accordingly, the following funding would be made available to fund the Project costs: a) equity (or equity type funding) to be provided by the CPL Sponsors (in proportion to their shareholding). Such equity will be provided by the CPL Sponsors, if a Project Contract is awarded to CPL by DECC as described in paragraph 5.2 above; and b) debt and financial guarantees: capital formation for the Project will comprise medium to long term, limited recourse debt sourced from commercial funding sources such as project finance banks, export credit agencies and multi-lateral and bi-lateral agencies (such as the European Investment Bank) together with funding from institutional investors to the extent financial guarantees are made available from other non-Sponsor sources. CPL is currently in discussion with commercial banks, bi- and multi-lateral finance institutions and export credit agencies in relation to the debt financing and potential financial guarantees. FUNDING OF COMPULSORY ACQUISITION 5.6 Based on the funding sources outlined above, funding will be available in respect of the funding of any compulsory acquisition of land or rights in land. Similarly, should any claims for blight arise as a consequence of the proposed compulsory acquisition (not currently considered to be likely), funding is available and the expenditure will be met from the sources of funding described above.

Funding Statement Document Ref. 3.3 Page 5

Appendix 11 – Human Rights - Case Law PASCOE vs FSS

The Yorkshire and Humber CCS Cross Country Pipeline 112

885 [2007] 1 WLR Pascoe v First Secretary of State (QBD)

A Queens Bench Division *Pascoe v First Secretary of State

[2006]EWHC2356 (Admin)

2006 July 24—27; Forbes J B Sept 27

Compulsory purchase Compulsory purchase order Validity Order made under power to acquire under-used or ine›ectively used land Order land comprising of vacant and derelict properties as well as properties in good condition Inspector concluding order land predominantly under-used or ine›ectively used Whether order valid Leasehold Reform, Housing and C Urban Development Act 1993 (c 28), ss 159(2)(b), 162(1) The Urban Regeneration Agency purported to make a compulsory purchase order under section 162(1) of the Leasehold Reform, Housing and Urban Development Act 19931, in respect of land which included the claimants residential property. The Secretary of States inspector conducted a public inquiry at which it was argued, pursuant to section 159(2)(b) of the 1993 Act, that the land was in an urban area and was under-used or ine›ectively used. The inspector found that D although there were properties within the order land which did not fall within the description in section 159(2)(b), it was established that the order land was predominantly under-used or ine›ectively used urban land, and that a compelling case in the public interest had been demonstrated justifying the interference with the human rights of those with an interest in the land a›ected. The Secretary of State accepted the inspectors ndings, agreed with his conclusions and conrmed the order. The claimant applied to the court questioning the validity of the order under E section 23 and 24(2) of the Acquisition of Land Act 1981 on the ground that the authorisation of the order was not empowered to be granted, because some of the properties subjected to the order were in good condition, including her own. On the claim Held, granting the application, that Parliament could not have intended to restrict the powers of the regeneration agency, of which section 159(2)(b) of the 1993 Act formed part, to a piecemeal or patchwork acquisition of individual plots of land 159 2 F in a regeneration area; that under section ( )(b) the inspector and the Secretary of State were required to reach a view as to whether the order land, when considered as a unied whole, fell within the description land which is situated in an urban area and which is under-used or ine›ectively used; that the inspectors nding, accepted by the Secretary of State, that the order land was predominantly under-used or ine›ectively used did not accord with the statutory requirements of section 159(2)(b); that for the order land to be found to be predominantly under- used or ine›ectively used plainly involved the application of a less stringent standard G than that required by section 159(2)(b); and that, accordingly, the Secretary of State fell into error in conrming the order ( post, paras 34—35, 41, 44, 54, 89, 112).

The following cases are referred to in the judgment: Airey v Ireland (1979) 2 EHRR 305 Andronicou and Constantinou v Cyprus (1997) 25 EHRR 491 Berkeley v Secretary of State for the Environment [2001] 2 AC 603;[2000] 3 WLR H 420;[2000] 3 All ER 897, HL(E) Bexley London Borough Council v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 323

1 Leasehold Reform, Housing and Urban Development Act 1993,s159: see post, para 13. S 162(1): see post, para 15. 886 Pascoe v First Secretary of State (QBD)[2007] 1 WLR

Blecic« v Croatia (2004) 41 EHRR 185 A Chapman v United Kingdom (2001) 33 EHRR 399 Dombo Beheer BV v The Netherlands (1993) 18 EHRR 213 Dudgeon v United Kingdom (1981) 4 EHRR 149 Handyside v United Kingdom (1976) 1 EHRR 737 Howard v United Kingdom (1985) 52 DR 198 James v United Kingdom (1986) 8 EHRR 123 2004 905 2004 1 2557 Lough v First Secretary of State [ ] EWCACiv ;[ ] WLR ,CA B McVicar v United Kingdom (2002) 35 EHRR 566 Meyrick Estate Management Ltd v Secretary of State for Environment, Food and Rural A›airs [2005] EWHC 2618 (Admin) R v Secretary of State for the Environment, Transport and the Regions, Ex p Challenger [2001] Env LR 12 R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23;[2003] 2 AC 295;[2001] 2 WLR C 1389;[2001] 2 All ER 929, HL(E) R (Baker) v First Secretary of State [2003] EWHC 2511 (Admin) R (Clays Lane Housing Co-operative Ltd) v The Housing Corpn [2004] EWCA Civ 1658;[2005] 1 WLR 2229,CA R (Daly) v Secretary of State for the Home Department [2001] UKHL 26;[2001] 2 AC 532;[2001] 2 WLR 1622;[2001] 3 All ER 433, HL(E) R (Fisher) v English Nature [2003] EWHC 1599 (Admin); [2004] 1 WLR 503; [2003] 4 All ER 366;[2004] EWCA Civ 663;[2005] 1 WLR 147;[2004] 4 All D ER 861,CA R (Hadeld) v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 1266 (Admin); 26 EG 137 (CS) Samaroo v Secretary of State for the Home Department [2001] EWCA Civ 1139; [2001] UKHRR 1150,CA Steel and Morris v United Kingdom (2005) 41 EHRR 403 Winer v United Kingdom (1986) 48 DR 154 E X v United Kingdom (1982) 28 DR 177

The following additional cases were cited in argument: Alliance Spring Co Ltd v First Secretary of State [2005] EWHC 18 (Admin); [2005] 3 PLR 76 Buckland v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 524;[2001] 4 PLR 34 F Horn v Sunderland Corpn [1941] 2 KB 26;[1941] 1 All ER 480,CA Klass v Germany (1978) 2 EHRR 214 Maggiulli v United Kingdom (1988) 56 DR 254 Munro v United Kingdom (1987) 52 DR 158 Olsson v Sweden (1988) 11 EHRR 259 Pepper v Hart [1993]AC593;[1992] 3 WLR 1032;[1993] 1 All ER 42, HL(E) Pressos Cia Naviera SA v Belgium (1995) 21 EHRR 301 G R v A (No 2) [2001] UKHL 25;[2002] 1 AC 45;[2001] 2 WLR 1546;[2001] 3 All ER 1, HL(E) R v Monopolies and Mergers Commission, Ex p South Yorkshire Transport Ltd [1993] 1 WLR 23;[1993] 1 All ER 289, HL(E) R v Secretary of State for Transport, Ex p de Rothschild [1989] 1 All ER 933; 87 LGR 511,CA R v Tower Hamlets London Borough Council, Ex p Chetnik Developments Ltd H [1988]AC858;[1988] 2 WLR 654;[1988] 1 All ER 961, HL(E) R (Trailer and Marina (Leven) Ltd) v Secretary of State for the Environment, Food and Rural A›airs [2004] EWCACiv 1580;[2005] 1 WLR 1267,CA Seddon Properties Ltd v Secretary of State for the Environment (Note) (1978) 42 P&CR26 887 [2007] 1 WLR Pascoe v First Secretary of State (QBD)

A South Somerset District Council v David Wilson Homes (Southern) Ltd (1992) 66 P&CR83,CA Sporrong and Lnnroth v Sweden (1982) 5 EHRR 35 Webb v United Kingdom (1983) 6 EHRR 120

The following additional cases, although not cited, were referred to in the skeleton arguments: B A v United Kingdom (2002) 36 EHRR 917 Andersson v Sweden (1992) 15 EHRR CD 64 Benham v United Kingdom (1996) 22 EHRR 293 Ezeh and Connors v United Kingdom (2002) 35 EHRR 691 Kingsley v United Kingdom (2002) 35 EHRR 177 Moyna v Secretary of State for Work and Pensions [2003] UKHL 44;[2003] 1 WLR 1929;[2003] 4 All ER 162, HL(E) C Newsmith Stainless Steel Ltd v Secretary of State for Environment, Transport and the Regions [2001] EWHC Admin 74 Papachelas v Greece (1999) 30 EHRR 923 Perks v United Kingdom (1999) 30 EHRR 33 Pincock v United Kingdom (1989) 59 DR 281 Prest v Secretary of State for Wales (1982) 81 LGR 193,CA R (Greeneld) v Secretary of State for the Home Department [2005] UKHL 14; 2005 1 673 2005 2 240 D [ ] WLR ;[ ] All ER , HL(E) S and M v United Kingdom (1993) 18 EHRR CD 172 Stewart-Brady v United Kingdom (Application No 27436/95) (unreported) 2 July 1997, EComHR Tesco Stores Ltd v Secretary of State for the Environment, Transport and the Regions (2000) 80 P&CR427

E CLAIM By a claim form the claimant, Elizabeth Susan Pascoe, brought an application under section 23(1) of the Acquisition of Land Act 1981 challenging the validity of the Urban Regeneration Authority (Edge Lane West, Liverpool) Compulsory Purchase Order 2005 purportedly made by the rst interested party, the Urban Regeneration Authority (operating under the name English Partnerships), pursuant to section 162(1) of the F Leasehold Reform, Housing and Urban Development Act 1993, and conrmed by the defendant, the First Secretary of State. The claimant brought the application on the following grounds. (1) The First Secretary of State wrongly concluded that the agency had power under section 162(1)of the 1993 Act to make a compulsory purchase order in respect of the claimants home. (2) The First Secretary of State erred in concluding that the G interference with the claimants rights under article 8 and article 1 of Protocol 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms was justied. The order was incompatible with her Convention rights and was therefore unlawful under section 6 of the Human Rights Act 1998.(3) The claimant was deprived of her right to a fair hearing under article 6(1) of the Convention because of the unavailability of public funding for legal representation. The claimant sought pursuant to H section 24(2) of the 1981 Act that the court quash the order in whole or in part; alternatively, that the order was quashed at least in so far as it related to the claimants property. Liverpool City Council acted as the second interested party. The facts are stated in the judgment. 888 Pascoe v First Secretary of State (QBD)[2007] 1 WLR Forbes J

Robert McCracken QC and Katherine Olley for the claimant. A James Maurici for the Secretary of State. Neil Cameron for the agency. Sasha Blackmore for the council. Cur adv vult

27 September. FORBES J handed down the following judgment. B

Introduction 1 Section 158 of the Leasehold Reform, Housing and Urban Development Act 1993 established a new agency, the Urban Regeneration Agency (the rst interested party, hereafter referred to as the agency). The agency came into existence on 10 November 1993 and in May 1999, C when it was merged with the Commission for the New Towns, the agency adopted the operating name English Partnerships. In these proceedings, brought pursuant to section 23(1) of the Acquisition of Land Act 1981, the claimant challenges the validity of the Urban Regeneration (Edge Lane West, Liverpool) Compulsory Purchase Order 2005 (the order), purportedly made by the agency pursuant to powers conferred by D section 162(1)ofthe1993 Act. I understand that this is the rst time that the agency has used these statutory powers and the rst time that their use has been challenged. 2 Section 23(1)ofthe1981 Act (as amended) provides that if any person aggrieved by a compulsory purchase order desires to question its validity on the ground that the authorisation of a compulsory purchase order is not empowered to be granted under either the 1981 Act or, inter E alia, the 1991 Act, he may make an application to the High Court. 3 Section 24(2)ofthe1981 Act provides: If on the application the court is satised that(a) the authorisation granted by the compulsory purchase order is not empowered to be granted under this Act or any such enactment as is mentioned in F section 1(1) of this Act, or (b) the interests of the applicant have been substantially prejudiced by any relevant requirement . . . not having been complied with, the court may quash the compulsory purchase order or any provision contained therein . . . either generally or in so far as it a›ects any property of the applicant.

4 The order in question is one in a series of compulsory purchase G orders that the agency plans to make in deprived inner city areas. These areas are known as pathnder areas. I am told that there are about 250 other pathnder areas in the Midlands and the North of England and about 2.5 million people are and/or will be directly a›ected by the making of such orders. 5 The order was made by the agency on 10 January 2005. A public inquiry was held between 11 and 28 October 2005 and the First Secretary of H States inspector issued a report dated 10 January 2006 (the inspectors report, also referred to as IR for reference purposes). The First Secretary of State is the defendant in these proceedings, although his functions in this eld have now been transferred to the Secretary of State for Communities 889 [2007] 1 WLR Pascoe v First Secretary of State (QBD) Forbes JJForbes

A and Local Government. Hereafter I will refer to the defendant as the Secretary of State. 6 In his report the inspector recommended that the order be conrmed without qualication. The inspector considered that a compelling case in the public interest had been demonstrated and that this justied the interference with the human rights of those with an interest in the land a›ected (see IR, para 503). The inspector did not think that the inclusion of B properties within the order land which did not fall within the section 159 (1993 Act) descriptions (as to which, see below) should be fatal to the conrmation of the order (see IR, para 440), nor did he consider that his conclusions on the condition of the properties undermined the general contention of the need for regeneration (see IR, para 460). 7 In a succinct decision letter dated 15 February 2006 (hereafter C referred to as DL for reference purposes), the Secretary of State conrmed the order, having accepted the inspectors ndings and agreed with his conclusions (see DL, para 14). 8 The claimant is the owner/occupier of . This is a residential property named in the order and is situated towards the edge of the order area. The claimant was also the principal organiser of D BEVEL (Better Environmental Vision for Edge Lane), a group formed in June 2005 to oppose the conrmation of the order and to give evidence at the inquiry. Whilst BEVEL has no formal constitution, the group comprised members who were all statutory objectors. It should be noted that BEVEL and the other objectors accepted that there was a need for regeneration within the area generally (see IR, paras 438 and 452, quoted below), although there was disagreement that certain properties needed to be E acquired and demolished to e›ect the required regeneration: see IR, para 452. As the inspector stated, the question was not so much whether there should be regeneration, but the methods by which it should be achieved and, in particular, whether it was necessary to acquire the amount of land/property that was proposed: see IR, para 452. 9 In her witness statement of 6 April 2006, the claimant describes her F home, which is in good condition. The claimant is disabled and her home has been adapted to help her to manage. The claimant also describes her street, which is said to comprise old but good quality housing and is within walking distance of the city centre, and the local community. In paras 59 to 63 of her statement, the claimant says: 59. I have lived here ten years and I know all the neighbours in my G street. We rely on each other. The local community is really diverse and there is a real sense of community spirit, which has su›ered as a result of the CPO. 60. I have student lodgers, including overseas students. They prefer to stay with me instead of staying in purpose built student accommodation . . . About 40% of my income comes from my lodger . . . H 61. I lost my previous home, that I loved, after my divorce. It has taken years to get to know my neighbours, be trusted, know the city (I am a very nervous driver). Having been extremely low before, I know losing my house would be very damaging to me. The modest compensation which is on o›er would not be enough to enable me to buy another 890 Pascoe v First Secretary of State (QBD)[2007] 1 WLR Forbes J

similar property in the area if the houses were demolished and rebuilt. A (Many others are in a similar position to me.) In any event, it will take years to redevelop the area, and I could not face the upheaval of two moves. And if I did come back, the people I know would all have been dispersed and it would just not be the same. I am already 60 years of age, and the thought of losing my home and starting again somewhere new is very distressing to me. B 62. I consider that our community is being swept away by acquisition of each of our interests and homes, to make way for something unknown and di›erent, both socially and physically. However, it will take a very long time to build a new community from scratch, if ever, and the destruction of the existing community seems completely at odds with the declared objective of regeneration. It is di–cult to understand how compulsory exclusion of the community is regeneration. C 63. I believe that we are being asked to pay too high a price for this scheme, with the loss of our homes, our friends and our community. In practical terms, the displacement will be di–cult for everyone, particularly because the statutory compensation levels are low. We are thereby prohibited nancially from moving back into this area and achieving equivalence of accommodation or community. People are D unlikely to be able to a›ord to return, even if that was practical for them after a wait of several years . . . 10 It is therefore clear that the claimant is a person aggrieved by the order within the meaning of section 23(1)ofthe1981 Act. I am therefore satised that she is entitled to make this application and I did not understand either Mr Maurici, on behalf of the Secretary of State, or Mr Cameron, on E behalf of the agency, to suggest otherwise.

Summary of the grounds of challenge 11 There are three grounds of challenge to the order. The rst ground is to the e›ect that the defendant, the Secretary of State, erred in concluding that, in the circumstances of this case, the agency had the necessary statutory F power to make the order in question. The second ground raises issues relating to the consideration of an individuals rights under article 8 of and article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) in the context of the making of a compulsory purchase order. The third ground raises issues under article 6 of the ECHR relating to proper and e›ective representation at a compulsory purchase order inquiry. G

The statutory framework 12 The agencys powers are contained in Part III of the 1993 Act entitled Development of urban and other areas. As I have already indicated, section 158 provides for the establishment of the agency. 13 Section 159 of the 1993 Act deals with the objects of the agency in H the following terms: 159 Objects of agency (1) The main object of the agency shall be to secure the regeneration of land in England(a) which is land of one or more of the descriptions 891 [2007] 1 WLR Pascoe v First Secretary of State (QBD) Forbes J

A mentioned in subsection (2); and (b) which the agency (having regard to guidance, and acting in accordance with directions, given by the Secretary of State under section 167) determines to be suitable for regeneration under this Part. (2) The descriptions of land referred to in subsection (1)(a) are (a) land which is vacant or unused; (b) land which is situated in an urban B area and which is under-used or ine›ectively used; (c) land which is contaminated, derelict, neglected or unsightly; and (d) land which is likely to become derelict, neglected or unsightly by reason of actual or apprehended collapse of the surface as the result of the carrying out of relevant operations which have ceased to be carried out; and in this subsection relevant operations has the same meaning as in section 1 of the Derelict Land Act 1982. C (3) The agency shall also have the object of securing the development of land in England which the agency(a) having regard to guidance given by the Secretary of State under section 167; (b) acting in accordance with directions given by the Secretary of State under that section; and (c) with the consent of the Secretary of State, determines to be suitable for development under this Part. 4 D ( ) The objects of the agency are to be achieved in particular by the following means (or by such of them as seem to the agency to be appropriate in any particular case), namely(a) by securing that land and buildings are brought into e›ective use; (b) by developing, or encouraging the development of, existing and new industry and commerce; (c) by creating an attractive and safe environment; (d) by facilitating the provision of housing and providing, or facilitating the provision of, social E and recreational facilities. 14 Section 160 of the 1993 Act sets out the general powers of the agency, which include the following: 160 General powers of agency (1) Subject to the following provisions of this Part, for the purpose of F achieving its objects the agency may(a) acquire, hold, manage, reclaim, improve and dispose of land, plant, machinery, equipment and other property; (b) carry out the development or redevelopment of land, including the conversion or demolition of existing buildings; (c) carry out building and other operations . . . (l) generally do anything necessary or expedient for the purposes of its objects or for purposes incidental to G those purposes. (4) In this sectionimprove in relation to land, includes refurbish, equip and t out . . . and in this section and the following provisions of this Part references to land include land not falling within subsection (1) or (3) of section 159. 15 Section 162 of the 1993 Act deals with the acquisition of land by the H agency in the following terms, inter alia: 162 Acquisition of land (1) The agency may, for the purpose of achieving its objects or for purposes incidental to that purpose, acquire land by agreement or, on being authorised to do so by the Secretary of State, compulsorily. 892 Pascoe v First Secretary of State (QBD)[2007] 1 WLR Forbes J

16 Section 167(1)ofthe1993 Act provides: A The agency shall have regard to guidance from time to time given by the Secretary of State in deciding(a) which land is suitable for regeneration or development under this Part; and (b) which of its functions under this Part it is to exercise for securing the regeneration or development of any particular land and how it is to exercise those functions. B 17 Guidance was originally issued by the Secretary of State in 1994. However, ODPM Circular 06/2004 Compulsory Purchase and the Crichel Down Rules (the circular) now applies and Appendix C specically refers to compulsory acquisition orders made by the agency under section 162(1) of the 1993 Act. 18 Paragraph 17 of the circular states as follows: C A compulsory purchase order should only be made where there is a compelling case in the public interest. An acquiring authority should be sure that the purposes for which it is making a compulsory purchase order su–ciently justify interfering with the human rights of those with an interest in the land a›ected. Regard should be had, in particular, to the provisions of article 1 of the First Protocol to the European Convention D on Human Rights and, in the case of a dwelling, article 8 of the Convention. Paragraph 18 of the circular is in the following terms: The conrming minister has to be able to take a balanced view between the intentions of the acquiring authority and the concerns of E those whose interest in land it is proposed to acquire compulsorily. 19 It is also helpful to refer to the following paras of Appendix C to the circular: 1. English Partnerships (EP) in its present form was created administratively in May 1999 by bringing together the Commission for the New Towns (CNT) and the national structure of the Urban F Regeneration Agency (URA). EP is therefore able to utilise the powers compulsorily to acquire land and new rights over land given to the URA respectively by sections 162(1) and (2) of the Leasehold Reform, Housing and Urban Development Act 1993. The purpose for which those powers may be used is the achievement of the URAs objectives (or purposes incidental thereto). The conrming authority (under the terms of the G 1981 Act) for a compulsory acquisition by the URA is currently the Deputy Prime Minister in his capacity as First Secretary of State (referred to as the Secretary of State in this appendix). 2. The objects of the URA (and therefore the purposes for which EP may exercise compulsory powers) are set out in section 159 of the 1993 Act and are to secure: the regeneration of land in England which is within one or more of the following descriptions: land which is vacant or H unused; land which is situated in an urban area and which is under-used or ine›ectively used; land which is contaminated, derelict, neglected or unsightly; and land which is likely to become derelict, neglected or unsightly by reason of actual or apprehended collapse of the surface as the 893 [2007] 1 WLR Pascoe v First Secretary of State (QBD) Forbes J

A result of the carrying out of relevant operations which have ceased to be carried out (section 159(1)(a)); the development of land in England which the agency (having regard to guidance and acting in accordance with any directions given by the Secretary of State under section 167 of the 1993 Act) determines to be suitable for development under the URAs powers and to which the Secretary of State consents (section 159(1)(b) and (3). 3. The Government has outlined a new role for EP ( parliamentary B statement of the Deputy Prime Minister24 July 2002). This identied EP as a key delivery agency in the Governments sustainable communities agenda to regenerate the towns, cities and rural areas of England and as the national catalyst for property led regeneration and development. It is charged with delivering urban renaissance and helping the Government meet its targets for accommodating household growth on browneld C land. EP is clearly in a position to utilise the URAs compulsory powers to assist it in fullling this role. Exercising compulsory purchase powers 7. It is for EP to decide how best to use the URAs land acquisition powers to full its purposes and in accordance with any guidance which may be issued from time to time by its sponsoring department. The fact that the powers have been expressed in wide and general terms, together D with the Governments statement mentioned above, reects the national importance of the task facing EP. . . 8. EP is charged with securing the regeneration of types of land which may be unattractive to existing or potential residents, developers or investors, and therefore need the catalyst of public sector commitment to turn them round. The Governments statement identied EP as the E national catalyst for this type of initiative. Conrmation 14. In reaching a decision about whether to conrm an order made under section 162 of the 1993 Act the Secretary of State will have in mind the statutory purposes of the URA and will, amongst other things, consider: (i) whether EP has established the basis and justication for its actions through its corporate plan and any related action plan, (including F any reviews thereof ), which should be in general accordance with regional and local planning policies and other guidance referred to in para 9 above; (ii) whether, where appropriate, EP has demonstrated that the land is in need of regeneration; (iii) any directions and guidance which may be given under section 167 and (in the case of development) any consent under section 159(3); (iv) what, if any, alternative proposals have G been put forward by the owners of the land or by other persons for the use or re-use of the land; whether such proposals are likely to be, or are capable of being, implemented, (including consideration of the experience and capability of the landowner or developer and any previous track record of delivery); what planning applications have been submitted and/or determined; how long the land has been unused; and the extent to which the proposals advocated by the other parties may conict with H EPs proposals as regards the timing and nature of the regeneration of the wider area concerned; (v) whether the proposed development or regeneration is, on balance, more likely to be achieved if the land is acquired by EP, including consideration of the contribution which acquiring the land is likely to make to stimulating and/or maintaining the 894 Pascoe v First Secretary of State (QBD)[2007] 1 WLR Forbes J

long-term regeneration of the area; (vi) whether, if EP intends to carry out A direct development, it will not thereby, without proper justication, displace or disadvantage private sector development or investment, and that the aims of the URA cannot be achieved by any other means; (vii) the condition of the land and its recent history; (viii) the quality of, and proposed timetable for completing, both the proposals for which EP is proposing to acquire the land under the URAs compulsory purchase powers and any alternative proposals. B 20 I now turn to deal with the parties submissions and my conclusions with regard to the three grounds of challenge.

Ground 1

21 The rst ground of challenge is expressed in the following terms: C The First Secretary of State wrongly concluded that (the agency) had power under section 162(1) (of the 1993 Act) to make a compulsory purchase order in respect of the claimants home, and misdirected himself in law by deciding that: (i) the criteria in section 159(2) (of the 1993 Act) were satised in respect of all the parcels of land in the area covered by the CPO, provided that there was evidence that a predominant number D came within the criteria; (ii) there was no need to establish that specic parcels of land came within the criteria in section 159(2); (iii) the description in section 159(2)(b): land which is situated in an urban area and which is under-used or ine›ectively usedreferred to an area of land, not individual parcels of land, and could include properties which did not fall within any of the descriptions in section 159(2). E 22 As Mr McCracken pointed out, section 159(1) of the 1993 Act provides that the main statutory object of the legislation (i e to secure the regeneration of land in England) is to be exercised in respect of land that falls within one or more of the descriptions set out in section 159(2)(a)—(d) and which the agency determines to be suitable for regeneration, having regard to the guidance and directions of the Secretary of State. 23 It is common ground that conrmation of the order was sought only F on ground (b) of section 159(2)ofthe1993 Act (under-used and/or ine›ectively used urban land). This was duly noted and emphasised by the inspector in that part of his report in which he summarised the agencys case (see IR, paras 18 to 190), in particular in paras 18, 19, 20, 21, 26 and 27: 18. The following is the general case for the acquiring authority and provides the basis of its response to many of the individual objections G made to the conrmation of the order. 19. Section 162(1) of the (1993 Act) . . . authorises the Urban Regeneration Agency carrying on business as English Partnerships (and hereafter referred to as EP) to acquire land compulsorily when authorised so to do by the Secretary of State for the purpose of achieving its objects, or for purposes incidental to that purpose. 20. Section 159 of the 1993 Act provides that the main object of H EP shall be to secure the regeneration of land in England which is land in one or more of the descriptions mentioned in section 159(2) and which EP (having due regard to guidance, and acting in accordance with directions given by the Secretary of State) determines to be suitable for 895 [2007] 1 WLR Pascoe v First Secretary of State (QBD) Forbes J

A regeneration under Part III of the 1993 Act. The descriptions of land which are relevant to the order are those specied in the order . . . namely: (a) land which is vacant or unused; (b) land which is in an urban area and which is under-used or ine›ectively used; (c) which is contaminated, derelict, neglected or unsightly. 21. Conrmation of the order is sought on ground (b). Certain parts of the order land are additionally vacant, unused, derelict, neglected B and/or unsightly . . . These matters are relied upon in support of the contention that the lands are under-used and/or ine›ectively used. The order has been made for the purposes of securing the regeneration of land in the Kensington/Edge Hill area through the provision of new housing and related development and improvements to Edge Lane West . . . 26. The delivery of sustainable communities, delivering Pathnder C housing renewal schemes, and delivering strategic development sites of national or regional signicance, cannot be e›ected without securing properties and land which do not fall within descriptions (a) or (c) (of section 159(2)) but fall within these general areas where regeneration is appropriate (within description (b)). A piecemeal or pepper-potted approach would simply not meet the statutory object of securing the regeneration of land. It is vital to the success of the scheme to bring D forward its various elements in a comprehensive and integrated manner so as to create a critical mass to trigger a step change in the area. 27. The acquiring authority does not rely on Housing Act, Highways Act, or Town and Country Planning Act powers. As a result, EP does not seek to justify the order by sole reference to housing, highways or planning issues. EP promotes this order to secure area-wide regeneration E through a scheme that would act as a catalyst for investment in both the housing and commercial sectors . . . 24 Having summarised the supporting submissions of Liverpool Vision (see IR, paras 191 and 192), the inspector then proceeded to summarise the objections, commencing rst with the case put forward by BEVEL (see IR, paras 193 to 265). In paras 267 to 426 of his report, the inspector F summarised the cases of the various statutory objectors and other objections and the agencys responses thereto, before moving on to his conclusions commencing at para 427. In order better to understand the parties submissions with regard to the rst ground of challenge, it is necessary to quote a signicant amount of the inspectors conclusions: 428. This is the rst occasion on which a CPO made under the G provisions of section 162(1) of the (1993 Act) . . . by the Urban Regeneration Agency (URA), carrying on business as English Partnerships (EP) has come to an inquiry. As the appropriateness of the use of this power has been questioned I therefore start by considering this aspect, following a brief outline of EPs proposals. 429. Appendix C to the Memorandum of Circular 06/2004 provides guidance on the making of orders by EP. It indicates at para 14 that, in H reaching a decision about whether to conrm an order made under section 162 of the 1993 Act, the Secretary of State (FSS) will have in mind the statutory purposes of the URA. It also sets out other matters that will be considered by the FSS and I have used these as a structure for my conclusions. Following this, I consider the various other matters raised by 896 Pascoe v First Secretary of State (QBD)[2007] 1 WLR Forbes J

objectors, including procedural issues, such as alleged inequality of A arms. 430. Paragraph 17 of Part 1 of Circular 06/2004 reiterates the long established principle that a CPO should only be made where there is a compelling case in the public interest. Paragraph 19 further indicates that land should only be taken compulsorily where there is clear evidence that the public benet will outweigh the private loss, the Human Rights Act B 1998 (HRA) reinforcing this basic requirement. I (must) therefore come to an overall conclusion as to whether a compelling case in the public interest for conrmation has been established. The reason for the making of the order 431. The order is promoted to secure area-wide regeneration. The regeneration scheme comprises two interlinked elements: highway corridor improvements to Edge Lane West, which are part of a wider C strategy for such improvements over the entire length of Edge Lane; and transformational redevelopment, with residential and commercial components anking the highway improvements. The highway corridor works benet from detailed planning permission. The wider regeneration scheme has outline planning permission. 432. The details that are likely to come forward within the scheme would include the provision of residential accommodation of varying D types, commercial, retail and community uses, and public spaces aimed at fostering a sustainable community. The highway corridor improvements aim to enhance environmental quality and safety for the benet of all. They include the provision of a tree-lined boulevard gateway entrance to the city centre, with wider tra–c lanes and footways, in order to ease tra–c congestion, improve parking and reduce pedestrian severance to E the north and south created by the existing road. 433. Whilst many plots of land and individual properties are already in public sector ownership, or have already been acquired by agreement, there are others which have not. These are in di›ering ownerships, some of it in investment property let to short-term tenants. It is unlikely that all interests could be acquired by private treaty. The land and property is required to enable the comprehensive regeneration scheme to progress F within a reasonable timescale. Powers used 434. Paragraph 2 of Appendix C to the Memorandum of Circular 06/2004 indicates that the objects of the URA (and therefore the purpose for which EP may exercise compulsory powers) are set out in section 159 of the 1993 Act. The objects are to secure the regeneration of land in G England which is within one or more of four descriptions. In this case, the three descriptions of relevance are: land which is vacant or unused; land which is situated in an urban area and which is under-used or ine›ectively used; and land which is contaminated, derelict, neglected or unsightly. 435. EP seeks conrmation of the order to secure regeneration of land which it situated in an urban area and which is under-used or ine›ectively used. It maintains that certain parts of the order land are additionally H vacant, unused, derelict, neglected and/or unsightly. These latter matters are relied upon in support of the principal contention of the land falling within the category of under-used or ine›ectively used urban land. Regeneration is to be secured through the provision of new housing and 897 [2007] 1 WLR Pascoe v First Secretary of State (QBD) Forbes J

A commercial properties and through the related development and improvements to Edge Lane West. 436. I therefore consider rstly whether the order land falls within the claimed categories. Having regard to the matters the FSS will consider in reaching a decision as to whether to conrm the order, I consider in paras 452—460 below whether is has been demonstrated that the land is in need B of regeneration. 437. The order land is centred around Edge Lane West itself. This is part of a principal strategic radial route linking the city centre with the M62 motorway and is dened as a major road corridor within the UDP. It su›ers problems of confusion in the geometry of the road layout, especially for turning tra–c, parking problems for businesses and residents, and lack of highway capacity. This leads to substantial C vehicular delays, particularly at peak times, pedestrian severance and safety implications. BEVEL claims that it is di–cult to reconcile the high levels of congestion with the under-use of land. It further suggests that as the road appears to be over-used this falls outside the statutory qualifying factual criteria of ine›ective or under-use. On the other hand, it is clear that there is a strong consensus that Edge Lane West does su›er D from problems that need to be addressed through improvements to the highway. This points to the fact that the highway corridor is clearly currently used ine–ciently as it is congested and poses parking problems and highway safety issues. Ine–cient is a synonym for ine›ective. It is not therefore incorrect to describe this road corridor as being ine›ectively used. 438. BEVEL and the other objectors accept that there is a need for E regeneration within the area. The numbers of vacant, unused, derelict, neglected and unsightly properties within the order land are clearly established. There has been no challenge to this categorisation. This supports the general contention that the order land is under-used or ine›ectively used. (I consider the question of untness of properties, raised by BEVEL, in paras 457—460 below. The proper consideration of F whether the land is ine›ectively and/or under-used does not, in my view, entail a comparative exercise of before and after, as claimed by BEVEL. 439. It is equally clear, however, that there are properties within the order land that do not fall within any of the above descriptions. This point has been forcibly made by many individual objectors . . . They 1993 G claim that an order under the Act cannot be made or conrmed where certain specic properties do not qualify under any of these descriptions. However, I agree with the view of EP that, in dealing with land within an urban area which is in need of regeneration, it is likely that there will be certain properties within it that are in good condition. Furthermore, the guidance issued in 1994 by the Secretary of State requires EP to focus on the promotion of the regeneration of areas of need. H Account should be taken of areas of need as dened by the Government. Although the guidance predates the sustainable communities agenda and pathnder initiatives by a decade or so, I accept that it is apparent that the Government now regards such areas of need as including pathnder areas. Similarly, by reference to Appendix C of Circular 06/2004,itis 898 Pascoe v First Secretary of State (QBD)[2007] 1 WLR Forbes J

clear that EP is charged to deliver urban renaissance, with a need for a A coherent and comprehensive approach to regeneration. 440. I have not been pointed to any specic guidance indicating that the objective of securing regeneration of an area will sometimes require the acquisition and redevelopment of some properties which may not themselves be in need of intervention. Nevertheless, I consider that in trying to bring about area-wide regeneration in a comprehensive and B coherent manner, the inclusion of some property not falling within the specied descriptions is, in reality, all but certain. EPs report to its Board, at which the decision was taken to make the order, recognises that the area is not entirely composed of vacant or derelict properties. However, there is su–cient evidence to support the view that the order land falls predominantly within the dened categories and that it is under- used or ine›ectively used. To thwart a regenerative proposal on the basis C that some properties within a wide-area scheme are not vacant, unused, derelict, neglected or unsightly would be counter to the thrust of the enabling powers relied upon. I therefore consider that the inclusion of properties within the order land not falling within the specied descriptions is not in itself a matter that should be fatal to the orders conrmation . . . 442. The order is promoted to secure area-wide regeneration. EP D does not rely on powers under Housing, Highways or Town and Country Planning Acts. Nor does it seek to justify the making of the order by sole reference to housing, highways or planning issues. The rationale for the use of the chosen powers has been established clearly. The BEVEL contention that the use of the section 162 powers of the 1993 Act may not have been the most appropriate is not well made. From the foregoing, E I consider the legislative justication of the making of the order is sound. 25 In paras 444 to 488 of his report the inspector then turned to and dealt with each of the matters specied in Appendix C to ODMP Circular 06/2004 as matters that the Secretary of State has indicated will, amongst others, be considered in reaching a decision as to whether to conrm an order made under section 162(1)ofthe1993 Act. F 26 At paras 452, 453, 459 and 460 the inspector said, inter alia, when considering whether the agency had demonstrated that the land is in need of regeneration: 452. There is little dispute that the area generally is in need of regeneration. Clearly there is disagreement that certain properties need to be acquired and demolished to e›ect regeneration. Likewise, there is G disagreement with the generality of the currently proposed scheme to bring this about on an area-wide basis. In securing regeneration it is a question not so much as whether it should be done but the methods by which it should be achieved and, in particular, whether it is necessary to acquire the amount of land/property that is proposed. 453. The basis on which it is claimed that regeneration is necessary is set out in paras 435 and 437 above. It is established that the order land is H predominantly under-used or ine›ectively used urban land. One element underpinning this is the claim of housing market failure within the order land. EPs evidence is that the area was su›ering housing market failure before any regeneration scheme was agreed. 899 [2007] 1 WLR Pascoe v First Secretary of State (QBD) Forbes J

A 459. I was able to see externally all the order land properties on my site visits but in the absence of specic evidence on their individual condition I made no attempt to form a judgment on this. It is not therefore possible to say what proportion of properties within the order land fall into any of the mentioned categories. That said, it is clearly apparent that some properties are in need of physical attention of one sort or another and that the numbers of vacant and boarded properties B inevitably lend an air of neglect and unsightliness. As already mentioned in para 438 above, there has been no challenge to the categorisation of properties as vacant, unused, derelict, neglected or unsightly. On the other hand, in the absence of detailed evidence from EP of the condition of properties within the order land, I do not consider that it can be claimed that the properties there can be classied as necessarily obsolete. C As I saw on my formal site visit, there are properties providing appropriate and acceptable living accommodation. 460. As referred to in para 438 above, there is little dispute regarding the need for regeneration. I consider the questioning of housing market failure and the condition of properties within the order land does not undermine the general contention of need for regeneration, but goes to the heart of how this might be achieved. D 27 Having completed his consideration of the matters specied in para 14 of Appendix C to the Circular (which included a consideration of alternative proposals: see IR paras 462 to 471), the inspector dealt with various other matters such as Equality of Arms (IR, paras 493 and 494) and the e›ect on Human Rights (IR, paras 495 to 497), before coming to his overall conclusions, which he expressed in the following terms: E Overall conclusions 501. The order has been made using the correct powers under the 1993 Act. The order land is predominantly under-used or ine›ectively used. It is partly characterised also by vacant, unused, derelict, neglected and unsightly land. There is general agreement that its regeneration is necessary to address problems within the area. Whilst there is no F evidential basis pointing to the number of properties within the order land which are unt, in substantial disrepair or non-decent, this does not deect from the ndings within the NRA for Kensington that these problems manifest themselves within this wider area. 502. There is a well advanced proposed composite regeneration scheme involving highway improvements and associated housing and G environmental redevelopment. Substantial benets would result from this scheme and would extend beyond the immediate order land. Acquisition of land and property not already acquired by agreement would further the realisation of this scheme and such action would be in fullment of EPs statutory purposes. Whilst various other suggestions have been made as to how regeneration and improvements to the area could be achieved without the need for the demolition proposed, these do H not amount to realistic workable alternatives to the scheme in respect of which the order is made. 503. The scheme accords with the national, regional and local planning and regenerational policy background. It is clearly dened, has a deliverable objective, is well advanced, and has the nancial resources 900 Pascoe v First Secretary of State (QBD)[2007] 1 WLR Forbes J

and partnership backing to allow it to happen. This provides condence A that there would be a realistic prospect it could be successfully implemented in a timely manner, thereby bringing land into benecial use. I consider that the public benet would outweigh the private loss of land and property and that a compelling case in the public interest has been demonstrated as to why the order should be conrmed. This justies the interference with the human rights of those who have an interest in the B land a›ected. 28 As I have already indicated, the Secretary of States letter of 15 February 2006, whereby he conrmed the order, was succinctly expressed. As Mr McCracken submitted on behalf of the claimant, the crux of the Secretary of States decision is to be found in paras 8, 9, 11 and 14 of the decision letter, which are in the following terms: C 8. The Secretary of State agrees with the inspectors conclusion that the order has been made using the correct powers under the 1993 Act . . . In this respect, he agrees with the inspector that the order land is predominantly under-used or ine›ectively used and is partly characterised also by vacant, unused, derelict, neglected and unsightly land. He agrees that whilst there is no evidential basis pointing to the D number of properties within the order land which are unt, in substantial disrepair or non-decent, this does not deect from the ndings within the neighbourhood renewal assessment for Kensington that these problems manifest themselves within this wider area. 9. Whilst various suggestion have been made as to how regeneration and improvements to the area could be achieved without the need for the E demolition proposed, the Secretary of State agrees with the inspector that no realistic alternative proposals capable of implementation have been advanced. There are no alternative proposals that benet from extant permissions or have funding, that are to be preferred to the existing comprehensive regeneration scheme whose delivery the order seeks to achieve. 11. The First Secretary of State has carefully considered whether the F purposes for which the compulsory purchase order was made su–ciently justies interfering with the human rights of the landowners and objectors and he is satised that such interference is justied since, for the reasons given above, he is satised that there is a compelling need in the public interest for the land, the subject of the compulsory purchase order, to be compulsorily acquired. In particular he has G considered the provisions of article 8 of, and article 1 of the First Protocol to the European Convention on Human Rights. In this respect the Secretary of State is satised that in conrming the compulsory purchase order a fair balance has been struck between the use of compulsory purchase powers, the relevant order and the rights of the landowners and objectors. 14. The First Secretary of State has given careful consideration to the H inspectors report and the submissions of the parties. He accepts the inspectors ndings and agrees with his conclusions. The First Secretary of State has therefore decided to accept the inspectors recommendation and to conrm the . . . order. 901 [2007] 1 WLR Pascoe v First Secretary of State (QBD) Forbes J

A 29 As Mr Maurici pointed out, there are three key points pleaded in relation to the rst ground of challenge, which are as follows: (1) in order for the statutory power to be used it is necessary to examine and determine whether each and every individual piece of land within the order land is in and of itself ine›ectively or underused and that if any single piece of land cannot be so categorised then there is no power B to make a compulsory order in respect of an area that includes that piece of land; (2) in any event the question of whether the order land as a whole is ine›ectively or under-used was never the subject of a nding in the IR or the DLthe only nding made was that the order land was predominantly under or ine›ectively used and that this is insu–cient to meet the statutory test; and C (3) the only actual nding of ine›ective/under-use in respect of the order land was in respect of the road (see IR, para 437 and that nding is absurd. 30 As to the rst of these points (i e the initial part of the pleaded ground of challenge), Mr McCracken submitted that the inspector had fallen into error in accepting the agencys case on this aspect of the matter: see IR, D para 22, where the inspector repeats paras 8 to 10 of the agencys closing submissions: 8. It has been claimed by certain objectors that an order under the 1993 Act cannot be made/conrmed where, as in the present case, certain specic properties in the order land do not, taken by themselves, qualify under any of the statutory descriptions. E 9. This claim shows a misapprehension of the scope of the powers. 10. Since paragraphs (a) and (c) specify vacant or unused, derelict, neglected or unsightly, it is clear that paragraph (b) must denote land which, either wholly or in part, does not qualify under paragraphs (a) and (c). Further, paragraph (b) relates, unlike paragraphs (a) or (c), to land in an urban area. It is self-evident that land in existing urban areas which F arises as a candidate for regeneration, is likely to include certain properties that are in good condition. 31 Mr McCracken pointed out that the inspector had acknowledged that he had not been pointed to any specic guidance indicating that the objective of securing regeneration of an area will sometimes require the acquisition and redevelopment of some properties which may not G themselves be in need of intervention (see IR, para 440). Mr McCracken submitted that the wording of section 159(2)(b) was perfectly clear and that for land to fall within that description, the whole of the land in question must be under-used or ine›ectively used. It was his submission that, in order to come to a meaningful conclusion on such an issue in relation to order land that consists of an area made up of a many di›erent units of land in di›erent ownership and subject to many di›ering uses, it was necessary to consider H each of the units that go to make up the whole area and come to a conclusion with regard to each such unit as to whether it was under-used or ine›ectively used. Mr McCracken stressed that this was not done in this case and that the only part of the order land where the inspector had carried out such an exercise was in relation to Edge Lane West itself (see IR, para 437), where he 902 Pascoe v First Secretary of State (QBD)[2007] 1 WLR Forbes J concluded that congestion, parking problems and road safety issues A demonstrated that the road was not e›ectively used. 32 Mr McCrackens extreme position (reecting the initial part of the pleaded ground) was to the e›ect that if only one of the individual units that made up the area of the order land was found to be neither under-used nor ine›ectively used, the area as a whole could not be properly described as being under-used or ine›ectively used and that, therefore, the statutory B requirements for compulsory purchase under section 159(2)(b) could not be satised. In the event, this extreme position assumed much less prominence in the course of the hearing as Mr McCracken developed his principal (and much more persuasive) submission on ground one (the second point identied in para 29 above, as to which, see below). However, before turning to Mr McCrackens primary submission, it is necessary to dispose of this initial aspect of his submissions on ground one. C 33 Both Mr Maurici and Mr Cameron submitted that section 159(2)(b) of the 1993 Act is part of legislative provisions that are aimed at urban regeneration on an area-wide basis, and that it is therefore appropriate when applying that provision to examine the question whether an area, taken as a whole, satises the statutory precondition for the exercise of the compulsory purchase powers set out in the statute. Mr Maurici and Mr Cameron pointed out that if Mr McCrackens initial submission was correct, then the D agency would be conned to a piecemeal approach to urban regeneration, on a patchwork basis of compulsory purchase conned to those plots which individually could each be said to be under-used and/or ine›ectively used. 34 Mr Maurici submitted,correctly, in my view, that this would be an unsustainable approach to the construction of the broad urban regeneration powers of which section 159(2)(b) forms part. The purpose for which the E statutory compulsory purchase power has been granted in the 1993 Act is, as it seems to me, clearnamely securing area-wide regeneration. In this case, the regeneration is to be secured through the provision of new housing and commercial properties on a coherent and integrated basis and through the related development and improvements to Edge Lane West. Moreover, I agree that the concept of land being under-used or ine›ectively used in section 159(2)(b) expressly contemplates that some of the land to be F acquired is being used, if it were not then it would be land that was unused and hence would fall within section 159(2)(a). Parliament made express provision for a power to acquire land that was unused and land that was under or ine›ectively used. 35 I accept Mr Mauricis submission that, in practical terms, the regeneration of a complete area will often require the regeneration authority G to take over the entire area, in order to implement a coherent and e›ective plan of redevelopment for regeneration. I accept the submission that Parliament cannot plausibly have intended to restrict the powers of the regeneration authority to a piecemeal or patchwork acquisition of individual plots of land in a regeneration area and I reject Mr McCrackens submissions to the contrary e›ect. 36 As I have already indicated, the agency sought to rely on H section 159(2)(b) of the 1993 Act as the basis for the making of the order. Accordingly, I am satised that what the inspector and the Secretary of State were required to do was to reach a view as to whether the order land, when considered as a unied and coherent whole, fell within the description land 903 [2007] 1 WLR Pascoe v First Secretary of State (QBD) Forbes J

A which is situated in an urban area and which is under-used or ine›ectively used. The agency maintained that certain parts of the order land were also vacant, unused, derelict, neglected and/or unsightly. Those matters were relied on as evidence supporting the agencys principal contention that the order land as a whole was under-used and/or ine›ectively used. In my view that was a perfectly sound approach and one that the inspector understood (see IR, para 435). B 37 The numbers of vacant, unused, derelict, neglected and unsightly properties within the order land were established: see IR, paras 15, 38 and 438. Thus 178 properties were considered to be vacant and unused, almost 270 neglected, 227 unsightly and over 160 derelict. There was apparently no challenge to this categorisation (see IR, para 438) and the inspector took the view (a perfectly reasonable one, in my view) that this supports the C general contention that the order land is under-used or ine›ectively used (see IR, para 438). 38 However, it was Mr McCrackens submission that the inspector did not come to the conclusion that the order land (considered as a whole) was under-used and/or ine›ectively usedrather his conclusion was that it was predominantly so, a conclusion that Mr McCracken characterised as involving an impermissible watering-down of the statutory test. D Mr McCracken submitted that such is clear from the wording of paras 440, 453 and 501 and that the Secretary of State went on to make the same mistake in his decision letter (see, particular, para 8). 39 I have given this aspect of the matter much anxious thought. I am very aware that the inspectors report and the Secretary of States decision letter must be read as a whole, in a reasonably exible manner and without E applying the exacting and precise standards that are applied to a contract or a statute. I am also very conscious of the point made so forcefully by Mr Cameron, namely that the inspector clearly understood and recorded the agencys case correctly (which does not contain any impermissible watering down) and gave no indication or sign at any stage of having any intention of departing from that case. Nevertheless, I nd myself driven to the conclusion that both the inspector and the Secretary of State fell into error in F the manner submitted by Mr McCracken on this aspect of the rst ground of challenge. 40 In para 440 of the inspectors report the crucial sentence is as follows, However, there is su–cient evidence to support the view that the order land falls predominantly within the dened categories and (emphasis added) that it is under-used or ine›ectively used. I accept that it is arguable G that the word and in that sentence is disjunctive and that it is then followed by a nding of fact that the order land is under-used or ine›ectively used. However, in my view, the sentence can also be read as meaning that the order land is under-used or ine›ectively used to the extent that it falls predominantly within all three dened categories. In my view, it would be consistent with this latter interpretation to go on to describe the order land subsequently as predominantly under-used or ine›ectively used, which is H precisely the expression used by the inspector in paras 453 and 501 of his report and by the Secretary of State in para 8 of his decision letter (as to which, see below). 41 As it seems to me, para 453 of the inspectors report is perfectly clear. In that paragraph the inspector states unequivocally It is established 904 Pascoe v First Secretary of State (QBD)[2007] 1 WLR Forbes J that the order land is predominantly under-used or ine›ectively used urban A land. In my judgment, the inspector made a clear statement in that paragraph as to what he considered had been established by the evidence, namely that the order land was predominantly under-used or ine›ectively used urban land. I agree with Mr McCracken that such a nding does not accord with the statutory requirements of section 159(2)(b) of the 1993 Act (i e the section relied on as empowering the agency to compulsorily acquire B the land in question), namely that the land is under-used or ine›ectively used. I agree with Mr McCracken that the inspectors nding involves an impermissible watering down of that statutory requirement. 42 As it seems to me, the fact that the inspector fell into error is made even more apparent by the opening words of para 501 of his overall conclusions, where he said: The order has been made using the correct powers under the 1993 C Act. The order land is predominantly under-used or ine›ectively used (emphasis added). It is partly characterised also by vacant, unused, derelict, neglected and unsightly land. In my view, it is signicant that the inspector has characterised the order land as being predominantly underused or ine›ectively used, whilst at the same time acknowledging that it is also partly characterised by vacant, D unused, derelict, neglected and unsightly land. There is no doubt in my mind that the inspectors expressed conclusion as to the under or ine›ectively used state of the order land (considered as a whole) was that it was predominantly so. This expression was not an occasional oversight or a somewhat infelicitous use of language. I am satised that the conclusion reached by the inspector on the evidence that he had heard and considered E was that when the order land was considered as a whole it was predominantly under-used or ine›ectively used. In my view, that nding did not satisfy the requirements of section 159(2)(b) of the 1993 Act and I reject Mr Mauricis and Mr Camerons submissions to the contrary e›ect. 43 In para 14 of his decision letter, the Secretary of State accepted the inspectors ndings and agreed with his conclusions without any qualication or modication. It follows that the inspectors conclusions as F to whether and to what extent the order land was under-used or ine›ectively used were adopted by the Secretary of State without modication. This was made doubly clear by para 8 of the decision letter in which the Secretary of State expressly stated as follows: In this respect, he agrees with the inspector that the order land is predominantly under-used or ine›ectively used and is partly characterised G also by vacant, unused, derelict, neglected and unsightly land. 44 I am therefore satised that the Secretary of State also fell into error in concluding that the requirements of section 159(2)(b) had been met. In order to meet the requirements of section 159(2)(b) it was necessary to establish that the order land, when considered as a whole, was under-used or ine›ectively used. In my view, for the order land to be found to be H predominantly under or ine›ectively used plainly involves the application of a less stringent standard than that required by section 159(2)(b): see the similar decision reached by Sullivan J in Meyrick Estate Management Ltd v Secretary of State for Environment, Food and Rural A›airs [2005]EWHC 905 [2007] 1 WLR Pascoe v First Secretary of State (QBD) Forbes J

A 2618 (Admin). I therefore accept Mr McCrackens submission that both the inspector and the Secretary of State fell into error by engaging in an impermissible dilution of the statutory requirement that had to be satised before the agency was empowered to acquire the land in question compulsorily in order to secure its regeneration. 45 Finally, in the alternative, Mr Maurici contended that if (contrary to his primary submissions) the Secretary of State has decided that the order B land is predominantly under or ine›ectively used (as, in my view, he has), then it follows that the Secretary of State has also accepted that some of the order land is not under or ine›ectively used (i e that some of the order land falls outside the terms of section 159(2)(b): for convenience, hereafter referred to as the non-qualifying land). It is important to note that neither the inspector nor the Secretary of State was able to indicate what proportion C of properties within the order land fell into any of the specied descriptions (see IR, para 459). As it seems to me, it is therefore not possible to say what proportion of the order land consists of non-qualifying land. 46 So far as concerns the non-qualifying land, Mr Maurici referred to and sought to rely on sections 160(1)(a), 160(4) and 162(1)ofthe1993 Act and submitted that, since the non-qualifying land was required as part of the order land for the purpose of the agency achieving its objects or for purposes D incidental to that purpose, section 160(4) and section 162(1) empowered the agency to acquire the non-qualifying land compulsorily, on being authorised to do so by the Secretary of State, notwithstanding that it did not come within the terms of section 159(1). Mr Maurici submitted that by having recourse to section 160(4) in respect of the non-qualifying land the Secretary of States overall decision-making could be rendered lawful and the E conrmation of the order would thus be valid. He therefore submitted that, since the otherwise ultra vires decision-making could be rendered lawful in this straightforward way, I should exercise my discretion against making a quashing order. In my view, to take such a course would be exceptional: see Berkeley v Secretary of State for the Environment [2001] 2 AC 603, 616, per Lord Ho›mann. 47 However, as Mr McCracken pointed out, the agency had made it F perfectly clear, in both opening and closing its case at the inquiry, that its case was that the objects of the agency would be furthered by the compulsory acquisition of the order land because the whole of it came within the description specied in section 159(2)(b). He submitted, correctly, in my view, that it would be wrong for me to uphold the order on what would be, in e›ect, a di›erent basis (i e that part of the order land came G within the description specied in section 159(2)(b) and that the balance, including the claimants property, could be acquired under section 160(4)) because such an approach (i) would involve a degree of usurpation of the function of the specialist decision maker and, more importantly, in my view, (ii) would deprive the claimant and other objectors of the opportunity to challenge the new basis for the agencys intervention and to present evidence upon it. H 48 Given the nature and condition of the claimants property and its location at the very edge of the order land, it seems to me that a successful challenge to the argument that its compulsory acquisition was for the purpose of achieving the agencys objects or for purposes incidental to that purpose cannot be dismissed as fanciful, particularly if its immediate 906 Pascoe v First Secretary of State (QBD)[2007] 1 WLR Forbes J neighbourhood also consists of land that is not unused or ine›ectively used. A It is important to bear in mind that, in this context, the claimants land (and possibly some of the neighbouring land) does not itself form part of an area (i e the order land) that has been found to be under-used or ine›ectively used. 49 For those reasons I prefer Mr McCrackens submissions on this aspect of the matter and I reject the arguments put forward by both Mr Maurici and Mr Cameron. In my view, the error made by the Secretary of State in conrming the order in respect of order land that had only been B found to be predominantly under-used or ine›ectively used cannot properly be remedied by recourse to section 160(4) of the 1993 Act. It therefore follows that, for the foregoing reasons, this rst ground of challenge succeeds.

Ground 2 C 50 The second ground of challenge is pleaded in the following terms: The rst Secretary of State erred in concluding that the interference with the claimants Convention rights under article 8 and article 1 of Protocol 1 was justied. The order is incompatible with her Convention rights and is therefore unlawful under section 6 of the Human Rights Act 1998. D 51 Article 8 of the ECHR provides: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is E necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 52 Article 1 of the First Protocol to the ECHR is in the following terms: Every natural or legal person is entitled to the peaceful enjoyment of F his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions G or penalties. 53 It was common ground that the order does constitute an interference with the claimants rights under both articles since it deprives her of her home. It was also common ground that the onus is on the public authority to justify that interference with the claimants rights. 54 I accept Mr McCrackens submission that if (as I have held to be the case) the Secretary of State did err in conrming the order for the reasons H given above when dealing with the rst ground of challenge, it follows that the interference in question is not in accordance with the law, is therefore not justied and constitutes a breach of section 6(1) of the Human Rights Act 1998. Thus, in consequence of my conclusion on the rst ground of 907 [2007] 1 WLR Pascoe v First Secretary of State (QBD) Forbes J

A challenge, this second ground of challenge must also succeed on that basis in any event. Accordingly, in the paragraphs that follow I propose to set out my analysis and conclusions on this second ground of challenge on the assumed basis that I was wrong to uphold the rst ground of challenge for the reasons that I did. 55 Although article 8 and article 1 of the First Protocol are di›erently worded in terms of justication, I accept that the e›ect of each is very B similar: see Chapman v United Kingdom (2001) 33 EHRR 399. Article 8 requires any interference to be necessary in a democratic society in the interests of a number of listed aims that include the economic well-being of the country and the protection of the rights and freedoms of others. The latter has been held to include the preservation of the environment and the giving e›ect to environmental policy more generally: see Chapmans case, C at paras 80—82. 56 As pleaded in para 50 of the grounds, it is accepted by the claimant that the agencys legitimate aim is to regenerate the Edge Lane Area. In my view, that is an aim that is clearly encompassed by the expression the economic well-being of the country and I also accept that the regeneration of Edge Lane would give e›ect to numerous environmental policies. It is D beyond argument that both the inspector and the Secretary of State fully understood that the purpose of the order was to achieve the regeneration of the Edge Lane area. I therefore do not accept Mr McCrackens submission that neither the Secretary of State nor the inspector identied which legitimate aim was relied upon for the purposes of article 8. 57 Mr McCracken submitted further that for an interference to be necessary in a democratic society, the interference must be proportionate E to the aim pursued. It was Mr McCrackens submission that the word necessary in the context of article 8 does not have the exibility of meaning of such expressions as useful, reasonable or desirable, but implies the existence of a pressing social need for the interference in question: see Dudgeon v United Kingdom (1981) 4 EHRR 149. 58 Central to his submissions on this ground of challenge was F Mr McCrackens contention that it is well established that the means used must be no more than that which is necessary to accomplish the objective: i e in this case, in order to be necessary the means used to achieve the legitimate aim of the regeneration of the Edge Lane area must be the least intrusive of the claimants Convention rights that can be devised in order to meet that aim. 59 In support of that submission, Mr McCracken referred to and relied G on R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, Samaroo v Secretary of State for the Home Department [2001] UKHRR 1150 and R (Baker) v First Secretary of State [2003] EWHC 2511 (Admin). 60 In the course of his speech in Dalys application [2001] 2 AC 532, para 27, Lord Steyn said: The contours of the principle of proportionality are familiar. In de H Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 the Privy Council adopted a three-stage test. Lord Clyde observed, at p 80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself: whether: (i) the legislative objective is su–ciently important to 908 Pascoe v First Secretary of State (QBD)[2007] 1 WLR Forbes J

justify limiting a fundamental right; (ii) the measures designed to meet the A legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective. 61 In his judgment in Samaroos case [2001] UKHRR 1150, paras 19—20, Dyson LJ put the matter in this way: B 19. . . . in deciding what proportionality requires in any particular case, the issue will have to be considered in two distinct stages. At the rst stage, the question is: can the objective of the measure be achieved by means which are less interfering of an individuals rights? 20. At the second stage, it is assumed that the means employed to achieve the legitimate aim are necessary in the sense that they are the least intrusive of Convention rights that can be devised in order to achieve the C aim. The question at this stage of the consideration is: does the measure have an excessive or disproportionate e›ect on the interests of a›ected persons? 62 Mr McCracken submitted that Dyson LJs formulation in Samaroos case was clearly consistent with the principle enunciated by Lord Steyn in Dalys application and had been expressly followed by Nicholas Blake QC, D sitting as a deputy High Court judge, in Bakers application [2003]EWHC 2511 (Admin). On the issue of proportionality, Nicholas Blake QC posed the question, at paras 43 and 45: 43. . . . was it the only alternative, or, to adopt the words of Samaroos application, was it the least intrusive means of securing the public interest? E 45. That consideration has to be reected in the decision-making process. Proportionality is not simply whether at the end result the balance is fair, but whether, in getting there, it has been decided that the most appropriate course of conduct is also the least interfering with human rights, having regard to the public benet to be achieved and the di›erent means of achieving it. F 63 Mr McCracken submitted that neither the inspector nor the Secretary of State had properly applied the proportionality test in respect of the interference with Convention rights in this case nor, for that matter had there ever been a proper consideration of the human rights issues by the agency, the inspector or the Secretary of State. Mr McCracken referred to the agencys board minutes for 22 September 2004 and suggested that there G had been only a cursory consideration of the human rights issue in this case. He submitted that the section in question consisted of nothing more than a mere recital of the most basic principles and the bald conclusion that any interference with human rights was considered to be justied in order to secure the desired regeneration and the public benets that the regeneration proposals would bring and that the proposed compulsory purchase order would strike a fair balance between the public interest and private rights. H Mr McCracken suggested that the agency appeared only to have considered the area as a whole and that it had made no assessment of any individual human rights and that the agencys statement of reasons and statement of case were similarly decient. 909 [2007] 1 WLR Pascoe v First Secretary of State (QBD) Forbes J

A 64 Mr McCracken referred to the inspectors report and to the Secretary of States decision letter and submitted that treatment of the human rights issue by both the inspector and the Secretary of State had also been very cursory and consisted of little more than bald statements to the e›ect that the interference would be proportionate and that a fair balance would be struck between the public interest and the private interests. Mr McCracken argued that neither had engaged with the issue of whether B the legitimate aim could be achieved by less intrusive means and submitted that, as a result, both had failed to apply the proportionality test properly. In short, he submitted that the order had been made without any, or any adequate analysis of the interference with the claimants Convention rights (a further important aspect of which was the exclusion of the claimant from the housing market that it is said will result from the inadequacy of C compensation for property in this area of housing market failure and that the interference was disproportionate and not justied. 65 I agree with Mr Mauricis observation that, so far as concerns the second ground of challenge, the real focus or the central point of the claimants case is the alleged lack of proportionality that the interference with the claimants rights under both articles gives rise to. I also agree with Mr Mauricis submission that the claimants case on this aspect of the matter D rested on the following three main points: (i) that less intrusive alternatives were not considered; (ii) that there had been a failure to consider properly the human rights issues; and (iii) that compensation will be inadequate. However, before turning to consider each of these matters, it is necessary to refer rst to four key points made by Mr Maurici (and adopted by Mr Cameron) with regard to the relevant legal context. E 66 Mr Maurici submitted rst that the policy requirement that a CPO will not be conrmed unless there is a compelling case in the public interest (see also para 17 of the Circular quoted in para 18 above) fairly reects the necessary element of balance required in the application of article 8 and article 1 of the First Protocol to the ECHR: see Bexley London Borough Council v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 323 at [33]—[48]. Accordingly, there is no F requirement to set out in a formulaic way the extent to which rights are interfered with. The inspectors report and the Secretary of States decision letter should be read as a whole in order to determine whether the necessary balancing exercise has been properly carried out. I accept that submission as correct. 67 Mr Mauricis second key point was that there is a wide margin of G appreciation in relation to both articles in terms of proportionality: see, for example, James v United Kingdom (1986) 8 EHRR 123 and Blecic« v Croatia (2004) 41 EHRR 185. Again, I agree with that submission. 68 Mr Mauricis third key point was, as it seems to me, a crucial one in the context of this particular ground of challenge. It was Mr Mauricis submission that a measure can be proportionate even if it is not the least intrusive means possible. In order to make that point good, Mr Maurici H referred to a number of European and domestic authorities, to the main ones of which I now turn before expressing my conclusion with regard to this particular point. 69 James v United Kingdom 8 EHRR 123 is a case that concerned an alleged violation of article 1 of the First Protocol in the context of leasehold 910 Pascoe v First Secretary of State (QBD)[2007] 1 WLR Forbes J enfranchisement legislation. The European Court of Human Rights held A that the state enjoys a wide margin of appreciation when deciding upon social and economic measures (see para 46). The applicant argued that the expropriation of property could only satisfy the requirements of article 1 of the First Protocol if there was no other less drastic remedy to resolve the problem at which the legislation was aimed. That argument was rejected by 51 the court, at para : B This amounts to reading a test of strict necessity into the article, an interpretation which the court does not nd warranted. The availability of alternative solutions does not in itself render the leasehold reform legislation unjustied; it constitutes one factor, along with others, relevant for determining whether the means chosen could be regarded as reasonable and suited to achieving the legitimate aim being pursued, C having regard to the need to strike a fair balance. Provided the legislature remained within these bounds, it is not for the court to say whether the legislation represented the best solution for dealing with the problem or whether the legislative discretion should have been exercised in another way.

70 In Handyside v United Kingdom (1976) 1 EHHR 737, para 48 D the court observed that, in the context of article 10(2) of the ECHR, the adjective necessary . . . is not synonymous with indispensable . The court compared the position with that arising under article 6(1), where the words are strictly necessary, and article 2(2), where the words are absolutely necessary. As the Court of Appeal observed in R (Clays Lane Housing Co-operative Ltd) v The Housing Corpn [2005] 1 WLR 2229:asto E which, see below), it was these more rigorous tests that were rejected by the court in Jamess case in the context of article 1 of the First Protocol. 71 Handysides case was cited and applied by the European Commission of Human Rights in X v United Kingdom (1982) 28 DR 177, 184 in the context of rejecting a complaint of an alleged violation of articles 8 and article 1 of the First Protocol by reason of a CPO of a house under the Housing Act 1957.InHoward v United Kingdom (1985) 52 DR F 198, the public interest (including the rights of future homeowners) was found to be capable of outweighing the interests of existing homeowners where the land was to be acquired for redevelopment. 72 In R (Fisher) v English Nature [2004] 1 WLR 503, para 46 Lightman J said that, in the light of Jamess case: The fact that there may be other even better methods of achieving G the same ends does not necessarily mean that any particular measure is disproportionate under article 1 ... Lightman Js formulation was cited with approval by the Court of Appeal in the Clays Lane Housing case [2005] 1 WLR 2229, para 13, and his judgment was upheld on appeal: see [2005] 1 WLR 147. 73 I accept Mr Mauricis submission that the intensity of review H depends upon the particular context in question in a given case. I also agree that the Samaroo approach is not one of universal application. Thus, in the subsequent case of Lough v First Secretary of State [2004] 1 WLR 2557, the Court of Appeal made it clear that the Samaroo approach was not applicable 911 [2007] 1 WLR Pascoe v First Secretary of State (QBD) Forbes J

A in the context of decision making in the planning eld. At para 55 of his judgment in that case, Keene LJ put the matter in this way: I agree with Pill LJ that the process outlined in the Samaroo case . . . while appropriate where there is direct interference with article 8 rights by a public body, cannot be applied without adaptation in a situation where the essential conict is between two or more groups of private B interests. In such a situation, a balancing exercise of the kind conducted in the present case by the inspector is su–cient to meet any requirement of proportionality. 74 Similarly, in the Clays Lane Housing case [2005] 1 WLR 2229 the Court of Appeal distinguished Samaroos case and made it clear that the approach adopted in that case was not one of universal application. Like the C present case, the Clays Lane Housing case involved the compulsory expropriation of property, i e the compulsory transfer of land from one registered social landlord to another in the light of mismanagement. I agree with Mr Maurici that all the relevant case law in this area is very fully analysed in the Clays Lane Housing case. After making it clear that it was now established that Samaroo approach was not one of universal D application (see para 21), Maurice Kay LJ stated, at para 25: I conclude that the appropriate test of proportionality requires a balancing exercise and a decision which is justied on the basis of a compelling case in the public interest and as being reasonably necessary but not obligatorily the least intrusive of Convention rights. That accords with Strasbourg and domestic authority. It is also consistent with sensible E and practical decision making in the public interest in this context. If strict necessity were to compel the least intrusive alternative, decisions which were distinctly second best or worse when tested against the performance of a regulators statutory functions would become mandatory. A decision which was fraught with adverse consequences would have to prevail because it was, perhaps quite marginally, the least F intrusive. Whilst one can readily see why that should be so in some Convention contexts, it would be a recipe for poor public administration in the context of cases such as Lough v First Secretary of State and the present case. 75 I therefore reject Mr McCrackens submission that the means used to achieve the regeneration of the Edge Lane area must be the least intrusive of G the claimants convention rights. The Samaroo approach is not one of universal application and I approach the matter on the basis of the law as stated in the Clays Lane Housing case, in particular in para 25 quoted above. 76 Mr Mauricis fourth key point was that, other than in exceptional circumstances, compensation is required in cases involving the deprivation of property. However, he submitted, correctly, in my view, that the Strasbourg case law shows a marked reluctance to entertain allegations that H the quantum of compensation is inadequate, unless the method for its calculation is manifestly without any reasonable foundation: see Jamess case 8 EHRR 123, paras 53—55. 77 I now turn to consider the three main points on which the claimants case on this ground of challenge rested (see para 65 above). 912 Pascoe v First Secretary of State (QBD)[2007] 1 WLR Forbes J

1. The failure to consider less intrusive alternatives A 78 Mr Maurici submitted that this complaint should be rejected for the following reasons: (i) this matter was, in fact, considered by both the inspector and the Secretary of State and (ii) in any event, rejection of a less intrusive alternative does not of itself mean that there is a lack of proportionality. 79 Turning to the rst of these points, I accept that the inspector B did give extensive consideration to the issue of whether the regeneration aims underlying the order could be achieved by other means (see IR, paras 462—484) and that he concluded that there were no realistic existing alternative proposals capable of implementation. I am satised that this was a conclusion that the inspector was entitled to come to on the evidence that he heard and considered. As for the Secretary of State, in para 9 of his decision letter, he expressly agreed with the inspectors conclusion and went C on to say: Whilst various suggestions have been made as to how regeneration and improvements to the area could be achieved without the need for the demolition proposed, the Secretary of State agrees with the inspector that no realistic alternative proposals capable of implementation have been advanced. There are no alternative proposals that benet from extant D permissions or have funding, that are to be preferred to the existing comprehensive regeneration scheme whose delivery the order seeks to achieve. 80 In my view, the following extracts from the inspectors ndings are of particular importance on this aspect of the matter: E 462. BEVEL has put forward a number of ideas, suggestions or pointers as to potential solutions for consideration relating to the regeneration of the order land. But these are just that: they do not amount to rm alternative proposals either in respect of highway improvements or the refurbishment of particular properties or groups of properties. Nevertheless, these were considered at the inquiry. 463. Ideas for road improvement have been suggested involving far F less removal of the present frontage development. However, EPs evidence suggests that, for various reasons, those presented at the inquiry would be technically unworkable. As such, they would be unlikely to gain planning permission and funding. This rebuttal evidence has not been challenged and is to be preferred. Other ideas, such as upgrading of public transport links and Park and Ride, have been merely oated as G possible solutions to tra–c problems. No details of rm proposals, extant planning permissions or funding have been provided. 464. These ideas are all geared at retaining most of the existing built fabric surrounding Edge Lane West in the belief that this contributes to an essentially Victorian landscape worth saving in its own right; retention is seen be some objectors as providing the tting gateway entrance to the city that is desired and would assist in retaining the existing community. H Renovation and refurbishment of the existing housing stock, with minimal demolition to allow junction improvements, is suggested. 81 In accordance with the guidance in Appendix C to the circular, the inspector also considered whether the proposed regeneration was, on 913 [2007] 1 WLR Pascoe v First Secretary of State (QBD) Forbes J

A balance, more likely to be achieved if the land was acquired by the agency, including consideration of the contribution that acquiring the land was likely to make to stimulating and/or maintaining the long-term regeneration of the area (see IR, paras 472—484. In this regard, the inspectors key ndings were: (i) There are no other realistic alternative proposals aimed at providing the package of regenerational measures against which the present scheme can be compared. The scheme represents an integral element in B the regeneration of the wider area (see IR, para 472). (ii) The CPO is necessary as many individual pieces of land and properties remain to be acquired and to ensure that the scheme could proceed in a timely manner (see IR, para 481). (iii) The road corridor element of the scheme benets from detailed planning permission. It has received provisional funding allocation of up to a maximum of £15Á85m. Full funding approval is C expected if the CPO was to be conrmed. There is no contrary evidence to suggest that this would not be so (see IR, para 481). (iv) The other elements of the regeneration scheme are also well advanced. Outline planning permission exists relating to the development to either side of Edge Lane. A developer (Bellway) has been selected for the Wavertree Zone of Opportunity as part of the NewHeartlands HMRI to carry out the residential elements of the scheme. The company has substantial resources D to ensure implementation. A commercial developer (Langtree Group plc) has been appointed to carry out the commercial development. The Heads of Terms of an Overarching Agreement between Bellway, other developers and LCC have been agreed and a total of £40Á435m of funding is in place. Assembly of all the land is considered necessary for the realisation of the comprehensive regeneration scheme (see IR, para 482). (v) . . . it is E necessary for the whole of the land to be included in the order to provide the quantum and layout of development proposed to achieve the benets claimed . . . (see IR, para 483). 82 I accept Mr Mauricis submission that, on the whole, the alternatives listed in the claimants grounds as providing a less intrusive means of achieving the necessary regeneration merely repeat ideas that were oated and rejected at the inquiry as not practicable. On this aspect of F the matter, I am satised that the inspector and the Secretary of State made appropriate ndings of fact and planning judgments as to the alternative proposals and concluded that there were no realistic existing alternatives. I accept Mr Mauricis submission that those ndings and judgments cannot be said to be Wednesbury unreasonable or manifestly without reasonable foundation (the relevant Convention test in this context: see Jamess case G 8 EHRR 123). Accordingly, I am satised that the inspectors assessment (accepted in due course by the Secretary of State) that there were, in fact, no less intrusive alternatives to the proposed scheme was properly made. I reject Mr McCrackens submissions to the contrary e›ect. 83 Turning to the second point made by Mr Maurici on this aspect of the matter, I also agree that, even if a practical and less intrusive alternative means of achieving the required regeneration had been available, the H rejection of such an alternative in favour of the conrmation of the order does not, of itself, mean that there is any lack of proportionality. The case law cited above and, in particular, Jamess case and the Clays Lane Housing case [2005] 1 WLR 2229 make it clear that proportionality in this context does not compel the decision-maker to show that he has adopted the least

Vol 139 914 Pascoe v First Secretary of State (QBD)[2007] 1 WLR Forbes J intrusive alternative. As it seems to me, the views expressed by the Court of A Appeal in the Clays Lane Housing case (see the passage from para 25 of the judgment, quoted above) are very apposite in relation to CPOs aimed at delivering regeneration schemes such as the present. I am therefore satised that the balancing exercise carried out by the inspector and the Secretary of State in this case was su–cient to meet the requirement of proportionality. B 2. The failure to consider the human rights issues properly 84 The claimants case is that the order will have signicant e›ects on her personally and on her community that are not justied by its purported benets. It was Mr McCrackens submission that neither the inspector nor the Secretary of State had given adequate consideration to the claimants human rights and he emphasised the brevity of the specic references to that issue, describing its treatment by each as cursory. C 85 As I have already indicated (see paras 66 and 67 above), I accept that there is a margin of appreciation and that there is no need for a formulaic approach to the human rights balancing exercise, because the ordinary test of a compelling case in the public interest necessarily encompasses that exercise. I also agree with the following submissions made by Mr Maurici in the light of those propositions. (i) The inspector and the Secretary of State D both properly directed themselves as to the correct test to apply: see the references to the balancing exercise required by the circular and by the Human Rights Act 1998 in paras 430 and 495 of the inspectors report and para 11 of the Secretary of States decision letter. (ii) Extensive consideration was given to the benets of the scheme proposed. (iii) The inspector and the Secretary of State weighed against these benets the impact E of the proposals on both individual residents and the wider community: see paras 489 and 491 of the inspectors report and para 11 of the Secretary of States decision letter. (iv) Since the policy test of compelling reason in the public interest fairly reects the balancing exercise required by article 8 and article 1 of the First Protocol, this aspect of the matter should not be judged by simply considering the paragraphs in which there is specic reference to the human rights issues. The inspectors report and the Secretary of States F decision letter should be considered as a whole. 86 I am therefore satised that the human rights issues were properly considered by both the inspector and the Secretary of State. I reject Mr McCrackens submissions to the contrary e›ect.

The inadequacy of compensation G 87 This can be taken very briey. There is no doubt that compensation is payable. The amount payable will be determined in accordance with the compensation code applicable to all persons displaced from their homes as a result of a CPO. This compensation includes the market value of the house, a disturbance allowance and a home loss payment. 88 The compensation code has been held to comply with article 8 and article 1 of the First Protocol: see Howard v United Kingdom 52 DR 198. H Although it appears that the amount of the compensation will be adversely a›ected by the local housing market failure phenomenon, this does not of itself constitute an infringement of article 8 and/or article 1 of the First Protocol because the compensation will be for the value of what is taken 915 [2007] 1 WLR Pascoe v First Secretary of State (QBD) Forbes J

A (i e the market value). In addition, there are elaborate procedures in this case for assistance and additional compensation beyond that which is payable under the code. I am therefore satised that there is no substance in this particular point. 89 Accordingly, other than on the limited basis set out in para 54 above, I have come to the conclusion that this ground of challenge fails for the reasons expressed in paras 55—88 inclusive. B Ground 3 90 The third ground of challenge is pleaded in the following terms: The claimant was deprived of her right to a fair hearing under article 6(1) ECHR because of the unavailability of public funding for legal C representation. 91 Article 6(1) of the European Convention on Human Rights provides: In the determination of his civil rights and obligations . . . everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

D 92 I accept that the compulsory purchase procedure is a determination of the claimants civil rights: see R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, para 41 per Lord Slynn of Hadley. Article 6 is therefore engaged in this case. 93 Mr McCracken submitted that article 6 guarantees a right of e›ective access to court and that, therefore, compliance with the E Convention can require the provision of legal aid for an individual in an appropriate case. In support of that submission he referred to and relied on two cases: Airey v Ireland (1979) 2 EHRR 305 and Steel and Morris v United Kingdom (2005) 41 EHRR 403. 94 Aireys case 2 EHRR 305 involved divorce proceedings that had to be prosecuted in the High Court by means of a lawyer. The European Court of Human Rights found that the applicant did not enjoy an e›ective right of F access to the court (see para 28). The court pointed out that the absence of an express provision in the text of article 6 requiring the provision of legal aid in civil cases means that any implied obligation will be less extensive than the (express) right to legal aid in criminal cases. The court recognised that there may be occasions when appearing before a civil court in person would meet the requirements of article 6(1) and that there may be occasions when G that possibility secured adequate access even to the High Court (see para 26). However, the court noted that much must depend on the particular circumstances and went on to state as follows: article 6(1) may sometimes compel the state to provide for the assistance of a lawyer when such assistance proves indispensable for an e›ective access to court either because legal representation is rendered H compulsory . . . or by reason of the complexity of the procedure or of the case. 95 In the Steel and Morris case 41 EHRR 403 the principal complaint under article 6(1) was that the applicants had been denied a fair trial because of the lack of legal aid. The trial itself involved particularly heavy and 916 Pascoe v First Secretary of State (QBD)[2007] 1 WLR Forbes J notorious libel proceedings brought by the well-known fast-food chain A McDonalds against the two litigants in person. The proceedings achieved the dubious distinction of having been the longest ever civil trial in English legal history. The court held, at paras 59—62 and 69: 59 . . . the Convention is intended to guarantee practical and e›ective rights. This is particularly so of the right of access to court in view of the prominent place held in a democratic society by the right to a B fair trial. It is central to the concept of a fair trial . . . that a litigant is not denied the opportunity to present his or her case e›ectively before the court and that he or she is able to enjoy equality of arms with the opposing side. 60. Article 6(1) leaves to the state a free choice of the means to be used in guaranteeing litigants the above rights. The institution of a legal aid scheme constitutes one of those means but there are others, such as for C example simplifying the applicable procedure. 61. The question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicants capacity D to represent him or herself e›ectively. 62. The right of access to a court is not, however, absolute and may be subject to restrictions, provided that these pursue a legitimate aim and are proportionate. It may therefore be acceptable to impose conditions on the grant of legal aid based, inter alia, on the nancial situation of the litigant or his or her prospects of success in the proceedings. Moreover, it is not incumbent on the state to seek through the use of public funds to E ensure total equality of arms between the assisted person and the opposing party, as long as each side is a›orded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-¼-vis the adversary. 69 . . . in an action of this complexity, neither the sporadic help given by the volunteer lawyers nor the extensive judicial assistance and latitude F granted to the applicants as litigants in person, was any substitute for competent and sustained representation by an experienced lawyer familiar with the case and with the law . . . 96 The essence of the claimants case under this ground of challenge is that the compulsory purchase inquiry was so complex, lengthy and technical that she should have received funding for legal representation and the G services of professional witnesses at the inquiry, particularly in view of the fact that the agency was represented by experienced leading and junior counsel and a large and well resourced rm of solicitors. It is said that the need for funding was heightened by the importance of what was at stake for the claimant (namely, her home) and that the lack of sustained legal representation prevented the claimant from presenting her objections practically and e›ectively to the inspector, as compared with a well H resourced acquiring authority and thus contributed to an inequality of arms in breach of article 6. 97 Mr Maurici accepted that ordinarily Community Legal Funding (legal aid) is not available in respect of inquiries. However, exceptionally 917 [2007] 1 WLR Pascoe v First Secretary of State (QBD) Forbes J

A funding is sometimes provided: see, for example, what was said about this by Harrison J in R v Secretary of State for the Environment, Transport and the Regions, Ex p Challenger [2001] Env LR 12. 98 It appears that the claimant applied for but failed to obtain legal aid. The claimant then asked the inspector at a pre-inquiry meeting to make an order on behalf of the Secretary of State for the agency to pay her, and the other statutory objectors, a reasonable amount to cover her legal costs. This B was referred to as a pre-emptive application for costs. The subsequent history relating to this application, its outcome and the way the matter was dealt with by the inspector in his report is accurately summarised in paras 96—101 of the written skeleton argument prepared on behalf of the Secretary of State: 96 C . The inspector invited submissions from [the agency] on the point. [The agency] responded by letter dated 22 July 2005 to the e›ect that the Secretary of State should not order [the agency] to fund the objectors but in the alternative, should he be minded to do so, those funds should be limited to £20,000 and be directed to an accountable body to ensure its fair distribution amongst the community as a whole. 97. The inspector wrote to the claimants solicitor by letter dated D 27 July 2005: see TB/5/2/2526 and also IR/1—4 and 493, stating inter alia: The starting point in the published policy is that the parties at inquiries normally meet their own expenses, as stated in Circular 8/93, Annex 1,para1. In the case of CPOs, awards of costs are normally made to successful, or partly successful, statutory objectors, the award to be paid by the order-making authority or agency . . . Because of the nature E of these awards which follow the event (as distinct from a costs award on the grounds of a partys unreasonable behaviour), applications have to be made formally to the Secretary of State so that the inspector is not expected to hear submissions and report separately on costs. In this case the inquiry has yet to open. I am conscious that I will be reporting to the First Secretary of State on the substantive issues arising, evidence on which has yet to be heard. While I am holding pre-inquiry meetings to F prepare for the smooth running of the inquiry, I cannot stand in the shoes of the Secretary of State when it comes to matters outside my remit. I therefore conclude that it is inappropriate for me to consider or comment on the intended application for a costs order, and the related legal arguments, which should properly be addressed to the First Secretary of State . . . G 98. The inspector then proceeded, in the same letter, to provide the correct postal and e-mail addresses for the Secretary of States o–ce in the north-west (GONW). 99. The narrative of events is then taken up in the IR at IR/166—169, where the inspector summarises the case for [the agency] on equality of arms: 166. During the course of cross-examination Ms Pascoe stated that she had written to the GONW (E Pascoe cross-examination, day 5). H GONW indicated that it had received no such request (EP/25). When it was put to her that Eversheds had checked with the GONW and that the Government O–ce had indicated that they had received no such request or application, Ms Pascoe said that she would try and nd a copy of her letter. She indicated that she would have di–cultly nding the letter. 918 Pascoe v First Secretary of State (QBD)[2007] 1 WLR Forbes J

During the course of cross-examination it was made plain to Ms Pascoe A that the onus was on her to demonstrate that she had written such a letter. 167. Ms Pascoe later indicated that she did not send a letter to Mr Ashton at the GONW (E Pascoe, verbal comment, day 8). She then said that she sent it directly, but was not clear as to whether that letter related to funding or to a request that the planning applications relating to the order land be called in. Ms Pascoe accepted that she did not go B through the proper procedure. She then suggested that she may have asked Jane Kennedy MP to make the request to the FSS. 168. Ms Pascoe indicated that she was considering whether it was appropriate for her to make any letter she had written or received on the issue of costs available to the inquiry or whether she should produce it in support of a statutory challenge at a later date. The inspector indicated that if Ms Pascoe had evidence that a written request had been made to the C FSS to make a pre-emptive award of costs he would need to have it before the close of the inquiry. The inspector stated to Ms Pascoe that the ball was in your court. In her e-mail dated 23 October 2005, Ms Pascoe says that . . . but as I knew the answer would be no from GONW I didnt bother with that route, but delegated to Jane (Jane Kennedy MP), who may or may not have tried it. (copy of e-mail D within le 5 accompanying BEV/28). 169. It appears that Ms Pascoe did not make a request to GONW, but may have asked Jane Kennedy MP to make a request for funding on BEVELs behalf. There is, however, no evidence that Ms Kennedy did make an application to the FSS on BEVELs behalf. In the absence of evidence that an application was made to the FSS for a pre-emptive award of costs, it must be concluded that the objectors failed to take the most appropriate course of action E available to them to secure funding. 100. The inspector reached the following conclusions in this regard at IR/493 (see also IR/1—4): I indicated that consideration of the possible pre-emptive award of costs to address this matter was beyond my remit but that should there be an inclination to pursue this further then an application should be made directly to the FSS. There is no evidence to F suggest that such an application was in fact made [165—169]. As this is in e›ect a legal matter I make no further comments upon the absence or otherwise of such an application. 101. The Secretary of State in the DL said at DL/6: The Secretary of State also notes that there was some discussion at the inquiry over the question of a possible claim for inquiry costs from the group BEVEL (Better Environmental Vision for Edge Lane) under the First Secretary of G States discretionary power of section 250(5) of the Local Government Act 1972. The Secretary of State notes that no such claim has been made from BEVEL or from any other party. 99 In short, the inspector declined to make the order and suggested that the application should be addressed directly to the Secretary of State and provided the correct details to enable that to be done. It appears that no H application was actually made to the Secretary of State in the event. 100 Mr Maurici submitted (correctly, in my view) that there are three reasons of principle that support a restrictive approach to examining any obligation to provide legal aid in civil cases. 919 [2007] 1 WLR Pascoe v First Secretary of State (QBD) Forbes J

A 101 First, as the court observed in its judgment in Aireys case, the absence of an express provision in the text of article 6 requiring the provision of legal aid in civil cases means that any implied obligation will be less extensive than the (express) right to legal aid in criminal cases. 102 Second, where there is no express obligation to provide legal aid in civil cases, the Convention leaves contracting states with a free choice of means of ensuring that there is an e›ective right of access to court: see B Aireys case 2 EHRR 305, para 26. It is relevant that the tribunal conducting a hearing takes steps to ensure that the individual is not disadvantaged in presenting his or her case e›ectively and goes into matters in care and detail to ensure that the case is understood. This will be particularly relevant as a factor in the context of an inquisitorial procedure such as applies in a planning inquiry, in which the task of the inspector is to get to the real facts C and form his own judgment in the light of his own inquiry: see the observations of Sullivan J in R (Hadeld) v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 1266 (Admin) at [50] and [51]. 103 Third, as the court and the Commission have recognised, contracting states do not have unlimited resources to fund legal aid systems for civil cases, and therefore measures to allocate the available resources to D where they are most needed are in principle legitimate: see, for example, Winer v United Kingdom (1986) 48 DR 154. 104 Mr Maurici submitted that neither Aireys case nor the Steel and Morris case was analogous to the present case. I agree. The High Court proceedings in Aireys case required the presence of a lawyer and Steel and Morris 41 EHRR 403 was a quite exceptionally heavy case by any E standards. Both cases involved civil litigation of the conventional, adversarial kind, in contrast to the inquisitorial approach of the inspector in the present case. The di›erence for the purposes of article 6 between inquisitorial and adversarial procedures was rightly and helpfully emphasised by Sullivan J in Hadelds application [2002] EWHC 1266 (Admin) at [50]: see also the decision of Harrison J in Ex p Challenger [2001] Env LR 12. F 105 In my view, Challengers case is a case with similarities to the present case. In Challengers case a complaint of inequality of arms was raised in the context of a forthcoming inquiry concerning, inter alia, compulsory acquisition relating to the Thameslink 2000 rail project. At the pre-inquiry meeting, third party objectors argued that the issues to be determined were so complex and technical that they should be given funding G for representation. The inspector indicated that he would go to great lengths to assist those unfamiliar with the process or those who were not represented to the same degree as the principal parties. The inspector also suggested that the objectors either apply to the Legal Services Commission or write to the Chief Planning O–cer or the Secretary of State to request funding. An application was made to the Legal Services Commission and it was refused. However, no request was made to the Chief Planning O–cer or to the H Secretary of State. The applicants sought permission to apply for judicial review on the basis that the denial of legal funding was a breach of article 6(1). 106 Harrison J dismissed the application, holding that even in the absence of legal funding the claimants would have a reasonable opportunity 920 Pascoe v First Secretary of State (QBD)[2007] 1 WLR Forbes J to present their case given the duty of the inspector to facilitate the A participation of the public: see para 50. Aireys case was distinguished as the high water mark of Strasbourg jurisprudence, in which its nature and facts was to be distinguished from Challengers case: see para 47. 107 I have come to the conclusion that this third ground of challenge fails for two reasons. 108 First, in my view the Strasbourg case law upon which the claimant relies does not cover the circumstances of the present case for the following B reasons. (i) In both Aireys case and the Steel and Morris case, the applicants had exhausted all possible sources of funding. This was not the case here because neither the claimant nor anyone on her behalf contacted the Secretary of State to apply for costs as suggested by the inspector in his letter dated 27 July 2005. I accept the submission that the claimant did not face a closed door: a further avenue was suggested through which she might have C been able to secure funding, but she failed to take it. I do not accept that the inspector was under any obligation or duty to forward the claimants application to the Secretary of State of his own motion. In those circumstances, as it seems to me, it cannot be said that the claimant was deprived of the funding alleged to be necessary to ensure the right to a fair trial under article 6(1): see also Andronicou and Constantinou v Cyprus (1997) 25 EHRR 491, 556, paras 198—201. (ii) Neither Aireys case nor D the Steel and Morris case is analogous to the present case for the reasons explained above. I accept that inquiry procedures are designed to be more user-friendly and less complex than those found in the courtroom. Individuals are enabled to present their own cases, and inspectors will normally adjust the inquiry timetable to facilitate matters for those seeking to put their case. This was done here, with the inspector readily arranging E the timetable around the availability of BEVELs witnesses, even if this led to inconveniently long adjournments. (iii) In fact, the claimant was much better placed than many litigants in person so far as concerns being able to present her case, because she beneted from a considerable amount of legal assistance and other support from witnesses and experts in an inquisitorial rather than an adversarial procedure: contrast the position of Mr McVicar in McVicar v United Kingdom (2002) 35 EHRR 566. F 109 Second, looking at the nature and facts of the present case, I am satised that the claimant was in fact given a reasonable opportunity to present her case, which is the essence of the requirement of equality of arms: see Dombo Beheer BV v The Netherlands (1993) 18 EHRR 213, para 33. I reach that conclusion based on the following principal facts. (i) The claimant received the benet of assistance from the inspector and a G solicitor in the period before the inquiry. The claimants solicitor, a leading expert in compulsory purchase law, drafted a letter of objection in response to the agencys statement of reasons. Counsel for the claimant drafted for her the application for pre-emptive costs that was submitted at the pre- inquiry meeting on 22 July 2005. (ii) During the inquiry itself, the claimant had at various times the assistance of two barristers, acting pro bono, who attended the inquiry for three days, cross-examined some of the agencys H witnesses and submitted opening and closing submissions to the inquiry. (iii) The claimant has a diploma in architecture and a degree in environmental science. She would therefore have had a much better grasp of the issues at the inquiry than would the ordinary lay objector. (iv) Another 921 [2007] 1 WLR Pascoe v First Secretary of State (QBD) Forbes J

A statutory objector, Mr Gwynne, who assisted the claimant at the inquiry and cross-examined a number of the agencys witnesses, holds professional qualications in architecture. The claimant clearly beneted from his expertise during the inquiry. (v) Despite her limited resources, the claimant was able to obtain evidence and/or appearances from many witnesses, including several high-calibre public interest groups, academics and local politicians. (vi) Eversheds, the solicitors acting for the agency, provided B substantial administrative and technical support to the claimant before, during and even after the inquiry. This was done free of charge. The details are set out in the witness statement of Ms Naylor at paras 12.1 to 12.8.Itis clear that the claimant received very considerable assistance in this way (estimated at approximately 75 hours in all). (vii) Although additional evidence was served by the agency on the penultimate day of the inquiry, the C claimant did not seek an adjournment and, in the event, the claimants witnesses successfully responded to the evidence by e-mail to Eversheds on the last day of the inquiry (27 October 2005). Further, it is clear that the inspector for the claimant had the benet of seeing the evidence served by the agency on 26 October 2005 before drafting the closing submissions on the claimants behalf. (viii) There is no substance in the other alleged D disadvantages to which Mr McCracken made reference during his submissions for the reasons given in Mr Mauricis written note of his submissions, at p 18, paras 63.9 and 63.10: 63.9. The non-disclosure of the Kensington [Neighbourhood Renewal Assessment ] NRA condition schedule: again this is put forward as a particular circumstance where lack of sustained representation E counted (or may have counted against) the claimant but: (a) Non- disclosure of NRA condition schedule only discussed once at inquiry when [the agency] gave explanation of city councils positionand Mr Zwart [the claimants pro bono inspector] presentso at key moment representedcould have pursued via section 250 [of the Local Government Act 1972] if considered necessary, issues re non-disclosure of documentation considered in Mr Zwarts closingso aware of F positionmade no application at any time; (b) Not alleged conclusions in [the inspectors report] could not be reached without this evidenceor unfair not provided; (c) Not even referred to in grounds as pleaded (by Mr Zwart) as an example of inequality of arms. 63.10. The failure to pursue the housing market failure/ compensation/human rights point: claimant had objection drafted by G Mr Brand CPO specialist, [an] editor of [the Compulsory Purchase Encyclopaedia] and assistance and closing submissions from two barristers specialising in eldnot raise point for good reason (see above). 110 I therefore accept that the inspectors own assessment of the equality of arms issue is both fair and accurate; see para 494 of his report: H In respect of the inquiry itself, I am satised that its running allowed the objectors fairly and reasonably to present their case with the resources available to them. These resources included advice from, and the attendance on two days of, inspector, acting on a pro bono basis, who chose to cross-examine two of EPs witnesses. Closing submissions were 922 Pascoe v First Secretary of State (QBD)[2007] 1 WLR Forbes J

also prepared on BEVELs behalf by counsel. The inquiry programme A was arranged to allow BEVEL witnesses to attend when convenient to them. Although fresh evidence was produced throughout the course of the inquiry (on behalf of both EP and the objectors) this was perhaps inevitable in the light of the nature of the case and examination and cross- examination of witnesses as the inquiry progressed. There were no requests for any substantive adjournments to allow new material to be studied. B 111 Accordingly, for those reasons, I am satised that the third ground of challenge fails.

Conclusion

112 For the reasons already given, I have come to the rm conclusion C that this challenge succeeds on both ground 1 and ground 2 (to the limited extent indicated in para 54 above). I will hear further submissions from counsel as to the appropriate form of order and with regard to any consequential applications.

Order accordingly. D Solicitors: Public Interest Lawyers, Birmingham; Treasury Solicitor; Eversheds LLP, Manchester; Berwin Leighton Paisner. Reported by Thamala Perera, Barrister

E

F

G

H Appendix 12 – Legal Position on P ACT DCO vs TCPA PP

The Yorkshire and Humber CCS Cross Country Pipeline 151

WHAT IS THE EFFECT TO THE AUTHORISED DEVELOPMENT OF PLANNING PERMISSION BEING GRANTED FOR QUARRYING OPERATIONS AND THOSE OPERATIONS BEING UNDERTAKEN PRIOR TO THE AUTHORISED DEVELOPMENT BEING CARRIED OUT?

Background

During the course of the compulsory acquisition hearing held on Thursday 5 February 2015, submissions were made by Mr Ratcliff and Mr Watts in relation to a planning application having been submitted to allow quarrying activities to be carried out to the immediate south of Barf Hill Wood in an area to be crossed by the authorised development. In particular, National Grid was asked to consider and respond on the question of how the authorised development and the draft development consent order (DCO) are affected by quarrying operations being undertaken prior to the authorised development being carried out. National Grid understands that the position in relation to the application is that it was originally registered on 12th December 2014 and, at first, invalidated by the minerals planning authority (East Riding of Yorkshire Council - ERYC) for lack of an accompanying environmental statement. The application has since been transferred into a request for a scoping opinion and was registered by ERYC on the 12th January 2015. The application has been devised and submitted after the submission of the application for development consent for the Yorkshire and Humber CCS Cross Country Pipeline (the Onshore Scheme), and following many years of statutory and non-statutory consultation on the Onshore Scheme. Assumption as to planning permission

National Grid has not yet lodged an objection to the planning application in question, given that at this stage it is being treated as a request for a scoping opinion, and this response is without prejudice to a decision whether or not to object, and if an objection is made what the content of that objection would be. It is very likely that National Grid would have to lodge an objection to any such planning application. Operations required prior to laying the pipeline in the event that there has been quarrying activities

In the event that planning permission for the quarry is granted and quarrying operations have been carried out in advance of laying the pipeline, the land that had been quarried within the order limits would need to be re-instated together with additional land to the extent required to ensure ground stability for the safe carrying out of construction operations within the order limits. Construction programme and related time limits

Evidence has been provided by National Grid as to the likely timescales within which the authorised development for the Onshore Scheme would be carried out, accommodating the construction programme for the White Rose Power Project (WRPP), and the need to obtain the Final Investment Decision (FID) and mobilise the construction contractors. In all, assuming a positive decision to grant the DCO in Q4 2015, and a FID at the end of Q2/beginning of Q3 2016, and the resulting correlation with WRPP, it is very unlikely that construction activities will be carried out in the vicinity of Barf Hill Wood before 2018 although works in this area might not actually commence until 2019-2021. In the event that a planning permission is granted for quarrying operations at land to the south of Barf Hill Wood during the course of 2015 then the operator would have a substantial period of time in which to carry out those operations and frustrate the delivery of a nationally significant infrastructure project. It is noted that the proposal is for operations to span a 12 year period, which conflicts directly with the programme for delivery of the authorised development.

Authorised development under the draft DCO for the Onshore Scheme

Schedule 1 of the draft DCO (document reference 3.1) as applied by the definition of “authorised development” under article 2, sets out what is the authorised development subject to the draft DCO. The individual work numbers for the pipeline elements of the authorised development1 do not include reference to activities that would need to be carried out were the quarrying activities to have been carried out. Within the “Further Associated Development” in Schedule 1 items (d)(vi) and (d)(viii), (g), (h) and (n) include operations that would include localised ground stabilisation work, but not to the extent that would be required as a result of advance quarrying operations. This is not surprising given the importance during the routeing studies to avoiding the working quarry and routeing through virgin ground. The draft DCO also includes powers of compulsory acquisition. These powers, in this area, are to take permanent rights related to the authorised development, and which coupled with the exercising of temporary possession powers, could be used to prevent the carrying out of quarrying operations within the order limits. This would not control activities beyond the order limits. Extent of environmental impact assessment

The environmental impact assessment (EIA) and habitats regulations assessment (HRA) have not contemplated the carrying out of substantial works to prepare ground previously excavated for quarrying operations. The EIA and HRA do not assess the effects of those operations (for the reasons stated above). In contrast, the localised operations referred to as being permitted by Schedule 1 of the draft DCO have been taken into account as part of the EIA and HRA. Summary of impact

In the event that planning permission were granted and implemented for the quarrying operations within the order limits prior to National Grid taking possession of the order lands for the carrying out of the authorised development then the

1 see by way of specimen example work numbers 5B‐5J delivery of this nationally significant infrastructure project would have been frustrated. National Grid does not have the power under the draft DCO to carry out the substantial earthworks and ground preparation works necessary to remediate the effects of prior quarrying operations. It would not be appropriate to allow a quarrying operator to carry on activities in this location to the detriment of a nationally significant infrastructure project pursued in accordance with NPS EN-1. ERYC, when determining a planning application for quarrying operations in this location, would need to attach very significant weight to the effect of those operations on the Onshore Scheme. Specifically, the frustrating effect it would have on the ability to deliver the authorised development. The Mining Code, sitting within the compensation code, applies to this project, and as such any party with a relevant interest can seek compensation for the effect of the authorised development on the land through which the pipeline is to be laid. This general compensation entitlement can include the loss of opportunity to extract mineral deposits, subject to due process and the consideration of appropriate evidence before the Upper Tribunal (Lands Chamber).

National Grid Carbon Limited 13 February 2015