The Heysham to M6 Link Road

Application for Development Consent to complete the Heysham to M6 Link Road Reference TR010008

Unique reference no: 10015136

Comments on responses to ExA second questions

Further submissions arising out of Hearings 10-12 July

This submission covers comments on responses to ExA second questions, due by 25 July, and further submissions following on from the Hearings in which I was involved, 10-12 July, which it is understood can be made up to 6 August. These are covered jointly under the following subject headings:

1. European sites and protected species 2. Halton traffic flow remodelling 3. Variable demand and induced traffic 4. Alterations to J34 5. Changes in travel behaviour

1. European conservation sites and protected species

This section comments on the Natural England (NE) response to ExA’s second questions, and on related issues that arose at the Hearings. The three issues – Otters (ExA Q6), European Protected Species (EPS) with particular reference to bats (ExA Q7), and SAC assessment (ExA Q8) are taken in turn.

1.1 Otters

In my response to NE’s WR (May 2012) I noted that NE had said that they were “content” with the level of survey work on otters, and commented that “NE’s approach should in my view be rather more searching than appears to be the case, given the levels of otter activity observed on this stretch of the river.” Subsequent events have borne this out: the current difficulties over shadow licensing stem directly from the decision in 2009, reported in the ES, not to undertake any further otter survey work as part of the ES. There have been failings by all parties:

 NE advises that “8.1 Surveys should not be over 2-3 years old for medium to high impact schemes or multi-plot or phased developments.”

(http://www.naturalengland.org.uk/ourwork/planningdevelopment/spatialplanning/standi ngadvice/faq.aspx#q5 : FAQs on protected species)

 NE’s standing advice on otters states under survey requirements that “4.2 Otter activity is subject to seasonal variation. Consequently, adequate survey effort should be undertaken throughout the year as appropriate to the scale of the development in order to determine the scale of the impact(s) and any necessary mitigation requirements. Further guidance on survey requirements can be found in the Design Manual for Roads and Bridges”. The DMRB reference is to Vol 10 section 4, HA 81/99. This states:

7.11 It is important to identify potential otter populations and habitat when different routes are still being considered. When the preferred route is finally selected then detailed surveys should be conducted and repeated on a regular basis before and during construction. If the project is delayed then the area will need to be re-surveyed as in 7.12. ... 7.12 The timing of any surveys to establish the presence or absence of otters is crucial to the accurate identification of a new or expanding otter population. The survey should be conducted at 3 month intervals over a period of one year to account for seasonal variations within otter activity. Otters may use different areas at different times of year and this must be taken into account. If the survey is conducted in the early stages of the project, it may be out of date when construction is due to commence... If a project is temporarily shelved, then the area should be re-surveyed as soon as the project recommences to make allowances for any change in conditions. Surveys should be postponed after periods of heavy rainfall and/or flooding to allow time for signs to re-appear.

The last full survey for otters took place in 2003, and a conscious decision was made in 2009 not to update the survey for the current ES. This flies directly in the face of the above guidance to conduct and repeat surveys on a regular basis once a preferred route has been selected, and to re-survey if the project is temporarily shelved. Not only was there a six year period between 2003 and the 2009 decision: the project was shelved after 2009.  As a result of the survey defects, the ES does not comply with EIA Regulations. TSLM has called for the Examination to be suspended until the defects have been remedied, but this has been rejected by the ExA. Instead there is the current attempt to bring the situation up to date by means of a shadow licence relying on information from scheme objectors and hurried site inspections during “periods of heavy rainfall and/or flooding”. What is really needed is 12 months of survey work to provide the level of information required for the ES to comply with EIA Regulations, in accordance with the Hardy HIgh Court decision (which is a specific reference in NE guidance on approaches to protected species – see http://www.naturalengland.org.uk/ourwork/planningdevelopment/spatialplanning/standin gadvice/legislation.aspx , section 3) 1.2 EPS, with particular reference to bats

Rather than enter the legal minefield too far, I have the following summary comments on NE’s response to Q7:

 NE twice invokes the concept of proportionality in its approach to assessment of the three tests for derogation under Article 16 of the Habitats Directive. “the justification required (to permit derogation through the licensing regime) increases with the severity of the impact on the species or population concerned”. NE do not state the provenance for this approach, which is not specified either in the Habitats Directive or the 2010 Conservation Regulations.  The basis for a proportional approach is in fact to be found in the EPS 2007 Guidance (eg I.2.4b, paras 53-58: II.2.4 para 26: III.1.2 paras 11 and 12): but it is hedged throughout with caveats that the basic purposes of the Habitats Directive and “strict” protection of species should not be undermined. A typical example is footnote 35, p20: “Coherence in this context means that flexibility and proportionality cannot be applied only when this seems convenient (for example only when granting derogations) but must at the same time be applied to the requisite measures for the effective protection of species under the strict protection system, so that overall implementation is in line with the objectives of the Directive.”  For the second derogation test on alternatives, proportionality has to be seen in the context of some very high hurdles to be satisfied in section III.2.2 of the 2007 guidance, reproduced in full in Appendix A. There must be certainty that there is no satisfactory alternative before allowing a derogation, and this is an overarching condition that all derogations must satisfy (34): recourse to Article 16 derogations must be a last resort (bold in original) (41): and another solution cannot be deemed unsatisfactory merely if it is inconvenient to the beneficiaries of the derogation – it must objectively be better in terms of protected species.  NE’s response to ExA Q7 argues that “there are always going to be alternatives to a proposal”. This is clearly incorrect: if a roof containing a bat roost needs rebuilding or it will collapse, there is no alternative to destroying the roost and rebuilding the roof (the alternative of allowing it to collapse would scarcely be an improvement for bat conservation). In any case, the requirement is to assess whether there is certainty that there is no satisfactory alternative, and in this NE’s criterion “to determine that a reasonable level of effort has been expended in the search for alternative means of achieving the development.” is decidedly weak.  It is then stated that NE will expect the applicant to demonstrate that other alternatives have been investigated, and to justify why the preferred route (sic) has been selected and alternatives are unsatisfactory (‘satisfactory’ in the response is assumed to be an error). In the present case, there is no evidence whatsoever that alternatives to bat roost destruction at Cottam’s Farm have been investigated at all, let alone a justification given to NE as to why they are unsatisfactory in terms that would satisfy the EPS guidance and thereby the test for derogation. This being the case, it is difficult to understand how NE could have issued a letter of comfort that a licence will be issued in due course as long as nothing changes.  NE also claim to be the arbiters of the test of ‘Imperative Reasons of Overriding Public Interest’ (IROPI). It is not clear that NE have the necessary expertise to pronounce on the extent to which issues of a social or economic nature can be defined as imperative, and it might be expected that they would seek independent assessment on this by bodies other than the applicant. There is no evidence that any such evidence has been sought or provided.  The Morge Supreme Court decision inevitably comes into the discussion along with Woolley/ East Cheshire. The case is clearly relevant in the criteria it establishes, but the decision itself is not. In the Morge case the issue was whether there was disturbance under Article 12(1)(b), which was a matter of dispute in the absence of precise legal definitions: and the decision was that it was for NE to pronounce on whether the degree of disturbance constituted a breach of Article 12(1)(b), possibly to the extent of rendering resting places unviable and thereby triggering a breach under Article 12(1)(d). The destruction of the bat roost at Cottam’s Farm under Article 12(1)(d) is not a matter of dispute – all parties agree that it will happen if the scheme goes ahead as proposed. The issue is therefore purely one of whether the derogation tests are satisfied.  As NE says in the response to Q7, “it is for the Secretary of State to determine the Development Consent Order (DCO) application in light of the three tests...”. My submission to the Examination, and thereby ultimately to the SoS, is that i. The destruction of the bat roost at Cottam’s Farm does not satisfy either the IROPI test or the test of no satisfactory alternative. ii. NE have not obtained, nor apparently made much effort to seek, the evidence it itself says it requires in order to conduct an assessment of the tests to its own satisfaction. iii. In these circumstances, the letter of comfort issued in April 2012 is without foundation, and NE would be “getting it wrong” (to use the words of Justice Collins in the Cornwall Waste case) if they were to grant of a licence to destroy the bat roost.

1.3 SAC assessment

NE’s case in response to ExA second question 8 is as discussed at the Hearing, that it is only necessary to conduct an appropriate assessment (AA) on the proposal for which approval is sought, not for options under consideration. This is in itself open to question, since the 2010 Conservation Regulations refer throughout to “a plan or project” requiring AA, and a plan can surely contain options: and the 2004 ADAS report referred to an AA being in preparation, which implies that it was regarded as necessary at the time (it was just never completed).

However, the essence of my case is that the western route should not have been discarded from any further assessment, and subsequently characterised as ‘unbuildable’ and ‘illegal’, purely on the basis that impacts on the integrity of the SAC/ SPA could not be excluded. It appeared to be accepted by all parties at the Hearing (10 July) that this ‘Stage 1’ assessment was what had been established by the ADAS report. The assertions that it would have been unbuildable and illegal could not be established without the AA, so the exclusion of a full assessment of a western route as the ‘next best option’ in the MSBC was unacceptable.

The Thames Water inquiry (reference sent email 19/7/12) Inspectors Report provides compelling support for this case. The Inspector concluded that "There is no indication (in the 2010 Conservation Regulations) that a scheme which requires an appropriate assessment should for that reason be considered unfeasible. I agree with the Environment Agency that a feasible option should not be excluded from consideration at the programme appraisal stage on the basis that an appropriate assessment would be required in the event that it is selected".1

NE and ADAS representatives were asked at the Hearing for their opinion on whether an AA would conclude that the integrity of the SAC/ SPA would be significantly affected by a western route. Both stated their opinion that it would, specifically in relation to protected bird species and the availability of grazing fields on the line of the western route. In my view very little weight should be attached to these opinions, which lacked any hint of the “best available scientific evidence” to support the conclusion. As stated in my WR, the test is significant impact on the integrity of the SAC, and the NE/ ADAS conclusion – as well as being unsubstantiated in itself – focussed rather narrowly on the impact on birds in the Lune Estuary and their relationship to adjacent fields.

The question of impacts on birds in the Morecambe Bay SAC is complex. As Assistant Project Manager to the NWWA Resources Study of 1978 – one of the first large scale EAs in Britain – I was involved in assessing the impact of large freshwater storage bunds within the bay itself, and impacts on the internationally important bird life was a significant issue in the assessment. The ‘obvious’ response was that the loss of large areas of intertidal mudflat would be highly detrimental to the conservation interests: but an alternative and credible scientific view was that the mudflats would re-form around the bunds, and with careful design there would be a significant habitat boost through the addition of large freshwater bodies.

I make no claim to determine the merits of competing arguments in that case, but this was clearly not a cut and dried case of inevitable adverse impact, in spite of being a far more substantial physical intrusion into the area of what is now the SAC, compared with some loss of areas of grazing fields alongside one part of the SAC. The resource of grazing fields is not completely lost, and the affected birds show no fidelity to given sites. Without better objective evidence of impacts, it is not in my view possible to express an opinion on the likely outcome of the appropriate assessment.

2. Halton traffic flow remodelling

 This is not a ‘sensitivity test’. A sensitivity test involves changing modelling assumptions to see how much the central forecast might change if the assumptions built into it are changed. In the Halton remodelling four of the five changes are not assumptions, but changes to the baseline model – extra network loading point, Low Road pinch point, Halton Bridge restrictions, 20 mph speed limit on High Road: two of these (Low Road pinch point, Halton Bridge restrictions) are fundamental errors that might be expected to have been picked up in the 7+ years that modelling has been undertaken, especially given that at the Hearing LCC (Mr Cleave 11 July) expressed surprise at the outcome of the 2010 modelling.  The only assumption that can be varied is the speed limit on Church Brow, which could remain at 30 mph or, as in the remodelling, have a 20mph advisory or mandatory speed limit. However, no sensitivity test has been presented to show how much the forecast

1 A fuller account of the Thames Water inquiry report will be prepared before 6 August, but time constraints do not allow it to be completed before w/b 30 July. traffic flow varies according to this assumption: we just have a new DM forecast with an advisory 20mph limit, and a new DS with a mandatory 20mph limit.  As I understand it from the Hearings, LCC do not now seek to present this as a sensitivity test on the previous traffic flow forecasts, but as a revised forecast. Even if as claimed the revisions do not affect wider flow forecasts outside a ‘Halton cordon’, this exercise cannot be presented in isolation. The LMVR will require adjustment: in principle, if the 2010 modelled flows validated well against observed flows, it is difficult to see how the 2012 modelled flows could be equally well validated. And the BCR will change because the flows shifted from Church Brow to the A683 – around 2000 vehicles per day (vpd: term will be used from now on, taken as synonymous with AADT) – would now add to flows through the A683/ M6 junctions, affecting travel times of all traffic through those junctions including that on the M6 slip roads.  The essential difference between the ‘2012’ modelling (referred to by LCC as ‘DM/DS test’) and that of 2010 (LCC refer to this as ‘DM/ DS’: these terms will be used from now on) is that DS to DS test flows on Church Brow reduce from 8000 to 5600 vpd, a reduction of 2400; whilst those on the A683 between Denny Beck and M6 J34 increase by 2000, from 7200 to 9200. This immediately signifies that 400 vpd in the DS-DS test, one-sixth of the reduction on Church Brow, simply disappear from the Foundry Lane/ Church Brow/ A683 ‘Halton West’ screen line, between the DS and the DS test (similar 500 vpd reduction between DM and DM test).  LCC’s WR para 5.2.10 (pdf p323) states that it was estimated that 3200 vpd on Church Brow in the DS forecast were travelling to/ from Caton/ A683 further east. The new modelling apparently shows that this flow transfers substantially to the A683, in two tranches:

i. The flow on A683 W of Low Road junction increases from 6000 vpd in the DM to 6800 in the DM test, presumably as a result of the Low Road pinch point and the advisory 20mph limit on Church Brow. This is paralleled by a reduction of 700 vpd in the flow along Church Brow DM (4600) compared with DM test (3900) ii. The A683 flow at the same location increases by a further 1300 vpd between the DM test (6800) and the DS test (8100): the only modelling difference on the route through Halton between the DM test and the DS test is the change from an advisory to a mandatory 20mph speed limit on Church Brow

 It is unclear how the advisory 20mph speed limit was modelled, but a comparison between a mandatory 30mph limit and a mandatory 20mph limit shows that the quarter mile along Church Brow would be at most 15 seconds slower at 20mph than at 30mph. I frankly do not believe that this time difference is sufficient to account for a shift to the A683 happening in the DM-DS test scenario which did not happen in the original DM-DS scenario.  In any case, it is not clear that reassignment is happening in the manner implied:

i. The DM test flow on Low Road between the Caton junction and Green Lane is 5500 vpd, only 100 vpd less than the DM Lune screenline flow on the same road (Heysham Forecasting Report Table 8-12 (pdf p124) Lune screenline item 6) ii. On Low Road between Green Lane and the edge of Halton the DM flow is 4300 vpd (Consultation, traffic flows local area map) compared with 4600 in the DM test

The 800vpd increase on the A683 between DM and DM test has therefore occurred without any significant reduction in traffic on Low Road between Halton and Caton. This is mathematically possible (see next bullet), but not solely by a shift in flows to and from Caton/ A683 further east.

 It is possible to determine turning flows on three-leg junctions where the flows on each leg are known, by a process of successive approximation (methodology will be provided if required). These throw up numerous anomalies, of which the following are examples:

i. Low Road/ A683 at Caton: In the DM, all but 50 of the 6000 vpd on A683 westwards travel to/ from A683 eastwards, whereas in the DM test the 800 vpd increase comes partly from a 500 vpd increase from A683 eastwards and partly from a 300 vpd increased turning movement to/ from Low Road: there is no obvious reason why there should be a sevenfold increase in DM-DM test traffic flows between Low Road and A683 westwards. ii. Green Lane/ Low Road/ Caton A683 eastwards: (there are no published DM/ DS figures for Green Lane) In both the DM test and DS test there is a substantial flow down Green Lane (mostly from Laverick Road, a back lane to Nether Kellet), of which 85-90% goes along Low Road to and from the A683 junction at Caton. At this junction 93-98% of the Low Road flow moves along A683 eastwards. This means that a flow of over 1000 vpd is moving along Green Lane/ Low Road/ A683 east: but there is little obvious local travel purpose for such a route.

iii. Low Road/ Denny Beck Lane: (there are no published figures for DM/DS flows on Low Road west of the junction) In the DM test there is not only the turning movement from Low Road west to Denny Beck Lane, which is part of the Foundry Lane rat run to J34; but also over 1000 vpd turning from Low Road east into Denny Beck Lane. The latter could be traffic from the eastern half of Halton, but there is only a net increase of 200 vpd between Low Road east of Halton (DM test 4600) and Low Road within Halton (4800). Either around 800 vpd are turning onto Low Road at Caton only to turn onto Denny Beck Lane to return to the A683, which is totally implausible: or a significant proportion of Low Road traffic east of Halton is not traffic travelling through Halton and so is not included in both the 4600 and 4800 forecast flow points2.

iv. Denny Beck Lane/ A683: In the DM all traffic on Denny Beck Lane travels to/from A683 westwards, whereas in the DM test a small but inexplicable 150 vpd travel to/ from A683 eastwards.

 It is anomalous that the newly modelled restriction on Halton Bridge results in a decrease in forecast flows of 400 vpd from the DM (3500 vpd) to the DM test (3100 vpd), but an increase of 300 vpd between the DS (900) and DS test (1200) flows. It is also of note that the DM-DM test reduction is around 11%, whereas the numerically similar DS-DS test increase is 33.3%  The flows on the Laverick Road/ Green Lane route to the east of Halton were not shown in previous information, but are quite substantial for a route that does not have any obvious local purpose. The accuracy of these figures is questionable, as almost the whole of Green Lane is a ‘pinch point’ and at Halton Green there is a considerably worse pinch point than

2 Ie it is substituted in the 4800 figure by traffic to/from the eastern half of Halton itself, which then does the turning movement at Denny Beck Lane: but this then requires a significant proportion of traffic on Low Road east of Halton to be travelling to/from the same part of Halton, then (as ii above) going to /from Caton/ A683 further east that on Low Road, with a double bend between two buildings and over a narrow bridge, with very little forward visibility.  As discussed above, any traffic between Caton and Shefferlands that has reassigned from the Low Road route to the A683 route now has to pass through the M6/ A683 junctions. The DS test increase of 2000 vpd over DS on the A683 between Denny Beck and the southbound M6 slips is exactly matched by a 2000 vpd decrease on the Halton Road slip at Shefferlands, so it is reasonable to assume that around an extra 2000 vpd are moving between the A683 east of J34 and the first leg of the Heysham link road over the Lune Bridge. It therefore appears anomalous that the DS test flow over the Lune Bridge is only 1100 vpd more than the DS (24800 vpd compared with 23700).  It is not possible to calculate turning volumes between the A683 east (ie under the M6 bridge) and the new Lune Bridge link, but the DS test adds 2000 vpd to this movement, which is 8% of the total flow on the Lune bridge. If say 2/3 of traffic on the A683 east turned to/ from the Lune bridge, this would be around 15000 vpd in the DS test, so the increase on the DS turning volume would be 2000/13000 = 15%. The remodelled delays on this turning movement (in seconds: Mouchel June 2012, compare Figs 3.11 and 3.12 for AM peak, 3.15 and 3.16 for PM peak) show no change between the DS and DS test in either direction in the AM or PM peaks, except for a large increase in the AM peak – 58 to 92 seconds - for traffic turning left off the new link road. It does not seem credible that a flow increase of say 10- 15% is not forecast to increase most journey delays at the junction, or that the only exception is a left turn.

LCC were clearly sensitive to my observation that in the previous modelling the traffic flows on Church Brow were by design higher than on the primary route A683, as this was specifically raised by Mr Cleave at the Hearing. The flows are now, conveniently for LCC, the other way round in the DS test scenario, but the presence of so many anomalies in the modelling raise grave doubts over the validity of this new forecast.

3. Induced traffic and variable demand modelling

At the hearing I undertook to provide evidence to support my clear recollection that a figure of 15% induced traffic was presented by LCC at the 2007 inquiry, and have done so. I have not yet found any equivalent figure in the current LCC documentation to confirm Mr Cleave’s statement that it is now assessed at around 1%. I pointed to the statement (pdf p91) and Table 7-3 in the Mouchel Heysham Forecasting Report (Feb 2011), which states that user benefits reduce by 8% in the opening year with variable compared to fixed modelling, and suggested that this could be a reasonable proxy for induced traffic, but this was disputed on grounds that variable demand modelling included things other than induced traffic effects. The second paragraph of section 7.1 of the Mouchel Forecasting and Economics report of Feb 2011 states that:

The term Variable Demand is used in preference to induced traffic as it reflects more accurately the travel demand that transport models attempt to represent. The travel demand responses, as a result of changing travel costs due to highway improvements, include: • Change in number of trips generated from an origin; • Travelling to a new destination (alternative home, workplace, etc.); • Switching from/to car in preference to other modes; and • Switching to other time period.

This is not what WebTAG says: TAG Unit 2.9.2 states (1.2) that

“1.2.1 All assessments of Government-funded investments in highway or transport schemes need to consider the effects of variable demand (and the resultant "induced traffic") on the justification for the scheme or strategy.”

Clearly the ‘effects of variable demand’ and ‘induced traffic’ co-exist in the guidance. One is not used in preference to the other; variable demand is the process, and induced traffic is the outcome. However, the travel responses in the Mouchel quote are the main headings of things that are covered by induced traffic assessment – the changes in travel costs due to highway improvements (a fuller list is given in TAG Unit 2.9.2 para 1.3.1). Fixed trip modelling does not include changes in travel costs, so is confined to reassignment: variable trip modelling does include changes in travel costs, which are the stuff of induced traffic assessment. This is set out in TAG Unit 2.9.1 paras 1.1.1 to 1.1.33. I am not sure where any confusion arises.

TAG Unit 2.9.1 states that:

1.2.1 The advice is intended for use when assessing Trunk road schemes, local authority road schemes and the highway decongestion benefits of major public transport schemes. It represents a change in the Department for Transport’s expectations of good practice. • The advice replaces existing Departmental guidance on Induced Traffic Appraisal (in DMRB 12.2.2) and extends the types of scheme for which the effects of variable demand on scheme benefits and the level of induced traffic MUST be estimated quantitatively. (bold and capitals in original)

The Mouchel report of February 2011 has covered the effects of demand on scheme benefits, as quoted above: but it does not appear to have given a quantitative estimate of the level of induced

3 1.1.1 Any transport improvements that reduce journey times and costs will, in principle, affect the level of demand for travel. Schemes that improve travel conditions encourage travellers to make trips they did not make before the improvement, or to change to a different mode, or to travel further to different destinations. This additional demand for travel is sometimes masked by other phenomena, but mainly appears as "induced" traffic through or around the scheme.

1.1.2 In the past highway improvement schemes were primarily assessed by estimating the benefits on the basis of a fixed level of traffic on the network. However the extra traffic that can be induced by a scheme may add to congestion on the road network and reduce average speeds for all traffic, eroding some of the benefits of the scheme.

1.1.3 In congested areas, it is essential that scheme appraisal should consider the implications of this induced traffic and the complementary effect of the suppression of traffic, which arises mostly in the 'without scheme' scenario. traffic, at least not under that name. This is emphasised by Mr Cleave’s inability to produce a current figure for the level of induced traffic or to say where it could be found.

It would be astounding if induced traffic were as low as 1% in a network with congestion, and it is assumed that LCC do not want to argue that the existing network is uncongested! It is also difficult to understand why the estimate would be so much lower than the 15% in 2005/07.

4. Changes to J34

The Highways Agency, in its response to ExA second questions, has not provided any evidence to support the generalised contention that changes in forecast traffic volumes have enabled a lower junction standard. The response says little more than that allowing departures from standard is a routine operation and is always done with care.

The main issue is that a type H merge was demanded in 2006 in the light of TD 22/06, but this has been reduced to a type C merge. In Figure 2/4.5 it is stated that type H “is for use where layout F would be used but is not possible to implement because of site restraints. Its use requires approval as a departure from standard” (my emphasis: layout F involves adding a lane to the mainline motorway). Type C (Fig. 2/4.2) is stated as “only used where design flows on mainline are light...” which is a possible genesis of its departure from standard. In other words, a non-standard layout was demanded in 2006, and a non-standard layout (in context) is now being accepted in its place, without any evidence having been presented to justify either the insistence on the type H layout in 2006, or the acceptability of the type C layout now. Given that both layouts are departures from standard, it is hard to imagine what specific traffic flow criteria can have governed this change. 5. Changes in travel behaviour

At the hearing on 12 July I gave some information based on personal observation of levels of possession of driving licences and cars amongst a group of 20-25 year olds in rural Dumfries and Galloway. Mr McCreesh characterised this as assertion, not evidence. I do not agree that this was assertion, which would be a claim without any evidence base; my information, which was expressly offered as a lay observation, was anecdotal but based on real evidence.

I subsequently checked whether there is any published evidence on the subject, and found the attached spreadsheet/ graphs from the DfT National Transport Survey, Table NTS 0201. This shows trends in driving licence holders from 1975-2010. The table confirms that:

 Holders of driving licences in the 17-20 age group peaked at 48% of the age group as long ago as 1992/94; declined to 27% in 2004; then rose to 2007 but have since re-entered decline and stood at 35% in 2010  The 21-29 age group also peaked in the 1990s, broadly static at 75% of the age group from 1992/94 to 1998/2000; hit a plateau at 65-67% in the mid-2000s; and declined again to 63% in 2010.  All other age groups have been either broadly static or shown increases in proportions of licence holders since 2000: the older the age group, the greater the increase.

This table confirms the overall message that younger people are less interested in holding a driving licence than they were 15-20 years ago. The evidence also suggests that some of the reduction in licence holding in the 17-20 age group feeds through to declines in the 21-29 age group a few years down the line: and there is tentative evidence that the 31-39 age group may just be beginning to show decline (down from 84% in 2000 to 81% in 2010) as the 21-29 age group in around 2000 becomes the 31-39 age group by 2010.

Although the figures are somewhat higher than those given at the Hearing for the 20-25 year olds in Dumfries and Galloway, I do not regard them as inconsistent. This group was beginning to hit 17 in 2004, when the proportion of 17-20 year old licence holders was at its lowest (27%); it is not comparable with the 21-29 age group (as discussed, it is likely that many of them will take up driving licences in the next five years); there are reasons, such as low income levels, why levels of licence holding might be lower than the (England) national average in Dumfries and Galloway; and it was a relatively small sample of about 25 people, most of whom as discussed had spent time in the major urban areas of Scotland.

Whilst it would undoubtedly be useful to have a regional breakdown of the national statistics, this NTS Table clearly supports the thesis that car use is less of a lifestyle essential among younger generations than it once was.

Alan James 23 July 2012 APPENDIX A: SECTION III.2.2 OF EPS GUIDANCE 2007

(34) Under Article 16(1), Member States must be certain that “there is no satisfactory alternative” before allowing a derogation. As with Article 6(4) of Directive 92/43/EEC and Article 9(1) of Directive 79/409/EEC107, this is an overarching condition that all derogations must satisfy.

(35) In conformity with the principle of subsidiarity, it rests with the competent national authorities to make the necessary comparisons and evaluate those alternative solutions. Nevertheless, this discretionary power is subject to several constraints.

(36) Based on the case law of the Court on derogations under Article 9 of Directive 79/409/EEC108, especially in Case C-10/96, an analysis of whether there is "no other satisfactory alternative" can be considered as having three parts: What is the problem or specific situation that needs to be addressed? Are there any other solutions? If so, will these resolve the problem or specific situation for which the derogation is sought? The following remarks are based on the case law of the Court on Article 9 of the Birds Directive and apply the approach adopted by the Court to Article 16.

(37) The analysis of whether “there is no other satisfactory alternative” presumes that a specific problem or situation exists and needs to be tackled. The competent national authorities are called upon to solve this problem or situation by choosing, among the possible alternatives, the most appropriate that will ensure the best protection of the species while solving the problem/situation. To ensure the strict protection of species, these alternatives must be assessed with regard to the prohibitions listed in Article 12. They could involve alternative locations (or routes), different development scales or designs, or alternative activities, processes or methods.

(38) In any case, recourse to Article 16 derogations must be a last resort. The essential common characteristic of any derogation system is that it has to yield to other requirements laid down in the Directive in the interest of conservation.

(39) The same strict approach applies to the interpretation of the term “satisfactory”. Given the exceptional nature of the derogation regime and the duty of Member States under Article 10 of the EC Treaty to facilitate the achievement of the tasks of the Community, a derogation would only be justified on the basis of an objective demonstration that there is no other satisfactory solution. According to the Advocate General in case C-10/96, this term “may be interpreted as meaning a solution which resolves the particular problem facing the national authorities, and which at the same time respects as far as possible the prohibitions laid down in the Directive; a derogation may only be allowed where no other solution which does not involve setting aside these prohibitions can be adopted.”

(40) As regards the factors for evaluating the existence of another satisfactory solution, it is recognised that this is a matter for the national courts. The appraisal of whether an alternative is satisfactory or not, in a given situation, must be founded on objectively verifiable factors, such as scientific and technical considerations110. In addition, the solution finally selected, even if it involves a derogation, must be objectively limited to the extent necessary to resolve the specific problem or situation.

(41) Evidently, the requirement to consider seriously other alternatives is of primary importance. The discretionary power of Member States is limited, and where another solution exists, any arguments that it is not “satisfactory” will need to be convincing. Moreover, it should be stressed that another solution cannot be deemed unsatisfactory merely because it would cause greater inconvenience to or compel a change in behaviour by the beneficiaries of the derogation.