Liverpool Cruise Terminal Information to inform a Habitat Regulations Assessment (HRA) Appropriate Assessment October 2019 Waterman Infrastructure & Environment Limited Merchants House, Wapping Road, Bristol BS1 4RW, United Kingdom www.watermangroup.com Client Name: Liverpool City Council Document Reference: WIE12464-100-11-3-2-AA Project Number: WIE12464-100 Quality Assurance – Approval Status This document has been prepared and checked in accordance with Waterman Group’s IMS (BS EN ISO 9001: 2008, BS EN ISO 14001: 2004 and BS OHSAS 18001:2007) Issue Date Prepared by Checked by Approved by 10-2-1-HRA November 2017 Niall Machin Simon Dowell Gavin Spowage Associate Director Senior Consultant Associate Director Comments: HRA to support planning application 10-4-1-HRA June 2018 Niall Machin Gavin Spowage Gavin Spowage Associate Director Associate Director Associate Director Comments: HRA to support application for HRO and Marine Licence 11-2-3-AA January 2019 Niall Machin Gavin Spowage Gavin Spowage Associate Director Associate Director Associate Director Comments: HRA and Appropriate Assessment to support application for HRO and Marine Licence 11-3-1-AA October 2019 Niall Machin Gavin Spowage Gavin Spowage Associate Director Associate Director Associate Director Comments: Addressing Natural England consultation responses Disclaimer This report has been prepared by Waterman Infrastructure & Environment Limited, with all reasonable skill, care and diligence within the terms of the Contract with the client, incorporation of our General Terms and Condition of Business and taking account of the resources devoted to us by agreement with the client. We disclaim any responsibility to the client and others in respect of any matters outside the scope of the above. This report is confidential to the client and we accept no responsibility of whatsoever nature to third parties to whom this report, or any part thereof, is made known. Any such party relies on the report at its own risk. Contents 1. Introduction ................................................................................................................................. 1 2. The Development ........................................................................................................................ 8 3. Identifying the European Sites Potentially at Risk ................................................................ 10 4. Appropriate Assessment and Integrity Test .......................................................................... 31 5. In-Combination Effects ............................................................................................................ 36 6. Overall Appropriate Assessment Conclusion ....................................................................... 44 1.1. Tables Table 1. Estimated Cruise Liner Visits 2018-2027 .............................................................................. 9 Table 2: European Sites Vulnerable to Effects Arising from the Cruise Ship Terminal .................... 10 Table 3: Potential mechanisms and the initial list of European sites that could be affected ............. 11 Table 4: Detailed Pathway to Impact Assessment ............................................................................ 24 1.2. Figures Figure 1: Consideration of development proposals affecting European sites ...................................... 4 Figure 2: Outline of the four stage approach to the assessment of projects under the Habitats Regualtions ......................................................................................................................... 5 Figure 3: Site Location Appendices A. Descriptions of European Sites B. Historic Trends and Current Pressures for European sites C. Horizontal deck brace design D. Cormorant Technical Note – Ecological Conservation Management Plan E. Adaptive Management Plan (Cormorants) F. Liverpool Waters Strategic Ecological Mitigation Plan (SEMP) – Interim; Arup, July 2019 Contents Liverpool Cruise Terminal HRA WIE12464-100 WIE12464-100-11-3-2-AA 1. Introduction Background 1.1. Waterman Infrastructure & Environment Ltd (‘Waterman’) was commissioned by Liverpool City Council (‘LCC’) to carry out a Habitat Regulations Assessment (‘HRA’) Screening Report in relation to LCC’s proposals to construct a permanent cruise terminal facility (the ‘Development’) at Princes Parade, Liverpool (the ‘Site’). Further details of the Development can be found in section 2 of this report. The HRA Screening Report (ref WIE12464-100-10-4-1-HRA) was published in June 2018 in support of LCC’s application for planning permission in respect of the Development. 1.2. The HRA Screening Report identified ‘possible impacts from dismantling, construction and operation from conversion of existing terminal facilities to the proposed new terminal on Liverpool Bay SPA feature great cormorant’ but concluded that ‘with the mitigation proposed for great cormorant1 resting and roosting areas there would be no likely significant impacts’. 1.3. In Spring 2018, the Court of Justice of the European Union (‘CJEU’) gave its ruling in the People Over Wind case, which provided a new interpretation of when and how mitigation measures should be considered in an HRA. In departing from previous decisions, the CJEU held that measures designed specifically to avoid or reduce likely significant effects should not be evaluated at the screening stage but reserved for the appropriate assessment. 1.4. In August 2018, the Mersey Docks and Harbour Company (‘MDHC’) applied to the Marine Management Organisation (‘MMO’) for a Harbour Revision Order (‘HRO’) in respect of the Development. The statutory objection/representation period in relation to the HRO application ran from 10 August 2018 to 21 September 2018. Natural England (‘NE’), as a statutory consultee, were consulted about the application by the MMO. In their response to the consultation2, Natural England stated: • In summary, Natural England advises that there is likely significant effect, therefore a requirement for appropriate assessment, and as it stands insufficient information within the application documents to conclude that the proposed works, as described in the Harbour Revision Order, will not have an adverse effect on the internationally designated sites. This is due to uncertainty of the mitigation measures required (particularly for cormorants). • Whilst Natural England concurs with the overall conclusion that the application will result in likely significant effect (i.e. for cormorant) we advise that the assessment currently does not provide enough information and/or certainty to justify the assessment conclusion. Where there is a likelihood of significant effects (excluding any measures intended to avoid or reduce harmful effects on the European Site), or there are uncertainties, a competent authority should undertake an Appropriate Assessment in order to fully assess the implications of the proposal in view of the conservation objectives for the European sites in question. Natural England therefore advises that an Appropriate Assessment should now be undertaken. • Natural England highlights the recent ruling made by the Court of Justice of the European Union (the CJEU) on the interpretation of the Habitats Directive in the case of People Over Wind and Sweetman vs Coillte Teoranta (ref: C 323/17). The case relates to the treatment of mitigation measures at the screening stage of a HRA when deciding whether an appropriate assessment of a plan/project is required. The Court’s Ruling goes against established practice in the UK that mitigation measures can, to a certain degree, be taken into account at the screening stage. As a result, Natural England advises that any “embedded” mitigation relating to protected sites under the Habitat Regulations 2017 Regulation 63 (1) should no longer be considered at the screening 1 For the rest of this report, this species will be referred to as ‘cormorant’ in line with NE advice. 2 DC10147 The Proposed Mersey Docks and Harbour Company (Liverpool Cruise Terminal Extension) Harbour Revision Order Location: Princes Jetty, Princes Dock Liverpool Page 1 Liverpool Cruise Ship Terminal WIE12464-100 WIE12464-100-11-3-2-AA stage, but taken forward and considered at the appropriate assessment stage to inform a decision as to whether no adverse effect on site integrity can be ascertained. In light of the recent case law, any reliance on measures intended to avoid or reduce harmful effects at the likely significant stage is vulnerable to legal challenge. • Mitigation. We advise that consideration of appropriate mitigation measures for the overall scheme should be provided as part of the application for the HRO. Whist we acknowledge detailed methodologies may be provided later through planning and marine licence applications, we advise that sufficient detail and commitment is required to justify and support conclusions of an appropriate assessment to demonstrate that there will be no adverse effect on site integrity and therefore no further progression through the Habitats Regulations tests will be required. • In combination and cumulative assessment: Wirral Waters Scheme. We disagree with the comments that state that there is little biodiversity interest within the Wirral Waters site and that the ecological receptors are not significantly affected by the proposed (Wirral Waters) works (EAD 15 pg. 25) One of the key species identified at outline planning permission stage for which mitigation would be required was cormorant.