NYM/2014/0676/MEIA Chris France North York Moors National Park

Date: 10 December 2014 Our ref: 134454 Your ref: NYM/2014/0676/MEIA

Chris France North York Moors National Park Authority Customer Services [email protected] Hornbeam House Crewe Business Park Electra Way BY EMAIL ONLY Crewe Cheshire CW1 6GJ

T 0300 060 3900

Dear Chris

------Planning consultation: Application in respect of the winning and working of polyhalite by underground methods including the construction of a minehead at Dove's Nest Farm involving access, maintenance and ventilation shafts, the landforming of associated spoil, the construction of buildings, access roads, car parking and helicopter landing site, attenuation ponds, landscaping, restoration and aftercare and associated works. In addition, the construction of an underground tunnel between Doves Nest Farm and land at Wilton that links to the mine below ground, comprising 1 no. shaft at Doves Nest Farm, 3 no. intermediate access shaft sites, each with associated landforming of associated spoil, the construction of buildings, access roads and car parking, landscaping, restoration and aftercare, and the construction of a tunnel portal at Wilton comprising buildings, landforming of spoil and associated works. Location: Dove's Nest Farm & Haxby Plantation, Sneatonthorpe(proposed minehead); underneath 252 sq km of the NYMNPA(winning & working of minerals); a corridor extending underground from the edge of the NP boundary to Wilton International Complex(mineral transport system); Ladycross Plantation near Egton, Lockwood Beck Farm near Moorsholm, Tocketts Lythe, near Guisborough(intermediate shaft sites); site within the eastern limits of the Wilton International Complex, Teesside(tunnel portal) ------Thank you for your consultation on the above dated 10 October 2014 which was received by Natural England on the same date, in addition to your revised letter dated 22 October 2014 and e-mail instructions relating to response schedules. This response is based on the material received so far in the planning submissions along with some further clarifications from the applicant. We understand that there may be additional clarifications and submission of Supplementary Environmental Information (SEI) in January. We will respond in due course to any subsequent re-consultation.

As this is a straddled application, Natural England is supplying a similar response on the proposal to both North York Moors National Park Authority and Redcar and Cleveland Borough Council.

Natural England is a non-departmental public body. Our statutory purpose is to ensure that the natural environment is conserved, enhanced, and managed for the benefit of present and future generations, thereby contributing to sustainable development. We are responding in relation to:  THE TOWN AND COUNTRY PLANNING (ENVIRONMENTAL IMPACT ASSESSMENT) REGULATIONS 2011  TOWN AND COUNTRY PLANNING (DEVELOPMENT MANAGEMENT PROCEDURE) ORDER 2010  THE CONSERVATION OF HABITATS AND SPECIES (AMENDMENT) REGULATIONS 2012  SECTION 28 OF THE WILDLIFE AND COUNTRYSIDE ACT 1981 (AS AMENDED)

Our summary response is set out below and deals in turn with protected landscapes, biodiversity, soils, geology and protected species. More detailed observations are supplied in annexes as appropriate.

1. Protected Landscapes - Objection The proposal is for a major development across various sites within and near to the nationally protected landscape of the North York Moors National Park, and the North Yorkshire and Cleveland Heritage Coast. The evidence reviewed by Natural England does not suggest that there will be extensive permanent significant impacts on the landscape (other than the direct impacts associated with the long term development footprint). We offer commentary and advice for the LPAs to consider in relation to this below, to assist in your assessment of the proposal.

Natural England recognises the considerable efforts that York Potash and their consultants have made to design a scheme with high quality landscape mitigation (earth works and planting) that might be accommodated within the National Park. However, NE advises that the scheme would have a significant adverse impact on the landscape and setting of the National Park (and therefore on the statutory purposes of the park) for the duration of its construction phase. We also note that YPL contends major construction activities and infrastructure would be present at the shaft sites over 36-40 months rather than the 58 months described for the minehead, unless geological complications arise in which case these durations would be extended further. In addition account needs to be taken of the time taken for the areas disturbed during construction to blend back into the surrounding landscapes. We also consider that there will be some significant visual impacts on the Heritage Coast during the construction phase.

The scheme conflicts with national policy i.e. NPPF para 115 and 116 and we explain in Annex A why this is the case from an environmental perspective. We therefore object to the scheme on landscape grounds (including visual, cumulative landscape and cumulative visual impacts) in relation to the construction phase. It is of course for the NPA to decide whether on balance the landscape impacts are outweighed by other material considerations and whether exceptional circumstances exist so as to enable planning permission to be granted. Our objection on landscape, visual and cumulative grounds is provided for the LPAs to consider alongside the expert advice, which you have commissioned, to help clarify the risk of overrun of the construction phase and other engineering matters.

If the NPA were minded to approve the application, we welcome and note that the section 106 agreement proposed by York Potash Ltd. provides opportunity to deliver enhancement measures throughout the National Park. In that eventuality, we would be keen for our Area Team to help develop further detail with the NPA and we suggest you discuss this further our Yorkshire Area Team Manager David Shaw.

2. Biodiversity - internationally and nationally designated sites - Further information required In this section we look at the internationally and nationally designated sites that may be affected by this proposal and comment on the Shadow Habitats Regulations Assessment provided by York Potash. . The application site is within or in close proximity to European designated sites (also commonly referred to as Natura 2000 sites), and therefore has the potential to affect their interest features. European sites are afforded protection under the Conservation of Habitats and Species Regulations 2010, as amended (the ‘Habitats Regulations’).

The Minehead application site and application site for the MTS shaft site at Lockwood Beck are in close proximity to the North York Moors Special Protection Area (SPA) and Special Area of Conservation (SAC) which are European sites. The site is also notified at a national level as North York Moors Site of Special Scientific Interest (SSSI).

The Shadow Habitats Regulations Assessment submitted, also considers the Materials Handling Facility at Wilton which is the subject of a further planning application with Redcar and Cleveland Borough Council and Harbour facilities on the Tees which are being developed as a nationally significant infrastructure project (NSIP) within the York Potash Project as a whole. These application sites are in close proximity to the Teesmouth and Cleveland Coast Special Protection Area (SPA) which is a European site. The site is also listed as Teesmouth and Cleveland Coast Ramsar site and notified at a national level as Redcar Rocks, South Gare and Coatham Sands, Seaton Dunes and Common, Seal Sands, Cowpen Marsh and Tees and Hartlepool Foreshore and Wetlands Sites of Special Scientific Interest (SSSI).

In considering the European site interest, Natural England advises that you, as a competent authority under the provisions of the Habitats Regulations, should have regard for any potential impacts that a plan or project may have1. The Conservation objectives for each European site explain how the site should be restored and/or maintained and may be helpful in assessing what, if any, potential impacts a plan or project may have.

Natural England notes that the accompanying HRA has not been produced by your authority, but as a draft by the applicant. As competent authority, it is your responsibility to complete the HRA. We provide the advice enclosed (in this letter and in Annex B) on the assumption that your authority intends to adopt this HRA to fulfil your duty as competent authority.

The shadow appropriate assessment (York Potash Project Habitats Regulations Assessment (Part 2, Appendix 11.3)) provided by the applicant indicates that your authority may conclude that the proposal will not result in adverse effects on the integrity of any of the sites in question. Having considered the assessment, and the measures proposed to mitigate for any adverse effects, it is the advice of Natural England that it is not possible at this point to ascertain that the proposal will not result in adverse effects on site integrity. Natural England advises that the assessment currently does not provide enough information and/or certainty to justify the assessment conclusion and that your authority should not grant planning permission at this stage.

Natural England welcomes the efforts made by the applicant to address previous concerns described during the last application in 2013 and during the pre-application discussions this year. In particular, the monitoring works undertaken in relation to potential hydrogeological impacts. This has provided much information and reassurance. However, the scheme, which now includes a tunnel (and a MHF and harbour proposal), has highlighted new and different issues to address such as air quality impacts at the minehead and MTS shaft sites. Further assessment and consideration of mitigation options is required, and Natural England provides advice in Annex B on the additional assessment work that is needed for both the Natura 2000 sites and SSSIs.

We recognise that the outstanding biodiversity impacts and HRA issues identified in this response are potentially resolvable through the provision of well-thought-out mitigation. We will be pleased to advise as and when additional information and mitigation proposals are developed.

3. Soils, Land Quality and Reclamation advice Where relevant, Natural England has considered the proposals in the light of our statutory duties under Schedule 5 of the Town and Country Planning Act 1990 (as amended) and the Government’s policy for the sustainable use of soil as set out in paragraphs 109 and 112 of the National Planning Policy Framework (March 2012).

Natural England welcome the pre-application engagement with York Potash and their consultants and acknowledge the work done to enable understanding of the land impacted by this proposal and potential afteruses.

The proposed development of the Minehead at Dove’s Nest together with the intermediate shafts for the mineral transport system (MTS) at Lady Cross, Lockwood Beck and Tocketts Lythe cumulatively extend to approximately 137 ha. Apart from around 25 ha woodland at Dove’s Nest, the majority of this land is presently in agricultural use, but including only some 1.3 ha of ‘best and most versatile’ (BMV) agricultural land (namely Grades 1, 2 and 3a land in the Agricultural Land Classification [ALC] system) at Lockwood Beck.

1 Requirements are set out within Regulations 61 and 62 of the Habitats Regulations, where a series of steps and tests are followed for plans or projects that could potentially affect a European site. The steps and tests set out within Regulations 61 and 62 are commonly referred to as the ‘Habitats Regulations Assessment’ process. The Government has produced core guidance for competent authorities and developers to assist with the Habitats Regulations Assessment process. This can be found on the Defra website. http://www.defra.gov.uk/habitats- review/implementation/process-guidance/guidance/sites/

With little BMV land affected, we do not need to comment in detail on the soils and reclamation issues arising from this proposal Please see Annex C for further detail. Natural England has drafted conditions which might be helpful and will be pleased to provide these to the MPAs for their consideration and once the further information on earthworks has been supplied in the Supplement to the ES expected in the New Year.

4. Protected Species We have not assessed this application and associated documents for impacts on protected species although we have agreed the baseline ecology assessment for the minehead site with the applicant and your Authority. We have agreed at meetings with your Authority that you will address this issue in your consideration of the MTS since protected species are not interest features of the designated sites. However, we note that the applicant has provided information for the use of Natural England’s pre-submission screening service (PSS) regarding potential bat and badger licence applications for the Mine and MTS elements of the proposals. This will helpfully progress resolution of these aspects.

Natural England has published Standing Advice on protected species. The Standing Advice includes a habitat decision tree which provides advice to planners on deciding if there is a ‘reasonable likelihood’ of protected species being present. It also provides detailed advice on the protected species most often affected by development, including flow charts for individual species to enable an assessment to be made of a protected species survey and mitigation strategy.

You should apply our Standing Advice to this application as it is a material consideration in the determination of applications in the same way as any individual response received from Natural England following consultation.

The Standing Advice should not be treated as giving any indication or providing any assurance in respect of European Protected Species (EPS) that the proposed development is unlikely to affect the EPS present on the site; nor should it be interpreted as meaning that Natural England has reached any views as to whether a licence may be granted. However the PSS, as mentioned above, should be of material assistance in this regard.

If you have any specific questions on aspects that are not covered by our Standing Advice for European Protected Species or have difficulty in applying it to this application please contact us with details at [email protected].

5. Geology Natural England provided advice in the response in 2013 relating to geological recording and is pleased to note that the Section 106 contains funding to support incorporation of project data into existing geological records. See Annex D for more details.

6. Other advice We would expect the Local Planning Authority (LPA) to assess and consider the other possible impacts resulting from this proposal on the following when determining this application:  local sites (biodiversity and geodiversity)  local landscape character  local or national biodiversity priority habitats and species.

Natural England does not hold locally specific information relating to the above. These remain material considerations in the determination of this planning application and we recommend that you seek further information from the appropriate bodies (which may include the local records centre, your local wildlife trust, local geoconservation group or other recording society and a local landscape characterisation document) in order to ensure the LPA has sufficient information to fully understand the impact of the proposal before it determines the application. A more comprehensive list of local groups can be found at Wildlife and Countryside link.

7. Conclusion We trust this response is of assistance to the LPAs in conducting your assessment of the proposal. We would be happy to comment further should the need arise but if in the meantime you have any queries please do not hesitate to contact us.

For any queries relating to the specific advice in this letter only please contact Deborah Hall on 0300 060 2259. For any new consultations, or to provide further information on this consultation please send your correspondences to [email protected].

We really value your feedback to help us improve the service we offer. We have attached a feedback form to this letter and welcome any comments you might have about our service.

We also welcome your feedback on Natural England’s revised standing advice in terms of its usability (ease of access, presentation), quality of content and, its clarity and effectiveness as a tool in guiding decision-making. Please provide this, with any suggested improvements, by filling in the attached customer feedback form or by emailing your feedback direct to [email protected].

Yours sincerely

Des O’Halloran Principal Adviser, Sustainable Development Annex A Protected Landscapes

The statutory and policy context for Natural England’s landscape advice

Our advice reflects the national importance of the North York Moors landscape and Natural England’s statutory duty ‘to have regard’ to National Park purposes in carrying out its functions. Those statutory purposes are: conserving and enhancing the natural beauty, wildlife and cultural heritage; and promoting opportunities for understanding and enjoyment of their special qualities by the public.

It is also guided by the National Planning Policy Framework which affords the highest level of protection to National Park landscapes i.e.

Paragraph 115. Great weight should be given to conserving landscape and scenic beauty in National Parks, the Broads and Areas of Outstanding Natural Beauty, which have the highest status of protection in relation to landscape and scenic beauty.

The Authority may wish to consider how local landscape policies apply in this case.

Our advice is focused on landscape and visual impacts and their mitigation. It is not appropriate for us to consider the economic case for the scheme or its engineering feasibility. Those issues are outside our remit and expertise and the LPAs will receive other expert advice on those matters. By focusing on landscape and visual impacts we aim to make a proper contribution to the body of information needed by the LPAs to weigh up the environmental, social and economic consequences of approving or rejecting this application. It will help the NPA to apply the provisions of paragraph 116 of the NPPF (the ‘major development test’) to determine whether ‘exceptional circumstances’ apply in this case ie.

Planning permission should be refused for major developments in these designated areas except in exceptional circumstances and where it can be demonstrated they are in the public interest. Consideration of such applications should include an assessment of: the need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy; the cost of, and scope for, developing elsewhere outside the designated area, or meeting the need for it in some other way; and any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated.

Our advice is informed by pre-application meetings with the applicant and their agents, the relevant parts of the applicants Environmental Statement and by field visits to all of the sites covered by this application. We have taken full account of the mitigation measures proposed by the applicant which we recognise and acknowledge as being of high quality and good design. In relation to the construction phase we do not believe that any further mitigation is possible to reduce the adverse impacts of the scheme to levels which are below significant. In particular the height and scale of the construction infrastructure precludes effective screening. The only effective ‘mitigation’ would involve a relocation of the scheme to access the potash from outside the National Park. Partial but significant mitigation would involve a different tunnel route to enable an alternative to the Lockwood Beck shaft site. The details regarding the site selection process suggest it was strongly influenced by the availability of land for purchase or lease. It would appear that land availability has driven site selection rather than environmental considerations, especially for sites like Lockwood Beck which are so prominent in relation to the National Park.

The construction phase

Natural England advises that for the duration of the construction phase, the scheme, across its various sites, would have a significant adverse impact on the landscape fabric and visual resources of the National Park and its setting. This would also apply to a lesser extent during the post construction phase whilst the areas disturbed during construction to blend back into the surrounding landscapes. Impacts would also be cumulative in the sense that the impacts associated with each separate site would also interact both sequentially and, to a lesser extent, in combination. The minehead and intermediate shaft sites require the stripping and re-profiling of large areas. The main on-site structures, notably tall winding towers, large cranes and generator stacks would be very clearly seen as prominent and dominant features within their immediate and wider landscape setting, and often against the skyline. Each site would present as a major development in its own right to those visiting, living or working in and around the National Park or travelling through the area. For the duration of the construction phase, this part of the National Park and its setting could become associated with major development rather than natural beauty (the statutory basis for its designation) and the special qualities identified by the Park’s management plan. Aspects such as the views of undeveloped skylines, its remoteness, tranquillity, rural and wildness qualities would be affected, and in some instances and from some angles there would be conflict with local distinctive land forms such as Freebrough Hill.

We note that the shaft sites will take less time to construct than the minehead and that work to establish screening at the minehead and reinstatement at the shaft sites would be progressive. We also note that YPL contends this would be complete at the shaft sites within 36-40 months rather than the 58 months described for the minehead, unless geological complications arise in which case these durations would be extended further. It will be for the LPAs to consider their expert advice, which has been commissioned to help clarify the risk of overrun of the construction phase and other engineering matters

Natural England is not able to confirm with confidence the length of the construction phase. The applicant contends that it can be completed within five years. We note that the NPA’s advisors believe that it would be closer to ten years. We would however, advise that construction phase impacts can be expected to persist beyond the actual construction of the minehead and intermediate shafts into a period required for the reinstatement of the shaft sites and whilst the screening mitigation at the minehead becomes effective, ie the time taken for planted trees and shrubs to grow. The applicant contends that this can be achieved quickly, but a degree of caution is required here. It may take a long time, perhaps ten years, for the required vegetation type to establish itself on these new surfaces and to attain the necessary height and density.

A short summary with selected examples of significant impacts resulting from the proposed infrastructure and activities is presented in the table below. This draws on the ES as well as some of our own observations.

Overview of construction phase impacts For both the minehead and mineral transport system there will be a range of construction phase impacts on landscape character and visual resources arising from: the extensive footprints of the sites, construction of buildings, earthworks and general surface disturbance, tall infrastructure (winding towers, generating stacks and cranes), lighting and traffic. The widely visible tall winding towers, cranes and generator stacks will usually produce the most extensive significant impacts. This table is illustrative, and provides examples of significant impacts but is not exhaustive. The minehead There will be significant impacts on landscape character at and near to the site and on the defined special qualities of the North York Moors National Park landscape

There will be significant impacts on visual amenity from important view points within the National Park and its setting, including on:  Users of access land west of the site, e.g. Ugglebarnby, Sleights, Goathland and Sneaton Low Moors.  Those travelling to and through the area on roads including the A171 and A169.  Rights of way including the Coast to Coast Walk, National Cycle Route 1 and Moor to Sea Cycle Route 2.  Visitors to Blue Bank car park.  People outside the National Park, but within the Heritage Coast, notably at Whitby Abbey (an impact deemed significant by Natural England).

Mineral Transport System (MTS) For each of the intermediate shaft sites the ES identifies significant impacts on landscape character at and near to the site, and on the special qualities of the North York Moors National Park landscape Examples of significant visual impacts taken from the Environmental Statement:

 At Lady Cross: On visual amenity from rights of way and users of access land east of the site, and those travelling to and through the area on roads such as the A17.

 At Lockwood Beck: On visual amenity from public rights of way including the Quakers Causeway, users of access land and anglers/bird watchers at Lockwood Beck reservoir, and those travelling to and through the area on roads such as the A171.

 At Tocketts Lythe: On visual amenity from public rights of way including the Cleveland Way, and those travelling along roads such as the A171 and A173

Individual and cumulative impacts during the construction phase

Each site would have a significant impact especially when viewed in close or relatively close proximity where a combination of views of ground level activities and tall infrastructure, lighting, traffic, as well as noise and will all come together.

The Lockwood Beck shaft site warrants particular mention because it immediately abuts the National Park boundary and is seen in widespread open views from high ground within the National Park, as well as when travelling along the A171 along the National Park boundary in both directions, such as may be seen on approach to the National Park. It is also seen with the National Park backdropping (ie being seen beyond) the site from Stanghow and areas in this vicinity to the north. The winding towers and cranes at the minehead would be the dominant features in the landscape when viewed from the adjacent moorland and also very prominent on the skyline from the public viewpoint at Blue Bank, on the A169, as well as from areas in the vicinity of the A171 to the east of the minehead site.

In terms of views from the Heritage Coast, the winding towers would be clearly seen on the skyline from Whitby Abbey, a visual impact Natural England considers to be significant. The combined impact of each of the main sites within or near to the National Park will be apparent as people move around the area, with several major sites of landscape disturbance (tall infrastructure, bare ground, heavy machinery undertaking earth movements, noise, traffic, light) present in relatively close proximity to one another. Consequently the cumulative impact of the minehead and shaft sites during the construction phase would also be significant. This includes sequential impacts i.e. the impression made on people encountering the different sites en route through the area or out undertaking recreational activities in the landscape. The table below presents the cumulative issues and some examples.

Cumulative construction phase impacts Significant impacts arising from each of the sites are brought together in Tables 22.1 and 22.6 of the ES (we note that Tables 22.2-5 appear to be missing from the sequence), detailing which site and which receptor will be affected, and to what degree.

The ES identifies elements with the potential to give rise to cumulative landscape and visual impacts. These are the winding towers, temporary lighting, traffic, and changes to the landscape fabric. To this Natural England would add the generating towers and cranes.

No summary tables are provided as for other ES chapters and the chapter does not make a distinction between standalone impacts and cumulative impacts, which makes it difficult for us to distil a summary list. Some of the likely significant impacts are:  Cumulative sequential impacts on those travelling in both directions on the A171; users of the Cleveland Way National Trail, National Cycle Network Route 1, and the Coast to Coast Walk (which is within the Heritage Coast).  Cumulative impacts due to traffic affecting the Central and Eastern Moors Landscape Character Area (LCA) within the National Park, along the B1416.

The ES does not seem to identify significant cumulative impacts on static landscape and visual receptors during construction, in part because it uses viewpoints which are distant from the sites (ie Roseberry Topping, Highcliff Nab and Danby Beacon). Although not readily apparent from the text, Natural England considers significant cumulative impacts likely including at:  Low Moor and Stanghow Moor in the vicinity of the car parks by the A171. From this area it will be possible to look north/north west to Tocketts Lythe and east/south east to Lockwood Beck. The sites are around 4km apart and so it may be possible to see both, in opposite directions from vantage points very close together, each at around 2km range.  Sleights Moor/Black Brow west of the A169 near Blue Bank car parks. From this area it will be possible to look north west to Lady Cross and east to the Minehead site. The sites are around 7km apart and so it may be possible to see both, in opposite directions from vantage points very close together, each at around 3.5km range.

Residual impacts during the operational phase

The evidence reviewed by Natural England points to the operational phase landscape and visual impacts being be much less than the construction phase impacts, and likely to be below a level that justifies an objection by Natural England. This assumes that the earthworks and planting schemes to reinstate the shaft sites and screen the minehead are successful. This will require on ongoing site inspections, replanting of failed material and other remedial measures, as well as long term landscape management, including of the existing woodlands, throughout the operational and decommissioning periods.

However, we would not wish to appear complacent with regard to residual impacts. Whilst they do not contribute to Natural England’s objection to the scheme, they do warrant very careful consideration the NPA. The NPA may of course have grounds, based on local knowledge, to conclude that those impacts would be significant, beyond those associated with the permanent footprint of the mine, which will remain in perpetuity in any event.

Residual impacts at the minehead site

Natural England advises that the operation of the minehead would not be cost free in terms of landscape and visual impacts. It should be expected that even with full screening in place, the minehead, as an active and major industrial site, would still communicate its presence across the landscape character areas it is located in and next to, and across this area of the National Park. The combined operational effects – including visual clues as to the presence of the mine (signage, general increased activity during shift changes) as well as noise, dust, traffic, light etc.- are likely to give perceptual cues that a major site is operating behind the remodelled landform and planted woodland, collectively altering how the landscape is valued, viewed and used, and detracting from its sense of rurality and wildness.

The new landforms will clearly alter the current land form of the site (as well as the land forms of the shaft sites elsewhere). It is likely that these areas will have and retain a degree of artificiality in contrast to their surroundings, although it is recognised that vegetation will gradually help integrate the new landforms back into the landscape. The slopes proposed to the east are relatively steep and have a regular appearance. In addition, the proposed slopes on the mine side are extremely steep. The irregularities associated with a landscape shaped by natural geomorphological forces (glaciation, climate, water etc) will be lost under the manmade landforms.

Whilst we cannot conclude that operational phase impacts would be significant we do contest the applicant’s assertion of overall operational phase benefits at the minehead site. Whilst there may be some biodiversity gains from habitat mosaic creation within the minehead site these are likely to be cancelled out by permanent changes to the landscape. The overall result could be considered neutral at best.

Residual impacts at the Lockwood Beck site

The new landforms will clearly alter the current landform, interrupting the natural flowing form and the inevitable irregularities resulting from their shaping by natural processes. As such it is likely to always be apparent that these areas are not shaped by natural geomorphological forces, albeit vegetation will gradually help integrate the new landforms back into the landscape. In particular, the slopes proposed to the south east, which will drop to the river, will be relatively steep and have a regular appearance which is likely to read as being ‘engineered’ until such a time that the planted woodland is established (anticipated to be c.10-15 years post planting).

Annex B Internationally and Nationally Protected Sites

1.0 Previous advice on HRA (and CIA) Previous advice given to the applicant in meetings and formally in relation to this proposal has made it clear that both the Cumulative Impact Assessment (CIA) and Habitats Regulation Assessment (HRA) for this project would be required to include the entire proposal.

Natural England has previously advised in July 2013 that The York Potash project has both built elements requiring permission and emissions/discharges requiring environmental permits, it spans more than one administrative area, and also includes elements of both local and national planning significance. Natural England therefore continues to advise that the any of the “segments” of the overall York Potash project may be relevant to each individual competent authority’s HRA. As indicated by recently produced DEFRA guidance2, in such situations it is advisable for there to be coordination between the respective competent authorities. [2 Department for Environment, Food and Rural Affairs (July 2012) Guidance on competent authority coordination under the Habitats Regulations]

Subsequent to this a meeting was held on 29 July 2013 where the principle was agreed by the competent authorities present (North York Moors NPA, Redcar and Cleveland BC and PINs) that all elements of the wider project linked to the pipeline (now MTS), would need to be covered by the EIA and HRA, namely the minehead, processing facilities and the harbour.

The current position is that, without full detail of the port proposals and information lacking on the Materials Handling Facility, it is not possible to fully conclude our biodiversity advice. Indeed there is still information lacking in relation to air quality impacts derived from the minehead and MTS construction.

The HRA contains an unacceptable degree of assumption without evidence to back up the statements made, including a lack of information on impact / evidence on the potential response of interest features and the results of studies described in the document. The port proposal remains ill- defined in a number of key aspects (e.g. construction traffic / final lay down areas - these have been moved off the existing landfill site, but their final location is unknown; details on construction and height of the conveyor routes and indeed which route is to be used). AHRA should provide certainty in terms of its conclusions regarding adverse effects on site integrity so that the decision maker can demonstrate compliance with the legislation. HRA is of its nature a precautionary process so it is not possible to assume ‘no impact’ without evidence for that assertion. Where this is not possible a worst case scenario should be assumed and explored.

1.1 Impacts on Teesmouth and Cleveland Coast SPA and Ramsar Site through the Harbour Development on Teesside and Materials Handling Facility

1.1.1 SPA supporting habitat Special Protection Areas (SPAs) are classified for rare and vulnerable birds, and for regularly occurring migratory species. The birds for which SPAs are designated may also rely on areas outside of the SPA boundary. These supporting habitats may be used by SPA populations or some individuals of the population for some or all of the time. These supporting habitats can play an essential role in maintaining SPA bird populations, and proposals affecting them may therefore have the potential to affect the SPA.

It should be noted that the potential impacts that may arise from the proposal relate to the presence of SPA interest features that are located outside the current site boundary. It is advised that the potential for offsite impacts needs to be considered in assessing what, if any, potential impacts the proposal may have on European sites.

1.1.2SPA Review In addition to the cited SPA features, it is advised that further ornithological interest should to be taken into account. Ringed plover (Non-breeding) have been identified by the 2001 SPA Review as being present in numbers which would qualify them for further consideration as a new and additional feature of this SPA. An extension to encompass the little tern and potentially common tern foraging is also being considered. We have made all parties involved in this application aware that through this review process boundaries may also be extended to encompass the wintering waterbird assemblage within the application site. The entire lagoon at Bran Sands and the adjacent Dabholme Gut drainage channel are included in the proposed SPA Review as supporting habitat for the SPA wintering waterbird assemblage.

Natural England is currently drafting advice for Government which proposes that these additional features and boundary extensions are formally added to this SPA but public consultation on this has not yet commenced. However, as a matter of law and Government policy, ringed plover are not currently protected as SPA features.

Given that advice to Government on the designation of these features is being prepared and with regard to the consideration of likely impacts on these additional features and extensions, Natural England recommends that in light of the possible additions and extensions to the site, the best way to take account of this would be to follow the same assessment process for them within the ‘shadow Habitats Regulations Assessment’.

Such consideration of these additional features now and in this way, would avoid any future uncertainty about the requirement to formally re-consider any permission that may be granted and which would have the capacity to affect interest features.

Having particular regard to these species, boundaries and any likely effects on them would also be in accordance with the broad objectives of the Wild Birds Directive and help you fulfil your duty as a competent authority under regulation 9A(8) of the 2010 Habitats Regulations (as amended) to use all reasonable endeavours (so far as they lie within your powers) to avoid any pollution or deterioration of wild bird habitat when exercising your statutory functions.

1.1.3 General advice on HRA issues relating to Teesmouth and Cleveland Coast SPA (and associated component SSSIs) A meeting on 27 November 2014 with the applicant, EA, MMO and PINs was an opportunity to review potential mitigations measures that had been suggested by NE, EA and others further developed by the applicant’s consultants with alternatives for discussion. The applicant indicated that the further detail we have requested below will be presented in the forthcoming NSIP submission and ES which we will not have the opportunity to see prior to submission of this response in December 2014. We have therefore reiterated below comments already made to the LPAs and applicant in relation to the HRA supplied as part of the minehead/MTS/MHF applications.

Previous comments and preliminary view of HRA in relation to the Port supplied in a response to the LPAs and PINs of 20 November 2014 Lengthy dialogue with the statutory bodies notwithstanding, robust and well-defined mitigation measures have yet to be tabled by the applicant. Given the need to ensure overall SPA functionality, mitigation measures need to focus on providing habitat quality not just quantity. We expect to see commitment to a suite of such measures, including (but not restricted to) the following:  Securing the hydrological integrity of the Bran sands Lagoon by constructing a controllable pipe connecting it to the Tees Estuary.  If the integrity of the landfill sites allows, alteration of the current hydrological function of the Lagoon to increase tidal exchange (thereby enhancing tidal margins),  Using sediments of appropriate quality to create shallow water feeding habitats for waterbirds in carefully selected zones of the Lagoon.  Reinstating a series of small islands within the Lagoon to provide roosting and nesting opportunities for waterbirds.  Installing screens and/or bunds to minimise disturbance.  Scheduling the most disturbing construction activities to avoid the sensitive winter period. We also recommend that wider habitat creation measures are fully investigated elsewhere on the Tees Estuary, in particular the re-creation of islands at Bran Sands.

It emerged at a York Potash meeting on the port development of 24 October 2014 that there are technical constraints associated with the former landfill site adjacent Natural England is concerned that leachates derived from the landfill site may currently be affecting water and sediment quality within the Lagoon, that to date there is no plan in place to investigate (still less mitigate) leachate impacts in the future, and that consequently the long-term ecological management and sustainability of the Lagoon is under question. The Preliminary Environmental Report and HRA for these applications do not address this critical issue.

Detailed comments on the HRA are contained below – further information requirements can be summarised as follows:  Full data for the waterbird assemblage using the Bran sands Lagoon and Dabholme Gut – rather than just selected species  Full assessment of the impacts on the waterbird assemblage and the named interest features including red knot, common redshank and ringed plover during construction and operation of the proposal  Water quality information relating to leachates in Bran Sands lagoon and how these will be managed in the future  Information on hydraulic connectivity of the Tees Estuary through the connecting pipe etc.  Mitigation measures and the deliverability of such measures

We have already shared these comments on the HRA with York Potash to enable them to use them in their submission of the Harbour NSIP proposal.

Section Page Comment We note that curlew “forms part of the overall waterbird assemblage of the SPA” and are “regularly recorded as feeding in the short grass sward areas 7.3.3 37-38 at Wilton”. There was a peak of 17 in October 2013, constituting 2% of the total Tees population in that month. The document does not propose any mitigation for this potential loss of habitat. There is a need to present aggregate waterbird counts in and around the 7.4 38-42 proposed harbour site, or to contextualise them with the overall waterbird assemblage of the Tees Estuary. It is clear that Bran Sands Lagoon contains, inter alia, 17% of the Estuary’s little grebe, 24% of its shelduck, 11% of its mallard, 52% of its goldeneye, Table 7.6 40 45% of its red-breasted merganser and 5% of its redshank. These are significant proportions. Similarly, Dabholm Gut supports 14% of the estuary’s shelduck, 16% of its Table 7.7 41 mallard, 17% of its teal, 10% of its turnstone and 9% of its redshank. The Tees frontage portion of the proposed harbour site supports a five-year average of over 56 waterbirds according to this table. As with the curlew at Table 7.8 42 the MHF, no proper provision has so far been made to mitigate this loss of habitat With regard to water and sediment quality, there is no mention of the potential for leachates derived from the adjacent landfill site to affect Bran Table 8.1 45 Sands Lagoon. This emerged as a significant issue at the meeting of 24 October 2014 There is no mention (in “Habitats effects and disturbance – operation”) of Table 8.5 56 habitat fragmentation / overshadowing within Bran Sands Lagoon caused by the northern conveyor route alignment. There needs to be consideration of the in-combination or additive effects of ongoing leachate discharge from the adjacent landfill into Bran Sands Table 8.6 58-66 Lagoon. While the landfill is no longer active it remains very much subject to regulation, and is therefore clearly a “plan or project” within the scope of the Habitats Regulations. 9.5.2 72 As above, regarding ongoing leachate discharges. It is not safe to assume that since the pipe connection between the Estuary 10.3.32 84 and Lagoon will be maintained, any potential impacts caused by changes in the permeability of the existing embankment will thereby be cancelled out. It is certain that adjustments to the design of the pipe connection between the Estuary and Lagoon will be needed, not only to maintain and secure the 10.3.33 85 current tidal exchange regime, but also to allow the Lagoon to be isolated in case of pollution events. The developer should commit to this “further investigation… of the hydraulic linkage….with a view to providing mitigation for the loss of intertidal area”. At 10.3.34 86 our meeting of 24 October 2014 the developer appeared to rule out the option of increasing tidal exchange between the Estuary and the Lagoon. The assertion that “minimal overshadowing of Bran Sands Lagoon would occur” is problematic. On the contrary, the northern conveyor alignment 10.3.63 92 would inevitably cause significant construction and operational disturbance to waterbirds in what are currently relatively quiet portions of the Lagoon much favoured by little grebe, goldeneye and red-breasted merganser. The adoption of these mitigation measures, and furthermore the suggested use of sediments of appropriate quality to create shallow water feeding 10.4.4 93 habitats for waterbirds in carefully selected zones of the Lagoon is welcomed. However detailed proposals are needed to provide certainty. Habitat fragmentation / overshadowing within the Lagoon as a consequence 10.4.6 93 of the northern conveyor alignment is not mentioned here. The prediction that “the proposed harbour facility and MHF would not affect the structure and function” of the SPA is premature. Bird surveys have revealed that the area of the development footprint is extensively utilised by 10.4.11 94 SPA waterbirds. Development designs have yet to be finalised (especially with regard to the conveyor route selection) and to date the developer has made no commitment to the habitat mitigation measures necessary to maintain the area’s current levels of waterbird usage. The assessment of potential in-combination effects does not address the 11.4.1 118 ongoing impacts of leachate discharge from the Bran Sands landfill site.

1.2 Impacts on North York Moors SAC / SPA /SSSI

1.2.1 Air Quality Natural England has asked for further information on the air quality assessment provided by the applicant in their ES since, in the form presented, we were unable to draw any meaningful conclusions regarding the extent and/or the potential acceptability of the proposed development’s impacts upon the North York Moors SAC or its component SSSIs apart from the concern that the area affected is quite extensive, amounting to several hectares.

Further clarification was received on 27 November 2014. However, it is clear from the consultant’s own email (and further correspondence of 1 December 2014) that further mitigation measures are to be proposed in the New Year in a supplement to the ES. ‘More generally, as set out in the URS note, it is important to note that the information presented herein relates solely to the unmitigated scenario considered in the ES (other than the mitigation provided by the tall stacks proposed). Options for an alternative energy solution, along with other mitigation measures, are currently being explored by YPL (and modelled by URS). The outputs of this assessment will be reported on shortly and the results made available to Natural England and others.’

Our understanding at present suggests that whilst YPL consider ‘emissions from the Mine surface development site would be below the respective critical locals (Table 2 in the URS technical note). As such these values are considered to be within an acceptable range’, a process contribution (PC) below 100% of the relevant critical level or load is significantly less stringent than the criterion which Natural England would normally expect to see employed.

As a precautionary measure, it is accepted practice to apply the lower end of the habitat-relevant critical load range for nitrogen deposition; unless there is good evidence to support the use of a higher value (for example with sand dunes, where the soil pH is a determining factor).

For the majority of Ugglebarnby Moor SSSI, the lower critical load is 10kgN/ha/yr (5kgN/ha/yr for the bog area) and existing background deposition is 19.6kgN/ha/yr. For a site, such as this, where the lower critical load for nitrogen deposition is already being exceeded by the background pollution, both the Environment Agency and ourselves would currently not normally object to a further increment of up to 20% of the critical load from all new sources ‘in combination’.

However, the predicted N deposition at the point of greatest impact to the site as a whole is 3kgN/ha/yr or 30% of the critical load and, for the bog area, the predicted N deposition at the point of greatest impact is 1.2kgN/ha/yr or 24% of the critical load. These values are, therefore, significantly higher than we would normally consider as being acceptable. The maximum process contribution to acid deposition is 22% of the relevant critical load.

The predicted process contribution to the annual mean NOx level at the point of greatest impact is no less than 29.5µg/m3 or 98% of the critical level of 30µg/m3. (The maximum process contribution is a massive 817% of the 24hr critical level for NOx; but this standard is generally accepted to be more closely related to human health than to vegetation.)

Natural England looks forward to reviewing the additional information and mitigation measures to be provided in the Supplement to the ES in the New Year.

1.2.2 Hydrogeology and impacts on wet heath SAC interest features on North York Moors SAC (and SSSI features) Natural England is now satisfied with the assessment undertaken on potential impacts to the interest features of the North York Moors SAC (and SSSI).

The ES notes (14.5.32) ‘Groundwater and surface water monitoring has been undertaken to establish the baseline and is ongoing. This would continue until the start of the construction phase, at which point a revised monitoring plan would be implemented, with the objective of detecting any departure from the established baseline. This would include a contingency plan, detailing actions to be taken should a departure from the baseline be identified. Relevant guidance and monitoring requirements would be set out in the construction environmental management plan (CEMP).‘ (14.4.39) that ‘a revised monitoring plan would be agreed with the relevant consultees.’

In the CEMP Part 2 Appendix 17 in relation to the Surface Water and Groundwater Monitoring Plan (section 8.7) it is noted that specific details of the proposed monitoring strategy will be defined and agreed with the local planning authorities and Environment Agency within the Surface Water and Groundwater Monitoring Plan

Due to the proximity of the minehead to SAC interest features (and SSSI springs and flushes), it will be important that any revised monitoring plan relating to the Minehead site should be agreed with Natural England along with the National Park Authority and Environment Agency. This should also include any potential countermeasures.

Natural England has reviewed and is providing comments to the EA on their proposed conditions on groundwater monitoring.

Annex C Soils and Land Use

The Environmental Statement, together with supporting Reports and Plans are sufficient to demonstrate that the land disturbed as a result of the development, could be reinstated without loss of quality and suited, where appropriate, to a productive agricultural afteruse.

Natural England has drafted and would be pleased to provide conditions in due course to the National Park Authority which would safeguard soil resources and achieve a satisfactory standard of reclamation for agricultural or other vegetation based afteruses.

The applicant’s proposed Soil Management Plans to be set out by Appendices 2 - 7 to Chapter 16, are yet to be fully completed. However we note that the applicant proposes that acceptable earthwork activities during the winter months are to be agreed in discussion with the appointed contractor. We suggest that the following condition be incorporated “Soil handling and movement shall not be carried out between the months of October to March inclusive, unless otherwise agreed in writing by or on behalf of the MPA”. .

As the Environmental Statement includes limited information on the post – restoration aftercare and longer term management proposals for the disturbed areas, we would recommend that all reasonably foreseeable impacts and mitigation measures should, so far as practicable, be addressed in greater detail prior to the commencement of the development; especially for those part where restoration would be completed over a relatively short period.

More general advice for planning authorities on the agricultural aspects of site working and reclamation can be found in the Defra Guidance for successful reclamation of mineral and waste sites.

Annex D Geology

Temporary exposures will be created during the excavation of the minehead and tunnel. Consequently significant geological features may be exposed. The recording of these sections, combined with more detailed study where the geology revealed is of particular significance would improve our knowledge of the geology of this part of the North Yorkshire Moors and would seem to be in line with North York Moors National Park Authority LDF. Notably Core Policy C: Natural Environment, Biodiversity and Geodiversity.

The approach within the ES to addressing issues related to geological conservation is focused largely on whether or not there are identified and protected features that would be impacted along the route of the route of the pipeline. There is potential to identify new and interesting features. Thus the route of the pipeline has the potential to:  a. Improve and enhance our knowledge of the geology of the area.  b. Identify particularly significant geological assets that may,  c. Provide possible opportunities to conserve and/or interpret features. It is recommended that the Yorkshire Geological Society (Yorkshire Geological Society c/o Patrick Boylan, 2a Compass Road, Leicester LE5 2HF, UK. E-mail: P.Boylan @ city.ac.uk) and the British Geological Survey (British Geological Survey, Keyworth, Nottingham NG12 5GG [specific persons: Andy Howard [email protected]; John Powell [email protected]) are consulted with regard to the potential geological assets along the route. Material of interest (e.g. fossils) would be best deposited with Whitby or Scarborough Museums in the first instance.