Memorandum by the Royal Society for the
Protection of Birds (P 10)
MODERN PORTS: A UK POLICY
1. This submission address three specific
points of the inquiry's terms of reference: what problems and
opportunities currently face ports, particularly with respect
to the environment; whether the proposals contained in Government's
document Modern Ports: a UK Policy are adequate; and what
other policies should be pursued to benefit ports (and from RSPB's
perspective, the environment).
2. The Society has a strong track record
in the field of ports, shipping and transport issues. We provided
detailed responses to Lord Donaldson's inquiry in the Braer
incident and have developed wider transport policy (Vital Spark:
RSPB's policy on energy and biodiversity and Breaking Point:
RSPB's policy on transport and biodiversity). Subsequently,
RSPB has focused attention on the future development of the ports
industry in Great Britain and have fed the results of a detailed
economic analysis into our responses to Government consultations
on Trust Ports and integrated transport, and the European Commission's
Green Paper on sea ports and maritime infrastructure. The RSPB
is now looking at the role of shipping in the context of progressing
a more integrated approach to transport and the environment costs
and benefits this may involve.
A STRATEGIC PLANNING
3. The Society is concerned that the White
Paper fails to provide the strategic planning framework which
the ports industry requires in order to make effective long-term
plans for the future. Such long-term planning is not only important
for the ports industry, but it is also essential for effective
implementation of integrated transport policies and for achieving
environmental objectives. Two prerequisites of long-term planning
forecasting future demand for port
services and like supply needs; and
a degree of government involvement
or "intervention" to deliver plan objectives.
Unfortunately, the White Paper specifically
avoids doing either of these.
Government must take a stronger lead in planning
the role of the ports industry in delivering integrated and sustainable
4. The White Paper makes quite clear that
it is not Government's intention to "interfere" in the
ports industry (eg [1.18], [2.1.11]). However, there are numerous
statements in the White Paper which contradict this. For example,
Government states that it is opposed to complex and inappropriate
interference in the ports market [2.3.4]. This implies that it
is prepared to intervene where this is appropriate. Furthermore,
Government states that in general port infrastructure should be
commercially funded [2.1.11] and that port operations should not
in general receive public money [2.1.13]. However, the White Paper
fails to identify when Government does feel it appropriate to
intervene with public money. In contrast, the National Assembly
for Wales clearly identifies the circumstances when it will contribute
to the funding of port related infrastructure projects (over and
above the Freight Facilities Grant)where this will improve
integration of transport modes [2.2.18].
5. The RSPB believes that whilst Government
"interference" in the ports industry is inappropriate,
greater involvement is both justifiable and necessary particularly
where strategic environmental objectives (such as avoiding damage
to a site or reducing CO2 emissions) may be met.
Forecasts of both demand for and likely supply
of port facilities are possible and should be carried out by Government
to inform a strategic planning framework for the ports industry
6. Taking a stronger lead and providing
a strategic planning framework for ports in order to achieve wider
sustainability objectives requires a clear understanding of the
supply of port facilities and demand for them. The need for a
clear picture of trends and the potential need for port development
is identified by the White Paper [2.4.10]. However, the Paper
goes on to say that Government does not make or endorse forecasts
of port traffic as it does for roads and airports [2.4.16]. It
argues that it is not easy to measure port capacity and whether
it will meet expected growth in demand [2.4.1] not least because
there are no models to estimate changes in the distribution of
cargo and passengers using ports as a result of infrastructure
development [2.4.16]. This contrasts with the approach of the
national Assembly of Wales which has carried out "market
analysis" to identify the role of ports and infrastructure
needs [2.2.18] and is keen to work with the Republic of Ireland
to predict and meet future demand [2.2.19].
7. The RSPB believes that the White Paper
attempts to avoid this issue whilst actually acknowledging that
there are indicators of supply and demand. For example, Government
accepts that forecasts point to a prospective shortfall in freight
ferry and container port capacity [2.4.6] and that some ports
will need to increase capacity to meet future demand [2.4.7].
Furthermore, it is difficult to see how, without supply and demand
forecasts, Government can conclude that whilst port traffic growth
will continue to place pressure on road network at key points,
it won't have a significant impact on the network as a whole [2.6.19].
8. There are many examples of port supply
and demand forecasts which have been carried out demonstrating
tested methodologies exist:
Strategic planning by the Port of
London involved an analysis of future growth trends using economic
indicators and commercial information;
Hampshire County Council commissioned
work to assess the inclusion of port development sites in the
new structure plan by assessing the supply and demand conditions
for the port facilities which could be offered in the context
of competing ports and trade growth; and
A ports strategy was prepared by
Kent County Council, port and ferry operators and Eurotunnel to
address issues associated with the opening of the Channel Tunnel
and the growth in international traffic in Kent.
9. More recently, detailed supply and demand
studies have been carried out by Associated British Ports in relation
to their development proposals in Southampton Water. This work
looked not only at supply and demand in the UK container sector,
but also placed this in a European context.
10. The White Paper argues that forecasting
supply and demand is unwise because demand for port facilities
shiftstrading patterns change, leaving spare capacity where
there was none and creating pressure to expand elsewhere [2.4.1].
RSPB agrees that this is the case. Certainly, it would have been
difficult for the Port of London to predict the closure of Shellhaven
refinery. However, as one leading transport consultant stated,
"predicting the future is easy, it is predicting when it
will arrive which is difficult". RSPB argues that it is the
very fact that changes in the ports industry create pressures
both on the environment and wider transport networks which makes
such "capacity" planning essential despite inherent
There is strong evidence that demand for some
port facilities will continue to increase. Government should take
account of this as part of its integrated transport policy framework
11. A number of detailed studies have been
carried out which look at global trade trends and the capacity
of ports to meet demand. It is clear that over the past 15 years
there has been a steady growth in container throughput throughout
the world, with particularly strong growth in East Asian markets.
Within Europe, growth in container trade has been strongest at
north west European ports. Based on these trends and econometric
forecasts, growth in container traffic is predicted to increase
between 2000 and 2015 at an even greater rate, both worldwide
and throughout most of Europe. In Europe, container traffic is
predicted to grow quickest in north west Europe.
12. These predictions in trade growth can
be used to estimate the proportion of the total port capacity
available which will be utilised. In Europe, about 85 per cent
of available container port capacity is currently utilised. It
is predicted that this will decline to about 75 per cent in 2003
due to a number of port developments already underway. However,
by 2010 capacity utilisation will have returned to current levels.
In the UK, it has been predicted that by the year 2010 there are
likely to be shortfalls in port capacity in most sectors if the
industry remained unchanged. The greatest capacity shortfall is
predicted to be in the container (lo-lo) and trailer (ro-ro) sectors
(35.6 million quasi-tonnes and 10.4 million quasi-tonnes (central
estimate) respectively). With respect to containers, this equates
to a need for possibly an extra 4 million TEU capacity in the
UK by 2005.
13. Whilst the precise scale of the capacity
needs in the foreseeable future can be debated, RSPB believes
that based on even the most conservative estimates it is clear
that pressure for port capacity in the UK and Europe will continue
to grow. It is essential that Government ports policy provides
a sound framework within which to make strategic decisions about
how to meet future demand for port capacity. This does not amount
to "interference" in the industry, but sound planning
to ensure that integrated transport policies as a whole are met.
In addition, it will facilitate long-term planning to enable the
environmental costs and benefits to be assessed and the most sustainable
The RSPB does not accept that a commensurate increase
in port infrastructure will be necessary in order to meet the
predicted increase in port traffic and the likely shortfall in
facilities to handle it.
14. One response to predicted shortfalls
in port capacity is to increase capacity through the construction
of new port infrastructure. Predictions of future supply and demand
can be used to estimate the extra port infrastructure needed,
assuming that this is the only response to capacity shortfalls.
However, RSPB supports the policy of making best use of existing
capacity in preference to new transport infrastructure [2.4.10,
2.4.15]. The various options presented in the White Paper for
increasing existing port capacity have been considered in detail
by the RSPB. Some ports such as the Port of Felixstowe and Southampton
are already investing heavily in new technology (such as new cranes
and paperless freight transfer) to increase the efficiency of
the existing port estate. However, a significant impediment to
delivering integrated transport policies is the lack of an assessment
of what these measures might achieve overall.
There is an urgent need to benchmark the performance
of measures to increase existing port capacity and to establish
the scope of what they can achieve [2.4.10].
Government must provide a clear policy framework
for facilitating the long-term planning of ports and related transport
links at a national, regional and local level.
15. The emphasis of the White Paper on regional
planning for port development is welcome. However, as the White
Paper states, port hinterlands do not conform to neat regional
boundaries [2.5.9]. Whilst consideration of interests in neighbouring
areas will assist, the White Paper should provide the context
within which decisions about port development can be made at a
regional level. It currently fails to do this. It is possible
that the forthcoming Planning Policy Guidance Note on transport
(PPG13) might contribute to this, but earlier drafts were not
16. The RSPB supports the development of
Regional Transport Strategies which assess the role of ports and
how port traffic fits in with the capacity of road and rail networks
[2.5.7]. Work has already begun on the development of these (eg
the South East & Anglian Ports Local Authority GroupSEAPLAG).
However, the work of such groups is likely to be hampered by the
lack of a national overview and framework within which regional
17. Once a Regional Transport Strategy which
includes ports has been developed, it should provide the basis
on which transport decisions in structure plans should be made.
Such decisions should be long-term, looking 10 or even 20 years
in advance. The White Paper reflects existing guidance on including
transport policies in development plans and states that plans
should only include proposals which are firm, with a reasonable
degree of certainty of proceeding within the plan period and ideally
are programmed and have finance committed [2.5.10]. However, given
the significance of ports as part of the transport infrastructure
of the UK and the need to ensure port allocation reflects Transport
2010: the 10 year plan, RSPB believes that greater emphasis
should be placed on the protection of those sites and routes (both
existing and potential) which could be critical in developing
infrastructure to widen transport choices.
RSPB believes that the full environmental costs
and benefits of decisions relating to the provision of integrated
transport including ports must be established.
18. The White Paper states that sustainable
development requires the consideration of alternative proposals
when there are adverse consequences (environmental, social and
economic) of proposals [2.4.12]. This is a welcome recurring theme
within the White Paper [eg 2.4.15, 2.4.20]. RSPB supports the
role of Government in balancing conflicts arising from port related
proposals [2.1.7]. The Society agrees that such balancing should
go far wider than a straight-forward consideration of the proposal
itself. Consideration of alternatives must be in the widest sense.
19. The RSPB accepts that there may be circumstances
when it is desirable for a port related proposal to proceed despite
local environmental impacts, on the grounds that significant wider
environmental benefits are achieved. The White Paper states that
new capacity may be appropriate if it can be shown that there
are significant additional benefits [2.4.11] and that the net
benefits clearly override the environmental disadvantages [2.4.19].
Whilst RSPB supports this approach, it must be clear that the
benefits referred to here must be wider environmental benefits
(eg reduction in resource use or pollution).
The true environmental costs and benefits of different
transport modes are currently poorly understood and it is not
possible to make well informed integrated transport decisions
20. In order to make environmental trade-offs
between different modes of transport, the immediate, long-term,
direct and indirect environmental impacts must be fully understood.
However, many of the impacts of different transport modes are
either not quantified or are transport mode specific making direct
comparison impossible. For example, it has been estimated that
up to 47,000 badgers, 3,000-5,000 barn owns and between 20-40
per cent of amphibian breeding populations are killed on roads
each year. Others impacts are indirect. For example, it takes
120,000 tonnes of aggregates to build one kilometre of motorway.
Aggregate extraction has significant impacts of a number of important
habitats such as lowland wet grasslands and heathland.
21. The White Paper states that deepwater,
dredged environments are still of high importance to wildlife
demonstrating that port operations need not be incompatible with
nature conservation [2.5.15]. It is true that many estuaries within
which ports operate are of considerable nature conservation value.
However, it is wrong to suggest that even in these estuaries,
port operations are not having an impact.
22. Ports usually require substantial areas
of land for berths and handling facilities. Often, this leads
to the permanent loss of intertidal land of high conservation
interest. Recent major land claim activities include Felixstowe
Docks, Sheerness Docks, facilities on the Humber and Mostyn Docks
with further proposals at Dibden Bay and Bathside Bay amongst
others. A key impact of land claim is that estuarine processes
are altered. Any interference with these processes may have a
significant effect on estuarine geomorphology. It may also reduce
the ability of the estuary to absorb wave energy. This can result
in increased tidal energy reaching parts of the estuary not previously
adjusted to this, leading to the erosion of intertidal areas upstream
of the land claim.
23. The other key impact of port development
is that approach channels normally need to be dredged in order
for ships to access port facilities. It is estimated that some
30 million tonnes of sediment were dredged by ports in 1993. At
the same time, some estuaries are undergoing massive habitats
lossthe Stour has lost 44 per cent of its saltmarsh between
1973 and 1988. There is concern that the continued removal of
sediment from such estuaries is making the matter worse. Changes
in estuarine length and/or depth due to dredging can result in
major changes to tidal properties. This may lead to loss of intertidal
and subtidal habitat and increases in flood risks due to increased
wave and tidal amplitudes.
24. Whilst the construction of transport
facilities such as roads and ports can be destructive, it is often
the routine use of constructed facilities that is more damaging
in the long term. For example, noise can harm flora and fauna
with many species of bird avoiding areas close to roads for nesting.
For example, recent research has shown that stone curlew are more
likely to nest in fields at least three kilometres away from a
major road. However, a far more insidious impact on biodiversity
results from the indirect effects of burning fossil fuels. Of
particular concern in terms of their impacts on wildlife are the
greenhouse gas emissions that lead to climate change and the emissions
that lead to acid rain. These emissions appear to provide the
only currently available environmental data for comparison between
modes of transport.
25. All forms of transport that use fossil
fuels emit greenhouse gases and usually acid rain precursors.
In Europe, transport (all forms) contributes 69 per cent of CO
emissions, 58 per cent of atmospheric NOx and 1 per cent of SOx
emissions. Whilst it is clear that road transport contributes
by far the greatest amount to atmospheric pollution, shipping
contributes the next greatest in terms of gross pollution.
26. However, in comparison to other modes
of transport, ships can move large volumes of freight relatively
efficiently. Only freight transport by pipeline is more efficient.
When contributions to atmospheric pollution take account of this,
shipping is one of the cleanest forms of transporting large amounts
of freight in terms of atmospheric emissions. However, this does
not mean it is a clean form of transport. Shipping still makes
a significant contribution to certain atmospheric pollutants such
as sulphur dioxide. In addition, there are a number of other environmental
impacts which are difficult to compare with other modes of transport,
such as tributyltin (TBT) pollution and the introduction of alien
species in ballast water.
27. In order to properly assess the role
ports have in integrated transport, it is essential that the environmental
costs and benefits are established. This must go beyond simple
comparisons of habitat lost under concrete. It must assess the
contribution ports can make to the reduction of wider transport
impacts (eg reductions in atmospheric pollution, noise, consumption
of resources such as fuel) by facilitating transportation of freight
by more environmentally sustainable modes of transport such as
rail and coastal shipping.
It is a matter of considerable concern that
integrated transport policy, including the development of ports
policy has apparently been developed without full knowledge of
the environmental costs and benefits of the policies. This must
be addressed as a matter of urgency.
Most ports take their environmental responsibilities
very seriously. However, their ability to contribute to the conservation
and enhancement of wildlife is hampered by out-dated and conflicting
duties, functions and powers.
28. The White Paper suggests that the strength
of ports in the UK is that each has powers to suit its needs and
that commercial decisions and responsibility for operations rests
with those with the powers and duties which go with them [1.1.8].
The RSPB does not entirely agree. Indeed, the White Paper goes
on to state that local port legislation has not always remained
fit for the purpose as new duties tend to be overlaid on existing
requirements [3.2.3]. Some of these new duties are environmental
duties (eg the general duty to have regard to nature conservation
interests by virtue of Section 48A to the Harbours Act 1964note
this does not apply in Northern Ireland). Only a few ports appear
to have powers specifically relating to the implementation of
this and other environmental duties (eg Crouch, Chichester, Fosdyke
and Hayle). The White Paper points out that port authorities may
if they wish seek additional powers relating to the environment
(eg to make byelaws for environmental purposes). However, it is
suggested that because none have done so must mean that existing
powers are broadly adequate [2.5.27]. It is far from clear whether
this is actually the case.
29. A key problem is that it is unclear
whether a Harbour Revision Order (HRO) could be used to give a
harbour authority powers to make byelaws for environmental purposes.
This is because new powers conferred on statutory authorities
cannot be open ended: they must relate to their statutory functions.
In other words, new powers for nature conservation must be consistent
with the basic functions of harbour authorities (ie to improve,
maintain or manage the harbour or facilitate the transport of
goods and passengers by sea). Indeed, the appropriate Minister
can only make a HRO if he is satisfied that the making of the
order is desirable in the interests of securing improvement, maintenance
or management of the harbour in an efficient and economic manner
or of facilitating the efficient and economic transport of goods
and passengers by sea or in the interests of the recreational
use of sea-going ships.
30. A Government review of coastal byelaw
making powers concluded that a wider enabling power to enable
harbour authorities to make byelaws for environmental purposes
without having to seek a HRO should not be pursued. It was argued
that this would conflict with the prime duties of port authorities
to have regard to commercial considerations. Therefore, RSPB welcomes
the suggestion in the White Paper that it could be made easier
for ports to assume environmental duties and powers [2.5.57].
However, the Society has not yet seen any such proposals from
the ports industry.
In the interests of open Government and transparency,
DETR should make proposals to change the way in which ports assume
environmental duties and powers, available for public comment.
31. These issues are even more important
now that the Countryside and Rights of Way Act 2000 (CroW Act)
imposes more environmental duties on port authorities in England
and Wales [2.5.24].
Port authorities now have a duty to take reasonable
steps, consistent with the proper exercise of their functions,
to further the conservation and enhancement of Sites of Special
Scientific Interest. It is essential that the scope and extent
of port authorities powers is clarified and that they are sufficient
for the effective implementation of these new duties.
32. In addition, ports, as Section 28G Authorities
under the CroW Act, must inform the statutory nature conservation
agencies if they intend to carry out an operation likely to damage
an SSSI. The conservation agencies can advise that the operation
should not go ahead. However, the White Paper is wrong to suggest
that port authorities have a duty to follow the advice of the
conservation agencies [2.5.24]. The CroW Act merely requires the
port authority to demonstrate how (if at all) it has taken account
of the advice received. During the Committee states of the CroW
Act, amendments were tabled which would have ensured that at the
very least, such damaging operations could be "called in"
for determination by independent arbiter. Unfortunately, Government
felt that it was better to rely on the courts and the process
of judicial review for resolving such situations. The RSPB disagrees.
Therefore, it is of interest that the White Paper suggests that
Government plans to seek reserve powers to use where a port authority
is failing to discharge any of its legal functions and a risk
of loss of life, injury, danger to navigation or marine pollution
is likely [4.2.8]. This power would be warmly welcome if it was
extended to include environmental reasons.
33. It will be essential that clear advice
and guidance is provided to ports on meeting their new duties
under the CroW Act. Government must ensure that the proposed statutory
guidance on Section 28 of the Wildlife and Countryside Act 1981
(as amended) provides clear, unequivocal guidance for ports.
RSPB believes that effective implementation
of the Countryside and Rights of Way Act 2000 will require:
clarification about the extend
of the environmental powers of port authorities and whether they
are fit for the purpose of conserving and enhancing SSSIs;
procedures to ensure that inappropriate
damaging operations cannot be carried out against the advice of
the statutory nature conservation agencies; and
clear advice to port authorities
on meeting their new environmental responsibilities.
34. Port authorities are competent authorities
under the "Habitats" Regulations. As competent authorities,
harbour authorities have certain environmental duties relating
to Special Protection Areas (SPAs) and Special Areas of Conservation
(SACs). They must exercise their functions so as to secure compliance
with the requirements of the Habitats Directive. It is far from
clear how harbour authorities should implement these Regulations.
35. Furthermore, port authorities may establish
a management scheme for a European marine site. Note that the
White Paper says that the Habitats Directive requires port authorities
to take part in the preparation of management plans [2.5.23].
Whilst this would be welcome, and indeed the vast majority of
port authorities operating within European marine sites where
a management plan is being prepared are believed to be involved,
this is not a statutory requirement. Guidance on the establishment
of management schemes for European marine sites states that where
regulation is needed the measures may be based entirely upon the
existing powers of the relevant authorities if they are capable
of being used to achieve the objectives of designation. In other
cases, relevant authorities may need to consider seeking changes
to the ways their existing statutory jurisdiction is applied using
the established procedures for that purpose. It is suggested that
harbour authorities might need to apply for new powers by means
of a harbour revision order. However, as discussed above, it is
unclear whether this is, in law, a route open to harbour authorities.
RSPB believes that the ability of port authorities
to make a full contribution to the conservation and management
of European marine sites may be curtailed due to restrictions
in the extent of management powers.
36. The White Paper outlines the framework
within which decisions should be made about port development proposals.
The RSPB welcomes key features of this framework. Ports planning
expansion are expected to demonstrate that:
existing facilities with increased
efficiency could not meet demand [2.4.11];
the full range of alternative options
have been considered [2.4.15];
the proposals are commercially viable
measures to reduce or eliminate any
adverse affects (mitigation measures) have been fully considered
early at the design stage [2.4.17]; and
if adverse affects remain, that the
net benefits clearly override the environmental disadvantages
37. It is the Government's intention to
maintain a balanced policy on development and support sustainable
projects "where there is a clear need" [1.2.2, 1.2.3,
2.4.7]. Whilst such objects are laudable, there is little indication
as to how Government intends to strike a balance, what constitutes
a "sustainable" project or a "clear need".
The White Paper states that all ports serve the national interest
and that it is in the national interest that ports remain able
to handle current trade as well as potential development [1.1.2].
This at least provides some indication of how a balance is to
be struck. However, whilst RSPB believes that achieving this for
the ports industry as a whole is in the national interest, this
does not mean that maintaining every single port is a national
Government must provide greater clarity on how
it intends to strike a balance between port development and environmental
considerations in order to deliver sustainable port development.
38. For new developments, the White Paper
draws on the approach outlined in the Integrated Transport White
Paper. The RSPB broadly supports the approach outlined [2.4.20].
However, there is an urgent need to clarify some of the principles
39. The White Paper asks whether there are
alternatives which serve the purpose of the proposal at "reasonable
cost". It is important to consider precisely what the purpose
is. In the context of an individual port's commercial aspirations,
the purpose of a damaging dredge proposal might be to ensure larger
ships can access port facilities and thus increase their market
share. However, if ports are considered a national interest, then
the purpose of the proposal must be to serve that national interest.
Therefore, it would be inappropriate to define the purpose in
terms of an individual port. Instead, the purpose must be defined
in terms of national socio-economic interests (eg delivery of
integrated transport objectives) as well as national environmental
objectives. Such decisions are of critical importance with respect
to implementing Article 6 of the Habitats Directive.
Government should develop a clear and transparent
process for establishing what constitutes national interests in
the terms of port development and the environment
40. The White Paper raises the issue of
reasonable costs, both in the context of alternative proposals
and with respect to mitigation or compensation measures. However,
no guidance exists concerning how to make decisions about reasonableness.
The RSPB is aware of only one occasion where costs to a port in
terms of alternatives has been considered. The Secretary of State
concluded whilst considering the revocation of a planning permission
to dispose of dredge material at Barksore in the Medway, that
although pursuing alternative sites would be more costly (up to
four times), current dredge disposal costs only amounted to 0.7
per cent of port turnover. Whilst this would affect the competitiveness
of the port, it was concluded that it was not clear that this
would jeopardise the continued commercial success of the port.
Indeed, it was pointed out that there is nothing in Regulation
49(1) of the Habitats Regulations (and by implication Article
6.4 of the Habitats Directive) to suggest that alternative solutions
considered must be equivalent in terms of costs.
Government should develop criteria for establishing
what it considers to be "reasonable costs" in terms
of alternatives to damaging proposals as well as mitigation and
41. The White Paper requires port developers
to consider the likely success of mitigation and compensation
proposals. It provides further guidance in this respect in relation
to mitigation and compensation measures which involve habitat
creation [2.4.22]. It states that the quality of the habitat created
would be expected to become good enough to safeguard the coherence
of the network of protected sites and that this should happened
within a clear timescale. RSPB believes that these objectives
do not reflect guidance from the European Commission in relation
to European wildlife sites. For example, in a reasoned opinion,
the Commission stated that the compensation measures relating
to the construction of the A20 in Germany had to be taken simultaneously
with the construction works. Furthermore, the Commission's guidance
note on Article 6 of the Habitats Directive states that compensation
"has normally to be operational at the time when the damage
is effective on the site concerned with the project unless it
can be proved that this simultaneity is not necessary to ensure
the contribution of this site to the Natura 2000 network".
In addition, RSPB would argue that simultaneity may be unwise
where the impacts of a proposal are uncertain.
Government should as a matter of policy, require
compensatory habitats to be established and shown to be operational
prior to a site sustaining damage
42. This presents developers with a problem:
they should invest in appropriate habitat creation in advance
of proceeding with a damaging development. This has two consequences:
(i) If a developer waits until their proposal
has received consent, then starting work on the development itself
would have to be delayed until the required habitat has been created
and shown to function; or
(ii) If a developer wishes to proceed with
a damaging proposal as soon as consent is received, then habitat
will need to be created in advance of knowing whether it will
actually be required.
43. To an extent, the White Paper recognises
this as an issue when it states that ports must carry out assessments
at an early stage of project preparation if they are not to limit
their ability to respond quickly to new customer demands [2.4.19].
However, RSPB would reiterate the cautionary note of the White
Paper, that habitat creation may be costly, difficult or ecologically
44. The difficulties in providing adequate
new habitat as mitigation or compensation measures, both in terms
of the uncertainties of the developer as well as for nature conservation,
has led to a debate about the merits of "habitat banking".
In effect, this is where the developer either creates habitat
in advance of firm development proposals, or buys "credits"
from an "entrepreneur" who has created new habitats
for the purpose of selling them to developers who need to offset
damage. The RSPB has looked at the habitat land banking issue
in some detail albeit in relation to providing new coastal habitats
to replace those lost due to rising sea levels. However, there
are a number of significant issues which need to be considered
before such ideas can be progressed.
45. The most significant issue to address
is the relationship between any habitat banking framework and
existing nature conservation policy and law. For example, the
RSPB would be very concerned that the provision of the habitat
"up-front" might short-cut the provisions of Article
6 of the Habitats Directive by allowing developers to conclude
that a damaging development along with a habitat bank would mean
no overall adverse affect on a site. This would mean important
issues such as the search for less damaging alternatives and establishing
an imperative reason for overriding public interest would not
be addressed. This is not to say that such an approach should
be discounted out of hand, but that the framework in which it
can operate whilst meeting international and national nature conservation
obligations must first be established.
Government should establish a working group consisting
of the DETR, industry, statutory nature conservation agencies
and NGOs, to assess the relevance of the habitat banking concept
and its compatibility with wildlife conservation policy and law.
46. The consenting regime for developments
below the low water mark (generally outside local authority jurisdiction
and the Town and Country Planning process) is complex, fragmented
and lengthy. For example, a port authority wishing to construct
a new quayside is like to have to deal with at least two Government
Departments (DETR and MAFF) as well as two separate divisions
within DETR (European Wildlife and Ports). In addition, it is
likely to require the permission of the Crown Estate and may require
other consents such as for discharges from the Environment Agency.
This fragmented approach to maritime planning and management has
been subject to extensive reviews. More recently, the issue has
once more been considered by DETR's Review of marine Nature Conservation
working group. All conclude that the consenting regime in the
maritime environment needs rationalising.
47. Therefore, the RSPB welcomes the proposals
in the White Paper for a simplification and rationalisation of
procedures for port development [3.2.8] and for better co-ordination
of Government Department activities [3.2.10]. However, in doing
so, care must be taken to ensure transparency, rigour and the
involvement of all interested parties is not compromised. It has
been suggested that the "needs" case could be established
before an assessment of the implications of a proposal is made,
thus avoiding time-consuming and expensive work to establish impacts,
only to find the project cannot proceed because there is no overriding
public interest. However, this approach would not be consistent
with the logic of Article 6 of the Habitats Directive which correctly
places this decision at the end of the process. It is essential
that this is the case. A decision about "needs" cannot
be made in the absence of knowledge about the impacts. The decision
must include consideration of the scale of impacts, likelihood
of them occurring, the irreversibility of the impacts.
The proposed review of maritime consenting
procedures which relate to port developments is welcome. However,
it is essential that current environmental safeguards and especially
the requirements of wildlife conservation policy and law are not
48. Work carried out by the RSPB suggests
that at least 77 ports in the UK operate within or have jurisdiction
over 44 internationally important bird sites which are, or should
be classified SPAs. This analysis would now need to also include
estuarine sites included on the proposed SAC list. The UK ports
industry has often suggested that because the coastline of the
UK is so important for wildlife, that it constrains their activities
and places them at a competitive disadvantage with their mainland
Europe counterparts. For example, the Port of Bristol was opposed
to the inclusion of the Severn estuary on the SAC list in part
because it would in their view disadvantage the port by requiring
development proposals to go through lengthy inquiry procedures.
The matter was resolved to an extent at the European Court of
Justice which ruled that economic, social and cultural requirements
could not be taken into account when identifying sites under Article
4(1) of the Habitats Directive.
49. The majority of ports on the northwest
coast of Europe also operate within or adjacent to internationally
important bird areas. However, it is clear that the implementation
of the Birds (and probably the Habitats Directives), that the
delineation of sites close to ports varies considerably from country
to country. This is an issue which has not escaped the notice
of the European Commission. For example, the French Government
was found in breach of the Birds Directive due to a failure to
designate sufficient area of the Seine estuary as a SPA. The proposed
area had been defined in agreement with the Autonomous Ports of
Le Havre and Rouen.
RSPB believes that the selection of European
wildlife sites varies considerably throughout Europe especially
where economic interests such as ports are involved. The UK Government
should apply pressure on the European Commission to ensure that
the application of the Directives is consistent throughout Europe
so as to avoid competitive distortions.
50. It would also be wrong to suggest that
all ports in Europe operate within a less stringent environmental
regime. Increasingly, other ports are now actively involved in
the development and provision of mitigation and habitat compensation
measures (eg Bremerhaven). Work by the International Navigation
Congress (PIANC) in which RSPB participates, has identified a
wide range of different environmental works carried out by ports
throughout Europe in response to the environmental implications
of their operations. PIANC intend to publish a "good practice"
guide based on these examples. Government should consider this
work when promoting agreed national standards and good practice
for port management and operations [1.2.2].
The RSPB believes that where European sites
have been designated, that ports throughout Europe are increasingly
taking their environmental responsibilities very seriously and
thus reducing the potential for competitive distortion.
18 January 2001