Dibden Bay Inquiry - Inspector's Report
Front Cover
Report to the First
Secretary of State and the
Secretary of State for
Transport
by Michael Hurley BA DipTP MRTPI
an Inspector appointed by the Secretaries of State
The Planning Inspectorate
Temple Quay House
2 The Square
Temple Quay
Bristol BS1 6PN
 GTN 1371 8000
Date
22 Sept 2003
HARBOURS ACT 1964
TRANSPORT AND WORKS ACT 1992
TOWN AND COUNTRY PLANNING ACT 1990
ACQUISITION OF LAND ACT 1981
APPLICATIONS FOR ORDERS, PLANNING PERMISSIONS
AND AN EXCHANGE LAND CERTIFICATE
by
ASSOCIATED BRITISH PORTS
in connection with
THE PROPOSED DIBDEN TERMINAL
Land in
NEW FOREST DISTRICT
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Dibden Bay Inquiry - Inspector's Report
1
1.1
Introduction
I was appointed to hold an Inquiry (or more strictly a series of concurrent Inquiries)
into various applications made by Associated British Ports (ABP) in connection with
their proposal to develop a new deep-water container terminal at Dibden Bay,
Hampshire. The subjects of the Inquiry were:
 An application for an Order to be made under Section 14 of the Harbours Act
1964, in the form of the draft Port of Southampton (Dibden Terminal)
Harbour Revision Order 2000 (the HRO).
 An application for an Order to be made under Sections 1 of the Transport and
Works Act 1992, in the form of the draft Fawley Branch Line Improvements
Order 2000 (the TWAO).
 A planning application (ref. 70243) dated 2 October 2000, for alterations to
the A326 between the Michigan Way Roundabout, Totton, and the Pilgrim
Inn, Marchwood; and to the A326 and Hythe Road, between the Pilgrim Inn
and Veal's Lane, Marchwood. The proposed alterations include the widening
of the A326, the signalisation of junctions, the construction of a Terminal
Access Road junction, bridgeworks, earthworks and associated landscaping.
 A planning application (ref. 75359) dated 19 June 2002, for the widening of
the Ashurst Railway Bridge on the A326 at Totton, and for the extension of a
proposed footway/cycleway at Hythe Road and Veal's Lane Marchwood.
 Two planning applications (refs. 70255 and 72426) respectively dated 2
October 2000 and 2 July 2001, for the erection of noise barriers alongside
parts of the Fawley Branch Railway Line.
 An application for an Order to be made under Section 248 of the Town and
Country Planning Act 1990, to authorise the stopping up of parts of the
existing highway at Hythe Road, Marchwood.
 An application for a Certificate under Section 19 of the Acquisition of Land
Act 1981, relating to the provision of land at West Cliff Hall in exchange for
open space at the Hythe Marina Bund.
1.2
The four planning applications were originally made to the New Forest District Council
as local planning authority, but were called in by the Secretary of State for his own
determination under Section 77 of the Town and Country Planning Act 1990. The
reasons for calling in the applications were as follows:
The Secretary of State is of the opinion that the applications are such that he
ought to decide them himself because of their association with proposals for
the development of port facilities at Dibden Bay which have been submitted to
him for approval.
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Dibden Bay Inquiry - Inspector's Report
1.3
Notices of the applications for the HRO, the TWAO, the Exchange Land Certificate
and the Stopping-up Order were published in accordance with the statutory
requirements. A total of 6,141 persons or organisations objected to the proposed
development1. This includes those who made representations to the Secretary of State
in respect of the Orders and those who made representations to the New Forest District
Council in respect of the planning applications. In a substantial majority of cases,
objectors commented on the project as a whole, and did not differentiate between the
various applications. In addition to the objections, there were 190 other representations
made, including 172 expressions of support for the proposed development.
1.4
A number of objections have now been withdrawn. These include objections to the
proposed compulsory purchase provisions in the TWAO that were made by Freightliner
Ltd; Corrall's Coal; Railtrack Ltd; and English Welsh and Scottish Railways Ltd. Other
objections that have now been withdrawn include those made by the Rail Freight
Group; Transco plc; Southern Water Services Ltd; Laporte Performance Chemicals
Ltd; Shanks Chemical Services Ltd; EniChem UK Ltd; and Cable and Wireless UK
Services Ltd. In preparing this report I have taken account of all the remaining
objections, expressions of support for the proposed development, and other
representations.
1.5
Amended application plans for the A326 improvements (ref. 70243) and the Fawley
Branch Line noise barriers (refs. 70255 and 72426) were submitted on 11 October
2002. These amendments were subsequently advertised by the New Forest District
Council. No objections were made to the applications being determined on the basis of
the amended plans. The amended plans are documents CD/ABP/123 and 124
respectively2.
1.6
The draft HRO and the draft TWAO are the subject of separate Environmental
Statements (CD/ABP/3 and CD/ABP/6). These Environmental Statements (ES) are
supported by a series of Technical Statements (CD/ABP/13 to CD/ABP/68 and
CD/ABP/72). In addition, ABP have produced two supplementary Environmental
Statements. The first of these deals with a proposed modification to the HRO in respect
of the Hythe Marina Bund (CD/ABP/114). The second deals with the proposed
alterations to the Ashurst Railway Bridge and the Hythe Road Footpath Extension
(CD/ABP/116). I have taken account of this environmental information in preparing
this report.
1.7
The Secretary of State announced his decision to hold a Public Inquiry on 31 January
2001. On 6 February 2001 all those who had made representations were notified that
the Code of Practice for Major Planning Inquiries, as set out in Annex 4 of Circular
5/2000, would be applied as appropriate.
1.8
An Inquiry Secretariat was established in accordance with the Code of Practice. This
was led by Bob Wiggins, the Inquiry Manager. Other members of the Secretariat
included Val Lucas, the Programme Officer; and Louise Kavanagh, the Documents
Officer.
1
As a result of some double counting, a somewhat higher figure was announced at the pre-inquiry
meeting. This figure has been used in evidence by some inquiry participants
2
A note on the numbering of inquiry documents is contained in Appendix 4.
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Dibden Bay Inquiry - Inspector's Report
1.9
Andrew Phillipson BSc CEng FICE MIHT was appointed Deputy Inspector. He was
present throughout the Inquiry and has assisted me in the preparation of this report.
Chris Gossop BSc MA PhD MRTPI was appointed Assistant Inspector. He attended
those parts of the Inquiry that dealt with nature conservation, and has assisted me with
the preparation of the corresponding parts of this report. Professor Keith Dyer MSc
PhD FGS, who is a professorial research fellow at the Institute of Marine Studies,
University of Plymouth, was appointed as Assessor, to advise me on erosion,
sedimentation and related matters. He attended the relevant parts of the Inquiry and his
report is attached at Appendix 1.
1.10 I wish to record my appreciation for the work undertaken by Mr Phillipson, Dr Gossop,
Professor Dyer and the members of the Secretariat. They each made a considerable
contribution to the Inquiry, which should not pass without acknowledgement.
Pre-Inquiry Procedures
1.11 A register of those wishing to participate in the Inquiry was compiled in accordance
with the Code of Practice. In all, 34 participants were listed in Part 1 of the register.
Each of these was required to produce a Statement of Case. The Part 1 participants
played a major role in the Inquiry, calling and cross-examining witnesses. In addition
there were 101 participants listed in Part 2 of the register. Most of these chose to make
oral statements. However, they neither called nor cross-examined witnesses. A list of
the persons who appeared at the Inquiry is provided in Appendix 2.
1.12 I held a Pre-Inquiry Meeting at the Queen Elizabeth 2 Terminal in Southampton on 23
April 2001. A note of the matters arising at that meeting was sent to all those who had
made representations and is attached at Appendix 3. At the Pre-Inquiry Meeting, it was
established that the Inquiry would be organised on a topic basis.
1.13 Immediately following the Pre-Inquiry Meeting, a Joint Working Party was established
to facilitate agreement between prospective participants prior to the Inquiry. This was
chaired by Mr Phillipson. The Joint Working Party set up a series of Joint Data Groups
(JDG) each of which produced an Agreed Statement of Fact. These statements covered
most of the proposed inquiry topics (CD/GEN/1 to CD/GEN/20A). The applicants and
the local planning authority decided that the Agreed Statements of Fact, which they had
jointly endorsed, should constitute their Agreed Statement of Common Ground for the
purposes of Rule 14 of the Town and Country Planning (Inquiries Procedure) (England)
Rules 2000. The Joint Working Party was formally dissolved before the Inquiry
opened. However, several JDGs continued to meet and subsequently deposited
supplementary Agreed Statements of Fact.
1.14 Arrangements were made to establish a library of inquiry documents. This contained a
set of core documents suggested by inquiry participants, as well as all the documents
produced by witnesses. The library documents were available for public inspection
throughout the Inquiry, and copying facilities were provided. A list of documents is
provided at Appendix 4, together with an explanatory note on the document numbering
system.
1.15 On 25 July 2001 the Secretary of State issued a statement setting out the matters about
which he particularly wished to be informed for the purposes of his consideration of the
applications. This is reproduced in Appendix 5.
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Dibden Bay Inquiry - Inspector's Report
1.16 Following the Pre-Inquiry Meeting, the Inquiry Secretariat issued a series of Advice
Notes dealing with various procedural matters. Further Advice Notes were issued
during the course of the Inquiry as the need arose. These can be found in Appendix 6.
An inquiry website was also established. The material on the website included the
inquiry programme, the register of participants, the list of matters about which the
Secretary of State particularly wished to be informed, the list of inquiry documents and
the Advice Notes.
Site Visits
1.17 Mr Phillipson and I made a series of accompanied site inspections 3, before during and
after the Inquiry. These included inspections of:

the application sites (including the Fawley Branch Railway Line);

the Fawley Refinery; the premises of EniChem UK Ltd; the Pilgrim Inn at
Marchwood; and the Sea Mounting Centre, Marchwood (which is known
locally as the Marchwood Military Port and is referred to as such in this
report);

Southampton Docks and the Southampton Container Terminal (SCT).
In addition we saw the application sites from Southampton Water; and from various
points in the City of Southampton and the New Forest District (including several
private properties as well as public places). We observed buoys placed in
Southampton Water along the quay line of the proposed Terminal; and we twice
observed balloons flown to simulate the height of the proposed quayside cranes.
1.18 In January 2002, we observed wintering waterfowl at Dibden Bay and other sites
adjacent to Southampton Water. In June 2002, we viewed the natural features of the
HRO site in summertime.
1.19 We made an accompanied nocturnal visit to locations in Hythe, Marchwood and
Southampton in order to witness and measure existing noise levels. We also took an
accompanied nocturnal cruise along Southampton Water to observe the impact of
existing artificial lighting and areas of darkness. In November 2002, we made an
accompanied inspection of the ro-ro carrier "Falstaff" in Southampton Docks, at which
noise measurements were taken.
1.20 We made accompanied visits to Shellhaven and to Felixstowe (where the noise from
the existing port was measured); and an unaccompanied visit to Bathside Bay. During
the course of the Inquiry we also made numerous unaccompanied visits to see features
and locations that had been referred to in evidence. These included a number of
nocturnal visits.
3
Accompanied visits were always attended by at least one representative of ABP and one representative
of the County and District Councils.
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Dibden Bay Inquiry - Inspector's Report
The Inquiry
1.21 The Inquiry opened on 27 November 2001 at the Applemore Sports Centre, Hythe.
After the first week, it transferred to the Ferry Terminal, European Way, Southampton.
A number of people expressed their dissatisfaction at the decision to hold the main part
of the Inquiry outside of the New Forest District. However, special local sessions for
Part 2 participants were held at Applemore College, Hythe, on 29-31 October 2002.
These included evening sessions.
1.22 A daily transcript of the inquiry proceedings was produced and placed on the inquiry
website. I must commend the transcript writers for the excellent service they provided.
The transcripts are included with the inquiry documents.
1.23 During the Inquiry, the Secretariat received a number of items of correspondence from
Messrs MacFarlanes, who acted for the promoters of the proposed London Gateway
development at Shellhaven in Essex. MacFarlanes made it clear that their clients were
not objecting to the proposed Dibden Terminal, and that they were not a party to the
Dibden Terminal Inquiry. The purpose of their submissions was to draw attention to
alleged inaccuracies in the evidence that had been given and examined at the Inquiry,
and published in the daily transcripts. In the interests of openness, I treated these items
of correspondence as inquiry documents and disclosed them to inquiry participants.
They are contained in CD/INQ/9 to 12, 28 and 29. Their contents are self-explanatory.
1.24 The Secretariat also received an unsolicited copy of the Environmental Statement
produced in respect of the London Gateway proposals, together with a voluminous
quantity of supporting documentation. This material was placed in the inquiry library.
I announced that any participant who wished to draw any part of it to the Inquiry's
attention could do so, if necessary by copying relevant extracts which would then be
treated as inquiry documents. However, I indicated that this material would not
otherwise be treated as an inquiry document. I also indicated that neither the Deputy
Inspector nor I would consider any part of it that was not expressly brought to our
attention by an inquiry participant.
1.25 During the Inquiry, I made it clear that I did not consider that it would be appropriate
for me to attempt to rank proposals for container terminals (such as those at Dibden
Bay, London Gateway and Bathside Bay) in order of merit (CD/INQ/8 and
CD/INQ/16). It was not the function of the Dibden Terminal Inquiry to investigate
other possible development proposals in great detail; and it is not within my remit to
express a view about whether permission should be granted for any other scheme. I am
conscious of the fact that neither the promoters of other schemes, nor prospective
objectors to them, had any reason to attend the Dibden Terminal Inquiry in order to
advance their arguments.
1.26 However, evidence about the credibility and feasibility of proposed container port
developments elsewhere was admitted, in order to test the potential ability of those
projects to contribute to the national requirement for container handling capacity. In
this connection, I note that in his letter of 25 July 2001, the Secretary of State
specifically sought information to help him decide whether there are alternative
solutions to the Dibden Terminal scheme.
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Dibden Bay Inquiry - Inspector's Report
1.27 In the closing stages of the Inquiry, I received the draft of a legal agreement between
ABP and the Environment Agency, dated 27 November 2002 (CD/ABP/95J, Tab 3).
This had not been signed and sealed by the time the Inquiry closed; but Counsel for
ABP invited me to proceed on the basis that the document would be duly signed. It has
subsequently come to my attention, through the Inquiry Secretariat, that the text of the
agreement as eventually signed may have been altered after the close of the Inquiry.
For the avoidance of doubt, I should make it clear that the relevant references in this
report are to the final draft agreement as considered at the Inquiry, and take no account
of any subsequent alterations.
1.28 On the final day of the Inquiry, I received the drafts of an agreement and an
undertaking made under Section 106 of the Town and Country Planning Act 1990
(ABP/0/149). I understand that these have now been signed and sealed in the form
considered at the Inquiry.
1.29 The Inquiry closed on 12 December 2002, having sat on a total of 120 days.
1.30 Sadly, I must report that I have been informed that two of those who addressed the
Inquiry have since passed away. Mr Paul Whitehouse and Councillor Nick Smith each
made a considerable contribution to the Inquiry's work. May they now rest in peace.
1.31 Inevitably some months have elapsed between the close of the Inquiry and the
completion of this report. During that time, material circumstances may have changed.
For instance, proposals relating to container port developments elsewhere in the
country may have progressed; new policies may have been introduced; new studies
may have been published; and a final decision may have been reached with regard to
the boundary of the New Forest National Park. However, my conclusions and
recommendations are based on the evidence considered at the Inquiry and take no
account of subsequent events.
Structure of this Report
1.32 Chapter 2 of this report contains a description of the application sites and the
surrounding areas. The following chapters set out the gist of the cases made by each of
the inquiry participants. Their submissions (including any legal submissions) and the
main points given in evidence are summarised, case by case. The main points made by
those who made written representations are also noted. The final chapter contains my
conclusions and recommendations. A list of the abbreviations used in this report is
included at Appendix 7, together with a list of Government and similar policy
documents referred to by shortened titles.
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Dibden Bay Inquiry - Inspector's Report
2
The Application Sites and Their Surroundings
The Dibden Reclaim and Foreshore
2.1
The site of the proposed Dibden Terminal is on the west bank of the River Test, just
above the point at which that river joins the River Itchen to form Southampton Water
(ES, Figure 4.1). For the most part, the proposed Terminal would occupy land that has
been reclaimed from the inter-tidal area by the deposit of dredgings. The Dibden
Reclaim covers approximately 240ha and has a river frontage of about 2.1km. The
distance between the river frontage and the landward edge of the Reclaim (the former
shoreline) varies from about 0.6km to 1.1km. The whole of the Reclaim is within the
area covered by the draft HRO (ES, Figure 3.1, Area 1).
2.2
The Reclaim is generally level (NFDC/7/3, p45). At the river's edge its surface rises to
heights of between 4 and 7m AOD. There is a barely perceptible fall across the site
from east to west. On its landward side, the surface of the Reclaim is between about 3
and 4m AOD. Surface water from the Reclaim drains in a westerly direction. After
prolonged rainfall the western part of this land becomes waterlogged, and ephemeral
ponds form there during the winter (NFDC7/3, p51).
2.3
The Reclaim is bounded and subdivided by engineered bunds of granular material.
These were formed to contain the dredgings as they were pumped ashore. The
dredgings have now dried out, and today the Reclaim provides rough grazing land. It is
divided into large fields, which are separated from one another by post and wire fences.
A small area of scrub has developed at the northern corner of the Reclaim. Otherwise
the area is characterised by open grassland with little vegetation of significant height
(NFDC7/4, Frontispiece and Photos NW-A1 to NW-A8). There is no right of public
access to the Reclaim.
2.4
A variety of materials have been placed along the Reclaim's shoreline, to protect the
land from erosion. These include the remains of "Mulberry Harbour" components,
which were manufactured nearby during World War II. The Dibden foreshore consists
of the remnant of the inter-tidal mudflat, which previously extended across the site of
the Reclaim (NFDC7/3, p48). Up to 76ha of mudflat is exposed at low water. The
exposed mud provides a feeding ground for various waterfowl. During my winter site
visit, I saw numerous birds here, including Oystercatcher, Grey Plover and Dunlin. At
high water, the Dibden foreshore is entirely submerged.
2.5
In addition to including the Dibden foreshore, the area covered by the draft HRO also
encompasses a sub-tidal area, which extends eastwards up to the main shipping
channel.
Hythe Marina Village, Hythe, and the Hythe to Cadland Foreshore
2.6
At its south-eastern end, the Dibden Reclaim is separated from Hythe Marina Village
by an artificial mound, known as the Hythe Marina Bund. The Bund is of variable
height, rising to a maximum of about 10m AOD. It runs inland from the shoreline for a
distance of about 400m; and is about 100m wide. The Bund has been attractively
landscaped, and is accessible to the public by means of clearly defined pathways
(HMV/0/1, Section 2, Photos 3 to 6 and Plan 7). From it there are fine views over
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Dibden Bay Inquiry - Inspector's Report
Southampton Water, and across the Dibden Reclaim towards the New Forest.
Immediately adjacent to the shore, a rectangular area of about 0.4ha has been excluded
from the Hythe Marina Bund to accommodate a commercial boatyard. The Bund and
boatyard are within the area covered by the draft HRO. The public open space on the
Hythe Marina Bund, which has an area of about 3.6ha, is the subject of the proposed
Exchange Land Certificate (CD/ABP/70).
2.7
Hythe Marina Village occupies land reclaimed from Southampton Water, and forms
part of the built-up area of Hythe. It is a recently completed, high-quality development,
containing 224 dwellings and a 472-berth marina, as well as some shops and a public
house (HMV/0/2, Sheets 5 to 9). Vessels enter and leave the marina by means of a
lock. Hythe Marina Village is outside the area covered by the draft HRO. However, its
closest dwellings are within about 10m of the Order land, across Endeavour Way
(HMV/0/1, Section 1, Plan 4).
2.8
Hythe Marina Village is generally peaceful, but not completely silent. Particular
sources of noise include road traffic; aircraft travelling to and from Southampton
Airport; the passage of vessels on Southampton Water; the railway on Hythe Pier; and
the operation of Southampton Docks. At night, the street lighting is subdued, and parts
of the development are relatively quiet for long periods. However, from time to time
the near silence is broken, for instance by the sound of a passing plane or ship, or by
other forms of activity.
2.9
Hythe is a substantial settlement, which has merged with Dibden Purlieu to form a
continuous built-up area. The town centre includes a pedestrianised shopping area. Its
buildings are mostly on a domestic scale, and the townscape has a particular charm.
There is a Victorian pier, from which a regular passenger ferry service provides access
to Southampton. A pier railway carries passengers to and from the ferry.
2.10 RAF Hythe (also known as the Hythe NATO Base) is located on the shore of
Southampton Water at the southern end of the built-up area. It includes a jetty and
moorings, and is currently used by the US military for the maintenance of vessels. The
moorings of the Hythe Sailing Club lie a little to the south of RAF Hythe.
2.11 Approximately 219ha of the foreshore to the south of Hythe, between the Hythe Sailing
Club and Cadland Creek, is included within the draft HRO (ES, Figure 3.1, Area 10).
This area consists of both saltmarsh and inter-tidal mudflat. The saltmarsh, which
covers an area of about 75ha, consists largely of a cordgrass sward. It is drained by an
intricate system of channels (NFDC7/4, Photos NW-A11 to NW-A14). Along the
seaward edge of the saltmarsh, the tides have deposited cockle shells in linear banks,
know as cheniers. During my winter site visit, I saw a number of waterfowl on the
inter-tidal mud between Hythe and Cadland Creek. These included Oystercatcher,
Curlew, and a flock of well over 100 Dunlin.
2.12 The land behind the Hythe to Cadland foreshore is occupied by parts of the Fawley
petro-chemical complex. Outfalls from the Esso Oil Refinery discharge into Cadland
Creek. Outfalls from premises operated by EniChem, Laporte and Shanks discharge
onto the foreshore between Hythe and Cadland Creek (EA/2/1, Figures 4.2 to 4.4 and
4.8 to 4.16).
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Dibden Bay Inquiry - Inspector's Report
West of the Dibden Reclaim
2.13 On its south-western side, the Dibden Reclaim is bounded by the curtilage of West
Cliff Hall (ES, Figure 3.1, Area 3). West Cliff Hall is a substantial 2-storey Victorian
building, which was last used as a hotel but is now derelict. It stands in extensive,
overgrown grounds, immediately to the north of West Street and the built-up area of
Hythe (CD/ABP/51, Appendix C-5). The northern part of the grounds of West Cliff
Hall, which consists of about 3.8ha of open grassland, is proposed as a replacement for
the open space on the Hythe Marina Bund in the Exchange Land Certificate
(CD/ABP/70).
2.14 To the west, the grounds of West Cliff Hall abut an attractive area of pasture land,
characterised by small fields enclosed by hedgerows and mature vegetation. The
Fawley Branch Line, a single track railway that links the Fawley Refinery with the
London to Weymouth main line at Totton, runs from south-east to north-west through
this area. West Cliff Marsh, a small area of unimproved grazing marsh, lies between
the railway and the landward edge of the Reclaim (EA/5/1, Map 1 and Photo 6). West
Cliff Marsh is a relic of the extensive marshland that characterised Dibden Bay prior to
its reclamation. The North Dibden Stream flows from the south-west to pass beneath
the Fawley Branch Line at West Cliff Marsh (EA/5/1, Photo 5). Here it turns eastwards
to flow along the southern edge of the Reclaim and the southern edge of Hythe Marina
Village, before discharging into Southampton Water at Hythe.
2.15 The western part of West Cliff Marsh is included within the area covered by the draft
HRO, together with an extensive area of agricultural land at Veal's Farm, further to the
west (ES, Figure 3.1, Area 4). This area, which includes one or two small pockets of
woodland, lies generally between the railway to the south-west, the Dibden Reclaim to
the east and Veal's Lane to the north.
2.16 Veal's Lane provides the main means of vehicular access to the Reclaim. A number of
dwellings and a retirement home front this road, which runs westwards from the
Reclaim for a distance of about 1km to join Hythe Road. Close to its junction with
Hythe Road, Veal's Lane crosses the Fawley Branch Railway Line by means of a level
crossing. A public footpath (Footpath No 10) some 2km long, links Veal's Lane and
West Street, Hythe (ABP/2/20).
2.17 An extensive woodland (referred to in this report as the Post Copse Complex) lies to
the north of Veal's Lane, within the area of the draft HRO. This consists of a mixture
of ancient woodland and more recent plantations. It includes Veal's Row, Horseclose
Copse, The Plantation and Post Copse (HCC/6/3, Appendix 1a, Plan 9). Two public
footpaths run northwards from Veal's Lane (ABP/2/20). The more easterly of these
(Footpath No 13) leads to a dead end. At the time of my visit the more westerly
footpath (Footpath No 12) was so overgrown as to be impassable. There is a small
pond at the western end of Veal's Row (EA/5/1, Photo 1). Between Veal's Row and the
Reclaim there is an area of herb-rich grassland, known as Veal's Row Meadows.
2.18 A small watercourse, the Marchwood Stream, flows from west to east through the Post
Copse Complex and Veal's Row Meadows. On reaching the edge of the Reclaim (the
original shoreline) it divides into two branches. One branch flows southwards along
the back edge of the Reclaim, to join the North Dibden Stream at West Cliff Marsh.
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Dibden Bay Inquiry - Inspector's Report
The other branch skirts the northern edge of the Reclaim before discharging into the
River Test (EA/5/1, Map 1 and Photos 2 to 4).
2.19 Further north, and separating the Post Copse Complex from the built up area of
Marchwood, there is an area of agricultural land at Pumpfield Farm. This consists of
small pastures enclosed by hedgerows, and includes a group of farm buildings.
Pumpfield Farm is linked to Hythe Road by a driveway, which crosses the Fawley
Branch Line at a user-operated level crossing. The road and rail access to the proposed
Terminal would pass through Veal's Row Meadows, the Post Copse Complex and
Pumpfield Farm. The proposed "park and ride" would also occupy part of Pumpfield
Farm.
2.20 Generally, the land to the west of the Reclaim slopes gently up towards the New Forest
(NFDC/7/3, Figure 5). There are panoramic views across the Reclaim from the Dibden
Golf Course, which lies approximately 1km to the south-west (CD/ABP/51, Photo P9).
Marchwood
2.21 On its northern side, the Dibden Reclaim is bounded by the Marchwood Military Port,
which is operated by the army (ES, Figure 3.1, Area 5). The Military Port has deepwater jetties, which project into the River Test. Ships load and discharge military
equipment and supplies here, including explosives. To the south of the main jetties,
there is a boat-lift, by means of which landing craft and similar vessels can be removed
from the water. The Military Port contains a number of buildings, including residential
accommodation for defence personnel. It has a rail link to the Fawley Branch Line.
2.22 The Military Port lies at the south-eastern edge of the built-up area of Marchwood. The
waterfront here has a mainly industrial character. It includes the premises of the former
Husbands Shipyard, which closed in 1999; and the site of the former Marchwood
Power Station, which is now demolished. These adjacent sites have a combined area of
over 57ha. There is currently a small aggregates wharf on part of the former Power
Station site. Further to the north, a former Royal Navy Armaments Depot at Admiralty
Quay has now been redeveloped for residential purposes. The Marchwood Sailing
Club have moorings in this area.
2.23 The Fawley Branch Railway Line cuts through the settlement of Marchwood. The
proposed noise barriers would be installed on either side of the railway track through
the built-up area. For the most part, the adjacent properties consist of 2-storey
dwellings, some of which stand within a few metres of the railway (CD/ABP/7 and 8).
2.24 Access across the railway at Marchwood is by means of level crossings at Main Road
and Tavell's Lane. While most of the facilities in Marchwood lie to the north-east of
the railway, the Marchwood Church of England Infant School lies to the south-west, at
the junction of Twiggs Lane and the A326.
2.25 A series of country roads link Marchwood and Hythe. Hythe Road runs in a southeasterly direction from the Main Road level crossing. Shortly after leaving the built-up
area of Marchwood, it passes the access to Pumpfield Farm to the north; and the
Pilgrim Inn (a public house and restaurant) to the south. East of the Pilgrim Inn, Hythe
Road runs alongside (and to the north of) the A326. It continues past the western end
of Veal's Lane and through an area of open farmland. An access to the east leads to a
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Dibden Bay Inquiry - Inspector's Report
substantial residential caravan site. Shortly after this, Hythe Road terminates in a
priority junction with Bramshott Hill. This is another country road, which runs
eastwards from the Dibden Roundabout on the A326, and leads into Hythe, via Main
Road and Southampton Road.
2.26 North of Marchwood, the Fawley Branch Railway Line passes through an area of open
countryside. There is a user-operated level crossing at Howell's Lane (a bridleway);
and an automatic half-barrier level crossing at Trotts Lane, a country road that carries
local traffic between Marchwood and Totton. About 2.5km after leaving the built-up
area of Marchwood, the Fawley Branch Line enters the urban area of Totton at
Hounsdown.
Totton
2.27 The Hounsdown Secondary School lies immediately to the south of the automatic halfbarrier level crossing at Jacob's Gutter Lane. Noise barriers are proposed between this
point and the branch line's junction with the main line, save for a short stretch where
the railway is in cutting. This section of the branch line passes through residential
areas, with housing coming to within a few metres of the track.
2.28 The single-track Fawley Branch Line joins the 2-track Weymouth to London main line
on an embankment approximately 1km west of Totton Station. The junction is the site
of the TWAO. An open space extends along the south side of this section of the
railway. A tree-lined stream, known as Bartley Water, flows eastwards through this
open area towards the River Test (CD/ABP/6, Figure 2.2). To the north of the railway
there is housing and a sports ground.
2.29 A passing loop, known as the Fawley Goods Loop, has been provided alongside the
northernmost section of the Fawley Branch Line. The loop is about 450m long. It can
be used to hold trains when the branch line and/or the main line are busy (Fawley
Branch Line ES, Figures 3.1(2) and 3.2). It also provides rail access to the Totton
Goods Yard.
2.30 The Junction Road level crossing is on the main line, a little to the east of the junction
(Fawley Branch Line ES, Figure 9.2(2)). There is a footbridge alongside this fullbarrier crossing. The London to Weymouth main line severs the northern and southern
parts of Totton. The Junction Road level crossing provides the sole vehicular route
across the railway in Totton.
2.31 Totton is at the lowest bridge point on the River Test, and marks the limit of navigation
for shipping. The A35, which links Bournemouth with Southampton via Lyndhurst,
passes to the south of the town before crossing the River Test at Redbridge.
Southampton
2.32 In front of the Dibden Reclaim, the River Test is between 0.8km and 1.1km wide. The
City of Southampton lies on the opposite side of the river. Southampton is the largest
city in south-east England outside London. It occupies a nodal point in the national
communications network. The M27 motorway skirts the northern edge of the city (ES,
Figure 11.1). To the west, the M27 connects with the A36(T), which provides a route
to Bristol and South Wales via Salisbury. The western end of the M27 runs into the
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Dibden Bay Inquiry - Inspector's Report
A31, which provides a route to Bournemouth and Poole, via Ringwood. To the north
of Southampton, the M3 motorway leaves the M27, to provide access to London, and to
the Midlands via the A34(T). To the east of Southampton, the M27 provides a link to
Portsmouth and the A27, which continues eastwards along the south coast.
2.33 Southampton is also well served by rail connections. It is on the main line from
London to Weymouth, and has rail access to the Midlands and North via Basingstoke
and Reading. There are also rail links from Southampton to Bristol and South Wales
via Salisbury; and to Portsmouth and Brighton along the south coast.
2.34 Southampton Water is a tidal estuary, over 10km long and up 2.5km wide. A dredged
channel, with a minimum depth of 12.6m, provides a navigable access between the sea
and Southampton Docks. These first developed between the Rivers Test and Itchen,
and now extend northwards along the east side of the River Test. Parts of the original
docks on the Itchen have now been redeveloped as Ocean Village, a mixed use
complex which includes housing, retail and entertainment uses, as well as a marina.
2.35 The remainder of the original Eastern Docks continue in use as part of the ABP Port of
Southampton (TS/N2, Fig 2). This part of the port includes the Queen Elizabeth 2
Cruise Terminal; and specialised berths for handling grain and "roll-on-roll-off" (ro-ro)
cargoes. The Eastern Docks have irregular quay lines and space for cargo handling is
limited. Much of the land behind the quays is used for parking trade cars and other roro traffic awaiting shipment or collection. A multi-storey car park has recently been
provided on land adjacent to Berth 34, to accommodate trade cars. The Eastern Docks
have a rail connection to the Southampton to London main line.
2.36 Town Quay, Royal Pier and Mayflower Park (a public open space) occupy the
Southampton waterfront immediately to the north-west of the Eastern Docks. Town
Quay is used for ferry services to the Isle of Wight, as well as to Hythe.
2.37 The Western Docks (Berths 101 to 110) have a straight-line quay, which extends northwestwards along the River Test from Mayflower Park for a distance of about 2km. The
Western Docks include the Mayflower Cruise Terminal. There are also specialist
facilities for handling fresh produce (such as tomatoes and bananas) and ro-ro cargoes.
The Rank Flour Mills and the Martini-Bacardi Plant, which are located within the
Western Docks, receive materials delivered across the quay. To the north of the
Mayflower Cruise Terminal there are berths which specialise in handling bulk cargoes,
including fertilisers, gypsum and aggregates. The Western Docks have a rail
connection to the main line at Millbrook. The Millbrook Freightliner Terminal lies just
outside the ABP estate, adjacent to the main line.
2.38 Parts of the Western Docks are used for activities that have no functional connection
with the port. These include a Royal Mail depot, a timber yard and a vehicle
components factory. A cable factory, which previously stood in the Western Docks,
has recently been demolished, and its site is now used for the storage of empty
containers and other port related uses. The King George V Dry Dock is situated at the
northern end of the Western Docks.
2.39 Berths 201 to 203 lie to the north of the Western Docks. They were originally built as
part of the Southampton Container Terminal, but are now used for ro-ro (trade car)
traffic. They have a combined quay length of about 820m.
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Dibden Bay Inquiry - Inspector's Report
2.40 The Southampton Container Terminal (SCT) consists of Berths 204 to 207. These
berths have a combined quay length of 1,350m. The SCT is at the end of the dredged
shipping channel, but offers the greatest depth of water at the quayside in Southampton
(at least 15m at Berth 207 at any state of the tide). The SCT's quayside cranes are
about 100m tall (with their jibs in the upright position). The containers are generally
stacked two high. They are transported about the Terminal by straddle carriers. The
Maritime Freightliner Terminal is located immediately behind the SCT, adjacent to the
main line railway.
2.41 At night the SCT is brightly lit from fixed columns and from lamps attached to the
quayside cranes. In addition, I was conscious of a considerable degree of glare from
the working lights on board certain of the container ships at the quayside.
2.42 The Redbridge Vehicle Terminal lies at the north-western end of the existing port,
beyond the SCT. This land is used for the storage of trade cars, which are shipped
through berths 201 to 203.
The A326
2.43 The A326 runs southwards from Junction 2 on the M27, to provide access to the
settlements that line the western side of Southampton Water. These include Totton,
Marchwood, Hythe and Fawley, and are known collectively as the Waterside.
Generally the A326 runs through open countryside and woodland, by-passing the main
built-up areas.
2.44 The most northerly part of the A326 is known as the Totton Western Bypass. Its initial
section, between the M27 and the Michigan Way Roundabout, takes the form of a dual
carriageway, some 2.5km long (ABP/10/3, Appendix 4). South of Michigan Way, the
A326 continues for a further 2.5km or so as a single carriageway. Along this section
there are roundabout junctions with Ringwood Road (A336) and Fletchwood Road.
2.45 Further to the south Monkton Lane joins the main road from the east at a priority
junction. The A326 then bridges Bartley Water and passes over the London to
Weymouth railway line at Ashurst Bridge, before reaching the Foxhills Roundabout.
2.46 The remaining section of the Totton Western Bypass consists of a dual carriageway,
some 2km long. This passes beneath the A35 at a grade-separated junction with
restricted access.
2.47 The Totton Western Bypass ends at the Hounsdown Fork, where the southbound
carriageway merges with the Marchwood Bypass. The latter road begins at a
roundabout junction on the A35 at Rushington, from where it runs southwards as a
single carriageway. A staggered junction links it to Jacob's Gutter Lane after which it
passes under the Fawley Branch Line. After the access to the Hounsdown Business
Park it becomes one-way, southbound, until it merges with the southbound carriageway
of the Totton Western Bypass.
2.48 South of the Hounsdown Fork, the A326 continues as a single carriageway. There are
staggered junctions at the intersections with Staplewood Lane and Twiggs Lane. These
roads run east into Marchwood and west into the countryside. About 3km south of the
Hounsdown Fork, the A326 passes the Pilgrim Inn and runs alongside Hythe Road.
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Dibden Bay Inquiry - Inspector's Report
The proposed junction with the Dibden Terminal Access Road would be a little to the
south-east of the Pilgrim Inn. The Marchwood Bypass terminates at the Dibden
Roundabout, from where Bramshott Hill leads eastwards towards Hythe, and the A326
continues southwards towards Hardley, Holbury and Fawley.
The Wider Area
2.49 Balloons flown on the line of the main quay of the proposed Dibden Terminal to
simulate the height of the proposed quayside cranes were visible across a wide area.
They could be seen from Bolton's Bench at Lyndhurst, some 10km to the west. They
were more readily apparent from Yew Tree Heath in the New Forest, across a distance
of about 5km. And they were conspicuous from points in the Hythe and Marchwood
area, including the Dibden Golf Course and parts of the built-up areas.
2.50 The balloons were also clearly visible from Mayflower Park, the City Walls and parts
of the West Quay Shopping Centre in Southampton; from the Itchen Bridge; and from
residential areas in Weston. They were also apparent in long views from Southampton
Water and the River Test.
2.51 The existing quay cranes in the SCT can be seen on the skyline from Pepperbox Hill,
near Whiteparish, Wiltshire, across a distance of some 23km.
2.52 At night there is a significant sky glow over Southampton when seen from relatively
dark areas within the New Forest. The glow is particularly intense in the vicinity of the
Southampton Container Terminal. There is also a marked skyglow above the refinery
and industrial installations at Fawley.
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Dibden Bay Inquiry - Inspector's Report
3
The Case for Associated British Ports (ABP)
The Proposals
Content of the HRO
3.1
The proposed Harbour Revision Order (HRO) would empower ABP to develop a new
deep-water container terminal at Dibden Bay. An illustrative layout for the Dibden
Terminal is contained in the Environmental Statement (ES, Fig 4.2). Part II of the draft
HRO makes specific provision for the following works:

the construction of a new quay (Work No 1);

the dredging of an area between the quay and the main shipping channel in the River Test
and Southampton Water (Work No 2);

the preparation of an area of about 202ha behind the quay to provide a base for port
facilities (Work No 3);

the provision of a port access road to link the proposed Terminal with the A326 (Work
No 4);

the diversion of Hythe Road so as to accommodate the port access road (Work No 4A);

the provision of a "park and ride" car park on land at Pumpfield Farm (Work No 4B);

the provision of an emergency access route between the proposed Terminal and Hythe
Road, via Veal's Lane (Work No 4C);

the provision of rail access between the proposed Terminal and the Fawley Branch Line,
and sidings within Work No 3 (Work No 5);

the excavation of a tidal creek (to be known as Dibden Creek) and the creation of a
seasonal wetland and other habitats (to be known as the Church Farm Nature
Conservation Area) on land generally to the west and south of the proposed Terminal
(Work No 6);

the recharge, enhancement and extension of the inter-tidal mudflat between Hythe and
Cadland Creek by the deposit of dredged sediment (Work No 7);

the reconstruction and raising of the Hythe Marina Bund and the reconfiguration of the
Hythe Marina Boatyard (Work No 8).
3.2
In addition, Part II of the HRO includes provision for extensive landscaping works in
the areas shown in the Order Plans (CD/ABP/2). It also contains proposals for the
creation, diversion and stopping up of public rights of way. These are detailed in
Schedule 1 to the HRO.
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Dibden Bay Inquiry - Inspector's Report
3.3
Part III of the HRO provides for the compulsory acquisition by ABP of land required
for the purpose of carrying out the proposed works. Details are contained in Schedule 2
of the Order.
3.4
Part IV of the HRO covers miscellaneous matters, including provisions for the
protection of Railtrack, the Environment Agency and the highway authority; and
provisions relating to the replacement of public open space.
3.5
Development authorised by the HRO would constitute permitted development in
accordance with Article 3 and Part 11 of Schedule 2 to the Town and Country Planning
(General Permitted Development) Order 1995 (GPDO). Schedule 3 to the HRO
contains a number of restrictions which would help tie the form of the authorised
development to that described in the Environmental Statement.
3.6
The Secretary of State is now requested to make various modifications to the draft
HRO. These are highlighted in a "filled-up" version of the draft Order (CD/ABP/121).
In many cases, they correct minor errors or are otherwise uncontentious. For instance,
a number of modifications proposed in Articles 28A and 29 of the filled-up HRO
reflect the outcome of consultations with Railtrack, who have now withdrawn their
objections to the Dibden Terminal scheme. Similarly, the proposed modifications to
Article 30 of the draft HRO (and the proposed introduction of Schedule 4) reflect
agreements made with the Environment Agency about provisions for their protection.
The proposed modifications to the draft HRO by the introduction of Article 32A and
Schedule 5 reflect the requirements of certain statutory undertakers.
Other
modifications relating to more contentious matters are described more fully below.
3.7
ABP also propose modifications to the Order Plans.
CD/ABP/122.
3.8
In addition to the limitations proposed in the filled-up Order, the form of the proposed
development would also be regulated through planning obligations contained in a legal
agreement and unilateral undertaking made under Section 106 of the Town and Country
Planning Act 1990 (ABP/0/149).
These are summarised in
Terminal Layout
3.9
The Terminal proposals are described in Chapter 4 of the Environmental Statement,
and in the supporting Technical Statement TS/P1.
The Quay
3.10 The proposed deep-water quay would be built in a straight line, about 1,850m long. It
would provide berths for 6 large container ships. The quay would project between
about 80m and 200m from the existing shoreline. The whole of the main quay wall
would be within the existing tidal area.
3.11 A multi-purpose return berth, some 240m in length, would extend between the northern
end of the deep-water quay and the shore. This berth would be used by smaller feeder
and "roll-on roll-off" (ro-ro) vessels, and would be equipped to handle aggregates.
3.12 Immediately in front of the deep-water quay, a berthing pocket would be dredged to a
depth of -16.5m CD. The return berth would have a dredged depth of -13m CD. A
17
Dibden Bay Inquiry - Inspector's Report
new approach channel would link the Dibden Terminal to the main shipping channel in
Southampton Water. Like the main shipping channel, this would be dredged to a depth
of -12.6m CD.
3.13 The deep-water quay would be able to accommodate the biggest container ships
currently in use. Until recently, the dimensions of the Panama Canal constrained the
size of these vessels to the so-called "Panamax" limit. However, this limit has now
been breached. The largest "Post Panamax" ships carry payloads of up to 7,000 TEU4,
are over 300m long and draw up to 14.5m. The Dibden Terminal would also be able to
accommodate the next generation of "Ultra Large Container Ships" (ULCS) the size of
which is expected to be limited by the dimensions of the Suez Canal. Such a ship
might carry up to 12,500 TEU, with a length overall of about 380m, a beam of some
60m and a draught of up to about 14.7m.
3.14 Immediately behind the quay wall there would be a ship to shore transfer zone, with an
operational width of some 135m (TS/P1, Fig 3). Within this zone, up to 20 railmounted cranes would be installed at the quayside. They would be capable of reaching
across ships carrying 22 rows of containers. The expected maximum height of the
quayside cranes (when upright and not in use) would be 109m above the quay apron.
When in operation, with their jibs in a horizontal position, the cranes would have a
height of 71m above the quay apron. Two smaller, rail-mounted quay cranes, with the
capability of reaching over 18 containers across the deck of a ship, would serve the
multi-purpose return berth.
Containers, Ro-ro Units and Aggregates
3.15 A container stacking yard, measuring about 63ha, would be located at the rear of the
quayside transfer area. Containers awaiting shipment or collection would be stored
here in stacks up to 3 boxes high. The maximum height of the container stack would be
8.8m above ground level. The stacks would be orientated at 90o to the line of the deepwater quay. The yard would probably be served by rail-mounted gantry cranes,
although the use of rubber-tyred gantries would be a possible alternative. The Dibden
Terminal would have capacity for an estimated annual throughput of about 1,384,000
containers (as measured in terms of the number of box movements across the quay).
3.16 Lorries would be loaded and unloaded in a road transfer area along the western side of
the container stacking yard. Within the Terminal there would be a one-way circulatory
road system. Tractor-trailer units would be used to transport containers from one part of
the Terminal to another.
3.17 A 16-track railway yard is proposed in the western part of the Terminal site. This
would consist of four sets of 4-track sidings. Each siding would have a useable length
of at least 785m. Boxes would be lifted to and from rail wagons by rail-mounted
gantry cranes.
4
TEU stands for Twenty-foot Equivalent Unit. Originally, standard containers each had a length of 20 ft
(6.1 m). However, the use of longer containers is becoming increasingly common. In order to reflect this,
container flows are sometimes expressed in TEUs, whereby one 40 ft box would count as 2 TEUs. As a rule of
thumb, the number of separate containers can currently be multiplied by a factor of about 1.5 to obtain the
approximate number of TEUs in a particular consignment. However, since the use of longer containers is
expected to increase, a conversion factor of 1.67 is commonly used in projections of future flows.
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Dibden Bay Inquiry - Inspector's Report
3.18 Parking areas for ro-ro vehicles would be located at either end of the container stack.
On completion of the Terminal, these would have a combined area of not more than
10.9ha. The more northerly parking area would be close to the return berth. The
Terminal would have the capacity to handle about 150,000 ro-ro units annually.
3.19 An aggregates storage area of about 7.5ha would be located towards the northern end of
the Terminal. The aggregates would probably be transferred from the return berth to
this area by means of an elevated conveyor, and would then be held in stockpiles up to
13m high. The aggregates storage area would be served by both road and rail. Material
would be loaded onto lorries and rail wagons by face shovels. The Terminal would be
able to handle approximately 1.5 million tonnes of aggregate each year.
Gate Area, Administration, Maintenance and Support Services
3.20 The main gate area for the proposed Terminal would be located on a direct route
between the proposed port access road and the container stacking yard. There would be
15 gates providing the capacity to process up to 120 heavy goods vehicles (HGVs) an
hour. Parking space for about 100 HGVs would be provided at the landward side of the
gate. This would accommodate lorries queuing to gain access to the Terminal at peak
periods or waiting during a port closure. A separate emergency lorry park would be
located between the gate area and the aggregate storage area. This would provide
emergency accommodation for up to 8 hours' flow of incoming HGVs at the peak
(daytime) rate.
3.21 Administrative buildings would be located adjacent to the gate area. These would
include canteen facilities and changing rooms; and accommodation for shipping agents,
courier companies and the like. A car park would be provided adjacent to the
administrative buildings.
3.22 Maintenance and support services would be located between the road transfer area and
the railway yard. These would include workshops for servicing and repairing cranes,
port transfer vehicles, refrigerated containers and other equipment. There would also
be facilities for the storage of containers that are not of a standard size or are damaged
or leaking; and for the fumigation of containers. In addition there would be inspection
sheds for H M Customs and the Port Health Authority; and a parking area for port
transfer vehicles. Most of the buildings to be provided within this area would be of
normal industrial height.
3.23 The HRO makes provision for the erection of an equipment maintenance building,
approximately 22m high , towards the northern end of the Terminal. This would be
restricted to the location shown (CD/ABP/2, Sheet 16).
Groupage and Ancillary Services
3.24 A groupage depot5 would be provided within the proposed Terminal. This would
contain warehouse buildings, some 13m in height, surrounded by hard standings.
5
Groupage is the practice of filling containers with cargoes from more than one source; or emptying
containers of cargoes bound for more than one destination.
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Dibden Bay Inquiry - Inspector's Report
3.25 Empty containers would be stored in two separate areas. The larger of these would be
at the northern edge of the Terminal, between the aggregate storage area and the
Marchwood Military Port. Here the empty boxes would be stacked up to 7 high (20.3m
above ground level) but would be stepped down for safety reasons. The second area for
the long term storage of empty containers would be immediately to the west of the
railway yard, where the boxes would be stacked up to 4 high (11.6m above ground
level).
3.26 Road haulage yards would be provided close to the eastern end of the Terminal access
road. An additional area for other ancillary services would be provided at the western
edge of the Terminal. This would include facilities for container repair; tank cleaning;
a fuelling station; and electrical sub-stations.
Terminal Lighting and Landscaping
3.27 The Terminal would be lit to the legally required levels at all times. This would
include mobile lighting on the cranes, gantries and vessels; and fixed lighting in
operational areas and parking areas, and along internal access routes. The working
lights on the booms of the quayside cranes would be about 40m above ground level.
Fixed lights on the quayside and in the transfer area would be mounted on columns
with a maximum height of 30m above ground level. There would be 20m high lighting
columns in the ro-ro and storage areas; 15m columns in the railway yard; and 10m
columns along the site roads. In all instances high-pressure sodium directional cut-off
lamps would be used.
3.28 The lighting arrangements for the Terminal are the subject of a Section 106 Agreement
(ABP/0/149, Part 3). Among other things, this requires details of the proposed lighting
to be submitted to and approved by the local planning authority before any part of the
Terminal is brought into use. It stipulates that the lighting scheme must conform
substantially with the arrangements described in the Environmental Statement and
Technical Statement TS/LV5.
3.29 A separate legal agreement between ABP, the New Forest District Council and the
Hythe Marina Parties places further restrictions on the proposed quayside lighting
(ABP/0/128). It includes provision for 80o louvres to be attached to luminaires at or
above 25m AOD within a defined area corresponding to the two most southerly of the
proposed berths. This would shield residents of Hythe Marina Village from a direct
view of the luminous areas of the lights in question.
3.30 The on-site landscaping proposals would include broad belts of woodland along the
northern Terminal boundary; around the emergency lorry park; and within the support
and ancillary services areas. Tree and shrub planting of a more formal character would
be undertaken around buildings and along roads and fence lines. A wooded bund, up to
12m high and 50m wide, would mark the rear boundary of the Terminal, providing a
significant screen in views from the west and south. The proposed planting would
reflect the existing vegetation outside the development.
3.31 The proposed landscaping works are the subject of a planning obligation contained in
the Section 106 Agreement (ABP/0/149, Part 2). This obligation applies to proposed
landscaping both within and outside the operational area of the Terminal. It stipulates
that neither the proposed Terminal development nor the proposed highway
20
Dibden Bay Inquiry - Inspector's Report
improvements can begin until a Landscape Strategy Document has been submitted to
and approved by the local planning authority. This document must identify in greater
detail the matters contained in the Landscape Framework Document, which is included
in Schedule 1 to the Section 106 Agreement. The obligation also makes provision for
the execution and maintenance of the landscaping proposals specified in the Landscape
Strategy Document.
HRO Proposals Outside the Terminal Area
Road and Rail Connections
3.32 A twin-track railway spur would connect the Terminal's railway yard and aggregate
siding to the existing Fawley Branch Line. A new junction would be formed on the
branch line, a little to the south of the Pumpfield Farm level crossing (TS/P2, Figs 6
and 7).
3.33 A 10m wide, single-carriageway road would provide access to the proposed Terminal
from the A326. This would begin at a signalised junction, a little to the south-east of
the Pilgrim Inn (TS/P3, Figs 2 and 3). The proposed port access road would pass
beneath Hythe Road (which would be diverted at this point). It would also pass
beneath the existing Fawley Branch Line; and beneath the proposed railway spur. At
its eastern end it would terminate at a roundabout. The port access road would be lit
from 8m high columns.
3.34 An emergency access route would be provided between the Terminal and Hythe Road,
via Veal's Lane. This would also provide an access to the Terminal for pedestrians and
cyclists.
Park and Ride
3.35 The Environmental Statement refers to a proposed public ferry service running between
the Dibden Terminal and Town Quay, Southampton. A dedicated shuttle bus service
was to have provided a link between the ferry and a proposed public car park, located
on land immediately to the east of Pumpfield Farm. However, in the light of
objections, the proposal for this ferry service has now been abandoned. Nevertheless, it
is intended that "work boats" would ferry port employees between the Dibden Terminal
and the existing Port of Southampton. Work buses would transfer employees from the
landing stage to their workplaces.
3.36 A "park and ride" facility using buses is now proposed. The "park and ride" would
occupy some 3.5ha of land immediately to the east of Pumpfield Farm. (ABP seek the
modification of the draft HRO to correct the reference to Work No 4B comprising an
area of 35ha). The "park and ride" would contain up to 500 surfaced parking spaces,
together with a bus set-down point and associated buildings. It would be reached via
the port access road. Lighting columns would be 5m high within the "park and ride"
site and 6m high at the site entrance. Improved local bus services would run into the
"park and ride" from the A326. Work buses would transfer employees between the bus
set-down point in the "park and ride" and their workplaces inside the Terminal.
3.37 Part 6 of the Section 106 Agreement (ABP/0/149) includes provisions relating to the
construction and management of the proposed "park and ride". It also makes provision
for ABP to make a financial contribution of £660,000 to the County Council if
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Dibden Bay Inquiry - Inspector's Report
authorisation is not given for the "park and ride"; or if the County Council determine
that the "park and ride" is not required. This financial contribution is to be applied to
appropriate public transport infrastructure or services within Totton and the Waterside
area.
3.38 Should authorisation not be given for the "park and ride", ABP propose that a bus
transfer area should be provided (ABP/0/127). This would occupy some 0.99ha within
the area currently identified for the "park and ride". It would include a turning circle
and lay-by for buses; and waiting and drop-off facilities for car users.
Pedestrian and Cycle Routes
3.39 New paths and cycleways are proposed to provide routes linking the Terminal with
Hythe and Marchwood. These would allow employees to cycle or walk to work
without using the port access road. Outside the Terminal, the new paths and cycleways
would form part of the network of public rights of way.
3.40 From Marchwood, pedestrians and cyclists would follow the diverted route of Hythe
Road, continue along Veal's Lane, and enter the Terminal via the emergency access.
From Hythe, a footpath/cycleway would run from West Street, past West Cliff Hall, to
Veal's Lane. It would incorporate parts of the existing Hythe and Dibden Footpath No
10 (ABP/2/20). That footpath would be diverted to avoid sensitive habitats within the
proposed Church Farm Nature Conservation Area. The realigned route (which would
be followed by the proposed footpath/cycleway) would run immediately to the north of
the Fawley Branch Line.
3.41 Marchwood Footpaths No 12 and 13 are each proposed to be closed at the points where
they would be severed by the port access corridor. However, a new footpath would
provide a public right of way between the truncated ends of these paths, to form a
circular walk through the Post Copse Complex. The circular route would start and
finish in Veal's Lane (ABP/2/21). A proposed modification to Article 15 of the draft
HRO makes express provision for this facility (CD/ABP/121).
3.42 A new footpath/cycleway would run alongside the Terminal Access Road between
Hythe Road and the proposed "park and ride" site, from where it would continue to join
the existing Marchwood Footpath 11a. Fresh thought has been given to the precise
alignment of this route, and this is reflected in further proposed modifications to Article
15 of the draft HRO.
Recharge of the Foreshore between Hythe and Cadland
3.43 The foreshore between Hythe and Cadland Creek would be recharged, using finegrained sediments dredged from the inter-tidal area in front of the proposed Terminal
quay (ES, Fig 4.1). The recharge material would be placed on the foreshore in stages
and retained by a system of temporary barriers. The barriers would be removed when
the recharge material has become sufficiently consolidated. The recharge scheme
would improve the sediment quality of an area of contaminated foreshore, and would
extend the inter-tidal mudflat by up to 22ha (to mean low water) thereby increasing the
feeding resource available to waterfowl. It would provide a beneficial use for
dredgings, and would retain sediment within the estuary. It would also protect the
existing saltmarsh from wave action. By these means it would help reduce erosion.
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Dibden Bay Inquiry - Inspector's Report
Dibden Creek
3.44 Dibden Creek would be constructed around the southern and western edges of the
Terminal. It would be some 1,500m long and up to about 300m wide. The creek
would constitute a new landscape feature, re-establishing part of the original shoreline
of Southampton Water. It would provide new nature conservation habitats, including
over 30ha of inter-tidal mudflats. Within the creek, shingle islands and other structures
would provide roosting and breeding areas for waders. Areas of saltmarsh would be
expected to develop in the elbow of the creek and at its head.
3.45 A sill (Sill No 1) would be constructed at an elevation of 2.6m AOD to provide a
barrier between the tidal creek and the freshwater drainage system. However, this
would be overtopped on extreme high tides, so as to provide an occasional saline input
to the adjacent wet grassland.
3.46 Immediately below Sill No 1 a wide, raised "flood channel" would be formed at the
head of the creek. This would be regularly inundated with sea water. Shallow scrapes
or pans would be provided to support a complex of brackish and reedy pools amid the
saltmarsh.
3.47 The Marchwood Stream would be diverted to flow into the creek at Sill No 1. A
second sill would be constructed across the Marchwood Stream, at an elevation of
3.05m AOD. This would provide for the landward movement of the creek in response
to future sea level rise (ABP/0/66D, Map 3). A sluice gate would be provided on the
Marchwood Stream at an elevation of 3.7m. This would permanently protect the
housing in Veal's Lane from tidal flooding.
Church Farm Nature Conservation Area and Off-Site Landscaping
3.48 The Church Farm Nature Conservation Area would consist of about 136ha of wetlands,
drier grasslands and woodland, adjoining Dibden Creek (ABP/0/66D). It would
complement the creek in providing a transition from the estuary, through brackish and
freshwater habitats, to dry grassland and woodland. It would be subject to a farming
regime appropriate to nature conservation. The physical works would include ground
shaping, which would be undertaken at the same time as the creek was excavated.
3.49 West Cliff Marsh would be retained as a grazing marsh within the Church Farm Nature
Conservation Area. The bund that currently separates the marsh from the Dibden
Reclaim would in future isolate it from Dibden Creek. However, a sluice could be
provided to permit the occasional inundation of the marsh with salt water. This might
become necessary if the marsh were to lose salinity, to the detriment of its plant
community.
3.50 Ephemeral saline pools would be provided in 4 pans, excavated to varying depths, in a
triangular area between the proposed creek and the Fawley Branch Line (ABP/0/66D,
Map 11). These would replace the ephemeral pools on the landward edge of the
Reclaim, which support some notable plant species. The new pans would be separated
from the tidal creek by the existing Reclaim Bund. However, sluices would be
provided to permit the inundation of the pans with salt water, as and when required, to
maintain an appropriate level of salinity.
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Dibden Bay Inquiry - Inspector's Report
3.51 Some 13.5ha of low-lying, wet grassland would be provided above Sill No 1
(ABP/0/66D, Maps 3 and 4). This area would be grazed to provide a suitable habitat
for feeding widgeon and other wildfowl in winter, and breeding waders and other birds
in spring. The Marchwood Stream would flow through the centre of the wet meadows,
irrigating a series of open feeder ditches and pools. It would be supplemented with
water from a new pond in the north-eastern corner of the Church Farm Nature
Conservation Area. This would be used for the storage of rainwater from the roofs of
buildings within the Dibden Terminal. Reedbeds would form along the northern edge
of the new pond.
3.52 At the southern end of the wet grassland area, an existing reedy pool would be extended
to provide a shallow freshwater lagoon. This would include reedbeds. It would
become increasingly brackish, since the bund separating it from the creek would be
overtopped with increasing frequency due to sea level rise.
3.53 A series of drier fields between the wet grassland and the railway would be managed
predominantly for nature conservation. They would provide a suitable breeding habitat
for waders and skylarks. At least one field would be left un-grazed during the summer,
so as to provide a habitat for invertebrates.
3.54 That part of the proposed Church Farm Nature Conservation Area lying to the southwest of the Fawley Branch Line is botanically poor. Its main use would be as pasture,
to supplement the grazing areas to the north-east of the railway.
3.55 Woodlands within the Church Farm Nature Conservation Area would be maintained
and enhanced through traditional woodland management. New woodland planting
would be undertaken to the north of the existing Post Copse Complex, on either side of
the Terminal access corridor. The woodland would surround the proposed "park and
ride" car park, and would extend northwards as far as the boundary of the Marchwood
Military Port. There would also be new woodland planting between the Fawley Branch
Line and the A326, on either side of the diverted Hythe Road. Additional off-site
landscaping is proposed on sites at Veal's Farm, Church Farm, Bramshott Hill and
Southampton Road (ES, Figure 15.3). Vegetation of nature conservation interest would
be taken from areas to be developed, for translocation within the Church Farm Nature
Conservation Area (ABP/0/66D, Map 9).
Development and Management of the Nature Conservation Area
3.56 ABP now seek the modification of the draft HRO by the insertion of a new Article 32B
(CD/ABP/121). This would preclude work on the construction of the Terminal until
such time as the Secretary of State has approved a plan for the development and
management of the Church Farm Nature Conservation Area.
The principal
environmental aims of such a plan are specified and prioritised. They would include
the provision of a greater diversity of coastal habitat than currently exists; and the
creation of new habitats to offset the losses that would result from the construction of
the Terminal. Among other things, the plan would include provision for:

the timing of implementation;

the monitoring of ecological results;
24
Dibden Bay Inquiry - Inspector's Report

remedial action as necessary;

the periodic review of the proposed works and management arrangements;

liaison with relevant nature conservation bodies; and

funding by ABP for a period of 40 years.
The Hythe Marina Bund
3.57 As originally submitted to the Secretary of State, the draft HRO provides for the
reconstruction and enlargement of the Hythe Marina Bund. It was intended that the
enlarged structure would rise to a maximum height of about 14m AOD and be topped
by a 2m high acoustic fence, so as to provide a more effective screen to shield Hythe
Marina Village from the noise and visual impact of the proposed Terminal.
3.58 However, in the light of objections, ABP now seek a modification to their original
scheme for the Hythe Marina Bund. This is the subject of a supplementary
Environmental Statement (CD/ABP/114). In the Revised Bund Scheme, a large part of
the existing Hythe Marina Bund, extending some 80m northwards from Endeavour
Way, would remain undisturbed. A new bund would be constructed to the north of this
"80m line". The new bund would occupy a strip of land some 60-70m wide. This land
would include a small part of the footprint of the existing Hythe Marina Bund; and a
larger area that is shown as forming part of the proposed Dibden Creek in the draft
HRO as submitted to the Secretary of State.
3.59 In the revised scheme, the new bund would rise to a height of 15m AOD, and would be
surmounted by a 2m high acoustic fence. Landscaping would help screen the fence and
add to the effective height of the bund. Permissive footpaths would lead to two
viewing areas on the crest of the bund, from which it would be possible to look out over
the proposed inter-tidal creek and the Dibden Terminal.
3.60 At its eastern and western ends, the bund's crest would drop to a height of 3-4m AOD.
On the Marina side, the bund would generally have a gradient of about 1 in 3.5,
although this would steepen to 1 in 2 at the back of the boatyard. It would also be
necessary to construct a 2m high retaining wall along the northern side of the boatyard.
This would entail the permanent loss of a small part of the existing yard. However, a
replacement area would be provided by squaring off the boatyard's north-eastern
corner, so that there would be no permanent reduction in the size of this facility.
3.61 These revised proposals for the Hythe Marina Bund have consequential effects for the
design of the proposed inter-tidal creek and the southern part of the proposed Dibden
Terminal. In order to maintain the width of the mouth of the proposed creek, it is now
proposed that the south-eastern corner of the Terminal should be constructed in the
form of a suspended deck. This would allow the creek to flow beneath part of the
Terminal's operational area. The proposed suspended deck would cover an area of
about 6,100m2, and would extend along the proposed quay for a distance of about 65m.
3.62 The filled-up Order contains proposed modifications to Article 3 of the HRO, which
make provision for the Revised Bund Scheme (CD/ABP/121). That scheme is also the
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Dibden Bay Inquiry - Inspector's Report
subject of a legal agreement between ABP, the local planning authority and various
parties who have an interest in Hythe Marina and Hythe Marina Village (ABP/0/128).
West Cliff Hall
3.63 In the scheme as originally submitted to the Secretary of State, an area of about 3.9ha
within the grounds of West Cliff Hall would be given over to public open space, in
exchange for the existing area of open space at the Hythe Marina Bund. However,
implementation of the Revised Bund Scheme would obviate the need for ABP to
acquire any part of the existing open space. As a result, the exchange open space
would no longer be required. In view of this, ABP now propose that the draft HRO be
modified by the deletion of Article 32.
3.64 However, it remains possible for the Secretary of State to proceed on the basis of
proposals for Hythe Marina Bund as originally submitted to him in the draft HRO. In
that event, a planning obligation contained in the Section 106 Agreement would
become effective (ABP/0/149, Part 7). Among other things, this makes provision for
the layout of West Cliff Hall and the Hythe Marina Bund, including arrangements for
public access.
Restrictions
3.65 Article 3(5)(a) of the draft HRO would preclude work being undertaken on the
construction of Work No 1 (the proposed quay) and Work No 2 (the dredged area)
before work commences on other specified features. The specified features are Work
No 6 (the formation of Dibden Creek); Work No 7 (the recharge of the mudflats
between Hythe and Cadland Creek); and Work No 8 (the enlargement of the Hythe
Marina Bund). However, the reference to Work No 7 is qualified by the phrase "or
such other mitigation works as may be agreed with the Secretary of State in substitution
for Work No 7". This phrase implies that the development could proceed on the basis
of some unspecified, alternative mitigation measures, which have not previously been
subject to environmental assessment as required by the Harbours Act 1964, or to
appropriate assessment as required by the Habitats Regulations 1994. Such an
implication would be incorrect and accordingly ABP now seek the deletion of the
phrase in question from the HRO.
3.66 Article 3(5)(b) of the draft HRO requires that, once started, Works Nos 6, 7 and 8
should be completed as soon as reasonably practicable. ABP now seek a modification
to this Article in recognition of the fact that Work No 7 would require, and be bound by
the terms of, a licence under Part II of the Food and Environmental Protection Act
1985.
3.67 Part I of Schedule 3 of the draft HRO includes a number of restrictions designed to
limit the environmental impact of the proposed development. These limit the permitted
development rights that would otherwise be available under Article 3 and Part 11 of
Schedule 2 to the GPDO.
3.68 In particular, limits are placed on the permitted height of buildings, plant and
machinery (other than ship-to-shore cranes and lighting columns) in various parts of the
Terminal area, in accordance with the Planning Restrictions Plan (CD/ABP/2, Sheet
16). For the purposes of this restriction, "buildings" include stacks of goods, materials
or containers. The height restrictions vary between 20.7m and 30.6m AOD.
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Dibden Bay Inquiry - Inspector's Report
3.69 The storage of aggregates would be restricted to a specified area at the northern end of
the proposed Terminal, as shown in the Planning Restrictions Plan. In addition, there
would be a restriction on any lighting columns being placed within 25m of the
landward boundary of the Terminal area.
Proposed Modifications to Part I of Schedule 3 of the Draft HRO
3.70 ABP now request that Schedule 3 of the draft HRO should be modified as shown in the
filled-up Order (CD/ABP/121). A number of the further restrictions set out in that
document are designed to ensure that the proposed development would correspond with
the scheme as assessed in the Environmental Statement. In particular, a new paragraph
1(1)(b) would limit the proposed development to the handling of containers, aggregates
and ro-ro traffic. The area to be used for ro-ro traffic would normally be limited to
10.9ha. However, a new paragraph 1(3) would make provision for this limit to be
exceeded, on a temporary basis, during the construction of the Terminal.
3.71 The introduction of paragraph 1(4) would make it explicit that the use of the Terminal
for purposes other than the handling of containers, aggregates and ro-ro traffic would
require planning permission, if it were likely to have a significant effect on the
environment. However an exception is proposed for "occasional or incidental" uses.
This would be necessary, for example, to allow ships carrying both containers and
general cargo to unload non-containerised items at the Terminal.
3.72 A new paragraph 1A would require the local planning authority to have regard to the
principles of the design strategy set out in the Environmental Statement when
exercising any right of prior approval pursuant to Condition A1 in Part 11 of Schedule
2 to the GPDO. Paragraph 1B would extend this right to include prior approval of the
external appearance of the proposed ship-to-shore cranes. A new paragraph 3A would
limit the height of the ship-to-shore cranes to 120m AOD.
3.73 Subject to certain specified exceptions, cranes used for the construction of the Terminal
would be limited to a maximum height of 40m above ground level, by virtue of the
introduction of paragraph 7A. A new paragraph 7B would restrict the use of the
Terminal prior to the provision of rail sidings and a connection to the Fawley Branch
Line. New paragraphs 7C to 7U inclusive would introduce conditions to regulate
operational noise, construction noise and vibration.
Disapplication of Regulation 60 of the Habitats Regulations 1994
3.74 Regulation 60 of the Habitats Regulations 1994 would impose a requirement on ABP to
obtain the written approval of the District Council (in accordance with Regulation 62)
before the proposed development could begin. The purpose of Regulations 60 and 62
is to control development for which planning permission has been granted by a general
development order, but which would be likely to have a significant effect on a
European site. Their effect is to prevent such development from proceeding in the
absence of an appropriate assessment made in accordance with Regulation 48 of the
Habitats Regulations.
3.75 In the present case, Regulation 60 is wholly redundant, since the Secretary of State
would have to make an appropriate assessment before making the HRO. Regulation 60
would add a repetitive and unnecessary layer to the decision making process.
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Dibden Bay Inquiry - Inspector's Report
3.76 It would also have the consequence that, if the result of the appropriate assessment
were negative, the development could not be approved. This is because, unlike
Regulations 48 and 49, Regulation 62 contains no derogation for development that
must be carried out for imperative reasons of overriding public interest.
3.77 In order to overcome these problems, Part II of Schedule 3 to the draft HRO provides
for Regulation 60 to be disapplied. However, in the light of concerns expressed by
some objectors, ABP now request a modification, whereby Regulation 60 would
continue to apply to any development authorised by the HRO which:

has not been the subject of an appropriate assessment under Regulation 48 in connection
with the making of the HRO; and

is not subject to any further consent, permission or authorisation by a "competent
authority", within the meaning of the Habitats Regulations.
Compulsory Purchase Provisions of the HRO
Compulsory Purchase of the Hythe to Cadland Foreshore
3.78 Article 18 and Schedule 2 of the draft HRO make provision for the compulsory
acquisition of land identified on the Order Plans. This includes some 13.7ha of land on
the foreshore immediately to the south of Hythe, which is owned by the New Forest
District Council and operated as a nature reserve by the Hampshire and Isle of Wight
Wildlife Trust (CD/ABP/2, Sheet 13, Parcel 15). In the light of the objections made,
ABP now propose that the whole of this land should be excluded from the proposed
compulsory purchase powers. The requisite modification to the draft HRO is included
in the filled-up Order (CD/ABP/121). The land would remain within the limits of
deviation for the proposed recharge, but recharge works would only be undertaken
there by agreement with its proprietors. If these works did not proceed, the area of the
proposed recharge would be reduced by about 3ha.
3.79 In addition, the draft HRO provides for the compulsory purchase of some 205ha of
inter-tidal land, consisting of mudflats and saltmarsh, between Hythe and Cadland
Creek (Parcel 14). This land is owned by Esso Petroleum Ltd, who object to the
relevant provision. It is now clear that access to the saltmarsh would not be required in
order to carry out the proposed recharge of the mudflat. Accordingly, ABP now
propose that the compulsory purchase powers should be deleted from the HRO, in so
far as they would affect the saltmarsh area within Parcel 14. The revised extent of
Parcel 14, and the limit of construction activity for Work No 7 as now proposed, are
shown in CD/ABP/98. ABP request that the draft HRO be modified to reflect these
proposals.
3.80 Esso have sustained their objection to the compulsory purchase of their land. They say
that, as they are willing to sell the land by negotiation, compulsory acquisition is
unnecessary. However, negotiations between Esso and ABP with regard to this matter
have not reached a successful conclusion.
3.81 Esso also argue that if ABP acquire the mudflats, they should also acquire the adjacent
saltmarsh as originally proposed. However, ABP have given Esso an undertaking that
they would do so (EP/3/1, Appendix 1). In the circumstances, there is no basis for the
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Dibden Bay Inquiry - Inspector's Report
rejection of the compulsory purchase powers sought by ABP, which are necessary to
allow the recharge scheme to proceed.
3.82 The owners of various outfalls that cross Parcel 14 have expressed concern about the
compulsory acquisition of this land. In view of this, ABP seek the modification of
Article 18 of the draft HRO to indicate that the powers conferred by the Order would
not authorise the compulsory acquisition of any existing pipes or other apparatus within
Parcel 14, or the extinguishment of any rights in connection therewith.
Compulsory Purchase of the Hythe Marina Bund
3.83 The draft HRO also provides for the compulsory acquisition of the Hythe Marina Bund
and Boatyard (Parcel 1). This would be necessary in order to carry out the
reconstruction of the Bund as originally proposed.
3.84 However, the compulsory acquisition of the whole of Parcel 1 would not be required to
complete the Revised Bund Scheme as now proposed by ABP (see para 3.58 above).
A legally binding agreement between ABP and the landowners makes provision for
ABP to lease most of the land that they would need to complete that scheme
(ABP/0/128). The sole exception is an area of some 56m2, which is currently occupied
by a telecommunications mast and compound, and is sub-let to National
Transcommunications Ltd (NTL). ABP now seek the modification of Schedule 2 of the
draft HRO and Sheet 7 of the Order Plans to the effect that Parcel 1 would cover only
the NTL compound. Since the NTL compound is not an area of public open space,
there would be no requirement for exchange land to be provided; and no requirement
for the Secretary of State to consider the Exchange Land Certificate.
Other Areas
3.85 The draft HRO makes provision for the compulsory acquisition of land that is already
owned by ABP. The purpose of this is to enable ABP to extinguish any rights that
other parties may have over the land in question.
Terminal Construction
Mobilisation
3.86 The Environmental Statement indicates that the Terminal would be constructed in three
phases (ES, Figure 9.1) probably over a period of about 9 years (TS/C2, Appendix I).
Development would begin with mobilisation works, which would include the
construction of an access jetty and a temporary access road.
3.87 The jetty would provide the primary means of access for bulk materials during Phase 1.
It would be located to the south of the Phase 1 quay wall. The approach to the jetty and
the jetty berths would be dredged to a maximum of -10m CD. It is proposed that the
jetty would consist of rows of tubular piles supporting a concrete deck. At the end of
Phase 1, the jetty would be relocated at the southern end of the Phase 2 quay wall. It
would remain there for the rest of the construction period.
3.88 A 7m wide temporary access road would run from the A326 into the Terminal site
(TS/C3, Appendix V, Stage 1). A left-in/left-out system would be used to minimise
disruption to traffic on the main road. The temporary access road would cross Hythe
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Dibden Bay Inquiry - Inspector's Report
Road (which would be subject to a temporary diversion) at a signalised crossing. It
would cross the Fawley Branch Railway at the Pumpfield Farm level crossing, which
would be manned during working hours. On completion of the permanent Terminal
access road, use of this temporary construction access would cease.
3.89 Haul roads would be established within the Terminal site. Where possible, these would
utilise the gravel containment bunds that were constructed during the initial reclamation
works. The construction of new haul roads would be likely to entail the placement of
compacted gravel on a "geogrid" reinforcement mat laid on the original ground surface.
Quay Wall Construction
3.90 The quay wall would be an embedded structure with a continuous steel pile face.
Various forms of construction would be possible, and the detailed design remains to be
decided. It is intended that the construction contract would be let on a design and build
basis. The principal components of the structure would include a quay face of driven
piles and a piled anchor system. These would be held to one another by steel tie rods.
Granular fill would be placed between the quay face and the anchor system, and there
would be a reinforced concrete capping beam. Additional piling might be required to
support the rails for the quayside cranes.
3.91 The main tubular steel piles used in the quay wall construction would be of the order of
2m in diameter and 55m in length. Other piles would be typically of 1m to 1.5m in
diameter. Between 40m and 70m of total pile length would be installed per metre run
of quay wall. Piles would be delivered to the site by water. Percussive pile driving
would be restricted to normal working hours (ie between 0800 and 1800 hours on
weekdays (except public holidays) and between 0800 and 1300 hours on Saturdays).
ABP request that Schedule 3 to the draft HRO be modified by the insertion of
paragraph 7G to give effect to this restriction (CD/ABP/121).
Earthworks
3.92 Significant earthworks would be required in preparation for the construction of the
Terminal. The soft dredged materials used in the reclamation of Dibden Bay have
insufficient strength to support heavy plant and structures. They are also difficult to
handle as a fill. They would be improved by the installation of vertical wick drains;
and by surcharging with up to 4 or 5m of granular fill. Excavated material would be
strengthened by the addition of lime, pulverised fuel ash or cement prior to re-use.
3.93 Granular material would be used to provide a working platform, to fill the area between
the existing shoreline and the quay wall, and to surcharge the site. The primary source
of the granular fill is expected to be sea-dredged material, which would be recovered
from established borrow areas by self propelled dredgers and pumped ashore. The site
would be levelled, using excavated material. The finished levels would achieve a net
balance in the earthworks, avoiding the import or export of material other than the seadredged granular fill.
3.94 A landscaped bund would be formed along the landward edge of the proposed terminal.
This would have a crest height of 12m AOD. The external gradient of the bund would
generally be between 1 in 4 and 1 in 6, although there would be a steeper length at a
gradient of 1 in 2.5. The internal gradient (facing the terminal) would be 1 in 1.4. The
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Dibden Bay Inquiry - Inspector's Report
bund would be formed from material excavated from the site, modified with additives
as required.
3.95 The proposed works to the Hythe Marina Bund would be completed early in Phase 1 of
the development. The scheme contained in the draft HRO submitted to the Secretary of
State would have taken some 24 weeks (TS/C2). The existing bund and the soils
beneath it consist of weak marine silts and clays of insufficient strength to support the
enlarged feature proposed. The solution would have entailed the removal of the
existing bund and the improvement of its foundation with stabilising columns. The
bund would have then been rebuilt to the required height.
3.96 It would require about 31 weeks to carry out the Revised Bund Scheme (CD/ABP/114,
para 4.3). Access to the working area would be across the Reclaim (except in respect
of the construction of the retaining wall in the boatyard). Piles would be installed to
strengthen the ground. The material to be used in the construction of the new bund
would be taken from the creek excavation. It would be strengthened with lime and
compacted to form the required profile.
3.97 Dibden Creek would be excavated early in Phase 1 of the development. However,
excavation of that part of the proposed creek adjacent to the Hythe Marina Bund would
not commence until the reconstruction of the Bund has been completed. The volume of
material to be removed in construction of the creek would amount to some 1.45 million
m3. This material would be treated, stored in stock-piles, and re-used in the proposed
earthworks on the Terminal site. As far as possible, the excavated area would be kept
dry while this work takes place. Prior to the start of the excavation, the Marchwood
Stream would be blocked-off above the head of the proposed creek, and temporarily
diverted to an outlet to the north of the Reclaim. The junction between the Marchwood
Stream and the Dibden Stream would be permanently blocked. Water collecting in the
excavated area of the creek would be pumped out into settlement lagoons. These
would ultimately be discharged into Southampton Water.
3.98 When complete, the excavated area would be filled with water. The breach to the sea
would be made at a time when the water in the creek and the tide were at the same
level, to avoid a fast flow. Marchwood Stream would then be diverted once again, to
flow into the tidal creek.
Dredging
3.99 The proposed capital dredging works would entail the removal of about 13 million m3
of material from the bed of Southampton Water. This would include alluvial deposits,
gravel and clay. The gravel would be pumped ashore for use in the site preparation
works. The Environmental Statement indicates that up to a million cubic metres of
alluvial material would be used in the proposed recharge of the foreshore between
Hythe and Cadland Creek, although it is now considered that as little as 485,000m 3
might be needed for this purpose. The remainder of the dredged material would be
disposed of at sea, at the Nab deposit ground.
3.100 Soft alluvial deposits on the landward side of the proposed quay wall would be
removed by dredging and replaced with granular fill, to provide a competent base for
the quay. Dredging of the berthing pocket would necessarily follow the completion of
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Dibden Bay Inquiry - Inspector's Report
the adjacent part of the quay wall. Dredging of the approach channel would be
independent of other construction activities.
Recharge
3.101 The proposed construction method to be followed in the recharge has recently been
reviewed (CD/ABP/93 and ABP/3/7). The approach outlined in the review supersedes
that described in Technical Statement TS/ME5. However, the precise methodology to
be used would be determined in consultation with the selected contractor. There would
be a pilot exercise to assess and refine the adopted techniques (CD/ABP/93, Figure
2.5). The pilot scheme might cover about 10% of the recharge area, and might take
about 6 months to complete.
3.102 ABP now seek the modification of the draft HRO by the introduction of a new Article
3A, which would make express provision for the recharge pilot scheme (CD/ABP/121).
Details of the pilot scheme would be submitted to the Secretary of State for approval.
Following completion of the pilot scheme, a report would be submitted to the Secretary
of State setting out the key findings, and providing details of the construction methods
and controls to be used in the remainder of the recharge. Work on the remainder of the
recharge would not proceed until the Secretary of State has approved those details,
subject to such modifications or conditions as he considers appropriate. However, the
purpose of the pilot scheme would not be to determine whether the recharge should
proceed, but to refine the means whereby it would be undertaken.
3.103 The existing foreshore between Hythe and Cadland Creek consists of a layer of intertidal sediment, some 7m thick, which overlies gravel. The existing mud is weak, and
becomes progressively softer towards Cadland Creek. Construction of the recharge
would entail the placement of temporary retaining barriers on the foreshore. Current
thinking is that two such barriers would be installed, one at the mean low water (MLW)
line and the second at the line of the lowest astronomical tide (LAT). These would
protect the recharge from current and wave action while the placed material
consolidates. Each barrier would consist of three plastic pipes, bound together in a
triangular arrangement and attached to a gravel-filled "geo-grid" mattress (CD/ABP/93,
Figure 2.4). The barriers would be floated into position in sections and sunk, the lower
pipes being filled with water. Further gravel would be placed on top of the mattress to
maximise stability.
3.104 The alluvial sediment to be used in the recharge would be excavated from depth on the
Dibden foreshore, using a backhoe. The particle size of sediments from the Dibden
foreshore falls within the range found between Hythe and Cadland (ABP/7/10). The
excavated material would have a density of up to 1,400kg/m3. It would be transported
to the Hythe to Cadland foreshore by barge, and unloaded into a floating hopper. Care
would be taken to minimise the water content of the dredged sediment and to maintain
the strength and density of this material during transit.
3.105 That part of the proposed recharge lying below MLW would be submerged for long
periods. Material placed there would take longer to consolidate and gain strength. It
would be necessary to use mud of the highest possible density in this location. The
techniques to be used might include bottom dumping from small barges; direct
placement using a backhoe; or pumping mud at a high density. A 100m pipeline would
contain just 3m3 of mud, so even if things went wrong, there would not be an
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Dibden Bay Inquiry - Inspector's Report
environmental disaster. A snake of high density mud could be discharged onto the
seabed at a rate of about 100m3 an hour. The operation would utilise techniques that
are regularly used in pumping concrete. It would be characterised by a high degree of
accuracy.
3.106 Mud placed on the recharge area above MLW would consolidate relatively quickly. It
would be pumped to a pontoon on the foreshore via a pipeline, and would be
discharged through a diffuser. Placement would begin close to the top of the foreshore,
and the discharge point would be moved progressively, to ensure an even distribution
of placed mud. The pump would be capable of entraining water, so as to modify the
density of the recharge material as required (ABP/3/6). Lower density mud might be
discharged on this part of the foreshore, at a rate of up to 200m3 an hour.
3.107 It would take about 20 days for the mud to consolidate; but the recharge would
continue to gain in strength after that. In a recharge scheme at North Shotley on the
Orwell Estuary, the strength of the deposited material continued to increase for about 2
years after placement (CD/ABP/106).
3.108 The sediment would be placed to a target thickness of 300mm on the upper shore,
increasing to about 500mm at the low water mark. The surface of the recharge would
slope seawards at a gradient of about 1 in 150. It would be smoothed by the action of
seawater. If necessary the recharge could also be smoothed mechanically.
3.109 The uppermost pipe in the proposed barriers would be perforated, allowing water to
drain from the recharge area. Water would also drain from the recharge by seeping
through the gravel filled mattress. Potential problems of scouring by water flowing
around the ends of the barriers could be controlled by such means as the use of mud
mounds or brushwood groynes. The barriers could also be extended laterally beyond
the placement area.
3.110 The recharge operation would begin at the centre of the Hythe to Cadland foreshore,
and work southwards towards Cadland Creek (CD/ABP/93, Figure 2.5). The northern
part of the foreshore, which currently has the most ornithological interest, would be
recharged last. Operations would be suspended during the winter months when the
foreshore is most intensively used by migratory birds. The recharge would take more
than 5 years to complete, assuming an 8-month working year, and a working week of
five 12-hour days (ABP/3/8). However, the operation could be expedited by increasing
the length of the working week, or by using additional pumps. On completion of the
recharge, the barriers would be cut loose from the gravel-filled mattresses and floated
away. The gravel-filled mattresses would remain in place.
Terminal Phasing
3.111 Excluding post-construction landscaping works, Phase 1 of the proposed Terminal
development is expected to take about 2 years (TS/C2, Appendix I). It would include
the provision of the following (TS/C2, Figure 3):

the two northern deep-sea berths and the return berth;

the northern part of the container stacking yard;
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Dibden Bay Inquiry - Inspector's Report

the aggregate storage area;

the northern ro-ro parking area;

the Terminal access road, the "park and ride" car park, and the gate area;

the rail access and the initial sidings;

warehousing and other buildings;

Dibden Creek and the Church Farm Nature Conservation Area;

the enlargement to the Hythe Marina Bund;

off-site landscaping; and

off-site footpath/cycleway proposals.
3.112 Phase 2 could be completed within 5 years of the commencement of development. It
would include the provision of the following (TS/C2, Figure 7):

the two central deep-sea container berths;

the adjacent part of the container stacking yard;

the long-term storage area for empty containers at the northern end of the site;

additional rail sidings; and

haulage yards, groupage facilities and other buildings.
3.113 The final phase of construction would include the provision of the two southern deepsea container berths; the adjacent part of the container stacking yard; the southern ro-ro
parking area; additional space for the long-term storage of empty containers; and the
completion of the rail sidings (TS/C2, Figure 8).
The Fawley Branch Line Improvement Order
3.114 The proposed Transport and Works Act Order (CD/ABP/4) would authorise
improvements at the junction between the Fawley Branch Railway Line and the
London to Weymouth Main Line. The proposed works would provide greater
flexibility for freight trains travelling to and from the Dibden Terminal. An illustration
of the improvements as originally envisaged is provided in the Fawley Branch Line
Environmental Statement (CD/ABP/6, Figure 2). However, minor variations to this
scheme are now proposed (ABP/10/8). These take account of draft amendments to
Railtrack Group Standards, which reflect the recommendations of the inquiry into the
Southall and Ladbroke Grove rail disasters. The proposed variations to this scheme
would remain within the limits of deviation shown in the draft Transport and Works
Act Order, and would not affect the conclusions set out in the Environmental
Statement.
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Dibden Bay Inquiry - Inspector's Report
3.115 The works would be undertaken in two stages. Stage 1 would be as illustrated in the
Environmental Statement (CD/ABP/6, Figure 2). An illustrative scheme of the updated
Stage 2 is to be found in ABP/10/8, Appendix 1.
3.116 In Stage 1, the Fawley Goods Loop would be extended by approximately 200m at its
western end. This would enable freight trains of up to 500m in length to stand clear of
the main line and the Fawley Branch Line.
3.117 In stage 2 the Fawley Branch Line and Fawley Goods Loop would be extended
eastwards. New points would be installed and the tracks and signalling rearranged to
provide a new refuge for trains between the up and the down main lines. At its western
end the Fawley Goods Loop would be further extended and connected directly to the
Fawley Branch Line.
3.118 At present, a train passing from the Fawley Branch Line to the main line must cross the
main down-line and join the main up-line in one movement. This would still be the
position after the completion of Stage I of the proposed works. Realignment of the
main line and creation of the proposed refuge during Stage II would remove this
constraint, enabling the passage between the Fawley Branch Line and the main line to
be made in two discrete movements. In addition, the works would enable a speed of
30mph to be maintained in passage through the junction; and would enable trains with a
trailing length of 755m (118slu) to stand in the new refuge or on the Fawley Goods
Loop.
3.119 Stage 1 would require the existing railway embankment to be widened by
approximately 5m over a length of approximately 150m. At present there is no
drainage system along this section of the track. A new drainage system would be
provided as part of the works. This would discharge into Bartley Water. The works
would be designed in accordance with Environment Agency requirements.
3.120 The draft Fawley Branch Line Improvement Order provides for the compulsory
acquisition of land required to carry out the proposed works. However, all objections
to these compulsory purchase provisions have now been withdrawn. A filled-up
version of the Order incorporates proposed modifications that have been agreed with
Railtrack and the Environment Agency (CD/ABP/120).
3.121 ABP have suggested that planning conditions relating to landscaping and air quality
should be attached to any deemed planning permission issued pursuant to the TWAO
(CD/ABP/95J/3B).
The Proposed Noise Barriers
3.122 Noise barriers are proposed in Planning Applications Nos 70255 and 72426. These
structures would extend along either side of those sections of the Fawley Branch Line
that pass through noise-sensitive areas in Totton and Marchwood (CD/ABP/7 and 8).
There would be breaks in the noise barriers at level crossings; at bridges; and where the
line is in cutting.
3.123 The application plans have been amended to show details of the proposed structures
(ABP/12/7, Appendix 7). The local planning authority have advertised these
amendments. The proposed barriers would normally be located about 3m from the
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Dibden Bay Inquiry - Inspector's Report
nearside rail. They would consist of timber infill panels attached to steel supports. The
tops of the barriers would be a minimum of 2.3m above the rail level. They would
stand on Railtrack's land adjoining the Fawley Branch Line; and on a small area of
Ministry of Defence land adjacent to the spur railway that runs into Marchwood
Military Port.
3.124 The assessment in the Environmental Statement submitted with the draft HRO takes
account of the effect of the proposed noise barriers in mitigating the disturbance that
would be caused to local residents by freight trains travelling to and from the Dibden
Terminal at night. ABP have given a unilateral undertaking under Section 106 of the
Town and Country Planning Act 1990 in order to secure this mitigation. The effect of
the undertaking is that trains will neither enter nor leave the Dibden Terminal between
2300 hours and 0700 hours the following day until the barriers have been erected
(ABP/0/149, Part 1). The undertaking also makes provision for the maintenance of the
noise barriers.
3.125 There are minor discrepancies between the extent of the proposed noise barriers as
shown on the application plans and their extent as shown in the Environmental
Statement submitted with the draft HRO. A question has also been raised about the
proposed drainage arrangements. These matters could be resolved by means of a
planning condition, which would preclude the erection of the barriers until a detailed
specification has been submitted to and approved by the local planning authority
(ABP/0/143).
Proposed Highway Improvements
3.126 Planning Applications Nos 70243 and 75359 propose the widening of the single
carriageway sections of the A326 between the Michigan Way Roundabout and the
proposed Terminal access road. The existing dual carriageway sections of the A326
would remain unaltered. The single carriageway sections between the Terminal access
and the Hounsdown Fork and between the Foxhills and Fletchwood Junctions would be
improved so as to provide a minimum road width of 13m. This would include the
widening of the Ashurst Railway Bridge. The existing roundabouts and priority
junctions would be replaced by signal controlled junctions, except at Monkton Lane,
Totton. Lighting would be introduced along currently unlit sections of the A326
between Michigan Way and the A35; and between Staplewood Lane and the proposed
Terminal access.
3.127 The formation of the access to the Dibden Terminal from the A326 would necessitate
the permanent diversion of part of Hythe Road. The diversion route would rise on an
embankment to bridge the proposed Terminal Access Road before descending to rejoin
the existing alignment (CD/ABP/7, Sheet 10). The redundant length of the existing
carriageway would be stopped-up and removed (CD/ABP/9).
3.128 In recognition of the increased amount of rail traffic that would use the Fawley Branch
Line, provision would be made for improved footways and waiting areas for
pedestrians and cyclists on either side of the level crossings at Main Road and Tavell's
Lane, Marchwood; and at Jacob's Gutter Lane, Hounsdown (ABP/10/15).
3.129 The highway improvements (including landscaping) would proceed in two stages, as
shown in Schedule 8 to the Section 106 Agreement (ABP/0/149). Stage 1 would
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Dibden Bay Inquiry - Inspector's Report
include the proposed diversion of Hythe Road; the formation of the junction between
the A326 and the Terminal access road; and the improvement of the A326 between that
junction and Hounsdown. Stage 2 would include improvements to the A326 to the
north of its junction with the A35; and the provision of the proposed level crossing
waiting areas.
3.130 The highway improvements are the subject of draft agreements with the County
Council under Sections 38 and 278 of the Highways Act 1980. Part 6 of the Section
106 Agreement precludes the Terminal development from proceeding before the
Section 38 and 278 Agreements have been completed in respect of the Stage 1 works.
It also precludes the Terminal from being occupied before a Section 278 Agreement
has been completed in respect of the Stage 2 works.
3.131 ABP have also given a unilateral undertaking under Section 106 of the Town and
Country Planning Act 1990, which relates to the timing of the proposed highway
improvements. This provides that the Stage 1 works must be completed before the
Dibden Terminal can become operational. It also provides that the Stage 2 works are to
be completed within 2 years of the completion of the Stage 1 works. And it precludes
the use of more than 1,000m of the proposed quay wall before the highway
improvements are complete (ABP/0/149).
Other Planning Obligations
3.132 Part 6 of the Section 106 Agreement refers to various other measures that would
mitigate the impact of Terminal traffic. These include:

a Lorry Routing and Signing Strategy, whereby Terminal traffic would be directed to use
the A326 to Junction 2 on the M27;

routing covenants for construction and operational traffic;

restrictions on the mode of transport for construction materials in favour of deliveries by
sea and rail;

a Port Travel Plan, which would aim to reduce car travel by Terminal employees; and

a Port Closure Plan, which would contain queuing arrangements for commercial vehicles
during any temporary closures of the Terminal.
3.133 The Section 106 Agreement also includes a Public Transport Strategy. This provides
for ABP to pay £800,000 to the County Council in 5 equal instalments following the
occupation of the Terminal. The money could be used as a contribution to the South
Hampshire Rapid Transit Scheme (SHRT); and/or for the improvement of local bus
services in Southampton and the Waterside (including the provision of a shuttle bus
service between Dibden Terminal and the Hythe Ferry).
3.134 The Public Transport Strategy also makes provision for ABP to pay a further £800,000
to the County Council in 5 equal instalments, starting 2 years after the initial
occupation of the Terminal or (with the County Council's agreement) at some later
date. This money could be treated as a further contribution towards SHRT; or it could
fund the provision of a quality bus service between the Dibden Terminal and
37
Dibden Bay Inquiry - Inspector's Report
Southampton and enhancements to local bus services; or both. £50,000 out of this sum
would be ring-fenced as a contribution towards infrastructure facilities on an express
quality bus route.
3.135 In addition ABP have given a unilateral undertaking that, prior to the occupation of the
Dibden Terminal, they would pay £450,000 to the County Council, as a contribution
towards the enhancement of pedestrian and cyclist facilities in the vicinity of the main
line railway in Totton. This contribution recognises that the additional rail traffic
generated by the proposed development would cause additional delay to users of the
Junction Road level crossing in Totton. It represents a proportion of the estimated cost
of the County Council's preferred scheme for providing improved railway crossing
facilities for pedestrians and cyclists, commensurate with the proportion of the total
delay that would be attributable to trains travelling to or from the Dibden Terminal
(ABP/10/20).
3.136 ABP have also given a unilateral undertaking to monitor traffic on local roads in
Marchwood and the New Forest. If traffic management measures are shown to be
necessary as a result of the operation of the Dibden Terminal, ABP will fund these, up
to a limit of £150,000 for Marchwood and £150,000 for the New Forest.
3.137 The Section 106 Agreement also includes obligations relating to contaminated land;
archaeology; air quality; and local training initiatives. These matters are no longer at
issue between ABP and the relevant local authorities.
Alternative Proposals for the Dibden Terminal Promoted by Objectors
3.138 Some objectors argue that the proposed Dibden terminal would be too big and come too
close to the residential properties in Hythe. They contend that, if permission is to be
granted, it should be for a smaller scheme that would exclude the southern part of the
proposed quay.
3.139 However, there are strong national and local arguments in favour of the fullest possible
development of ABP's land, consistent with environmental considerations. There is a
severe national shortage of suitable sites for container port development. Such sites
must have ready access to deep-water and be well located in relation to international
shipping routes. They must be well served by the national road and rail networks.
They must be flat; and of sufficient size to operate efficiently, extending back from the
water's edge for a distance of about a kilometre. The Dibden site meets all these
criteria. It would be wasteful not to make maximum use of such an asset. That
objective could not be achieved with a shorter quay.
3.140 The larger the capacity of the Dibden Terminal, the more likely it would be to attract
and retain the business of a number of major shipping lines or alliances. This would
strengthen the long-term prospects of the Port of Southampton. A smaller Terminal
could be commercially vulnerable, since it might not be able to handle the full demands
of the market leaders, and might have to rely on niche players.
3.141 The proposed Terminal would maximise the value of the Dibden project to the
economic well-being of the UK and the South East Region. It would contribute to the
objective of the South East becoming, and remaining, a "world class region". There are
unlikely to be other opportunities to expand the Port of Southampton in the foreseeable
38
Dibden Bay Inquiry - Inspector's Report
future. It is therefore desirable that maximum use should be made of the Dibden
Reclaim.
3.142 In addition, the larger the Terminal, the greater the likelihood that sufficient volumes of
cargo would be available to justify a full network of rail services. The provision of a
regular train service to a particular destination would depend upon there being a critical
mass of freight. That, in turn, would depend upon the size of the Terminal. From a
practical standpoint, the Terminal would have to be large enough to accommodate
railway sidings capable of handling 750m long trains. That would be the case
regardless of the number of berths to be served.
3.143 ABP's proposal would provide sufficient land within the operational area of the
Terminal to accommodate associated uses such as transport yards and forwarding
depots. These uses would enable the Terminal to fulfil the role of an integrated, multimodal freight exchange, as envisaged in the Government's policies for sustainable
distribution. The presence of these depots on-site would reduce the mileage travelled
by HGVs in moving to and from remote distribution facilities. If the proposed
Terminal were smaller, it might create pressure to site ancillary uses of this sort
elsewhere in the surrounding area.
3.144 For these reasons ABP maintain that their proposals are for a Terminal of appropriate
size in terms of its operational area and quay length.
Layout Proposed by Messrs Dees and Mobey
3.145 Messrs Dees and Mobey have submitted an alternative layout for the proposed Dibden
Terminal (PT2/8). Their scheme would place the operational area of the proposed
Terminal further from Hythe Marina Village and some residents in Hythe. However,
the Terminal would be brought closer to residents living in Veal's Lane, Main Road,
and the Church Farm Caravan Site. Furthermore, the alternative layout would
contravene a number of the fundamental objectives that underlie the design of ABP's
proposals. In particular:

the quay would turn through an angle of 90o, reducing the flexibility with regard to crane
use and the length of ships that could be accommodated;

the more remote parts of the operational area would be a considerable distance from the
quay;

a much larger capital dredge would be required, affecting the tidal prism and increasing
the requirement for maintenance dredging;

the large volume of material excavated to form the deep-water bay would have to be
disposed of at an unidentified landfill;

the consequential environmental impact would include a substantial increase in the
number of heavy vehicle movements during the construction period;

the Terminal would occupy rising land within the New Forest Heritage Area, contrary to
established policy;
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Dibden Bay Inquiry - Inspector's Report

woodlands, hedgerows and pasture at Church Farm and Veal's Farm would be destroyed;

very tall structures, such as quayside cranes and ships, would be brought closer to the
boundary of the New Forest Heritage Area;

Dibden Creek and the Church Farm Nature Conservation Area would not be provided,
reducing the amount of replacement habitat created; and

public rights of way between Hythe and Marchwood would have to pass through the
Terminal's operational area.
3.146 In view of all these considerations, the alternative proposed by Messrs Dees and Mobey
is unacceptable to ABP.
The Hythe Marina Bund "Nib"
3.147 The Hythe Marina Parties prefer the revised scheme for the Hythe Marina Bund to
ABP's original proposal. However, they propose that the revised scheme be further
amended by the eastward extension of the bund to form a "nib" that would project
across part of the foreshore (HMV/0/14, Appendix 2). ABP do not consider that such a
"nib" would have any beneficial effect.
3.148 The suggestion that the "nib" would be necessary to screen container ships berthed at
the Terminal in views from Hythe Marina Village is somewhat odd. Container ships
are a part of the waterside scene. Vessels berthed at the proposed Terminal would be at
least 300m away from Hythe Marina Village. There would be no need to protect
anyone from views of them. The benefits claimed for the "nib" in terms of noise
attenuation were not put to ABP's expert noise witness and are unproven. The Hythe
Marina Parties have made no environmental assessment of the effects of the proposed
"nib", which would entail development within the Solent and Southampton Water SPA
and Ramsar Site. In ABP's view, the Secretary of State should reject the "nib"
proposal.
Legal Issues
3.149 ABP's legal submissions are contained in ABP/0/124. Various parties to the Inquiry
have made different, and conflicting, legal submissions. However, the outcome of the
Inquiry will depend largely on the facts as established by evidence. The law provides
no more than a framework for the decision-maker. The most it can do is to give some
guidance on how particular questions of fact should be approached. The decision will
ultimately be one of fact and judgement.
3.150 Two important consequences flow from this. First, ABP's consideration of the legal
arguments advanced by others assumes that a factual basis for those arguments has
been established. For instance, the County and District Councils have made legal
submissions on the basis that Bathside Bay will come forward in the short-term as a
viable alternative to the Dibden Terminal. ABP have considered these submissions on
the assumption that the necessary consents will be granted for the Bathside Bay
scheme, and that its promoters will proceed to carry out the development within the
next few years. If these assumptions are incorrect, the Councils' legal submissions on
this matter will be of no more than academic interest.
40
Dibden Bay Inquiry - Inspector's Report
3.151 Second, ABP seek to do no more than provide the decision-maker with practical
guidance about the constraints and interpretations that the courts have placed on the
powers that are to be exercised in the present case. This is in contrast to some
objectors, who would place the decision-maker in a legal strait-jacket, in which there is
little room for flexibility or the exercise of discretion.
3.152 In addition to responding to legal points raised by objectors, ABP's legal submissions
set out a number of relevant statutory provisions and basic principles of law which are
uncontroversial. In the case of planning applications, there is a statutory duty on the
decision-maker to have regard to all the material considerations. ABP suggest that the
same duty should apply in respect of the HRO and the TWAO. But that is not to say
that all of these matters must be referred to in either the Inspector's report or the
decision letter. The approach that should be followed is as explained in Bolton v SSE
et al (ABP/0/124A, Case 3):
What the Secretary of State must do is state his reasons in sufficient detail to
enable the reader to know what conclusion he has reached on the 'principal
important controversial issues'. To require him to refer to every material
consideration however insignificant, and to deal with every argument, however
peripheral, would be an unjustifiable burden.
Environmental Assessment
3.153 Some objectors argue that ABP have failed to provide an adequate Environmental
Statement, in accordance with the requirements of paragraph 8 of Schedule 3 to the
Harbours Act 1964. In particular, it has been asserted that:

the Dibden Terminal project is too broadly defined for any proper assessment to be made
of its environmental effects;

the proposals assessed in the Environmental Statement are not adequately secured by
legally binding mechanisms;

no assessment has been made of the visual impact of the proposed recharge;

changes that have been made to the proposals since the Environmental Impact
Assessment was carried out have not themselves been subject to proper assessment;

it is not clear that cumulative impacts have been adequately assessed; and

no assessment has been made of suitable alternative sites outside Southampton Water.
3.154 The judgment in R v Rochdale ex p Milne (NFDC/0/3, Case 7) indicates that:
The development which is described and assessed in the Environmental
Statement must be the development which is proposed to be carried out and
therefore the development which is a subject of development consent and not
some other development.
In the light of this, ABP have proposed a suite of controls that are contained in the
proposed modifications to the draft HRO (CD/ABP/121) or in legally binding
41
Dibden Bay Inquiry - Inspector's Report
obligations (ABP/0/149). These controls are adequate to secure compliance with the
principles set out in the Rochdale judgment.
3.155 The Environmental Statement does not have to describe every environmental effect of
the proposed development, only the "main effects". That requirement has been met.
The visual impact of the proposed recharge would be negligible. Where major
modifications are now proposed to the scheme as originally assessed, supplementary
Environmental Statements have been produced.
3.156 The Environmental Statement has taken account of significant cumulative effects. For
instance, paragraphs 13.24-13.26 of that document deal with cumulative changes to the
marine environment. There is no evidence to support the assertion that significant
cumulative effects have been omitted.
3.157 The objective of the proposed development is to provide additional capacity to meet the
forecast demand for berths to handle deep-sea container ships, and ro-ro and aggregates
traffic, in the Port of Southampton. The Environmental Statement describes various
alternatives that were studied. These were necessarily confined to Southampton Water,
as development elsewhere could not meet the specified objective. This matter is
considered further in paragraphs 3.597 et seq below.
The Habitats Regulations 1994
3.158 The inter-tidal areas above MLW at Dibden Bay, and between Hythe and Cadland
Creek, fall within both the Solent and Southampton Water Ramsar Site; and the Solent
and Southampton Water Special Protection Area (SPA). In addition, the foreshore
between Hythe and Cadland Creek down to MLW falls within the Solent Maritime
candidate Special Area of Conservation (cSAC). Provision for the designation and
protection of SPAs and SACs is made in two EU Council Directives (the Wild Birds
Directive and the Habitats Directive). These have been transposed into domestic law
by the Habitats Regulations 1994. The designation and protection of Ramsar Sites is
governed by the 1971 Convention on Wetlands of International Importance (the
Ramsar Convention). The approach set out in the Habitats Regulations applies to the
Ramsar Site, as a matter of Government policy.
3.159 ABP's analysis of the application of the Habitats Regulations to the present proposals is
set out in Section 10 of ABP/0/24. The purpose of the Habitats Regulations (and of the
underlying European legislation) is to protect the function of individual designated sites
and the coherence of Natura 2000 (ie the European network of designated sites). Two
consequences flow from this.
3.160 First, the legislation must be interpreted from an ecological perspective. It requires an
examination of the ecological features of the designated sites; and an assessment of
how these features would be functionally affected by the proposed scheme, taken as a
whole. Certain objectors have erred in their approach to this matter. They have
assessed the adverse impact of the proposed port development on the designated sites
without reference to the beneficial effects of off-setting measures, such as the Hythe to
Cadland recharge, the creation of Dibden Creek, and the provision of the Church Farm
Nature Conservation Area.
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Dibden Bay Inquiry - Inspector's Report
Long-Term Perspective
3.161 Second, the impacts to be considered must be long-term impacts. This is not to say that
short-term effects are to be ignored, but that they should be considered only in the
context of the long-term integrity of the designated sites. Once again, certain objectors
have incorrectly sought to interpret the Habitats Regulations as applying to the shortterm, transitory effects of the proposed development.
3.162 Significantly, Article 1 of the Habitats Directive refers exclusively to long-term (rather
than short-term) effects. In paragraph 3.6.1 of Managing Natura 2000, the European
Commission describe "habitat deterioration" in terms of a reduction of the "structure
and functions necessary for the long-term maintenance .... of the typical species which
are associated with this habitat" (emphasis added).
3.163 At paragraph 4.6.3 the same document indicates that the decision as to whether a
European site would be adversely affected by a project "should focus on and be limited
to the site's conservation objectives". Regulation 48(1) of the Habitats Regulations
makes provision for an appropriate assessment to be made "in view of that site's
conservation objectives". English Nature's conservation objectives for the Solent and
Southampton Water SPA and Ramsar Site include maintaining the habitats of certain
species in a "favourable condition" (CD/EN/7, p45). English Nature define "favourable
condition" as "the condition in which the habitat or species is capable of sustaining
itself on a long-term basis" (CD/EN/7, p109 - emphasis added).
3.164 The judgment in RSPB v Secretary of State for Scotland (EN/0/3, Case B) also stresses
the importance of long-term effects in applying the European legislation. At paragraph
30, the Lord President said:
.... disturbance should not impair the protection of the quality of the living
conditions of the birds on the site and so affect their ability to maintain
themselves on a long-term basis ....
And at paragraph 32 he said:
.... although the effects of any disturbance on the relevant birds in a SPA must
be taken into account, it does not, of course, follow that no disturbance
whatever of the birds is permitted. What is not permitted is disturbance which
adversely affects the ability of the species to maintain itself on a long-term
basis on the site, or - as the Commission puts it - "which could contribute to
the long-term decline of the species on the site" (emphases added).
3.165 In practice, it is unlikely that the significance of an ecological effect can be detected
unless it continues beyond about 5 years. And it is difficult to envisage how any shortterm disturbance could affect the overall coherence of Natura 2000. The concept of
"coherence" has a temporal aspect, which looks to the long-term rather than transient
short-term effects.
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Regulation 48 - Assessment of Implications for European Sites
Significant Effect
3.166 Regulation 48(1) of the Habitats Regulations 1994 provides for the appropriate
assessment of any "plan or project" which is likely to have a significant effect on a
European site (except where the plan or project is directly connected with the site's
management). The question of whether a development would have a significant effect
on designated sites of international nature conservation importance was considered by
the Secretaries of State for Wales and Transport in a decision relating to Mostyn Dock
in Clwyd (EN/2/7, para 13). They accepted the Assessor's judgement that claims that
the loss of inter-tidal habitat would impose severe hardships on birds were not
substantiated; and that the effects of dredging would be ephemeral. In the
circumstances, they agreed with the Assessor's conclusion that the development was
not likely to have a significant effect on the designated sites.
3.167 It is clear from this that the Secretaries of State looked for positive evidence that the
proposed development would impose "severe hardship" on birds. It also clear that they
attached little weight to short-term (ephemeral) effects. In the case of the Dibden
Terminal, there is no evidence that birds would suffer severe hardship.
Meaning of "Plan or Project"
3.168 ABP's approach is that the "plan or project" to be assessed should include everything
contained in the relevant application for "consent, permission or other authorisation".
Authority for this proposition is to be found in WWF-UK v Secretary of State for
Scotland (HCC/0/24, p699). In this, Lord Nimmo Smith said that "the plan or project is
that which is the subject matter of an application and can thus be identified by reference
to the application".
3.169 The appropriate assessment must take account of all the effects of a "plan or project"
that are relevant to the purposes for which the European site has been designated. It is
necessary to take account of effects that emanate from both inside or outside the
designated site. And it is necessary to consider both beneficial and adverse effects,
before forming a balanced view about the total impact of the proposed development on
the integrity of the European site
3.170 An alternative approach is advocated by the County and District Councils, and by the
RSPB. In this, the construction of the Dibden Terminal is identified as the "core"
component of the draft HRO. This "core" component, which excludes all of the
offsetting habitat creation measures, would constitute the "plan or project" for the
purposes of Regulation 48.
3.171 In ABP's submission, this alternative approach would be unlawful. First, it would
plainly conflict with the judgment in WWF-UK v Secretary of State for Scotland.
Second, it would require that all of the offsetting measures described in the draft HRO
be regarded as separate "plans or projects" in their own right. In accordance with
Regulation 48(1)(a) the "core" project would then fall to be considered in combination
with these other "plans or projects". It follows that no purpose would have been
served by the division of the scheme into its "core" and other components. Third,
Regulation 48(6) requires that the authority making the appropriate assessment should
have regard to the manner in which the "plan or project" is proposed to be carried out.
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The offsetting nature conservation measures are all a fundamental part of the manner in
which the Dibden Terminal project is proposed to be carried out. The draft HRO
contains provisions that would tie the start of the construction of Dibden Creek and the
Hythe to Cadland recharge to the commencement of work on the quay wall, and would
require these offsetting measures to be completed as soon as practicable.
Offsetting Measures
3.172 A related issue arises as regards the forms of offsetting measures that can be lawfully
taken into account in making an appropriate assessment under Regulation 48. ABP's
stance on this matter is rooted in their functional approach. The SPA and Ramsar Sites
have been designated because they provide a habitat for certain species of birds. If a
"plan or project" would provide an alternative habitat for the birds for which the site
has been designated, then Regulation 48 would allow account to be taken of that
alternative habitat in assessing whether there would be an adverse effect on the
integrity of the designated site.
3.173 Authority for ABP's approach is to be found in the judgment in RSBP v Secretary of
State for Scotland (EN/0/3, p68). In this it was held that SPAs are classified so as "to
ensure that the conservation status of the vulnerable species is favourable". If this is so,
then the provision of alternative habitat that would secure that objective must be taken
into account in assessing whether a project would affect the integrity of a SPA. The
underlying purpose of the legislation is to encourage developers to take positive steps
to preserve the ecological resource at the point when they are formulating their plans.
3.174 This approach is supported in Managing Natura 2000. Paragraph 3.6.2 of that document
lists considerations that are relevant to maintaining the favourable conservation status of a
species. These include the following:

the natural range of the species is neither being reduced nor is likely to be reduced for the
foreseeable future; and

there is, and will probably continue to be, a sufficiently large habitat to maintain its
populations on a long-term basis.
The provision of alternative habitat would plainly contribute to the objective of
maintaining the favourable conservation status of species affected by the Dibden
Terminal development.
Objections to ABP's Approach
3.175 English Nature and others object to ABP's approach on two grounds. First they argue
that if "compensatory" measures are to be taken into account in appropriate assessments
made under Regulation 48, then a developer might be able to circumvent the tests
contained in Regulation 49. However, if the developer proposes to provide such a
degree of alternative habitat that the "plan or project" will not have any adverse effect,
then the legislation will have achieved its purpose.
3.176 Second, English Nature and others argue that the Birds Directive obliges member states
to preserve habitat, as a separate consideration from preserving birds. This point relies
on the judgment in the Santoña Marshes case (Commission v Spain, EN/0/3, Case H).
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However, the objectors fail to take account of the concept of "sufficiency". In the
Santoña Marshes judgment it was held that:
it follows from the ninth recital in the preamble to the [Birds] Directive that
the preservation, maintenance or recreation of a sufficient diversity and area of
habitats is essential to the conservation of all species of birds (EN/0/3, Case H,
p218, emphasis added).
The concept of "sufficiency" requires the exercise of judgement on the part of the
decision-maker. There is no absolute bar on the loss of habitat.
3.177 The need to exercise judgement in applying the Birds Directive is also reflected in the
Leybucht Dykes case (Commission v Germany, EN/0/3, Case A). In this, the German
Government claimed that the provisions of the Directive required a balance to be struck
between the various public interests at stake. In allowing development that would
destroy protected habitat to proceed, the European Court of Justice necessarily struck
such a balance.
3.178 The view that a loss of habitat from within a European site must inevitably lead to a
finding of an adverse effect on the integrity of that site is inconsistent with the recent
Ministerial planning decision concerning the White Horse Millennium Landmark. In
that case, the proposal was to depict a horse, by cutting into a chalk hillside in a cSAC
near Folkestone. The Secretary of State agreed with the Inspector's conclusion that:
Seen in the overall context of the cSAC the relatively small loss of habitat
does not necessarily amount to an adverse effect on its integrity. This is
because the complex of habitats could continue to be sustained across its
whole area, even though there would be an immediate reduction of habitat....
Taking account of time as well as area and assuming that appropriate
management practices continue, sustaining the levels of species populations
would not appear to be threatened to such an extent that there would be a
material adverse effect on the integrity of the site.
In absolute terms the cSAC would be better able to retain its integrity without
the hill-figure and it must be acknowledged that the proposals would have an
immediate adverse effect on the site in terms of habitat loss. However, this
does not equate to an adverse effect on its integrity if that integrity can be
preserved in the longer term, by reason of the effective management of the
considerable habitat resource that the cSAC holds. Accordingly, I do not
regard the changes proposed as so significant that they amount to what could,
overall, be regarded as an adverse effect on the integrity of the cSAC (taking
account of the definition of integrity given in PPG9) (ABP/0/74, paragraphs
80 and 81).
English Nature concede that the approach taken in the White Horse case was correct
(EN/0/21, para 53). That approach also underlines the importance to be attached to
long-term rather than short-term effects.
3.179 Similarly, the Inspector who held the inquiry into the proposed Felixstowe Dock and
Railway HRO 2000, concluded that:
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The overall effect of the scheme on the nature conservation interest of the
estuarine system is clearly a balance between those adverse residual effects
remaining after the quay extension, together with dredging during the
operational phase, and the beneficial effects due to habitat enhancement.
I conclude that, once the habitat enhancement works take full effect (within
two years of their construction) the scheme would have a net beneficial effect
on nature conservation .... (ABP/0/121A, paras 7.14.14 and 16)
The Secretary of State considered that the Inspector's conclusions were reasonable.
They clearly refer to the need for a balanced judgement to be made of the net effect
of the proposed development as a whole, including both adverse and beneficial
aspects.
ABP's Appropriate Assessment of the Dibden Terminal Project
3.180 ABP carried out an appropriate assessment of the Dibden Terminal HRO because, as
Harbour Authority, they are a "competent authority" within the meaning of the
Regulations. Their appropriate assessment was completed in September 2000. It
concluded that the proposed development would not adversely affect the integrity of the
Ramsar Site, the SPA or the cSAC (CD/ABP/69). However, in the light of subsequent
events, ABP are no longer able to conclude that the proposed development would not
adversely affect the integrity of the Solent and Southampton Water SPA (see
paragraphs 3.892 et seq below). This does not imply that ABP now accept that the
proposed development would adversely affect the integrity of this European site.
3.181 A negative assessment under Regulation 48 is not fatal to the proposed development.
Although Regulation 48(5) indicates that the Secretary of State may only agree to the
Dibden project after having ascertained that it would not adversely affect the integrity
of a European site, that provision is subject to Regulation 49.
Regulation 49 - Alternative Solutions and Overriding Public Interest
3.182 Regulation 49 indicates that, if there are no alternative solutions, and if the project must
be carried out for imperative reasons of overriding public interest, the Secretary of State
may permit the development to proceed, notwithstanding a negative assessment of the
implications for any European site. It will therefore be necessary for the Secretary of
State to consider whether there are alternative solutions that would meet the objective
of the proposed Dibden Terminal scheme. As indicated above, that objective is to
provide additional capacity to meet the forecast demand for berths to handle deep-sea
container ships in the Port of Southampton. Development located outside Southampton
Water would not meet this objective, and cannot be regarded as providing an alternative
solution.
3.183 Several objectors have contended that there are "alternatives" to the Dibden scheme in
locations remote from Southampton Water. They argue that ABP's case is flawed
because these "alternatives" have been disregarded. However, the objectors' arguments
are predicated on their misunderstanding of the need that the proposed Dibden
Terminal is intended to address. Thus, the County and District Councils think that the
need is for a further container terminal in the South East, to serve the whole of the UK.
They then suggest alternative "scenarios" for meeting this need, which (they say) have
been ignored by ABP (NFDC/0/1, para 2.9).
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3.184 Others, including the RSPB, argue that it would be unlawful for the Secretary of State
to authorise the development of the Dibden Terminal until he has fuller information
about other proposed schemes for container port developments remote from
Southampton Water. In addition to being based on a false premise as regards the need
that the proposed Dibden Terminal is designed to meet, such an approach would invite
administrative chaos and atrophy. The Secretary of State would never be in a position
to make a decision, as there would always be the potential for additional schemes to
emerge.
3.185 One other matter that calls for particular comment is RSPB's submission that
"economic considerations cannot as a matter of law be determinative in the
identification of alternative solutions" (RSPB/0/3, para 2). This suggestion is derived
from paragraph 5.3.1 of Managing Natura 2000, which indicates that in making
comparisons between alternative solutions "economic criteria cannot be seen as
overruling ecological criteria". However, although there is disagreement about the
nature of the need to be met, all parties agree that an alternative solution must be
identified by reference to need. Furthermore, there is general agreement that need is
driven by economic considerations. The question of alternative solutions is therefore
concerned with how best to deal with these economic considerations. A comparison of
ecological effects may be relevant when considering the competing merits of
alternatives, but only if each alternative could provide the economic conditions that
would help meet the need that has been identified.
3.186 In addition to considering the availability of alternative solutions, it will be necessary
for the Secretary of State to consider whether the Dibden project must proceed for
imperative reasons of overriding public interest. This will require an assessment of the
need for the proposed development.
3.187 By definition, an "overriding public interest" will outweigh the protection given to the
designated sites. Paragraph 5.3.2 of Managing Natura 2000 explains that:
The public interest must be overriding: it is therefore clear that not every kind
of public interest of a social or economic nature is sufficient, in particular
when seen against the particular weight of the interests protected by the
Directive.
As will be demonstrated, it is ABP's case that there are no alternative solutions and
that the Dibden Terminal must proceed for imperative reasons of overriding public
interest.
Regulation 53 - Compensatory Measures
3.188 Regulation 53 provides that, where a project is agreed to be in accordance with
Regulation 49, "the Secretary of State shall secure that any necessary compensatory
measures are taken to ensure that the overall coherence of Natura 2000 is protected".
Objectors have sought to make a distinction between mitigation and compensation,
although they disagree between themselves about the nature of this distinction. In
ABP's view, such a distinction serves no useful purpose. Importantly, there is no
reference to such a distinction in either the EU Directives or the Habitats Regulations.
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3.189 Despite this, paragraph 4.5.2 of Managing Natura 2000 defines mitigation measures as
being "an integral part of the plan or project". On the other hand, paragraph 5.4.1 of
the same document defines compensatory measures as being "independent of the
project". On this basis, the Hythe to Cadland recharge, Dibden Creek and the Church
Farm Nature Conservation Area would all fall to be considered as mitigation measures,
since they are all integral to the Dibden Terminal project. This supports ABP's view
that they must all be taken into account in the appropriate assessment of the project
under Regulation 48. None of them could properly be described as being "independent
of the project" since they are intimately linked with the overall design concept.
3.190 However, the important distinction on which Regulation 53 focuses is the distinction
between a European site and Natura 2000. While Regulation 48 addresses the impact
of a proposal on a particular designated site, Regulation 53 is concerned with securing
the coherence of the whole network of designated sites. Natura 2000 is an extremely
wide geographical and ecological concept. For instance, the Humber estuary is part of
Natura 2000 and lies within the same bio-geographical range as Southampton Water for
migratory waterfowl. Paragraph 5.4.3 of Managing Natura 2000 explains that:
The distance between the original site and the place of the compensatory
measure is not .... an obstacle as long as it does not affect the functionality of
the site and the reasons for its initial selection.
3.191 Various objectors assert that if substitute habitat is to be provided, it must be available
and functioning at the time when the loss to the nature conservation value of existing
habitat occurs. However, the guidance at the end of paragraph 5.4.2 of Managing
Natura 2000 reads:
The result [of the compensatory measures] 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.
This recognises that there may be circumstances where the coherence of Natura
2000 will be unimpaired by there being a time lapse between the loss of habitat and
its replacement.
3.192 Certain objectors have wrongly argued that, since ABP can no longer say that the
Dibden Terminal would not have an adverse effect on the Solent and Southampton
Water SPA, compensatory measures must be taken if the proposed development is to
proceed. However, Regulation 53 does not require the Secretary of State to secure the
like for like replacement of lost habitat. Rather, it requires him to make a judgement
about whether compensatory measures are necessary to secure the overall coherence of
Natura 2000 (and if so, the form and extent of the measures required). In the present
case, he is not bound to require ABP to provide compensatory measures beyond the
offsetting works that they already propose. Objectors who claim otherwise give no
effect to the words "any necessary" in Regulation 53.
3.193 If the Secretary of State is left in a position of doubt as to whether any additional
compensatory measures are necessary, then nothing further may be required. In these
circumstances, the Secretary of State would not be able to conclude that further
compensatory measures are necessary.
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3.194 Circumstances of this sort arose in relation to a 1998 decision on an application for
consent to deposit dredgings from the approach channel to Harwich Harbour (EN/0/4,
Appendix C). Because of a lack of evidence, English Nature had initially been unable
to "exclude the possibility of an adverse effect upon the integrity of the Hamford Water
SPA". However, a monitoring package was agreed (ABP/0/72). This made provision
for appropriate mitigation and/or compensation objectives to be established; and for
measures to be implemented, in the event of an impact being demonstrated. In the light
of this, English Nature (and the Secretary of State) were able to conclude that the
project would not have an adverse effect on the integrity of the Hamford Water SPA.
3.195 If the Secretary of State concludes that further compensatory measures are necessary in
the present case, it would be open to him to inform ABP that he is minded to authorise
the development, and seek further information about the possible form that the
compensatory measures might take. However, having decided that the project must be
carried out for imperative reasons of overriding public interest, it would not be open to
the Secretary of State to refuse to make the HRO because of an absence of
compensatory measures. To do so would be inconsistent with the view that the public
interest served by the development should override the interests of nature conservation.
Application of the Basses Corbières Case
3.196 Two objectors have sought to rely on the judgment of the European Court of Justice in
the Basses Corbières case (Commission v France, EN/0/19, Case K). They assert that
the Government have failed correctly to define the boundaries of the Solent and
Southampton Water SPA. The County and District Councils argue that the SPA should
properly extend below the mean low water line, to include the shallow sub-tidal area.
The RSPB go further, contending that the SPA should also include the Dibden Reclaim.
3.197 Each objector's case is that areas incorrectly excluded from the SPA should be
protected in accordance with first sentence of Article 4(4) of the Birds Directive. This
applies to SPAs. It requires member states to "take appropriate steps to avoid pollution
or deterioration of habitats or any disturbance affecting birds, in so far as these would
be significant having regard to the objectives of this Article". The objectors cite the
Basses Corbières judgment as authority for the proposition that Article 7 of the Habitats
Directive does not apply to areas that have been incorrectly excluded from the SPA.
Accordingly, they contend that there is no derogation from the requirement to avoid
deterioration of the habitat in such areas, even for imperative reasons of overriding
public interest. They argue that a negative appropriate assessment under Regulation 48
should be fatal to the Dibden Terminal scheme.
3.198 However, the objectors' interpretation of the law is defective. Furthermore, the facts of
the present case do not bring the key principles set out in the Basses Corbières
judgment into play.
Classification of SPAs
3.199 The legal provisions governing the classification of SPAs are contained in the Birds
Directive. Article 3(1) requires member states to "take the requisite measures to
preserve, maintain or re-establish a sufficient diversity and area of habitats for all
species of birds referred to in Article 1" (emphasis added).
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3.200 Article 4(1) applies only to Annex I species. It requires member states to classify "the
most suitable territories in number and size as SPAs for the conservation of these
species" (emphasis added). Article 4(2) requires member states to "take similar
measures for regularly occurring migratory species not listed in Annex I". The Dibden
foreshore is important for these regularly occurring migratory birds.
3.201 It is clear that member states have a measure of discretion in selecting the most suitable
territories for classification as SPAs. The case of WWF-UK v Secretary of State for
Scotland concerned the manner in which that discretion should be exercised. In his
judgment, Lord Nimmo Smith said:
The decisions of the European Court of Justice to which reference has been
made recognised that in exercise of their discretion with regard to
ornithological criteria, what requires to be carried out is a complex and
sophisticated scientific exercise. It is not, in my opinion, part of that exercise
that all the contiguous or linked qualifying habitats or species populations
must be included (HCC/0/24, p679).
3.202 In exercising their discretion to fix the boundaries of a SPA, member states must have
regard to ornithological considerations, including the fact that birds will pay no regard
to site boundaries. The matters to be taken into account will include enforceability,
practicality, and the choice of a relatively easily identifiable line, such as mean low
water. ABP do not accept that the boundary of the SPA at Dibden Bay is indefensible.
It is noteworthy that the question of whether that boundary has been incorrectly drawn
was not put to ABP's witness.
3.203 As far as is known, the boundary of the Solent and Southampton Water SPA has never
been subject to any legal challenge, either by the European Commission or by any
domestic party. No party to the Inquiry has produced evidence to show that the
Government have failed to classify as SPAs a "sufficient .... area of habitat" or the
"most suitable territories in numbers and size". No party has sought to argue that these
requirements dictate that the shallow sub-tidal should have been included in the SPA,
or that its exclusion was not within the margin of discretion lawfully available to the
Government.
Failure to Classify
3.204 The decision in the Basses Corbières case reflects the Santoña Marshes judgment
(EN/0/3, Case H). In the Santoña Marshes case, the European Court of Justice held that
an area that should have been classified as a SPA, but had not been so classified, was
subject to the regime set out in the first sentence of Article 4(4) of the Birds Directive.
It should be noted that that case entailed the consideration of a number of Annex I
species. The Spanish Government did not dispute that the area, which had not been
classified as a SPA, should have been so classified.
3.205 Similarly, in the Basses Corbières case, no SPA had been classified. Attention focused
on an Annex I species of eagle. There were no migratory species that justified
classification of a SPA under Article 4(2) of the Birds Directive. The European Court
of Justice held that that case concerned an area that should have been classified as a
SPA under Article 4(1) of the Birds Directive, but had not been so classified. It ruled
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that that area should come within the regime set out in the first sentence of Article 4(4)
of the Birds Directive.
3.206 It is important to note that neither the Santoña Marshes nor the Basses Corbières
judgments deal with the position where an SPA should have been classified under
Article 4(2) of the Birds Directive; both cases are concerned with classification under
Article 4(1). Furthermore, neither of these cases deals with the position where a SPA
has been classified, but over an allegedly inadequate area. There is clearly a material
difference between a case where there has been a wholesale failure to classify a SPA,
and a case in which there is a dispute about the manner in which the boundaries of a
classified SPA have been drawn. In view of these considerations, both cases can be
distinguished from the circumstances that apply at Dibden Bay.
3.207 The Marais Poitevin case (Commission v France, EN/0/19, Case O) did concern the
failure of the French Government to classify a sufficiently large area of marshland as a
SPA. However, the French Government did not deny that the SPA as designated was
inadequate. It is a common feature of the Santoña Marshes, Basses Corbières and
Marais Poitevin cases that in each of them the relevant national Government admitted a
failure to comply with obligations imposed by the European legislation. However, the
UK Government have made no such admission in respect of the Solent and
Southampton Water SPA.
3.208 It is important to note that (like Santoña Marshes) the Basses Corbières judgment deals
with circumstances where a SPA should have been classified. It does not deal with the
position where, after the relevant SPA has been classified, circumstances arise which
suggest that the SPA boundary might be extended or reconsidered. This crucial point
appears to have been missed by objectors. For instance, the RSPB argue that the
Dibden Reclaim should now be included within the SPA. Similarly, the County and
District Councils assert that the area below mean low water should be in the SPA, but
do not argue that the Government were not entitled to take a different view in
exercising their discretion over the alignment of the SPA boundary. Regardless of the
merits of the contentions advanced by these objectors, they do not raise the issue that
was dealt with in the Basses Corbières judgment. That judgment was concerned with
land that should already have been classified as a SPA, rather than land which might
have the potential to be so classified.
The Human Rights Act 1998
3.209 Residents Against Dibden Bay Port (RADBP) are almost alone in asserting that the
proposed development would result in an infringement of the human rights of local
people. It is noteworthy that other major objectors, who have considerable expertise in
administrative and public law, make no such case.
3.210 RADBP's case is based on future impacts that they say may arise as a result of the
proposed development. They fear that pollution of various sorts would be caused by
the Dibden Terminal, and that this would adversely affect the home life of residents in
breach of Article 8 of the Human Rights Convention. They also consider that the
development would have an adverse effect on the value of neighbouring properties, in
breach of Article 1 of the Convention's First Protocol. However, the courts have
rejected claims of this nature. In Asselbourg v Luxembourg (ABP/0/124A, Case 11)
the European Court held that:
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It is only in wholly exceptional circumstances that the risk of future violation
may nevertheless confer the status of "victim" on an individual applicant, and
only then if he or she produces reasonable and convincing evidence of the
probability of the occurrence of a violation concerning him or her personally:
mere suspicions or conjectures are not enough in that respect.
This point was re-affirmed in the UK context, in R (on the Application of Vetterlein)
v Hampshire County Council (ABP/0/124A, Case 12).
3.211 These authorities suggest that to substantiate a complaint under Article 8 of the Human
Rights Convention, a "victim" must adduce evidence which establishes both the harm
that would be suffered and its relationship to the proposals. A similar point is made in
the context of Article 1 of the First Protocol in R v Camden LBC ex parte Cummins
(ABP/0/124A, Case 8). In that case, the judge said that "a mere loss of property value
.... might involve a determination of civil rights but it would have to be significant and
evidenced".
3.212 In the present case, no individuals have been identified that can be accorded the status
of "victim". Concerns about the environmental impact of the Dibden scheme have been
scrutinised by appropriately qualified experts before an independent tribunal. Fears of
the kind of harm envisaged by RADBP are without foundation, and are not supported
by the evidence.
3.213 The evidence of RADBP's witness, Mr Chase, is that the prospect of the Dibden
Terminal development has already had an adverse effect on the local housing market
(RADBP/7/1, para 5.1). However, this assertion is not borne out by his survey of local
estate agents, and is wholly unsubstantiated. Mr Chase's views about the future effect
of the construction and operation of the Terminal on property values should be judged
by reference to his assessment of the present state of the housing market in this area.
The Margin of Appreciation
3.214 RADBP's assertion that there would be interference with Article 8 rights rests on the
proposition that there would be some deterioration in environmental conditions
affecting a limited number of people. However, where these effects can be objectively
quantified, they all fall within the range of acceptability defined in nationally or
internationally prescribed parameters. In these circumstances the principle of the
"margin of appreciation" is relevant. This was expressed in the following way in
Buckley v UK (ABP/0/124A, Case 14):
The European Court has recognised that by reason of their direct and
continuous contact with the vital forces of their countries, the national
authorities are in principle better placed than an international court to evaluate
local needs and conditions.
3.215 The "margin of appreciation" permits individual states to adopt such standards and
rules for the regulation of development as are judged to be nationally appropriate,
having regard to "local needs and conditions". In the UK, Parliament has enacted a
statutory code, whereby individuals are compensated for certain losses suffered as a
result of the compulsory purchase of property; and the Government has adopted
policies for regulating the development of land. RADBP's real complaint appears to be
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that these measures do not allow their members to claim compensation in the
circumstances of the present case. However, such a complaint is irrelevant to the
consideration of the Dibden Terminal applications.
Qualified Rights
3.216 Article 8 of the Convention confers a right to respect for private and family life.
However, it contains the qualification that interference with that right is permissible if
this is "necessary .... in the interests of .... the economic well-being of the country". In
essence, there must be a pressing social need for the interference, and the means
employed to meet that need must be proportionate. In considering proportionality, the
extent of the interference with the human right in question must be balanced against the
nature, context and importance of the public interest asserted as justification for the
interference.
3.217 The principle of proportionality also applies to rights under Article 1 of the First
Protocol. In Bovis Homes v NFDC & Others (CO/4853/1999) reference is made to a
case in which the applicant claimed that his property rights had been infringed. The
blighting effect of a major development proposed in a statutory plan had made his
house saleable only at a significantly reduced price. However, the court found that
there had been no breach in his rights under Article 1 of the First Protocol, "because the
restriction was not disproportionate to the end".
3.218 As previously indicated, ABP's case is that there is a compelling economic and social
need for the proposed development, and that there is no alternative solution. On the
evidence, the need would justify such interference with human rights as may eventuate.
The Dibden Terminal would serve a vital national interest, which must be addressed if
a significant prejudicial impact on the UK economy is to be averted.
3.219 RADBP cite the judgment in Hatton v UK ([2002] 34 EHRR 1) as authority for the
proposition that "alternative" locations should be chosen for port development in
preference to Dibden Bay, because they would be further away from the nearest
housing. However, this point necessarily founders on RADBP's failure to understand
the relationship between "need" and "alternatives". Their preferred locations, such as
London Gateway, the Isle of Grain and Hunterston, would not meet the need identified
by ABP, and therefore cannot be treated as alternatives to Dibden Bay.
The Policy Background6
National Policy
3.220 In considering the HRO, the Secretary of State must apply national policy as currently
published by the Government. Certain objectors, including the Friends of the Earth
Hampshire, have taken the line that Government policy is wrong in relation to such
matters as the promotion of economic growth and international trade. Others, such as
6
The applicants, the local planning authorities and English Nature have produced an Agreed Statement
of Facts on the Policy Background to the proposed development (CD/GEN/9). Appendix A of that document
contains an Agreed Policy Framework.
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Dibden Bay Inquiry - Inspector's Report
the County and District Councils, have indicated that they have difficulty with some
aspects of Government's approach as set out in Modern Ports. However, it is not the
function of the present proceedings to question or revise Government policy.
Objections that are based on the premise that Government policy is wrong should be
discounted.
A Better Quality of Life
3.221 The Government's strategy for sustainable development is set out in the publication A
Better Quality of Life. Four objectives of sustainability are identified. They are:

social progress, which recognises the needs of everyone;

effective protection of the environment;

the prudent use of natural resources; and

the maintenance of high and stable levels of economic growth and employment.
3.222 These objectives are interdependent and are to be pursued simultaneously. An
unbalanced approach, which gives weight to one or two of the objectives at the expense
of the others, will be contrary to the guidance in A Better Quality of Life. Some
objectors appear to seek the protection of the environment and the prudent use of
natural resources, but ignore the need for social progress and economic growth. Their
approach is counter to Government policy.
3.223 A Better Quality of Life stresses that "we need to create conditions in which trade can
flourish". At paragraph 1.8 it says:
The UK is a trading nation in a rapidly changing world. For our country to
prosper, our businesses must produce the high quality goods and services that
consumers throughout the world want, at prices they are prepared to pay. To
achieve that .... we need businesses ready to invest, and an infrastructure to
support them.
The Dibden Terminal would provide part of that infrastructure.
3.224 A Beter Quality of Life also emphasises the role of the planning system in promoting
opportunities for people to travel by public transport, on foot and by bicycle, whilst at
the same time reducing the number and length of journeys (Section 2). ABP's
commitment to measures such as the Port Travel Plan, which has been commended for
its approach and content (HCC/9/4, para 10.11), and the funding of an appropriate
public transport strategy, all highlight the extent to which the Dibden Terminal
proposals address these objectives..
The Precautionary Principle
3.225 A Better Quality of Life defines the "precautionary principle". This has been
misapplied in some of the objections to the Dibden Terminal. Paragraph 4.2 indicates
that in applying the "precautionary principle":
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Dibden Bay Inquiry - Inspector's Report
.... precautionary action must be based on an objective assessment of the costs
and benefits of action. The principle does not mean that we only permit
activities if we are sure that serious harm will not arise or there is proof that
the benefits outweigh all possible risks. That would severely hinder progress
towards improvements in the quality of life.
It follows that the precautionary principle is not designed to achieve atrophy, or to
incline the decision-making process against development. In some cases, society
will be prepared to live with a risk because of the other benefits it brings. This
approach is particularly important to the consideration of habitat improvement
schemes, such as the Hythe to Cadland recharge, which might risk some marginal
disruption to the eco-system in the short-term, but would bring substantial long-term
benefits.
3.226 A Better Quality of Life indicates that decisions should not be deferred, but should be
taken on the basis of the best information available. It says that they should then "be
reviewed to reflect better understanding of risk as more evidence becomes available".
This is the approach that ABP propose to take, for instance by monitoring the pilot
scheme for the Hythe to Cadland recharge.
3.227 Although the "precautionary principle" is generally applied to environmental concerns,
it has relevance to the other objectives of sustainable development. For example, a port
may need to expand to remain competitive and meet the requirements of its customers.
If it is prevented from taking the appropriate action, it is likely to lose business. In the
case of a gateway port, this could have substantial adverse consequences, locally,
regionally and nationally.
In so far as the sustainable development objective of
maintaining high and stable levels of economic growth and employment is concerned,
application of the "precautionary principle" would militate in favour of allowing the
requisite expansion, all other things being equal.
A New Deal for Transport
3.228 The White Paper A New Deal for Transport promotes traffic restraint, encourages
alternative modes of transport to the private car, and abandons the "predict and
provide" approach. As part of a unified integrated transport policy, it also promotes the
movement of freight by non-road forms of transport. It encourages the growth of ports
as transport hubs; and encourages the development of inter-modal transfer facilities to
further integrate the sustainable transport of freight. The relevance of Dibden Terminal
in this context is obvious, but nonetheless important.
3.229 The means of implementing these policy objectives is through the establishment of
Freight Quality Partnerships (para 3.170), and Local Transport Plans (para 4.73).
These are seen as the primary means of engaging all interested parties in the process
and making sure that the policies are implemented at a local level on the basis of
consultation and consensus.
3.230 Such matters have been fully considered. All relevant parties, such as the Freight
Transport Association, have been involved in drawing up ABP's proposals. There is a
real, rather than a simply theoretical, prospect of achieving a sustainable approach. The
Section 106 Agreement (ABP/0/149) and on-going discussion on the Freight Quality
Partnership underline the potential of the proposals.
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National Freight Transport Policy
3.231 The freight aspects of national transport policy are further explained in Sustainable
Distribution. This confirms the national importance of gateway ports (such as
Southampton) as multi-modal interchanges; and it emphasises the importance of railfed ports in providing for the movement of freight. At paragraph 5.19 it says:
Better utilisation of railway, ports and shipping services has a vital role to play
in building a sustainable distribution system. When intensively used, railways
can offer a substantially more energy-efficient means of distribution, while
ships can be more efficient still. Moving freight by rail .... can help to reduce
congestion on the road network.
3.232 The Dibden Terminal would offer an opportunity to maximise the use of the railway to
carry freight. The prospects for making up trainloads of containers depend in part on
the size of the port. The Dibden Terminal would have sufficient critical mass to
generate about 44 train movements a day7. Southampton is already the UK's leading
rail-fed container port. The proposed development would make a significant
contribution to the Government's objective of increasing the use of railways for the
movement of freight.
3.233 The objectives of Sustainable Distribution include:

minimising congestion;

making the best use of transport infrastructure;

managing development pressures on the landscape - both natural and man made; and

minimising pollution and greenhouse gas emissions.
3.234 Each of these elements of the strategy finds positive and clear support in the Dibden
Terminal proposals
3.235 The Government's commitment to improving the transport network so as to facilitate
growth in freight traffic on railways is set out in Transport 2010. The Minister says in
his introduction:
Spending on railways will total £60 billion. .... Investment in infrastructure
will encourage by our estimate an increase of 80% in goods carried by rail.
3.236 ABP's approach to the availability of rail infrastructure is entirely consistent with the
Government's commitment to invest to encourage an increase in the proportion of
goods carried by rail.
7
The Environmental Statement indicates that the Dibden Terminal would generate up to 48 train
movements a day. However, the Agreed Statement of the Rail Access JDG indicates that there would be a need
for 44 train paths a day, based on the use of trains that are 775m long (CD/GEN/20, Appendix LAR/2).
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Modern Ports : A UK Policy
3.237 The Government's policy for UK ports is set out in Modern Ports. This was published
in November 2000 and is therefore up-to-date. It is of central importance in
considering the Dibden Terminal project.
3.238 Modern Ports reaffirms the fact that the UK depends upon international trade. At
paragraph 1.1.2 it says:
Ports serve the national interest, supporting the competitiveness of national
and regional economies. It is in the national interest that our ports remain able
to handle current UK trade and its potential development efficiently and
sustainably. They must succeed not only to meet the immediate demands of
their customers, but also to invest in new facilities ....
3.239 The proposed Dibden Terminal would contribute to these objectives. The Port of
Southampton is already unable to meet the existing demands of all its customers and
has recently had to turn new business away. This situation will deteriorate if the
Dibden Terminal is not built. At paragraph 2.1.3 Modern Ports notes that "recently the
container and trailer sectors have been growing at 8% a year and some customers'
forecasts are ahead of this figure".
Container Ports
3.240 Modern Ports recognises that the pressure for expansion is greatest at ports handling
container and ro-ro traffic, such as Southampton. It refers to a prospective shortfall in
container port capacity, but does not say where this should be met. This is because the
Government no longer seek to run the ports industry, in the dirigiste manner of the
discredited National Ports Council. Rather they look to port operators, such as ABP, to
identify and bring forward proposals for new port developments.
3.241 Modern Ports re-affirms the long-standing principle that customers may choose which
UK port they use. It says that ports must compete by offering long-term value, and
must be allowed to do so on level terms. It is clearly directed towards the
circumstances of individual ports. While some objectors have advanced the proposition
that national policy will be satisfied so long as the UK's total requirement for container
port capacity is met somewhere, that is not the case. The policy is concerned with the
success of individual ports and with competition between ports. It indicates that
sustainable port development projects, for which there is a need, will be supported.
3.242 Shippers will seek ports that can receive their vessels with minimum delay; that can
handle their cargoes efficiently; and that can provide good multi-modal connections,
including rail and transhipment services. The Dibden Terminal would offer all of these
advantages. Without it, Southampton will run out of capacity, and will become
increasingly unattractive when compared with domestic and foreign competitors. Its
customers might well divert their business to continental ports, from where they would
tranship cargoes to and from the UK. This happened during the period of the National
Dock Labour Scheme (see paragraph 3.319 et seq below) and could happen again. It
would add to the cost of UK commerce, and detract from our national competitiveness.
3.243 The Government are conscious of the danger. Paragraph 2.1.4 of Modern Ports says:
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Dibden Bay Inquiry - Inspector's Report
Container ports which cannot meet the demands of global shipping alliances
stand to lose not only the future growth of their business, but substantial
sections of their existing custom. This is because transhipments are important
to the liner operations' economics and the lines look to consolidate their
operations at hub ports. .... Gateway ports have become increasingly
important to their local and regional economies as their business has grown. If
they were to lose this business it would have correspondingly substantial
adverse consequences. This consideration is of national interest.
The Importance of Hub Ports
3.244 At present the Southampton Container Terminal (SCT) handles the business of two of
the world's major shipping alliances. These operate regular deep-sea services between
Europe and the Far East, using the largest container ships. Their ships are scheduled to
call regularly at a series of "hub ports" to load and discharge cargoes. The "hub ports"
must provide specialised deep-water berths that can handle the vessels used. They must
provide sufficient space behind the quay for containers to be stored and retrieved
efficiently. They must provide good land access facilities. And they must provide a
range of short-sea feeder shipping services, so that transhipment cargoes can be taken
to (or brought from) ports that are not on the routes served by the alliances.
3.245 The number and frequency of feeder services available will depend upon the amount of
traffic passing through a "hub port". The Dibden Terminal would have the effect of
increasing the Port of Southampton's critical mass, so that a greater range and quality of
feeder services would be provided. This would lead to an increase in the port's
transhipment business, and would be advantageous for domestic customers who use
Southampton.
3.246 Without the Dibden Terminal, Southampton would stagnate. The major shipping
alliances would become aware that the port is unable to meet their expansion
requirements. They would move to competing ports that have the requisite capacity,
and Southampton's business would decline.
3.247 At paragraph 2.4.9 Modern Ports says:
If the port industry fails to meet demand - or is prevented from doing so,
shipping lines may divert primary services to overseas ports. This would make
it harder to meet some objectives of integrated transport policy. The primary
services would no longer collect and deliver UK trade to UK ports, adding the
cost of transhipment at a foreign port to UK trade. A higher proportion would
arrive in or depart from this country on road trailers. There would be a
significant effect on the cost of UK trade, and thus on competitiveness, as well
as on the volume and pattern of road traffic.
3.248 The importance attached to transhipment is demonstrated in the report of the Inspector
who held the recent inquiry into the proposed expansion of the Trinity III Container
Terminal at Felixstowe (ABP/0/121A). He concluded that:

transhipment handling .... brings very considerable benefits to the UK economy (para
7.7.3); and
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Dibden Bay Inquiry - Inspector's Report

as UK trade is now dominated by the container system and transhipment is so important
for the UK economy, the objectors' assertion that the transfer of container business to
Rotterdam would hardly be a disaster .... seems to me to be ill-founded (para 7.7.5).
The Secretary of State accepted those conclusions.
Making the Best Use of Existing Infrastructure
3.249 Modern Ports and Sustainable Distribution both emphasise the need to make the best
use of existing transport infrastructure. The Dibden Terminal would do this. In
addition to exploiting the underused Fawley Branch Railway Line, it would also utilise
Southampton's existing port facilities, including the dredged deep-water channel. This
is one of only two such channels in the UK that are able to accommodate the largest
container vessels. It is a key element of national infrastructure and it abuts the Dibden
Terminal site.
Sensitive Sites
3.250 Paragraph 2.4.19 of Modern Ports recognises that proposals for the provision of new
transport infrastructure on environmentally sensitive sites must pass special tests. Parts
of the area of the proposed development are within the designated Ramsar Site, SPA
and cSAC. Other parts have been notified as a Site of Special Scientific Interest (SSSI)
or are shown as Sites of Importance for Nature Conservation (SINC) in the New Forest
District Local Plan. The Local Plan also shows that part of the Order land comes
within the New Forest Heritage Area (NFHA).
3.251 However, Modern Ports does not rule out the development of sensitive sites. It points
out that the "regulations include procedures for approving development with
appropriate safeguards". It indicates that each case must be considered on its merits,
taking account of:

the importance of the designated site;

the seriousness of the potential effects of development;

the availability of better alternatives, which would serve the purpose of the proposed
development at a reasonable cost; and

the feasibility of mitigating the impact or of providing compensatory measures at a
reasonable cost.
Commercial Viability Policy
3.252 Paragraph 2.4.15 of Modern Ports says that "port developments have to be
demonstrably commercially viable". Similarly, applicants for Transport and Works
Act Orders must demonstrate the commercial viability of their project (NFDC/0/4).
3.253 There is no detailed advice about the means by which commercial viability is to be
demonstrated. However, Government policy does not require a detailed investigation
of an applicant's private commercial arrangements. Rather, its purpose is to provide
assurance that funding will be available to permit proposed developments to proceed, if
permission is granted. In his letter setting out the matters about which he particularly
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wishes to be informed in the present case, the Secretary of State expressly asks whether
the Dibden proposals are capable of attracting the necessary funding.
Confidentiality
3.254 ABP have made their own financial analysis of the Dibden Terminal scheme and are
satisfied as to its commercial viability. However they are unwilling to publish the
sensitive information on which their analysis is based, as this would be likely to put
them at a commercial disadvantage in dealing with competitors, existing clients and
potential customers. It is significant that, while RADBP object that the Dibden
Terminal would not be commercially viable, their relevant witness (Mr Cooper) accepts
ABP's right to treat certain commercially sensitive material as confidential.
3.255 The question of commercial confidentiality arose at a recent public inquiry when the
viability of a proposed development was at issue. The Inspector concluded that "not
unreasonably, the commercially confidential nature of the matters being dealt with
means that the landowners are unwilling to reveal underlying assumptions".
Nevertheless, he saw no basis for rejecting the proposal before him "for reasons of
doubt about the viability of the development" (ABP/0/13, para 7.58). The Secretary of
State agreed with his conclusion. A similar approach should be adopted in the present
case.
3.256 The reference to commercial viability in Modern Ports is directed towards preventing
frivolous port development schemes that might result in unnecessary and wasteful
public expenditure. There is a substantial divergence in the character of British ports.
Many of them are small operations run by local authorities or trusts, and achieve a
negligible income. Some are the subject of dubious development schemes that fail to
reflect the realities of the market, would require a subsidy from public funding, and
would distort the competitive environment that the Government wishes to foster. The
purpose of the Government's approach to commercial viability is to sift out such
schemes.
3.257 These considerations do not apply to the Port of Southampton. The ABP Group is a
major commercial enterprise, with a market capitalisation of £1.4 billion and an
operating profit (in 2000) of over £135 million. The Dibden Terminal would not
depend upon public subsidy.
Inferred viability
3.258 The circumstances of the present case support the inference that the proposed
development would be commercially viable. The Port Manager, Mr Kent, has given
evidence that ABP's financial appraisal shows that the scheme "would break even at
well below the estimated throughput levels". He is a competent, honest and informed
witness. Nobody has questioned his good faith in giving this evidence.
3.259 ABP would not proceed with the construction of any phase of the Dibden Terminal
unless they had a binding long-term contract with a reliable customer. They do not
intend to operate the Terminal themselves. They have already had discussions with
prospective operators.
3.260 There is a clear demand for additional deep-water container berths, which the Dibden
Terminal would help meet. Modern Ports recognises this, and also recognises that
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"commercial funding for development is unlikely to be a problem where a port's
business is growing". That is the case in Southampton.
3.261 ABP own the freehold of the Dibden Reclaim, one of the largest and most conveniently
located sites for a deep-water port development in the UK. They are committed to the
proposed development. This is attested to by the fact that they have spent some £15
million in preparing and submitting the current applications, and have incurred the
additional costs of a lengthy and expensive public inquiry.
3.262 The capital cost that ABP would incur in providing the Dibden Terminal would be
about £600 million. This figure includes pre-consent expenditure, construction costs
and capitalised interest. However, it excludes start-up costs that would be incurred by
the Terminal operator, for instance in providing buildings, cranes and other equipment
(ABP/0/11).
3.263 The income from handling containers is subject to considerable variation, and would be
a matter for negotiation between the shipper and the stevedore. The assumptions that
ABP have made about this are commercially sensitive and cannot be disclosed. In
addition there would be a number of other income streams, including those from the roro and aggregates businesses. Together, these would increase the return on capital by at
least 1.5%.
3.264 RADBP's witness, Mr Vickers, assumes an average handling charge of £68 for nontranshipment containers. This is not necessarily accepted by ABP, as it is possible to
derive an average rate of £95 per container from the annual accounts of the
Southampton Container Terminal (SCT). But even on the basis of Mr Vickers's
assumption, the Dibden Terminal could achieve an annual income of £85 million from
container handling. From this Mr Vickers deducts assumed annual operating costs of
£48 million; and the cost of capital, which he has estimated to be £23.2 million per
annum (at an assumed interest rate of 6.2%). This produces an estimated net annual
income of £13.8 million from container handling.
3.265 However, Mr Vickers's assumed operating costs incorrectly include an element of £11
million to cover the remuneration of contract workers. If this is discounted, the net
annual income from container handling would increase to £24.8 million. Additional
income of about £10.56 million would accrue from transferring containers to rail. The
effect would be to further increase the net annual income to £35.36 million, which
represents 5.9% of the £600 million capital cost. If this is added to the assumed cost of
capital (6.2%) the rate of return becomes 12.1%. The additional 1.5% return from
aggregates, ro-ro and ancillary activities would increase the total rate of return to
around 13.6%.
3.266 A second RADBP witness, Mr Cooper, considers that the Dibden Terminal would
generate a return of between 4.7% and 10.2%. This estimate is based on an assumed
average box rate of £67, and makes no allowance for the possibility that shippers may
be prepared to pay a premium for exclusive use of dedicated berths. The breadth of the
range reflects Mr Cooper's uncertainty. But his evidence confirms that the returns from
the proposed development would be likely to cover the marginal cost of funding.
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Internal Rate of Return
3.267 ABP aim for an annual internal rate of return (IRR) of 15% on any investment.
However, this is a target, not a guaranteed rate. Even with a short-term investment, it is
difficult to predict the precise rate of return that will be achieved. With a long-term
project, such as the Dibden Terminal, the difficulty increases. If it were necessary to
guarantee a 15% rate of return, ABP would effectively be prevented from ever making
any investments. Nevertheless, an independent study by stockbrokers ABN AMRO
concludes that "Dibden Bay is a commercially viable project that can meet ABP's 15%
IRR target" (ABP/5/24, para 11).
3.268 The 15% target has been set by ABP and is entirely within the company's control. It
would be possible for them to set a different figure. Similarly, the promoters of other
port developments might set lower targets for their expected rates of return. It is
inconceivable that the question of whether national policy has been met should depend
upon the notional target that a particular promoter has chosen to adopt. For this reason,
ABP's target rate of return is immaterial to the policy test that the Secretary of State
must apply.
3.269 Some objectors place reliance on a report produced by West LB Panmure, which
expresses concern about the financial rate of return expected from the Dibden Terminal
(RADBP/1/6). However, it should be noted that the authors of that report act for P&O,
who have an interest in the proposed container port development at Shellhaven.
Furthermore, the West LB Panmure report is based on the discredited SEAPORTS
Study, which has been rejected by both the British Ports Association and the UK Major
Ports Group (ABP/5/24, Appendix 1).
3.270 In any event, the fact that a particular project might not achieve a 15% rate of return
does not necessarily imply that that project is not viable. The commercial viability of
an investment depends on the return exceeding the marginal cost of funding. As noted
above, the analysis undertaken by Mr Cooper on behalf of RADBP (RADBP/2/7)
confirms ABP's view that the return from the Dibden Terminal project would be
sufficient to pass this test. That should be sufficient to satisfy the Secretary of State
that the requirement to demonstrate commercial viability has been met.
3.271 In practice, ABP have to have regard to considerations other than their target rate of
return. One of these is their statutory duty under Section 9 of the Transport Act 1981.
This requires them to provide port facilities at their harbours; and to have due regard to
the efficiency, economy and safe operation of the services and facilities provided. The
Dibden Terminal is not being promoted in a vacuum. It would be an integral part of the
Port of Southampton, and would critically affect the future operation of that port.
Without the Dibden Terminal, there is a real risk that the amount of container traffic
passing through Southampton would fall, and that the commercial success of the port
would be eroded.
Development Strategies
3.272 There is no foundation for the assertion, made by a number of objectors, that the
present proposal has been advanced as a stratagem for securing some more lucrative
form of development on the Dibden Bay site. If the Dibden Terminal development
were authorised but failed to proceed, there is no reason to suppose that permission
would be granted for some other form of development on this land. The so-called "fall
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Dibden Bay Inquiry - Inspector's Report
back" argument (which turns on the proposition that environmental harm could be
averted by permitting some relatively benign form of development) would not arise,
since there would then be no prospect of the Dibden Terminal doing harm.
3.273 Similarly, there is no basis for the assertion that ABP intend to transfer port activities to
Dibden in order to release parts of their existing dock estate in Southampton for
redevelopment. ABP would be unable to close parts of the existing harbour without
express statutory authority. The prospect of securing such authority is questionable,
since the whole of the dock estate is required to provide harbour services pursuant to
ABP's statutory duty under Section 33 of the Harbours, Docks and Piers Clauses Act
1847.
3.274 A further point raised by objectors is that the authorisation of the Dibden Terminal
development would adversely affect the commercial viability of other container port
proposals, such as those at Bathside Bay and London Gateway. It is noteworthy that
the promoters of neither the Bathside Bay nor the London Gateway developments
object to the Dibden Terminal scheme. It is reasonable to infer that they do not
consider that the Dibden scheme would adversely affect the viability of their proposals.
The need for additional deep-sea container port capacity is such that each of the
developments currently proposed will eventually be required. The construction of one
is therefore unlikely to have any impact on the viability of the others.
Planning Policy Guidance
PPG1: General Policy and Principles
3.275 The opening paragraph of PPG1 establishes the key role of the planning system in
enabling jobs and investment to be provided in a manner that accords with the
Government's sustainable development strategy. It emphasises the need to promote
competitiveness whilst protecting the environment and amenity. Factors of relevance
to the present proposals include:

providing for the nation's needs for commercial development while respecting
environmental objectives;

using land that has already been developed in the most efficient way;

conserving cultural heritage and natural resources, taking particular care to safeguard
designations of national and international importance; and

minimising the need to travel.
3.276 ABP's proposals conform to these broad principles. The Dibden Terminal development
would promote national competitiveness and competition between UK ports. ABP
would continue to make efficient use of operational land that has already been
developed. The scheme would also promote the efficient use of existing infrastructure,
including the dredged shipping channel in Southampton Water and the Fawley Branch
Railway Line. There would be few significant impacts on cultural heritage or natural
resources. The proposals would directly contribute to sustainable transport by
providing for the movement of goods by water and rail. Locally, the proposed Port
Travel Plan would make provision for alternatives to the private car.
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PPG7: The Countryside
3.277 PPG7 makes it clear that the New Forest Heritage Area (NFHA) is subject to the same
planning principles as apply in the National Parks. The relevant policy, in paragraph
4.5, reads as follows:
Major development should not take place in the .... NFHA save in exceptional
circumstances. .... Applications for all such developments must be subject to
the most rigorous examination. Major developments should be demonstrated
to be in the public interest before being allowed to proceed. Consideration of
such applications should therefore normally include an assessment of

the need for the development, in terms of 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 area or meeting the need for it
in some other way;

any detrimental effect on the environment and the landscape, and the extent to which that
should be moderated.
3.278 ABP accept that the Dibden Terminal project must satisfy the requirements of this
policy. They also accept that the policy applies to the project as a whole, and not just to
that part of the proposed development that would fall within the boundary of the
NFHA. It is therefore necessary to consider the need for the proposed development;
the possibility of meeting that need by some other means; and the potential
environmental impact of the proposed scheme.
PPG9: Nature Conservation
3.279 PPG9 sets out the Government's policy with regard to the protection of designated
nature conservation sites. It refers to the Habitats Regulations 1994, which make legal
provision for the protection of European sites. PPG9 indicates that, as a matter of
policy, development proposals that would affect Ramsar Sites and candidate SACs are
to be treated in the same way as those that would affect classified European sites.
3.280 These policies are relevant to the Dibden Terminal proposals. However, they do not
preclude development. As noted above, consideration must be given to whether the
project must be carried out for imperative reasons of overriding public interest; and to
whether there are any alternative solutions available.
3.281 PPG9 also indicates that development proposals that are likely to affect SSSIs must be
subject to special scrutiny. However, permission should not be refused if there are
material factors that are sufficient to override the nature conservation considerations.
3.282 In addition, PPG9 recognises that sites of a more local nature conservation importance
are sometimes identified in development plans. However, it indicates that local
planning authorities should only apply such local designations to sites of substantial
nature conservation value, and that they should take care to avoid unnecessary
constraints on development.
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PPG13: Transport
3.283 PPG13 notes that land use planning has a key role in delivering the Government's
integrated transport strategy (para 3). The advice is directly relevant to the Dibden
Terminal insofar as it:

requires decision-makers to identify and protect sites which may be used as inter-modal
transfer facilities (para 45);

indicates that local impacts from the movement of freight are inevitable and that these are
to be weighed against the wider public benefits which inter-modal facilities will bring
(para 46);

encourages the provision of public transport opportunities as an alternative to the car
(para 72 et seq);

encourages the provision of facilities for people to walk and cycle to work, instead of
using the car (para 75 et seq); and

identifies conditions, obligations and travel plans as the primary means of implementing
these policy objectives (para 81 et seq).
3.284 Local planning authorities are enjoined to encourage good access to ports by rail as
well as by road; and to promote freight interchange facilities where viable. The Dibden
Terminal would make a substantial contribution to this policy. Some 35% of the inland
movement of containers to and from the Terminal is expected to be by rail.
3.285 PPG13 indicates that "park and ride" schemes can help promote sustainable travel
patterns. It also encourages the submission of travel plans alongside applications for
major developments. Among other things, these should aim to reduce car travel, and
increase the use of public transport, walking and cycling. In the present case, the
proposed "park and ride", and the proposed improvements to public transport, footpaths
and cycleways, would all be consistent with this approach. The Section 106 Agreement
sets down a comprehensive list of obligations to be included in the Port Travel Plan for
the Dibden Terminal (ABP/0/149, Part 6).
Statutory Guidance to the Environment Agency
3.286 Section 4 of the Environment Act 1995 defines the principal aim of the Environment
Agency. This includes making a contribution towards attaining the objective of
achieving sustainable development. The Agency is also under a statutory duty to take
account of any likely costs. Ministers must provide the Agency with guidance on the
objectives that are to be pursued.
3.287 The most recent statutory Ministerial guidance dates from 1996 (EA/1/3, Appendix 1).
However, in the Stage 1 Report of the Agency's Financial Management and Policy
Review, DEFRA note that this guidance "has become increasingly outdated"
(ABP/0/86, para 1.4.6). This reflects the fact that the guidance pre-dates a number of
relevant Government policy documents, including A Better Quality of Life.
Nevertheless, in considering the Dibden Terminal development, it is clear that the
Agency have applied the 1996 guidance, without apparently giving any thought to
whether or not it is up-to-date.
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Dibden Bay Inquiry - Inspector's Report
3.288 The Agency are clearly aware of the sustainable development objectives set out in A
Better Quality of Life. However, the evidence of their Regional Director is that one of
those objectives (the maintenance of high and stable levels of economic growth and
employment) was deliberately disregarded in the formulation of the Agency's case in
respect of the Dibden Terminal proposals. This is scarcely indicative of a balanced
approach.
3.289 Furthermore, there is no evidence to indicate that the Agency have given any
consideration to the likely balance between costs and benefits in making their
assessment of the Dibden Terminal scheme. As a result the whole of the Agency's
approach to this project is tainted, and their evidence and conclusions should be treated
with the greatest caution.
Regional Policy
3.290 Regional Planning Guidance for the South East is contained in RPG9. This was the
subject of an Examination in Public (EiP) in 1999 and was issued in its final form in
2001. Paragraph 2.18 of RPG9 states that the South East is under-performing, and
trails behind a number of other European regions in terms of gross domestic product
per head of population. Paragraph 7.2 refers to transport issues that could hold back the
region's economic growth if not addressed. Policy RE1 provides that:
The regional economy should be supported and further developed to ensure
that it contributes fully to national growth and follows the principles of
sustainable development.
3.291 The regeneration of the Thames Gateway area is stated to be a national priority. In
addition, RPG9 identifies a number of Priority Areas for Economic Regeneration
(PAER). These include the South Hampshire, Southampton and Portsmouth PAER8.
3.292 Policy RE7 of RPG9 supports the economic regeneration and renewal of PAERs.
Paragraph 12.13 refers to the need to maximise the economic potential of the South
Hampshire PAER; and the need to "ensure genuine multi-modal access in a north and
south direction to the port". It also indicates that "any proposal for the expansion of the
Port of Southampton will need to take account of the wider spatial strategy and its
environmental, social and economic objectives". However, there is no reason why the
promotion of development in the South Hampshire, Southampton and Portsmouth
PAER should be regarded as being harmful to the regeneration of Thames Gateway.
3.293 The Dibden Terminal development would help maximise the economic potential of the
PAER, not least by providing a significant new source of employment. It would help
ensure multi-modal access, particularly through the proposed rail improvements and the
more intensive use of the Fawley Branch Line. The scheme takes account of a
spectrum of environmental, social and economic objectives.
8
Although Map 5 of RPG9 suggests that the South Hampshire, Southampton and Portsmouth PAER lies
entirely to the east of Southampton Water, the text explains that it includes “parts of New Forest District”. The
map in the original draft version of RPG9 showed the PAER to include the Waterside parishes of the New
Forest District. It is not clear why the map has now been changed. However, reliance can be placed upon the
text, following the normal practice that the text should prevail over illustrative material in the event of
inconsistency.
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Dibden Bay Inquiry - Inspector's Report
3.294 RPG9 recognises that "ports are a vital link in the supply chain". Southampton is
identified as a regionally significant port. However, Policy T7 of RPG9 fails to reflect
the EiP Panel's specific recommendation that "Structure Plans should be expected to
make provision for the expansion of the Port of Southampton" (ABP/2/3, Appendix 16,
para 12.56). Nevertheless, it supports the sustainable development of port facilities
(including road and rail access to them). The Dibden Terminal would contribute to the
objectives of this policy.
3.295 Policy T7c of RPG9 identifies the need for a study of the port and shipping markets in
order to develop a more regionally specific ports strategy. However, there is nothing in
Policy T7c to suggest that decisions on further port development should be shelved
pending the outcome of this study. The purpose of the study is to "inform the next
revision of the RPGs". That could be some years away.
3.296 The Planning Committee of the South East England Regional Assembly have recently
produced a revised draft Regional Transport Strategy. As a result of consultation, a
new policy has been incorporated in the draft. This states that Local Transport Plans
should include policies and proposals for infrastructure that would enhance the role of
specified gateway ports, including Southampton (ABP/2/26, Appendix 1).
3.297 Policy E1 of RPG9 states that "priority should be given to protecting areas designated
at international or national level either for their intrinsic nature conservation value, their
landscape quality or their cultural importance". That does not imply that the protection
of the designated areas should necessarily take priority over all other interests, as
argued by objectors. Rather it means that the protection of sites of international and
national importance should be given priority over the protection of sites of more local
significance.
Local Policy Considerations
Planning History
The Geographical Advantages of Southampton
3.298 Southampton Water has fundamental advantages for shipping. It offers a safe, lockfree, deep-water harbour. It has the benefit of a unique double high tide, which permits
a longer window of access for deep-draught vessels than would otherwise be the case.
As a result of the local geomorphology, and the fact that the estuary is fed by clearrunning chalk rivers, relatively little dredging is needed to maintain the deep-water
channel.
3.299 Southampton lies adjacent to the main shipping route that links north-west Europe with
the rest of the world, via the Straits of Dover and the English Channel. It is the only
south-coast port with water deep enough to handle the large vessels that are now
commonly used in the international deep-sea container trade. It has the advantage of
being the first deep-water port that ships plying the world trade routes pass on their
approach to northern Europe; and it is frequently their last port of call before leaving
European waters.
3.300 Southampton's locational advantages also stem from its central position on the south
coast. As well as being close to the major market of Greater London, it is accessible to
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Dibden Bay Inquiry - Inspector's Report
virtually all parts of Great Britain by road and rail routes that avoid the congested
networks around the capital.
3.301 Southampton's Eastern Docks were developed in the mid 19th century, following the
opening of the new railway from London. During the 20th century, the Port expanded
upstream, along the east bank of the River Test. The key to this was the juxtaposition
of deep-water and rail access. The foundations of the modern port were laid by railway
companies. The Western Docks were built between the two World Wars. In 1962, the
Rochdale Committee recommended that Southampton should develop as one of the
country's principal cargo ports (ABP/2/3, Appendix 1). Construction of the
Southampton Container Terminal began in 1967. This development was completed
with the opening of Berth 207, the deepest berth in the port, in 1998.
3.302 Today the Port of Southampton provides a major interchange between road, rail and sea
transport. It makes more use of rail than any other UK port. After Felixstowe,
Southampton is the country's largest container port. It is the only deep-sea ro-ro port
between the Thames and Bristol. It handles more cars (both import and export) than
any other UK port. Southampton is also Britain's premier cruise liner port. In addition
it specialises in handling fresh produce; and bulk cargoes, including grain, animal feed,
fertiliser and aggregates. Oil and related products are dealt with at specialist terminals
at Fawley and Hamble.
3.303 The history of the Port of Southampton shows a pattern of forethought. Each major
decision to expand has been taken on the basis of long-term planning. The
development of new berths entails major engineering works and requires a long lead
time. However, a successful port must be ready to meet the demands of its customers.
It can only do this by looking ahead. It was for this reason that ABP's predecessors, the
nationalised British Transport Docks Board, acquired the Dibden Reclaim in 1967, at a
time when the construction of the Southampton Container Terminal was just beginning.
Dibden Bay was purchased as a strategic land reserve for the future expansion of the
port, well in advance of any requirement for such development, but in accordance with
the need for prudent long-term planning.
The Potential of the Dibden Reclaim
3.304 The Dibden Reclaim is a man-made area. Its reclamation from the sea had started long
before its acquisition in 1967, but was still in progress at that date. Since the site was
acquired to meet an anticipated need for port development, it now constitutes
operational port land. As a matter of policy, it has been kept available for port use for
over 40 years, despite pressure for its release for other forms of development. The
Government and the local planning authorities have consistently taken the line that
Dibden Bay should be reserved for port-related activities, particularly those requiring
deep-water. This is reflected in paragraph 167 of the Hampshire Structure Plan Review
(CD/HCC/2) which states that:
Dibden Bay is an area of former inter-tidal saltmarsh reclaimed over many
decades by the deposit of dredged material from the earlier development of the
Port of Southampton. The site has, for many years, been identified as a
possible site for port activities. Planning policies have, in one way or another,
safeguarded the site ....
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Dibden Bay Inquiry - Inspector's Report
3.305 The Dibden site has a unique combination of advantages. It shares the key
geographical benefits enjoyed by the Port of Southampton. It has immediate access to
an existing deep-water channel, which already accommodates some of the world's
largest ships. It can easily be connected to the national road and rail networks,
providing the opportunity for a multi-modal freight interchange. It is large enough to
accommodate 6 of the biggest container ships simultaneously, and handle their cargoes
quickly and efficiently.
3.306 The importance of Dibden Bay is compounded by the fact that it is the only possible
site for the expansion of the Port of Southampton. Since the 1960's development has
spread around the shores of Southampton Water, blocking what might otherwise have
been potential locations for port development.
Early History
3.307 The planning history of Dibden Bay demonstrates that there is no reason why local
people should be surprised by the present proposals for port development. The
suitability of this site for port development has been identified, understood and
reflected in planning policies for more than 40 years. The site's history is attested to in
paragraph C11.14 of New Forest District Council's non-statutory Coastal Management
Plan of 1997 (CD/NFDC/4) which says:
Dibden Bay is the most controversial area on the District's coast. It is in the
ownership of Associated British Ports (ABP) and in the past has been the
subject of a long-term reservation for port-related activities.
Contrary to the assertions made by some objectors, plans for a deep-water port at
Dibden Bay have provided the context for recent residential developments in the
Waterside area.
3.308 In 1960, the Minister of the day excluded Dibden Bay from the proposed Green Belt,
arguing that this land might be needed by "firms requiring a waterside site". In the
same year, a Committee of Inquiry into the Industrial Future of the Waterside noted
that Dibden Bay had "almost unique potential for deep-water berths and associated
transport and storage facilities" (ABP/0/16).
3.309 In 1966, the Government commissioned the South Hampshire Study. This recognised
the importance of the Port of Southampton, urging that its expansion should not be
prejudiced by other forms of development. The South Hampshire Study indicated that
the whole of the western side of Southampton Water should be reserved for port
activities, petro-chemical industries and power generation (ABP/2/3, Appendix 5).
3.310 The Hampshire County Council produced a non-statutory Waterside Parishes Policy
Plan in 1969. This stated that land between Hythe and Marchwood could "be used for
industrial and service development requiring a waterside location" (ABP/2/3, Appendix
8).
3.311 In the same year, a study undertaken in connection with the preparation of the South
Hampshire Structure Plan indicated that Southampton was extremely well placed to
take advantage of the growing trend towards containerisation and ro-ro traffic.
(ABP/2/3, Appendix 9). It referred to Dibden Bay as "the only sizeable area of land
remaining in Southampton Water that is suitable for port development"; and it
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Dibden Bay Inquiry - Inspector's Report
advocated that this site should be reserved "for future use by port and other industrial
activities requiring a waterside location".
3.312 A non-statutory Marchwood Local Plan, produced by the New Forest District Council
in 1975, referred to "a strategic reserve of land for water related industries at Dibden
Bay, to be developed from the late 1970s onwards" (ABP/0/22). A similar proposal
was contained in the New Forest District Council's non-statutory Dibden Local Plan of
1976 (ABP/0/21).
The South Hampshire Structure Plan
3.313 The South Hampshire Structure Plan was approved in 1977 (CD/HCC/8). Policy 31.17
of this plan stated that "proposals are made for development of land at Dibden Bay for
strategic port and waterside industry, subject to the provision of suitable access".
3.314 In 1981, the New Forest District Council published a development brief for Hythe
Marina. This stated that Dibden Bay "is likely to be used into the next century for port
related industry and storage" (TS/H1, Appendix 3). In 1982, County Council officers
prepared the Dibden Bay Feasibility Study, in accordance with Structure Plan policy.
This indicated that land along the Dibden waterfront would be reserved for port-related
activities (ABP/0/23). It stated that development could start within the timescale of the
approved Structure Plan.
3.315 In 1983, the New Forest District Council proposed the acquisition from ABP of the
land on which the Hythe Marina Bund now stands. The Council's Principal Estates and
Valuation Officer wrote to ABP as follows:
The Board [of ABP] should not underestimate the advantages of the proposed
mounded area to the remainder of their land holding. Such a feature
physically and visually divides the proposed Marina, with its future articulate
and sensitive residents, from the area to the north retaining the maximum
flexibility for uses that may be put forward for the Board's remaining land in
future. Without such a physical barrier, the Board's options would be severely
constrained to uses totally compatible with the Marina and village of Hythe
(ABP/2/5, Appendix 3).
3.316 The intentions of both the County and District Councils with regard to the future
development of the Dibden site were clear. They may be contrasted with the stance
now adopted by the two authorities.
3.317 The First Alteration to the South Hampshire Structure Plan was approved in 1987
(CD/HCC/9). Policy ED7.2 indicated as follows:
There will be a presumption against development which would remove or
reduce opportunities at Dibden Bay for long-term port expansion, port related
development, or development for industry or services requiring access to deep
water.
3.318 Policies E6 and E6.1 of the First Alteration to the South Hampshire Structure Plan
introduced a "strong presumption against development" in the gap between Marchwood
and Hythe. However, in approving the First Alteration, the Secretary of State indicated
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Dibden Bay Inquiry - Inspector's Report
that it would be "unnecessary ...... to require that proposals for a scheme at Dibden Bay
should take account of Policies E6 and E6.1 relating to strategic gaps".
The National Dock Labour Scheme
3.319 Despite this favourable policy background, the development of the Port of
Southampton was constrained by the effects of the National Dock Labour Scheme.
This provided that only registered dock workers could be employed to handle cargo in
large ports. The scheme did not apply to ports that had employed fewer than 200
workers at the time of its introduction in 1947.
3.320 The effect of the National Dock Labour Scheme was to drive up labour costs in the
scheme ports. The productivity of these ports declined and their reliability suffered.
As a result, shippers were attracted to non-scheme ports, which offered a better deal.
Felixstowe, which was unaffected by the scheme, developed into the UK's leading
container port, because Southampton was unable to handle the growing container
business efficiently.
3.321 These difficulties held back the development of the Port of Southampton for many
years. At times, the port was threatened with permanent closure due to its poor labour
relations. By the mid-1980s ABP could not justify the retention of the whole of their
existing dock estate in Southampton, let alone make a commercial case for providing
additional port facilities at Dibden Bay. As a result, their property arm, Grosvenor
Estates, proposed that Dibden Bay should be used for other purposes, including the
development of an extension to Hythe Marina Village. To their credit, the local
planning authorities resisted these proposals.
3.322 The National Dock Labour Scheme was abolished in 1989. After that the Port of
Southampton regained its competitiveness. Subsequently its business has grown and
the need for its physical expansion has re-emerged.
The Hampshire County Structure Plan 1994
3.323 The policies of the First Alteration to the South Hampshire Structure Plan continued in
force until the approval of the Hampshire County Structure Plan in 1994 (CD/HCC/1).
In this plan, the Dibden Reclaim was again included within a local gap between
Marchwood and Hythe. The EiP Panel considered the argument that the safeguarding
of Dibden Bay for port development should be maintained. However, they took the
view that this was unnecessary, as the site was protected by the policy to maintain an
open gap. Nevertheless, they made it clear that this did not mean that there was no
longer a prospect of the land being needed for port use (ABP/2/3, Appendix 10). The
Secretary of State agreed.
3.324 Immediately after the approval of the Hampshire County Structure Plan in 1994,
Hampshire County Council commissioned a firm of consultants, MDS Transmodal, to
prepare a report entitled The Future of Southampton Docks (HCC/0/5). This concluded
that there was a need for container port development at Dibden Bay (HCC/0/5, p56).
3.325 At approximately the same time, the County Council commissioned a report from a
second firm of consultants, Pieda plc, entitled The Economic Impact of the Port of
Southampton on the City Region. This stated that:
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Dibden Bay Inquiry - Inspector's Report
The Port is currently facing a major threat to the future of its container
operations. The new generation of larger, deeper draught ships currently being
developed will not be able to berth in Southampton. If the Port does not act
now, it is likely to lose a significant proportion of its deep-sea container traffic,
with a consequent, and potentially significant, loss of employment (HCC/0/4,
Executive Summary, para 7).
3.326 The Pieda report considered various responses to this threat. It concluded that the
provision of a new container terminal at Dibden Bay would be the preferable solution
in terms of economic development (HCC/0/4, Executive Summary, paras 10 and 11).
The Deposit Draft Structure Plan Review
3.327 The deposit draft Hampshire Structure Plan 1996-2011 (Review) reflected the
conclusions of the MDS Transmodal and Pieda studies. It proposed a new Policy EC6,
which was to read as follows:
Port development may, exceptionally, be permitted on land at Dibden Bay,
provided that it can be demonstrated to the satisfaction of the local planning
authorities that the proposed development is in the interest of the national and
regional economy and could not be accommodated on land elsewhere in the
port; and, if so, that its implementation would not cause undue harm to:
i)
areas of importance to nature conservation;
ii)
the conservation, landscape or ecology of the New Forest; and
provided that the required access can be achieved without serious disturbance
to the countryside, coastal or built-up areas affected and that the maximum
contribution to any new access will be secured from rail and sea routes
(HCC/0/9, para 245) .
3.328 The Government Office for the South East (GOSE) noted that this draft policy
suggested that development at Dibden Bay should be permitted only if this was in the
national interest. They indicated that such an approach was unduly restrictive.
3.329 The EiP into the Structure Plan Review was held in late 1996. Significantly, the
County Council's evidence to the EiP indicated that their approach to the deposit draft
Structure Plan Review had been "needs-led" (HCC/0/9, p296, para S4.158). It follows
that the inclusion of Policy EC6 in the deposit draft Structure Plan Review reflected the
County Council's recognition of the need for port development at Dibden Bay.
3.330 The EiP heard evidence from the Managing Director of Mitsui OSK, a major container
shipping line that uses Southampton. He concluded that the Port would have only a
limited future if the Dibden Bay proposals failed to proceed (ABP/0/18).
3.331 Other evidence submitted to the EiP explained that work was in progress on the
expansion of the Southampton Container Terminal, through the provision of Berth 207;
and that the dredging of the main shipping channel in Southampton Water to a new
depth of -12.6m CD would be completed during 1997 (ABP/0/17, para 17). Despite the
additional capacity that this would provide, the EiP Panel concluded that provision
should be made for the further expansion of the Port of Southampton at Dibden Bay.
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Dibden Bay Inquiry - Inspector's Report
3.332 In respect of this they said:
If Southampton is not able to cope with the new and larger generation of
container ships that will be developed in the near future, it will not just lose the
trade emanating from those ships but will also be in danger of losing trade
from smaller container ships and from transhipment activities. In short, we
accept the case that Southampton must remain fully competitive in relation to
all types of container trade if it is to continue to be as successful as it has
become in recent years. No one considering this matter can avoid having
regard to an independent consultants' report which states that employment in
activities directly dependent on the Port accounts for 10% of all full time male
employment in Southampton itself and 5% of all jobs in the Southampton
travel-to-work area. The employment prospects of a workforce of this size are
not lightly to be put in jeopardy. Indeed, the economic consequences of a
failure of the Port to maintain its competitiveness would be enormous
(ABP/2/3, Appendix 15, para 4.21).
3.333 The EiP Panel accepted GOSE's view about excising the reference to the national
interest from Policy EC6 (ibid, paras 4.19-20). However, the Panel did not accept the
proposition, advanced by the New Forest District Council and others, that there should
be studies of alternative sites outside Southampton Water before any decisions were
reached on the development of Dibden Bay.
3.334 The Panel favoured a positive policy for port development at Dibden Bay, and
recommended that the draft Policy EC6 should be replaced as follows:
Port development requiring access to deep water will be permitted at Dibden
Bay taking into account:
a)
any significant adverse effects on nature conservation; and
b)
transportation (rail, road and water) and other infrastructure;
environmental; and local amenity considerations (ibid, para 4.26).
3.335 In addition to port development, the EiP Panel considered the issue of the open land
between Marchwood and Hythe. They concluded that this gap did "not fulfil a
strategic function", and continued:
Moreover, the Marchwood-Hythe gap is the subject of Policy EC6 where, if
our recommendation in respect of Dibden Bay is accepted, the need for the gap
is overridden by a positive proposal of the plan (ABP/2/3, Appendix 15, para
8.19).
3.336 The County Council considered the report of the EiP Panel in October 1997. They
noted that the Panel's recommendation for a more positive policy approach to Dibden
Bay assumed that the need for the proposed port development was proven. They also
took the view that, in the light of the previous studies undertaken by MDS Transmodal
and Pieda, a challenge to the need for the Dibden Bay proposal would be likely to fail
(ABP/0/19, paras 4.17 - 4.18).
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Dibden Bay Inquiry - Inspector's Report
3.337 This approach was reflected in proposed modifications to the Structure Plan Review,
which were published in May 1999. While the Structure Plan authorities rejected the
EiP Panel's proposed revision of Policy EC6, they accepted that the Structure Plan
Review should give positive support to the development of Dibden Bay, subject to
specified criteria (ABP/0/20, para 84).
Current Plannng Policies
3.338 The statutory development plan for the area covered by the present applications
consists of:

the Hampshire County Structure Plan 1996-2011 (Review), which was adopted in 2000
(CD/HCC/2);

the New Forest District Local Plan, which was adopted in 1999 (CD/NFDC/1); and

the Hampshire Minerals and Waste Local Plan, which was adopted in 1998 (CD/HCC/4).
3.339 ABP accept that the development plan is an important material consideration; and that
the Secretaries of State must have regard to all the relevant policies. However, as is
frequently the case, different policies pull in different directions. In his judgment in R
v Rochdale ex p Milne (NFDC/0/3, Case7) Sullivan J noted that:
Given the numerous conflicting interests that development plans seek to
reconcile ..... it would be difficult to find any project of any significance that
was wholly in accord with every relevant policy in the development plan. ......
For the purposes of Section 54A [of the Town and Country Planning Act
1990] it is enough that the proposal accords with the development plan as a
whole. It does not have to accord with each and every policy.
3.340 In R v Camden LBC ex p Cummins (ABP/0/124A, Case 8) Ouseley J said that "it may
be necessary .... in a case where policies pull in different directions to decide which is
the dominant policy". In the present case, there is no doubt that the dominant
development plan policy is Policy EC6 of the Hampshire Structure Plan, which is upto-date. In its adopted form, Policy EC6 reads as follows:
Port development requiring access to deep water may be permitted at Dibden
Bay provided that it can be demonstrated that the need for the development
outweighs its impact on:
(i)
areas of importance to nature conservation;
(ii)
the conservation, landscape and ecology of the New Forest; or
(iii)
local communities; and
(a)
sufficient provision is made to offset the impact, including replacement
or substitution of habitats or features lost and conservation of
ecological networks; and
(b)
that the required access can be achieved without serious disturbance to
the countryside, coastal areas or communities affected and that
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Dibden Bay Inquiry - Inspector's Report
maximum use is made of rail and sea routes; and that appropriate
contributions are secured to fund infrastructure and services required
as a result of the development (CD/HCC/2).
3.341 Other policies of a more general nature will plainly have been taken into account in
formulating this approach to port development at Dibden. In the circumstances, it
would be inappropriate to place reliance on those general policies in deciding upon the
present proposals. Paragraph 40 of the Structure Plan Review makes it clear that
"conflict between a specific and a general policy should be resolved in favour of the
specific policy". Policy EC6 is specific to the Dibden site and specific to the form of
development now proposed. If its requirements are met, it is not necessary that the
proposed development should comply with every subordinate policy of general
application.
Strategic Approach to Port Development at Dibden Bay
3.342 In its adopted form the Structure Plan Review describes the Port of Southampton as
being "essential to the economy of southern Hampshire and of significant regional
importance". It notes that good access between the port and its hinterland is of strategic
importance to the UK; and it recognises Southampton's relationship to the TransEuropean Road and Rail Networks (CD/HCC/2 paras 191 and 197). Similarly, the
Hampshire Local Transport Plan affirms that the port is "a major player in worldwide
trade"; and indicates that:
competition with European ports is fierce and the provision of good access and
infrastructure plays a major role in securing the Port of Southampton as a
major European port bringing trade and prosperity to the UK (CD/HCC/3,
Section 6.8 p15).
3.343 However, the Structure Plan Review fails to reflect the important role that the Port of
Southampton plays in sustainable transport policy. Paragraph 45 of PPG13 requires
local planning authorities "to identify and .... protect sites ... which could be critical in
developing infrastructure for the movement of freight". Had the Structure Plan
addressed this matter, it would have identified Dibden Bay as a site for a multi-modal
freight interchange.
3.344 Furthermore, the positive approach towards port development advocated by the EiP
Panel has not been wholly embraced in the adopted Structure Plan Review.
Nevertheless, the reference to national need has been removed from Policy EC6 as
adopted; and the policy does not require that consideration be given to alternative sites
elsewhere in the UK. These omissions reflect conscious decisions on the part of the
County Council.
3.345 Policy EC6 is essentially permissive, identifying the Dibden site as being suitable for
port development, provided that the need outweighs certain specified adverse
consequences. If that test is met (and ABP say that it is) then port development should
be permitted. Policy EC6 recognises the probability of a need for port development
arising within the plan period. Had it been considered that such a need was unlikely to
arise, the policy would have been worded differently, providing merely for the
continued safeguarding of the site's potential for development as a deep-water port.
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The New Forest District Local Plan Policy for Dibden Bay
3.346 There was initially no reference to the development of Dibden Bay in the deposit draft
of the New Forest District Local Plan. This ignored the fact that Dibden Bay is
operational port land, which has long been identified in statutory development plans as
the only possible location for the expansion of the Port of Southampton. It ignored the
fact that Dibden Bay is one of the very few locations in Britain where deep-water
access to shipping routes coincides with the potential for good road and rail access.
And it ignored the importance of the Port of Southampton to the local economy.
However, following representations by ABP, the Local Plan was modified to include a
reference to Policy EC6 of the Structure Plan Review (CD/NFDC/1, para C13.15).
3.347 The strategy underpinning the Local Plan has 3 elements. These are development
restraint; meeting local needs; and conserving and enhancing the environment
(CD/NFDC/1, paras B1.5 and B1.6). Although the local planning authority consider
that this reflects the Government's approach to sustainable development, that is not so.
Paragraph 1.2 of A Better Quality of Life summarises the Government's objectives for
sustainable development, which are to be pursued simultaneously. They include the
maintenance of high and stable levels of economic growth, rather than imposing
restraints on development so as to cater only for local needs. The economic dimension
to sustainable development is similarly emphasised in paragraph 4 of PPG1; paragraph
2.1.17 of Modern Ports; and paragraph 3.2 of Sustainable Distribution.
3.348 Paragraph B1.12 of the Local Plan says that the aim is to "support the local economy so
as to provide opportunities for local businesses, including national and international
businesses represented locally, to thrive and provide a good range of job opportunities
without adding to growth pressures on the district". However, the Local Plan makes no
provision for the expansion requirements of ABP, despite the fact that this firm is an
established local business. The proposed development would help ABP to thrive and
provide significant employment opportunities. It would not create additional pressure
for growth, or require any alteration to existing land use policies.
3.349 Objective 18 of the Local Plan is to provide for a reasonable range of employment sites.
The District Council's witness conceded that the proposed development would
contribute towards meeting this objective.
Transport Policies
3.350 One of the criteria for port development at Dibden Bay set out in Policy EC6 of the
Structure Plan Review is "that the required access can be achieved without serious
disturbance to the countryside, coastal areas or communitues affected". The County
and District Councils do not dispute that ABP's proposals would provide the "required
access". This points to the appropriateness of the location for the scale of development
proposed.
3.351 Policy T1 of the Structure Plan Review seeks to encourage the use of public transport,
walking and cycling. ABP's proposals for additional bus services, the provision of a
"park and ride" facility, and the provision of additional footpaths and cycleways would
all contribute to that objective. The proposed footpaths and cycleways would also
contribute to the objectives of Policy DW-18 of the New Forest District Local Plan,
which seeks improvements to the network of public rights of way.
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3.352 Policy T3 of the Structure Plan Review indicates that planning permission will be
granted for transport infrastructure and facilities that encourage the movement of
freight by rail and sea (provided that the development is compatible with other
policies). The supporting text states that "proposals promoting the greater use of rail
freight will be encouraged" and also makes express reference to transhipment facilities.
Policy T9 of the Structure Plan Review provides that "road and rail access to
Hampshire's international ports will be maintained and improved". The proposed
development would obviously contribute to the objectives of these policies.
3.353 Policies T16 and T17 of the Structure Plan Review make provision for land to be
safeguarded for the improvement of the A326 between Dibden and the M27. Policy
MA-6 of the New Forest District Local Plan proposes the improvement of the junction
between the A326 and Twiggs Lane. The highway improvements planned in
association with the development of the Dibden Terminal would be consistent with the
objectives of these policies.
3.354 The Hampshire Local Transport Plan provides a framework for the delivery of certain
national transport policy objectives. It indicates that developer contributions are an
essential means of delivering "key and immediate transport policy concerns" such as
reducing dependence on the private car, encouraging alternative modes of transport and
implementing South Hampshire Rapid Transit (CD/HCC/3, p5).
3.355 The document emphasises the importance of Freight Quality Partnerships as a means of
promoting sustainable distribution and notes (ibid, Chapter 4, p91):
The location of two major ports in Southampton and Portsmouth has major
implications for freight movements in Hampshire and at regional national and
international scales. Maintaining and improving access to the ports by the
Strategic Road Network and rail network is an important consideration in
establishing the framework for freight policy.
3.356 Under the heading "Shipping Strategy," the Hampshire Local Transport Plan notes that
the Transport White Paper seeks to facilitate a more efficient and environmentally
friendly means of carrying British trade. It then states that this strategy (ibid, chapter 5,
p124):
.... has the full support of the County Council which will add to this policy by
investigating and supporting an increase in the use of rail to carry freight to
and from the ports ....
3.357 These policy objectives are delivered at the local level by the Totton and Waterside and
Southampton Area Transport Strategies (CD/HCC/7 and 10).
The Strategic Gap between Hythe and Marchwood
3.358 Despite the views of the EiP Panel, Policy G2 of the adopted Structure Plan Review
identifies the need to retain a "strategic gap" of open and undeveloped land between
Hythe and Marchwood. It indicates that permission will not normally be granted for
development that would diminish the gap physically or visually. The boundary of the
strategic gap is defined in the Local Plan (CD/NFDC/1, Proposals Map, Inset 2). It
includes the whole of the area covered by the draft HRO, save for tidal areas. Policy
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DW-E28 of the Local Plan places further limitations on the forms of development that
may be permitted in this area.
3.359 However, although Policy G2 would normally preclude development within the
strategic gap between Hythe and Marchwood, this cannot override the permissive
approach taken in Policy EC6. If it did, Policy EC6 would serve no useful purpose.
3.360 Paragraph 96 of the Structure Plan Review makes it clear that development may be
allowed in the strategic gap if this can be justified in the light of other Structure Plan
policies, such as Policy EC6. Properly approached, the function of the strategic gap is
to keep the land open unless and until port development proceeds.
Nature Conservation Policies
3.361 Policy E10 of the Structure Plan reads as follows:
Development which is likely to harm the nature conservation interest of
Special Protection Areas, Special Areas of Conservation, Ramsar Sites, Sites
of Special Scientific Interest or National Nature Reserves will not be permitted
unless the need for development is shown to outweigh the adverse impact,
taking into account the protection given to the designation concerned in
legislation or Government guidance.
Similar provisions are contained in Policy DW-E31 of the New Forest District Local
Plan. The entire foreshore covered by the draft HRO is subject to international
nature conservation designations. In addition, the Dibden Reclaim and West Cliff
Marsh are within the recently notified Dibden Bay SSSI.
3.362 Policy E11 of the Structure Plan provides protection for local Sites of Importance for
Nature Conservation (SINCs) unless the need for development outweighs any adverse
impact. Policy DW-E32 of the Local Plan is similar. The Dibden Reclaim, West Cliff
Marsh and the Post Copse Complex are all shown as SINCs in the adopted New Forest
District Local Plan (CD/NFDC/1, Proposals Map Inset 2). It is understood that further
sites are proposed for designation as SINCs. These include Veal's "Meadows", the
Hythe Marina Bund and some road verges alongside the A326. The use of selection
criteria that are not particularly rigorous could lead to the designation of sites of little
merit.
3.363 The development plan's nature conservation policies are consistent with Policy EC6.
The proposed development would not be in conflict with them if the need for the
proposed Dibden Terminal outweighs any adverse impact on nature conservation
interests. It is important to note that the County Council were aware of the existence of
the international nature conservation designations and the general nature conservation
value of the Dibden Reclaim when they adopted Policy EC6.
Policies for the Coast and Countryside
3.364 Policy C1 of the Structure Plan Review promotes the conservation and enhancement of
the countryside. Similarly, Policy CO-E1 of the New Forest District Local Plan
provides for strict control over development in the countryside. Once again, these
policies must be considered in the context of Policy EC6, which indicates that port
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development may be permitted at Dibden Bay, as long as the need outweighs the
impact on the conservation, landscape and ecology of the New Forest.
3.365 Policy C5 of the Structure Plan Review applies to the undeveloped coast and estuaries.
It indicates that development that would detract from the landscape, wildlife or historic
interest of these areas will not be permitted "except within areas allocated for port
development and associated infrastructure". This exception would plainly apply to the
Dibden Terminal development.
3.366 In 1997, the New Forest District Council published their Coastal Management Plan
(CD/NFDC/4). Although not part of the statutory development plan, this remains part
of the local policy context. One of its aims (at paragraph B6.8) is to "retain coastal
development sites for uses dependent on access to coastal waters". The Dibden
Terminal is self-evidently such a use, a point conceded by the District Council's
witness. At paragraph B7.10, the Coastal Management Plan notes the paucity of
waterfront sites. At paragraph B7.18 it recognises that the need for the Port of
Southampton to remain competitive has implications for further dredging and
waterfront development.
3.367 Policy C7 of the Structure Plan Review states that permission will not be granted for
development involving the reclamation of land from the sea, unless it can be
demonstrated that certain criteria would be met. These relate to hydrology, landscape
character, nature conservation and archaeology. Furthermore the development must be
well related to the existing built-up area. Policy DW-C6 of the New Forest District
Local Plan makes similar provisions, and also indicates that the development should
have no adverse impact on the character of adjoining areas.
3.368 The Dibden Terminal development would include the reclamation of inter-tidal land.
There is no evidence to indicate that it would have a significant undesirable effect on
the hydrology of Southampton Water and the Solent; or on matters of archaeological
interest. Policy EC6 indicates that the port development can proceed at Dibden Bay if
the need for it outweighs adverse impacts on the landscape or nature conservation. The
site is well related to existing built-up areas being bounded by the settlements of
Marchwood and Hythe, and facing Southampton on the opposite side of the River Test.
It would have only a limited effect on the character of adjoining areas.
New Forest Policies
3.369 Policy NF1 of the Structure Plan Review provides for the protection of the special
character of the New Forest. The Local Plan defines the boundary of the New Forest
Heritage Area (NFHA). While this excludes the Dibden Foreshore and Reclaim, West
Cliff Hall and the Hythe to Cadland Marshes, it includes other land covered by the draft
HRO. The road and rail access, which would link the Dibden Terminal to the A326
and the Fawley Branch Line respectively, would lie within the NFHA, as would the
proposed "park and ride" at Pumpfield Farm, and the Church Farm Nature
Conservation Area.
3.370 Policy NF-E1 of the Local Plan precludes development that would damage the unique
quality of the NFHA. Policy NF-E4 states that development which would adversely
affect the landscape character of the New Forest will not be permitted. However, these
policies must be considered in the context of Policy EC6 of the Structure Plan Review.
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It is clear that in adopting that policy, the County Council were aware of the importance
of the NFHA, and of the possible creation of a New Forest National Park.
3.371 Policy EC6 makes explicit provision for port development at Dibden Bay. Such a
development would necessarily depend upon the provision of access between the port
and the national communications networks. This would require the construction of new
road and rail links through the NFHA. However, the alignment of the road and rail
links now proposed would minimise the damage done to the appearance and character
of the NFHA. The proposed Access Corridor would be screened by existing woodland
in the Post Copse Complex, which would be reinforced with new planting. The
proposed Church Farm Nature Conservation Area would make a positive contribution
to the character and quality of the NFHA.
3.372 Policy NF-E3 of the Local Plan states that development which would result in the loss
of land actively used for back-up grazing9, or with potential for such use, will not be
permitted. The Dibden Terminal proposals would cause the permanent loss of some
35ha of grazing land within the NFHA. A substantial part of this land, including land
at Pumpfield Farm and Veal's Farm, is not currently used as back-up grazing and has
not been so used in the recent past. ABP have let some of their land (at Church Farm
and elsewhere) on an annual basis, either as grazing or for the production of hay. Some
of this land may have been used as back-up grazing by New Forest commoners.
3.373 However, the loss of potential back-up grazing would be on a very limited scale in
relation to the total availability of such land. There is no evidence to support the view
that there is currently a shortage of back-up grazing land. The Inspector who held the
inquiry into objections to the Local Plan in 1996/7 concluded that:
the New Forest contains far more back-up grazing land than the current
number of commoners and their stock, or any reasonable increase in that
number, might require ..... there is no direct evidence that the New Forest
landscape is under threat of decline as a result of shortage of back-up grazing
currently or in the foreseeable future (CD/NFDC/13, p172).
3.374 Prior to the epidemic of foot and mouth disease in 2001, the number of livestock
depastured in the New Forest had been on a generally rising trend for about 15 years,
having increased from about 4,500 in 1985 to over 6,500 (ABP/14/3, Figure 14.2). Yet
there has been no obvious official pressure to extend the NFHA so as to include more
grazing land. Nor has there been any significant pressure by commoners to use ABP's
land as back-up grazing. There is no conservation imperative to increase the numbers
of livestock depastured in the open Forest.
3.375 Following the proposed Terminal development, over 50ha of grazing land owned by
ABP would remain available within the Church Farm Nature Conservation Area. This
would considerably exceed the area needed to serve the numbers of local stock
depastured in the Forest.
9
The character of the New Forest depends on the continued grazing of the lawns, heaths and pasture
woodlands of the open Forest by ponies and cattle. Without the depasturing of livestock on these commons,
they would be overrun by bracken and scrub. Back-up grazing land is enclosed land, outside the open Forest, to
which stock can be withdrawn for supplementary winter feeding. It is also used for the special care of sick
animals or young stock; for preparing stock for market; and for providing fodder for commoners’ animals.
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The Minerals and Waste Local Plan
3.376 The Hampshire, Portsmouth and Southampton Minerals and Waste Local Plan
(CD/HCC/4) was adopted in 1998. It recognises that there is a rapidly increasing need
for new deep-water wharves, at which crushed rock can be landed. It encourages the
use of rail transport for the onward movement of this material.
3.377 Paragraph 5.59 of the Minerals and Waste Local Plan refers to Dibden Bay as the only
site that has been suggested by prospective developers as being physically suitable for a
high capacity deep-water aggregates wharf. It says that, in the event of a proposal for
development at Dibden Bay which does not include provision for an aggregates wharf,
an appropriate area of land (approximately 8ha) will be safeguarded for this purpose.
In the event that no other port development at Dibden Bay takes place, a high capacity
deep-water aggregates wharf may be permitted, provided that tests similar to those set
out in Policy EC6 of the Structure Plan are met. The nature conservation importance of
the Dibden Foreshore was well known when these policies were adopted.
3.378 It is noteworthy that the Inspector who held the public inquiry into objections to the
Minerals and Waste Local Plan accepted that there was a "proven urgency in the
national interest to provide for substantial imports of aggregate". He recommended that
Dibden Bay should be identified as "a Preferred Site for the importation of aggregates
by sea" (ABP/2/3, Appendix 13).
3.379 Although this recommendation is not reflected in the adopted Local Plan, the urgent
need for an aggregates wharf remains. Crushed rock is transported in bulk carriers,
which draw up to 14m of water. These ships have similar characteristics to deep-sea
container vessels, and require landing sites with rail access. There are few sites in the
south-east of England at which they can be handled. Dibden Bay is the only such site
on the south coast. However, it is questionable whether the development of a freestanding aggregates wharf at Dibden Bay would be commercially viable, as
considerable investment would be required to build a jetty and provide road and rail
access. Such a facility would be much more likely to be established as part of the
larger container terminal now proposed.
3.380 Objectors have argued that the demand for aggregates is not rising at the rate that was
envisaged when the Minerals and Waste Local Plan was prepared. However, the
Government's infrastructure policy is likely to lead to an increased need for aggregates
in the medium to long-term; and demand for materials such as hard rock is largely
independent of the general requirement for aggregates. The County Council have
requested that land should be safeguarded for an aggregates wharf if the Dibden
Terminal development proceeds (HCC/0/45). This testifies to the likely future need for
such a facility.
The County and District Councils' Sequential Approach
3.381 The County and District Councils argue that the selection of sites for port development
should be on the basis of a "sequential approach". In this approach, first preference
would be given to making the best use of existing operational port land; then
redeveloping "brownfield" sites; and then developing sites with outstanding approvals
that have not yet been utilised. "Greenfield" sites would be developed only as a last
resort, if none of the foregoing options were available. It is noteworthy that if this
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approach were to be adopted, the development of the Dibden Terminal would be given
first preference, since it would utilise existing operational port land.
3.382 However, the Councils' "sequential approach" does not reflect any established national
or regional policy for port development, and is not reflected in the statutory
development plan. It implies that vacant operational or "brownfield" land in
unsuccessful ports would have to be restored to use before the expansion of a
successful port onto new land could be permitted. Far from being allowed to compete
on level terms, successful ports would be penalised and held back. The ability of
customers to choose their preferred port would be curtailed - effectively they would be
directed towards less attractive ports that happened to have vacant operational or
"brownfield" land available for development. Such an approach would be wholly
inconsistent with the policy outlined in Modern Ports.
3.383 Furthermore, it is not clear why sites with outstanding approvals should rank third in
the proposed "sequential approach". In practice, if a site has the necessary approvals,
its development can proceed, regardless of any preferred sequence.
3.384 The "sequential approach" has nothing to commend it. It constitutes a clumsy attempt
to create a policy framework that would support port development at the remote
locations favoured by the County and District Councils, in preference to port
development on Southampton Water. However, it is both illogical and contrary to
established Government policy. It should be given no weight.
Need
Introduction
3.385 In the context of need, the following issues are particularly relevant:
What definition of need should the Secretary of State apply in deciding whether to grant
the consents sought, and over what period should that question be considered?

Is there a need for further capacity in Southampton for deep-sea containers, ro-ro and
aggregates traffic?

If so, is that need capable of being met at Berths 201/202 and/or elsewhere in the existing
dock estates?

What are the likely economic and other consequences of developing Dibden Terminal or
not doing so?
The Definition of Need
Introduction
3.386 In considering a definition of need there is inevitably an overlap with the consideration
of alternatives. Because of this, what is said here has to be read with the submissions
on what need is for the purposes of identifying a potential alternative solution (see
paras 3.567 to 3.600 below).
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The County and District Councils' and ABP's Definitions of Need
3.387 ABP and the County and District Councils take a fundamentally different approach to
the issue of need. This may be summarised as follows.
3.388 The County and District Councils and other objectors argue that, in a case where the
Habitat Regulations apply, or where the scheme involves clear environmental
disbenefits, the Secretary of State should adopt a national perspective of need. He
should, in effect, allocate additional consents and thus provide capacity at locations
dictated, not by the market, but rather in accordance with his own view about where
further capacity ought to be provided (Day 30, p65).
3.389 Further, and as a consequence of that approach, in deciding whether a need has been
established for a port expansion proposal in one place, the Secretary of State must look
to other locations around the country to see if the need identified could be better met
elsewhere (HCC1/1, para 4.29).
3.390 ABP's view is that Southampton is a nationally important port. Its needs are national
needs. There is a national need for the Port of Southampton to grow, expand and
prosper. For convenience, the need has been disaggregated into a need for further
facilities to handle three main trades - deep-sea containers, ro-ro and aggregates; for
further facilities to encourage inter modal transfer; and for further facilities to ensure
Southampton is able to continue to compete with other national and international ports
in key markets. In reality, however, these are all aspects of the same need, which is
focused wholly and exclusively on the Port of Southampton.
3.391 Similarly, the Port of Southampton is of singular importance in the local and regional
economy as well as the national economy. These are all aspects of a single economic
need case based in Southampton.
3.392 These two approaches to the issue of need are irreconcilable. The Secretary of State
must adopt either one or the other, but not both.
3.393 If he adopts the ABP view of need, the objectors' case on need falls. This is because, in
the absence of the Dibden Terminal, the identified need would have to be met by the
existing facilities at Southampton which would be clearly impractical. Nobody at the
Inquiry suggested that additional port facilities should be built elsewhere outside the
existing dock estate.
3.394 Various suggestions were advanced for better use of existing port land to meet the
need; but these do not bear scrutiny. Non-port users occupying land in the port could
be removed and additional decking could be built to increase the density of ro-ro
parking and release existing ro-ro storage areas for other uses. However, the amount of
land released would not be anywhere near sufficient to meet the identified need (see
paras 3.561 to 3.565 below).
3.395 Furthermore, two witnesses for the County and District Councils' accepted that ABP's
proposals were justified by a need which was particular to the Port of Southampton and
which could not be met at any location other than Southampton. The first agreed that it
would be perverse to say that a particular port-related need could be met at a port
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somewhere else. In so doing, he effectively characterised the Councils' position on
need as "perverse" (Day 21, pp182-3).
3.396 The second accepted that there is a regional and local need in relation to the Port of
Southampton (Day 31, p46). Plainly, this need cannot be met in a location remote from
Southampton.
3.397 If, on the other hand, the Secretary of State prefers the view of the County and District
Councils and other objectors, then the evidence still points to a need of sufficient scale
to make the grant of consent sought for Dibden Terminal imperative in the short-term.
Modern Ports
3.398 Modern Ports assists in resolving this dichotomy. It is directly relevant to the matters
at issue and up to date. It should therefore be accorded full weight. ABP's approach is
consistent with that policy; whereas the approach suggested by the County and District
Councils is fundamentally at odds with it. Their approach would lead to atrophy and
inertia among those making investment decisions, and a circular process of reasoning
among those making planning decisions.
3.399 Modern Ports recognises that ports are a vital element in the UK economy and that
some ports have grown to national significance. In view of its size, location and
importance, Southampton is clearly one of these ports. In order to make the maximum
beneficial contribution to the UK economy, ports should be allowed to compete for
trade between each other and against continental rivals. The policy recognises the
principle of customer choice and that ports can best compete for market share in an
open and unregulated environment (Modern Ports, para 1.1.6).
3.400 Crucially, the policy recognises that individual ports know their own business best and
that the Government has no role in running the Ports Industry. Paragraph 1.1.8 of
Modern Ports states:
It is a strength of the ports industry that each undertaking has statutory powers
suited to its needs. Commercial decisions, as well as responsibility for port
operations, lie with those who have these powers and duties that go with them.
This continues to be fundamental. It is not Government's job to run the ports
industry.
3.401 The policy also makes it clear that the Government does not decide the port industry's
commercial strategy, or direct or fund its investment, nor does it manage port
operations (Modern Ports, para 2.1.11).
3.402 Thus, the policy contemplates that each individual port will run its own affairs and
bring forward its own investment proposals in accordance with its own view of current
market circumstances. The approach is not to revert to a situation where additional port
capacity is effectively allocated by a central authority. Rather, it is fairly described as
market led. There is no alternative approach consistent with Government policy.
3.403 Dibden Terminal is being brought forward exactly in accordance with this policy. ABP
made an investment decision on a commercial basis because they believe the balance of
supply and demand will dictate that returns will cover the costs of investment.
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3.404 ABP's approach also accords with the Government's own view as expressed in A
Project Appraisal Framework for Ports. Paragraph 1.4 of this document states:In line with the policy put forward in Modern Ports the framework does not
start from a strategic view about where ports should be located or require
projects to adhere to a central forecast or model. It is for the promoters of a
development to demonstrate, using the framework, that they have compared
different sites and types of development within their control to meet the
forecast requirement (emphasis added).
Pressures on the Port of Southampton
3.405 The Port of Southampton is under pressure from three sources; existing port customers
who are seeking to expand, new customers in existing trades, and new trades. The
problems which the port currently faces are such that when the Hyundai Group wished
to enter a long-term contract for 12ha of land to be used for ro-ro purposes, they were
turned away for want of available space (ABP1/1, paras 7.1 and 7.13).
3.406 Without the Dibden Terminal, the Port of Southampton would be denied the
opportunity to expand to meet market demand and it would inevitably decline relative
to other international ports. It would cease to be considered a mainstream North
European port. It would lose competitiveness, and the UK's position in the shipping
market would be weakened.
3.407 The market already appreciates that the Port of Southampton is handicapped by lack of
capacity, but expects that Dibden Terminal will solve the problem. If this turns out not
to be so, customers who seek more space will look elsewhere. As a port with no spare
capacity to meet market demand, Southampton would not have a long-term future
serving UK trade in the way it does at present.
The Consequences of the Councils' Approach
3.408 As the Inquiry proceeded, the County and District Councils' case became more
entrenched. Instead of simply saying that the Secretary of State should have regard to
schemes elsewhere, to the extent relevant to meeting the defined need, they suggested
that he should defer a decision on Dibden Terminal until he has the Inspectors' reports
into the Bathside Bay and London Gateway proposals.
3.409 This approach would conflict with the policy in Modern Ports and frustrate future
investment. Rather than allowing the national need for port capacity to be met through
the initiative of individual port companies within a competitive framework, it would
imply a return to the "forecast and allocate" approach, which was followed until 1980
under the National Ports Council. That approach was associated with a period when
UK ports were expensive and uncompetitive, and plagued by political interference.
Importantly, such an approach would lead to total inertia in terms of investment in the
industry, since it would be near enough impossible to proceed with any project which
requires planning consent.
3.410 The suggestion that the Secretary of State could adopt a "wait and see" approach with
regard to London Gateway would also present a major problem. If consent for that
project were to be given, but the dredge were not completed, then the terminal would
not be able to accommodate the largest ships. The UK would then be left without the
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extra capacity required until such time as the matter is reconsidered - potentially for
many years (Day 30, pp99-101).
3.411 It is for these reasons that the approach urged on the Secretary of State by the County
and District Councils is fundamentally misconceived. Such an approach would be
likely to frustrate necessary investment, with wider adverse harmful consequences for
the UK economy. It would upset a policy consensus, which has manifestly served the
ports industry well for the last 20 years and is well able to address the current
requirement for additional capacity. It would be misguided to return to a pre-1980s
approach.
3.412 A further problem is the impact that this approach would have in decision making on
planning applications; a point to which the Inspector drew attention (CD/INQ/7). The
Inspector defined the problem as one of circularity (a "Catch 22") 10. Where two
schemes each had an adverse effect on the integrity of a European site, neither could
ever take advantage of the derogation under Regulation 49 of the Habitats Regulations
1994, because each would always be an alternative to the other.
3.413 ABP do not suggest that, as a matter of law, the effect of the Habitat Regulations is
such as to preclude the possibility of any consent ever being granted. Rather it is
helpful to draw a distinction between what may be permitted as a matter of principle or
law and the practical difficulties that would arise in the decision making process if the
County and District Councils' definition of need were to be adopted.
3.414 As to the practical difficulties, the first problem for the decision maker is reconciling
the County and District Councils' approach to the policy in Modern Ports (see paras
3.398 to 3.402 above).
3.415 The second problem is the method which the decision maker should employ in forming
a view about whether the need - if it is to be defined (erroneously) as a foot loose,
national need - is capable of being met at an alternative location. Is the search for other
locations to be confined to those where an inquiry has been held into objections to a
specific scheme and the Inspector has reported to the Secretary of State with
recommendations? Or is it sufficient that another site elsewhere has been identified, or
that an application has been submitted, however inadequately supported that
application may be? Or is it sufficient that there exists elsewhere a potential site with
nothing more than hope value? Or is it sufficient that a wild idea of fundamentally
altering the existing ports industry structure is advanced, together with a site which may
be of use in implementing that idea?
3.416 The County and District Councils' case is that, in deciding whether there is a need, and
whether there exist alternative ways of meeting that need, the Secretary of State must
This “Catch 22” argument was based on the premise that Bathside Bay and Dibden Bay might provide
alternative solutions toward meeting the UK’s requirement for container port capacity. However, each of these
schemes might well fail the test set by Regulation 48(5) of the Habitats Regulations. To proceed, they would
then have to meet the requirements of Regulation 49. But neither scheme could do this, because the other would
provide an alternative solution. In practice, two schemes could not be treated as alternative solutions if each of
them failed the Regulation 48 test, since, if they were so treated, neither of them could proceed. A scheme that
could not proceed could not reasonably be regarded as an alternative solution.
10
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analyse all of these possibilities. Their case is not limited to Bathside Bay and London
Gateway; rather it includes the Isle of Grain and does not exclude Scapa Flow (Day 30,
p69).
3.417 This approach would create a practical and insuperable methodological problem for the
Secretary of State. He would never be in a position where he had sufficient data on all
sites to make an informed assessment on whether the need could be met elsewhere.
Even where the promoter of an alleged alternative site had submitted an application, the
Secretary of State would still be in the unsatisfactory position of not being able to
compare like with like. One scheme may well have been tested at inquiry while the
other may not have been, or may not have been tested in the same way or with the same
rigour. The Councils' witness accepted that this was equivalent to comparing apples
and pears (Day 30, p154). It is not a proper basis for decision making.
3.418 The third problem for the decision-maker in adopting the County and District Councils'
approach is what may be described as the "Cynical Competitor" problem. Wherever
one port project came along, any competitor who wished to frustrate or delay the
implementation of that scheme for their own commercial reasons, could advance
another project elsewhere, or point to the existence of a site with allegedly fewer
constraints. This would effectively prevent the grant of consent for the initial project
until the alleged alternative had been either sufficiently developed to a point where a
proper comparison could be made, or had fallen away11.
3.419 In their response to the Inspector's question on the "Catch 22" point, the County and
District Councils state:
Faced with two sites at which there is an adverse impact on a European site,
the decision-maker has .... to recognise the consequence that if he permits one,
that will necessarily affect and reduce (and possibly eliminate) the need case
for the other (NFDC/0/6, para 3).
3.420 If one regards the "need" as being a "national need," capable of being met anywhere in
the country, such an approach could have a superficial attraction. However, it
immediately falls foul of the practical logistical difficulties referred to above. The
proposition assumes the Secretary of State will be "faced with two sites" with which he
may make a proper comparison - ie apples with apples - when in fact he will mostly be
faced with - at best - an apples and pears comparison.
3.421 Similarly, the Councils' response states, "...different 'strategies' or 'scenarios' can be
devised to meet the same central need" (NFDC/0/6, para 5). Again, this approach does
not reflect the reality of different ports competing in different markets amid stiff
national and international competition. This is because there is no such thing as "the
same central need". Focus on Ports recognises this:
No two UK ports are the same. The Industry is made up of a highly diverse
grouping of largely specialist facilities enjoying widely differing natural and
geographical conditions, and catering for equally varied markets with their
own peculiar characteristics (p15).
11
In making this submission, ABP stressed that they were not implying that the promoters of any of the
other sites under discussion at the Inquiry were motivated by this thought.
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3.422 This is not recognised in the County and District Councils' approach with its definition
of a central need and the allocation of that need by the Secretary of State in accordance
with the sequential test devised as part of their case. This is the complete antithesis of
the Modern Ports approach of looking at the merits of individual cases and the needs of
particular ports.
3.423 The need which must be addressed is the need of the port in the context of its market
led requirements and the nation's need to ensure that its individual ports can meet their
and the nation's requirements for competitive ports capacity. Given the range and
diversity of their activities, it must follow that ports will each have different and highly
individual means for meeting the demands that their own individual customers make of
them. Not least of these is the geographical location at which those demands are to be
met.
3.424 The Councils' response goes on to suggest how the principle should receive practical
application in the circumstances of the Dibden Terminal application. It says:
.... if the Secretary of State were to decide that he would permit Shellhaven
because (say) of its ability to meet the national need and meet the regeneration
objectives at Thames Gateway, this would necessarily affect the case at
Dibden. It is true the same would be the case in reverse (NFDC/0/6, para 6).
3.425 The same basic error underlies this submission - ie that the nationally important needs
of the Port of Southampton can be met on the Thames. Even if a meaningful
comparison of the two schemes were possible (apples with apples), the evidence shows
that, far from being mutually exclusive, the two projects could both come forward to
serve the national and regional interest by 2010.
3.426 Firstly, the regenerative objectives of Thames Gateway could be met without building a
deep-sea container port at Shellhaven. Only a relatively small proportion of the jobs
that are expected to be created there would be in the ports sector (see para 3.646
below). These port sector jobs could be provided by developing facilities for a
different market sector, such as the ro-ro trade.
3.427 Secondly, the County and District Councils' expert witness, Mr Penfold, accepted that
problems start to occur when capacity utilisation rates exceed 90% (Day 21, p81). On
the basis of his own evidence (excluding Liverpool's contribution to both supply and
demand) such problems would be present from 2003 onwards in the absence of
Bathside Bay, London Gateway and Dibden Terminal (see para 3.491 below).
P&O's Case for London Gateway
3.428 In a similar vein to the case advanced by the Councils, solicitors acting for P&O, the
promoters of London Gateway, submitted a "Legal Statement to the Inspectors"
(CD/INQ/11, para 3 (vi)). This document concludes:
...the Secretary of State would only be able to reach a lawful decision in
relation to the Dibden Bay Terminal proposals as and when he has received the
report of the Inspectors appointed to conduct the Inquiry into the London
Gateway port proposals and is able to consider its conclusions alongside those
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of the Inspectors appointed to conduct the Inquiry into the Dibden Bay
Terminal proposals.
3.429 Such a conclusion must necessarily proceed on the basis that the needs of the Port of
Southampton can be met on the Thames. This view was not supported by any witness
called to give evidence at the Inquiry.
3.430 It is not clear whether Counsel who signed that document had been shown a letter dated
the previous day from P&O's solicitors to ABP's solicitors in which it is said "P&O are
not objecting to Dibden Terminal" (ABP/0/56). However, it is clear that the legal
analysis was based on the proposition that London Gateway "would meet the same or a
similar need..." as Dibden Terminal (ibid, para 3(ii)(d)). How this could be so was not
explained, and P&O did not come to the Dibden Terminal Inquiry to allow the
proposition to be tested.
3.431 As P&O's methodological approach is the same as that put forward by the County and
District Councils, it should be rejected for the reasons set out above.
The Approach of the South East and Anglian Ports Local Authority Group (SEAPLAG)
3.432 Given the County Council's involvement in SEAPLAG, it is perhaps not surprising that
SEAPLAG came forward with an approach to planning for port development which is
so far removed from the approach of Modern Ports (ABP/5/24, Appendix 1).
3.433 In the Report to the South East England Regional Assembly Planning Committee on 15
October 2002, it was noted that discussions on the SEAPLAG report were ongoing
(ABP/0/26, Annex 1, Appendix 1, para 7.12). Notwithstanding this, the proposed
change to the Regional Transport Strategy Policy Framework was unambiguous. A
new policy was introduced supporting the maintenance and enhancement of
Southampton as a gateway port for deep-sea containers (ibid. Annex, p15).
Conclusion
3.434 The Secretary of state is being asked by the County and District Councils to choose an
approach which:

contemplates an undifferentiated national need;

lumps together all UK ports regardless of their individual characteristics or customer
requirements; and

distributes consents in accordance with an overarching view of national need.
3.435 Rather, the approach should be for individual ports to bring forward investment
proposals in response to their perception of the market's demands.
3.436 The differing approaches are what lie at the root of the different definitions of need.
The approach advanced by ABP is consistent with the national ports policy in Modern
Ports, in that it allows rational and coherent decision making on port projects by those
making commercial decisions and those deciding on planning and related applications.
It would thereby be consistent with a purposive construction of the Habitat Regulations,
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in a manner that achieves the underlying objectives of the European legislation which
they transpose (in particular Article 6 of the Habitats Directive).
3.437 Accordingly, the need addressed below is the need particular to the circumstances of
the Port of Southampton.
The Need for Further Capacity in Southampton
Deep-sea Container Traffic
Overall Need for Further Capacity
3.438 The first point to be made here is that the objectors have brought together the concepts
of "Need" and "Alternatives" rather than giving them separate consideration as required
by both law and policy (The Habitat Regulations and PPG9 among others). Thus the
County and District Councils' expert witness on need, Mr Penfold, initially concluded:
When considered purely from the viewpoint of supply and demand, there are
clear alternatives to the Dibden Bay project. It has not, therefore, been
demonstrated that the project represents the only solution to the required
expansion of the UK major port container sector after 2008 (HCC/2/1, para
7.1).
3.439 Mr Penfold subsequently agreed that, in his opinion, there would be a requirement for
the expansion of the UK major port container sector, and that Dibden Terminal is one
of the possibilities to meet that requirement (Day 21, pp3-4).
3.440 The proposition is also established by the evidence of ABP's expert witness on need,
Mr Garratt, in which he shows how current supply will be outstripped by demand in
2006, even assuming the development of incremental berths at Thamesport, Felixstowe
and Tilbury (ABP/5/1, para 7.20).
3.441 Thus, the starting point for the consideration of the overall need case is a solid
consensus among the informed expert witnesses that the UK faces a need for further
deep-sea container capacity which cannot be satisfied by piecemeal developments
beyond the middle of the present decade.
3.442 This alone is sufficient to satisfy the policy test that should be applied by the Secretary
of State. However, it is the nature and scale of the need that emphasises the importance
of obtaining consent for additional container port capacity in the shortest possible time.
3.443 Furthermore there is a national imperative for there to be a modern, competitive,
international deep-sea port at Southampton. This is the deep-water port closest to the
UK's principal international trading route. It is the only deep-water port on the south
coast, and the first deep-sea container port passed by ships approaching northern
Europe from the rest of the world. Nearly all deep-sea container ships, carrying a large
proportion of UK and European trade, pass Southampton. The nearest other deepwater ports are either not on the main trade routes (eg Bristol) or involve a diversion
from it (eg Thames). Thus, the first reason why Southampton's deep-sea container
trade should develop is that it is in a prime location to capture that trade. It is
impossible to underestimate the importance of this point in a globally competitive
market, where there are numerous ports in north-west Europe which are equally keen to
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retain and enhance their market share, and against a policy background which
recognises the reality of customer choice.
3.444 The second reason why Southampton's deep-sea container trade should be encouraged
to grow is because it has, at Dibden, one of the few locations in the UK that could meet
the stringent requirements of a modern container facility. The Dibden Terminal would
provide the space required to meet the customers' needs, with good quality road and rail
access as well as a deep-water channel that can accommodate the largest ships
envisaged. Mr Penfold agreed that the site would have the correct attributes for a deepsea container terminal (Day 21, p4).
3.445 The agreed position is therefore that there is a national need for further deep-sea
container capacity; that Dibden is one of a limited number of locations where the
market would use such capacity; and that the proposal would satisfy the physical
attributes that must be present to meet the need.
The Scale of the Need
3.446 In giving evidence on the scale of the need, ABP's expert witness, Mr Garratt, made a
series of assumptions which are wholly favourable to the objectors' case and which err
on the side of suppressing the likely anticipated need. His forecast rates of growth for
trade and the future productivity of ports broadly agree with those produced for the
County and District Councils by Mr Penfold, who confirmed that the experts held a
"broadly consistent view of the development of total container demand" (Day 21, p11).
3.447 Whilst Mr Penfold asserted in a paper submitted shortly before the close of the Inquiry
(HCC/2/6) that demand for container facilities in the UK declined in 2001, his paper
did not use the latest figures published in the Government's Maritime Statistics 2001
(ABP5/24, Appendix 4). These shows that demand for deep-sea unitised traffic grew in
2001 by 2.8% overall, with 3.4% growth in container traffic through Felixstowe,
London, Medway and Southampton. Mr Penfold's revised analysis also suggested that
the introduction of larger vessels at an accelerated rate would result in an expansion of
transhipment traffic.
3.448 Other forecasts published by Drewry Shipping Consultants in 2002 show container
trade between Asia and Western Europe growing at 6.3% per annum between 2001 and
2007 (ABP5/24, Appendix 6). This is Southampton's principal trade. Transatlantic
trade (westbound) is similarly predicted to grow at 4.9% per annum. Overall, these
forecasts by Drewry are in broad agreement with the 5.2% growth rate forecast by Mr
Garratt and Mr Penfold. Between 1983 and 1999 deep-sea container traffic grew at an
average rate of 6.5% per annum. The apparent blip in the global economy in 2001 has
had little or no impact on the forecasts.
3.449 In coming to an overall view about the need for additional facilities, it is first essential
to consider to what extent any element of the future demand may be met at existing
facilities. Such an approach is agreed and is entirely in accordance with the policy in
Modern Ports to maximise the use of existing infrastructure.
3.450 There is a limit to how far this point may be taken, and that limit is agreed between the
informed experts. RADBP takes a radically different view, arising in part from a
failure to understand the true position at Rotterdam (see paras 3.461 to 3.463 below).
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3.451 Mr Penfold agreed that there is a limit to which anticipated increases in demand could
be met by improved productivity (Day 21, p18). This is because a balance has to be
struck between making the most efficient use of port land whilst providing a high
quality of service to port users. This requires the retention of flexibility in the use of
operational areas. A further disadvantage of over-utilisation is that inefficiencies are
displaced. Mr Penfold described it in this way:
It is invariably possible to squeeze greater throughput via a particular terminal
by means of massive capital investment or pushing inefficiencies elsewhere in
the transportation chain (HCC/2/4, p66, emphasis in original).
3.452 Following an explanation of how this had occurred in Hong Kong, he said "it is neither
possible nor desirable that such a situation should be generated in the UK port market"
(ibid, p71). He cautiously struck the balance between service flexibility and
productivity at 1,400 TEU/quay m/year in the following terms:
It is agreed that for the most efficient terminals an annual berth throughput of
up to 1,400 TEU per metre can ultimately be achieved... For other existing and
planned terminals - SCT, Dibden Bay, and Shellhaven - it may prove
ultimately possible to reach these levels but during the next few years there
will be a lower limit on theoretical productivity rates. Further these very high
rates will not be appropriate [elsewhere] (ibid, p52, emphasis added).
3.453 As to SCT, Mr Penfold characterised it as having a "theoretical capability of 1.8 million
TEU" (Day 21, p19). He was correct to be cautious. The Managing Director of SCT
wrote to the Inquiry pointing out that in order to achieve a capacity of 1.8 million TEU
per annum (equivalent to 1,400 TEU/quay m/year) SCT would have to invest in a
complete change of operating systems and yard machinery as well as strengthened
crane rails. It would also probably involve deepening a further berth. The letter
concludes that "any increase in capacity towards the 1.8 million TEU level remains
theoretical, and currently does not form part of our accepted strategic plan" (ABP/1/8).
3.454 So far as the wider UK ports industry is concerned, Mr Penfold's overall view was
confirmed in the following exchange (Day 21, p65):
Q So if I can summarise it, I hope fairly, you benchmark the 1,200 post 2005
but enter, if you like a caveat, that at some ports and at some stage in the future
we might look for 1,400?
A That is right
3.455 The caution with which Mr Penfold suggested the 1,400 figure emphasises both the
generosity (in favour of the objectors) of Mr Garratt's approach and the lack of realism
of RADBP's approach.
3.456 Mr Garratt's analysis assumes all relevant ports in the UK reach productivity levels of
1,400 TEU/quay m/year by 2015, both existing facilities and proposed. This level of
productivity assumes new facilities will be developed with the most up to date cargo
handling technology and all existing facilities will be upgraded to an equivalent level
without any consideration of the cost involved or whether the port operators would
consider such an investment to be viable. The level of productivity he assumes is
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equivalent to that suggested by those promoting London Gateway and greater than that
suggested by the promoters of Bathside Bay (ABP/5/5, para 6).
3.457 Accordingly, the figure of 1,400 TEU/quay m/year should be regarded for planning
purposes as the upper level of what may be practically achievable. The figure should
be given weight and the Secretary of State should be very slow to depart from it in view
of the fact that it represents a consensus of all industry sources who may be thought of
as informed. Planning on the basis of some higher unachievable figure could have very
serious consequences for the UK if it results in the under-provision of necessary port
facilities.
3.458 RADBP suggest 1,700 TEU/quay m/year should be the preferred figure, based on a
growth in productivity of 2.77% per annum. However, they did not have the benefit of
an acknowledged expert in the field to advise them. They had an enthusiastic amateur
who was relying on information supplied to him by Mr Van Muijen, a politician with a
degree in Public Administration and a keen interest in environmental issues affecting
Rotterdam (Day 24, p79). Whilst they should not be criticised for this, it is right that
the Secretary of State should know the basis of expertise which seeks to upset the
industry consensus referred to above.
3.459 Some of RADBP's cross-examination of Mr Garratt on this subject seemed to
concentrate on the proposition that 1,400 TEU/quay m/year was simply the level at
which port operators are promoting schemes at the moment, with the implied
suggestion that the level may increase in the future (Day 17, p194). This ignores the
fact that in order to reach productivity levels of 1,400 TEU/quay m/year Mr Garratt
assumes a year on year increase of 1.5% in productivity. Future technological
improvements are thus already factored into Mr Garratt's calculation.
3.460 Another suggestion put by some objectors was the "conspiracy theory." The point
appeared to be that operators are suggesting a limit of 1,400 TEU/quay m/year in order
to improve their prospects of obtaining consent for new schemes. In his response Mr
Garratt pointed out that he was "relying on the evidence and the behaviour of people
who know their business." Ports such as Felixstowe, which are making commercial
decisions to expand capacity by building new berths, are also re-equipping their current
terminals (Day 17, pp201-202).
3.461 As to the evidential substance of RADBP's case, it came in the form of material
supplied by Mr Van Muijen. The information showed the total number of TEUs
handled by Rotterdam in 2000 as 5.57 million when in fact the published figure from
Europe Container Terminals (ECT) is 3.3 million (Day 24, pp79-82 and ABP/0/45).
Whilst RADBP's witness acknowledged the discrepancy, he did not accept that it was
material (Day 24, p83).
3.462 The materiality of the discrepancy is revealed in the corresponding calculation of
productivity. The RADBP figure of 5.57million TEUs produces a productivity of
1,560 TEU/quay m/year in 2000, whilst the ECT figure produces a productivity figure
of 970 TEU/quay m/year (Day 24, pp84-85).
3.463 This contrasts with a 1999 figure of 920 TEU/quay m/year, which was not disputed
(Day 24, pp86-7). Accordingly, the RADBP case involves the proposition that
productivity in Rotterdam increased from 920 TEU/quay m/year in 1999 to 1,560
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Dibden Bay Inquiry - Inspector's Report
TEU/quay m/year in 2000. This is plainly nonsense. There is no sound basis to
support RADBP's 2.77% per annum projected growth in productivity.
3.464 The remaining aspects of the supply and demand calculation were uncontroversial as
between the principal participants in this debate. Mr Garratt's analysis for ABP
assumes that all three "incremental berths" at Thamesport, Tilbury and Felixstowe will
contribute to overall UK supply before 2006. Demand for UK deep-sea container
capacity, driven by falling trade barriers, is assumed to increase by 5% per annum until
2015 and 4% thereafter. Whilst it was suggested that globalisation of trade might give
way to a trading pattern based on regions, Mr Garratt rejected the idea, as did Mr
Penfold (Day 18, pp47-48 and Day 21, pp200-201).
3.465 Mr Penfold agreed that 5% was a proper basis for the prediction and agreed that
demand for deep-sea container capacity would continue to grow beyond 2015 (Day 21,
pp 16 and 203). The Inspector at the inquiry into the Felixstowe Dock and Railway
HRO 2000 (with whose views the Secretary of State agreed) also concluded "the fact
that there has been a pause in throughput growth at Felixstowe does not, of itself,
invalidate the consultants' forecast of a 6% growth for 2002" (ABP/0/121A, para 7.7.4).
3.466 Given the broad level of agreement as to supply and demand, the point at which the UK
will exhaust its capacity to accommodate demand for deep-sea container traffic can be
calculated. Mr Garratt predicts a shortfall in capacity equivalent to 171m of quay by
2006, rising to 1,640m by 2011 and 3,029m by 2015 (ABP5/1, Table 29). The County
and District Councils' analysis similarly shows the "crunch period" occurring in 2005/6
(Day21, pp17-18).
3.467 No one at the Inquiry disagreed with the proposition that the UK economy would be
seriously harmed if capacity were exhausted (Day 21, p60).
The probable
consequences of this would be that prices would rise due to the absence of competition;
and service would become inefficient and unsatisfactory, because of congestion in the
ports. This could lead to vessels queuing, waiting to be loaded and unloaded, with
consequential cost impacts on the port's customers and, eventually a loss of
transhipment and mainline business to UK. Similar consequences were identified at the
recent Felixstowe Inquiry (ABP/0/121A, paras 4.4.19 and 7.7.21)
3.468 These problems have already started to emerge, as Mr Penfold accepted (Day 21, p62).
At Felixstowe, dissatisfaction over performance levels in late 2001 resulted in MSC
moving feeder services and a main line call to Antwerp (ABP/5/4, Appendix 6). In
October 2002, SCT handled 118,135 TEU. This is equivalent to an annualised rate of
more than 1.4 million TEU and close to its current assessed capacity of 1.5 million
TEU per annum with its present equipment.
3.469 It is imperative in the national interest that this situation is not allowed to develop
further with demand exceeding the available capacity.
Capacity Utilisation
3.470 It is not sufficient merely to meet demand by providing quay length capacity equivalent
to demand. This is because it is vital to retain competition between ports in order to
promote efficiency and keep prices competitive. This has wider benefits throughout the
UK economy. In order to maintain competition between ports there must be a
possibility of one shipping customer transferring all or some part of its business from
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one port to another. This in turn requires there to be a degree of available capacity
within the system to enable this to happen.
3.471 For these reasons, ABP's analyses assume that a satisfactory level would be 90%
capacity utilisation (ABP/5/1, table 29). The assumption is consistent with the
conclusions of the Inspector at Felixstowe, who stated:
.... the maximum sustainable level of capacity utilisation for any port is only
around 90%. Utilisation above this level would lead to congestion and a
failure to meet the requirements of customers .... (ABP/0/121A, para 7.7.9).
3.472 The Felixstowe Inspector was left in no doubt about the seriousness of the position put
by the promoters of the extension of the Trinity Terminal. Relying on the evidence of
Mr. Penfold, he reported their case in the following terms:
Should the scheme not proceed, on the other hand, utilisation rates would rise
to between 92.5 and 97.5% by 2005 .... Such utilisation rates would place very
great strain on the UK major port structure, which would result in a loss of
cargo to continental ports and increased feedering of UK cargoes via the
continent. Severe difficulties would be encountered, both for Felixstowe itself
and for the UK economy, were the proposed scheme not to be approved (ibid,
para 4.4.18).
3.473 Mr Penfold had no difficulty in agreeing with the principle and with the target set by
Mr Garratt, saying "I could summarise my view by saying that the appropriate
utilisation rate as we have discussed it would be somewhere in the low 90s%" (Day 21,
p73). He further acknowledged that the Secretary of State could be advised "if you
allow a position to develop in UK ports where utilisation rates get to the low 90s you
will have created problems" (Day 21, p81).
3.474 This is an important concession because it exposes the incorrect basis of Mr Penfold's
initial approach. In his report to Hampshire County Council (HCC/2/4) he suggested
there was no need for Dibden Terminal before 2010, assuming Bathside Bay and
London Gateway were developed, and that utilisation rates of 94% were applied
throughout the UK to 2010 (Day 21, p7). He later accepted that his whole case, as set
out in the same report, was predicated on a utilisation rate which it would be
undesirable for the Secretary of State to countenance in the UK ports (Day 21, p82).
3.475 The expert witnesses agree therefore that it is imperative to avoid creating a situation of
under capacity and they broadly agree where the line should be drawn. There was
some disagreement about the problems which would arise should operators build
capacity such that utilisation levels fell significantly below 90% (Day 21, pp 72-78).
This might be regarded as undesirable from the point of view of the private port
operator, but the creation of additional capacity in the deep-sea container market would
not of itself have an adverse impact on any wider public interest.
3.476 Modern Ports leaves it to the promoters to decide at what point they will develop their
facilities in accordance with their view of the market (para 2.1.11). If the market
perceives an excess of capacity, the likely effect would be that projects would be
delayed until utilisation rates go up (Day 21, pp79-80).
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3.477 Given that there are likely to be extremely adverse consequences for the UK economy
in having insufficient capacity, the Secretary of State should look for robust and
realistic estimates as to the available capacity. Mr Penfold agreed that his contrary
approach would involve taking a risk with the UK's future in terms of international
trade (Day 21, pp87-88). This is not a risk that the Secretary of State should rationally
take.
Why Transhipment is Important
3.478 From the point of view of the national economy it is important to attract a higher share
of the available transhipment market and to avoid becoming a receiver of transhipment
trade from a foreign port. The reasons for this are summarised in Modern Ports, at
paragraph 2.1.4. The consequences of losing existing and future business due to an
inability to satisfy the demands of global shipping alliances for transhipment would be
substantial and adverse. Modern Ports emphasises that this consideration is of
"national interest".
3.479 Paragraph 2.4.9 of Modern Ports highlights the economic and environmental cost to the
UK if it were to become a receiver of transhipment from a foreign port. If capacity in
UK ports were to be constrained, port charges would rise, resulting in a consequential
cost to the UK economy of £203 million per annum by 2010 (ABP/5/1, paras 11.1 to
11.19). There would also be a significant environmental cost arising from feeder ships
calling at smaller ports with a shallower depth, but without the critical mass to warrant
onward transfer by rail. A higher proportion of freight would be moved by road. This
would be directly contrary to all aspects of national policy on freight movements.
3.480 The converse is equally true. If the UK has a large number of feeder services travelling
to disparate locations throughout Europe, then this would make the UK an attractive
place for companies to locate who wished to service those countries (Day 9, p129; Day
15, p131).
3.481 Mr Penfold accepted these points together with the proposition that transhipment
generates more economic activity and therefore more employment (Day 21, p132). He
also agreed that the outlook is very positive in relation to the transhipment market and
that there is plenty of trade to be won for those who have the capacity to engage the
market (Day 21, p99). This involves achieving a critical mass in terms of volumes and
services (Day 21, p117).
3.482 The principal driver of transhipment is increasing ship size, leading to the concentration
by shipping lines on fewer hub ports and increasing reliance on feeder operations
(HCC/2/4, p40 and Focus on Ports, p24). Thus the undisputed evidence establishes the
following propositions:

It is in the national interest that the UK share of the transhipment market is sustained and
increased, in line with policy in Modern Ports.

There is a great deal of transhipment trade to be won for those who have the requisite
facilities.

The key requirement is a port that can provide for the biggest ships currently afloat and
expected to be built.
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
The port must be one that can provide the critical mass to facilitate the operation of
efficient transhipment operations.
3.483 The cumulative effect of the evidence on this issue indicates the importance to the UK
national interest of ensuring that adequate capacity is available within this sector, to be
taken up by the market. This is so because, firstly, the rates which a port operator can
charge for direct import/export containers is higher than that which may be charged for
transhipment traffic. Therefore if capacity is constrained and the port operator has to
choose, he will obviously opt for the port traffic that will give him the higher revenue.
He will dispose of or discourage the transhipment traffic first. Once lost, it is
extremely difficult to recover.
3.484 Secondly, there is the risk associated with critical mass. Mr Penfold said that the level
of transhipment services required to meet customer services is around 15%. On the
other hand, his forecast of the UK share of the transhipment market, based on trying to
avoid a need for Dibden Terminal, is 14% (Day 21, p121-122). It follows that in
keeping the UK supply of capacity at the constrained level suggested by Mr Penfold,
the Secretary of State would again be taking an entirely unnecessary risk with an
important national interest. Mr Penfold accepted this (Day 21, p122).
3.485 The solution is obvious in the context of the need for additional capacity at
Southampton. It is to allow the required increase in capacity at Southampton in order
to allow its share of the market to increase, bearing in mind that it is one of the very
few locations in the UK that could act as a hub port.
Distribution of Transhipment between UK and Continental Ports (HCC/0/16)
3.486 HCC/0/16 was produced by Mr Penfold in an attempt to show, firstly, that the
continental share of the transhipment market would increase because of an excess of
terminal capacity on the continent; and, secondly, that utilisation rates in the UK would
remain at acceptable levels, even without Dibden Terminal. However, insofar as that
document proved anything, it was the exact opposite of the points Mr Penfold was
seeking to establish. Several serious flaws in the analysis emerged.
3.487 Firstly, the document purports to show the level of capacity utilisation in the UK and on
the continent with all transhipment business netted out. Mr Penfold acknowledged that
".... it is inherently misleading to attempt to do that" (Day 21, p155). On the basis of
that concession alone, the Secretary of State should attach no weight to this evidence.
3.488 Secondly, the analysis assumes a continuing state subsidy for port capital projects on
the continent, despite objections by both the EU and the UK. When asked about this,
Mr Penfold said he invited the Secretary of State to proceed on the basis that the
European Governments would continue deliberately to flout the published policy for 10
years (Day 21, pp156-162). Such an approach is inappropriate.
3.489 Thirdly, in preparing the table on the front page of the document, Mr Penfold wrongly
transposed information from different tables in his initial evidence. When this was
drawn to his attention, he said - "Yes, I think I have got in a muddle .... producing this
table, I admit" (Day 21, p166).
3.490 Finally, it was then pointed out to him that in 2010 there was only a 1.5% difference in
the (corrected) utilisation figures between the UK and the continent. It was put to him
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that this difference was insignificant. He replied - "Assuming that the figures are right,
which I am sure they are, that is right" (Day 21, p173).
3.491 As to the matter of utilisation rates, a correct interpretation of Mr Penfold's evidence
shows that, if Dibden Terminal were not to proceed, the utilisation rate at South East
ports would reach an unacceptably high level (above 90%) in 2003, peaking at more
than 100% in 2006 (ABP/5/8). This analysis assumes demand will grow at the rate
assumed by Mr Penfold, and new capacity will come on stream in accordance with his
"most likely" view of the timetable for its development12. To obtain a true picture of
utilisation at the South East ports, Liverpool is excluded from the analysis both in terms
of supply and demand13. Far from being alternatives to Dibden Terminal, Bathside
Bay and London Gateway are also needed.
Competition
3.492 Modern Ports recognises the importance of competition, as this is an effective means of
ensuring that ports provide an efficient and economical service, and so promote the
public interest which depends on a well-run ports industry.
3.493 Mr Penfold describes the damaging effects of the oligopoly that controls the port
industry in Hong Kong without effective competition. He notes that handling charges
are at least three times those charged in the UK and north European markets. Vessels
queue for handling, and congestion occurs at the terminal gates and at off-terminal
storage areas. He rejects the situation as undesirable. (HCC/2/4, p71).
3.494 A part of the case which underlines the need for Dibden Terminal is the desirability of
ensuring that the deep-sea container ports in the UK remain in diverse ownership and
control, and do not become heavily controlled by a single interest. The danger of this
possibility is foreshadowed in paragraph 77 of Recent Developments. Assuming the
Bathside Bay and Felixstowe (Trinity IV) developments proceed but Dibden Terminal
does not, some 65% of UK deep-sea capacity would be in the hands of a single operator
(Hutchinson Ports UK) by 2010 (Day 21, pp33-35). Mr Penfold agreed this would be a
legitimate matter of concern, and that the problem could be resolved by the grant of
consent for Dibden Terminal (Day 21, pp35-38).
3.495 This point has equal importance for competition within ports as well as between ports.
Anti-competitive pressures begin to emerge if a port becomes too heavily dependent on
a single customer (Day 21, p188). This is likely to arise if the port cannot expand to
satisfy the demands of more than one main shipping alliance.
Future Proposals
3.496 In his evidence Mr Penfold dismissed the idea that any future need could be
accommodated at either the Isle of Grain or Scapa Flow sites. In contrast, all of his
analyses assumed the early development (ie before 2010) of both Bathside Bay and
London Gateway, and that they would operate in the deep-sea container market. In
12
HCC/2/3 Case II. Both Bathside Bay and London Gateway are assumed to first contribute to the
available capacity in 2007.
Liverpool is included in Mr Penfold’s analysis in HCC/2/3. However, he accepted that it was
inappropriate to include it when considering ports in the South East, as it is a west coast port (Day 21, pp33-34
and Day 22, pp41-42). A similar approach was taken in the recent Felixstowe decision (ABP/0/121, para 2)
13
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doing so he necessarily accepted the self-evident proposition that if either Bathside Bay
or London Gateway were to fail to contribute effectively to UK deep-sea container
capacity, then difficulties would emerge.
3.497 ABP's case as set out above, focuses on the period to 2015. Beyond 2015, Mr Garratt
assumes growth would continue, but at a reduced rate of 4%. He also assumes that all
the suggested schemes for additional capacity in the South East will come forward in
the period to 2030. On that basis, he calculates that there would be a shortfall of some
4,200m of quay space by 2030 (ABP/5/1, para 7.22 and table 30). This was not
seriously challenged.
Ro-Ro
3.498 It is important to understand the different bases from which the witnesses approached
this issue. Mr Penfold was the only witness offered by the County and District
Councils whose evidence purported to address the need for additional ro-ro capacity in
the UK. But, when asked about it, he frankly conceded "I do not actually myself
maintain statistics on ro-ro traffic ...." (Day 21, p16). Later he went on to concede "the
ro-ro market is not a subject in which I claim any great expertise" (Day 21, p176) and
"I don't know very much about the handling of ro-ro cargos ...." (Day 21, p175).
3.499 The Secretary of State should bear this in mind when weighing the evidence, especially
where it conflicts with the evidence of Mr Garratt. Mr Garratt is an acknowledged
expert in this field, and his company - MDS Transmodal - maintains the most
comprehensive database of (among other matters) ro-ro statistics anywhere in the UK.
3.500 Notwithstanding this, Mr Penfold was able to agree that ro-ro is an important trade for
the UK and Southampton (Day 21, p175). This is a critical concession, because it leads
to the necessary corollary that it is in the national interest that the UK is able to provide
adequate space and facilities to accommodate this important trade.
3.501 Expansion of trade in the new vehicle ro-ro sector has mirrored that of containers, with
around 4.6% per annum growth over the last 10 years. Mr Garratt's expectation that
trade in this sector would continue to grow at around 5% per annum was not
challenged. Currently Southampton has around 17% of the market overall, but 35% of
the deep-sea vehicle market. For deep-sea traffic Bristol is the main competitor, with
30% of the market.
3.502 The deep-sea ro-ro trade has many similarities to the container trade. Large deep-sea
vessels deliver and collect vehicles at a series of continental ports, so a location along
the English Channel minimises diversion. The ability to assemble short-sea and deepsea flows in the same port is also an advantage. Whilst short-sea trades moving in
smaller ships could access shallower ports, there are advantages to car manufacturers
and shipping operators in concentrating their UK operations at a single port, such as
Southampton.
3.503 The efficiency of land use at Southampton for ro-ro handling compares favourably with
that of its principal competitor for the deep-sea ro-ro trade, Bristol. At Southampton,
the throughput per hectare of land used for ro-ro storage is four times that of Bristol. In
1999, Southampton handled 543,000 cars utilising about 69ha of transit storage land, as
compared to Bristol's 418,000 cars, which utilised approximately 242ha.
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3.504 Since then decked parking has been introduced at Southampton (a first for the UK and
fully supported by policy in Modern Ports) as a means of addressing the shortage of
space to accommodate ro-ro trades. Mr Penfold accepted that this represented an
innovatory response to the problems faced by the Port (Day 21, p175).
3.505 Whilst some objectors suggested multi-decked parking could be spread throughout the
port, the solution is of only limited practical value because it cannot accommodate the
heavy and high vehicles which make up a significant part of the port's ro-ro traffic. It
requires piled foundations and reduces the port's ability to use land flexibly. Whilst
more multi-decked parking areas could be introduced, the space they provide will be
needed in any event for the natural growth in ro-ro trades which the port anticipates
(Day 16, p88-89).
3.506 Mr Penfold further accepted that there is a direct connection between the need to
accommodate growth in the ro-ro trades, and the Modern Ports view as to the way in
which port activity and the availability of capacity support major inward investment
into the UK (Day 21, p175). For the motor manufacturers based in the UK the Port of
Southampton is an important facility.
3.507 In support of national initiatives to increase rail usage, there is a need to encourage
growth in ro-ro traffic through the Port of Southampton, as this traffic can readily take
advantage of rail to a significant extent. This level of rail traffic is set to grow, and this
in turn will support the Government's central aim of moving freight from road to rail in
order to promote sustainable transportation policy objectives.
3.508 Mr Penfold had no hesitation in agreeing the background policy support for rail
(Modern Ports, para 2.1.16) but he went on to suggest that, for general customers, the
rail option from Southampton is only viable for the North and Scotland. (HCC/2/5, para
2.9). Subsequently, however, he conceded that he was not fully informed about rail
(Day 21, p176). His suggestion conflicted with advice from the Director of Strategy at
Freightliner, whose states that "intermodal rail is an effective option over much shorter
distances than is sometimes assumed" (ABP/5/6, Appendix 4). Six out of 25 Freightliner
container trains passing through Eastleigh (through which all Southampton trains are
scheduled) are for either London or Birmingham, which are each within 200km of
Southampton (ABP/5/6, Appendix 5).
3.509 Faced with this evidence, Mr Penfold was able to agree that, with the grant of consent
for Dibden Terminal, existing rail traffic flows from Southampton could be maintained,
if not increased; and that that would represent a significant contribution to the
Government's target with regard to rail use (Day 21, p181).
Aggregates
3.510 ABP's case here relies upon the conclusions of the Inspector's report into the Hampshire
Minerals and Waste Local Plan, in which it is said (referring to the Dibden Reclaim):
I accept that the proven urgency in the national interest to provide for
substantial imports of aggregate dictate that, as the development cannot be
accommodated elsewhere in the port, it is essential that the site be safeguarded
and the criteria for its development prescribed (ABP/2/3, Appendix 13, para
5D.18).
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3.511 This, in itself, establishes the proposition that there is a national need for Dibden
Terminal to provide the nation's requirements for aggregates importation. Whilst only
a small part of Dibden Terminal would be required to meet the need, it further
illustrates that the present port has reached its capacity. No objector has suggested that
the need for a deep-sea aggregates terminal could be met elsewhere.
3.512 The Inspector's reference to safeguarding is to the undeveloped area of the aggregates
terminal; not the issue of safeguarding land within a developed port area.
The Consequences for Southampton with or without the Dibden Terminal
Introduction
3.513 The starting point here is the Port Director's judgement that "the status quo is not an
option" (ABP/1/6, para 5). If consent for Dibden Terminal is granted, there will be
substantial beneficial consequences for the Port of Southampton; if it is not, there will
be substantial adverse consequences. This is true with regard to the commercial
operation of the port; the local, sub-regional and national economy; and the relevant
policy background.
3.514 The main problem that is faced by the Port of Southampton at present is that it is
simply running out of space. Business is currently being turned away for no other
reason than the want of space, and innovatory methods are being used to try to combat
the shortage of space to accommodate existing trades and allow for their expansion (see
paras 3.405 and 3.504 above).
3.515 If the port is unable to accommodate the anticipated growth in business, then it will risk
losing not only extra business but existing business, as customers look to consolidate
their interests in a single centre. A major shipping line, Maersk/Sealand, abandoned
Southampton in favour of Felixstowe, because of the implications of limited capacity at
SCT (Day 19, p32). Felixstowe's vulnerability to loss of trade through lack of capacity
is also evident (see para 3.468 above). A port cannot stand still. It has to continue to
expand, simply to maintain the interest of current customers and their associated
suppliers (Day 19, p 81).
3.516 This point is reflected in Modern Ports, which describes the potential for business to be
lost (because ports are not able to meet the demands of the global shipping alliances) as
a consideration of "national interest" (para 2.1.4). The national interest at stake is
wide. This is because customers lost to Southampton would not necessarily relocate to
an alternative UK port. They are footloose in the European port context. The
movement abroad of such business causes both a direct loss through employment
effects; and an indirect loss, through increasing transhipment of UK trade with added
economic and environmental penalties.
3.517 The reverse is also true. If the shipping market perceives that Southampton is set to
grow and prosper as a hub port, then it will attract business from other European port
centres and will become a focus for widespread international operations which are not
necessarily linked to Southampton. An example is the ro-ro carrier Wallenius
Wilhelmsen, who chose to consolidate their world-wide operations in Southampton,
including office and port developments. (Day19, p79).
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3.518 The fact that the status quo is not an option is important because it responds to the
objectors' contention that the Port of Southampton has a prosperous and secure future
whether or not Dibden Terminal is granted consent. This argument fails completely to
reflect the operation of the market, which is increasingly focussing on a smaller and
smaller number of hub ports, that each have sufficient critical mass to cater for their
customers' requirements, including transhipment. There is no doubt that, without
Dibden Terminal, Southampton would continue to have a future of some sort.
However, it would be that of a secondary, relatively minor player in the market; a
receiver rather than a generator of transhipment. It would probably be dependent on a
single main customer, making it a less attractive location for shipping related
companies (Day 19, p79). The wide ranging trading links which Southampton
currently has with other parts of the world (see plan in ABP/2/3, Appendix 18) would
be reduced.
3.519 Insofar as the County and District Councils contend that a future of this kind would be
acceptable for the Port of Southampton, their case is wholly at odds with national
policy in Modern Ports. It is also at odds with the fundamental policy objectives in the
Structure Plan and RPG9, which seek to stimulate growth in the sub-regional economy
(Modern Ports, paras 2.1.3, 2.1.6, 2.1.9; RPG9, para 7.2; CD/SEEDA/1 Chairman's
Introduction). Instead of realising its potential, and growing its business with all the
beneficial consequences which would flow from that, the port would atrophy. There
would be a return to an earlier era, when the port's inability to meet its customers'
requirements led directly to its decline and threatened closure. Attempts to buck the
market in a port context do not result in customers accepting the outcome of a centrally
directed exercise. They have a choice, and they will exercise it in favour of sound
shipping economics. That is the basis of Government policy set out in Modern Ports.
3.520 This is the appropriate background against which to consider the economic policy
consequences of a decision to grant or not grant consent for Dibden Terminal.
Economic Consequences
3.521 The consideration of economic consequences at the Inquiry took place against the
background of largely uncontroversial data (CD/GEN/7) but the parties differed
because the County and District Councils' expert witness, Mr Whitehouse, took a
highly idiosyncratic approach towards the interpretation of the facts and the underlying
policy. His most remarkable contention was that Dibden Terminal was a "relatively
small project" (HCC/3/8, para 6.5). ABP's expert witness, Mr Nicol, approached that
evidence in this way (Day 19, pp89-90):
When I read this, I wondered which proposal he was actually referring to. I
can not see that a £750 million transport infrastructure investment can, by any
stretch of the imagination, be described as a "relatively small" project. .... I
think Mr Whitehouse appears to be taking a rather peculiar view of the
development.
3.522 This is a fair characterisation of Mr Whitehouse's evidence when looked at as a whole.
Accordingly, the Secretary of State should attach little weight to it, especially when
contrasted with the more soundly-based, conventional view expressed by Mr Nicol.
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3.523 The County and District Councils agree that Dibden Terminal would bring
demonstrable economic benefits (Day 23, p16). There is agreement as to the broad
range of employment that the proposal would generate. There would be around 2,000
full-time equivalent jobs from the operation of the Terminal; and about 10,200
person/years of employment in its construction. However, Mr Whitehouse chose, in his
proof of evidence, to dismiss or minimise the importance of the Dibden Terminal
proposals. This in turn arose from a limited and selective reading of important policy
statements.
3.524 The tone of his evidence was complacent. He referred to SEEDA quoting the strength
of Hampshire's economy and compared it to other parts of the UK - especially
Liverpool - where the performance is not as strong (HCC/3/1, para 6.3 and Day 23,
pp20-21). However, he failed to draw attention to the fact that RPG9 requires the
performance of South East Region's economy to be compared to that of comparable
European regions (RPG9 paras 2.18 and 7.2). He therefore agreed that his evidence
missed out a relevant part of the context against which the Dibden Terminal proposals
ought to be considered (Day 23, p23-25). He accepted that the SEEDA document to which
he referred, and the passage that he selectively relied on, contained an expression of
concern that the region is under-performing, and is not performing to anything like its
potential (Day 23, pp30-31). He further agreed that it was not appropriate to rest on laurels
and that it formed no part of the Councils' case to suggest that a policy of economic
restraint should apply in Hampshire (Day 23, pp45 and 49).
It follows, as Mr
Whitehouse agreed, that the Dibden project is encouraged by the Hampshire Economic
Strategy, because it would bring demonstrable economic benefits to the County
(CD/HCC/12 Section 5.1 and Day 23 pp17-18).
3.525 The importance of these references to Mr Whitehouse's concessions about the general
policy background is that they indicate that, upon being shown the full documents, he
accepted that the Dibden Terminal proposals should be viewed in an entirely different
light to that presented in his written evidence. Instead of being dismissed as a minor
enhancement of an already flourishing economy, the proposals should be seen as being
essential to an important national asset. They would have the effect of allowing the
economy to fulfil its potential, and compete effectively with comparable European
regions in accordance with the policy and strategy background. The County and
District Council's failure to analyse the proposals in the correct policy context explains
their failure to reflect the importance of the Dibden Terminal proposals.
3.526 Mr Whitehouse's oral evidence in cross-examination contrasted equally sharply with
his written evidence when asked specifically about the Port of Southampton. He
acknowledged that the port is an important element in the national economy; that it is
an important SEEDA objective to achieve world class facilities at the port; and that it
would be appropriate to exploit the port as an under-utilised asset, in order to act in a
catalytic way (Day 23, pp32-35).
3.527 Thus, the Secretary of State is faced on the evidence with the following agreed
propositions:

The South East economy is under-performing when compared with comparable regions
within Europe, and that it should be encouraged to maximise its potential. This is the
appropriate context within which to consider the economic impact of Dibden Terminal.
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
An effective and sustainable way of improving the region's economic performance is to
encourage the exploitation of under-utilised assets, which will then act as a catalyst for
growth elsewhere in the economy.

The Port of Southampton is an important element of the local, regional and national
economy, and its potential should be exploited in order to provide world class facilities.

The construction and operational employment impacts of the Dibden Terminal would be
beneficial and would accord with the policy objectives.
3.528 Notwithstanding this level of agreement, the County and District Councils sought to
minimise the effect of the employment generation, and failed to appreciate the impact
of the Dibden Terminal on the "port cluster".
Job Creation
3.529 In South Hampshire, the most deprived wards as indicated by the Index of Multiple
Deprivation are concentrated in Southampton and Portsmouth (CD/GEN/7, Appendix
4). These "spatial inequalities" form the basis of the Southampton and Portsmouth
PAER. Considered on a regional basis, there is no significance attached to the specific
PAER boundary referred to in either policy RE7 in RPG9 and the accompanying map,
or the Government Office's response to the Inspector's enquiry on the point
(CD/INQ/1).
3.530 Mr Whitehouse agreed that the aim of policy RE7 is to take "full advantage of" and
"maximise" the area's economic potential; and that a rejection of Dibden Terminal
would involve failing to maximise the opportunities (Day 23, pp52-55). The converse
is also true. Thus there is agreement that the creation of employment on the scale
proposed would promote the objectives of RPG9 in relation to the PAER and would do
so in an area of greatest need.
3.531 The Southampton City region faces a serious deficit of traditional "blue collar" jobs.
The forecast is that they will continue to fall. The grant of consent for Dibden
Terminal would create a large number of this type of job. This contrasts with the
objectors' view that Southampton does not need additional employment of this type.
The problem of job creation in the service sector, and the decline of traditional
manufacturing industry, is the creation of a mismatch between available jobs and the
unemployed population. Even at present there is a substantial body of unemployed
people, with skills relevant to the Dibden Terminal, or whose skills could be improved
by appropriate training, so as to become relevant.
3.532 In this context, Mr Whitehouse agreed that the jobs that Dibden Terminal would offer
would require or encourage people towards retraining; and that there are funding
agencies available to carry out that process. Importantly for those who are
unemployed, he accepted that the impetus to retrain would be provided by the prospect
of something real at the end of it, that is the jobs at Dibden Terminal (Day 23, pp7176).
3.533 The County and District Councils made two further attempts to understate the
significance of this level of employment generation in or adjacent to the PAER. The
first was to suggest that long term unemployment was not high, or not a particular
problem, in Southampton, or in the South Hampshire, Southampton and Portsmouth
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PAER. However, upon examining the evidence it became clear that in Southampton
27% of those claiming benefit meet the definition of long-term unemployed, as do 20%
in New Forest District (HCC/0/18 and Day 23, pp109-110)
3.534 Secondly, Mr Whitehouse suggested that unemployment rates were not a reliable guide,
and that "activity rates" are more reliable. Here again the approach he took failed to
distinguish between the regionally significant levels of deprivation suffered in the
PAER and the wider circumstances of the region. Indeed, the Hampshire Economic
Partnership's publication Informing our Future expressly draws attention to
"particularly low" male activity rates in Southampton (HCC 3/6, p42 and Day 23, p91).
3.535 Despite conceding this, Mr Whitehouse refused to accept that there is a large-scale
problem of social exclusion in Southampton, which is in part directly attributable to a
shortage of available and relevant employment opportunities. This arose largely due to
the fact that he diluted the statistical proof of Southampton's problem by considering
only the wider Southampton and Winchester Travel to Work Area (see plan in
CD/GEN/7 Appendix 4). In the final analysis, the County and District Councils' case
appears to be that the deprived people in the poorer parts of Southampton could "get on
their bikes" and go to Test Valley or Eastleigh (which are within the same travel to
work area) in order to get a job. This proposition was not accepted when it was put to
Mr Whitehouse (Day 23, p101). However, it is the necessary implication of his
evidence for the Councils. There is no other basis upon which he could make the
concessions referred to as to the scale and appropriateness of the jobs that would be
created by Dibden Terminal, in immediate proximity to an area of such need, and still
fail to acknowledge their significance.
3.536 Equally, it is only by adopting this essentially artificial and contrived approach that Mr
Whitehouse could argue that, although 11,000 people are employed in port or port
related activity, the port is not, in his opinion, a significant employer (Day 23, p127).
On this matter, his view contrasts with the view expressed in the Report of the Panel for
the Hampshire County Structure Plan 1996-2011 (Review) Examination in Public.
This states:
No one considering this matter can avoid having regard to an independent
consultant's report which states that employment in activities directly
dependent on the Port account for 10% of all full time male employment in
Southampton itself and 5% of all permanent jobs in the Southampton travel to
work area. The employment prospects of a workforce of this size are not
lightly to be put in jeopardy. Indeed the economic consequences of a failure of
the Port to maintain its competitiveness would be enormous (ABP/2/3,
Appendix 15, p53).
3.537 Mr Whitehouse's position also conflicted with that of the Hampshire Economic
Partnership, in which the County Council are actively involved, who stated:
The Southampton region's economy is heavily dependent on the port's success
with, it is estimated, a contribution of £1.3 billion to the local economy every
year emanating from port related industries. More than 10,000 full time jobs
are directly dependent on port activities - the equivalent of 4% of jobs in the
Southampton and Winchester travel-to-work area. More than 4,200 additional
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Dibden Bay Inquiry - Inspector's Report
people are employed in jobs indirectly related to the port (ABP/6/3, Appendix
3, Document 4).
Cluster Impact
3.538 This issue is relevant when considering not just the process of creating employment
through the construction and operation of Dibden Terminal, but the vital importance of
sustaining and safeguarding the widespread employment that directly or indirectly
depends on an association with a successful and thriving port.
3.539 The port and marine cluster in the Southampton City region has at least 150 businesses
that employ in total around 11,300 people. Including indirect and induced effects, total
employment in the cluster is at least 13,600 jobs in the Southampton City region. The
port and the wider marine cluster overlap, with firms who provide specialist goods and
services in both clusters.
3.540 The general effect of Mr Whitehouse's evidence for the County and District Councils is
to accept the existence of the cluster but to suggest it is dependent for its continued
success on nothing more than the physical infrastructure which gave rise to it in the
first place. This reflects a failure to understand the dynamics of clusters and reflects the
Councils' complacent approach to economic vitality in the port and port-related
activities.
3.541 Professor Michael Porter, the principal academic authority in the study of clusters,
points out that the presence of a cluster depends on a "competitive advantage" and that
it is not possible to rely on physical factors alone (ABP/6/4, Appendix 3, Document B;
ABP/0/41, paras 1.9 and 1.12). Physical infrastructure must be upgraded over time and
employed efficiently. In the context of the Port of Southampton this points to a need to
extend and improve the port in order to sustain the competitive advantage.
3.542 This approach is consistent with the policy at the heart of the SEEDA approach, which
encourages the maximum exploitation of potential (CD/SEEDA/1 Chairman's
introduction); and with RPG9 which promotes competition with comparable regions in
Europe. It is entirely inconsistent with the complacent attitude underlying the County
and District Councils' position, which is, in essence, to assume there will always be a
thriving port in Southampton because of its natural physical advantages. Against this
background, it is clear that the County and District Councils have misunderstood and
misapplied the cluster concept.
3.543 A further misunderstanding by Mr Whitehouse was his assertion that the cluster
concept should only be applied to the "new economy" industries and should not be
applied more widely. However, the minutes of the Department of Trade and Industry's
Cluster Policy Steering Group record the Chairman, Lord Sainsbury, as saying "...we
had to go on stressing that the clusters work was not just about the new economy..."
(ABP/6/4, Appendix 3, Document D). Similarly he said "there was a danger that
everyone wanted biotechnology and nanotechnology clusters but others were equally
important..." (ibid, Document E).
3.544 Lord Sainsbury's view is supported by a DTI publication on clusters which recognises a
food production and processing cluster, where one key component is access to a lowskilled workforce which is familiar with working in the food industry (ABP/0/41, table
2.1 and para 4.11).
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3.545 The Secretary of State should proceed on the basis that:

As a matter of theory, the cluster concept applies as much to old technologies as it does to
new ones.

As a matter of fact, such a cluster exists in Southampton in port and marine related trades.

This cluster is of singular importance to the local, regional and national economy,
because of the scale of employment directly associated with it and the number of
businesses which feed into it and depend on it.

The cluster must maintain its competitive advantage and, in order to do this, its essential
elements must be improved, upgraded and deployed in the most efficient manner.

In the Southampton context this can be achieved by increasing economic activity in
businesses directly and indirectly related to the port; by encouraging wider education,
training and other infrastructure supporting the cluster; and by increasing the labour pool
of skills and scope for competition between local firms.
3.546 All of these positive factors would be generated by Dibden Terminal. On the other
hand a refusal of consent for Dibden Terminal would forego these benefits, create an
image and marketing problem for the port, and make it more difficult to sustain the
competitive advantage in the longer term.
3.547 The cumulative effect is to prove a clear economic need for Dibden Terminal. If the
status quo is not an option, then it is vitally necessary that the port should grow, prosper
and develop; and equally important that it is not allowed to stagnate and decline. It is
wrong in this context to try to disaggregate all of the constituent elements of the port's
business; containers, cruise, ro-ro, aggregates etc are all constituents of the whole
business which itself is an indivisible, core element of the port marine cluster in
Southampton.
3.548 Dibden Terminal provides the means whereby the port can be enabled and
appropriately encouraged to compete for business on the European stage. Refusal of
the application would almost inevitably result in a decline in the economic performance
of the port, with consequential risks to the health of associated businesses.
CPRE Hampshire.
3.549 The basis of the CPRE case is to suggest that SEEDA and the Hampshire Economic
Strategy seek to encourage high quality and high value employment. Accordingly they
argue that a surplus of low-tech and low-pay jobs would not be desirable; and that the
"low grade jobs" that would be created by the proposed development are not what is
required. They also argue that "people in quality jobs wish to work in pleasant
surroundings and they will not wish to work in a part of the country whose tone has
been irrevocably lowered by this port development" (CPREH/2/1, paras 5.5 to 5.7)
3.550 There is no support for those propositions in any relevant policy document. The
sentiment underlying the case presented by CPRE Hampshire is entirely contrary to the
fundamental aim of national land use planning policy, which is to promote social
inclusion and encourage all people - regardless of social or ethnic background - to fulfil
their potential.
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3.551 It is clear that the relevant economic policy for Hampshire is the reverse of the CPRE
view. For example, the Chairman's introduction to Building a World Class Region
states "we must invest in our people and in our capital assets in order to release the
potential of the region as a whole" (CD/SEEDA/1, p4).
3.552 CPRE Hampshire's witness accepted that construction jobs and construction workers
are an essential part of the developing economy of Hampshire (Day 25, p33). But
when asked whether he recognised the value of these construction jobs to the
unemployed people in Southampton, he said "I do not believe this construction is of
any value whatsoever to them" (Day 25, p35).
3.553 The basis on which he formed that opinion is not clear, having regard to the high male
blue collar unemployment levels in Southampton, and the presence of well funded
training bodies whose role is to retrain people to match jobs. Clearly it would be
foolish to predict or assume that every job at Dibden Terminal could be taken by an
unemployed resident of the City. However, labour market adjustment processes would
operate; that is, people in employment moving to work in Dibden Terminal would, in
effect, release a new job opportunity of a similar skill level that could be taken by an
unemployed resident and so on.
3.554 None of these factors, which reflect a sophisticated and thorough understanding of the
dynamics of employment markets, were apparently taken into account by CPRE
Hampshire. Rather, their witness persisted in his case by suggesting that the Dibden
jobs would be of no value to Hampshire, because "there are not any people locally to
take them" (Day25, p39).
3.555 This is wrong for the reasons given above and, in any event, the local/non-local
approach suggests a false and inappropriate dichotomy. RPG9 encourages economic
diversity (policy RE10). Therefore, even if jobs were created which could not
immediately be filled locally, they would draw in people with a wide range of diverse
skills. This would promote, rather than conflict with, policy advice.
3.556 CPRE Hampshire's evidence also embraces the proposition that the Secretary of State
should seek to constrain economic activity, which might have the effect of creating
demands for further housing. Here again their evidence was in conflict with RPG9, the
SEEDA Economic Strategy and the Hampshire Economic Strategy, all of which affirm
the importance of removing constraints to economic growth.
3.557 Moreover, the assertion that an unmet housing need would arise as a consequence of
the Dibden Terminal is also wrong in fact. The Structure Plan makes provisions for
Dibden Terminal in Policy EC6, and provides a sufficient allowance for housing to
enable any concomitant need to be met.
3.558 CPRE Hampshire's position at this Inquiry directly conflicts with relevant up to date
policy and is poorly researched. Accordingly, it should be rejected.
Can the Need be Met in the Existing Port of Southampton?
3.559 The answer to this question depends on the definition of need (see paras 3.386 et seq
above).
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3.560 ABP's primary case is that the Secretary of State is able to conclude, on even a cursory
glance, that the need as defined is not capable of being met within the existing dock
estate in Southampton. This is because the amount of land needed to facilitate the
operation of a modern container, ro-ro and aggregates terminal is simply not available
within the existing dock estate. This is clear from the set of aerial photographs
provided in TS/N2.
3.561 Even if the Secretary of State were minded to examine in detail all the possibilities for
releasing land from other uses or utilising land more efficiently within the existing dock
estate, he could not reasonably be able to come to a different conclusion. The
maximum additional area of land that might be obtained within the existing dock estate
would be 46ha, as compared to the 202ha required for the Dibden Terminal (TS/N2,
para 7.51).
3.562 Section 33 of the Harbours Docks and Piers Clauses Act 1847 requires ABP to make
facilities available to "all persons for the shipping and unshipping of goods and the
embarkment and loading of passengers". That statutory duty was reinforced recently in
R v. ABP exp. Plymouth City Council [1995] 3AER 37. It is unlikely that the 46ha of
extra land could be provided without causing difficulty with this provision.
3.563 Furthermore, the figure of 46ha is theoretical and takes no account of the legal,
commercial or planning impediments to its being assembled. These cannot be
discounted. In particular, the figure takes no account of the duration of existing
commercial lease arrangements that have been entered into between ABP and others
who operate in the port (ABP/1/3). It is highly unlikely that all of the land currently
held by others could be recovered for the purpose of land assembly at anything like a
commercial rate.
3.564 The 46ha also includes an element of 32ha that would be gained by introducing further
multi-deck vehicle parking areas for the storage of ro-ro traffic. The extent to which
this solution could be applied in practice would be limited, however, because multideck parking causes a loss of operational flexibility. Planning controls would also act
to limit the height of structures near urban areas.
3.565 At the Inquiry, nobody suggested that the theoretical 46ha, which would be scattered
throughout the port and largely separated from the deep-water berths, would meet the
identified need. Neither did any one suggest that the need could be met on another site
in Southampton, outside the existing dock estate. Whilst some objectors point out that
ABP sold land in the past for the development of Ocean Village, the dock concerned
was old and shallow and unsuitable for modern traffic. If the land were available today
it would not increase the port's cargo handling capacity to any appreciable extent.
Also, whilst 17ha of port land was taken for Ocean Village, other sites acquired
elsewhere have added 26ha of useable land to the port (ABP1/1, paras 8.15 et seq).
Conclusion
3.566 Having regard to all the evidence considered, ABP's conclusions on the need for the
proposals are as follows:

the need which is identified in this case is properly defined as relating to the Port of
Southampton;
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
the port is locally, regionally and nationally important as a gateway port competing in a
European context;

the evidence as to the need for additional capacity at Southampton (and indeed nationally)
for deep-sea containers is overwhelming, as is Southampton's need for additional capacity
for ro-ro trades and aggregates;

unlike some other ports such as Felixstowe, the Port of Southampton is embedded in the
economy of its area, where it plays a key role in maintaining the economic vitality and
employment levels;

Dibden Terminal would materially contribute to established policy objectives for
enhancing economic vitality, addressing PAER objectives and dealing with significant
problems of social exclusions; and

a failure to approve Dibden Terminal would be counter to established policies; and would
risk the future health of the port, and the economy of the area, the region and the nation.
Alternative Solutions
The Definition of Alternatives
3.567 There is no difference in principle between the parties as to the Habitat Regulations or
general planning principles, but a significant difference in the way those principles are
applied to the facts of this case.
3.568 In a note to the Inquiry (CD/INQ/7), the Inspector raised a concern about the approach
to alternatives adopted by the County and District Councils, because it appeared to give
rise to a "Catch 22" situation14 (or, as RSPB put it, a "Mexican stand off"). In response,
a series of discussion papers were put to the Inquiry by the Councils, English Nature,
MacFarlanes on behalf of P&O, and RSPB.
3.569 In their paper, RSPB implied that the procedure which had been adopted at the Inquiry
failed to allow for the proper consideration of alternatives (RSPB/0/3). ABP endorse
the response from the Inspector, who indicated that the "alternatives" topic would not
be reopened, unless a case for doing so was made because new circumstances had
arisen (CD/INQ/16). The RSPB did not challenge this response. Subsequently, various
parties introduced a variety of new information on the topic, following the procedures
for submission of updating material set down in Advice Note 13. These arrangements
ensured that the Inquiry had the most up to date evidence available; and no party has
suggested that they have been prejudiced by proceeding in this way.
3.570 All parties agree that it is essential for the Secretary of State to consider whether there
are alternative solutions for addressing the need which has been identified. This in turn
necessarily and appropriately involves a direct connection between the need which has
been identified and the method which is offered as an alternative way of meeting that
need. That proposition can be tested in this way; if a solution is advanced as an
alternative and is preferred to the project in question and is duly developed, but one or
more of the significant components of the need remain unfulfilled, then the solution
14
See footnote to paragraph 3.412 above.
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advanced cannot be an alternative. An extreme of this position (which ABP do not
endorse) would be to suggest that an alleged alternative, which fails to meet the
identified need in every minute particular, is not an alternative. Such an approach
would immediately nullify the statutory and policy framework, because no site could
ever identically replicate another.
3.571 ABP's case is that the Secretary of State is obliged to consider whether, as a matter of
fact and degree, the need which has been identified is capable of being met at another
location or in another way, for example by doing nothing.
3.572 ABP therefore submit that it is fundamentally necessary to understand and apply the
correct definition of need to any candidate that is offered as an alternative solution.
This has to be done having regard to the real, commercial world in which ports operate,
rather than in an abstract, theoretical and purely academic way, which appears to be the
approach suggested by RSPB. In this regard ABP agree with, and adopt, the approach
suggested by the Inspector, which is to consider "...whether there are feasible and
credible alternatives to the proposed Dibden Terminal" (CD/INQ/8). ABP expressly
reject the suggestion, implied by RSPB, that the proposal should be ranked alongside
other proposals elsewhere.
3.573 The adjectives "feasible" and "credible" emphasise the importance of maintaining a
firm grasp of reality when considering potential alternative solutions. This is a valid
and appropriate approach because the consequences of making an error will be real
harm to the national, regional and local economy, and a perpetuation of social problems
which have, at their root, a failure to maximise economic potential.
The County and District Councils' Approach to Alternatives
3.574 Thus far there is no difference in principle between ABP's approach and that advocated
by the County and District Councils (NFDC/0/1 and /0/6). Rather, the difference is one
of fact in what the Councils define as "the characterisation of the need". They say the
need is for the provision of container facilities in the South East (NFDC/01, p2). But
their approach fails to have regard to:

The locationally specific nature of the need - based in Southampton.

The scale of the need - the need for Dibden Terminal remains, even if the other suggested
alternatives are developed to their maximum extent.

The multiplicity of factors which go to make up the need - the need for additional
container handling, ro-ro, and aggregates capacity; RPG policy applied to the PAER; the
national policy imperative to encourage ports to be self-financing and self-sustaining; the
need to encourage and stimulate competition within and between ports; and the need to
maximise the use of existing infrastructure.
3.575 The Councils' approach also fails to have regard to the evidence of their witness who
conceded that there is a local and regional need (and therefore in ABP's submission a
national need) for the Port of Southampton to expand, grow and maximise its potential
(see paras 3.395 and 3.396 above).
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3.576 There is, however, a difference in principle between ABP and the County and District
Councils on the approach to the consideration of alternatives in the context of
Environmental Impact Assessment. ABP agree that the effect of the Directive and,
domestically, paragraph 8(2)(d) of Schedule 3 of the Harbours Act 1964, requires the
ES to include:
an outline of the main alternatives studied by the applicant and an indication of
the main reasons for his choice taking into account the environmental effects.
3.577 The Councils and ABP differ on what that involves in practice. The Councils appear to
take the view that this regulation imposes an obligation on ABP to consider other
locations which they (the Councils) believe amount to alternatives. HCC/4/1, para 5.8
states:
.... the Harbour Works (Environmental Impact Assessment) Regulations 1999
state that the main alternatives should be considered by the developer. The
County Council contends this also requires an appraisal of national alternatives
to Dibden Bay.
3.578 The cross examination of the Council's witness on this section of his evidence was
interrupted by his Counsel noting:
There is a legal argument between us as to whether or not the inclusion of the
words "studied by the applicant" significantly alters the obligation (Day 30,
p175).
3.579 Nonetheless, the Councils' witness had previously accepted, with some obfuscation,
that he had not accurately reflected the regulation in his evidence (Day 30, p174).
3.580 As to the Council's position, ABP submit that the words "studied by the applicant" are a
vital part of the obligation without which the EIA Directive, and the Regulations,
would not make any sense. This is because one of the underlying purposes of the
regulations is to allow those interested in an application to know the basis upon which
the applicant has assessed the impact of the proposed development on the environment.
The further obligation to give reasons for his choice ensures that the applicant cannot
capriciously dismiss that which is plainly relevant. The Environmental Statement for
Dibden Terminal explains clearly which alternatives have been studied and why. In the
light of Mr Penfold's acceptance of the validity of the need case, that is plainly a
rational approach.
3.581 To require an applicant to include details of other alleged alternatives proposed by third
parties would impose an unreasonably heavy obligation on the applicant. In those
circumstances all someone opposed to the development would have to do would be to
suggest further and further alternatives to the applicant, which would then have to be
studied regardless of the applicant's view of their relevance. His task would never be
done. Thus, the construction suggested by the Councils involves abusing the clear
language of the Directive and achieves an irrational result, which is inconsistent with its
underlying purpose.
3.582 With the exception of this difference in principle, there appears to be general agreement
that the approach to the identification of alternatives should be realistic and firmly
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Dibden Bay Inquiry - Inspector's Report
rooted in the factual matrix of the particular case. This involves looking for
alternatives which are "feasible and credible." This is the approach adopted by ABP,
which ABP firmly commend to the Secretary of State.
English Nature's Approach
3.583 English Nature agree both with the general approach to the assessment of need and the
definition proposed by ABP. They say:
In the context of the present project .... the problem to which the solution is
being sought can be defined as providing the Port of Southampton with
additional deep-water container, ro-ro and aggregates handling capacity. A
project which does not do this is not an alternative solution within the ambit
and application of Regulation 49 .... (EN/0/5, para 13).
The Approach Taken in "A Project Appraisal Framework for Ports"
3.584 The approach is also endorsed by the DTLR's consultation paper A Project Appraisal
Framework for Ports. Paragraph 3.10 of this paper indicates that:
.... it is unrealistic to expect promoters to develop and appraise alternatives
about which they have little detailed information, or which may be speculative
or hypothetical.
Paragraph 3.15 notes, in relation to alternatives at other ports, that:
.... it is unlikely to be productive to engage in speculative argument based on
unverifiable assumptions or hypotheses.
RSPB's Approach
3.585 In their paper, the RSPB accept that the primary task in this regard is for the Secretary
of State to consider, as a matter of judgement, whether the facts disclose an alternative
solution to the need which has been identified. Referring to Managing Natura 2000
(para 5.3.1) they state
Alternative solutions are those which satisfy the need, as identified by the
competent authority, but which also better respect the integrity of the site in
question (RSPB/0/3, p2).
and later (ibid, para 3) ...
.... it is for the Secretary of State to be satisfied that there are no alternative
solutions.
3.586 To that extent, RSPB agree that the identification of the alternative is linked
fundamentally to the definition of the need. This is a question of fact and degree for the
Secretary of State to decide in the circumstances of each case.
3.587 ABP's understanding is that nothing said by RSPB in closing alters this position. In
their submissions, RSPB note the decision of the High Court in R (Medway Council &
Others) v Secretary of State for Transport (2000) WWHC 2516 and draw attention to
the grounds upon which the challenge succeeded. These are noted as including
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irrationality (there had been no comparative assessment of options) and conservation
obligations (relying on the fact that Gatwick might be an alternative solution within
Regulation 49 of the Habitats Regulations 1994). The submissions continue
(RSPB/0/26, para 93):
Medway thus underlines very clearly the legal errors which are likely to arise
if obvious candidates for alternative solutions are left out of the process of
evaluating a site such as Dibden (emphasis added).
3.588 ABP have not left out of account any obvious candidates or alternative solutions.
Rather, their identification of alternative solutions has had regard to the undisputed
evidence of the existence of a Southampton need. It would be irrational not to address
that need. The need considered in the Medway case was a need for airport capacity in
the South East, having regard to the growth in demand for air travel. Paragraph 1 of the
judgment sets this out, and provides the context for the legal challenge (RSPB/0/26,
Appendix 1).
3.589 In these circumstances, the decision does not add to that which we already know and
appreciate, namely that it is critical to define the need before considering what might be
an alternative.
3.590 In their paper, RSPB make what, in ABP's submission, is the remarkable suggestion
that:
It follows that the Secretary of State, and this Inquiry, should consider other
potential alternatives regardless of the fact that those other sites are not directly
before this Inquiry in the form of project applications .... (RSPB/0/3, para 15).
3.591 At this point RSPB's approach departs from the consensus because it seeks to impose a
burden on the applicants, the inquiry process and the decision-maker that, in practice, it
would be impossible to discharge. What "other sites" should be considered? Are they
limited to Shellhaven and Bathside Bay, which the Councils' principal witness has
characterised as comparing "apples and pears" (see para 3.417 above)? Or should the
exercise go further and include the Isle of Grain, Scapa Flow and Thamesport? Or do
the RSPB suggest that it should include other unspecified alternative locations? Do
they even have to be feasible or credible? If so, how is this to be assessed and by
whom? The lack of realism inherent in the approach suggested by RSPB stems from
them adopting an excessively legalistic approach to the issue, which fails to recognise
the importance of the factual circumstances in which the Secretary of State should
decide the fundamental issues.
3.592 In ABP's submission, the position adopted by the RSPB is internally inconsistent
because they have already accepted that the matter should be decided by the Secretary
of State on the available facts.
3.593 It may be that the lack of realism on the part of the RSPB is accounted for by their
limited participation when the Inquiry considered the proposals, need and alternative
solutions topics. Four of ABP's witnesses explained how the need was linked to the
Port of Southampton. This evidence was not challenged. Similarly, the RSPB did not
challenge ABP's evidence that the need for additional deep-sea container capacity in
the UK is such that Bathside Bay and London Gateway are required to be built in
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addition to Dibden Terminal before 2010. On that basis, they cannot be regarded as
alternatives.
3.594 Again, there was no attempt by RSPB to challenge ABP's evidence that the competitive
advantage of the port marine cluster in the Port of Southampton is fundamentally
dependent on developing, expanding and widening the business and knowledge base,
and that this could only occur with the grant of consent for Dibden Terminal.
3.595 The RSPB's contribution is helpful insofar as they confirm the importance of the
relationship between need and alternatives. Their contribution is unhelpful when they
suggest that the Secretary of State should involve himself in an esoteric and neverending quest to identify alternative sites when a port project comes forward. This, ABP
submit, is the effect of paragraph 15 of their paper (RSPB/0/3). It is entirely
unsupported by the documents they seek to rely upon.
3.596 In summary, ABP submit that the proper approach to the consideration of alternatives
will involve the Secretary of State considering whether, as a matter of fact and degree,
there is an alternative solution which meets the identified need set out in the evidence.
ABP's View
3.597 ABP's case is that in order to qualify for consideration as a genuine alternative, an
option must provide a solution to the problem identified, and be a realistic and viable
proposition in terms of practical, environmental and economic considerations. In
addition, there must also be a significant degree of assurance that any permission
sought will be granted and that the option will come forward.
3.598 The problem to which the solution must apply is that the UK is facing an ongoing and
remorseless rise in international demand for container handling capacity. Southampton
is already constrained and cannot find anywhere to accommodate the scale of demand
which is expected to arise. At the same time it must accommodate that demand if it is
to remain in the front rank of deep-sea hub ports in the international container market.
There is nothing in the evidence of demand for container facilities in the UK which
contradicts that view.
3.599 Finally, the Secretary of State should approach the question of alternatives having
regard to the policy context set by Modern Ports. In particular:

The policy seeks to encourage competition between ports. If the objectors' approach is
preferred, it would involve transferring a market demand for further capacity and
facilities in Southampton to a competitor port elsewhere. Such an approach would
conflict with, rather than promote the policy.

The policy seeks to encourage each individual port to meet the needs of its customers by
bringing forward new port proposals in accordance with an assessment of the needs of the
market. To attempt to divert the growth to a competitor port and thereby prevent the
applicant from meeting the identified need would, in effect, involve stifling the port rather
than encouraging it to grow and expand in accordance with its view of the market. In
this way, again, the suggestion that a need at one Port should be satisfied at another is
contrary to the view of Modern Ports and should be rejected.
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3.600 The approach advocated by the objectors would leave this policy in tatters. A location
remote from Southampton is incapable of meeting the need identified. It cannot
therefore amount to a solution to the problem identified. (Day 26, p62).
A New Approach to Appraisal
3.601 Following the advice in Modern Ports, ABP considered other sites in a NATA
apppraisal (ABP/2/3, Appendix 20). This allows a comparative assessment of different
projects "but it does not give implicit or explicit priority to any one" (Modern Ports,
para 2.4.14). This is consistent with the Inspector's suggested approach of having
regard to other projects elsewhere, but not ranking them (CD/INQ/8).
3.602 The general NATA advice in Modern Ports was supplemented during the course of the
Inquiry by a consultation draft of a guide to producing a framework in the context of
ports (A Project Appraisal Framework for Ports). At paragraph 1.4 this states:
In line with the policy put forward in Modern Ports the framework does not
start from a strategic view about where ports should be located or require
projects to adhere to a central forecast or model.
3.603 This matches the approach taken by ABP, which is that each port is an individual
enterprise which should meet the demands and expectations of its customers in its own
way. It also reveals the fallacy underlying the approach advanced by the Councils and
others, which is essentially to approach national container capacity as though it were in
effect a single cake, which is then to be divided up between competing ports in
accordance with some over-arching concept of demand management. That approach
was adopted in the days of the National Ports Council. It led to a period of stagnation
and decline, with growth in demand being constantly and substantially underestimated.
Such an approach is the very antithesis of the Government's current policy for ports.
3.604 A Project Appraisal Framework for Ports also draws a distinction between sites which
are within the control of the applicant and those which are not (para 1.4). This advice
reflects the policy imperative of making sure that ports compete with one another.
3.605 The first stage of ABP's NATA appraisal makes a strategic assessment of general
locations where it might be feasible to construct a deep-sea terminal of the type
proposed. This identifies Southampton Water as the most promising option. The
second stage of the appraisal then considers the detailed options within Southampton
Water and identifies the Dibden Reclaim as the preferred option. No criticism was
made of the approach that would justify abandoning these conclusions. Neither did
anyone suggest that any alternative location on Southampton Water would be
preferable to the Dibden Reclaim as a site for a new deep-sea terminal.
3.606 In contrast to this, the County and District Councils carried out what they describe as a
"hybrid NATA" (HCC/4/7, paras 3.47-96). Inappropriately, this uses the NATA
process effectively to rank the various proposals for port development. This approach
is fundamentally wrong. The tables also contain different means of measuring the same
impact. For example at Bathside Bay, the "Community Impact" assessment considers
only "Distance to Housing" (and then wrongly states the distance to be 0.5 miles),
whereas the "Community Impact" at Dibden Bay is also assessed in terms of "Visual
Impact".
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3.607 The Councils' appraisal fails more generally because of its over-simplification. When
asked about this, the Councils' witness conceded that his "hybrid NATA" was in a
simplified form and therefore had limitations. His attention was drawn to the fact that
his appraisal did not recognise that Hutchison were now conceding that their proposals
at Bathside Bay would have an adverse impact on the integrity of a SPA. He was
asked to accept that his NATA should not therefore be regarded as rigorous. His
answer was that it was as rigorous as he could make it, given the limited time and
resources that he had had to devote to it. Subsequently, he accepted that the exercise
was not a fair comparison and that the weight that should be placed on it was limited
(Day 31, pp63-78).
3.608 In the light of this, ABP's NATA should be regarded as the more reliable and should be
used to inform any view that the Secretary of State may wish to express about
comparative impacts.
Specific Sites Remote from Southampton
Introduction
3.609 The following consideration of other sites or locations is without prejudice to ABP's
primary case that:

The need is for further deep-sea container, ro-ro and aggregates facilities in Southampton
which, by definition, cannot be met elsewhere.

To purport to satisfy the need by directing customers to other competing UK ports
elsewhere would be contrary to the fundamental principles of Modern Ports, which seeks
to promote competition, self sufficiency and demand led investment. It would not work
in practice because the market will decide for itself where to go.

All other sites are required by 2010, in addition to Dibden Terminal, if the UK is to be
prevented from suffering capacity utilisation rates which are harmful to the national
economic interest. The development of sites elsewhere will therefore not supplement or
eliminate the need for Dibden Terminal.
3.610 It follows that, if ABP are right about all or any of these points, then the presence or
absence of proposals for deep-sea container development elsewhere in the UK becomes
either an irrelevant issue or, at any rate, of insufficient importance to warrant the
rejection of Dibden Terminal.
3.611 It is also important to note that ABP do not oppose the grant of consent at either
London Gateway or Bathside Bay. Those proposals must be considered on their merits
as at the time they fall to be considered.
3.612 The value of considering these sites is to inform the Secretary of State whether they are
"feasible" or "credible" alternatives to Dibden Terminal as locations for the
development of deep-sea container capacity. In particular, whether they are likely to be
attractive to the international market of deep-sea container shippers; likely to promote
competition within UK ports; and likely to come on stream soon enough to address the
shortage of capacity which is likely to occur at around 2005/6. There is nothing in
Government guidance which requires consideration to be given "...to anything other
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than genuine and plausible alternatives" (Day 26, p59). This is the test that should be
applied by the Secretary of State in deciding the relevance of these sites.
Bathside Bay
Procedural and Policy Matters
3.613 There was initially some uncertainty as to whether the proposal at Bathside Bay would
be subject to a public inquiry, in view of the fact that the promoters were able to rely on
the 1988 Parkeston Quay Act. However, it then became clear that:

By virtue of the operation of Regulation 60 of the Habitat Regulations, the promoters are
unable to rely on permitted development rights granted by the 1995 GPDO, which a
project authorised by an Act of Parliament would normally enjoy.

The development proposal would require an Environmental Assessment. This would be
considered under the EIA Regulations, which provide for the holding of a public inquiry
in circumstances where objections have been lodged.

In the course of promoting the Act in Parliament, Counsel on behalf of the promoters
made it clear that planning permission would have to be obtained and that this would be
the relevant forum for local residents to raise issues about residential amenity impacts
(ABP/0/50, p12).
3.614 There are many substantial objections from statutory and non-statutory bodies to the
development of Bathside Bay. An inquiry is inevitable. Indeed, Parliamentary Agents
acting on behalf of Hutchison Ports (UK) Ltd have written confirming that
(CD/INQ/34):

Planning applications, the scope and contents of which have yet to be finalised, are
proposed to be submitted, in addition to the applications already made.

A public inquiry will be held, which it is anticipated will start in November 2003 and last
for 2 to 3 months.
3.615 As there is no guarantee of a successful outcome of any application, it is possible that
this option may not come forward.
3.616 Moreover, whilst there is an Environmental Statement for the proposed development at
Bathside Bay, ABP are unable to ascertain the precise content of the application which
lies behind it. This basic question needs to be answered before the application can
proceed. In its current form, the application would fail because the Environmental
Statement bears little or no relation to the impacts of the proposals which are put
forward. For example:

The proposals would displace an existing development plan allocation of, among other
things, 1,250 houses. This is an indirect effect of the proposals which needs to be
assessed, but which the Environmental Statement ignores.

The proposals would require the dualling of the A120, but there is no attempt to assess
the effects of either this or the extra trip generation.
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
The proposals anticipate development beyond the 600m line behind the quay, but this is
not assessed.

The Environmental Statement fails to demonstrate that the proposal has been located and
designed to minimise or avoid pollution, as required by Structure Plan Policy ENV5
(ABP/0/47, para 5).
3.617 Furthermore, the mitigation measures proposed by the Environmental Statement are not
in the application. They therefore have no status and cannot be relied upon. Also, the
submitted plans are not drawn to scale. It is therefore not possible to make an accurate
assessment of any aspects that have a physical dimension to them. For these reasons, it
would not be open to the Secretary of State to grant consent for these proposals as they
stand, as a matter of law. For him to do so would be contrary to the judgement in R v.
Rochdale MBC ex parte Milne (NFDC/0/3, Case 7).
3.618 All of these problems may be capable of being overcome, but that would require the
promoters effectively to consider their proposals afresh. This is what the promoters
now seem to have recognised in the way they are proposing to proceed. They will
have to do a great deal of preliminary research and survey work (some of which will be
dependent on the seasons) and reconsider the form of the development in order to
provide a legally acceptable proposal. All of this will take time.
3.619 However, the 2005/6 critical period for container terminal capacity in the UK is fast
approaching. Accordingly, it cannot be said with any certainty that the Bathside Bay
application provides a feasible, credible or plausible alternative to the Dibden Terminal.
3.620 A further point is that the County and District Councils failed to notice or identify any
of these obvious, and in total serious, procedural and technical failings in the Bathside
Bay application when they prepared their "hybrid NATA". Rather, they ranked the
Bathside Bay proposal on the simplistic grounds that it had the benefits of the 1988 Act
and was therefore going to proceed. This approach reflects a theme of uncritical
analysis, which is to be found throughout the Councils' evidence when dealing with
alternative sites.
3.621 The Bathside Bay proposal also faces substantive as well as procedural problems,
which it may not be able to overcome at all. Whilst the Councils' NATA analysis noted
the adjoining SPA/Ramsar site, it took no account of the impact of the Habitat
Regulations on the application. In fact, the Bathside Bay Environmental Statement
concludes that the proposed development "will give rise to a number of impacts that
will be in conflict with .... the Stour and Orwell Estuaries SPA" (ABP/2/8, Appendix 1,
Section 12.5, para 1).
3.622 The inquiry into Bathside Bay will therefore have to consider similar issues to those
arising at Dibden Terminal, in the context of Article 6(4) of the Habitats Directive and
Regulation 49 of the Habitats Regulations. It will have to address the issues arising
from the Basses Corbières decision, in circumstances where it seems there may well be
an admitted failure to have designated as SPA an area which should have been so
designated.
3.623 The Inquiry will also have to consider the environmental impact of increasing Harwich
Haven's maintenance dredge budget from 4.1 to 5.4 million m3 per annum. This would
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be between 12 and 20 times greater than that of Southampton Water with the Dibden
Terminal.
3.624 A further and major problem for the Bathside Bay proposal as currently formulated is
the general policy of sustainability as applied to port development. Modern Ports
requires the best use to be made of existing infrastructure. A letter from Hutchison
Ports UK to Hampshire County Council, dated 9 August 2001, indicates that Hutchison
were proposing to develop Bathside Bay in advance of re-developing the Landguard
Terminal at Felixstowe (HCC/4/4, Appendix A, para 5). This order of events is plainly
contrary to policy, and would make it difficult for Hutchison to win an argument about
alternative solutions in the context of the harm they propose to cause to the integrity of
the Stour and Orwell SPA.
3.625 At the public inquiry into the proposed extension of the Felixstowe Trinity III
Terminal, Hutchison resisted the suggestion of additional capacity becoming available
through the re-development of the Landguard Terminal. It was on that basis that the
Secretary of State reached his conclusions on the availability of alternatives in the port
(ABP/0/121, p2, para 5). At first sight, Hutchison's approach at that that inquiry did not
sit easily with the content of their letter to Hampshire County Council. But, given that
Hutchison would not have wished the Secretary of State to make his decision on a false
premise, it seemed safest to assume that the Landguard re-development was not
currently a realistic prospect.
3.626 However, shortly before the Dibden Inquiry closed, a news release from Hutchison was
produced, dated 4 December 2002 (HCC/0/43). It describes the proposal to redevelop
parts of the Port of Felixstowe as a "new opportunity" (para 5) that arises "following
the unexpected decision of P&O North Sea Ferries to withdraw its ro-ro operations
from Felixstowe" (para 1). It expects the development to increase total capacity at the
port by 1.5 million TEU per annum (para 5).
3.627 As to these statements, it is clear that the proposal is essentially the same as set out in
Hutchison's earlier letter to Hampshire County Council. It is clearly not "new".
Moreover, its re-packaging and presentation in a different timeframe than that earlier
envisaged is clearly not explicable on the basis of Hutchinson having only just learnt of
P&O's "unexpected decision", since this was foreshadowed at a much earlier stage. In
April 2002, P&O announced their intention to consult about the possible closure of the
Felixstowe routes. On 5 July 2002, a further press release announced their operations
at Felixstowe would close on 31 July (ABP/0/138, pp 18 and 21)15.
3.628 Further capacity at Felixstowe will raise competition issues of the kind identified in
Recent Developments unless other ports with their own requirement to meet customers'
needs are allowed to expand (see paras 3.632 to 3.637 below).
3.629 The proposals for Bathside Bay are in conflict with the adopted local plan, which
allocates the site for housing. It proposes the reclamation of a major area of inter-tidal
mud flat. It is plain when looking at a plan that the works proposed are in close
proximity to an area of densely built up urban fabric. Areas of Shotley are predicted to
15
The press release also noted that Stena Line would operate a Felixstowe/Europort service from 1
August to 15 September, after which it would be switched to Harwich.
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receive noise level increases of just over 10db(A) with the container port fully
operational (ABP/0/47, para 5).
3.630 ABP do not regard these problems as being necessarily insuperable, neither do they
oppose the Bathside Bay development. However, if the Secretary of State feels it
necessary to compare the merits of these proposals, he should adopt a more critical
approach to the assessment of them in the context of the Dibden Terminal application
than that carried out by the County and District Councils. When the issues and
problems at Bathside Bay are rationally and objectively considered, the fair conclusion
should be that:

The proposals may not come forward at all. With the level of information currently
available it is simply not possible to say. A planning application will have to be made in
order to address the difficulties of relying on the 1988 Act; and a great deal of work will
have to be done on Environmental Assessment.

It is impossible to say that the proposals will come forward in time to provide a fully
operational deep-sea container terminal, at the point when demand begins to exceed the
supply of UK container port capacity.
3.631 For these reasons ABP submit that the Secretary of State ought not to conclude that
Bathside Bay is a credible or feasible alternative to Dibden Terminal, even in the
absence of the three primary arguments referred to in paragraph 3.609 above.
Competition
3.632 There is a further issue unique to Felixstowe and Bathside Bay among the alleged
alternatives which should provoke in the mind of the Secretary of State the following
question:
Even if Bathside Bay does obtain consent, is it desirable in the UK national
interest that it should obtain consent as an alternative (i.e. replacement) for
further capacity at Southampton?
3.633 It is a fundamental objective of UK national ports policy that competition should be
promoted within UK ports, between UK ports, and between UK and foreign ports. In a
growing market, such as deep-sea container and ro-ro trades, it is essential that the UK
retain a healthy balance between competing ports.
3.634 Modern Ports recognises the importance of competition within the UK ports sector, as
this drives efficiency and makes the ports attractive to customers who have a choice as
to which ports they choose. This in turn makes the UK an attractive location for direct
call and transhipment services that have consequential and beneficial impacts for the
UK economy. Retaining this trade is seen to be in the national interest.
3.635 It is therefore contrary to the UK national interest to allow an excessive amount of
container handling capacity to fall into the hands of one operator. This is already
happening to the point where the Government have said (Recent Developments, para
77):
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Dibden Bay Inquiry - Inspector's Report
With nearly 50% of container throughput being handled by one terminal
operator...competition issues might arise when considering the ownership of
new port capacity.
3.636 With Bathside Bay and the Felixstowe Trinity III extension, Hutchison would control
64.1% of the container terminal quay length in the South East (ABP/5/7, para 9(iv)).
As well as their UK interests, Hutchison also have a major presence in a competing
European port facility, in Rotterdam (Day 21, p13).
3.637 It is neither helpful nor desirable to speculate on the future intentions of Hutchison.
ABP submit, however, that it is relevant for the Secretary of State to bear in mind the
undesirability of concentrating too much port handling capacity into the hands of a
single operator who, if dissatisfied with conditions in the UK, has options in competing
foreign ports. If they were to exercise the options by, for example, concentrating
growth and development of their container operations in Rotterdam, it would have a
seriously adverse effect on the UK national interest. The national policy of enabling
ports to compete on equal terms avoids the prospect of that sort of occurrence.
London Gateway
3.638 ABP do not oppose the re-development of Shellhaven and recognise that, subject to the
provision of appropriate infrastructure, there are substantial land use planning
advantages associated with bringing back into beneficial use those parts of the site
which qualify as "brownfield". ABP nonetheless contend that:

The present applications, even as recently supplemented, are procedurally flawed and
likely to lead to a legally deficient outcome.

The vast majority of the urban regeneration benefits can be realised without any port
development on the site.

Shellhaven is an inappropriate location for a deep-sea container terminal. It would never
be able to act as a hub port. However, it would have the potential to operate as a
successful ro-ro port.
3.639 ABP therefore contend that, subject to the caveats referred to above, London Gateway
should be regarded as a complementary development to the Dibden Terminal, but only
after the application is properly constituted. However, it should not be regarded as a
credible or feasible alternative to a deep-sea container port at Southampton. In this
connection, ABP are involved in the London Gateway Inquiry process. Thus far their
involvement has been limited to ensuring that they are kept properly informed of what
is taking place; and ensuring that some of the more extravagant and inaccurate claims
made about Dibden Terminal in the comparative exercise that P&O have undertaken
are corrected. Their involvement does not signal any acceptance on ABP's part that
London Gateway is an alternative or competitor, which could supplant the need for
Dibden Terminal.
Procedural Matters
3.640 ABP/0/48 describes ABP's understanding of the procedures with which P&O will have
to comply. There has been no attempt to challenge this document. Page 2 notes:
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Dibden Bay Inquiry - Inspector's Report
...until a full environmental statement has been provided, the application
remains incomplete and neither the Secretary of State nor members of the
public are in a position to consider the application.
3.641 P&O are not objecting to the Dibden Terminal. Nevertheless, in January 2002 P&O
chose to provide a copy of their draft Environmental Statement and supporting
documents to the Dibden Terminal Inquiry.
3.642 ABP noted that the draft Harbour Empowerment Order (HEO) together with the
accompanying draft Environmental Statement was seriously flawed in a variety of
ways. This was drawn to the attention of the DTLR and P&O in letters dated 20
February (ABP/0/56, letter to P&O and Attachment 5). The response from P&O was to
confirm that the HEO Environmental Statement was in draft; and that the Secretary of
State was not entitled to consider it until it was no longer in draft. At the stage of the
Dibden Inquiry when alternative solutions were being considered, the matter was left
there, with the London Gateway HEO still in draft and the various legal and procedural
errors left in place.
3.643 Since then the HEO has been taken forward, and a further Environmental Statement has
been produced. A copy of this was sent to the Dibden Terminal Inquiry, but with no
indication as to what should be done with it.
3.644 In ABP's view, the application and the Environmental Statement procedures are still
deficient. In particular, it is now clear beyond doubt that at the beginning of the
application process there was no Environmental Statement that was an accessible
whole. It may be necessary to consider this in the light of the judgment in R v
Secretary of State for the Environment ex parte Berkeley (NFDC/0/3, Case 8). In
addition careful consideration will be required as to whether the application is
substantially different from that which has been assessed. If the powers sought do not
relate to the development assessed, the application would fail the test established in R v
Rochdale ex parte Tew (NFDC/0/3, Case 6).
3.645 Having regard to these matters the Secretary of State should approach with caution
objectors' claims that the London Gateway proposals in their current form represent a
credible, feasible or plausible alternative to Dibden Terminal. Rather he should follow
the procedure he adopted in the recent Felixstowe decision and consider each proposal
on its merits (ABP/0/121, p3, para 2).
Urban Regeneration Benefits
3.646 The London Gateway applications for the logistics centre, the port, and the associated
rail improvements are separate. This would allow the warehousing in the logistics
centre to proceed as a free-standing proposal, independent of any port development.
This was emphasised at the London Gateway pre-inquiry meeting (ABP/2/26,
Appendix 2, para 7.9). The position with regard to employment generation is that the
vast majority of jobs would be generated by the non-port uses, the Overarching
Environmental Statement stating (HCC/4/9, Section 1, para 1.7.3):
When fully operational, the landward part of the site would provide some
14,535 direct jobs. The port would add another 1,915 jobs, making a total of
16,450.
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3.647 No-one has suggested that the grant of consent at Dibden Terminal would prevent the
non-port uses at London Gateway from being developed. These developments in turn
would substantially fulfil the ambitions of RPG9 and RPG9A to regenerate this area
and provide a much-needed boost for the PAER. Thus, insofar as the County and
District Councils are trying to advance a case against Dibden Terminal on the grounds
that a grant of consent would frustrate or delay the achievement of RPG9 objectives in
the Thames Gateway, their case is entirely misconceived.
3.648 But it goes further than that. It is not ABP's case that no port development can or
should occur at London Gateway. When he was asked whether London Gateway could
perform a role in terms of UK ports and making appropriate capacity available, Mr
Garratt said (Day 29, p56):
Without question. When it was announced that the refinery was closing ...the
initial reaction most people had in the industry was that here was an
opportunity for a ro-ro site.
3.649 Accordingly, the employment generation arising from the more general port uses
anticipated in the application could still proceed, regardless of what happens at Dibden
Terminal. The regeneration benefits would accrue, and the policy objectives in the
Regional Planning Guidance would be met. In this way, the London Gateway
proposals are entirely complementary to those at Dibden.
The Inappropriateness of the Site for a Deep-Sea Container Port
3.650 Whilst ABP do not wish to be unduly critical of the overall London Gateway proposal,
there are a number of planning and practical concerns relating to the proposed deep-sea
container port. There is also a substantial body of local opinion opposed to the
development of this site. This is clear from the newspaper articles and the representations from
SPEAC - Shellhaven Project Environmental Action Committee (ABP/2/9).
3.651 As to planning matters, firstly, some 93ha of the site proposed for the port development
would have to be reclaimed from the Thames riverbed, compared to 75ha existing.
Having regard to the proportion of the site that would be "greenfield" (or "bluefield")
the Environmental Statement is wrong to characterise the port site as "brownfield".
3.652 Secondly, the proposals anticipate the compulsory acquisition of extensive areas of
SPA for mitigation works. In ABP's view, it is inconceivable that this proposal would
not generate an objection from English Nature. As a result, P&O would have to
concede an adverse impact on the integrity of the European site, with the attendant
consequences for the application of the Habitat Regulations.
3.653 Thirdly, the proposals seek consent to dredge as far as the Sunk, a distance of some 80
kilometres. However, it is by no means clear from the Environmental Statement how
much material would be moved, where it will be moved to, or what the consequences
of that might be.
3.654 As to the practical concerns, the location of London Gateway raises a potentially
serious problem from the container shipping point of view. It is on a bend in a wide
river that is likely to be troubled by prevailing winds. The Environmental Statement
anticipates that berthing, loading and unloading would be affected for 23 days per year
because of adverse weather conditions. Inevitably this would be seen by the shipping
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Dibden Bay Inquiry - Inspector's Report
industry as a major drawback because the economics of their operations are finely
balanced and they need to provide a delivery service which is certain and reliable.
They are likely to react unfavourably to the prospect of days of disruption spread
randomly throughout the year.
3.655 A second and equally fundamental problem is that the dredge depth proposed in the
application may not be achievable in practice. ABP do not invite the Secretary of State
to form a view about this at this stage, let alone decide the matter. However, it is
relevant when considering whether London Gateway is a credible and feasible
alternative, to note that Jacobs Gibb - well respected consultants in this area - have
assessed the proposals and concluded:
If unpredictable negative impacts were to occur and could not be rectified the
currently proposed dredging depths may not be achievable (ABP/2/8,
Appendix 8, p13).
3.656 Mr Penfold on behalf of the County and District Councils also commented on the likely
affect of these limitations on the prospects of London Gateway acting as a container
port. His initial reaction to the project was one of scepticism. In this regard, he noted:
When I first heard about this project, I thought .... they will obviously have
problems with water depth access, so I would suspect that it will be involved
in what we might call the secondary deep-sea trades, smaller volumes and
smaller volume ships, probably with a lot of intra-European movement as well
(Day 21, pp48-49).
3.657 It is important to note that Mr Penfold expressed this view before he or the Inquiry
were made aware of the physical constraints on London Gateway discussed below.
These physical constraint issues, added to the points he was aware of, could only lead
to increasing his "scepticism" of its chances of attracting deep-sea container trades.
3.658 The first of these concerns the potential difficulties in providing an adequate rail
connection to this site. In this regard, the Councils note that the East of England Local
Government Conference believes that a Lower Thames Crossing and other
infrastructure investments may be needed to meet the demand for passenger and freight
movement in the Thames Gateway (HCC/4/15 para 3.14 and HCC/4/17, para 5.21).
However, they do no show how these would be funded. Neither do they show how the
capacity constraints at the southern end of the West Coast Main Line would be
overcome. London Gateway traffic would have to negotiate the congested north
London rail network and the southern end of the West Coast Main Line. Dibden
traffic, on the other hand, would be able to avoid these areas, by using the improved
Cherwell Valley route and a route through the West Midlands to join the West Coast
Main Line at Stafford.
3.659 All of these problems become particularly serious when the London Gateway site is
being considered as a potential deep-sea hub port for containers, but are less significant
when considering its operation as a general or ro-ro port. But perhaps the decisive
blow to its hopes of acting as a deep-sea container port arises when the physical
constraints of this location compared to the size of ships anticipated in the future to
serve the deep-sea container market are considered. In this regard, the London
Gateway Environmental Statement initially suggested (ABP/5/12, p27):
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Dibden Bay Inquiry - Inspector's Report
The largest container ships expected to call at London Gateway (Design Ship)
has been taken as a 14,000 TEU containership with the following overall
dimensions:
(a) Length
350m
(b) Beam
57m
(c) Draught
15.0m
3.660 This compares to the largest ships currently in use - The Maersk 'S' Classes - which has
these dimensions and a capacity of around 8,000 TEU:
(a) Length
347m
(b) Beam
42.8m
(c) Draught
14.5m
3.661 And it contrasts with the largest ship which it is expected can be sensibly designed for
commercial use. This would carry around 12,500 TEU with dimensions:
(a) Length
381m
(b) Beam
57m
(c) Draught
14.5m
3.662 These maximum design parameters should be treated with weight because they arise
from an informed source (Tozer and Penfold) after careful and detailed analysis
(ABP/5/3, Appendix 5). However, they cannot be reconciled with the dimensions from
the London Gateway Environmental Statement where a ship 30m shorter, is shown as
carrying 1,500 TEU more.
3.663 The London Gateway Environmental Statement accepts that the manoeuvring distance
required to swing a ship under favourable tug assisted condition is 1.5 to 1.6 times its
length. If 350m is accepted as the maximum length of ships calling at the port, then
the manoeuvring area would have to be between 525m and 560m wide. For a 400m
ship the manoeuvring area required would be 600 to 640m wide. As these are physical
dimensions there is no room for compromise. These are minimum requirements, which
must be met.
3.664 In fact the Environmental Statement shows a manoeuvring area of 503m. The ships
will not fit. The shipping lines will know this, so the ships will not be sent. The port
will not act as a receiver of deep-sea container carriers.
3.665 The limits of deviation, moreover, extend into extremely shallow water, which is not
very far from inter-tidal mud flats. These factors caused Mr Garratt to conclude:
.... a ship greater than 350m in length could not be accommodated without
transgressing the limits of deviation shown here and it appears from the charts
as though that would then take us into areas on or above the low water mark
(Day 29, p74).
3.666 Even this conclusion can only be arrived at by abandoning the 1.5/1.6 design
parameter. It is therefore clear that London Gateway could not accommodate the
largest ships afloat today, let alone those expected in the future.
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Dibden Bay Inquiry - Inspector's Report
3.667 ABP were conscious when giving evidence that the transcript was being carefully
studied by those advising P&O. Discussion of the London Gateway Environmental
Statement was left with the comment ".... there may of course be an explanation for all
this" (Day 29, p76).
3.668 The response was muted. Solicitors acting for P&O wrote to the Inquiry on 14
February (CD/INQ/12). In the letter they quibbled with the language used by Mr
Garratt to describe the steepness of the slope within the limits of deviation, and the
depth of the water in the inter-tidal area. They did not challenge or in any way attempt
to contradict the evidence given by Mr Garratt on the matters of fundamental
importance as to design size of ships, limitations on the manoeuvring area or the
subsequent conclusion that the port would not be able to accommodate deep-sea
container vessels. This perhaps serves to emphasise that what has been applied for is
not specifically a deep-sea container terminal, but a general port.
3.669 Even if the manoeuvring problem could be overcome London Gateway would also face
serious problems on account of the length of the approach channel. The comparison
with other ports in the Environmental Statement is unrealistically favourable as it fails
to take into account the length of the access channel and the time taken to navigate it.
At London Gateway the access channel has a total length of around 96km.
Southampton and Felixstowe are both much closer to the open sea, as are some foreign
ports.
3.670 It may be for this reason that P&O predict only 10% transhipment trade at London
Gateway. However, Mr Penfold's evidence is that the level of transhipment services
required to meet customer requirements is around 15%. Even if 10% transhipment
trade were achieved, which is unlikely in view of the location's constraints, there is no
prospect that London Gateway could function as a hub port. It would not operate in the
same market as Dibden Terminal and cannot therefore be regarded as an alternative to
it. This point is of particular significance given the importance of transhipment to the
UK economy. National ports policy seeks to promote the opportunity for UK ports to
capture transhipment trade. To eliminate Dibden Terminal, which could capture
transhipment trade, in favour of London Gateway, which could not, would run counter
the fundamental policy objective.
3.671 In the light of all these issues, it is appropriate for the Secretary of State to have regard
to the scepticism expressed by both Mr Penfold and Mr Garratt regarding London
Gateway's prospects.
3.672 There are clear reasons for supposing that London Gateway will not come forward as a
deep-sea hub port of any significance that should lead the Secretary of State to
conclude it is not a credible, feasible or plausible alternative to Dibden Terminal.
Reliance on it to fulfil such a role would be a very risky strategy. The stakes are very
high with the health of the national economy at risk.
Timing
3.673 If, contrary to these submissions, the Secretary of State were to conclude that London
Gateway could present an alternative possible solution, then the proposal's ability to
come forward in time to address the critical shortage of capacity which will arise in the
2005/6 period needs to be considered.
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3.674 In this regard, it is common ground that construction of London Gateway could not
commence until 2004 at the earliest. Substantial reclamation would be required to
construct the port; and the dredge is proposed to take 5.25 years to complete.
Accordingly, a fully laden ultra large container ship would not be able to access the
terminal until around 2010. The proposal therefore becomes largely irrelevant, as it
does not have the potential to meet the UK's needs when they will most need to be
addressed.
Other Sites
Isle of Grain
3.675 The only site in addition to Bathside Bay and London Gateway which the County and
District Councils refer to and rely upon is Isle of Grain. The basis of their case here is
that port development was being actively pursued by the landowners. However, their
witness accepted that the only sense in which that site could be said to be actively
pursued is through some sales literature produced by British Gas, which had a closing
date for offers of 14 May 1999 (HCC/4/6). No evidence of any offer pursuant to that
invitation was produced, and the Councils' witness confirmed that he was not aware of
any application that had been submitted to promote the project.
3.676 The Medway Council objected to Dibden Terminal, but explained this was only so that
they could provide factual information about the Isle of Grain, not because they
opposed Dibden Terminal in principle. They did not suggest any port scheme was
coming forward in respect of the Isle of Grain.
3.677 Despite acknowledging these points, the County and District Councils' witness adhered
to the view that this was a relevant alternative. He was asked to suggest how long the
Secretary of State should wait for the project to come forward but he could not say
(Day 31, p19). Against this background the proposal should be regarded as an
immaterial consideration.
Scapa Flow/Hunterston
3.678 Scapa Flow and Hunterston were promoted by Dr Baird on behalf of RADBP.
However they chose not to call a witness to put their case; rather Dr Baird's proof was
left before the Inquiry as a written representation. The absence of an opportunity for
ABP to test his evidence necessarily reduces the weight which should be attached to it.
3.679 In any event the Scapa Flow proposal is demonstrably unrealistic. It proceeds in
reliance upon the proposition that ship size will increase to 18,500 TEU. It asserts that,
as a consequence of this, "estuary ports" will be of little relevance and in future cargo
will be transhipped from deep-sea hubs.
3.680 The Hunterston proposal is conceptually the same as Scapa Flow. Neither would be
economically viable. This is because the additional costs associated with the feeder
operation would be several times more than the savings that would be achieved by the
deep-sea "mother ship" (ABP5/24, response to RADBP/5/5, paras 4-9). Moreover,
even if such a proposal were to proceed with the benefit of a massive subsidy, it would
have a minimal impact on the need for Dibden Terminal (ABP5/7, para 21).
Introducing a hub port at Hunterston would not reduce the total number of containers
handled at English and North European ports. In theory, some of the transhipment
traffic might be relocated to shallower (short-sea) container ports. However, in practice
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it is unlikely that these ports would have spare capacity, having regard to the predicted
growth in short-sea traffic. Whilst Hunterston has attracted feeder services, it will
never function effectively as a UK container hub port.
3.681 Interestingly the promoters of Hunterston rely on a shortfall in Northern Europe port
capacity as one of the factors that would encourage shippers to consider Hunterston
(RADBP/26/2, p9). This is contrary to the case put elsewhere by RADBP, which
indicates surplus capacity in north European ports.
Do Nothing
3.682 Further port capacity is essential and must be provided in the short-term for the reasons
set above (see paras 3.438 et seq above). The "Do Nothing" option would quickly lead
to a situation where the national economy would be significantly harmed by overutilisation of existing capacity.
Alternatives Within Southampton
3.683 Counsel for the County and District Councils introduced the evidence of their witness
covering alternatives within the Port of Southampton as follows:
I do not intend to lead evidence or to make any submissions on the matters ....
other than those relating to Berths 201 and 202 .... As far as this Inquiry is
concerned we are not asking the Secretary of State to take into account the
alternatives within the port .... other than 201 and 202 (Day 31, p142).
3.684 This is an important concession because it immediately removes from consideration the
remaining areas of the dock estate which the County and District Councils initially
wrongly thought may provide a viable alternative solution. It leaves just the additional
capacity that the Councils claim can be obtained from Berths 201 and 202. Their
witness accepted that, even on his best analysis, this would amount to only 400,000
TEU per annum and agreed that "it does not represent a complete alternative to Dibden
Terminal" (Day 31, p164).
3.685 The Councils' position became even weaker when their witness confirmed he was
advancing the prospect of converting Berths 201 and 202 ".... simply as possibilities
...." and then confirmed that he had considered neither the commercial viability of
trying to carry out this exercise, nor the market considerations that would apply.
However, he did accept that it would be important to consider both of these matters if a
conversion was to be implemented in practice.
3.686 In the light of these matters, he accepted that the biggest effect that conversion of
Berths 201 and 202 could have would be to delay, for a very short period, any
requirement for Dibden Terminal (Day 31, p165).
3.687 Taken together, these matters conclusively establish that there is no possibility of
finding an alternative solution to Dibden Terminal within Southampton. Furthermore,
given that the use of Berths 201 and 202 for containers is simply a possibility, which is
subject to important material considerations that have not been examined, the Secretary
of State should conclude that he is unable, on the evidence presented by the Councils,
to conclude that that option might be credible, feasible or plausible.
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3.688 ABP's first submission on the evidence of the Councils on alternatives within the Port
of Southampton is therefore that it is of no relevance to the overall decision that the
Secretary of State must take. Nevertheless, it is important to consider the way in which
the Councils' witness reached his overall conclusion that SCT could increase its
capacity to 2.2 million TEU per annum, because this discloses some basic errors.
3.689 Firstly, his analysis assumes capacity could rise to 1.8 million TEU per annum within
the existing operational area of SCT. Although ABP's analysis, adopting a robust
approach, assumes this will happen when predicting future demands for further
capacity, the approach is generous. In practice a further berth would need to be
deepened and the crane rails strengthened. The operating system and yard machinery
would have to be completely changed. The Managing Director of SCT confirmed this,
concluding (ABP/1/8):
It should be stressed that any increase in capacity towards the 1.8m TEU level
remains theoretical and currently does not form part of our accepted strategic
plan.
3.690 From that generous base the Councils' witness went on to add an "additional" capacity
of up to 400,000 TEUs per annum, derived from Berths 201 and 202. Two areas of
land were identified to support this additional capacity. However, one of these areas is
already in use by SCT for container stacking (Area Z2; see HCC/5/3, Plan 6). There
was some debate about whether this amounted to double counting, but it is unimportant
in the light of his subsequent acceptance that incorporation of Berths 201 and 202 was
simply a "theoretical exercise" unrelated to the realities of running a port (Day31,
p191).
3.691 The suggestion therefore fails the test of looking for credible, feasible or plausible
alternative solutions. This point was, in any event, accepted by the witness in his
initial report to Hampshire County Council which concluded (HCC/5/4, p20):
There are no realistic opportunities for major expansion of container facilities
within the existing port area due to the physical limitations on berth frontage
and available back up areas.
3.692 The lack of realism in the suggestion is further emphasised by comparing the additional
advantage to SCT (a "less than ideal" configuration producing 400,000 TEU additional
capacity) with the estimated cost to SCT of achieving that advantage (£60 to £70
million) (Day 32, pp7 and 12). No viability exercise was undertaken to show whether
the proposal had any prospect of being implemented in the real commercial world
within which the port must operate.
3.693 RADBP were not as realistic as the County and District Councils in that they persisted
with the suggestion that the remainder of the dock estate represents a viable alternative
solution. However, they failed to attend to present oral evidence; accordingly there was
no opportunity to test their evidence.
3.694 Their evidence moreover conflicts with the professional judgement of the County and
District Councils' own independent expert. It also conflicts with the evidence of the
Port Director (see paras 3.513 to 3.515 and 3.560 to 3.565 above) who has the day to
day hands on experience of running the port, and who did attend the Inquiry to make
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himself available for cross examination. For these reasons the Secretary of State should
attach little weight to RADBP's evidence on this matter.
Conclusion
3.695 The evidence leads inexorably to the conclusion that there is no alternative solution to
solving the problem which has been identified. It is only possible to consider the value
of other specifically identified sites in the highly artificial circumstances of ignoring
ABP's case and the uncontrovertible evidence that:

the need is located in and related to Southampton;

to direct the need to be met elsewhere would be contrary to recent and current national
ports policy, which seeks to encourage successful ports to bring forward proposals to
meet the demands of their customers; and

all identified sites which are said to be alternatives are in fact required in addition to
Dibden Terminal, in order to meet the ongoing remorseless growth in demand for deepsea container capacity.
3.696 Even if one were to ignore these matters, the objectors were only able to identify two
alternative locations where it could be said that there was any expectation that the
market would treat them as a possible destination for deep-sea containers and the
owners or operators had shown an interest in actively pursuing proposals (or three if
Bathside Bay and redevelopment of Landguard Terminal at Felixstowe are counted
separately).
3.697 There is nothing in law or policy which requires the Secretary of State to rank these
proposals against each other and the Inspector rightly rejected an invitation from RSPB
that he should do so. In any event there is insufficient information on these schemes to
allow that exercise to be carried out in a fair and even handed manner.
3.698 Insofar as comparative judgements ought to be formed this should occur in the context
of a NATA. This in turn requires that serious consideration should be limited to
schemes which are plausible. The Inspectors chose the adjectives "credible" and
"feasible," but whichever description is used, the point is that the exercise should be
rooted in reality and the Secretary of State should reject any invitation to speculate on
hypothetical possibilities.
3.699 With this framework in mind, ABP have been able to identify a series of problems that
the current applications for Bathside Bay and London Gateway face. These should
persuade the Secretary of State that neither scheme provides a plausible, credible or
feasible alternative solution for meeting the need which has been identified, even if,
irrationally, one were to assume the needs of Southampton could be met elsewhere.
These reasons relate to matters of law, policy and fact as set out above. The schemes
may well have a bright future in one way or another serving different markets and
needs, and ABP does not adopt an antagonistic attitude towards them. However, they
are not alternatives to Dibden Terminal.
3.700 A great deal of time and resources have been devoted by ABP to rebutting a case
suggested by some objectors to the effect that the existing dock estate could provide an
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alternative solution to the problem identified. In the event, only the County and District
Councils attended to give oral evidence on this matter. They began their evidence by
conceding that no part of the existing estate would provide an alternative solution with
the exception of Berths 201and 202; and that even if that were right, far from being an
alternative solution which would eliminate the need for Dibden Terminal, it would
simply delay by a small time the point when Dibden Terminal was needed.
3.701 Despite exhaustive enquiries, the evidence indicates that there is no alternative solution
which can be utilised to meet the identified need. Against a background of an
overwhelming case as to the need for Dibden Terminal, the evidence available as to
alternative solutions can properly be described as lacking any substance whatever.
Dredging, Sediment and Erosion
Estuarine Morphology
3.702 ABP have made an intensive study of the likely effects of the proposed development on
the physical form and functioning of Southampton Water. The results of this are
summarised in Chapter 13 of the Environmental Statement and are set out in detail in
Technical Statements TS/ME1 to TS/ME7.
3.703 At present, there is no single method of analysis or modelling technique that can be
relied upon to predict changes in estuarine morphology. The consensus of professional
opinion is that it is necessary to use several different approaches and synthesise the
results, in order to understand how an estuary behaves and how it is likely to respond to
change (CD/ABP/104).
3.704 Accordingly, a number of techniques have been applied to simulate the consequences
of the proposed development. These include the use of "bottom-up" models (the
MIKE-21 suite) to consider hydrodynamic and sediment transport processes; and the
use of a hybrid model (ESTMORF) to simulate the likely long-term response of the
estuary as it adjusts towards a new equilibrium16. Other techniques have been
employed by objectors. Between them, these various approaches describe a range of
possible outcomes. However, following discussions between experts representing the
applicants, English Nature, the New Forest District Council and the Environment
Agency, a measure of agreement has been reached (CD/GEN/14A).
The Agreement
3.705 This agreement has 3 components. First, it has been agreed that one effect of the
proposed Terminal would be the direct loss of 76ha of inter-tidal mudflat and 52ha of
shallow sub-tidal, as a result of the proposed dredging and quay construction works.
Approximately 42ha of the inter-tidal mudflat lost would be above mean low water
(MLW) and would fall within the Solent and Southampton Water SPA and Ramsar
Site.
3.706 Second, it has been agreed that the development would cause a reduction in tidal range
within Southampton Water. This would have the effect of reducing the estuary's inter-
16
The process and hybrid models used by ABP are respectively described in Annexes 6 and 7 of TS/ME2,
“Changes in the Physical Environment of Southampton Water”.
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Dibden Bay Inquiry - Inspector's Report
tidal area by up to 3ha. There would be a corresponding gain of about 3ha in the
shallow sub-tidal area.
3.707 Third, on a precautionary basis, it has been agreed that, during the next 50 years,
additional erosion of the inter-tidal area in Southampton Water as a result of the
proposed development could amount to 10ha. There would be a corresponding
increase of about 10ha in the shallow sub-tidal area. The additional inter-tidal area lost
to long-term erosion as a result of the proposed development would probably consist of
mudflats rather than saltmarsh. About 3ha of this additional eroded area could be
above MLW.
The Effect of the Habitat Creation Schemes
3.708 In assessing the total effect of the proposed development on the morphology of
Southampton Water account must also be taken of the proposed habitat creation
measures (particularly Dibden Creek and the Hythe to Cadland Recharge). The creek
would entail the creation of a new inter-tidal area of 33ha and a new sub-tidal area of
1ha. About 2ha of the new inter-tidal area might be saltmarsh, the remainder taking the
form of mudflat, although it is impossible to be certain about the relative proportions of
these two components.
3.709 It is now proposed that the northern part of the Hythe to Cadland foreshore should be
excluded from the compulsory purchase provisions of the HRO. On the assumption
that this land is also excluded from the proposed recharge, the recharge would have the
effect of increasing the area of inter-tidal mudflat above MLW by some 19ha. It would
also have the effect of reducing the erosion of the adjacent saltmarsh by about 3ha over
the next 50 years.
3.710 In summary, the predicted changes in the morphology of Southampton Water as a result
of the proposed Dibden Terminal17 are as follows (values are in ha):Saltmarsh
Mudflat
>mlw
Total
intertidal
mlw-mlws
mlws-lat
Shallow
subtidal
Direct loss
0
-42
-20
-14
-76
-52
Tidal range
0
0
-1
-2
-3
+3
Erosion
0
-3
-3
-4
-10
+10
Creek
+2
+30
+1
0
+33
+1
Recharge
+3
+19
-14
-6
+2
-2
Total
+5
+4
-37
-26
-54
-40
17
These figures do not include the minimal changes that would result from the Revised Hythe Marina
Bund proposals.
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Dibden Bay Inquiry - Inspector's Report
Net Effect on Designated Areas
3.711 On the basis of this estimate, over the next 50 years there would be a net gain of 9ha in
the inter-tidal area down to MLW. Although there would be net losses in the lower
inter-tidal and sub-tidal, those areas fall outside the designated limits of the SPA, the
Ramsar Site and the cSAC, which are marked by the MLW line.
3.712 The balance of gains and losses in the inter-tidal and sub-tidal areas of Southampton
Water would fluctuate as the proposed development progressed. However, the extent
of the upper shore above MLW, and hence the extent of the designated areas, would be
maintained (ABP/7/4A, Figure 1). The hydrodynamic and geomorphological functions
of these areas would not be significantly altered.
3.713 Modelling undertaken for ABP suggests that there would be very small changes in the
inter-tidal area of the Hamble Estuary. The most pessimistic prognosis suggests a loss
of just 0.5ha over 50 years. The predicted change in the ratio between the tidal prism
and cross-section of the Hamble Estuary would be about 0.04%. The conclusion of
Delft Hydraulics, a leading firm of consultants, is that the Dibden Terminal
development would not have a significant influence on the morphology of the River
Hamble (TS/ME2, Annex 7, p15). Although the Hamble Estuary is specified as an
interest feature within the Solent Maritime cSAC, objectors' fears that it would suffer
significant damage as a result of the proposed development are misplaced.
3.714 English Nature argue that the geomorphological changes identified would result in the
deterioration of the Solent Maritime cSAC, which includes the Hythe to Cadland
foreshore. They have issued advice on the Solent European Maritime Site under
Regulation 33 of the Habitats Regulations (CD/EN/7). Inter-tidal mudflats are an
interest feature of the Solent Maritime cSAC. One of the attributes of this feature, as
identified in English Nature's Favourable Condition Table, is its topography. English
Nature's target for this attribute is that the "shore profile should not deviate significantly
from an established baseline, subject to natural change".
3.715 However, the Regulation 33 advice indicates that the Favourable Condition Table "does
not by itself provide a comprehensive basis on which to assess .... projects" (CD/EN/7,
p23). Furthermore, it explains that "changes that are significantly different from the
target will serve as a trigger mechanism through which some further investigation .... is
taken" (ibid, Box 1). It follows that deviation from the target is not necessarily
unacceptable or harmful - it may simply require investigation. The baseline referred to
in the target has not yet been defined. It would therefore be quite wrong to conclude
that the proposed Hythe to Cadland recharge would be harmful, simply because it
would entail a deviation from the existing shore profile.
3.716 In the context of Southampton Water, the meaning of the term "subject to natural
change" as used in the Favourable Condition Table also gives rise to some difficulty.
This estuary has been substantially modified by past anthropogenic changes. These
have included dredging and reclamation programmes, and the introduction of solid
structures such as quays and sea defences. It is estimated that the effect of these
changes has been a 54% increase in the sub-tidal volume and a 12% reduction in the
tidal prism, relative to the system that existed before any reclamation and dredging took
place. The erosional trend which currently affects the inter-tidal area is, at least in part,
a response to this continuing human interference. The estuarine system is a highly
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Dibden Bay Inquiry - Inspector's Report
constrained, artificial and managed environment. Without further intervention, existing
habitats will continue to erode away; they cannot be restored to a favourable condition
as a result of "natural change". In the circumstances, it is inappropriate to apply the
Favourable Condition Table in a strict, regulatory fashion. The table constitutes advice,
and should be treated as such.
Local Impacts
3.717 A number of objectors have raised issues relating to particular instances of
sedimentation or erosion which, they claim, would result from the proposed
development. An agreement has now been completed which addresses the points
raised by the Hythe Marina Parties concerning erosion and the deposit of sediment in
and around Hythe Marina. As a result the relevant parts of their objections have been
withdrawn (HMV/0/6).
3.718 Agreements have also been reached with EniChem UK Ltd, Laporte Performance
Chemicals Ltd, Shanks Chemical Services Ltd, the Esso Petroleum Co Ltd, Southern
Water Services and the Ministry of Defence, which have led to the withdrawal of
objections relating to sedimentation (ABP/0/58).
3.719 The Hythe and Dibden Parish Council fear that the proposed development would
exacerbate the erosion of the foreshore at Hythe. However, detailed modelling suggests
that there would be little change in the direction or speed of currents in this area, or in
the pattern of erosion (CD/GEN/14(3), Drawings 1 to 16). The existing sea wall at
Hythe is unlikely to be at any greater risk as a result of the proposed scheme.
3.720 The Esso Sailing Club have raised concerns about the risk of increased siltation in
Ashlett Creek. Ashlett Creek has been subject to siltation for many years. This may
well be due to the effect of the jetties at the Fawley Oil Terminal. These cause the
current to slow in the vicinity of Ashlett, with the result that suspended sediment
precipitates out of the water column at this point. There is no evidence to support the
view that significant siltation in Ashlett Creek has resulted from past works undertaken
by ABP, or would result from the present proposals. The sediment transport model
indicates that the proposed development would have little or no effect on the existing
problem faced by the Esso Sailing Club. In any event, sediment could not be removed
from Ashlett Creek without damaging protected habitat within the SPA.
3.721 The moorings used by the Hythe Sailing Club will be at least 50m from the edge of the
proposed recharge area. ABP have made a general commitment that "if siltation of
moorings and mud berths in the vicinity of the dredging takes place, ABP will
guarantee to dredge the moorings" (CD/GEN/13, para 4.12). A legal agreement has
been prepared specifically with regard to the Hythe Sailing Club's moorings.
Cumulative Impacts
3.722 Account has been taken of the cumulative impact of the proposed scheme and other
planned developments in the area (CD/ABP/102). Given the limited scale of change
due to these other projects, it is not considered that there would be any in-combination
effects that would alter the evaluation of the Dibden Terminal in isolation.
3.723 The projects taken into consideration in this assessment include all those for which
planning (or other) permission has been granted, or is currently sought. Account has
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Dibden Bay Inquiry - Inspector's Report
also been taken of projects that have been completed since the designation of the Solent
and Southampton Water SPA in 1998, but which continue to have a potential affect on
the marine environment. This approach reflects the advice in Managing Natura 2000.
3.724 Objectors refer to a number of projects that they consider should have been included in
the cumulative impact assessment. One of these is the proposed Royal Pier
development in Southampton. However, no formal planning application has yet been
made for that scheme, so it has been excluded from consideration. Similarly, there
have been no formal proposals for dredging at RAF Hythe; and planning permission
has now been refused for the Cracknore Marina development. Contrary to the assertion
of RSPB, the effects of the capital dredging of the deep-water channel in 1996 were
taken into account in the preparation of the Environmental Statement (ABP/7/4A,
Appendix 3).
3.725 At the Secretary of State's request, consideration has been given to the impact of further
channel deepening in Southampton Water, to a depth of -13.8m CD (CD/ABP/103).
The conclusion is that this would cause a further small reduction in tidal range and
some additional erosion, leading to a further net loss from the inter-tidal area of about
2ha. However, no such deepening is currently proposed. It remains ABP's view that the
Dibden Terminal would not necessarily require such a measure.
The Hythe to Cadland Recharge
Contamination
3.726 The Hythe to Cadland recharge would entail the deposit of dredged sediment on an area
of foreshore measuring some 3km long by 600m wide. One purpose of the recharge
would be to create an improved feeding resource for birds, which would help offset the
loss of the Dibden foreshore. In addition to extending the area of mudflat exposed at
MLW, the recharge would also cap contaminated areas with clean sediment. Evidence
of the present level of contamination is contained in the Environmental Statement and
the supporting technical document TS/ME5 (Table 2 and Figure 6). This shows that
there are elevated levels of contamination around the outfalls from the Fawley Refinery
at the southern end of the Hythe to Cadland foreshore; and around the outfall from the
EniChem factory, in the central section of that foreshore. There is also evidence of
localised contamination at Sampling Point X, at the northern end of the Hythe to
Cadland foreshore.
3.727 This pattern of contamination is confirmed in other data sources. For instance, a study
of polycyclic aromatic hydrocarbons (PAHs) in harbours undertaken for the former
DETR by WRC-NSF Ltd reveals that there are elevated levels of contamination close
to a petrochemical plant's outfall on the Hythe to Cadland foreshore (ABP/0/63).
Similar results are shown in a "due diligence" survey, recently undertaken for ABP by
Enviros Aspinwalls (EN/0/15). A trial recharge experiment undertaken in 2001 also
revealed elevated levels of hydrocarbon contamination on the northern and central parts
of the Hythe to Cadland foreshore (CD/ABP/101, Table 5 and Figure 2).
3.728 Total petroleum hydrocarbon (TPH) contamination has been measured in 46 samples
taken from the Hythe to Cadland foreshore (ABP/7/11). The average level of
contamination across the whole foreshore is 1,098 mg/kg (ABP/7/1, Table 5). This
compares with an average figure of 225mg/kg for TPH contamination on the Dibden
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Dibden Bay Inquiry - Inspector's Report
foreshore (ABP/7/4A, Table 4)18. The elevated level of contamination may well
account for the relatively low numbers of waterfowl that currently feed on the Hythe to
Cadland foreshore. The proposed recharge should improve the quality of the area as a
habitat for birds.
3.729 The recharge would also retain sediment in Southampton Water and help protect the
mudflat and saltmarsh between Hythe and Cadland from erosion. This area is covered
by multiple nature conservation designations (SPA, Ramsar Site, cSAC and SSSI). The
saltmarsh here is subject to "coastal squeeze", the process whereby an eroding
saltmarsh is prevented from retreating landwards by hard structures, such as roads or
sea defences. If no action is taken, the designated area will continue to diminish in size
as a result of ongoing erosion and the expected rise in sea-level.
Advantages of a Capital Recharge Scheme
3.730 English Nature and the New Forest District Council support the concept of retaining
sediment within Southampton Water so as to reduce erosion (CD/GEN/14A, para 23).
However, there are differences of opinion about how best to achieve this objective. In
ABP's view, a capital recharge of the type proposed offers significant advantages. In
particular, the placed material would consolidate within a relatively short time span.
The method of placement would be efficient, and would achieve clear, measurable
targets. A contaminated habitat, which is currently eroding, would be improved and
protected. New habitat would be created. The scheme would be funded by ABP as
part of a major development proposal. It would take place in an estuary that is well
documented and about which much is already known.
Past Experience
3.731 The present proposals seek to draw on past experience. Capital recharge schemes of
this type have been successfully completed elsewhere. In the Good Practice Guidelines
prepared in 1999 for English Nature's UK Marine SACs Project (CD/ABP/105, 91) it is
noted that:
.... although the methods and techniques used to recharge and restore intertidal habitats in the UK are novel here, the methodologies used in these
schemes have in the vast majority of cases been tried and tested elsewhere,
particularly in the USA. Over the past 25 years the US Army Corps of
Engineers have developed and improved techniques to place dredged material,
whilst meeting environmental standards, which has resulted in the completion
of several thousand wetland restoration schemes. There are useful lessons to
be learned from these schemes ...
Much of the early work of the US Army Corps of Engineers is recorded in their
manual, Beneficial Uses of Dredged Material, which was published in the 1980s
(CD/ABP/108).
3.732 In 1996, the DETR published Guidelines for the Beneficial Use of Dredged Material,
which is based on an appraisal of more recent international experience. This states that:
18
Sources for comparative analyses of contamination and particle size distribution on the Dibden foreshore
and the Hythe to Cadland foreshore are set out in ABP7/7.
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Dibden Bay Inquiry - Inspector's Report
Beneficial uses of dredged material is by no means a new concept. ....
However, there is now a developing emphasis on environmental management
which has resulted in a change in approach whereby dredged material is
regarded as a resource rather than a waste. Many beneficial uses have now
been tried in different parts of the world (CD/GOV/124, page v).
The guidance refers to the creation of inter-tidal mudflats by means such as those
proposed for use in Hythe to Cadland recharge.
3.733 In 1998, ABP Research produced a Review of Coastal Habitat Creation, Restoration
and Recharge Schemes (CD/ABP/109). This updates the record of achievements both
in the UK and abroad. Also in 1998, Mary C Landin published a paper outlining the
work of the US Army Corps of Engineers in undertaking "several thousand dredge
material beneficial use projects". These include "wetland restoration and creation
and/or protection projects" (ABP/7/5).
3.734 A report commissioned by MAFF, entitled The Beneficial Use of Muddy Dredged
Material, was published in 2001. This notes that dredgings have "been used on a large
scale (up to 100,000 cubic yards) to construct mudflat habitats" (CD/ABP/106). It
refers to successful mudflat creation schemes in the UK, particularly at North Shotley
on the Orwell Estuary; at Parkstone Yacht Club in Poole Harbour; and elsewhere. The
present proposals seek to build on this previous experience.
3.735 The report commissioned by MAFF argues that:
Without positive action it seems unlikely that .... the science associated with
demonstrating habitat value in the UK will progress sufficiently for the risks
and uncertainties associated with large scale placement schemes to be
overcome. If this does not happen, the implementation of a national
sustainable flood defence policy will be endangered.
If the beneficial use of muddy dredged material is to become part of the
implementation of a policy of sustainable flood defence then larger scale
schemes will be required. .... The larger scale schemes will need to be
monitored extensively both in terms of how they respond over time but also in
terms of their impact on the system within which they function. Opportunities
for implementing such schemes will be limited and if it is necessary for the
scheme to be within a well-documented estuary then it is clear that there are
likely to be only a few UK estuaries where such large trial or demonstration
schemes could be implemented (CD/ABP/106, p28).
These principles are not confined to flood defence schemes. Southampton Water is
clearly one of the "few UK estuaries" to which reference is made. Dr Dearnaley, on
whose evidence the Environment Agency and the County and District Councils rely,
is one of the authors of The Beneficial Use of Muddy Dredged Material. He
concedes that there is an urgent need to undertake some larger sediment placement
schemes, in order to gain experience and develop techniques. It is necessary to build
upon the lessons gained from smaller schemes, whilst managing any risk.
3.736 The Beneficial Use of Muddy Dredged Material provides guidance on factors that will
influence the success of a scheme (CD/ABP/106, Section 7). Dr Dearnaley concedes
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that ABP have taken all of these factors on board in preparing their scheme for the
Hythe to Cadland recharge.
3.737 Similarly, The Beneficial Use of Muddy Dredged Material lists factors that might
hinder success. It says that:
The main objections to a beneficial use scheme are usually associated with the
implications to existing habitats in the area. There is some uncertainty
involved in establishing the impact on habitats over the lifetime of the scheme
and establishing the success of replacing, possibly, one desirable habitat with
another. This uncertainty presents a barrier to the larger scale use of material
for the realignment of some coastal flood defences. The larger scale use of
material appears to be fundamental to achieving future habitat targets (ibid,
p24).
Risk is a concomitant of virtually any scheme of human endeavour. Given
appropriate safeguards and mechanisms to manage risk, the time is now ripe to
proceed with appropriate schemes of this type. Misplaced timidity (and a
misapplication of the precautionary principle) will result in the loss of opportunities
for the creation and maintenance of habitat by the beneficial use of dredgings. The
recharge would provide a rare opportunity to learn from a large-scale scheme of this
sort.
3.738 The mudflat creation scheme at Parkstone Yacht Club, which took place in 1994/5,
demonstrates how a considerable measure of success can be achieved in the provision
of new habitat. Appendix 11 of The Beneficial Use of Muddy Dredged Material
records that:
.... the diversity of habitats found in the immediate area of the development is
more extensive now than before the scheme was initiated. Wading birds and
wildfowl have been attracted to the area and utilise the mudflat for feeding,
roosting and nesting purposes.
3.739 The North Shotley scheme dates from 1997. It was undertaken as a trial exercise, in
which dredged material was placed on a foreshore that had been subject to severe
erosion. The results have been encouraging (CD/ABP/106, Appendix 4). A more
substantial habitat creation scheme is now planned on adjacent parts of the foreshore, in
connection with the proposed extension of the Trinity Terminal in the Port of
Felixstowe (ABP/0/61). That scheme has a number of features in common with the
proposed Hythe to Cadland recharge.
3.740 One of the recommendations of The Beneficial Use of Muddy Dredged Material is that
the monitoring of larger schemes, such as the proposed recharge, should focus on the
initial construction stage, and on clearly defined measures of success. It indicates that
"this may require a flexible approach to .... the management of the scheme". In the
present case, monitoring would focus on the initial pilot exercise. The techniques to be
used in ensuing stages of the project would be determined in the light of the pilot
exercise and would reflect the lessons learned.
3.741 The Hythe to Cadland foreshore is the most suitable location for a capital recharge
scheme in Southampton Water. It is a lee shore, with relatively low exposure to the
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prevailing wind and wave action. The saltmarsh is currently eroding and the recharge
would help control this process. There is a large inter-tidal area available, at some
distance from the main navigation channel. The recharge material would cover mud
that has been contaminated by discharges from the petro-chemical industries at Fawley.
Trickle Charging
3.742 English Nature and some other objectors advocate the use of "trickle charging" in
preference to capital recharge schemes of the type proposed. However, "trickle
charging" is uncertain and unproven. It entails the gradual release of small quantities of
sediment into the inter-tidal zone. Subsequent movement of the placed sediment would
not be restricted by any containment system, but would be governed by natural tidal
processes.
3.743 In "trickle charging" schemes, only a small quantity of the placed material would be
likely to remain on the foreshore. Such schemes offer limited scope for the restoration
of existing habitat. The placed sediment tends quickly to become re-suspended. This
can have an adverse effect on fisheries as the concentration of suspended sediment
rises. There is also a danger that the sediment might find its way back into the dredged
channels and berths, making the exercise entirely self defeating.
3.744 "Trickle charging" has previously been attempted in an experimental trial on the Hythe
to Cadland foreshore (CD/ABP/101). The trial entailed about 1,000m3 of mud being
deposited on the foreshore from bottom-dumping barges at high water. The trial failed
to demonstrate any lasting change in the bathymetry of the mudflat. Little, if any, of
the placed material could subsequently be traced.
3.745 Similarly, a report on "trickle charge" schemes on the River Stour and at Harwich
Harbour indicates that their contribution in offsetting inter-tidal erosion is unknown
(CD/ABP/106, Appendix 12). In a "trickle charge" experiment on the Medway, a
proportion of the placed material (which contained a tracer) was retained on the intertidal area (EN/1/5). However, in the relevant part of the Medway Estuary, the intertidal area is accreting sediment rather than eroding. It is therefore significantly
different from the Hythe to Cadland foreshore.
The Recharge Material
3.746 Objectors have questioned the suitability of the material to be used in the proposed
recharge. The grading of sediments found on the foreshores at Dibden Bay and
between Hythe and Cadland is similar (TM/ME5, Figure 7). The median grain size of
the surface material at each site is about 10 microns. However, it is now proposed to
avoid the use of material taken from the surface of the Dibden foreshore, which is
subject to a degree of contamination (ABP/7/4A, Table 4). Instead, the recharge
material would be taken from below the surface. This material has a median particle
size of between 3 and 5 microns, and a clay content of between 30% and 40%. In terms
of the particle size distribution envelope, it comes within the range observed on the
surface of the Hythe to Cadland foreshore (ABP/7/10 and ABP/7/13).
3.747 The alluvium would be excavated in large chunks. That would minimise its water
content and maximise its strength, thereby ensuring that the contractor would have the
requisite degree of control. The sediments to be used in the recharge would be
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relatively clean, since the contaminated post-industrial material is confined to the first
0.5m below the surface of the Dibden foreshore.
Recharge Stability
3.748 Consideration has been given to the stability of the recharge during its construction.
The in-situ material on the Hythe to Cadland foreshore has a relatively low density and
shear strength (CD/GEN/14(2), Section 2.2). High levels of turbidity can be observed
as the tide flows on and off this shore during stormy weather. This suggests that the
surface mud is quite mobile, but is generally retained on the inter-tidal. Modelling
suggests that tidal action would cause relatively little erosion of the recharge material,
even in its unconsolidated state (CD/GEN/14(2), Section 5.2). This material would be
relatively dense and would have a consistency similar to that of toothpaste. It is
estimated that less than 30% of the placed material would be lost during the recharge
process.
3.749 The evidence suggests that underlying the surface layer of soft mud on the Hythe to
Cadland foreshore, there is a second layer of firmer material. This would help support
the proposed recharge barriers. The gravel filled mattress would help spread the load
and prevent the barriers from sinking into the soft mud.
3.750 Consideration has been given to the possibility that there might be hidden gullies in the
firmer, underlying material, which could have a poor load bearing capability. This
could affect the integrity of the proposed containment system. Before each barrier is
installed, the ground would be probed to identify any such gullies. If a gully with a
particularly low shear strength were found, a causeway of stronger mud would be
constructed, using a backhoe. This causeway would carry the proposed barrier across
the gully.
3.751 In order to prevent the recharge material from sinking into the soft mud on the Hythe to
Cadland foreshore, the recharge could be laid as a series of relatively shallow strips,
each one say 0.25m thick. With time, the mud placed in each strip would flow to form
a plate. This would spread the load as subsequent strips were superimposed.
3.752 Pore water would be released during the recharge process, but this would be at a slow
rate and would not cause any instability in the recharge. It has been estimated that the
amount of pore water exuded would be about 25,000m3 (EA/4/4) or 20ml per m2 of
surface area per tide.
3.753 Consideration has been given to the stability and bearing capacity of the barriers, and
factors of safety have been calculated (ABP/3/10, p12). The effects of possible failures
in the proposed containment system have been considered (CD/GEN/14(2), Figures 5.1
to 5.3). The highest concentrations of suspended sediment would either remain over
the recharge site itself, or would stay adjacent to the recharge on the western side of the
estuary. The retaining barriers would be regularly inspected to ensure against any
breach of the containment system. Equipment and materials would be kept at hand to
repair any damage that is found and make good any consequent erosion. The greatest
potential impact of a breach in the containment system would be on the seawater
intakes at the Fawley Refinery. However, specific measures to deal with this have been
agreed with the Esso Petroleum Co Ltd, who have now withdrawn their objection in so
far as it relates to this matter.
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3.754 Objectors refer to the potential disturbance that might be caused to the in situ mud
when the barriers are grounded. They maintain that this could cause up to 100,000m3
of sediment to be taken into suspension in Southampton Water. However, this figure is
excessive. It implies that mud would be disturbed to a depth of 0.1m over an area of
100ha.
3.755 Dr Dearnaley, who was called as a witness by both the Environment Agency and the
County and District Councils, initially thought that the recharge might increase the rate
at which contaminated material is released into the estuary. However, given evidence
of the more limited incidence of contamination on the foreshore, he no longer sees this
as a realistic prospect.
3.756 The inclusion of a pilot phase within the recharge construction programme would
ensure that construction techniques and monitoring systems could be tested on a limited
scale prior to full implementation. Any risks to the surrounding area resulting from the
escape of sediments or pore water would be small and could be managed. The recharge
works would be subject to control under the FEPA licensing regime. Water quality
would be monitored during the recharge works, and remedial action would be taken if
prescribed thresholds were breached.
3.757 The long-term stability of the proposed recharge is considered in Technical Statement
TS/ME2. The scheme would have the effect of slowing the rate of erosion from the
Hythe to Cadland foreshore by some 8-9ha over the next 50 years. Nevertheless, the
recharge would itself be subject to erosion, and the placed material would be removed
over a period of about 50 years.
Protection of the Saltmarsh
3.758 Objectors are concerned that the recharge material would be washed onto the adjacent
saltmarsh, thereby damaging the nature conservation interest of that area. However, the
evidence of Dr Dearnaley was that "given the rates of placement proposed, the
immediate risk of high levels of silt inundating the saltmarsh are relatively low".
3.759 A degree of siltation on the saltmarsh is desirable, in order that this feature can respond
to the expected rise in sea level. There is evidence that benthic invertebrates can
tolerate siltation levels of up to 7cm a month (TS/ME6, para 5.7). Nevertheless, steps
would be taken to protect the saltmarsh from an excessive deposit of sediment.
3.760 The initial stages of the pilot exercise would be undertaken some distance from the
edge of the saltmarsh, so that the behaviour of the placed mud could be monitored to
establish whether excessive siltation of the saltmarsh would be likely. Subsequently, a
10m gap would be retained between the top of the recharged area and the bottom edge
of the saltmarsh. This would act as a buffer for any material transported up the shore
from the recharge. It is proposed that mud would be deposited on the foreshore during
neap tides, when tidal action would not carry placed material onto the adjacent
saltmarsh. By the time of the next spring tide, the placed material would have
consolidated to a degree.
3.761 If this proves inadequate, brushwood fencing or booms with skirts could be introduced
within the gap between the recharge and the saltmarsh. These would cause the current
to slow, resulting in the precipitation of suspended sediment from the water on the
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seaward side of the fencing or boom. This would serve to protect the saltmarsh from
excessive siltation. Brushwood fencing has been successfully used to contain sediment
in schemes at Horsey Island in Essex (CD/ABP/106, Appendix 6) and elsewhere. Its
use is endorsed in the Good Practice Guidelines for Ports and Harbours Operating
Within or Near UK European Marine Sites, which were prepared for the UK SACs
Project (CD/ABP/105, Section 5.3.9).
3.762 Particular consideration has been given to the possibility that tidal creeks within the
saltmarsh between Hythe and Cadland could become blocked with sediment from the
recharge. However, a number of freshwater outfalls discharge into these creeks
(ABP/7/6). Measurements have been taken at 4 of these outfalls, showing discharge
rates up to 0.3m3s-1. Higher discharge volumes are likely during periods of heavy
rainfall and on extreme high tides. Modelling suggests that discharges of this
magnitude would be sufficient to prevent significant siltation. However, it should be
noted that some of the saltmarsh creeks are already blocked by cheniers, behind which
there is ponded water.
3.763 Objectors have argued that the recharge would disrupt the supply of shells to the
cheniers along the front edge of the saltmarsh. Vegetation associated with these shell
banks is one of the interest features of the Solent Maritime cSAC. However, it is not
wholly clear whether the cheniers are a relic, or whether they are fed by a continuous
supply of shells from across the mudflat. Research suggests that shell fragments can
move significant distances over a single tide. They appear to collect at the toe of the
saltmarsh cliff, and could be thrown up onto the saltmarsh under certain wave and tide
conditions. If there is a contemporary supply of shells to the cheniers by this means,
there is no reason why this should not resume as soon as a benthic community becomes
re-established on the recharged mudflat. The recharge operations would be undertaken
progressively. The supply of shells would never be interrupted along the entire length
of the Hythe to Cadland foreshore simultaneously.
3.764 In any event, the cheniers have previously been identified as a management problem by
the Hampshire and Isle of Wight Wildlife Trust, in respect of the conservation of the
saltmarsh in their nature reserve. There seem to be conflicting nature conservation
priorities. Far from damaging the saltmarsh, the recharge would have the effect of
protecting this feature from erosion.
Dibden Creek
3.765 The Creek would be excavated in a controlled, dry environment. There is no
significant dispute as to the practicability of the proposed engineering. English Nature
and the RSPB both see merit in this part of the project.
3.766 Questions have been raised about the suitability of the excavated bed of the Creek for
benthic colonisation. However, negative pore pressure following the removal of the
overburden would help release some of the surface compaction. In addition, the
exposed surface could be raked, to improve its potential as a habitat for invertebrates.
This would produce a useful and beneficial habitat.
3.767 The Creek would be flushed by the Marchwood Stream. The predicted peak flow
would be sufficient, in terms of both frequency and magnitude, to prevent siltation
(ABP/0/76, p3).
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3.768 The southern edge of the creek mouth would be subject to wave action and wash from
passing vessels. The reconstructed bund would therefore be protected by armour riprap at this point (ABP/3/5)
Nature Conservation
3.769 In considering the implications of the Dibden Terminal for nature conservation, it is
important to bear some preliminary points in mind. First, the HRO site is subject to a
welter of ecological designations, all of which have been introduced since 1996. A
dispassionate observer might wonder whether their introduction has been wholly
unrelated to the emergence of the Dibden Terminal proposals.
3.770 Second, the designations are human constructs. They reflect a view of the relative
importance of different sites for nature conservation, but do not change the ecology of
the area.
3.771 Third, nature conservation considerations are not all of equal importance. The weight
to be attached to any particular aspect of the site's ecology requires the exercise of
judgement.
3.772 Fourth, while international nature conservation designations are undoubtedly of prime
importance, their effect is not absolute. They can be outweighed by non-ecological
considerations. They are therefore not determinative of the decision on the current
proposals, but merely form part of the balance that must be drawn.
ABP's Approach
3.773 ABP rely on the evidence of a single nature conservation witness, Mr Colebourn. He is
a distinguished ecologist, whose experience and credentials speak for themselves
(ABP/8/1, Section 1). Ecology is an integrated science. If ecological evidence is subdivided into several specialist elements (such as botany, entomology, ornithology etc)
there is a danger that the total picture may become incoherent. However, in presenting
his evidence, Mr Colebourn has drawn on the advice of eminent specialists, such as the
botanist, Neil Sanderson, and the ornithologist, Dr John Goss-Custard.
3.774 Importantly, Mr Colebourn has subjected his work to peer review by Dr Goss-Custard.
Dr Goss-Custard evaluated the Waterfowl Ecology Impact Assessment (TS/E5) in the
following terms:
This is a comprehensive review of the net effects of Dibden Terminal and its
associated mitigating measures on the feeding conditions of waterfowl .... [It]
takes a cautious approach. This means that the actual effects may be less than
envisaged .... (ABP/8/3, Appendix B).
3.775 ABP have adopted a two-stage approach in their assessment of the potential ecological
effects of the Dibden Terminal proposal. First, they have examined what can be
learned of the likely changes in the ecological relationships of plants and animals in the
area. Second they have reviewed the outcomes in terms of their implications for policy.
If this process is not followed, there is a serious risk that any event, however small, and
regardless of its real functional effect, would be seen as having an impact on policy.
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3.776 ABP's functional approach to nature conservation requires a comprehensive
understanding of the complex inter-relationships that are characteristic of ecological
systems. It involves an examination of the area's plants and animals; and of their
habitats and resource requirements. It also involves an assessment of how those
resources are currently provided, of how they would be affected by the project, and of
how they might be maintained.
3.777 The comprehensiveness of any functional analysis is limited by the adequacy of
information, and by the complexity of the causes of most biological events. Therefore,
in considering the ecological consequences of the Dibden Terminal scheme, it is
important to recognise the dynamics of the eco-system, and the potential for the estuary
to accommodate change.
Application of the Precautionary Principle
3.778 The uncertainties regarding the biological results of a proposed change are often used
to justify the argument that it is better to do nothing. However the indiscriminate use of
the precautionary principle reflects a poor understanding of ecological dynamics.
Biological systems are characterised by innumerable feedback mechanisms. A factor
causing a decline in one parameter almost always triggers a counteracting response
elsewhere, and a maintenance of the status quo.
3.779 Animals select the resources they require. They often range widely to obtain nutrients
at minimal energy cost. In the present case, the notion that certain birds "depend" upon
the Dibden Foreshore must be firmly resisted. In appraising ABP's ornithological
research, Dr Goss-Custard has stated that the birds that currently use the foreshore
would find new feeding areas were they to be displaced (ABP8/3, Appendix B).
3.780 Some objectors argue that the Solent may be approaching (or at) its carrying capacity.
They say that birds displaced from Dibden may not be able to use neighbouring sites
because of competition for resources at those sites; or that the displaced birds would
suffer short-term disadvantage whilst finding, and becoming accustomed to, an
alternative habitat. This approach is invalid for a number of reasons.
3.781 First, in recent years Southampton Water has been accommodating progressively
greater numbers of birds, despite a loss of inter-tidal habitat due to reclamation. During
the late 1960s, about 375ha was reclaimed from the estuary. However, winter bird
numbers have grown from about 12,200 in 1971/2, to an average of over 50,000 during
the period 1992-97. Despite this, there is no evidence of the territorial behaviour that is
characteristic of waterfowl when resources are scarce. Bird counters have not reported
any examples of interference or aggressive behaviour between one individual of a
species and another. Second, 75% of the waterfowl of Southampton Water occupy
about 30% of the inter-tidal mudflat. This suggests that there is unused capacity.
Third, without any habitat creation at all, the proposed development would result in a
change in the density of birds across the Solent and Southampton Water SPA of just
1%. Birds could not detect or respond to such a minute change. Given that the life
cycle of many waders exceeds 10 years, it is wrong to assume that any short-term
disadvantage to a bird population would have any lasting effect.
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Habitat Creation
3.782 ABP's scheme seeks to replace functional habitat that would be lost as a result of the
Dibden Terminal development. The proposals are designed to include sufficient new
and improved habitat to ensure that there would be a minimal reduction in the resources
available to waterfowl. The package takes into account feedback from the nature
conservation organisations.
3.783 Dibden Creek would provide 34ha of new tidal habitat, including mudflat, saltmarsh
and shingle banks. It should be recognised as an innovative ecological initiative. It
would encourage the promoters of other large schemes to adopt similarly imaginative
approaches
3.784 The Church Farm Nature Conservation Area would provide wide-ranging benefits for a
variety of flora and fauna. The draft Management Plan (ABP/0/66D) is well thought
out. It provides a high level of detail and sophistication and has progressed to a stage
far beyond that which might be expected at this point in the application process. While
there is scope for further discussion and refinement, the benefits are predictable and
deliverable. Some criticism has been made of the water budget information, but it has
not been suggested that available and well-tried technology would be incapable of
creating the proposed wetland area. ABP's legal undertaking (ABP/0/149) provides an
opportunity for continuing discussion, so as to resolve any outstanding concerns. The
filled-up HRO contains a provision for the Secretary of State to approve the plan
(CD/ABP/121, Article 32B).
3.785 The proposed recharge would provide for the improvement of some 137ha of mudflat
between Hythe and Cadland Creek; and a 19ha extension to the area of mudflat above
MLW. English Nature's "in principle" objection to this feature is untenable. English
Nature have themselves published reports recording the success of habitat creation and
restoration schemes that have produced inter-tidal mudflats suitable for waterbirds
(EN/0/11). This is but part of a wider volume of material dealing with the same
subject. It cannot be seriously argued that the advantages that ABP seek to achieve
through the recharge are impossible. If that were the case, it is doubtful whether any
large-scale habitat improvement scheme making beneficial use of muddy dredged
material would ever be achieved.
Assessment of Ecological Effects
3.786 In accordance with Regulation 48 of the Habitats Regulations 1994, it will fall to the
Secretary of State for Transport to make any appropriate assessment that is necessary as
regards the Dibden Terminal project. ABP share English Nature's view that the Dibden
project is unlikely to have a significant effect on the New Forest Ramsar Site, SPA and
cSAC (EN/6/1, para 5.4). Whilst other objectors have taken a contrary view, the points
they have raised are unsubstantiated assertions.
3.787 As a competent authority, ABP made an appropriate assessment of the Dibden
Terminal project in 2000 (CD/ABP/96). The conclusions of that assessment no longer
represent ABP's position, for the reasons discussed below.
3.788 The majority of the ecological investigation work undertaken by ABP is summarised
and interpreted in the Environmental Statement. This is supported by five Technical
Statements on ecological matters (TS/E1 to TS/E5) which provide much of the detailed
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background to ABP's case. ABP's evidence also takes account of the results of survey
work carried out since the Environmental Statement was prepared. Much of this
information has been considered by the relevant Joint Data Group.
Effect on Terrestrial and Freshwater Ecology
3.789 The Environmental Statement and the supporting Technical Statements (TS/E2 and
TS/E3) address the main interest features of the Dibden Reclaim; the farmland and
woodlands to the west; and the A326 corridor. These documents detail the direct
effects of the proposals in terms of habitat loss; and they describe the benefits that
would be provided by the proposed replacement habitats and by the active management
of retained habitat.
The Dibden Reclaim
3.790 The whole of the Dibden Reclaim would be affected by the proposed development.
This land was formed very recently, by the deposit of dredgings from Southampton
Water. It supports habitats that have developed only during the last 30 or 40 years.
Botany of the Reclaim
3.791 Most of the Dibden Reclaim consists of species-poor, coastal wet grassland, and is used
as pasture. Contrary to the assertion made by some objectors, this is not a grazing
marsh. Ephemeral pools form towards the rear of the Reclaim. These have a saline
character at present, as they receive drainage from the deposited dredgings. However,
the salinity of the Reclaim will reduce over time, as salt leaching from the system is not
replaced. Salt pans around the ephemeral pools support the nationally rare Perennial
Beard-grass (x Agropogon littoralis); and an assemblage of 5 nationally scarce plants,
including Divided Sedge (Carex divisa); Sea Barley(Hordeum marinum); Annual
Beard-grass (Polypogon monspeliensis); and two species of Saltmarsh-grass
(Puccinellia). However, English Nature's advice is that the vegetation of the Reclaim is
rapidly evolving, and that this area does not qualify as being of national importance for
its flora (ABP8/3, Appendix E).
Invertebrates of the Reclaim
3.792 The Reclaim hosts some Nationally Scarce or Red Data Book insects (mostly
hymenoptera). The majority of these are found in small and well-defined areas. These
include gravel and earth banks, which were formed to contain the dredged material; the
ephemeral pools; and some saline seepages. It would be possible to replicate some of
these features in the Church Farm Nature Conservation Area.
3.793 However, the vast majority of the Reclaim consists of grassland which has relatively
little entomological interest, a point conceded by the County and District Council's
witness, Dr Kirby (HCC/7/4, Map 1, Sites 7 and 8). Dr Kirby also assented to the
proposition that there is a correlation between the amount of survey effort and the
number of invertebrate species found on a site. The Dibden Reclaim has been
subjected to a very intensive examination. Its purported entomological importance may
reflect under-recording at other sites due to a lack of similarly intensive fieldwork.
Nevertheless, the majority of species recorded at Dibden are likely also to occur at
multiple sites along the Solent; and elsewhere in Hampshire and Dorset.
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Ornithology of the Reclaim
3.794 The Reclaim is used by various passerine bird species, including finches, warblers, and
members of the thrush family. However, the territories of most of these birds extend
into the proposed Church Farm Nature Conservation Area, and would be only
minimally affected by the proposed Terminal. Improved management of hedgerows
and woodlands, and the increased area of wetland within the Nature Conservation Area,
should provide further habitat. For most of these species, no decrease in numbers is
expected. However, the reduction in the area of open grassland may have a slightly
adverse effect on Skylark, Linnet, Meadow Pipit, Stonechat and Dartford Warbler. The
waterfowl of the Reclaim (particularly Wigeon, Teal, Lapwing and Curlew) are dealt
with separately below.
Designation of the Reclaim
3.795 The Dibden Reclaim is shown as a Site of Importance for Nature Conservation (SINC)
in the New Forest District Local Plan (CD/NFDC/1). However, the County and
District Councils' approach to the designation of SINCs is deficient in a number of
ways. The selection criteria are imprecise; the thresholds for designation are too low;
and there is a lack of attention to the dynamics of the ecology. As a result, any
moderately diverse site can qualify.
3.796 Dibden Bay (including the Reclaim) was notified as a SSSI by English Nature's
Executive Committee on 27th September 2001. ABP formally objected to this. In their
representation to English Nature, ABP pointed out that the proposal to designate a SSSI
represented a radical reversal of the advice given by English Nature's officers over the
preceding years. As recently as February 2001, English Nature had indicated that the
Reclaim did not qualify for SSSI status on botanical, ornithological, or entomological
grounds (ABP8/5, Appendix 3). No information had been made available as to why
that view had been reversed by July 2001.
3.797 Furthermore, the designation appeared to be technically flawed, in that the SSSI
boundary did not reflect the extent of the cited interests, but included a very extensive
area without justification. The interests for which the SSSI was notified were the
presence of breeding Lapwing; and the presence of an assemblage of nationally rare
and scarce invertebrates. No other site in England had ever been designated as a SSSI
on the primary basis of a breeding population of Lapwing (a comparatively common
species of wader). Furthermore, the number of Lapwing breeding on the Reclaim had
not consistently reached a regional (let alone national) level of importance.
3.798 English Nature had no data of their own on Lapwing, but relied upon counts made by
ABP's consultants (CD/GEN/7, Section 8.5). For the purposes of those counts, the
Reclaim and West Cliff Marsh were divided into compartments (TS/E5, Map 13).
Over the entire 7-year count period, only one Lapwing was recorded in Compartment
G1, the most northerly section of the Reclaim; and none at all were recorded in
Compartment 3b, West Cliff Marsh. But both of these areas were included in the SSSI.
3.799 English Nature's estimates of the numbers of breeding pairs of Lapwing were based on
the O'Brien and Smith Method. This entailed dividing the total number of Lapwing
observed on the site by two. The inaccuracy of this approach is manifest. For instance,
in a survey of the Dibden Reclaim on 26 May 1995, a total of 42 Lapwing were
observed (CD/GEN/10/2, Section 8.5). On the basis of the O'Brien and Smith Method,
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the assumed number of pairs of breeding Lapwing was 21. But the survey records that
only 4 adults were actually "sitting/brooding" on that occasion.
3.800 As PPG9 makes clear, SSSI designation is intended to provide for sites of national
importance. Consequently, the Reclaim should not have been notified as a SSSI on
ornithological grounds.
3.801 Neither should it have been notified on entomological grounds. It cannot be
demonstrated that the whole of the Reclaim is of national importance for its assemblage
of invertebrates. The insects that colonised the newly formed Reclaim could only have
come from neighbouring habitats, where they are still likely to exist.
3.802 Finally, in proposing the Dibden Bay SSSI, English Nature failed to adhere to their own
guidance regarding the designation of sites of artificial origin.
3.803 On 13th March 2002, the Council of English Nature considered whether to confirm the
SSSI designation. ABP were represented at this meeting. However, the session did not
provide a fully impartial hearing. The result was a decision that was not scientifically
rigorous. Moreover, there was no discussion as to whether it was appropriate to
designate land on which port development had been proposed, and which was the
subject of a major public inquiry.
3.804 It is for the Secretary of State to consider the weight to be attached to the designation of
the Dibden Bay SSSI. However, in doing so, he should have regard to the limitations
of the evidence that supports that designation.
West Cliff Marsh
3.805 West Cliff Marsh, which is shown in the adopted Local Plan as a SINC, is also included
in the Dibden Bay SSSI. This is a residual area of grazing marsh behind the Reclaim.
It consists of semi-improved and unimproved species-rich grassland. The eastern part
of West Cliff Marsh, which is owned by ABP, would become part of the Church Farm
Nature Conservation Area. This would have a wholly positive impact. As a result of
the proposed scheme, the site would be less prone to freshwater flooding; and would
benefit from improved management (ABP/0/66D).
Veal's Row "Meadows"
3.806 These two semi-improved grassland fields are not really meadows. They result from
different stages of enclosure of the former Marchwood Marsh, and should be assessed
as being former grazing marsh. The County Council's proposal that they should be
designated as SINCs greatly exaggerates their importance. For instance, the County
Council attach some value to a small osier plantation in the eastern field, to the north of
the Marchwood Stream. However, osier is not a native species and the plantation is of
low nature conservation importance.
3.807 The proposed port access corridor would pass through part of the eastern field. ABP
propose that the remainder of these fields would be included in the Church Farm Nature
Conservation Area. This would lead to an improvement in the ecological diversity of
this land. The same comments apply to other residual fragments of grazing marsh
immediately to the west of the Reclaim, which the County Council are promoting as a
proposed SINC to be known as Church Farm Fields (East).
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The Post Copse Complex
3.808 The nature conservation value of the Post Copse Complex has been recognised by ABP
from the outset. The complex contains an element of ancient woodland, together with
more recent secondary planting. However, the ancient woodland is neither intact, nor
in particularly good condition. For instance, Veal's Row consists of ancient woodland
that has been severely degraded by grazing animals.
3.809 Objectors have expressed concern about the proposed route of the port access road and
rail corridor through the Post Copse Complex. However the proposed alignment
follows the best route available, and minimises the effects as far as possible. ABP have
reviewed their analysis of the area of woodland affected. It is now calculated that the
total loss of woodland would amount to 2.88ha, of which only 0.86ha is well-structured
ancient woodland (ABP/8/5, Appendix 4, Map 1). The County Council's argument that
there would be a substantially larger loss of woodland is simply wrong.
3.810 The small pond at the western end of Veal's Row is an amenity feature of very recent
origin. Its aquatic flora has been largely introduced. The record of Slender Marsh
Bedstraw (a nationally rare plant) being found in this location is wrong. It probably
results from a transcription error, in which it was confused with the common species
Lesser Marsh Bedstraw. About 29% of the pond's area, at its northern end, would be
taken by the port access road, but the ecological effect of this would be insignificant.
Hythe Marina Bund
3.811 Hythe Marina Bund is an artificial pile of slightly saline, dredged spoil. The scarce
coastal species that grow upon it derive from seed contained in the saline soils. They
include Annual Beard-grass (Polypogon monspeliensis) and two species of Saltmarsh
Grass (Puccinellia). These plants are characteristic of disturbed soil and are likely to
die out as the sward closes. To the extent that existing soil would be re-used in the
reconstruction of the bund, the species in question would be likely to re-establish
themselves on the disturbed ground.
3.812 The County Council propose that the Hythe Marina Bund should be designated as a
SINC. This greatly exaggerates it ecological value. While its reconstruction would
involve the destruction of the current vegetation, it is wrong to say that this would
result in the loss of an assemblage of rare plants (the species mentioned are nationally
scarce rather than rare); or that the implications of these changes would be of high
significance.
The Marchwood and Dibden Streams
3.813 Although the Environment Agency make much of the Marchwood Stream, the parts of
this watercourse most affected by the proposed development consist of a drainage ditch
at the rear of the Dibden Reclaim, that dates from the 1960s. The upper part of the
Marchwood Stream, which runs through the Post Copse Complex, has little ecological
value. It too runs in a man-made channel. The nature conservation value of this
watercourse would increase with improved management following its inclusion in the
Church Farm Nature Conservation Area.
3.814 As a result of the proposed development the Marchwood Stream would drain directly
into Dibden Creek, rather than to the Dibden Stream as at present. The flow in the
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Dibden Stream would be restored to the level that typically existed prior to the
construction of the Dibden Reclaim. Otherwise, the Dibden Stream would be little
affected by the proposals.
The A326 Verges
3.815 The A326 Marchwood Bypass was created on a new alignment, through fields, in about
1968. The road verges collectively support species-poor and species-rich grasslands,
ruderal herb communities, and scrub. The impacts of the proposed road-widening on
this vegetation would not be large. However, where possible, ABP intend to take
material from the areas of species-rich grassland that would be affected, for
translocation to the Church Farm Nature Conservation Area.
3.816 The County Council initially proposed that 4 stretches of the A326 verges should be
designated as SINCs. However, it is understood that some of these areas have since
been damaged by engineering works - in one case to such an extent that the County
Council have conceded that it no longer qualifies for designation (HCC/6/20). While
the other areas may be of some botanical interest, they cannot be regarded as having
ecological importance.
Effect on Marine and Coastal Ecology
3.817 ABP's assessment of the effects of the Dibden Terminal package on the inter-tidal
ecology of Southampton Water is set out in the Environmental Statement and in
Technical Statement TS/E4. This has been reviewed in the context of new information
that has come to light, including the evidence presented by objectors. The review
reflects the agreement that has been reached with English Nature and the New Forest
District Council regarding predicted changes in the morphology of Southampton Water,
that would result from the proposed development (CD/GEN/14A). When account is
also taken of the proposed habitat creation measures, the predicted change in the intertidal area over the next 50 years can be summarised as a gain of some 9ha between
HAT and MLW; a loss of 28ha between HAT and MLWS; and a loss of 54ha between
HAT and LAT.
The Benthic Ecology of the Dibden Foreshore
3.818 There is general agreement in respect of the overall evaluation of the benthic fauna
present on the Dibden foreshore. ABP's initial evaluation was that the foreshore was of
high nature conservation importance. This reflected the diversity of species, the
presence of unusual biotopes and infrequently recorded invertebrates, and the high
densities of certain species.
3.819 This conclusion has been reviewed in the light of further survey work carried out in
October 2001 (ABP/8/9, Appendix 1). The new data, which has been generally agreed
by the Marine Flora and Fauna Joint Data Group, highlights some important changes
since the time of the previous survey (in March 1998). For example, the unusual
LMX.Psyllid.VS biotope is no longer present; and the unusually high numbers of syllid
polychaetes are no longer evident.
3.820 A number of conclusions can be drawn. Comparing data for September 1997, 1998 and
2001, there is relatively little difference in the number of taxa recorded. However,
there is greater variation in the number of taxa present at densities greater than 100 per
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m2. Whereas 26 such taxa were recorded in September 1997, the September 2001
figure was just 14. The March 1998 survey, which recorded a larger number of taxa,
now appears to be atypical, and possibly reflected the deposit of dredged greensand in
February 1997 (ABP/8/3, Appendix J).
3.821 The Dibden foreshore is now considered to be of lower conservation importance than in
September 1997 or March 1998, when it was considered to be important in a regional
or possibly a national context. Taking all of the survey information into account,
including that for 2001, the foreshore is now considered to be important in a regional
context.
The Benthic Ecology of the Hythe to Cadland Foreshore
3.822 When the Environmental Statement was prepared, it was thought that the Hythe to
Cadland foreshore supported an impoverished benthic fauna as a consequence of
contamination by hydrocarbons, metals and sulphides carried in effluent from the
adjacent petro-chemical industries. This was also seen as the most likely reason for the
low bird use of this part of the estuary's inter-tidal area. However, it was always
recognised that there was no demonstrable causal link between reduced ecological
function and contamination.
3.823 Since the submission of the Environmental Statement, ABP have commissioned a "due
diligence" survey of the Hythe to Cadland foreshore, which examined the levels and
extent of contamination. This survey related to the prospective purchase of the
mudflats from Esso. It included an analysis of the chemical species present and of
correlated benthic samples (ABP/0/65).
3.824 The survey shows that the northern two-thirds of the shore is less contaminated than
had previously been thought, although this area does contain hydrocarbons and copper.
The southern section remains more heavily contaminated.
3.825 Moreover, the benthic community appears to be more diverse and to have a greater
biomass than at the time of the previous survey in March 1998. On the basis of that
earlier data, there seemed to be a ratio of about 18:1 between the mean concentration of
benthic biomass on the Dibden foreshore and the Hythe to Cadland foreshore. While
the 2001 data continues to suggest that there is some difference between these two sites
in terms of their benthic fauna (a biomass ratio of about 3:1) this is not thought to be
sufficient to account for the degree of difference in bird use.
3.826 This obviously has a bearing on the level of predicted improvement that could be
achieved by the recharge. The case for recharging the northern two-thirds of the Hythe
to Cadland Foreshore on grounds of benthic enrichment is not now so clear as had
previously been thought. However, there is still the same justification for proceeding
with the southern section; and there are other good reasons for undertaking the recharge
as a whole, including the reduction of erosion, the retention of sediment in the estuary,
and development of knowledge about the beneficial use of dredged material.
Benthic Ecology Following the Proposed Development
3.827 Objectors have questioned the rate at which the proposed recharge and Creek would be
colonised by benthic communities. ABP's predictions are set out in TS/E4. They
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derive from published literature19 and professional expertise. However they are not
intended to be precise. There is a possibility that colonisation may produce a different
community structure from that which has been predicted; and the time taken for
colonisation may vary. However, if the conditions are right, it is inevitable that
colonisation will occur.
3.828 All of the evidence, including that in English Nature's evaluation of habitat creation
schemes (EN/0/10 and EN/0/11), suggests that the prospects for success are extremely
high. The relevant studies indicate that a fully functional benthic community should
develop within four years of the provision of suitable habitat. The method by which the
recharge material is applied can affect the survival of the existing benthic community.
If the recharge material is applied in successive rows, as ABP currently propose,
regular interstices will be left, providing an upward migration route for invertebrates.
In soft sediment environments, such as the proposed recharge, benthic communities are
known to recover relatively quickly.
3.829 In any event, ABP's predictions of waterfowl use for the newly created habitats are
extremely cautious. For example, it has been assumed that no birds would use the
Creek until Phase 3 of the Terminal development has been completed. This allows a
period of at least six years for invertebrate colonisation after the initial inundation of
the Creek. As regards the Hythe to Cadland foreshore, a wide range of mudflat
invertebrates are likely to be present within 1-2 years of the completion of the recharge,
though the development of typical densities may take up to 3 years, depending on the
species. For longer lived species, such as bivalves, it could take 4-6 years to achieve a
normal age distribution in the local population. English Nature's expert witness on
benthic invertebrates, Dr Gilliland, accepted that, with the right engineering, it would
be possible for the recharge to develop into a useful habitat for birds within 3 to 6 years
(Day 52, p136).
3.830 The colonisation processes within the Creek and the recharge can be expected to
produce different faunal communities. This is because these habitats would occupy
different positions within the tidal frame. The Creek would be positioned high in the
tidal frame in order to maximise the area of mudflat exposed at low water, and to
expose the mud as quickly as possible on the ebb. The aim is to provide a longer
period during which waterfowl would be able to feed.
3.831 Published research studies, notably one of Morecombe Bay (EN/0/9), indicate that
many important prey species are abundant at about the mean high water neap level.
The Creek profile has been designed to maximise the inter-tidal area around this level.
This is expected to optimise the habitat for key wader prey species, such as ragworm,
mud snails, and cockles.
3.832 Objectors have queried whether the recharge of the Hythe to Cadland foreshore would
improve the benthic fauna. ABP now accept that improvements to the northern part of
the foreshore would be less significant than previously thought. However, significant
benefits would accrue at the Cadland end of the recharge, where the fauna is
impoverished. These would be likely to be of benefit to feeding birds.
19
See for instance APP/8/5, Appendices 9 to 14.
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Saltmarsh Ecology
3.833 There would be no direct loss of saltmarsh as a result of the Dibden Terminal
development. The proposed recharge would reduce the rate at which the saltmarsh
between Hythe and Cadland is eroding. Sedimentation of this saltmarsh would be
monitored and controlled, if necessary by the use of brushwood fences or booms with
skirts. Elsewhere, the effect on saltmarshes would be minimal. As a result, the
saltmarshes within the Solent Maritime cSAC would be maintained in favourable
condition.
3.834 The saltmarsh at Hythe is clearly eroding, particularly at its outer edge. Related to this,
there is a complex interaction between the saltmarsh and the chenier banks, which are
highly mobile. The swirls and terraces in these banks demonstrate that there is
considerable local movement of the shells, which may occur largely in stormy
conditions. The cheniers appear to be moving landwards across the marsh, smothering
vegetation and leaving behind a denuded mud surface that is susceptible to erosion.
3.835 Importantly, the chenier banks have dammed a number of the drainage creeks. In
considering the possible effects of siltation from the recharge, this effect must be seen
as part of the baseline. The chenier banks form a substantial barrier to sediment
movement across the saltmarsh.
3.836 The interest features of the Solent Maritime cSAC include Atlantic salt meadows
(Glauco-Puccinellietalia); Cordgrass swards (Spartina spp); Salicornia and other
annuals colonising mud and sand; and the annual vegetation of drift lines (CD/EN/7).
Each of these features is present on the Hythe marshes. However, the Atlantic salt
meadow here is neither a good example of this vegetation type, nor very extensive,
being confined to a narrow strip along the upper part of the marsh. It would probably
be improved by the re-introduction of grazing. The proposed recharge would reduce
the rate at which the saltmarsh edge is retreating, and so increase the scope for this.
3.837 The Hythe Marshes are dominated by swathes of Common Cordgrass (Spartina
anglica) and more limited areas of Townsend's Cordgrass (Spartina x Townsedii)
(EN/0/17, Appendix A). Both of these are hybrids of the native Small Cordgrass
(Spartina maritima) and the American Smooth Cordgrass (Spartina alterniflora).
Neither of the parent species are now present on Hythe Marshes. The fertile Common
Cordgrass is a vigorous coloniser, which spread rapidly during early part of the 20th
century and now has a widespread distribution. It has little, if any, nature conservation
value, and is seen as a threat to other Cordgrass species. Significantly, no particular
reference is made to it in English Nature's conservation objectives for the Cordgrass
swards of the cSAC (CD/EN/7).
3.838 However, specific reference is made to Townsend's Cordgrass. This sterile hybrid is
found only in the Solent area, and is therefore of significant interest. The largest
concentration of Townsend's Cordgrass on Hythe Marshes is in the Hampshire and Isle
of Wight Wildlife Trust's nature reserve, immediately to the south of Hythe.
Accordingly, this part of the saltmarsh warrants special protection. ABP's proposals
have now been amended to exclude the compulsory acquisition of the nature reserve.
By protecting the saltmarsh from erosion, the recharge would help conserve the habitat
available to Townsend's Cordgrass.
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3.839 Annual Salicornia and Sueda maritima saltmarsh communities appear to be confined to
a limited number of locations within the Hythe Marshes. They are unlikely to be
affected by the proposed development.
3.840 The drift line on the Hythe Marshes is marked by the chenier banks. These are sparsely
vegetated, the most common species being Atriplex littoralis. The annuals that colonise
the banks are extremely mobile and reappear year-on-year, when conditions are right.
Those conditions would be unlikely to change significantly as a result of the proposed
recharge, although there could be some alteration in the precise distribution and form of
the chenier banks. The most likely source of the shells is the existing cockle population
on the Hythe to Cadland mudflats. The recharge operation would have a temporary
effect on this population. However, this effect would be progressive and staged, and
the total population would not be affected at any one time.
Effect on Waterfowl
3.841 The Dibden foreshore provides a regular feeding habitat for waterfowl. The average of
the monthly mean waterfowl counts for the 6 winters of 1995/96 to 2000/01 is 862
birds. The most common species are Dunlin (with an averaged mean count of 386);
Oystercatcher (197); Curlew (88); Grey Plover (55); and Brent Goose (52) (ABP/8/5,
Appendix 7, Table 1). However, it should be remembered that the Dibden foreshore is
not exposed at high water. It is only available for use at times when other feeding
resources in Southampton Water are also available.
3.842 The Dibden foreshore has an area of some 53ha down to MLW (CD/GEN/10/1, Part
2.7). The mean density at which waterfowl use the site is therefore about 16.2 birds per
ha. This is not a particularly high density of use.
3.843 These figures must be seen in context. The Greater Solent has an inter-tidal area of
some 8,700ha. The birds of the Dibden foreshore represent some 0.5% of the Greater
Solent population.
3.844 Waterfowl also feed on the Dibden Reclaim, especially at night. The average annual
peak count over the 6 winters is 2,937 birds. The most common species are Wigeon
(2,075); Teal (449); and Lapwing (255).
3.845 The use of the Hythe to Cadland foreshore by waterfowl falls below the average for the
inter-tidal areas of the estuary. Thus, while this foreshore contains some 15.6% of the
inter-tidal area of Southampton Water, it is used by only 6.2% of the estuary's
waterfowl population (TS/E5, Table 11.8). The average of the monthly mean counts
for the 6-year period noted above is 843 birds. The most common species are Dunlin
(335); Wigeon (209); Curlew (87); and Oystercatcher (75). Many of the birds that use
this foreshore appear to be roosting, loafing or preening, rather than feeding.
3.846 The Dibden Terminal would have permanent adverse effects on avian habitat. Both the
Dibden foreshore and the Reclaim would be lost. However, there would be permanent
beneficial effects.
3.847 First, the recharge of the Hythe to Cadland foreshore would enhance the habitat for
waterfowl by capping contaminated sediments, thereby improving the quality of the
feeding resource; and by elevating the mudflat in the tidal frame, so that the feeding
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resource would be exposed for longer. As a result, the use of this area by waterfowl
would increase substantially.
3.848 Second, the creation of the Church Farm Nature Conservation Area, including Dibden
Creek, would provide a range of new waterfowl habitats. These would be managed in
such a way as to secure the objectives of nature conservation.
3.849 The balance of these adverse and beneficial effects is crucial to the assessment of the
implications of the proposed development for the international nature conservation
sites. ABP have adopted a functional approach, which focuses on the net effect of the
proposals. Thus, the predicted displacement of waterfowl from the existing habitat at
Dibden Bay has been compared with the potential of the new and improved habitats to
support the displaced waterfowl. The assessment also considers the extent to which
displaced waterfowl could be accommodated elsewhere along Southampton Water.
Predicted Displacement of Waterfowl
3.850 ABP's predictions of waterfowl displacement are explained in Appendix 7 of ABP/8/5.
They are based on the following seven stage process:
(i)
Determine the existing waterfowl use of the Dibden Foreshore and
Reclaim;
(ii)
(iii)
Assess the likely future waterfowl use of Dibden Creek and the Church
Farm Nature Conservation Area;
Determine the existing waterfowl use of Hythe to Cadland Foreshore;
(iv)
Predict the likely waterfowl use of Hythe to Cadland Foreshore
following recharge;
(v)
Calculate the combined effect of Dibden Terminal and the associated
habitat creation measures;
(vi)
Identify which inter-tidal mudflats elsewhere in Southampton Water
are most likely to be used by displaced birds (as alternative sites);
(vii)
Examine the increases in density that would result when displaced
birds are redistributed to alternative sites.
Use of the Average Monthly Mean Counts
3.851 "Mean" and "mean peak" are defined in the Agreed Statement of Fact as follows:

"Mean" - The mathematical average of a set of values, such as counts of birds. The mean
is calculated by summing values and dividing by the number of values. "Mean" and
"average" are used interchangeably, or to avoid repetition, as in the case of average
monthly means.

"Mean peak", "peak mean" - Applies to WeBS core counts. The average of the winter
peaks for a five-year period. Part of the standard WeBS summary data output. Used to
assess national and international importance of a species.
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3.852 ABP have used the mean number of birds counted by their consultants (EPR) over a 6year period to assess the use currently made of the Dibden and Hythe to Cadland
foreshores. This has been the subject of particular criticism by objectors, who favour
the use of mean peak counts. ABP do not eschew the use of mean peak counts. For
instance, they accept that the use of the mean peak is valid for the designation of SPAs
and Ramsar Sites. They themselves have used the mean peak as an indicator of the
existing use of the Dibden Reclaim by waterfowl. However, their approach has been to
use the most appropriate data for each ecological unit, on a site by site basis.
3.853 There have been frequent and regular counts of the use of the foreshore by waterfowl.
They reveal a constant, rather than a wildly fluctuating, population. The counts have
included extreme weather conditions. The mean value of these counts therefore reflects
the natural variability of the population over the years surveyed, including the peak use
of the foreshores. It provides the best indicator of the regular use made of the
foreshores in average conditions. This provides a sound basis for calculating the
habitat requirements of waterfowl that would be displaced by the proposed
development.
3.854 An approach based on the mean peak count would over-estimate the habitat
requirement. It is illogical to suggest that the mean peak number of birds are regularly
supported by the Dibden foreshore; and it would be illogical to rely upon such an
assumption to calculate the requirement for replacement habitat. Peak use reflects
abnormal rather than normal conditions.
3.855 The objectors argue that even the use of mean peak counts under-estimates the
maximum use of a site, as the monthly counts (from which the annual peaks are
derived) are unlikely to be made in the extreme conditions when the highest population
levels occur. However, it is inappropriate to assess the value of a habitat on the basis of
rare or unusual events.
3.856 Objectors also contend that the mean peak figures under-estimate the use made of a site
because they fail to reflect the turnover of birds. It is accepted that, because of
turnover, a site may be used by a greater number of individuals than are counted at any
one time. However, this does not affect the average feeding pressure on the site. On a
single tide, the same bird may feed at two or three different sites. The recorded peak
figures could therefore be inflated as a result of double counting.
3.857 For any one species, the mean peak figure is the average of just five peak counts taken
over five years. It does not reflect regular use. In making their assessment of the
current use of Dibden Bay, the RSPB have aggregated the mean peak counts for
different species, even though those peaks occurred at different times during the winter.
The result is a wholly distorted and unrealistic figure (1,637 birds) which is most
unlikely ever to have occurred.
3.858 The pitfalls of relying on mean peaks are eloquently demonstrated in RSPB's evidence
of the use of the Dibden foreshore by Lapwing. Their figure of 21 birds is a mean peak
figure for the past 6 winters. It derives from observations of 16 Lapwing on the
foreshore in 1995/6; and 110 in 1997/98. The sum of these counts is 126, which, when
divided by the total number of observed peaks (6) gives a value of 21. However, in
practice, Lapwing are very seldom recorded on the Dibden Foreshore. In 130 counts
for which data are available, they have been present on just 11 occasions. On most of
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these occasions, 5 or fewer Lapwing have been present. On 4 occasions the record is of
a single bird. It is plainly misleading to describe the Dibden foreshore as supporting a
population of over 20 Lapwing.
3.859 A further example of the anomalies that can arise from the use of mean peaks is
apparent from the data for Black-tailed Godwit on the Hythe foreshore. The RSPB
quote a peak mean count of 27. However, this reflects two particularly high counts,
including one of 68. From ABP's experience such counts are extremely unusual;
indeed this species is seldom seen at Hythe.
3.860 ABP's approach for any species is to combine their knowledge of bird numbers
(allowing for fluctuations, including peaks) with their scientific knowledge of bird
ecology. This makes for more accurate predictions than the unduly cautious approach
adopted by objectors.
3.861 In considering this matter, Dr Goss-Custard made the following observation:
The average mean count captures the "feeding pressure" exerted by waterfowl
on food supplies. That is, the higher this value is, the quicker the food supplies
would be used up by the birds. The average peak count (which, in general, only
averages twice the mean) captures the occasional somewhat higher use by birds
of the site in question. I think that averaging counts over several years is
appropriate because the annual variation in numbers is not large (ABP/8/3,
Appendix B, para 5.29).
Stage 1- Existing Use of Dibden Foreshore and Reclaim
3.862 The existing use figures for the Dibden foreshore and Reclaim form the basis for all the
subsequent calculations. It is assumed that these figures represent the total number of
individual birds that would be directly affected by the proposals.
3.863 The existing bird use for Dibden foreshore is based upon the numbers of birds present
on average over the agreed six-winter period (1995/1996 to 2000/2001). For the
purposes of the prediction, it is assumed that the whole of Dibden foreshore would be
lost to feeding birds. However, at least 6ha would remain out of the total of 53ha, and
there would be further areas of mud available at the mouth of the Creek. In other
words, the figures for the Dibden foreshore are cautious over-estimates.
3.864 In the case of the Reclaim, averages of mean counts were not used because the
occasional unreliable count might bias the data. The six-year average of the annual
peak counts was used instead. However, in the case of Curlew, the foreshore mean
count was used, because generally the same birds use both habitats. This was agreed
with English Nature.
3.865 The total figure for displaced waterfowl would amount to some 3,800 birds, of which
some 2,500 are wildfowl feeding on the Reclaim at night, and 400 are birds using the
Reclaim during the day. The total figure for Dibden foreshore is 862. This should be
compared with the 120,000 to 140,000 birds in the Greater Solent. It is a very small
proportion.
3.866 A few fish-eating birds use the sub-tidal area at Dibden Bay. The species include Great
Crested Grebe, Cormorant, Goldeneye and Red-breasted Merganser. The average
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Dibden Bay Inquiry - Inspector's Report
mean count for each species is less than 10 birds. While they are included, as
appropriate, in the predictions for total waterfowl, no predictions are made for these
species individually. Their diet, feeding habits and distribution in the estuary are
poorly understood.
Stage 2 - Likely Use of Dibden Creek and Church Farm Nature Conservation Area
3.867 A panel of local ornithologists made predictions of the waterfowl use of Dibden Creek.
The panel was made up of five experienced local bird counters. While, for various
reasons to do with their employment or their position in relation to the Inquiry, they do
not wish their names to be made public, they are people familiar with the existing bird
use of Southampton Water; and with the feeding behaviour of birds in creeks and
estuaries.
3.868 The average predicted use of the Creek by waterfowl is set out in the table below. The
figures assume the provision of 30ha of mudflat. For each species, the predicted figure
for the Creek has been subtracted from the corresponding figure for the existing use of
Dibden foreshore and Reclaim, to give the net displacement from Dibden Bay. In some
cases, notably Redshank and Black-tailed Godwit, the result is a minus, indicating that
there would be a net increase in habitat for that particular species.
Species
Brent Goose
Dibden Existing Creek Prediction
Use
Displacement
from Dibden
54
55
-1
2,080
275
1,805
Teal
449
95
354
Oystercatcher
201
40
161
Ringed Plover
7
5
2
Grey Plover
55
10
45
Lapwing
257
50
207
Dunlin
403
150
253
Black-tailed Godwit
1
10
-9
Curlew
88
40
48
Redshank
23
30
-7
Turnstone
18
10
8
3,799
790
3,009
Wigeon
Total Waterfowl
3.869 A precautionary approach has been taken. The predictions are for the Creek only and
exclude the Church Farm Nature Conservation Area. The wet grassland to be provided
there suggests that species such as Wigeon, Teal, Curlew, and Black-tailed Godwit
would be better catered for. The shingle structures to be established within the Creek
would increase the length of shoreline available for waders, while providing safe
roosting sites for birds generally.
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3.870 Objectors have argued that the enclosed nature of the Creek would reduce its value as a
habitat for waterfowl. However it would be a substantial water body, about 180 to
190m wide at its mouth, and having a typical width of over 200m. Objectors have also
argued that waterfowl using the Creek would be disturbed by activity on the adjacent
footpath/cycleway. However, care would be taken to route this path away from
sensitive areas. It would be screened from the Creek, by a bund and by planting.
3.871 The scheme offers an opportunity to produce results that could be applied elsewhere.
There is no doubt that a satisfactory result could be achieved. The only risk relates to
the precision with which a prediction can be made.
Stage 3 - Existing Use of the Hythe to Cadland Foreshore
3.872 The existing waterfowl use of the Hythe to Cadland foreshore is based on the average
of monthly low-water counts over a period of 6 winters. English Nature and the RSPB
contend that the Hythe to Cadland inter-tidal is not under-used by waterfowl. They
base this assertion on the use of mean peak figures, and on the percentages of the SPA
and Southampton Water population that use the area based on those figures.
3.873 In the light of the objectors' comments, ABP have re-examined the level of bird use of
the mudflats. However, their conclusion remains that the use of the Hythe to Cadland
foreshore is very substantially lower than is typical for the estuary as a whole.
Stage 4 - Predicted Use of Hythe to Cadland Foreshore Following Recharge
3.874 The predictions of the use of the Hythe to Cadland foreshore following the proposed
recharge are set out in the following table. They are based on the application of one of
four density types to each species of waterfowl. The choice was based on the known
feeding and habitat preferences of the individual species.
Species
Existing Use
Density
Type20
Predicted Use
Net Potential
Increase
1
existing
1
0
Wigeon
209
existing
209
0
Teal
21
existing
21
0
Oystercatcher
75
well used
225
149
Ringed Plover
2
occupied
20
19
Grey Plover
14
well used
74
60
Lapwing
28
occupied
215
187
Dunlin
335
well used
814
479
Brent Goose
20
Black-tailed
Godwit
Curlew
7
well used
23
16
87
saltmarsh
85
-2
Redshank
7
saltmarsh
7
0
Turnstone
5
existing
5
0
For explanation of density types see ABP/8/5, Appendix 7, p13.
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Sum of species
predictions
Total
791
Saltmarsh
843
1699
908
2774
1931
Waterfowl
3.875 For some species, notably Wigeon, Teal, Redshank, Turnstone and Brent Goose, no
change has been predicted. These birds are not expected to benefit significantly from
the recharge.
3.876 The analysis indicates that the recharge would benefit six species - Oystercatcher,
Ringed Plover, Grey Plover, Lapwing, Dunlin, and Black-tailed Godwit. The
predictions may be too high in the case of Lapwing, since this species uses the site only
for roosting and is unlikely to benefit from the increased feeding resource.
3.877 The prediction for total waterfowl is based on "saltmarsh density". It shows that, as a
result of the recharge, waterfowl use of the Hythe to Cadland foreshore would grow
from 843 to 2,774 birds, an increase of 1,931 birds. There is a disparity between this
figure, and the aggregate of predictions for individual species. This reflects the
cautious approach used in assessing the predicted density of each species.
Stage 5 - Net Displacement
3.878 The net displacement of waterfowl as a result of the Dibden Terminal project (taken as
a whole) has been calculated by subtracting the predicted increase in use of the
recharge site from the number of birds displaced from Dibden. The most significant
displacement would be suffered by Wigeon (1,085) and Teal (354). The habitat would
be able to support increased numbers of some species (notably Dunlin, the numbers of
which are predicted to increase by 226). The prediction for all waterfowl shows a net
displacement of 1,078 birds, as shown in the following table.
Species
Displacement
from Dibden
Potential Recharge
Increase
Net Displacement
(Whole Scheme)21
-1
0
-1
1,805
0
1,805
Teal
354
0
354
Oystercatcher
161
149
12
Ringed Plover
2
19
-17
Grey Plover
45
60
-15
Lapwing
207
187
20
Dunlin
253
479
-226
Black-tailed Godwit
-9
16
-25
Curlew
48
0
48
Redshank
-7
0
-7
Brent Goose
Wigeon
21
Negative numbers indicate predicted increase in capacity of the scheme, rather than displacement.
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Turnstone
Sum of species
predictions
Total
Waterfowl
8
0
8
2866
910
1956
3,009
1,931
1,078
Stage 6 - Selection of Alternative Mudflats
3.879 Waterfowl displaced by the Dibden Terminal project would be likely to utilise other
feeding habitats around Southampton Water. These birds are highly mobile, and it is
improbable that they would be site-faithful, with fatal consequences, following the loss
of habitat at Dibden. Although birds undoubtedly use Dibden at present, that is not to
say that they depend upon this site. The removal of habitat at Dibden does not mean
that the remaining resource will necessarily be inadequate to sustain the existing
waterfowl population. In this context, it is stressed that the Greater Solent has an intertidal area of some 8,700ha. The net loss of inter-tidal area resulting from the Dibden
Terminal project would be just 54ha.
3.880 As noted at paragraph 3.781 above, there is no evidence that either Southampton Water
or the Greater Solent are approaching their carrying capacity for waterfowl. Dr GossCustard has suggested that before carrying capacity is reached, birds will exhibit
characteristic behavioural signs. These have not been observed in Southampton Water.
In Dr Goss-Custard's view, they are unlikely to occur at densities below 60 birds per ha.
This density is much higher than that which currently obtains in Southampton Water.
3.881 In reality, rather than seek out or move to alternative sites, the displaced birds would
simply spend more time at other locations, with which they are already familiar.
Consideration has been given to the mudflats that they are most likely to be used. It has
been assumed that displaced birds would be most likely to utilise alternative sites in the
estuary that are already favoured by their species. So sites have been selected if they
are already supporting a mean density that is higher than the estuary average for a
species; or if they support 10% or more of the total estuary population.
Stage 7-Redistribution of Displaced Birds
3.882 The final stage in the prediction considers the increase in density that would arise if the
birds displaced as a result of the Dibden Terminal project utilised the identified
alternative feeding sites. The methodology involves redistributing the displaced birds
proportionately to identified alternative sites. The mean density after redistribution is
compared with the average peak density22, to test whether displacement would be likely
to have a significant impact or not. If the redistributed mean density is less than the
average peak density for a species, the displaced birds of that species are likely to be
accommodated on the identified habitats within Southampton Water.
3.883 For five of the 6 species of waterfowl that would be displaced as a result of the Dibden
Terminal project, the predicted outcome would be favourable. There is also a
favourable result with regard to total waterfowl (ie all species combined). In the case
of Wigeon, however, the redistributed mean density would almost double the average
peak density for the identified sites. In the case of this species, the result is therefore
unfavourable (ABP/8/5, Appendix 7, Table 9).
22
The derivation of the average peak densities is explained at ABP/8/5, Appendix 7, paragraph 7.3.
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3.884 These calculations apply to just one estuary within the SPA. Their purpose is to
provide an indication of the significance of displacement. However, the redistribution
analysis does not work well for the large numbers of Wigeon that would be displaced
from the Dibden Reclaim, particularly as these birds do not feed on inter-tidal mudflats.
Wigeon and Teal
3.885 The large numbers of Wigeon that use the Dibden Reclaim for nocturnal feeding distort
the calculations of total waterfowl displacement. The species is, therefore, best dealt
with separately. Wigeon displaced from Dibden are likely to spend more time at other
sites in the area, which they already use. In addition to using sites on the Lower Test,
and at Bury and Hythe Marshes, it is thought that some Dibden Wigeon resort to
feeding and roosting grounds further up the Test Valley, but ABP have been unable to
identify these sites.
3.886 The use of the Reclaim by Teal is more complex. In early winter, Teal typically feed
on the Reclaim at night and leave at dawn. Later in the winter, particularly in February
and March, they occasionally remain on the Reclaim, sometimes in large flocks, for
courtship and daytime feeding. This often coincides with heavy rain and winds, and
more extensive flooding of the Reclaim than is normal. These factors may explain the
considerable variability of the Teal population at Dibden. In the longer term, the
proposed Creek and the Church Farm Nature Conservation Area would offer a good
replacement habitat for Teal.
Alternative Scenarios
3.887 In addition to the prediction of the effect of the proposed development on the waterfowl
population outlined above, ABP have considered a number of different scenarios
(ABP/8/5, Appendix 7, Section 8). One scenario assumes that the recharge would not
provide any enhancement to the feeding habitat for waterfowl; thus the recharged
Hythe to Cadland foreshore would support only the present levels of birds. An
unfavourable result is predicted for Oystercatcher as well as Wigeon (although in the
case of Oystercatcher, the redistributed mean density would only slightly exceed the
average peak density). An unfavourable result is also predicted for total waterfowl.
3.888 A second scenario is based on English Nature's suggestion that the density of waterfowl
supported by the recharge would be no greater than the general density of waterfowl in
the remainder of the estuary. A favourable result is predicted for most species.
However, for Wigeon, Oystercatcher, Curlew and total waterfowl the result is
unfavourable (although in the case of Oystercatcher and Curlew, the displacement
effects are insignificant).
3.889 A third scenario assumes that none of the habitat creation measures proves successful.
The results confirm that most species displaced from Dibden Bay would still be able to
use the alternative feeding sites in Southampton Water, without unduly affecting the
density of other birds using those sites. However, the predicted outcome for Wigeon,
Oystercatcher, Curlew and total waterfowl is unfavourable.
3.890 In other scenarios, an adjustment is made to the manner in which "saltmarsh density" is
calculated; and species of waterfowl that do not normally feed in the tidal area are
excluded from the calculation.
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Dibden Bay Inquiry - Inspector's Report
3.891 Comparing the various scenarios, a number of conclusions can be drawn:

Only small levels of change are predicted for the waterfowl populations of the selected
mudflats in Southampton Water.

It is unlikely that any foreshore bird would be displaced beyond the Solent SPA, although
this cannot be proved.

Even in the worst case, only 3 species would be likely to be displaced beyond
Southampton Water.

None of the species for which displacement is predicted occurs at international levels of
significance in the SPA.

At worst, the displacement of Oystercatcher and Curlew would be marginal; it would be
difficult to conclude that this would affect the ecological function of the SPA.

The unfavourable prediction for Wigeon reflects the large number of these birds that
would be displaced from the Reclaim, rather than the displacement of foreshore birds.
This is a species that has dramatically increased in numbers over the past decade
(HCC/8/11, Figure 1). Some of the displaced Wigeon would undoubtedly be
accommodated within the Church Farm Nature Conservation Area.
Application of the Habitats Regulations 1994
Assessment
3.892 In the light of the foregoing analysis, ABP conclude that the proposed development
would not have an adverse effect on the Solent Maritime cSAC in the long-term, and
across the whole of its area.
3.893 As far as the Solent and Southampton Water SPA is concerned, ABP cannot conclude
that their project would not adversely affect the integrity of the European site. The
double negative is important and reflects the construction of the legislation. It does not
imply (and ABP do not concede) that the development would have an adverse effect on
the European site. Similar considerations apply to the Solent and Southampton Water
Ramsar Site.
3.894 In reaching this position ABP have had regard to the new conservation objectives for
the SPA contained in English Nature's Regulation 33 advice for the Solent European
Maritime Site (CD/EN/7). The first of these objectives is to maintain, in favourable
condition, the habitats of the internationally important populations of regularly
occurring Annex 1 species. These are breeding populations of the Mediterranean Gull;
the Common Tern; the Sandwich Tern; the Little Tern; and the Roseate Tern. None of
these species breed at Dibden Bay, or on the Hythe to Cadland foreshore. However,
there is evidence that Annex 1 terns occasionally fish in the shallow water adjacent to
Dibden Bay, in numbers that vary from a few individuals up to about 30. These birds
have been recorded sporadically from late July onwards. This is consistent with them
being in passage. Were they breeding birds, they would be likely to be seen in regular
numbers throughout the summer months. Consequently, it is concluded that the loss of
the shallow water off Dibden Bay would not affect the habitat of the SPA's breeding
population of Annex 1 birds.
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Dibden Bay Inquiry - Inspector's Report
3.895 Objectives 2 and 3 require the maintenance in favourable condition of habitats for
internationally important populations of Teal, Ringed Plover, Brent Goose and Blacktailed Godwit; and also for the internationally important waterfowl assemblage. Intertidal mudflat is identified as one of the particular habitat types used by these birds.
Plainly the proposed development would affect this habitat. While the SPA is confined
to the inter-tidal mudflat above MLW, in functional terms the waterfowl will forage
across the whole of the area exposed by the falling tide. It is therefore necessary to
consider the inter-tidal resource as a whole.
3.896 In functional terms, the effect of the Dibden Terminal project would be to reduce the
total extent of the inter-tidal mudflat available to the waterfowl populations for which
the SPA has been designated. It has not been possible to provide alternative habitat to
offset the losses that would occur between MLW and LAT (although the improved
habitat on the Hythe to Cadland Foreshore would serve to sustain many of the displaced
birds). Although the habitat that would be lost from below MLW is outside the SPA
boundary, it nevertheless represents part of the inter-tidal habitat available to the
assemblage of waterfowl for which the SPA was classified.
3.897 The proposed development would also affect the Dibden Reclaim, which provides
habitat particularly for Teal and Wigeon, and thereby helps sustain the waterfowl
population of the SPA. Alternative habitat for some of these birds would be provided
in the Church Farm Nature Conservation Area. This would include brackish pools,
saltmarsh and wet grassland, providing an ideal habitat for Teal. This could be
expected to help offset the loss of Teal habitat from the Reclaim. While it may not be
sufficient to support all the displaced Teal that currently feed on the Reclaim, it likely
that any surplus birds would find alternative habitat within the SPA. However, it is not
possible to be absolutely certain of this.
3.898 Although the Church Farm Nature Conservation Area would include a large area of
grassland managed specifically for grazing Wigeon, this area is not expected to be
sufficient for the entire population displaced from Dibden. The surplus birds might
well find alternative habitat within the SPA, but again it is not possible to be certain
about this. ABP's negative assessment of the implications of the proposed development
for the integrity of the SPA reflects these considerations.
Need for Compensatory Measures
3.899 A negative assessment under Regulation 48 does not necessarily imply a need for
compensatory measures under Regulation 53. The test is whether compensatory
measures would be necessary to ensure that the overall coherence of Natura 2000
would be protected. It is not necessarily the case that the removal of a particular
feeding area will render the remaining resource inadequate. Objectors have adduced no
evidence to demonstrate that the proposed development would have any adverse effect
on the coherence of the whole network of international nature conservation sites. It
would be nonsensical to assert that every adverse effect on an individual European site,
no matter how small, must necessarily result in a threat to the coherence of Natura
2000.
3.900 That is not to say that there is no prospect of compensatory measures being provided if
the Secretary of State judges them necessary. ABP's present position is that
compensatory measures have not been shown to be necessary. If the Secretary of State
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Dibden Bay Inquiry - Inspector's Report
comes to a contrary view, ABP are entitled to expect him to seek further information
from them with regard to this matter. Any other course would leave them unaware of
why their proposals were unacceptable.
Application of Structure Plan Policy EC6
3.901 Policy EC6 of the Structure Plan Review requires sufficient provision to be made to
offset the impact of port development, "including replacement or substitution of
habitats or features lost and conservation of ecological networks". However, no breach
of this aspect of the policy would occur unless:

the Secretary of State concludes that further compensatory measures are necessary to
ensure that the overall coherence of Natura 2000 is protected; and

such compensatory measures are not or cannot be provided.
3.902 It should be noted that Policy EC6 does not require that every loss of habitat must
automatically be replaced or substituted by a feature of equivalent size. Instead the
policy refers to "sufficient provision".
3.903 Furthermore, Policy EC6 requires compliance with a series of different criteria. A
failure to comply with one criterion need not be fatal to the Dibden Terminal project,
just as a failure to comply with one of a number of planning policies that apply to a
proposal need not automatically result in the refusal of planning permission. The
policy calls for a balanced approach and the exercise of judgement.
Fisheries
3.904 The potential for the construction and operation of the Dibden Terminal to disrupt
fisheries has been carefully investigated. Southampton Water is important for the
passage of migratory fish (particularly salmon, trout and eels) between the Rivers Test
and Itchen and the sea. The passage of migratory fish is the subject of statutory
protection under the Salmon and Freshwater Fisheries Act 1975; and salmon are one of
the interest features of the Itchen cSAC. Southampton Water is also a designated
Shellfish Water. The Solent supports a nationally important commercial fishery.
Commercial Fisheries
3.905 The range of impacts on commercial fisheries is summarised in Chapter 13 of the
Environmental Statement and detailed in Technical Statement TS/ME7. Fishing
activity would be subject to minor disturbance due to increased vessel movements
associated with the construction and operation of the Dibden Terminal, but experience
suggests that this should not cause a significant problem if properly managed.
3.906 The most important oyster beds in the area are at Chilling, Stanswood Bay and Calshot.
These beds are relatively remote from the proposed dredging and recharge sites, and
would not be adversely affected by the proposed operations.
3.907 While there was once a large clam fishery in Southampton Water, this has now been
substantially fished out. The remaining clam beds on the Waterside shore are limited in
extent, and previous attempts to enlarge the population by restocking have not been
entirely successful. It may be the case that the existing stock would be lost as a result
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Dibden Bay Inquiry - Inspector's Report
of the proposed development. However, the situation would be monitored, and
appropriate action (if any) would be discussed and agreed with the Southern Sea
Fisheries Committee.
3.908 Dibden is one of a number of sites in Southampton Water and the Solent that are fished
for eels. During the last 5 years, the annual catch at Dibden has averaged about 750kg
per annum. Construction of the proposed Dibden Terminal would result in the loss of
this part of the eel fishery.
Migratory Fish
The Salmon Population
3.909 There is evidence that the Atlantic salmon population is in decline. For instance, rod
catches on Hampshire's salmon rivers (the Test, Itchen and Avon) have been at a
consistently low level since the early 1990s (ABP/7/12, Figure 2). In a recent report23,
the World Wide Fund for Nature assess the major threats faced by this species. These
include:

overfishing, which has reduced stocks to below critical levels;

dams and other man made obstructions in rivers;

pollution of rivers by agricultural activity, industry and urban development; and

salmon farming, which increases the risk of disease and genetic contamination of wild
stock.
3.910 The report makes no reference to port development or estuarine conditions as factors
that have contributed to the decline in salmon stocks. In dealing specifically with the
decline in English and Welsh salmon populations, the report states:
Freshwater habitat degradation represents the greatest threat to salmon stocks,
but this problem also offers the greatest scope for amelioration and
constructive management. The problems faced by different rivers are wide
ranging, including industrial pollution, agricultural pollution (often diffuse in
nature), siltation of spawning and nursery areas, hydro-electric power schemes,
obstruction to migration and eutrophication.
3.911 In 1997 the Environment Agency published their Action Plan for the Management of
Salmon in the River Test Consultation Document (CD/EA/15). This was produced
against the background of the Agency's concern for declining salmon stocks. It makes
no reference to conditions in the estuary having an adverse effect on salmon. The
Environment Agency cannot point to any study, specific to Southampton, which
demonstrates such an effect.
3.912 This is significant, since Southampton Water and the Test estuary are already at the
centre of a major seaport. There is regular maintenance dredging, which has
consequences for the concentration of suspended sediment and dissolved oxygen. The
23
“The Status of Wild Atlantic Salmon: a River by River Assessment” – available from the WWF
website.
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Dibden Bay Inquiry - Inspector's Report
port is brightly lit, generates noise, and attracts vessels of many kinds in large numbers.
Despite these factors, there is no evidence to suggest that the fish are significantly
harmed by anything that happens in the estuary.
3.913 By standardising the data, it is possible to compare the decline in salmon catch numbers
for individual rivers with the national trend (ABP/7/12, Figure 1). While the
Hampshire rivers all reflect the national pattern, salmon catches from the Tyne have
increased rapidly since the 1980s, despite some major development schemes (including
considerable piling) on Tyneside.
3.914 It follows that the recent decline in the salmon stocks of the Test and Itchen cannot be
attributed to engineering works associated with the Port of Southampton. A similar
decline has taken place on the Hampshire Avon, which flows into the sea at
Christchurch, and has not been affected by the dredging, piling and other engineering
works that have taken place in Southampton Water. Major works were undertaken in
the River Test between 1968 and 1978 in connection with the construction of the
Southampton Container Terminal. Migratory fish would have had to pass within 200 to
300m of those works. It is known that there was a high level of suspended sediment in
the water column as a result of the dredging. Despite this, the variations in the salmon
population of the Test during the period in question were similar to the national trends.
They were also similar to the variations in the salmon populations of the Itchen and the
Hampshire Avon. They do not seem to have been significantly affected by the
engineering operations.
Restoration of the Salmon Stock
3.915 In a 1993 study, Scott and Beaumont noted that the survival of juvenile salmon in the
Itchen was particularly low. They concluded that, given the average egg to fry survival
rate observed, the stock would not be capable of sustaining itself, whatever the survival
rate in the marine phase of the salmon's life cycle. However, survival rates could be
improved significantly by the use of streamside incubation boxes; and by cleaning the
gravel in spawning areas, to remove sediments and calcium carbonate concretions. The
same conclusions apply to the River Test.
3.916 The Environment Agency's Salmon Action Plans for the Test and Itchen include costed
programmes of works designed to improve survival rates (ABP/12/7, Table 2).
However, it is clear that the Agency is unable to fund the requisite measures.
3.917 For some years, the maintenance of the salmon populations of the Test and Itchen has
depended upon restocking those rivers with fry. However, the World Wide Fund for
Nature caution against reliance on restocking, as this may have adverse genetic effects
due to the use of a limited broodstock. In any event current levels of restocking appear
to be insufficient to induce a recovery in the salmon populations of the two rivers
(ABP/12/7, Table 3). The Environment Agency are now moving towards habitat
improvement measures, such as cleaning the rivers' gravel beds, which would improve
the survival rate from egg to smolt, thereby maintaining the salmon population.
Without intervention, the salmon stocks in the Test and Itchen would be in terminal
decline.
3.918 Nevertheless, the Agency regard the salmon of the Test and Itchen as having a
recreational value, and permit rod fishing on these rivers. Fishermen are required to
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release any salmon caught prior to 16 June. However, there is little doubt that some of
the fish released will be traumatised or otherwise damaged. After 16 June, a voluntary
catch and release scheme operates, but not all of the fish caught are released alive. The
Agency's Action Plan for the Management of Salmon in the River Test indicates that
the level of catch directly affects the spawning escapement (CD/EA/15, para 3.1.1).
However, the Agency have no plans to impose any further restrictions on rod fishing.
Effect of Dredging
3.919 There is nothing new about dredging in Southampton Water, and there is nothing to
indicate that this activity has previously had a discernible impact on salmon stocks. In
1996 Moore and Ives undertook a study of the migratory behaviour of salmon in
Southampton Water (EA/6/3, pages 67-76). In describing the objectives of their study
they referred to "a proposed scheme to extend the port and dredge the maintained
channel to permit access for larger commercial shipping". It is inconceivable that they
would have failed to record any adverse effect of dredging that they identified. But no
such effect was recorded; and it is reasonable to conclude that none was found. In fact
the study found that "the movement of salmon smolts through the estuary and into
coastal waters was unaffected by changes in water quality".
3.920 A further report, produced by Moore and Ives for the Environment Agency and ABP,
addresses the possible impact of dredging in that part of the estuary where the Dibden
Terminal is proposed. It says:
The deepening and routine dredging within this section is considered to affect
only a relatively small proportion of the total water column at any one time.
The observation .... suggests that in this section there would be only a minimal
impact on smolt behaviour. Any impact is likely to involve the movement of
smolts away from the dredging activity without significantly affecting their
seaward migration (ABP/0/92, p12).
3.921 Salmon are known to be highly tolerant of dredging activities. A report from Fawley
Aquatic Research Laboratories Ltd records that:
Westerberg tracked salmon among the islands of the northern Gulf of Bothnia
and in 1976 followed them as they approached working dredgers; at 100m
distant the tag signals were lost in the "intensive underwater noise".... but the
salmon emerged seemingly unperturbed on the far side with little or no delay.
The salmon also had made no attempt to avoid the extremely turbid water
(EA/6/3, p32).
It is understood that the material being dredged on that occasion was gravel rather
than mud, but that does not render Westerberg's observation irrelevant to the
circumstances of the present case.
3.922 Objectors have argued that the passage of migratory fish would be disrupted by the
elevated levels of suspended sediments and contaminants, and by the depletion of
dissolved oxygen, which would be likely to result from the proposed dredging and
recharge operations. However, during construction, there would be significant breaks
in the dredging operations. For instance, records from a 10-day period during the
1996/7 capital dredging campaign in Southampton Water show that active dredging
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Dibden Bay Inquiry - Inspector's Report
occurred for only about 70% of the time available. The remaining time was spent in
changing over the barges that took the dredgings for disposal at sea; awaiting the return
of the barges; changing crew; and changing the location of the dredger. During a
typical day, there were about 4 periods of an hour or more when no dredging took
place. Such periods would provide migratory fish with a window of opportunity in
which to swim past the dredger.
3.923 Maintenance dredging is predicted to increase by up to 4% as a result of the proposed
development. This implies that a dredger would be operational for about an additional
8 hours in each dredging campaign. Migratory salmon would be affected by only one
maintenance dredging campaign a year. The effect on them would be minimal.
3.924 The additional capital and maintenance dredging would be concentrated on the western
side of the River Test, within the area of the proposed quay and approach channel. The
plume of suspended sediment consequent upon the dredging operations has been
modelled using the MIKE21 suite (ABP7/12, Figure 5). The modelling shows that
there would always be a corridor of relatively clear water on the opposite side of the
river, through which migratory fish could pass.
The Water Quality Thresholds
3.925 Water quality in the estuary would be protected by the provisions of the Food and
Environmental Protection Act 1985 (FEPA). This requires licenses to be obtained from
DEFRA for all works below MLW, including the proposed dredging, quay
construction, recharge and sediment disposal operations.
3.926 In addition, a draft legal agreement between ABP and the Environment Agency has
been prepared (CD/ABP/95J, Tab 3). This specifies thresholds for the concentration of
suspended sediment and the depletion of dissolved oxygen during dredging and
recharge operations. Automatic monitors would be stationed one metre above the
seabed at locations agreed with the Environment Agency. The monitoring stations
would define a "box", measuring about 500m by 500m, around the dredging site. In
addition, monitoring stations would be placed along the seaward edge of the recharge
and at the mouth of the proposed creek. The proposed monitoring would measure the
concentration of suspended sediment, the level of dissolved oxygen, and the incidence
of certain trace metals and organic substances. The total cost of the water quality
monitoring programme over a 10 year period would be up to £3 million.
3.927 The agreement specifies "caution" and "stop" thresholds, which take account of the
needs of marine life. If a "caution" threshold were to be breached at any of the
monitoring stations, corrective action would be taken. This might include the use of
different working methods or equipment; the artificial oxygenation of the water; or the
adoption of a reduced work rate. The corrective action would continue until the
adopted standard of water quality was restored. If a "stop" threshold were to be
breached, the relevant marine works would cease until such time as there has been
compliance with the corresponding "caution" threshold for at least an hour. These
controls would be much tighter than those that were applied during previous tidal
works in Southampton Water. The salmon populations of the Test and Itchen survived
those works.
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Dissolved Oxygen
3.928 ABP's preferred thresholds for dissolved oxygen derive from the EC Shellfish Waters
Directive. The "caution" threshold would be breached if the concentration of dissolved
oxygen fell below 70% of the saturation level for a period of 15 minutes. This
threshold approximates to an absolute concentration of about 5.3mg/l in summer time
and over 7mg/l in winter, reflecting the fact that the saturation level is affected by
temperature. The corresponding "stop" threshold would be breached if the level of
dissolved oxygen fell below 60% saturation. This approximates to an absolute
concentration of about 4.5mg/l in summer and over 6mg/l in winter.
3.929 The Environment Agency seek more restrictive "caution" and "stop" thresholds for
dissolved oxygen. They cite the work of Nixon et al (ABP/0/90) as providing a
sensible approach to the effect of dissolved oxygen depletion on fish. ABP accept
Nixon's approach. He indicates that if dissolved oxygen levels across the whole of an
estuary fall within the range 4mg/l to 8mg/l, there will be a low risk to marine life.
Given the "caution" and "stop" thresholds proposed by ABP, the dissolved oxygen level
at the monitoring stations around the dredging and recharge operations would be
unlikely ever to fall below 4.5mg/l.
3.930 Elsewhere in the estuary the level of dissolved oxygen would be higher still. At the
monitoring stations, one metre above the seabed, the concentration of suspended
sediment would be relatively high and the concentration of dissolved oxygen
correspondingly low. Typically, there is a reduction of at least 1mg/l in the
concentration of dissolved oxygen between the surface and the bed of Southampton
Water. So, water quality would be likely to improve progressively both at higher levels
in the water column, and with distance from the dredging site (ABP/7/12, Figure 4).
Accordingly, the risk to migratory fish over the estuary as a whole would be low. A
"stop" threshold of 4.5mg/l at the monitoring station would provide a 95%ile value for
the adjacent reach of the estuary (excluding the monitoring "box") of 5.5mg/l.
3.931 On the basis of Nixon's observations, a dissolved oxygen concentration of 5.5mg/l
would imply a 7% risk of an adverse effect on migratory fish. The risk of an adverse
effect on shellfish and other organisms would be about 12%. The adverse effects
suffered by migratory fish could be quite minor. They might include the fish slowing
down or taking avoiding action. It is known that salmonids are able actively to avoid
low concentrations of dissolved oxygen, a point conceded by the Environment Agency
(Day 62, p77). Modelling shows that there would be a corridor of relatively clean,
well-oxygenated water to the east of the dredged area (ABP/7/12, Figure 5).
3.932 The Agency seek a minimum "stop" threshold for dissolved oxygen of 5mg/l and a
corresponding "caution" threshold of 6.5mg/l. On the basis of Nixon's studies,
adoption of these thresholds would imply that the risk of an adverse effect on marine
organisms due to oxygen depletion would fall within the range 5% to 8%.
3.933 The Environment Agency have drawn attention to the fact that in certain North
American jurisdictions, a dissolved oxygen standard of 5mg/l is applied in order to
protect salmon. However, this standard is applied at the water's surface. It might
equate to a concentration of about 4mg/l at the seabed, due to the sag in the availability
of dissolved oxygen with increased depth.
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3.934 An attempt has been made to assess the consequences of adopting the thresholds
proposed by the Environment Agency (ABP/7/12, Appendix 2). It is likely that the
Environment Agency's "caution" threshold could be breached during the whole of the
period from May to October inclusive. Their "stop" threshold might also be breached
during parts of the warmest summer months. The effect would be to cause delay to the
construction programme. There would be a significant cost increase, as dredging plant
would have to stand idle. As a rough estimate, each phase of the proposed dredging
might be extended by 18 weeks, and £16-£17 million might be added to the cost of the
project (although these figures could be out by a factor of 2).
3.935 There is no scientific basis for the thresholds preferred by the Environment Agency and
ABP consider them to be unduly onerous. Nevertheless, the agreement between ABP
and the Agency includes a provision whereby these thresholds would become effective
if the Secretary of State so determined in making the HRO.
3.936 The Environment Agency have also suggested that dredging and piling should cease
from mid-March to mid-September, in order to accommodate the passage of migratory
salmonids. This would extend the contract programme by up to 36 months. The cost,
in terms of idle equipment and delayed income, would be likely to fall within the range
£40-£70 million (ABP/7/14, paras 16-19).
3.937 The Environment Act 1995 imposes a duty on the Environment Agency to take account
of the likely costs of its actions. Section 56(1) defines "costs" to include costs to any
person or organisation as well as costs to the environment. There is no evidence that
the Environment Agency have taken account of the potential cost of their requirements
to ABP. They have therefore failed to comply with their statutory duty.
Suspended Sediment and Contaminants
3.938 Thresholds for suspended sediments, trace metals and organic substances are contained
in the draft agreement. In summer, the "caution" and "stop" thresholds for suspended
sediment concentration at any monitoring station would be 500mg/l and 1,000mg/l
respectively. A suspended sediment concentration of 500mg/l at the edge of the
monitoring "box" would equate to a 95%ile concentration of less than 200mg/l when
averaged across the relevant reach of the estuary. There is evidence to indicate that
such a concentration would cause only minor to moderate physiological stress to fish in
freshwater conditions. It is likely to have a lesser effect in a marine environment.
3.939 The base concentration of suspended sediment in Southampton Water is very low in
comparison to that found in the Tyne and certain other estuaries. The evidence from
the Tyne suggests that salmon would be able to tolerate a modest increase in the
concentration of suspended sediment in Southampton Water. The evidence fails to
indicate that there is any basis for the assertion that salmon would suffer harmful
effects as a result of the proposed dredging and recharge operations.
Effect of Noise on Migratory Fish
3.940 Seas and estuaries are naturally noisy. However, work undertaken by Moore and Ives
has shown that fish will move away from ships (ABP/0/92). The Environment Agency
cite a paper by Nedwell, which suggests that the noise from ships can affect fish within
a radius of 100m (EA/6/3, p77 et seq). However, much of the additional shipping
traffic generated by the Dibden Terminal would be concentrated in the 4-5 hour period
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Dibden Bay Inquiry - Inspector's Report
around high water. Furthermore, large ships would be confined to the deep-water
channel, which is less than 300m wide. Even after the Dibden development, the
estuary would still have a minimum width of 740m along its length between Calshot
and the Southampton Container Terminal. There would be ample space in which
migratory fish could take avoiding action.
3.941 The noise from ships and working dredgers is likely to be in the range 150-175dB re
1Pa at 1m. Westerberg has shown that fish are able to pass through a zone of working
dredgers (ABP/7/18) although avoidance behaviour has been observed at distances of
less than 100m. In the context of the present proposals, there would be space available
for migratory fish to avoid swimming close to the dredging site.
3.942 Piling operations would be limited to day-time hours, thereby allowing migratory fish
to swim past the site at night. It has been noted that the migration of salmon smolts
from the River Test already occurs predominantly at night. Furthermore, on a typical
day, percussion piling might take place for about 3 hours overall. The rig would be
silent for much of the time.
3.943 Nedwell's paper indicates that the noise of piling operations can kill fish in the
immediate vicinity; and can effect the behaviour of fish up to 2km away. However,
piling operations undertaken in connection with the construction of Southampton
Container Terminal are not known to have resulted in fish being killed. Furthermore,
those operations did not result in any change in the River Test's salmon population that
was not also discernible in the salmon populations of the Itchen and the Hampshire
Avon. As already noted, intensive piling works do not appear to have had any adverse
affect on the size of the salmon population in the River Tyne.
3.944 It is likely that the noise of "setting-up" prior to the commencement of percussion
piling would have a deterrent effect on fish. However, if this were inadequate, it would
be possible to introduce an underwater sound emitter, which could be activated some
15 minutes before the start of each pile driving session. That would give fish ample
time in which to leave the area.
3.945 Nevertheless ABP accept that some additional control over the impact of piling noise
on salmon would be desirable. The effect of piling noise could be mitigated by the use
of "bubble curtains" (ABP/7/14, paras 20 to 26). This would entail the release of
compressed air from the seabed around the piling site. It would provide underwater
noise attenuation of about 20dB. The distance over which fish might be expected to
take avoidance action would be reduced from about 2km to between 200m and 500m
(EA/0/3). As a result, their migratory pathway would not be blocked at any time, since
the distance between the proposed piling sites and the eastern shore would be
substantially more than 500m.
3.946 Specific provision is made for the use of "bubble curtains" (or equivalent measures) in
paragraph 2(4) of the Schedule 4 of the filled-up HRO (CD/ABP/121). It is understood
that the Environment Agency accept this proposal in principle. In the circumstances, it
is irrational that they should seek the cessation of piling activities during the summer
months.
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Effect of Lighting on Migratory Fish
3.947 The proposed lighting installation at the Dibden Terminal would be designed to
minimise the dispersal of light away from the site. Southampton Water would not be
illuminated, save for a small area immediately adjacent to the proposed quay. Given
the width of the River Test at this point, fish would be able to avoid the lit area in their
passage to or from the sea.
3.948 The light intensity proposed at Dibden would also be substantially less than that
installed at the Southampton Container Terminal (SCT). The reach fronting the SCT is
relatively narrow, providing little opportunity for fish to move away from the berths.
Nevertheless, the fish succeed in making their passage past the lit area. Radio tracking
of salmon smolts indicates that they do not swim close to the surface, and that their
migration is independent of the time of day (EA/6/5, Appendix A5). There is no
evidence to suggest that they are particularly sensitive to light. Nor is there any
evidence to indicate that the illumination of the Dibden Terminal would have an
adverse effect on salmon stocks.
Changes in Estuarine Morphology
3.949 Objectors argue that changes to the morphology of the River Test would have an
adverse effect on the migration of salmonids. It is true that, in front of the proposed
Terminal, the river would be narrower than it is now; it would be bounded on either
side by hard structures; and there would be no shallow water. However, there is no
evidence to suggest that the narrowing of the Test due to the construction of the SCT
was harmful to salmon. Evidence from other estuaries confirms that developed
shorelines do not present a significant barrier to migrating fish. For instance, the lower
reaches of the Tyne are relatively narrow and are bounded by hard structures on either
side, but salmon stocks there are increasing.
3.950 The Environment Agency speculate that salmon seek shallow water in order to avoid
marine craft. However, there is no basis for this. A tracking study shows the daytime
movement of a salmon past Southampton Docks (EA/6/3, Appendix 1, Figure A10).
The fish moved through an area in which there was heavy boat traffic, including ferries
and hydrofoils.
3.951 There is no convincing evidence to support the proposition that migratory salmon rely
on the availability of shallow water to complete their passage, although there is
evidence to indicate that smolts seek out areas of relatively slack flow (EA/6/3, p74).
Tracks of migrating smolt show that these fish stay in the dredged shipping channel for
up to 80% of the duration of the ebb tide. On the flood tide, the migrating smolt spend
roughly equal amounts of time in the shipping channel and in shallower water (EA/6/3,
Appendix 1, Figures A5 to A12).
Fisheries Monitoring Programme
3.952 The proposed development would be unlikely to have a significant effect on salmonid
migration. However, on a precautionary basis, and having regard to the sensitive state
of the local salmon stock, the agreement between ABP and the Environment Agency
includes provision for a Fisheries Monitoring Programme, to be funded by ABP for a
period of 12 years (CD/ABP/95J, Tab 3, Part 3). The monitoring would be undertaken
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Dibden Bay Inquiry - Inspector's Report
by the Environment Agency. Funding would entail an initial payment of £60,000 and
annual payments of £29,000.
3.953 If the monitoring identifies a significant interruption to the migration of salmon as a
result of the proposed works, ABP and the Environment Agency would review the
water quality thresholds contained in their agreement, and the methods of constructing
the marine works. The monitoring programme would provide against the possibility of
the impact of the proposed development being greater than is currently envisaged.
Other Controls
3.954 Schedule 4 of the filled-up HRO contains comprehensive protective provisions for the
Environment Agency, with which the Agency agree (CD/ABP/121). At paragraph 7 it
requires ABP to take "all such measures as may be reasonably practicable to prevent
any interruption to the free passage of fish in the fishery during the construction of any
specified work". There is a further obligation on ABP to make good any damage to the
fishery resulting from these works. In addition, if the Agency have reason to believe
that the specified works would cause damage to the fishery, they may require ABP to
take remedial action.
The Itchen cSAC
3.955 Salmon are an interest feature of the Itchen cSAC. It is therefore necessary to consider
the effect of the proposed development on salmon in the context of Regulation 48 of
the Habitats Regulations 1994.
3.956 For the reasons set out above, the construction and operation of the Dibden Terminal
would be unlikely to have a material adverse impact on salmon swimming past the site
to, or from, the River Test. But even if there were such an impact, this would not be
felt by the Itchen salmon, as they do not need to swim close to the Terminal site in the
course of their migration. The Environment Agency argue that some individuals from
the Itchen salmon stock may take the wrong channel and venture into the Test. But
even if these individuals suffer ill-effects (which is unlikely) the purpose of the
legislation is to protect the salmon population as a whole, not isolated individuals.
3.957 In view of these considerations, ABP submit that the proposed development would not
have a significant effect on the Itchen cSAC. However, if the Secretary of State is not
satisfied on this point, ABP submit that, in accordance with Regulation 48(6) any
appropriate assessment should have regard to the proposed controls (including the
arrangements for the attenuation of piling noise; the water quality thresholds; and the
monitoring provisions). The conclusion should be that the proposed development
would not adversely affect the integrity of the Itchen cSAC.
The Environment Agency's Fisheries Mitigation Proposals
3.958 The Environment Agency's proposed mitigation measures are summarised in EA/0/7.
They are based on the premise that the marine works would cause a reduction in the
salmon's marine survival rate of 44%. There is no justification for this figure. Prior to
the commencement of the marine works, ABP would be required to make a £1.75
million payment to the Agency. By comparison, it is to be noted that the Agency's own
expenditure on salmon conservation measures in the Test and Itchen in 2001 was only
£170,000 (EA/6/6b).
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Dibden Bay Inquiry - Inspector's Report
3.959 The effect of the Agency's proposed mitigation scheme would be to transfer the entire
cost of conserving the salmon populations of the Test and Itchen to ABP. There is no
reason why ABP should accept such an obligation.
3.960 The specific compensation measures proposed by the Environment Agency include the
reinstatement and cleaning of spawning gravel; the provision of fish passages; and
various artificial means of enhancing salmon propagation. It is noteworthy that a
similar programme of measures is contained in the Agency's Salmon Action Plan for
the River Test, which was published in 1997 (CD/EA/15). In effect, the Agency are
trying to transfer to ABP the burden of funding conservation measures that were
identified as being desirable long before the Dibden Terminal application was made.
However, while the Action Plan suggests cleaning 8,500m2 of gravel a year, the
Agency now expects ABP to fund the cleaning of 35,000m2 annually for 10 years.
3.961 The Environment Agency's proposals are based on their assertion that the Dibden
Terminal development would give rise to a high risk of significant harm. There is no
foundation for that assertion. The financial burden that the Agency seek to impose on
ABP is both disproportionate and unreasonable.
Navigation
The Port of Southampton and its Approaches
3.962 ABP have statutory responsibilities as a Harbour Authority for the Port of Southampton
under the Transport Act 1991. The limits of the harbour extend to both sides of
Southampton Water up to the high water mark and include the Central Solent24. The
Western Solent is not within the harbour limits. The Harbour Authority for the Eastern
Solent is the Queen's Harbour Master for the Dockyard Port of Portsmouth. However,
an agreement between the Queen's Harbour Master and the Southampton Harbour
Authority provides that vessel movements in the Central and Eastern Solent are
managed by the Harbour Master Southampton, on behalf of both port authorities.
3.963 Hampshire County Council is the Harbour Authority for the Hamble. This is
principally a recreational harbour, generating little commercial traffic. The Cowes
Harbour Commission is the Harbour Authority for Cowes Harbour.
3.964 The Central Solent and Southampton can be approached from the east, via the Nab
Tower, and from the west, via the Needles. Large container ships and very large crude
carriers (VLCCs) invariably approach from the east. There is a deep-water channel at
the Nab, which is dredged by Esso to a maintained depth of 13.3m. For all but the very
deepest draught ships there are no effective tidal constraints in the Eastern and Central
Solent, to the seaward of the Western Approach Channel.
3.965 Entry and exit to Southampton Water for most commercial vessels is via the Western
Approach Channel. This is maintained at a dredged depth of 12.6m. The alternative
Northern Channel is only suitable for relatively shallow draught vessels. The main
navigable channel incorporates a 135o bend in the vicinity of the West Bramble Buoy
(the Bramble turn). Large vessels making the turn have limited room for manoeuvre.
24
For location of the Harbour limits and other features mentioned see Charts in ABP/9/3
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Dibden Bay Inquiry - Inspector's Report
3.966 This area is at the junction of the eastern and western approaches. With Cowes nearby,
it is the centre of much of the Solent's recreational activity, particularly during Cowes
week. It is the preferred starting point for high profile recreational events. In order to
make sure that it is safely managed, the Harbour Master has published a number of
Traffic Management Rules. Effective and positive management and co-operation
between the event organisers and the Harbour Authority ensures that events can take
place safely, almost without restriction. The existing arrangements, improved and
refined as necessary, would ensure that the extra Dibden traffic would be
accommodated safely and without impact on these events. This is also the view of the
Royal Yachting Association.
3.967 The approach from the Western Approach Channel to Dock Head and the port's main
wharves is via Southampton Water's dredged channel. The channel is some 15km long
and it is dredged to a maintained depth of 12.6m below CD. At its narrowest it is some
200m wide. Large ships can safely pass in the channel at Fawley and off Dock Head.
3.968 There is no small boat channel in Southampton Water and recreational craft have,
subject to the rules in the International Regulations for Preventing Collisions at Sea,
almost unrestricted access to the waters controlled by Southampton Harbour Authority.
However, special rules have been put in place to protect large commercial vessels
navigating the Bramble turn, the Thorn Channel and the Calshot turn. In this
designated "Area of Concern", craft under 20m long are prohibited from entering a
"Moving Prohibited Zone", 1,000m in front of and 100m to either side of vessels over
150m long (see para 3.976 below).
Tidal Regime and Access
3.969 Southampton's unique tidal conditions (the "double high tide") give the port a wider
access and departure window for any given dredged depth than is the case at other UK
ports. In 1996 the dredged depth in Southampton Water was increased from 10.2m to
12.6m.
3.970 For a ship drawing 14.5m, the average tidal window is between 5hrs 30mins and 5hrs
50mins per tidal cycle. This gives an average arrival and departure window25 of about
3 hours. For a ship drawing 15.0m, the average tidal window is just over 2 hours. On
the lowest neap tide of the year, three inbound ships and two outbound ships, each
drawing 14.5m could be accommodated in the available access window (ABP/9/7).
This theoretical analysis was checked practically and separately by the Harbour
Master's team.
3.971 Because Dibden Terminal would be closer to the sea than SCT, its arrival and departure
windows would be greater. Consequently, given the port's existing customers, their
existing and predicted throughputs, and the predicted traffic growth, there is no draught
requirement for any main capital dredge associated with Dibden Terminal for ships
drawing up to 15m. However, commercial and operational requirements may change.
25
The tidal window represents the length of time during the tidal cycle when there is sufficient water
available to allow a ship to safely navigate. The arrival and departure windows represent the time during which
a ship can safely enter a channel and navigate through it; eg if it takes 3 hours for a ship to move from the open
sea to the berth and the tidal window for the harbour is 4 hours, then the arrival window is 1 hour.
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Dibden Bay Inquiry - Inspector's Report
3.972 Eagle Lyon Pope's modelling shows that, with Dibden Terminal and SCT operating at
full capacity, and growth in all other sectors taken into account, the port would be able
to handle the traffic generated without the need for a further capital dredge. This
conclusion takes into account the possibility that all the vessels operating out of SCT
and Dibden Terminal could be deep draught and require slots within the available
access window. In practice that is unlikely to be the case and the levels to which they
would be loaded are more likely to be such that they would be able to make use of a
wider access window.
3.973 Some vessels will need to turn before berthing and those that do not will need to turn
before departing. This takes between 10 and 30 minutes, dependent on the towage
used. While vessels are turning the channel would be partially restricted. However, the
channel between Dibden Terminal and the Eastern Docks would be effectively twice as
wide as it is today. Occasionally the very largest of vessels would be delayed while
ships turn. However, this occurs at present when ships manoeuvre into Ocean Dock or
Marchwood Military Port or Berth 38 and the impact of the extra turns would be
minimal and manageable. Recreational craft and most of the vessels using
Southampton Docks would not be affected.
Safety
3.974 The Harbour Authority and Harbour Master are empowered to regulate the activities of
those operating within the harbour area. The Harbour Master can "direct" the
movement of vessels to minimise the risk of collision, improve traffic flows in
congested areas or crossing points and give vessels with hazardous cargoes the safest
possible passage. Instructions are published in Notices to Mariners and Byelaws.
3.975 The Port Marine Safety Code gives guidance to harbour authorities on how to discharge
their duties. Amongst other matters, it requires them to conduct a formal safety
assessment, introduce a safety management system, and publish their policies and
plans. The Port of Southampton fully complies with the requirements of the code. The
formal safety audit was completed in early 2001 and a safety management system is in
place. The performance of the Port's operational and navigational guidelines and safety
procedures are monitored and reviewed and navigational guidelines are produced and
amended as required. This is a continuous ongoing process.
3.976 Notice to Mariners No 20 of 2001 covers the Moving Prohibited Zone (MPZ) (see para
3.968 above). Although it appears to be an additional restriction placed on the
recreational sailor, it is in fact simply an interpretation of existing navigational rules.
Rule 9 of the Collision Regulations requires recreational craft not to impede the
passage of a vessel which can safely navigate only within a narrow channel. If all
recreational vessels obeyed Rule 9 there would be no need for the MPZ. The MPZ
regulation has been in place since 1989 during which time there have been no
objections to its existence or requests for its limits to be amended.
3.977 The Port's Vessel Traffic Services (VTS) system monitors vessel movements in the
harbour and the Eastern Solent and advises and guides vessels on matters of
navigational safety. VTS officers are appointed as Harbour Master's assistants and
when on duty they are authorised to exercise the Harbour Master's powers of direction.
Information provided to vessels includes details of ship movements, recreational
events, navigational hazards, and tide and weather data. The system at Southampton
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has recently been upgraded and enhanced to ensure that it can handle the predicted
traffic levels. It is manned 24 hours a day, 365 days a year.
3.978 Pilots trained and authorised by the Harbour Authority provide masters of vessels with
on board navigational advice and assistance. Commercial traffic within the harbour is
actively managed by VTS in co-ordination with the pilots. Ship movements are preplanned and actively controlled.
3.979 Eagle Lyon Pope undertook studies to determine the impact that Dibden Terminal
would have on the operation of the Harbour. The studies show that the existing tidal
access windows could safely cope with the additional traffic from the Terminal.
Overall waiting times due to traffic and tidal constraints are predicted to increase
slightly. However, this increase is largely a result of the model's statistical base, which
assumes vessels arrive at random times and the percentage of the largest (Class 1A)
vessels affected by tidal constraints would be similar to the present (TS/T2, Table 16).
In practice vessels are carefully programmed to make best use of their time at sea and
in harbour. If alongside, they are only authorised to sail when a slot is available. If at
sea, they adjust their speed as necessary to arrive at the pilot boarding station at the
instructed time or arrive at designated passing points as required. Delays would be
managed out of the process by good planning.
3.980 The risk assessment shows that the Port of Southampton is today statistically safer than
the average port. Whilst there would be a small increase in risk as traffic volumes
increase, this would be managed by the Safety Management System. With Dibden
Terminal fully operational the port would remain safer than average. Notwithstanding
this the port constantly reviews its traffic management rules and guidance. Safety
assessment is a continuous process and rules and guidelines will be changed, improved
and modified as required to increase safety wherever risk is detected.
3.981 Construction activities, including those associated with dredging, piling of the quay
wall and recharging the Hythe/Cadland foreshore would largely take place outside the
main channel. Dredging would be actively managed and, if required, temporary local
speed restrictions would be imposed when piling is in progress. The movement of
goods and materials would be controlled by VTS so as not to disrupt normal harbour
traffic.
Response to Concerns raised by Objectors
The Cruising Association
Risk Assessment
3.982 The nub of the Cruising Association's case appears to be that the Secretary of State
should not approve Dibden Terminal until he is satisfied, through an independent risk
assessment, that the safety of recreational craft is assured. They then seek certain
conditions if the scheme is authorised.
3.983 Their position on risk assessment reflects a misunderstanding of the regime. Their
witness indicated that he was quite certain that ABP Southampton is conducting its Port
Marine Safety Code activities satisfactorily and that there is nothing inherently risky or
dangerous in ABP's present operation of the port (Day 86, p174 and Day 87, p18).
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Whilst he expressed a lack of personal certainty about whether the same could be said
about the future, the Cruising Association's proof confirmed:
.... we do not say there is anything inherently risky or dangerous in the present
ABP operation or in the current ABP proposals (TCA/1/9, para 1.2).
3.984 As a matter of fact Technical Statement TS/T2 has been prepared and is an example of
what might be termed a Marine Impact Assessment.
3.985 Given the above, and having regard to the Cruising Association's other objections, it
must follow that they have no objection in principle to the scheme. It must further
follow that they accept that it is perfectly possible, within the scope of the powers ABP
seek, to operate the port in a safe and acceptable manner.
3.986 The absence of any objection from the RYA in this regard is significant. It is
inconceivable that they would not have spoken out had they entertained any risk
assessment concern. Similarly HCC, who are the harbour authority for the Hamble,
produced a "hybrid NATA" comparing the Dibden proposal with those at Bathside Bay
and London Gateway. This includes the criterion of safety (ability to conform to the
Port Marine Safety Code) under which it is noted that:
.... it should be possible for each of the new port developments to conform to
the Port Marine Safety Code and therefore each development has a neutral
score (HCC/4/7 paras 3.54 to 3.57).
3.987 There can be no doubt that the County Council is independent of ABP so far as
concerns Dibden Terminal. As another harbour authority on Southampton Water, their
views should carry considerable weight.
Suggested Conditions
3.988 As regards the MPZ, the Cruising Association's witness confirmed that the highest the
Association put their case was that "the additional risks may become unacceptable"
(Day 86, p190). Subsequently, he accepted that it is important to apply rules flexibly,
whether in the Collision Regulations or elsewhere, and not to try officiously to interpret
the rules so rigidly as to conflict with one another. Common sense and judgement
should prevail (Day 87, p20). He agreed that the MPZ regime normally covers the
present situation admirably; that it is fully accepted by yachting organisations and most
individual yachtsmen; and that it had clearly contributed to safety. He also accepted
that none of these points would change with Dibden Terminal (Day 87, pp20-22).
3.989 The Cruising Association's evidence regarding the purported bunching of MPZ vessels
was shown to be flawed in several areas (Day 87, p30-32). When these were pointed
out their witness agreed at least "partly" that the analysis "does not really take us very
far" (Day 87, p33).
3.990 It is common ground that responsibility for vessel safety rests with the master or
skipper and that yacht skippers have a responsibility to ensure that their boats are
adequately crewed. Crew members should be available to listen to the relevant VHF
channel, details of which are contained in the Southampton Yachtsman's guide.
Appropriate use should be made of all relevant aids to navigation, and engines should
be well maintained and ready for use when required. Passages should be planned in
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advance. Where a yacht under sail is approaching a point where in the skipper's
judgement it might be better to use the engine, that decision should be taken early and
always erring on the side of prudence. Equally, where a vessel does not have an
engine, the skipper should be extra careful to avoid getting his vessel into a situation
where he might wish he had an engine (Day 87, pp33-37 and 44-46).
3.991 The Cruising Association's witness agreed that it is not a free for all in a port; there are
restrictions on everybody, recreational and commercial alike, to ensure that the best use
in everybody's interest is made of the available water. He further agreed that the
guidance envisages a degree of control and that there certainly should be general
directions and maybe even special directions (Day 87, pp38-39). In this regard Modern
Ports provides:
Ports have rules. The public may exercise a right to use a port if they keep
them. Authorities will not achieve effective safety management systems unless
they use their rules more than most do now. Shipping should expect to be
directed in our ports. The code requires the use of passage planning proposed by the Marine Accident Investigation Branch (MAIB) - as a means
to this end. The aim is to use such measures practically, depending upon the
risks (para 4.2.6).
3.992 The Port Marine Safety Code provides:
Passage plans may be dispensed with for particular kinds of vessel if the
formal risk assessment has established that they are not necessary for the
management of risk in such cases. As a general rule it is acceptable to exclude
those vessels for which the harbour authority's byelaws give sufficient control
- for example, recreational vessels. There is, however, no objection to
including such vessels if that is necessary and practicable (para 2.4.15).
3.993 The Cruising Association accepted that Dibden Terminal would not of itself produce a
requirement for the imposition separately by the Harbour Master of compulsory
passage planning (Day 87, pp40-41).
3.994 Overall it became clear that the Cruising Association's concerns relate to those few
recreational sailors who lack competence, rather than any inherent safety problems
associated with the Dibden Terminal proposal. The remedy for this lies in the hands of
the recreational community. It is no basis for conditions to be imposed on approval of
the Dibden Terminal either relating to the separation of vessels subject to the MPZ
regulations, or to the provision of a marked safety channel to the west of the Thorn
Channel in the vicinity of the Calshot Shallows.
3.995 These matters are already more than adequately dealt with by the Harbour Master
through the exercise of his existing statutory functions and using his experience and
expertise. With Dibden Terminal the port would be busier, but there would be no step
change in traffic, nor fundamental change in operations. The flexibility and judgement
which run and guide the present situation represent the best way to ensure safe and
efficient operation in the future. If new circumstances, whether referable to Dibden
Terminal or not, suggest a requirement for additional regulation in the future, that
requirement would be best met by the Harbour Master exercising his existing (and
sufficient) powers and discretion on a case by case basis.
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3.996 The Cruising Association did not call evidence to support their suggested conditions
relating to yacht moorings or the access to Hythe Marina. Irrespective of this, the
suggested moorings condition is not related to Dibden Terminal and is misconceived,
uncertain and unenforceable. The RYA correspondence that led to the RYA
withdrawal deals with moorings. The RYA accepted that ABP's assurances on the
matter should merely be sent to the Secretary of State to be noted (RYA/0/5).
Other Matters
3.997 The Cruising Association's witness accepted, firstly, that yachting involvement closely
mirrors the general economic well being of the country; and secondly, that, if the
Secretary of State were to be satisfied that the need case for Dibden Terminal was
made, then it would be in the national interest for Dibden Terminal to proceed, and that
there would be a beneficial impact on the national economy. Conversely, if Dibden
Terminal were not to proceed, there would be an adverse impact on the national
economy. He confirmed that one would expect a similar trend to evidence itself in
yachting. It thus follows that, if Dibden Terminal were to proceed then, in economic
terms, the result would be in the interests of the recreational use of seagoing vessels and
yachts (Day 87, pp77-78).
3.998 The New Forest Coastal Management Plan notes:
There is potential for conflict between commercial shipping and recreational
craft, particularly in Southampton Water. The northern part of Southampton
Water is heavily utilised by commercial shipping entering the docks, and
recreational craft can hamper or seriously endanger the numerous commercial
vessels manoeuvring within this confined space .... (CD/NFDC/4, para B7.17).
3.999 Policy B7 in the Plan provides:
The District Council will ... seek to limit further increases in the numbers of
recreational sailing craft based on the shores of this District.
3.1000 The Cruising Association's witness agreed that one could not simply assume that
yachting would continue to increase in a wholly unfettered fashion. He confirmed that
it was a question of striking a proper balance and that it would be quite wrong to
suggest that recreational yachting should be allowed to develop wholly unfettered or
that commercial shipping development should be pegged at whatever level is necessary
to allow that recreational expansion to continue (Day 87, p82).
3.1001 Whilst the Cruising Association raised the question of ship manoeuvrability they
acknowledged that they lacked the necessary expertise to offer a view themselves.
They produced an article on the subject, but it was evident that they had not fully
understood it. Their cross-examination of ABP's Harbour Master made this clear.
3.1002 The fact that a vessel is deemed to be "constrained by her draught" does not mean that
she lacks manoeuvrability. Today's cruise ships and large container ships are much
more manoeuvrable than they were ten years ago. This has been achieved by
technological advances such as the fitting of bow thrusters and improved rudders
(ABP/9/5, Appendix 2).
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Hythe Marina Parties
3.1003 ABP do not dispute the Hythe Marina Parties' claim that 15 boats can be queuing to
enter the Marina. However, the numbers vary within the day and within the year and
15 is the peak which occurs only on a few summer weekends when spring tides occur
in the late afternoon.
3.1004 The matter was considered by the RYA, who after consulting Hythe Marina, agreed
before the Inquiry opened:
The area for boats waiting to enter Hythe Marina will not be lost as a result of
either the construction of the works or the scheme itself. Due care will be
needed by recreational users during construction.....
In the long term the deeper water offshore of the creek and the new terminal
will provide additional deep water within which boats can wait to enter the
marina via the lock gates, as occurs particularly during busy periods
(CD/GEN/13, paras 4.14 and 15).
3.1005 Notwithstanding the Hythe Marina Parties' later objections, the RYA did not change
their position.
3.1006 The Hythe Marina Parties seek an additional area of dredging of just under 1ha (Day
87, p125). To justify this a clear need would have to be demonstrated, having regard to
any environmental effects, including those on the SPA and Ramsar sites.
3.1007 Following construction of Phase 3 of the Terminal, part of the area currently
identified by the Hythe Marina Parties as a waiting area for boats entering the marina
would be in the deep water channel (ABP/9/8). However, boats would normally be
able to wait there as at present and they would only be precluded from doing so when
movements to or from the eastern berths of Dibden Terminal occur. There would be
relatively few occasions when these movements coincide with significant numbers of
boats waiting to enter the marina lock (ABP/9/4, Annex C, paras 16 and 17). At these
times, boats could wait outside the channel, slightly further to the east in part of the
area marked dark green on plan ABP/9/8. The 3.3ha available there would be more
than adequate to provide the additional waiting space sought, whilst still leaving room
for outbound vessels from the marina. The extra distance from the lock gates would
not be significant and boats waiting in the area would still be readily visible to the lock
keeper.
3.1008 Another possibility would be to control the entry of boats to the lock using the VHF
radios and mobile phones carried by boats to schedule and call boats forward to enter
the lock. They would then have the opportunity to cruise off elsewhere, returning at the
appointed time. This is only a variation on what currently occurs and there is no reason
why it should not continue to work satisfactorily with Dibden Terminal. Incidences of
boorish behaviour by way of queue jumping and intemperate language that occurred in
the past should not be relied on as part of an argument to justify a dredge.
3.1009 Whilst the Hythe Marina Parties suggested that the cost of the accommodation dredge
would be less than the devaluation of Hythe Marina which would result from failure to
do it, no evidence was produced of any devaluation that would arise.
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3.1010 The Harbour Master is satisfied that a sufficient area of water would exist at all states
of the tide to allow boats waiting to enter the marina to do so safely (ABP/9/4, Annex
C, para 17). This is the only professional view available to the Inquiry and the Hythe
Marina Parties accepted that it was wholly untrammelled by commercial considerations
(Day 87, p112). It should be given weight.
RADBP
3.1011 RADBP did not attend the Navigation Joint Data Group and their evidence on the
topic emerged at the very last moment. The "confidential sources" relied on in the
evidence included the P&O information department, P&O Needloyd's Manager
(Network Planning) and a contact at Felixstowe. It also emerged that RADBP's witness
on the subject had never been on the bridge of a large ship. In relation to vessel size he
told his own Counsel that he was "not an expert on this, all I can say is what I have read
in the various journals ....". This is relevant to the weight that should be attributed to
his evidence.
Vessel Size
3.1012 It is common ground that the Lloyd's Register article produced and relied on by
RADBP (RADBP/14/5/2) is referring back to an article by Tozer and Penfold. This in
turn identified the maximum principle dimensions of a ULCS as including a design
draught of 14.5m (ABP/5/3 Appendix 5, p2). The paper developed a conceptual design
for a ship capable of carrying 12,500 or 13,000 TEU. Similar messages were contained
in the article in Containerisation International produced earlier by RADBP
(RADBP/14/4/2)
3.1013 Ship owners will build what makes commercial sense. They will not go any deeper in
terms of draught than they need to, since to do so would limit the range of ports at
which the vessels would be able to call and reduce their operational flexibility. Whilst
nobody is able to predict future events with complete certainty, on the evidence
presently available 14.5m remains the appropriate figure for which to plan (ABP/9/10,
Section 1). In this regard RADBP's witness stated in his proof (RADBP/14/4, para 2.1,
emphasis added)
It would seem self evident that any major new container port scheduled for
completion beyond 2010 must be designed to handle the largest container
ships foreseen, namely 14.5m draught x 57m beam x 404m length.
3.1014 Any other conclusion would have been perverse.
Under Keel Clearance (UKC)
3.1015 It is a matter of fact that the UKC for a 14.5m draught vessel in Southampton is
derived from 10% of that draught, or 1.5m. There are limited exceptions, such as the
2.0m UKC imposed on a small number of CMA/CGM container vessels by the Harbour
Master's Staff Instruction 17/2001. Above Fawley it is possible to reduce UKC to
1.1m, with further reductions possible on and off berth. Esso tankers use 1.3m UKC.
3.1016 RADBP's witness asserted in his proof that some pilots "impose" a higher 2.0m UKC.
The evidence was, however, reported at third hand and he accepted that his wording
was inappropriate and should have been "advise the use of" (Day 88, p49). He
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accepted that 1.5m is the port operational figure and that the highest he put his case was
that a 2.0m UKC is sometimes applied (Day 88, pp54-55).
3.1017 P&O and Halcrow also adopted the figure of 1.5m UKC for Southampton in the
context of comparing Shellhaven with other ports (ABP/0/114, Fig 8.6).
3.1018 As to the squat and heel allowances26, RADBP's witness confirmed that he was happy
to adopt the Harbour Master's figures for squat in the Thorn channel. He further agreed
that the actual depth of water in the Nab channel is materially greater than the 13.3m
maintained depth on which his calculations were based (ABP/9/5, Fig 1). The method
he used to calculate heel in the Thorn turn was shown to be inaccurate. In any event
heel in the Bramble turn would only occur where the actual water depth is greater than
the nominal maintained depth of 12.6m (ABP/9/5, Fig 2). The 1.5m port UKC includes
allowances for both heel and squat.
Need for a Further Capital Dredge
3.1019 ABP's position is that at present there is no commercial demand for a dredge. At the
moment it would not be possible to justify a dredge. It is not known which customers
would use Dibden Terminal and some shipping lines, such as Evergreen, choose to run
smaller ships. However, should the need for a further dredge arise at some time in the
future, then an application would be made. The Harbour Master's evidence is that a
future dredge is possible, but not inevitable; and any requirement for a dredge would be
commercially driven.
3.1020 SCT, writing to Dr Julian Lewis MP, noted:
The largest container ships handled by SCT have a maximum load draught of
14.5m (albeit they seldom achieve this depth) and there are two services per
week of this configuration. The majority of vessels have a range of draughts
between 11.0 and 13.5m. We have an added advantage of the unique double
high tide in the Solent, and currently the tidal window is not a constraint on
our operation (ABP5/3, Appendix 6, Attachment to letter of 16 August).
3.1021 In any event, RADBP's point is a sterile one. The Secretary of State through his
scoping letter for the HRO Environmental Statement indicated:
It is possible that a result of the proposals will be the need to deepen the
existing deep water channel currently used for access to the port. Your
Statement should therefore include an assessment of the impacts of such a
deepening (TS/PC1, Appendix X, p3).
3.1022 The Environmental Statement included such an assessment (ES, paras 13.22-23 and
13.201-207). A more detailed report was also before the inquiry (CD/ABP/103). It
was referred to by ABP's witness dealing with erosion and deposition of sediment
(ABP/7/1, paras 158-161; and Day 33, pp48-50). The evidence and assessment
considered deepening Southampton Water to 13.8m and the Thorn Channel to 14.2m.
The evidence was not challenged and whilst RADBP referred to the report in their
Squat occurs when a ship passing through shallows “sinks” in the water due to its speed and the
interaction with the seabed. Heel occurs as a ship turns.
26
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closing submissions, they made no reference to the Environmental Statement. Their
point accordingly fails.
Solent Protection Society
3.1023 The Solent Protection Society's evidence was submitted as a written representation
and raised no matters not dealt with elsewhere. However, in their closing submissions
the Society questioned the Harbour Master's impartiality (SPS/0/2, p16). It is
unfortunate that such an allegation surfaced in this way. Had the Solent Protection
Society intended to make the point, they were duty bound to put it to the Harbour
Master in cross-examination. They did not do so, despite having the advantage of
being represented by Counsel.
Royal Yachting Association
3.1024 The Secretary of State should derive considerable comfort from the RYA's
withdrawal (RYA/0/3). Whilst they maintained an objection based on the potential
impact on the Thorn Channel they noted that it had "not been the subject of any work
by the RYA and will .... be pursued by others ....".
3.1025 The terms of the objection are revealing. The point is dealt with in ABP's response to
the Cruising Association's evidence.
Land Access
3.1026 At the outset of the Inquiry, and in a large number of the written representations,
highway and access considerations featured very heavily as one of the arguments why
Dibden Terminal would be in the wrong location and should not be permitted.
3.1027 As the Inquiry progressed, the proposals were critically examined by the objectors
and their consultants and experts. The traffic generation figures were examined in
detail, as were the measures proposed to deal with that traffic. The capacity and safety
of the A326 was examined and journey time analyses were undertaken. Sensitivity
tests were run. Modest adjustments to the proposals were agreed by ABP, as a result of
which Hampshire County Council, as highway authority, confirmed that their
objections in principle relating to the highway design and capacity of the A326 had
been overcome (ABP/10/16, para 15). The New Forest District Council did not
disagree.
3.1028 Defence Estates similarly accepted that access to Marchwood Military Port would not
be compromised as a consequence of the Terminal proposals (ibid para 17 and DE/0/3).
3.1029 Test Valley District Council explained that they did not oppose the proposals in
principle provided they were consulted on the measures to direct traffic onto the
strategic road network (Day 73, pp 54-55).
3.1030 ABP recognise that local people are concerned about the ways in which the access
proposals might affect their daily lives. Where necessary, ABP are committed to
mitigate the effects through the Section 106 Agreement and Undertaking. Many of the
concerns are, however, based on an emotive response to what are perceived as the
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Dibden Bay Inquiry - Inspector's Report
likely effects, rather than any detailed analysis of the transport aspects of the proposals.
Assertions were sometimes made which bore no relation to the evidence called at the
Inquiry.
3.1031 In this regard ABP invite the Secretary of State to make his decision on a rational
basis, relying on the evidence called at the Inquiry and the commitments to mitigation
that ABP have provided through the Section 106 Agreement and Undertaking.
Policy
3.1032 Following the County and District Councils' agreement with ABP on the road access
aspects of the proposals, they gave no evidence on policy questions relating to land
access matters. Neither did any other party give evidence on these policy issues. The
policy background is accordingly uncontroversial. However, the fact that this is so
should not lessen the importance of Dibden Terminal's contribution to the achievement
of important policy objectives.
3.1033 Key policy objectives relevant to Dibden Terminal include the need to:

maintain and enhance the role of the port of Southampton as a crucial means of providing
sustainable distribution of British trade;

enhance the physical infrastructure of the rail network so as to increase its share of the
freight market;

ensure sufficient capacity on the strategic road network to allow the safe and efficient
movement of freight;

avoid over providing capacity on the strategic road network;

discourage local trips from using the strategic road network by providing non-car borne
means of transport which are safe, efficient and affordable; and

ensure appropriate developer contributions to provide the resources to implement these
objectives.
3.1034 No party attending the Inquiry disagreed with any of these policy objectives, or
argued that they should not form the basis for the assessment of the proposals.
3.1035 ABP's central contention is that the proposals advance each of these objectives in a
material and beneficial way. At the end of the Inquiry no party attending sought to
argue the contrary position.
The Transport Strategy
3.1036 As an integral part of developing the Dibden Terminal proposals a detailed
assessment was undertaken of the land access options and, following this, a transport
strategy was developed. This was subject to ongoing modifications and improvements
in response to emerging Government policy and the views of the Highway Authority,
the Strategic Rail Authority and other interested parties.
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3.1037 The strategy provides for land access to the Terminal by road and rail. The road
proposals provide a direct link to the A326 and improvements to the A326 where
required over the length between the Terminal and the M27 Junction 2. The section of
the A326 between the Terminal entrance and the M27 is part of the strategic road
network as defined by the Hampshire County Structure Plan Review (CD/HCC/2,
policy T7).
3.1038 The rail proposals provide for a connection to the Fawley Branch Line and works at
Totton where the branch line joins the main line running between London and
Weymouth.
3.1039 The proposals also include a package of measures to enhance public transport,
including provision to enhance local bus services and provide a new "park and ride"
facility with a service to Southampton. These would be secured through the Section
106 Agreement (ABP/0/149).
3.1040 The Section 106 Agreement also provides a package of measures to control lorry
movements. These include a Lorry Routing and Signing Strategy, backed by routing
covenants for construction and operational traffic. Signing for the Terminal would
encourage traffic to route via Junction 2 of the M27 and the A326; and to avoid the
A336 between the M27(J1) and Totton, and the A35/M271 route between the M27(J3)
and Hounsdown.
3.1041 The Freight Quality Partnership would involve every major private and public sector
body with an interest in freight on the Waterside. It would bring together measures and
procedures for maximising the potential of sustainable distribution and would assist in
monitoring adherence to the signing strategy and routing agreements.
3.1042 The Port Closure Plan would provide controls in the event of unforeseen disruption of
port activities that would enable HGVs to be managed in an appropriate manner,
without unduly affecting local communities.
3.1043 A comprehensive Port Travel Plan would encourage employees to walk, cycle and
take public transport. It would also ensure that facilities are provided within the
Terminal so as to limit the need to travel. Safeguards are included to ensure that it
would be brought into effect.
3.1044 Each of these measures would be supported by financial contributions from ABP,
within the ambit of Circular 1/97.
3.1045 Further measures included in the Section 106 Undertaking, include payment of a
contribution to enhance pedestrian and cyclist facilities in Totton (see para 3.1067 et
seq below). Provision is also made for ABP to fund ongoing monitoring of traffic
levels in Marchwood village and the New Forest (see para 3.1050 below).
Road Proposals
3.1046 ABP's proposals include a comprehensive package of improvements to the A326 (see
paragraphs 3.126 et seq) and improvements to enhance pedestrian safety at the level
crossings on the Fawley Branch Line at Main Road and Tavell's Lane, Marchwood, and
at Jacob's Gutter Lane, Hounsdown. The measures proposed, and the timescale for
their implementation, are agreed with the County and District Councils.
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3.1047 On the A326, the single carriageway sections of the road between the Terminal
entrance and the Fletchwood Road Junction would be widened to provide a total width
of 13m. This would allow the carriageway to be laid out with two 5m wide lanes, with
1m edge strips and a 1m wide central hatching area. It would also provide scope for the
future laying out of two narrower lanes in each direction, should the County Council
wish to do so to provide enhancements to the corridor in the future (ABP/10/16 and
attached drawing).
3.1048 Capacity of the road and the proposed new signal controlled junctions, assessed using
TRANSYT, would be adequate to accommodate traffic from Dibden Terminal and the
expected growth in non-terminal traffic, including that expected from the refinery and
other businesses at Fawley (Day 69, p55).
3.1049 Predicted journey times during the morning and evening peaks with the proposed
improvements and the Dibden Terminal traffic would be very similar to current
observed journey times on the route (Day 69, pp16-17). Safety would not be
compromised (Day 69, p49). Indeed there would be improvements. At Marchwood the
junction at Twiggs Lane would be signalised; and at Ashurst Bridge an existing
problem of forward visibility would be resolved. The increased width of carriageway
available would also provide the scope for improved road markings.
3.1050 Because journey times on the A326 would not be increased, traffic is unlikely to be
displaced onto alternative routes through Marchwood or the New Forest.
Notwithstanding this, the Section 106 Undertaking provides for ABP to monitor traffic
levels and to contribute to traffic management measures if monitoring shows that
commercial traffic from the Terminal is passing through either of these areas, or other
traffic passing through has increased as a result of congestion on the A326
(ABP/0/149).
3.1051 Beyond the A326, the Highways Agency is content that the development would not
have a material effect on the trunk road network (ABP/10/3, Appendix 01).
Rail Proposals
3.1052 There is no dispute that the proposed modifications to improve the capacity of the
Fawley Branch Line would provide the physical infrastructure to accommodate the
predicted rail traffic from Dibden Terminal. The works would be implemented by
Railtrack when required, using funding provided by ABP (ABP/0/145).
3.1053 Insofar as there is any issue it concerns the way in which Dibden Terminal rail traffic
might be accommodated on the wider rail network. In this regard the Inquiry had the
benefit of hearing from Mr Chapman on behalf of the SRA. He was invited to examine
a series of policy statements that the SRA had made, and to confirm the continued
commitment of SRA towards delivering those. In each case he responded positively.
As to the general strategy, he confirmed that the SRA remained committed to
delivering the network capacity to accommodate at least 80% growth in freight traffic;
and that securing a greater proportion of port traffic is a vital part of that strategy (Day
70, p41-43).
3.1054 As to the SRA's commitment to upgrading the route from Southampton, he confirmed
that the SRA had not abandoned its plans to enhance the capacity of the route between
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Southampton and the West Coast Main Line as a Phase 1 project for implementation in
2 to 5 years (SRA Freight Strategy (CD/SRA/2, p19; and Day 70, pp48-49) He further
confirmed that the SRA continued to aspire to (ibid, p20 and Day 70, p47):

complete the W12 gauge enhancement works by 2005/2006; and

re-signal the Cherwell Valley route between Didcot and Banbury by 2003 27.
3.1055 Subsequently the County and District Councils sought to cast doubt on the delivery of
these improvements, because of what they thought was an insuperable issue at Reading
(Day 70, p90 et seq). However, the relevance of this is limited as, firstly, it is
inconsistent with the highways' agreement. Sensitivity testing for the A326 assumed
that at least 15% of containers would enter and leave the Terminal by rail28. All parties
accept this is a minimum which is likely to be achieved, even without any rail
improvements at all (ABP/5/21, p2 and Day 70, pages 67-68). Accordingly, even if the
SRA are unable to deliver any of the improvements that they have publicly committed
to, that would have no impact on the central agreed proposition that all container traffic
which would be generated by Dibden Terminal could be safely and satisfactorily
accommodated on the road and rail network.
3.1056 Secondly, the County and District Council's case involves the Secretary of State
accepting that it is unlikely that the SRA will be able to deliver the improvements to the
rail network to which they are committed. There is no basis before the Inquiry for
drawing any such conclusion. The funding is in place. The Government is in favour of
and is committed to improving the network so as to promote sustainable distribution.
There was no suggestion, or evidence, that the required works are not technically
feasible. Indeed Mr Garratt's evidence points to different ways in which capacity could
be enhanced either by timetabling improvements, or physical infrastructure works, or
both (ABP/5/16 to 23).
3.1057 Proving precisely what works to improve the rail network are necessary, or will be
undertaken, or precisely what the timetable might be in a number of years time is
beyond the scope of the Dibden Terminal Inquiry. It is not for the Inquiry to attempt to
plan the future of the rail network. If the Secretary of State is not committed to the
necessary improvement and expenditure, he will no doubt say so. ABP proceeds on the
basis that the policy commitment is in place. Given the SRA/Government
commitment, there is no basis for questioning the capacity of the rail network to handle
Dibden Terminal traffic.
3.1058 ABP submit that in these circumstances the Secretary of State should conclude that
the capacity and works the SRA have said will be available will, in fact, be provided.
On this basis, the network will be able to accommodate 35% of Dibden Terminal
container traffic. However, even if for any reason this proves not to be the case, this
does not present any difficulty with regard to the overall acceptability of the Dibden
27
Subsequently the SRA announced that re-signalling of the Cherwell Valley route would definitely be
undertaken and is expected to be completed in 2004 (ABP/5/23).
28
Sensitivity testing using TRANSYT was undertaken to test the capacity of the A326 with differing
assumptions as to the volume of traffic handled by the Terminal, the road/rail split; the proportion of containers
transhipped and the use of the proposed park and ride facility. These included a test with a 85/15% road/rail
split (CD/GEN/1A/1, Appendix SLA/3.1)
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Terminal proposals for the reasons noted above. Accordingly it would be unnecessary
and unreasonable for the Secretary of State to accede to the Councils' suggestion that
the HRO should be modified to prevent Phase 3 of the Terminal being brought into use
before the Secretary of State certifies that the national rail infrastructure is adequate to
enable 15% of the containers to be moved by rail.
Other Matters
Park and Ride
3.1059 ABP are conscious that their proposal is to lay out 500 car parking spaces in the New
Forest Heritage Area. ABP are equally conscious that the Secretary of State will want
to have regard to the extent of any evidence which may be available of the degree to
which alternative sites may have been investigated. It is plainly not sufficient that the
site proposed by Work 4B of the HRO should be preferred simply because it is the only
one which has been offered to the County and District Councils free of charge.
Southampton City Council have commissioned a report on "park and ride". This has
concluded that the provision of a "park and ride" facility would accord with policy. A
number of sites have been identified which do not involve any impact on the Heritage
Area (ABP/0/96).
3.1060 The case advanced by ABP in the evidence is that the "park and ride" is an
appropriate part of the proposals when viewed as a whole. However, ABP recognise
in the light of the evidence now available, that the Secretary of State may conclude to
the contrary. The Section 106 Agreement accordingly provides for an equivalent sum
of money to that which would have been directed to providing/subsidising the "park
and ride" to be expended on appropriate public transport measures elsewhere. It is
nowhere suggested that such measures would not be effective in supporting non-car
modes and therefore modal shift.
Ashurst Bridge
3.1061 The County and District Councils' submissions on the need for an additional
Grampian condition in relation to Ashurst Bridge proceed on the basis that the
condition is necessary because "the pinch point will be a road traffic problem from day
one of opening the Terminal" (HCC/0/44, para 387).
3.1062 This is incorrect. There is no evidence before the Inquiry to support this assertion.
The pinch point is an existing deficiency on an existing highway. The A326 operates
satisfactorily in current circumstances notwithstanding that deficiency. There is no
evidence that the additional trips generated by Dibden Terminal traffic from day one
would make that deficiency materially worse.
3.1063 The Dibden Terminal trip generation evidence proceeded at all times on the
assumption of a fully open Terminal in 2011. The County and District Councils made
no attempt to call evidence of trip generation impacts on the A326 at an earlier stage of
the development of the Terminal.
3.1064 The Section 106 Undertaking provides that ABP will not continue to occupy the
Terminal unless the Stage 2 Works to the A326 (which include the Ashurst Bridge
widening) have been completed within 2 years of opening the Terminal or prior to
bringing into use more than 1,000m of quay wall, whichever occurs first. This
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Dibden Bay Inquiry - Inspector's Report
concession was agreed by ABP even though, strictly speaking, there is no evidence that
the works are necessary.
3.1065 There is therefore no technical, highways justification for the imposition of a
Grampian condition along the lines proposed by the Councils.
3.1066 The County and District Councils now seek to suggest that there is a "legal"
justification for the condition to be imposed; ie to provide the necessary assurance that
ABP would be in a position to carry out the works (ibid, para 394). However, no such
condition is necessary because:

Section 278 of the Highways Act 1980, as amended, provides the Highway Authority
with the power to carry out the works and charge ABP in the event of ABP's default; and

The County Council have the power to apply for an injunction to require ABP to comply
with the planning obligation to which they are committed.
The Totton Level Crossing
The Totton Contribution
3.1067 The Totton Town Centre Study develops an Urban Design Framework for Totton,
which includes major environmental improvements, traffic management and improved
facilities for pedestrians and cyclists, within and surrounding the town centre. The cost
of delivering the strategy is estimated to be of the order of £45 million.
3.1068 As part of the study, the feasibility of providing improved pedestrian and cycle
facilities over the main London to Weymouth railway line was investigated by W S
Atkins. They identified a number of options ranging from upgrading the existing
footbridge at Brokenford Lane (Option 1, costing £250,000) through replacing the
Brokenford Lane Bridge with a new structure (Option 5, costing £600,000) to a
completely new crossing facility between Brokenford Lane and Junction Road (Option
3, costing £1,555,000)29. Atkins's preferred strategy is a combination of Options 1 and
3 at a cost of £1.8 million.
3.1069 It is agreed that the increased barrier downtime at the existing level crossing at
Junction Road, resulting from Dibden trains, would be 25% (CD/GEN/20A, Appendix
2 (revised)). 25% of the cost of Atkins's preferred strategy is £450,000. This is the
basis of the contribution offered by ABP. It is directly related to the impact of the
Dibden trains. It could be used to fund comprehensive improvements to the
Brokenford Lane Bridge, or as an appropriate contribution to the broader strategy.
3.1070 The County and District Councils originally suggested a contribution of £1.5
million30. This was based on 3% of the cost of the Urban Design Framework for Totton
(HCC/9/4, para 10.17), or the whole cost of Option 3 of the Atkins strategy. Either
method of calculation includes works that are not related to the impact of the additional
Dibden train movements through Totton.
29
For location of proposed bridge see plan attached to TETC/0/1
30
Subsequently the Councils increased the sum requested to £2.5 million.
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Dibden Bay Inquiry - Inspector's Report
Delays to Vehicles
3.1071 Whilst the increased down time due to Dibden trains would reduce capacity for
vehicles passing over the crossing, significant spare capacity would still remain. The
daytime ratio of flow to capacity for vehicles passing over the crossing would rise from
59% to 67% (CD/GEN/20A, Appendix 2 (revised)).
Totton and Eling Town Council Submissions
3.1072 In their closing submissions the Totton and Eling Town Council asserted that
evidence on Junction Road level crossing given by the Town Council, Hampshire
County Council and Councillors Catt, Dart, Harrison and Randall had not been
seriously challenged (TETC/0/1, p4). This is incorrect. Hampshire County Council
withdrew their objection under the land access topic. The relevant parts of the Town
Council's evidence was addressed on Day 71 (p48 et seq). ABP's response to the
evidence of the Part 2 participants is contained in the Representation Management
Report (ABP/0/125A, pp119-121)
Impact on the New Forest Heritage Area
3.1073 Only two roads in the Heritage Area, apart from the A35 and A31, are likely to used
by Terminal traffic. These are Twiggs Lane and the B3054 between Dibden Purlieu and
Lymington (CD/ABP/95, Review of Impact on Roads within New Forest Heritage
Area, Figure 6).
3.1074 The Terminal traffic on these roads would amount to less than 0.5% of the
background flows (ibid, Table 3). This cannot be considered significant, even for a
Heritage Area. Whilst the increase in HGVs on the B3054 would be in the range 2.2%
to 2.5%, this represents an absolute number of 5 HGVs in 12 hours. Again, this would
not be significant. Moreover, all Terminal traffic using these routes would have an
origin or destination within the Heritage Area; therefore there is no alternative route.
3.1075 Any increase in animal accidents on unfenced roads in the Heritage Area would be
minimal.
Effects on A36 Corridor
3.1076 The forecasts indicate that about 6.9% of the HGV traffic associated with the
Terminal would travel along the A36 (CD/GEN/01, Appendix LA/3.3). This equates to
a flow of around 200 HGVs per day, and a maximum hourly flow of no more than 20.
As a Trunk road, and the signposted route to Bristol and South Wales, the A36's role is
to carry such traffic.
Landscape and Visual Impact
Environmental Assessment of Landscape and Visual Effects
3.1077 The landscape effect and visual impact of the proposed development are summarised
in Chapter 15 of the Environmental Statement, while Chapter 16 deals more
specifically with the question of artificial lighting. More detailed assessments are
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contained in Technical Statements TS/LV1 to TS/LV531. These deal respectively with
the landscape and visual baseline; the effect of the proposed Terminal; the effect of the
road and rail proposals; and the night-time (lighting) impact. Assessments have been
made of both the construction and operational stages of the development.
Supplementary Environmental Statements have been prepared for the revised proposals
for the Hythe Marina Bund; and the Ashurst Bridge widening. These also include
assessments of landscape and visual impacts (CD/ABP/114 and CD/ABP/116).
3.1078 The assessments identify a variety of effects that would arise from different elements
of the Dibden Terminal project. These range from the insignificant, through slight or
moderate effects, to substantial adverse impacts (eg ABP/12/7, Figures 3a-6a). There
would also be some beneficial effects, especially as a result of the proposed
environmental and landscaping measures. These impact reduction proposals are an
integral part of the scheme, to which ABP are committed by virtue of Section 106
obligations (ABP/0/149).
3.1079 None of the alternative sites considered in the Environmental Statement have been
assessed in landscape and visual terms, since they were all rejected on other grounds.
The need for a landscape and visual impact assessment of the proposed recharge was
considered at the scoping stage (TS/PC1, Appendix XV, Addendum 2, paragraph 1.10).
However, the recharge proposal is primarily an ecological matter. At its greatest, the
recharge would be about half a metre deep; and most of the containment barrier would
be below mean low water level. It was concluded that there would be no significant
landscape or visual change sufficient to warrant detailed assessment.
Methodology
3.1080 The methodology used in the daytime landscape and visual impact assessment is
described in paragraphs 15.5 to 15.24 of the Environmental Statement. The night-time
assessment methodology is explained in paragraphs 16.17 to 16.40.
3.1081 ABP's baseline analysis starts from national and county-wide landscape character
assessments that have been prepared by the Countryside Agency and the County
Council respectively (CD/CA/EN/1 and CD/HCC/6).
These give a strategic
perspective, and facilitate an appraisal of the general setting of the application site,
relating it to the New Forest and the coast (TS/LV1, Figures 12 and 13).
3.1082 ABP's local landscape character assessment takes account of the national guidance
that was extant at the time of its preparation. For the purposes of this assessment, ABP
have identified a broad study area around the proposed Dibden Terminal site. This has
a radius of about 10km. A local study area has also been defined (TS/LV1, Figure 1).
The baseline assessment prepared by the County and District Councils is founded on a
somewhat larger, but comparable, local study area (NFDC/7/3, Figures 3a-b).
31
A Vegetation Impact Schedule (ABP/12/10) was inadvertently omitted from the assessment of the
Terminal’s visual impact. This should have constituted Appendix A-2 to Technical Statement TS/LV2. Some
paragraphs were inadvertently transposed in the Technical Statements, and amended pages have now been
issued (ABP/0/111). Figure 3 and Appendices E-1 and G-1 of TS/LV5 have been revised and corrected to
provide supplementary information for clarification (ABP/12/8). None of these minor corrections affect the
conclusions reached in the Environmental Statement.
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3.1083 ABP's baseline landscape assessment is informed by a 1991 Report, which was
prepared by Land Use Consultants (LUC) for the New Forest Committee, and provided
the basis for defining the current boundary of the New Forest Heritage Area
(CD/HCC/16). The findings of this report have been utilised in official landscape
character assessments of the New Forest area for over 10 years. In particular, they have
been used in the preparation and scrutiny of successive Local Plans. They are cited,
without criticism, in the emerging First Alteration to the New Forest District Local Plan
(CD/NFDC/14, para D1.3-4); and in the Department of Culture Media and Sport's
Tentative List of World Heritage Sites (NFC/1/1, Section 2, Appendix 1, pages 55-56).
3.1084 ABP also took account of the emerging New Forest District Landscape Character
Assessment, which has been produced by Environmental Resources Management
(ERM) for the County and District Councils, the Countryside Agency and English
Heritage.
The final version of that document was published in July 2000
(CD/HCC/15).
Viewpoints
3.1085 ABP have made a rigorous study of the likely landscape and visual effects of the
proposed development from a wide and representative variety of viewpoints in the New
Forest Heritage Area; in the settlements of Hythe, Dibden and Marchwood; along the
estuary's shorelines; and from Southampton Water itself. The analysis is based on 10
geographical assessment areas (TS/LV2, Figure 27). These were defined so as to help
appraise the visual impact that the development would have on important features, such
as settlements. Although their boundaries have been broadly drawn, the assessment
areas cover the entire study area, apart from the Terminal site itself. Well over 100
locations were visited for the purposes of the assessment.
3.1086 Given the scale and complexity of the proposed development, it was considered
appropriate to compile a textual description of the scheme's visual impact, supported by
detailed illustrative material. This has enabled a thorough and comprehensive
assessment to be made. Notwithstanding suggestions by other parties to the contrary,
this approach is completely consistent with the latest guidance (CD/IEA/2A, paras 7.18
to 7.22).
3.1087 Detailed assessments from every potential viewpoint would have been inappropriate
and impracticable; and equally a note of every viewpoint from which the Terminal
would not be seen would have been unhelpful. The opponents of the project have
followed a similar course to ABP, in selecting a range of typical viewpoints for
assessment.
Methodology for Access Proposals
3.1088 The methodology set out in the Design Manual for Roads and Bridges Volume II was
adopted for assessing the visual impact of the proposed highway improvements
(ABP/0/111). These would be located within the existing road corridor and would be
significantly enclosed by existing buildings and vegetation. They would have only a
limited effect on the surrounding landscape and individual properties.
Lighting
3.1089 It has been a particularly unfair criticism that the Environmental Statement does not
refer to a published methodology sufficient to enable a full assessment to be made of
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the environmental impact at night. The Technical Statement TS/LV5 is believed to be
the first comprehensive attempt to assess the effects of a lighting installation of this
magnitude. Contrary to the assertion of some objectors, the Government guidance in
Lighting in the Countryside: Towards Good Practice (NFDC/8/3, Appendix C) is still
extant and has been followed. The point at which the visual impact from lighting
becomes light pollution is a question of degree, to be judged in the particular
circumstances of the case.
3.1090 A preferred lighting system has been designed for the Terminal. This is based on a
rail mounted gantry (RMG) system for the container stack operation (TS/LV5, Figures
5 and 6). However, a future operator might choose a rubber tyred gantry (RTG) system
instead. This would have a different lighting requirement, and an alternative
installation has been designed accordingly (TS/LV5, Figures 11 and 12). The nocturnal
impacts of these alternatives have been assessed in order to test the worst case scenario,
since an RTG system would produce significantly more light than an RMG system
(TS/LV5, Figures 10 and 14).
3.1091 Whilst there would be red aviation warning lights at the tops of the quayside cranes,
glimpses of them from the ground would depend upon the local conditions. It has been
consistently assumed that these cranes would reach to 113.25m AOD. However, as the
proposals provide for a maximum height of 120m AOD, a sensitivity analysis of the
impact of cranes at that height has been undertaken. The boom lights on the cranes
have been consistently assumed to be at 40m with 10 lamps per boom.
Technical Points
3.1092 There has been considerable debate about various aspects of the methodology,
including the conduct of balloon flights, the preparation of photomontages and the
simulation of artificial lighting effects. But in the end there has been a good deal of
agreement on the data provided (CD/GEN/19B) and objectors have utilised ABP's
information and methodology in support of their own cases. Nothing material has
emerged to suggest that ABP's general approach and methodology have been
inadequate or flawed.
3.1093 On three occasions balloons were flown to simulate the approximate height of the
proposed quayside cranes. ABP's initial flight was undertaken in January 1998,
primarily to obtain reference points in the landscape to assist with the preparation of
computer-generated models of the proposed development. This flight provided data
that was used in the Environmental Statement. In November 2001, RADBP arranged a
flight unilaterally, for their own purposes. In May 2002, a third flight took place in
accordance with a methodology agreed by the Landscape and Visual Impact
JDG (ABP/12/7, Appendix 5 and ABP/12/9).
3.1094 The May 2002 flight revealed that there were minor discrepancies in two of
photomontages in the Technical Statement (TS/LV2, Photomontages P10 and P11).
Nevertheless, the flight substantially validated the original findings in the
Environmental Statement.
3.1095 Photomontages produced by ABP are included in the Environmental Statement and
Technical Statements. In preparing these, ABP have tried to be consistent in the
assumptions made about such matters as the number of container ships berthed at the
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Terminal; and the location of the crane booms that would be in the up and down
positions respectively. Although there have been some minor departures from this rule
(ABP/12/11) these have had no material effect on ABP's assessment.
3.1096 The photomontages have been reduced and reformatted for presentational reasons.
Larger-scale versions of these images have been available for inspection. The
photomontages are not, of course, intended to diminish the impact of the proposed
development. Although some objectors have criticised the use of a panoramic format,
the ordinary angle of human vision is more than 40o. It is valid for a photomontage to
cover a 180o sweep if, by so doing, it puts the simulated view of the proposed
development in context.
3.1097 With regard to the proposed lighting installation, the values of proposed upward
luminous flux are agreed (NFDC/8/3, Table 1). However, it is the density or
compactness of the light that is most important, and this is obtained by relating the
amount of light to the area over which it is located. "Sky glow" is caused by light,
either beamed or reflected upward, striking particles in the atmosphere. The amount of
glow that is then reflected back off the particles towards the observer could well depend
on the intensity or concentration of the upward light, rather than simply its luminous
flux. Whilst there are currently no agreed procedures for measuring sky glow, the
general consensus is that it is most important to limit the direct upward beam from a
lighting installation, as the effects of the reflected component are thought to be much
less significant.
3.1098 Although there have been criticisms of the night-time photomontages in the
Environmental Statement (ES, Photomontages 16.1 to 16.6) there is no recognised
methodology for preparing material of this sort, and no alternatives have been
produced. The assessments have been carried out in a constructive manner and as
objectively as possible, representing a worse case scenario. They have not
underestimated the lighting effects of the Terminal. Since local atmospheric conditions
will vary from time to time, it is realistic for the different photomontages to depict
differing conditions.
Evaluating Impact
3.1099 Objectors differ from one another in their approaches, but they all tend to exaggerate
the impact of the proposed development. A benchmark for the assessment made by the
County and District Councils is provided by the fact that they consider that the
proposed development would have a slight adverse impact on the view from Pepperbox
Hill. This viewpoint is on the A36 near Whiteparish, about 23km away from the
Terminal site. At that distance, the impact of the Terminal would be negligible.
3.1100 Similarly, the County and District Councils predict that the proposed development
would have a moderate adverse impact on the New Forest Core (ie within the
Perambulation). However, in reality, there would be only a slight effect on the limited
number of viewpoints in the New Forest Core from which the Terminal would be
visible at all.
3.1101 In about half of the impacts identified by the County and District Councils, only the
upper sections of the proposed quayside cranes would be visible. The cranes would
add interest and vitality to the waterfront scene, but they are unlikely to be regarded as
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visually attractive in themselves. There would be no way of screening the Terminal's
effects from the adjoining stretch of river or from the Southampton shore. The
proposed development has therefore been assessed as having a substantial, adverse
impact on some places (eg Town Quay) by day and by night (ES, Photomontage 15.6B
and 16.6B).
3.1102 However, the subjective effect on any individual would be influenced by the viewer's
attitude towards the development. Factors such as the intermittent nature of most
impacts and the viewer's familiarity with the developed character of the estuary suggest
that it is crude and misleading to claim that large sections of the population would
suffer serious visual intrusion (NFDC/7/4, Figure 1). Moreover, the assessment that
some impacts would be substantial and adverse certainly does not mean that the
development would look out of character or fail to be assimilated into its setting.
The Landscape Context
3.1103 ABP's local landscape character assessment identifies the "New Forest Core" (within
the New Forest Perambulation) as a single Landscape Character Area (TS/LV1, Figure
15). Then, at the edge of the New Forest plateau, between the Perambulation and the
A326, there is an area of "Farmland and Woodland Associated with New Forest
Valley-side". The Dibden Reclaim is placed within the "River Test Urban Coastal
Fringe". The remainder of the Dibden Terminal project site (to the west of the
Reclaim) is described as "Farmland and Woodland with Mixed Development
Associated with New Forest Lowland".
3.1104 This baseline assessment is broadly in line with the 1991 LUC Report. That report
identified the Dibden Reclaim as an area of "Urban Fringe Coastlands", which showed
"few of the characteristic features which give the New Forest its natural beauty"
(CD/HCC/16A, p2). Accordingly, the Reclaim was correctly excluded from the New
Forest Heritage Area.
3.1105 Southampton Water is dominated by urban and port development (ABP/12/7,
Appendix 2). The site of the proposed Dibden Terminal cannot be characterised as part
of a mainly rural area. This is confirmed by the landscape character assessments
carried out by various organisations.
3.1106 For instance, in the Countryside Agency's Character Map of England, the application
sites fall at the eastern edge of the New Forest Character Area. The text describing this
area includes the following:
Along the coastal plain in the east are larger towns, of almost coalescing urban
areas with extensive recent development, and, in the case of Fawley, industrial
complexes. The tall chimneys of the oil refineries here are visible from many
stretches of heath and forest in the locality. The urban fringe effect extends all
along this stretch of coastal plain, with mixed uses such as garden centres,
caravan parks, light industry and farming (CD/CA/EN/1, p158).
It is plain that the landscape of Dibden Terminal site is to be characterised as part of
the urban fringe.
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3.1107 In their recent publication The Hampshire Landscape, the County Council include the
Dibden Reclaim within the New Forest Coast Character Area. They characterise the
Reclaim's landscape type as "open coastal plain". Since this description also covers the
existing Southampton Container Terminal it does not imply a particularly rural
character. The general description of the New Forest Coast Character Area states that:
The most remote and quiet parts of the Hampshire coast are found to the south
of the New Forest, particularly between the Lymington and Beaulieu Rivers.
.... Towards the east, Fawley Power Station becomes increasingly prominent in
the landscape. In the Fawley area .... the landscape shows greater signs of
urban influence .... (CD/HCC/6, p34).
The Coastal Management Plan
3.1108 The New Forest District Council's Coastal Management Plan of 1997 describes
Southampton Water as "a busy commercial waterway serving the Port of Southampton
and the industrial and military installations which dominate its shoreline in this
District" (CD/NFDC/4, p5). The reference to the dominance of industrial and military
installations is apposite. Although the Coastal Management Plan is a non-statutory
document, it was prepared in parallel with the Local Plan and is intended to
complement the development plan.
3.1109 In paragraph A1.23 of the Coastal Management Plan, Southampton Water is
described as follows:
This is a river estuary, with much of the coast now developed for major
industry and other uses, including the Esso oil refinery and petrochemicals
complex, the Fawley power station, the site of the Marchwood power station
and the Marchwood Military Port. There are other developed areas around
Hythe, Marchwood and Eling.
The same paragraph lists a number of landscape features that are said to be
important to the character of Southampton Water. These include coastal woodlands
between the Fawley petrochemicals complex and Hythe; and the remnants of
traditional Forest grazing land at Ashlett and Eling. Significantly, the Dibden
Reclaim is not listed as an important landscape feature. Furthermore, while the New
Forest is described as extending to the coast between Eling and Marchwood, it is not
so described at Dibden Bay.
3.1110 Similarly, at paragraph B2.6, the Coastal Management Plan refers to "substantial
urban and industrial developments along the Waterside between Calshot and
Redbridge". It says:
The most notable examples are at Fawley, with the vast oil refinery and
petrochemicals complex, and nearby, the power station. At Hythe, there has
been residential development, including Hythe Marina, and there are
commitments to more on former coastal industrial sites off Shore Road. At
Marchwood, the Military Port, Husbands Shipyard, the former power station
and the Royal Naval Armaments Depot site together occupy a considerable
stretch of water frontage. Between Eling and Redbridge, the waterfront is
occupied entirely by industrial uses. ..... However, some of the coastal
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marshes, and the wooded landscapes between Eling and Marchwood,
adjoining Dibden Bay and south of Hythe have survived in a form which
enables them to make an important contribution to the local scene.
It is noteworthy that Dibden Bay (as distinct from the adjacent wooded landscape) is
not identified as making an important contribution to the local scene. In fact, in
paragraph C11.4 of the Coastal Management Plan, it is described as being "flat" and
"featureless". The same point is made in paragraph C3.9 of the adopted Local Plan,
which goes on to say that the site "has little visual impact".
3.1111 Paragraph B7.10 of the Coastal Management Plan indicates that "it is important to
retain waterfront sites for industries dependent upon access to the water". The
proposed Dibden Terminal complies with this criterion. The existing urban and
industrial context of the Dibden site is clear.
The New Forest District Landscape Character Assessment
3.1112 The New Forest District Landscape Character Assessment states that:
The landscape bordering Southampton Water has a rather degraded character,
yet forms an essential part of the setting for the expanded settlements of
Totton, Marchwood, Hythe, Dibden, Fawley and Calshot. The Waterside has
long been a "gateway landscape", with numerous ferry landing points ...
(CD/HCC/15, paragraph 5.4).
3.1113 The New Forest District Landscape Character Assessment includes the Dibden
Reclaim within the Waterside Parishes Landscape Character Area (LCA). This area
extends along most of the shoreline between Totton and Fawley. It embraces a wide
variety of landscape types (CD/HCC/15, Figure 8) including areas of heavy industry,
where industrial structures are said to "dominate the landscape". An example of this is
on the coastline at Marchwood, immediately to the north of the Dibden Reclaim.
3.1114 The description of this Waterside Parishes LCA includes the following:
Built development is a dominant feature of the area; a mixture of heavy
industry, military ports, marinas, large residential estates and small rural
estates and villages survive side by side. The period of predominant character
is 20th century suburban settlement - private gardens have affected the
character of the landscape by replacing the native vegetation of the area with
ornamental species. The A326 is the major communication route from which
minor roads access the towns and the waterfront. However, the Hythe Ferry is
an important link to Southampton and provides a unique gateway to the New
Forest. Fawley Power Station Chimney, stacks and flares at Fawley Refinery
Complex and electricity transmission lines are prominent vertical elements in
the landscape (CD/HCC/15, p55).
3.1115 The "key characteristics" of the Waterside Parishes LCA are said to include:

major infrastructure, including the A326;

a high density of built development including residential estates, industrial parks, military
ports, electricity sub-stations, electricity pylons, docks and urban fringe activities; and
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
tall vertical elements such as electricity pylons, oil refinery chimneys, and the towering
stack of Fawley Power Station visible above the tree line (CD/HCC/15, p54).
The purpose of defining these "key characteristics" is to enable a judgement to be
made about whether a particular development would be out of character with the
area. It is clear that the provision of major transport infrastructure, high density built
development and tall vertical elements (such as quay cranes) would not be out of
keeping with the existing landscape.
3.1116 The New Forest District Landscape Character Assessment includes the pastures and
woodlands immediately to the west of the Dibden Reclaim within the Ashurst and
Hythe Forest Farmlands LCA (CD/HCC/15, p52). The "key characteristics" of this
area are said to include major infrastructure (including the A326 and the Totton to
Fawley railway line); and short views, curtailed by field boundaries or woodland edges.
The proposed port access corridor would not be out of place in such a landscape.
3.1117 There is thus a transition of landscape types between the New Forest and the estuary.
The intensive development along the shore of Southampton Water contrasts starkly
with the rural landscapes of the New Forest Heritage Area (ABP/12/3, Figure 2). This
coastline has seen significant change and is still dynamic. The existing development
tempers the sensitivity of the landscape, and adds to the area's ability to accommodate
change.
Attributes of the Dibden Reclaim
3.1118 The Dibden Reclaim is urban fringe coastland of low landscape quality. Apart from
some scrub in its northern corner and some small marshy areas along its western edge,
it is devoid of visually significant vegetation or relief. Its artificial nature has resulted
in a complete lack of the characteristics normally associated with the New Forest. It is
atypical of, and incongruous in, the New Forest landscape. On all sides the Reclaim is
contained by man-made structures, such as bunds and piles. These interrupt the
landscape's progression from the New Forest to the estuary.
3.1119 On its eastern side, the Reclaim is bounded by one of the country's busiest
commercial waterways. About 800m away, on the far side of the water, lies the urban
area of Southampton, one of the country's leading ports and commercial centres, with a
number of substantial buildings. The scene is strongly influenced by shipping, cranes,
grain silos and other attributes of dockland activity. The Southampton waterfront is
clearly an important element in the landscape context of Dibden Bay. It would be
wrong to proceed as if the estuary were divided into two halves, with a curtain between
them, as some objectors have done.
3.1120 To the north, the Dibden Reclaim adjoins another major dock installation, the
Marchwood Military Port. This is described in the Coastal Management Plan as "large
and visually intrusive" (CD/NFDC/4, paragraph C11.5). The Military Port can
accommodate substantial ships, and projects some distance from the shoreline into
Southampton Water. The northern end of proposed Dibden Terminal quay would be
aligned with the end of the neighbouring jetty in the Military Port.
3.1121 The Military Port is itself part of a larger area, which the County and District Councils
identify as the Marchwood Waterside Local LCA. This extends northwards along the
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coast for about 2km. In the Councils' Baseline Landscape Assessment it is described as
"a mosaic of outdoor storage, industrial sites, sewage works, barracks and port
development" (NFDC/7/3, p70).
3.1122 On its southern side, the Dibden Reclaim abuts the built-up area of Hythe, and
particularly Hythe Marina Village. Hythe Marina Village is built on reclaimed land. It
projects from the original coastline into Southampton Water by approximately the same
distance as the southern end of the proposed Dibden Terminal quay. Its prominence in
the landscape is not disputed. It is widely considered to make a positive contribution to
the coastal scene, demonstrating that prominence is not, in itself, unacceptable.
3.1123 It follows that the Dibden Reclaim is hemmed in on three sides by urban
development, and by sources of activity that are readily visible and audible. In view of
this, the Reclaim exhibits few of the characteristics of a tranquil oasis or wilderness,
despite some objectors' contentions to the contrary. It is not within a "tranquil area" as
defined and mapped by the CPRE and the Countryside Commission.
3.1124 The only public access to the application sites is via the footpath along the former
shoreline at the back of the Reclaim. This is generally at the landward foot of the bund
that marks the western edge of the Reclaim. As a result, the view eastward from the
footpath, towards the estuary and Southampton, is generally obstructed.
3.1125 The physical condition of the Reclaim is poor, with little topsoil and substandard
subsoils. The surface is uneven and prone to flooding. The natural geology is overlain
for the most part by recently dredged material. No significant archaeological,
historical, architectural, cultural or vernacular features of landscape value have been
identified.
3.1126 On the other hand, the flat condition and precise location of the Reclaim make it
eminently suitable for the type of development for which it has been expressly
prepared. The proposed development would follow in the tradition of direct human
response to the marine environment of the estuary and the opportunities that it presents.
This constant evolution of the coastal landscape has resulted in the series of settlements
and port installations on either side of the estuary, which now provide the setting for the
proposed Dibden Terminal development.
Nocturnal Context
3.1127 At night, the Reclaim cannot reasonably be regarded as an "intrinsically dark area" in
terms of the Institution of Lighting Engineers' (ILE) Guidance Notes for the Reduction
of Light Pollution 2000 (NFDC/8/3, Appendix D). In assessing relative brightness, the
all-round vertical perspective must be taken into account. The benchmark is the
darkness of the bulk of the New Forest Heritage Area, which must be classed as an ILE
Environmental Zone E1, being of equivalent status to a National Park. This area is
agreed to be "almost completely devoid of lighting". In contrast, the Reclaim faces
directly onto the River Test with its brightly illuminated quaysides. It is also adjoined
by other substantial lighting installations at Marchwood Military Port and in the
settlement of Hythe.
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The County and District Councils' Contextual Evidence
3.1128 While ABP's baseline assessment of landscape character is consonant with the 1991
LUC Report, the assessment produced by the County and District Councils has
developed from the later ERM study. This has resulted in some material differences
between the two assessments, particularly in terms of their descriptions of certain
Landscape Character Areas. The New Forest District Landscape Character Assessment
has now been adopted as supplementary planning guidance. However, it is not
particularly helpful in focussing on the proposed Dibden Terminal site, since it does not
always acknowledge the landscape influence of the urban and port development on the
far side of the estuary.
3.1129 It is particularly significant that the Councils' analysis is at variance with that in the
Coastal Management Plan; and that they are now critical of the 1991 LUC Study, on
which they have previously placed great reliance. Their criticism stems from their
current desire to accord a greater landscape value to the Dibden Terminal site than is
warranted. It is remarkable that the Reclaim, which is shown as having no landscape
quality designation at all in the current development plan, is now promoted as being
worthy of the highest possible level of protection on landscape grounds, by being
proposed for inclusion in the New Forest National Park. ABP are entitled to be very
sceptical about the approach adopted by the Councils (and others) with regard to this
matter.
3.1130 The photographs of the undeveloped shoreline in the impact assessment produced by
the County and District Councils are misleading, in that they do not show the full extent
of the existing development along Southampton Water (NFDC/7/4, Appendix 3). They
focus on open and wooded areas, without acknowledging the dominance of industry.
The aerial photographs are also taken from differing altitudes, which further distorts the
overall picture.
3.1131 The Councils claim that 40% of the shoreline is undeveloped. This is contrived. At a
setback of 200m from the water's edge, only about 30% of the land adjacent to the
estuary is undeveloped (ABP/12/14). The various landscape character assessments
show that it is fair to describe the Terminal site as being part of an urbanised waterfront
landscape.
The Design of the Proposed Development
3.1132 As a matter of common sense, the landscape context of the proposed Dibden Terminal
is directly relevant to its likely impact. That impact has been addressed in the design of
the Terminal, which includes a suite of environmental management measures. ABP's
design strategy is set out in Appendix B to Technical Statement TS/LV2.
3.1133 One of ABP's principal aims has been to design a package of measures capable of
successfully moderating any adverse effects of the proposed development, particularly
on the adjacent NFHA. It is noteworthy that objectors have not suggested that there
would be any unnecessary visual features in the proposed development, which should
be omitted; or that there should be some different approach to the mitigation of the
development's visual impact. The package, which would be integral to the proposed
development, would include extensive landscaping, and the management of land in the
interests of arboriculture, ecology and agriculture. The benefits would be substantial.
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Landscaping
3.1134 In addition to extensive on-site contextual landscaping, significant areas of land and
water would be incorporated into the development as part of a buffer zone between the
Terminal and the New Forest. The environmental package includes over 187ha of
nature conservation and landscape enhancement measures (excluding the proposed
Hythe to Cadland recharge) compared to about 202ha of development (ABP/12/3,
Figure 9). This ratio of almost 1:1 represents a proper level of amelioration, enabling
the development to be assimilated successfully into its surroundings.
3.1135 Substantial elements of the package would be implemented at the beginning of Phase
1. These would include Dibden Creek, and the proposed mounding and structural
planting along the landward edge of the Terminal. This landscaping would have had at
least 7 years in which to mature by the time of the Terminal's completion. The
landscaped mound would have a varying profile, and would be softened by a mass of
vegetation. It would not look out of place in an area that already contains various
earthworks, including the Hythe Marina Bund, the containment bunds formed in the
process of land reclamation, and the embankments along the Fawley Branch Railway
Line.
3.1136 Dibden Creek would follow the former shoreline (ABP/0/107). It would re-establish
the historic link between Southampton Water and the New Forest, which was severed
by the reclamation of Dibden Bay (ABP/12/3, Figure 2 (blue circles); and NFDC/7/8,
Photomontage NW-P4). The new creek would be part of the Church Farm Nature
Conservation Area. That area would also include existing and proposed woodlands,
which would help to screen the Terminal and enhance the landscape.
Lighting Design
3.1137 To minimise night-time impact, the proposed lighting installation would be designed
to current best practice, as described in the relevant Technical Statement (TS/LV5,
pages 27-32). It would comply with the latest guidance from the Institution of Lighting
Engineers (NFDC/8/3, Appendix D) and the Landscape Institute (CD/IEA/2A, Box
5.1). No more lighting would be provided than would be necessary having regard to
health and safety requirements. The installation would be large, but it would be well
contained. There would be no significant glare or light-spill experienced beyond the
site boundary.
3.1138 The objective would be to minimise the height of the "light box" - the obviously lit
space - to 20m where possible. The off-site lighting effect would be very limited and
well within the latest guidelines for light trespass, glare and reflected brightness.
Although there is a general concern about sky glow above the site, this in turn would be
minimised by ensuring that all lighting would be designed and installed so that no light
would be emitted at or above the horizontal.
Impact of the Proposed Development
3.1139 The proposed Dibden Terminal would inevitably have a substantial visual impact.
Although the County and District Councils have attempted to identify the number of
people that would be affected, their evidence on this point amounts to no more than the
sum of the local population and the number of ferry passengers. It has no qualitative
dimension. However, the Councils' witness, Mr Williamson, agrees with ABP that the
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proposed Terminal would be unlikely to have a significant impact when seen from
more than 10km away.
3.1140 To a large extent, the objection of the County and District Councils on visual grounds
stems from a concern that a fairly conspicuous form of commercial development would
be introduced into an area that is currently undeveloped. This approach is reflected in
their adherence to the maintenance of a strategic gap between Hythe and Marchwood.
It is directly contrary to Policy EC6 of the Structure Plan. That policy makes express
provision for a development of the type proposed in this location. In landscape terms,
the policy confines itself to a consideration of the effect of port development on the
New Forest. There is no policy basis for an approach that regards the development of
Dibden Bay as unacceptable, simply because the site is undeveloped at present.
3.1141 The County and District Councils have assessed the visual impact of the proposed
development from a number of potential receptors. In some 50% of the cases where
they have concluded that there would be an adverse impact, this would be due to the
fact that the upper parts of the quayside cranes would be visible. However, tall vertical
elements of this sort are characteristic of the area, as demonstrated by the Councils'
own landscape character assessment.
3.1142 The County and District Councils' assessment is misleading and inaccurate. For
example, their revised photomontages (NFDC/7/8) show mainly near views of the
proposals. They also contain several errors and distortions, including:

the use of "zoomed in" views;

the depiction of crane booms in the wrong positions;

the depiction of excessive numbers of gantry cranes;

the depiction of the quay cranes with fluorescent markings;

the omission of landscaping proposals; and

the depiction of containers stacked 4 (rather than up to 3) high and in the wrong place.
Impact on Southampton Water and Southampton
3.1143 Much of the County and District Councils' evidence deals with views from
Southampton Water, or from the urban area of Southampton. ABP agree that the
Dibden Terminal would be a prominent feature in these views. By its nature, a port
development at Dibden Bay would be highly visible from the water. It has always been
obvious that the impact of the Dibden Terminal in views from the east would be
incapable of mitigation. It is implicit in Policy EC6 of the Structure Plan that there is
no requirement to assess this unavoidable impact. The policy makes no reference to the
visual impact of a port development at Dibden Bay when seen from Southampton
Water or Southampton.
3.1144 The proposed Terminal would undoubtedly have a substantial visual impact on the
stretch of the estuary lying immediately to the east. This is a busy commercial
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waterway. It also includes the route of the Hythe Ferry, which carries numerous
passengers and links two sections of the Solent Way long-distance footpath.
3.1145 There would also be a substantial visual impact on parts of the Southampton
waterside, including Town Quay and Mayflower Park (ABP/12/7, Appendix 1).
However, the effects would soon taper-off, with increased distance up and down the
estuary. The existing dockland landscape and urban setting would assist in reducing
the Terminal's perceived intrusion. Moreover the existing lighting installations
preclude this stretch of Southampton Water from being classed as a dark landscape at
night. The brightly-lit Terminal would mirror similar installations along the waterfront.
The impact of sky glow is affected by the degree to which the viewpoint is itself
illuminated. When seen from the well-lit urban area of Southampton, the sky glow
associated with the Dibden Terminal would be unlikely to have a significant effect.
3.1146 It is noteworthy that the Southampton City Council have no objection to the proposed
development on the basis of its visual impact. The changes in the prospect from
Southampton would complement the City Council's Urban Design Strategy for the
Southampton shore (CD/SCC/11). That Strategy does not attach importance to the
preservation of existing views across the estuary; or to the role that the open aspect of
the Reclaim plays in the City's setting. It is also noteworthy that there is generally a
low level of objection from Southampton people on visual impact grounds.
3.1147 At the City Council's request, additional photomontages have been prepared of both
day and night-time views from the 8th floor of Marland House in the city centre, about
2.6km north-east of the centre of the proposed Terminal site (ABP/12/7, Appendix 4).
These represent a high-level view from a publicly inaccessible location, and show the
nature of the change that would occur in the context of the cityscape. They do not
present impacts that were not anticipated in preparing the Environmental Statement.
3.1148 The County and District Councils' assessment exaggerates the visual impact that the
proposed development would have on Southampton's outskirts. Their photomontage of
the view from Rotterdam Towers (NFDC/7/8, Photomontage NW-P6) shows only a
slight adverse impact on the foreshore at Weston, about 3km from the Terminal.
Consequently, the Councils' witness has conceded that their assessment of the longterm impact on Receptor No. 5R (NFDC/7/7, Appendix 2) should be reduced from
moderate/substantial to slight/moderate.
Impact on Hythe and Dibden
3.1149 Annex D to the New Forest District Landscape Character Assessment describes Hythe
and Dibden as having "the feeling of a town rather than separate villages"; and says that
this settlement is dominated by dwellings of medium density (CD/HCC/15/1, pD7). It
goes on to point out that the town has "a rather weak relationship with its surrounding
landscape". A settlement analysis map shows the key features of this relationship. It
makes no reference to there being any significant relationship between Hythe and the
proposed Dibden Terminal site (CD/HCC/15/1, Appendix D, Map 2).
3.1150 The Dibden Terminal development would undoubtedly have an effect on some views
from the built-up areas of Hythe and Dibden. Generally the impact would be slight,
because only the upper parts of the quay cranes would be visible. The suggestion that
the impact would be unacceptable is not born out. A recent high quality residential
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development at Admiralty Quay, Marchwood, has a full view of the quayside cranes at
the Southampton Container Terminal, across a distance of less than 500m (ABP/12/3,
Figure 10). There is no intervening bund to screen the lower parts of the cranes in that
view, as there would be at the proposed Dibden Terminal. Nevertheless, the outcome
is far from unacceptable.
3.1151 The proposed quayside cranes at the Dibden Terminal would be 336m from the
nearest residential area, in Endeavour Way. Whatever view is held about the
appearance of these cranes, they would constitute a typical feature of a commercial
port. They would not be alien features in this context, and would not be the only tall
vertical structures in the area.
Hythe Waterfront
3.1152 From the Hythe waterfront there are panoramic views of a busy commercial waterway
(ABP/0/103). The Local Plan (CD/NFDC/1, Section F17, pages 4-5), and the Coastal
Management Plan (CD/NFDC/4, p106) emphasise that this area is of diverse character,
but in need of visual improvement.
3.1153 The impact of the proposed Dibden Terminal when seen from Hythe Promenade
would not be substantially adverse, for several reasons. This is not a particularly
attractive spot, even though it is a recreational facility. The balloon flights showed that
little of the Terminal development would be seen from this vantage-point, because of
the angle of vision (ABP/12/9, P4). Moreover, the upper parts of the cranes, which
would be visible, would not necessarily be alien features in the landscape. They would
be seen in the context of the existing cranes at the NATO base to the south-east; and the
grain silos in the Eastern Docks to the east. The County and District Councils' relevant
photomontage (NFDC/7/8, Photomontage NW-P8) confirms that the housings of the
proposed quay cranes would be seen. However, this representation suffers some
distortion, due to "zooming in".
3.1154 The Terminal would have a significant impact in the view from the seaward end of
Hythe Pier. However, it would have only a slight effect on the outlook from the
landward end of the pier, due to the limited views and the urban context. The Terminal
would have a variable impact when seen from the rising ground in Hythe and Dibden.
Hythe Marina Village
3.1155 From Hythe Marina Village there are already clear views of the shipping in
Southampton Water, and of Southampton Docks. Hythe Marina Village is obviously
different in character to the remainder of Hythe. However, like that settlement it is a
well-lit area with capacity to absorb additional lighting.
3.1156 The Marina Village does not enjoy extensive views across open countryside. Rather,
on its landward side, it has a strong sense of enclosure, with the Marina Bund screening
it from the Dibden Reclaim. Significantly, none of the baseline assessments identify
the Bund or the Reclaim as part of the setting of the Marina Village (or of Hythe).
3.1157 From much of Hythe Marina Village, the visual impact of the proposed Terminal
would be insignificant. Although public and private viewpoints away from the Bund
would obtain less screening benefit from that feature, the Terminal would be screened
from many of them by intervening buildings. The most serious adverse impact on
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Hythe Marina Village would be experienced by a limited number of people occupying
properties at the northern end of Velsheda Court (ABP/12/7, Appendix 1, Figure 3a).
At night, even those properties would experience more intrusion from existing lighting
than from the Terminal. The impact of increased sky glow would be no more than
slight, because of the existing glow from the Military Port and Southampton.
Environmental Measures
3.1158 The reconstructed Marina Bund would provide improved landscaping and screening.
It would be very carefully designed to blend into the landscape. The National Trust's
assessment of this feature having a substantial adverse impact cannot be right. Concern
has been expressed about the appearance of the proposed 2m fence on top of the Bund.
However, it is clear that a satisfactory design could be achieved, with varied planting to
soften this structure's appearance (CD/ABP/114, Figure 8). Together with the
reconstructed Bund, the fence would result in a total screening height of 17m.
Viewpoints would be maintained on the Bund (ABP/0/98, Figure 5).
3.1159 There have been considerable discussions with objectors about the detailed design of
the Marina Bund reconstruction. The existing Bund could not be left entirely as it is,
because its stability would be affected by the excavation of Dibden Creek; and because
it would not provide adequate screening. The revised proposal (CD/ABP/114) would
have the benefits of:

retaining some of the landscaping on the existing Bund;

moving the construction works further away from residential properties; and

adding to the screening value of the original reconstruction proposal.
Experience of the growth of vegetation on the existing Marina Bund in recent years
suggests that the new planting should flourish in time, given proper care.
3.1160 The Bund and Creek would ameliorate the effects of the development, by placing a
wide buffer zone between the Terminal and the nearest residential properties in
Endeavour Way. The visual impact on Hythe Marina Village would be moderate. The
lighting control measures would ensure a night-time level of spilled light from the
Terminal at the Marina Bund of less than 0.1lux. Baffles would be fitted to the
quayside lights to protect residents of the Marina Village from any problem of glare.
3.1161 An additional photomontage has been prepared to show the summer daytime view
from the first floor living room of No 1 White Heather Court, with the Terminal fully
operational (ABP/12/7, Appendix 3). This is representative of those properties in
Hythe Marina Village that would have the most exposed elevated views of the
Terminal. The scene shows the original proposals for the reconstruction the Hythe
Marina Bund. Although it is not the worst case (because it is not a winter view) it does
not show any impact that was not anticipated in the course of preparing the
Environmental Statement.
Impact on the New Forest Heritage Area
3.1162 The proposed Dibden Terminal site is in a broad valley between pronounced
ridgelines (ABP/12/3, Figure 2). Existing built development and the massing of
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vegetation add to the screening effect provided by the local topography. As a result, the
proposed development would benefit from a considerable degree of physical and visual
enclosure, particularly in views from the west. There are remarkably few viewpoints in
the New Forest Heritage Area (NFHA) from which the Terminal would have a
significant adverse visual impact.
New Forest Core
3.1163 The only parts of the proposed Terminal that would be visible from the New Forest
Core would be the tops of the quayside cranes, and these would be seen only from a
limited number of open locations. They would appear as distant, faint, vertical
elements, along with the cranes at the SCT, the chimneys and flare stacks at the Fawley
petrochemical complex, and the pylons that carry the 400kv transmission lines from
Fawley Power Station.
3.1164 In longer-distance views, the landscape itself would remain the dominant feature. An
example of this can be seen in the view from Bolton's Bench at Lyndhurst, about 11km
away from the proposed Terminal (TS/LV2, Appendix C-4, Photomontage P1). The
tops of the quay cranes might just about be perceptible, but would be beyond the
distance at which they would have a significant impact.
3.1165 The view from Yew Tree Heath, some 5.5km from the centre of the Terminal site,
provides a closer example of a view towards the Terminal site from the New Forest
Core (TS/LV2, Appendix C-5, Photomontage P2). The number of such viewpoints is
very limited, because of the intervening landform and vegetation. The effect of the
proposed development on this view would again be insignificant.
3.1166 Some wooded enclosures along the edge of the New Forest Core are due to be
partially felled by 2051, as part of the Forest Design Plan (ABP/12/7, Appendix 9).
The Forestry Commission have indicated that this is for ecological reasons
(CD/INQ/24). However, the fact remains that the Crown Lands would be opened up in
a way that could be prevented for visual reasons, if this were considered appropriate. It
is understood that some of the trees in both the Ashurst Walk and Waterside Inclosures
are to be retained, and some parts of the cleared land are to be re-planted (ABP/0/109,
Maps NEW011 and 018) thereby preserving a screening effect. None of this
information suggests that ABP's assessment of visual impact would be materially
wrong. The partial screening of views of the Terminal would seldom depend on just
one block of vegetation (TS/LV2, Figures 27 and 28).
New Forest Valley-side and Lowland
3.1167 Views of the Terminal from the New Forest Valley-side would be limited by the
topography and filtered by vegetation. When visible, the Terminal would be seen
against the backdrop of urban development in Southampton, including the existing port.
However, given the sensitive character of this part of the NFHA, the development
would have a moderately adverse impact.
3.1168 The proposed Terminal would have little impact on the landscape character of much
of the New Forest Lowland area, to the east of the A326, because of the screening
effect of the topography, vegetation and existing buildings. However, from a few
locations there would be expansive views of the Terminal, which would have a
substantial adverse effect.
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3.1169 Objectors make much of the potential effect of the proposed development on the view
from the Dibden Golf Course Clubhouse, which lies within the NFHA some 2km to the
west of the Terminal site (TS/LV2, Appendix C-12, Photomontage P9). It should be
noted that, on walking 20-30m downhill from the Clubhouse, there would be no views
of the proposed development at all.
3.1170 The Dibden Golf Course is owned and run by the District Council. It includes a
floodlit driving range. The New Forest District Landscape Character Assessment
identifies golf courses as having a negative impact on the NFHA (CD/HCC/15, Section
5.3). These heavily manicured areas are plainly out of character with the distinctive
landscapes of the New Forest. However, the District Council clearly does not regard
this particular part of the NFHA as being so sensitive as to render the presence of a golf
course with floodlit driving range unacceptable.
3.1171 The County and District Councils' photomontage of the view from Dibden Golf
Course is inaccurate in that it fails to show the proposed structural planting along the
Terminal bund, which would screen the container stack (NFDC/7/8, Photomontage
NW-P7). The same defect appears in the Councils' assessment of the Terminal's impact
15 years after opening, which makes no allowance for the maturation of the proposed
landscaping over a 22-year period (NFDC/7/7, Appendix 2, Receptors 2P and 2Q).
3.1172 Most of the residential properties on Main Road, Dibden, would have little or no view
of the proposed development, save for the tops of the quayside cranes. For those that
would have a view, the impact would not be substantial, due to the distance and the
landscaping proposals (TS/LV2, Figures 31 and 36 to 37).
3.1173 ABP have assessed views of the Terminal from public rights of way within the NFHA
(see for instance TS/LV2, Appendix C-11, Photomontage P8). Whilst the composite
plans (ABP/12/7, Appendix 1) show a limited number of substantial adverse impacts on
nearby stretches of footpath, in the majority of cases the predicted impact varies from
slight to moderate. In the case of the footpaths near to the Old Manor Roundabout, of
particular concern to the Ramblers' Association, the intrusion would be no more than
slight. In the longer-term the adverse effects on most of these footpath viewpoints
would be mitigated by the landscaping proposals.
Access Corridor
3.1174 The proposed road and rail access routes would pass through the NFHA. It is plain
from Policy EC6 of the Structure Plan that the Terminal must have both road and rail
connections. The County and District Councils do not suggest that there is a better way
of providing these facilities.
3.1175 An area of ancient woodland in the Post Copse Complex would necessarily be lost to
make way for the proposed access corridor. While this could not be replaced, it would
be more than adequately compensated for by substantial new woodland planting, which
would have a significant screening effect. New embankments and cuttings would be
constructed along the access corridor, but earthworks of various sorts are already a
feature of the local scene. There would be a localised impact on the landscape at the
junction between the Terminal access road and the A326, due to the urbanising nature
of the development. However, this would be confined by the proposed landscaping
measures. The proposed access corridor would affect only a very small portion of the
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outer fringe of the NFHA, and its visual effect would be of no more than moderate
significance.
3.1176 The proposed "park and ride" would also be within the NFHA. However, it would be
located in such a way as to minimise any adverse landscape and visual effects. It
would be screened by existing and proposed vegetation and its visual intrusion would
be slight. If the "park and ride" were to be excluded from the final scheme, in
accordance with the preference expressed by some objectors, then the existing field and
hedgerow pattern would probably be retained, with some strengthening of the
woodland planting along the edge of the Terminal access road.
Night-Time Impact on the New Forest Heritage Area
3.1177 The effect on the NFHA at night would be minimal. Whilst the proposals would
result in a new lighting source close to the eastern edge of the New Forest, this area
already receives light from existing installations along the estuary. The NFHA
boundary is, for example, close to the light sources at the Southampton Container
Terminal and the Marchwood Military Port, as well as in the settlements of
Southampton, Totton, Marchwood and Hythe, and the major industrial complex at
Fawley. The proposed Terminal lighting would be perceived in this context. Even in
the worst case, with the use of rubber-tyred gantries, the density of the predicted
upward luminous flux from the Dibden Terminal would be only half that from the
existing SCT. As a result, the sky glow above the Dibden Terminal would be less
bright than that above the SCT.
Impact on Marchwood
3.1178 The Terminal's visual impact on Marchwood would be slight, primarily due to
distance and the fact that the Military Port would lie between the settlement and the
proposed development. The dwellings in the north-eastern part of Marchwood are
already closer to the SCT than to the proposed Terminal site (ABP/12/3, Figure 10).
When seen from Marchwood, container ships using the Dibden Terminal would be
beyond the existing Military Port and its vessels.
3.1179 The proposed "park and ride" site would be about 200m away from the nearest
dwellings in Marchwood. It would be screened by existing vegetation and by new
landscaping, and would have limited lighting at night. Any visual intrusion would be
slight.
3.1180 At night, properties at the southern edge of Marchwood would experience moderate
visual impact from limited views of the Terminal lighting and sky glow (ES,
Photomontage 16.3B). However, the increase in sky glow would be seen in the context
of the existing glow from the Military Port and the urban area of Southampton.
Impact of the Improved Access Proposals
3.1181 The A326 is already heavily trafficked, with corresponding carriageway markings and
highway furniture. However, this road is very well enclosed, primarily by vegetation.
Relatively little of the existing planting would be lost in the course of road widening,
and the effect of the road improvements on the broader landscape would be minimal.
The additional lighting now proposed would make little difference to the original nighttime assessment.
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3.1182 The landscaping associated with the access proposals would help assimilate the
scheme into its setting and enhance the Forest. Large-scale detailed plans of this
landscaping have yet to be prepared. However, there is no doubt that the landscaping
scheme could be achieved (ABP/0/102A).
3.1183 The Pilgrim Inn would experience slight visual intrusion as a result of its proximity to
the temporary construction access road. Any subsequent intrusion would be
insignificant. The retention of existing vegetation would help screen the new access
arrangements and lighting; and the proposed structural landscaping would further
mitigate the effect in the longer term.
3.1184 There would be a moderately adverse impact on the setting of the Marchwood Infant
School, due to the loss of vegetation in the course of the proposed road improvements.
However, this impact would reduce to slight as the replacement planting matured.
3.1185 The visual impact of the proposed railway improvements in Totton would vary from
moderate to slight. The detailed design for the proposed railway noise barriers has now
been completed (ABP/12/7, Appendix 7). It is based on the design used in the Channel
Tunnel Rail Link. The barriers would consist of panels of horizontal timber boarding,
and would be treated with anti-graffiti material. They would rise to a height of 2.3m
above track level, but would now be upright rather than angled (as originally intended).
The barriers would stand 3m from the trackside (rather than 2m as indicated in the
Environmental Statement). It is now understood that it will not be permissible to plant
vegetation within 5m of the railway line, for operational safety reasons. However the
loss of existing vegetation would be minimal. These various changes do not make any
material difference to the results of the Technical Assessment. This was that there
would be a moderately adverse visual intrusion where noise barriers were installed
close to properties; and a similar effect on the character of the immediate townscape.
Conclusion
3.1186 On balance, although Dibden Terminal would be a major development, it would not
have a significant visual impact beyond the estuary. The effect on the estuary would be
inevitable, as must have been obvious to the authors of the Structure Plan. The effect
of the proposed development on the landscape of the New Forest would be limited to
the fact that the tops of the quayside cranes would be visible when their booms were
upright, in much the same way as existing vertical structures along the Waterside are
already visible. There is no basis for concluding that the tests set out in Policy EC6 of
the Structure Plan as regards landscape and visual impact would not be met.
Noise and Vibration
Introduction
3.1187 Policy EC6 of the Hampshire Structure Plan Review implicitly establishes that the
Dibden Bay site can potentially cope with a degree of environmental impact, obviously
including some noise and vibration, from the development of a container port. The
approach is not one that seeks to keep Dibden Bay free from all development, or free
from development of the kind proposed. Rather the thrust of the policy is to strike a
balance, and to set relative rather than absolute criteria.
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Dibden Bay Inquiry - Inspector's Report
3.1188 This is also the approach of the development plan's general policy on pollution
control, (New Forest District Local Plan, CD/NFDC/1, Policy DW-E34). Increases in
noise or vibration are grounds for refusing development only if they would cause
nuisance, unacceptable loss of amenity or other unacceptable environmental impacts.
This threshold of unacceptability recognises that the generation of some noise or
vibration is often inevitable if worthwhile development is to take place.
3.1189 The development plan is entirely consistent with PPG24. Paragraph 10 of that
guidance note prescribes that a course be followed that avoids placing unjustifiable
obstacles in the way of necessary development on the one hand, but ensures that the
development does not cause an unacceptable degree of disturbance on the other.
Paragraphs 2 to 7 advise that it is for development plans to provide the policy
framework within which noise issues can be weighed. Paragraphs 7 to 9 indicate that,
nevertheless, there will still be circumstances where new noise sources are permitted
near existing noise-sensitive development because of the desirability of, or need for, the
new development.
3.1190 Paragraph 5 of PPG24 suggests that it may be appropriate for a policy to protect areas
which are relatively undisturbed by noise nuisance. However, there is no such policy
for the Reclaim.
3.1191 Paragraph 20 of PPG24 expects special consideration to be given to development
which would affect the quiet enjoyment of nationally designated areas of the
countryside. However, the County and District Councils have not raised this as an
issue in terms of noise or vibration. In particular their expert noise witness, Mr Davis,
did not suggest any impact on tranquillity in the New Forest Heritage Area or the
proposed National Park (Day 100, p117).
3.1192 The overall approach to noise and vibration is not at issue. The requirement is not to
avoid all noise or vibration impacts, nor to make operations as quiet as they could
possibly be, nor to work to the lowest achievable limits, irrespective of the costs of
achieving that. Neither is it for the authorities to specify how particular operations
should be carried out. Rather, the task is to fix construction and operational noise
levels that are appropriate to the circumstances of the case and provide reasonable
safeguards for amenity. This involves striking a balance between the minimisation of
adverse effects on the one hand, and the avoidance of unreasonable burdens and undue
costs on the other.
3.1193 Equally, it is agreed that ABP's assessment of the noise and vibration impacts has
been comprehensive; and that the information provided is complete and satisfactory,
save for the few limited exceptions set out in the Agreed Statement of Facts
(CD/GEN/8B, paras 3.1-3.5).
These exceptions concern the ambient noise
measurements, the noise levels associated with quay wall piling, the extent of
exemptions from construction noise and vibration limits, the night-time HGV flows,
maintenance dredging, and the interpretation of predicted noise and vibration levels.
All were dealt with in evidence to the Inquiry.
3.1194 On this basis, the evidence shows that the Terminal could be constructed and operated
in accordance with the latest standards for noise and vibration, and a modern approach
towards consideration of the environment and amenity. Thus the development would
be wholly consistent with A Better Quality of Life. Contrary to exaggerated and
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Dibden Bay Inquiry - Inspector's Report
irrational arguments by some of the scheme's opponents, the noise and vibration
impacts of the development would be well within recognised limits; more than
sufficient provision would be made to offset the impacts; and the required access would
be achieved without serious noise or vibration disturbance.
Background Noise Levels
3.1195 The variability of the baseline noise climate reported in the Technical Statements and
summarised in the Environmental Statement (ES, Table 17.8), about which the County
and District Councils express concern, is in fact only to be expected. Ambient noise
levels vary because they are usually caused, or influenced, by random events. This
randomness is addressed by using statistical measures of noise, particularly LA90 for the
background. But there is no formal procedure for addressing variations over long
periods and the choice of typical, representative levels has to be a matter of expert
judgement. A comparison of the Technical Statement's background levels for Hythe
Marina with the Councils' measurements (ABP/11/3, Appendix III) confirms that the
representative value there has been well chosen.
3.1196 At the request of Southampton City Council, additional baseline surveys were
undertaken at Merchants Walk near Mayflower Park and Pacific Close in Ocean
Village (SCC/5/2, Para 3.4 and Appendix 2).
Revised Assessments
Hythe Marina Bund
3.1197 A Supplementary ES has been prepared for the amendments to the Hythe Marina
Bund proposals, including assessments of noise and vibration impacts (CD/ABP/114,
Section 8). Construction of the revised bund is expected to take some 24 weeks, during
which receptors nearest to the works in Hythe Marina would experience noise levels
between 65 and 70dBLAeq (free-field) for 15 weeks; and between 60 and 65dBLAeq for a
further 9 weeks. This represents a significant impact of moderate magnitude32.
3.1198 Once built, the bund would provide a beneficial noise barrier, with respect to the
associated work on the north shore of the creek, including the area of suspended deck at
the creek mouth. This would be built as part of the Phase 3 works, during which noise
levels for the nearest noise sensitive receptors are predicted to be in the range 6065dBLAeq for 32 weeks33.
Rail Noise
3.1199 Since the preparation of the Environment Statement, the rail noise barrier scheme has
been revised (see para 3.123 above). Some of the assumptions on which the original
assessment was based were also found to be incorrect. These include assumptions
32
The thresholds of significant impact for construction noise adopted by ABP vary depending on ambient
noise levels (ES, table 17.1). Predicted noise levels above the threshold of significant impact are graded as
moderate; or substantial if the noise level is predicted to be more than 10dB above the threshold.
33
The condition for this period specifies a maximum noise level of 60dB LAeq (CD/ABP/121, Schedule 3,
Clause 7I). However, this excludes noise from piling, which is separately controlled (ibid, Clause 7J). When
piling is in progress, the combined noise from piling and other activities is predicted to be in the range 6065dBLAeq.
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Dibden Bay Inquiry - Inspector's Report
about the class and power settings of the locomotives to be used. New noise
predictions were prepared taking all these matters into account and including additional
assessment locations at Pooksgreen, Trotts Farm and at MOD properties near Plantation
Drive and Africa Drive34.
3.1200 The main changes to the assessment are at night. At Plantation Drive the significance
using noise increase as the criterion changes from moderate to substantial, and from
marginal to moderate in term of absolute levels35. At Jacob's Gutter Lane the impact
becomes moderate in terms of absolute levels. At Amberley Court the impact is
predicted to be substantial in terms of noise increase, as it is at the new locations at
Pooksgreen and Trotts Farm. However, in terms of absolute levels, the impact at these
locations is assessed as moderate (ABP/11/5, Table 3).
3.1201 Further assessment of rail noise from the Terminal's trains at several locations in
Southampton were also undertaken in response to a request from the City Council. In
each case the ratings of the absolute levels were found to be no worse than the existing
situation and at most locations the actual noise levels were predicted to fall. This is
because the anticipated change to quieter Class 66 locomotives for the existing trains
results in a fall that offsets the noise that would be contributed by additional trains from
Dibden Terminal (ABP/11/6).
Construction Noise
Standards
Planning Policy Guidance
3.1202 The approach of the County and District Councils' expert witness, Mr Davis, to the
appropriateness or otherwise of using BS 4142 to assess construction noise impact was
muddled. He conceded that there is nothing in PPG24 to suggest that BS 4142 should
be used to assess the impact of noise from construction sites; and agreed that the sound
level limits for a temporary construction activity can be higher than for a permanent
installation. He further agreed that BS 4142 should not be an arbiter in terms of setting
the limits. Nevertheless he maintained his position that the method in BS 4142 is
appropriate for assessing the impact of construction activities (Day 100, pp126-7).
3.1203 Alongside this he recognised that MPG11, dealing with noise control at surface
mineral workings, provides a useful analogy with noise control at construction sites.
However, the basic approach in that guidance is to set absolute limits. Following
Government-sponsored research into the appropriate methods of control, a deliberate
decision was taken to opt for the setting of absolute values in preference to the BS 4142
rating approach (MPG11, paras 30 and 31). Obviously, in opting to recommend
absolute limits, the Government bore in mind the nature and characteristics of surface
mineral workings and associated activities, including the likelihood of impulsive noise.
It is not consistent with that deliberate choice of approach to then attempt to revert back
34
For location of MOD noise monitoring points see ABP/11/5, Figure 1.
35
For rail noise a predicted increase in noise greater than 10dBLAeq is rated as substantial, with increases
of 6 to 10dBLAeq rated as moderate. Absolute night-time façade levels between 55 and 62dBLAeq(8 hr) are rated as
moderate (ES, tables 17.5 and 17.6).
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Dibden Bay Inquiry - Inspector's Report
to BS 4142 in an attempt to show that the noise levels generated would be
unacceptable.
3.1204 The limits in the agreed construction noise condition follow those recommended in
MPG11, para 3436. Although the guidance does allow for refinements of approach, if
appropriate in the circumstances of a particular case, these refinements are suggested
tentatively, merely in terms that they might be appropriate. Thus paragraph 37's
potential reduction, in quieter rural areas where a 55dBLAeq,1hr limit would exceed the
background by more than 10dB(A), is not to be made automatically but is to be
considered for appropriateness.
3.1205 The wording of paragraph 41 on tonal noises is similarly cautious. It refers only to
high-pitched or whining tones, and then only in relation to separate conditions on
individual items of plant or equipment. ABP followed this approach with a specific
piling condition that fully reflects the mitigation relied on in the assessments. The
general approach of the MPG, in recommending nominal limits to be applied to all
noise from a site, has clearly taken account of impulsive noises. Whilst MPG11 refers
extensively to BS 5228 it nowhere suggests that the nominal daytime limit of
55dBALeq,1h should be reduced to cover an impulsive element in a noise. Neither is such
a position supported by para 8.5(f) of BS 5228 Part 1.
3.1206 Similar arguments apply to the MPG's treatment of temporary raised limits, in
paragraphs 42 and 61. Everyone accepts that the reconstruction of the Hythe Marina
Bund would be desirable in the context of Dibden Terminal. The reference to 8 weeks
in para 61 of MPG11 is clearly not to a fixed period. What is being created is a "new
permanent landform" (para 42) which it is agreed "requires longer than 8 weeks for
completion" (para 61). The proposed noise limit for these works does not exceed the
70dBALeq,1h limit referred to in para 61 (CD/ABP/121, Schedule 3, clause 7I).
3.1207 MPG11, paragraph 43 advises that footpaths and bridleways should not normally be
regarded as noise-sensitive
British Standards
3.1208 Although the Technical Statement includes a BS 4142 assessment of Terminal
construction noise (TS/NV1, Appendix V, Tables 4142.Pot. & Mit.), this is only for
completeness because it was foreseen that some recipients of the Environmental
Statement would insist. ABP are unaware of any other major construction project on
which it has been used to assess construction noise.
3.1209 Moreover, there are obvious technical difficulties in using BS 4142 for this purpose.
There is no known correlation between nuisance arising from construction noise on the
one hand and the margin between the BS rating level and the background level on the
other. Also the BS is only concerned with the rating of a specific noise source of an
industrial nature, so that its use to rate multiple sources with variable on-times must be
questionable. Finally, there can be anomalies where, as in this case, the ambient LAeq is
significantly higher than the background LA90.
36
55dBLAeq,1h daytime and 42dBLAeq,1h night-time free field (CD/ABP/121, Schedule 3, Table 2).
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Dibden Bay Inquiry - Inspector's Report
Control of Pollution Act 1974 (COPA)
3.1210 Statutory controls on construction noise are contained in the Control of Pollution Act
1974, Sections 60 and 61. ABP propose to apply for consents under Section 61, prior
to work commencing. The advantage of the Section 61 procedure to ABP is that
construction work would proceed subject to agreed detailed control over noise and
vibration, and with advance knowledge of the specific restrictions to be observed. But
of course this procedure would also give very effective powers to the Council to ensure
that the best practicable means are used to limit noise and vibration. It is a procedure
that is tried, tested and effective. It was deliberately retained when parts of the Control
of Pollution Act were repealed (PPG24, Annex 7, para 5). However, for reasons that
were never explained, it is ignored in the Councils' evidence.
3.1211 Part IV of the draft HRO would change the provision in Section 61(7) of the COPA
for appeals against non-determination or conditions to the Magistrates Court, so that in
this case the appeals would be heard by the Secretary of State. There are at least 5
precedents for this, including 3 relating to the Channel Tunnel Rail Link. The draft
HRO also seeks to exclude the right of individual complaint to the Magistrates Court
about construction noise as a statutory nuisance under Section 82 of the Environmental
Pollution Act 1990. This is because there is a defence of best practicable means to
proceedings for a contravention of a Magistrates' Order under Section 82(2): and the
best practicable means would have been secured by the Section 61 Consent in the first
place.
Department of the Environment Advisory Leaflet 72
3.1212 This Leaflet on Noise at Building Sites was published in 1976. It is still extant. The
Inspector who held the inquiry into the Felixstowe Dock and Railway Harbour
Revision Order 2000 relied on the leaflet in his conclusions (ABP/0/121A, paras 7.9.12
et seq). The Secretary of State accepted these conclusions in his decision of October
2002 (ABP/0/121, p1). The advice suggests that the maximum desirable noise level
caused by construction at the nearest residence to sites in rural areas away from main
road traffic is 70dBLAeq. This is the level for a point one metre from the façade, which
is equivalent to 67dBLAeq "free-field" (ie away from the influence of a building).
3.1213 The noise level limits set by the proposed condition for general construction activity
at Dibden Terminal are much lower than suggested in the advisory leaflet. Even during
the Phase 3 exception period, the noise levels would meet the generally acceptable level
of 67dB(A) set by the advice.
World Health Organisation (WHO) Values
3.1214 The WHO Guidelines for Community Noise are referred to in evidence. However it
is clear that the guidelines are not intended for the setting of noise standards; rather
they are essentially values for the onset of effects (Day 100, pp186-187). Thus,
although there are incidental references to WHO levels in national planning guidance
(such as PPG24, Annex 2, paragraphs 4 & 5; and MPG11, paragraph 31, footnote 4),
those values have not been incorporated into national guidance as criteria for the
acceptability of construction or any other noise.
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Dibden Bay Inquiry - Inspector's Report
General Construction Noise Predictions and Conditions
3.1215 The construction noise predictions are compiled on a quarterly basis (TS/NV1,
Appendix V). Although it is possible that actual maximum levels could be higher than
these quarterly figures, long experience of construction projects suggests that this is
unlikely. Monitored levels usually turn out to be 3-5dB(A) lower than the predicted
levels, the main reason for this being the historic conservatism of the BS 5228 database.
3.1216 ABP now seek the modification of the draft HRO to include construction noise limits.
These are based on a normal daytime level of 55dBLAeq,1hr free-field at noise sensitive
premises (CD/ABP/121, Schedule 3, Clause 7H & Table 2). Provision is made for
lower limits during the evenings and on Saturday afternoons. At night, between 2300
and 0700 hours, a limit of 42dB(A) would be imposed. That limit would also apply on
Sundays and Bank Holidays.
Exemption Periods
3.1217 It is explicitly a part of ABP's case that for some periods of construction activity it
would be necessary to exceed the general daytime construction noise limit referred to
above. If the Hythe Marina Bund were to be reconstructed as proposed in the draft
HRO, it would be necessary for the daytime noise limit at noise sensitive premises to be
increased to 65dB(A) for a period of 52 weeks during Phase 1 of the Terminal
development. Alternatively, if the revised scheme for the Hythe Marina Bund were to
be adopted, it would be necessary for the daytime construction noise limit to be raised
to 70dB(A) for a period of 15 weeks; and to 65dB(A) for a further period of 9 weeks
(CD/ABP/121, Schedule 3, Clause 7I).
3.1218 In addition, during Phase 3 of the Terminal construction, it would be necessary to
increase the daytime noise limit at sensitive premises to 60dB(A) for a period of 33
weeks. That limit would exclude noise generated by pile driving for the quay wall,
which would be the subject of a separate control.
3.1219 Some objectors regard these proposed exemptions from the normal daytime
construction noise controls as being unsatisfactory from an environmental point of
view. However, the witness for the County and District Councils accepted that the
noise limits proposed for the construction works at the Dibden Terminal are:

as low as or lower than levels in relation to any construction site of this scale; and

at a level which reflects an appropriate modern approach to the protection of amenity
(Day 100 pp178-179).
3.1220 In considering the levels of noise generated during the Phase 3 exemption period it is
also important to bear in mind that the levels can be favourably compared with the
levels set for outdoor areas in para 43 of MPG11, where a level of 65dBLAeq,1hr is
suggested.
3.1221 ABP's proposed modifications to the HRO include provision for specified residents to
be given at least 4 weeks notice of works that would be exempt from the "normal"
daytime construction noise limits. The residents in question would be the occupiers of
White Heather Court and Velsheda Court in Hythe Marina Village; and West Cliff Hall
and "The Cottage", Hythe (CD/ABP/121, Schedule 3, Clause 7L).
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Dibden Bay Inquiry - Inspector's Report
Piling Noise
3.1222 In addition to the general construction noise limit, further conditions are proposed to
control noise from piling. These would limit piling hours and the maximum sound
power levels for pile-driving equipment, and provide for monitoring (CD/ABP/121,
Schedule 3, Clauses 7G, 7J and 7K). They would ensure best practice is followed and
appropriate equipment is used to reduce noise from percussive activity. Having regard
to the other noise conditions, and the further safeguards afforded by the COPA, ABP
are confident that the noise from pile-driving would be acceptable.
3.1223 In response to the various concerns raised, ABP supplied further information
supporting the assumptions made regarding the sound power level of the quay wall
piling hammer, including noise data from comparable piling operations at the Woodrow
Wilson Bridge (in Washington DC) and at Hamble (ABP/11/4, para 4.5 et seq). This
was supplemented by further information on the shrouds and rubber bellows used to
mitigate noise from the Hydrohammer (ABP/11/8) and on the ground conditions at the
Woodrow Wilson, Hamble and Dibden sites (ABP/11/9).
3.1224 Further information on pile-driving times for the quay and anchor walls was also
supplied (ABP/3/11and 12).
3.1225 Whilst the Councils and the Hythe Marina Parties continued to express reservations
about the practicability of the mitigation assumed, they did not seek to resolve their
uncertainties by making investigations of their own. This contrasted sharply with the
thorough investigations carried out by Mr Thornely-Tayor for ABP. The Woodrow
Wilson studies were commissioned by four US Government Agencies. Nonetheless he
made inquiries, including a visit, and satisfied himself that the studies were competent.
At Hamble he similarly made inquiries to satisfy himself that the reported gas leakage
did not affect the noise results relied on.
3.1226 ABP's expert evidence clearly shows that the mitigation assumed would be practical.
Some of the assumptions made are also conservative; in particular with regard to the
expected reduction in noise emitted as the pile is inserted further into the ground. At
the Woodrow Wilson site, this reduction was some 8dB(A) (Day98, p30).
Accordingly, there is no reason for the Secretary of State to reject ABP's suggested
piling noise condition as being unachievable.
3.1227 Those opposed to the proposal sought to suggest that the loss of amenity from
percussive quay wall piling would be such that it ought not to be permitted. However,
on the evidence before the Inquiry such a position is unsupportable because:

The levels of noise, including that due to piling, would not be high either in absolute
terms or relative to other construction noise limits.

The only period when quay wall piling activity would be identifiable as an activity
requiring any exemption from the general (55dBLAeq,1hr) daytime construction noise limit
is in Phase 3, and then only for a period of 30 weeks assuming 5 day working
(ABP/3/11).

Assuming no restrictions on piling activity, then a maximum of 8 piles could be driven in
a day, with a total driving time of 5 hours (ABP/3/12). However, if this were done, then
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Dibden Bay Inquiry - Inspector's Report
there would be no piling activity the following day. Average weekly driving time would
not exceed 12.5 hours37. With the lower estimated pile driving times, these times would
be reduced by 33% (ABP/3/11).
3.1228 The impression which the Councils' evidence attempts to give of unremitting
percussive quay wall piling activity, with high levels of noise resulting, cannot be
sustained. Dibden Terminal would not be an especially noisy project in any way. The
aggregate period of 30 months for quay wall construction needs to be viewed in the
light of the actual piling times involved. Originally this was estimated at 28%
(ABP/11/4, para 4.7). However, the further information in ABP/3/11 suggests it could
be lower.
3.1229 There is no rational basis to regard this as unacceptable, having regard either to any
published standard or previous decision on another project.
Alternative Types of Quay Wall Construction
3.1230 The County and District Councils seek to persuade the Secretary of State that ABP
should be required to adopt a different type of quay wall construction, taking the view
that, if that occurred, then percussive piling noise would not be "audible" and
significant benefits would follow. However, it is accepted that, even if a different
method of quay wall construction were adopted, percussive piling would still be
necessary for other elements of the work (Day 100, p159). The Councils' witness
estimates that by adopting an alternative form of quay wall construction, an overall
noise reduction of the order of 3-5dB would be achieved (NFDC/4/4, para 2.30).
Accordingly there would still need to be an exemption period in Phase 3 for noise
above 55dB(A).
3.1231 Adopting an alternative form of quay wall construction is not necessary in order to
preserve reasonable levels of amenity. Moreover, it would not only involve excessive
cost, estimated to be £100 million (ABP/0/120, and Day 100 pp162-4)38; it would also
raise engineering issues as to its appropriateness and robustness (CD/GEN/8A, Paper
3).
Test Piling
3.1232 Careful consideration has been given to more recent requests, particularly from the
Hythe Marina Parties, for test pile-driving on site. Test driving would require its own
preparation, assessment, permission and consents. The location would have to be offshore, and carefully chosen in an attempt to make it representative, yet it could still
transpire to be atypical. The driving of several piles to increase reliability would be
very expensive. In all, the suggestion is impracticable.
Combined Effects of Pile-Driving Noise and Vibration
3.1233 The effects of the pile-driving noise would not be significantly compounded by the
perceptible vibration from the pile-driving. Due to the distance to the nearest noise-
37
Assuming a five day working week and piling at the maximum rate. Average weekly driving times for
the periods in which piling is expected to take place are predicted to range from 11.2hrs/week in Phase 1 to
8.1hrs/week in Phase 3 for the higher estimated pile driving times – see table in ABP/3/11
38
Note: The estimated cost of £100 million is for the whole of the quay wall, not just Phase 3.
221
Dibden Bay Inquiry - Inspector's Report
sensitive premises, the noise and the vibration would be experienced at different
moments so that there would not be a cumulative impact. Although the vibration
would often be accompanied by some noise, there is no evidence that, at the levels of
noise and vibration involved, the overall effect would be unacceptable. The maximum
vibration level predicted would be a peak particle velocity of 0.88mm/s at the closest
approach of the quay wall piling to Hythe Marina. The Councils concede that this
would be within the limits of acceptability set out in BS 6472 (Day 101, pp85-87).
Paragraph 4 of Annex 3 to PPG24 recommends the advice in this Standard. The
Government must have been aware that such vibration would often be accompanied by
noise, and it can only be concluded that acceptable noise accompanied by acceptable
vibration is tolerable without further mitigation.
Construction Noise Monitoring and Remediation
3.1234 ABP's proposed modifications to the draft HRO make provision for construction noise
to be monitored in accordance with a scheme to be approved by the District Council.
The proposed modifications would also require ABP to take any necessary action to
secure compliance with the specified noise limits (CD/ABP/121, Schedule 3, Clauses
7M and 7N).
Operational Noise
Conclusions in the Environmental Statement
3.1235 Operational noise impact from the Terminal was assessed using the method set out in
BS 4142. Noise levels from the operating terminal were predicted and compared to the
prevailing background noise levels. Impact magnitude criteria were used to describe
the differences between the calculated BS 4142 rating noise levels and the background
levels (ES, Table 17.3). The results were used to inform the final judgement of overall
significance, taking into account also factors such as the sensitivity of the receiver and
the absolute noise levels at each location. The conclusions were expressed using a four
point scale; insignificant-minor-moderate-major.
3.1236 Assessments were undertaken for seven representative locations around the Terminal
for daytime and night-time conditions (ES, Table 17.1539 and Figure 17.2).
3.1237 After mitigation, the noise from the operational Terminal is assessed to have an
adverse impact of minor significance during the night at Marchwood, Veal's Farm and
Locks Farm. This is mainly due to the high sensitivity of these receivers and the
frequency with which the impacts are predicted to occur, as the magnitude of change in
the noise level created by the Terminal would be only marginal. During the daytime,
the overall impact of noise from Terminal operations at these locations is assessed as
insignificant.
3.1238 At Hythe Marina and Hythe, the noise generated by Terminal operations is assessed to
have an adverse impact of minor significance during both the daytime and the nighttime. Elsewhere the impact is assessed as insignificant.
39
As modified by ABP/11/1 para 5.1.
222
Dibden Bay Inquiry - Inspector's Report
Standards
3.1239 It is common ground that the procedures indicated in BS 4142 are appropriate for the
assessment of operational noise from the Terminal. However, care needs to be taken in
the Standard's application. As a general principle, there is no basis for the use of
minimum values for the background (L90) noise levels in a BS 4142 calculation; rather
one should adopt "typical" or "representative" values (para 7.12 and 7.13). Equally,
there is no basis for doing a rating assessment using "worst case" assumptions. Care
also needs to be taken where rating noise levels for future development are compared
against historical ambient noise measurements.
3.1240 Slavish adherence to the approach in BS 4142 is clearly not appropriate. The
Foreword to the Standard recognises that it is legitimate to use BS 4142 in conjunction
with other recommendations on noise levels; it also makes it clear that other factors are
also relevant in considering what the response to noise might be, including the absolute
noise level.
3.1241 Where difficulties occur in applying the BS 4142 methodology, as can happen for
example where there are large differences between the ambient LAeq and the
background LA90, it is better to cross-check with other assessment methods, rather than
to attempt to refine the BS 4142 methodology.
3.1242 BS 4142 is not a means by which one reaches a judgement on the acceptability or
otherwise of noise; rather, it is one piece of guidance which may contribute to the
overall judgement.
Operational Noise Conditions
3.1243 ABP's proposed modifications to the HRO include conditions to limit operational
noise (CD/ABP/121, Schedule 3, Clauses 7C to 7F and Table 1). These would apply
to noise emitted from the Terminal as defined (including an area of water extending
200m seaward of the quay face; but excluding the rail and road access corridor outside
the operational area of the port). The limits for operational noise at specified locations
within New Forest District would range between 40 and 42 dB(LAeq,T), with provision
made for somewhat higher levels in parts of Southampton. The measurement interval
would be 1 hour between 0700 and 2300 hours; and 5 minutes between 2300 and 0700
hours.
3.1244 It is common ground that the levels set down in the condition are achievable and that
they should apply in all weather conditions, including worst case conditions for
propagation of noise from the Terminal. They were calculated assuming the removal of
the 6dB correction applied in the Technical Assessment to derive a typical noise level
for the Terminal (TS/NV1, para 6.15 and ABP/11/4, para 4.19 et seq).
The County and District Councils' Assessment
3.1245 The approach taken by the Councils' witness Mr Davis in his "BS 4142 Noise Impact
Assessment" (NFDC/4/4, para 3.4 and following table) is flawed in several respects.
When cross examined on the matter, he conceded that the exercise, whilst capable of
"useful interpretation," was of limited value (Day 101, pp46-47). The table was
revisited in re-examination, with apparently a different conclusion being drawn.
223
Dibden Bay Inquiry - Inspector's Report
Having regard to the range of answers given, the witnesses' reliability on this point has
to be questioned.
3.1246 The first flaw relates to the noise levels assessed. The analysis starts from the levels
contained in the agreed condition. They are therefore the limits with which the
Terminal operator would have to comply, whatever the circumstances. In practice the
Terminal operator would not be able to work close to the limits on a daily basis, as the
Councils suggest, because then the operator would have an insufficient margin left to
avoid breaches in unfavourable weather conditions.
3.1247 The second flaw relates to the addition of the 5dB rating correction. ABP do not
dispute that in carrying out a rating assessment it is legitimate to make such a
correction if the circumstances in BS 4142 paras 8.1 and 8.2 apply. However, Mr
Thornely-Taylor's evidence is that this would not be the case with Dibden Terminal.
He cited experience at Algeciras in support of this view (Day 98, p120). The limits
contained in the condition, moreover, allow for all plant on the Terminal to be working.
However, if this were to occur, then the noise from individual noise sources would be
effectively masked and the acoustic correction feature would not apply (ABP/11/4, para
4.21). The overall noise would be a broadband, continuous, non-specific noise. A
spreadsheet supporting this conclusion was supplied to Mr Davis; his response was to
accept the calculations, but not the conclusion flowing from it (Day 101, p49).
3.1248 Mr Davis did not produce evidence to dispute the accuracy of Mr Thornely-Taylor's
views regarding both the relevance of other ports and the distinctiveness of the noise
that would be likely to emerge from Dibden Terminal (Day 101, p54). He accepted
that the test set by BS 4142, para 8.1, is not audibility but "distinct" elements at the
assessment location, but produced no evidence in the form of LAmax or other data to
show that the acoustic feature correction would be justified.
3.1249 His evidence amounted to little more than an assertion that, because there was a noise
at one port that would attract an acoustic feature correction when observed from a
particular point, then an acoustic feature correction should be made for Dibden
Terminal. This is not satisfactory as, firstly, it does not allow for any improvements in
handling methods and equipment between the locations observed and those which
would be employed at Dibden Terminal; and secondly, it fails to take account of
differences in attenuation between the locations observed and the assessment sites at
Dibden.
3.1250 Moreover, even if, notwithstanding these flaws, the results of the Councils'
assessment were to be accepted, the case is still weak. This is so since, firstly, the
"rating levels" used by the Councils would compare favourably with existing noise
levels at the receiver locations. With the Terminal operating at the limit set by the
agreed condition, the rating levels (ie with the 5dB acoustic feature correction applied)
at locations where there are occupied properties would range between 48dB at Unwin
Close and 45dB at Hythe and Veal's Farm. (NFDC/4/4, table following para 3.4). At
Hythe Marina the level would be 47dB. The Councils' environmental noise survey for
Velsheda Court, however, shows that the night-time measured LAeq often exceeds this
level (NFDC/4/3, Appendix 3 pp104-116, particularly pages 110-111). The measured
LAeq noise levels at White Heather Court are similar to those at Velsheda Court (ibid,
pp95-103 and particularly pp97-98). Background (L90) noise levels at the two locations
are similarly very variable.
224
Dibden Bay Inquiry - Inspector's Report
3.1251 Secondly, the absolute levels would anyway not be high when compared to the
standard the Councils rely on elsewhere. With a façade correction of 2.5dB and an
allowance for a partially opened window, noise inside a bedroom would not exceed the
30dBLAeq WHO guideline level at any of the locations. Similarly, the level assessed
against BS 823340 would be classified as "good." Clearly no objection could be
sustained on that basis. Neither is there any evidence that the LAmax levels identified in
the guidelines would be exceeded for Terminal operations.
Worst Case Weather Conditions
3.1252 The Agreed Statement records that the calculations for concurrence of the worst case
weather and the lowest L90's are agreed but their relevance is not accepted
(CD/GEN/8E, final paragraph). The Councils did not attempt to explore that matter
with Mr Thornely-Taylor in cross-examination; neither did they suggest that it was
irrelevant. Accordingly, the wind rose data in the Agreed Statement cannot be relied on
to support a view that the agreed levels in the operational noise conditions represent
typical or representative conditions.
Vessel Noise
3.1253 ABP originally indicated that they would accept the agreed operational noise
conditions as applying to berthing, berthed and unberthing vessels. However,
subsequently they decided that such a course would not be appropriate (ABP/0/131).
Accepting such a condition would not only restrict the use of the berth closest to Hythe
Marina; it would also be unenforceable because precisely what noise is generated by a
vessel depends on how the ship is equipped and what equipment is being used. Such
matters are not under ABP's control and ABP have no right to direct the Master of a
vessel to run it in any particular way. Also, as a matter of law under Section 33 of the
Harbours Docks and Piers Clauses Act 1847, and of policy in paragraph 2.1.9 of
Modern Ports, ABP are obliged to operate an open port.
3.1254 The measurements of noise from the purging fans on the ro-ro vessel "Falstaff" are
not disputed. Neither are the predictions, given the assumptions noted (NFDC/4/12).
ABP acknowledge that with a vessel such as the "Falstaff" operating as observed
during the site visit, the resultant noise level at the nearest unobstructed dwelling in
Velsheda Court, Hythe Marina would be around 44dBLAeq free-field, and 47dBLAeq at
the façade, in typical weather conditions. In worst case weather conditions, levels
would be some 3dB(A) higher. These levels would be about 2dB(A) in typical
conditions and 5dB(A) in worst weather conditions above the agreed operational noise
limit for the Marina of 42dBLAeq,T free-field.
3.1255 However, it is not accepted that these levels would constitute an unreasonable loss of
amenity. They would still be low in absolute terms. Assuming a partly-opened
window, they would be the equivalent of internal bedroom levels in the range 3235dB(A); that is between the "good" and "acceptable" categories of BS 8233. The
suggestion that a condition should be imposed to prevent ro-ro vessels berthing within
1,000m of Hythe Marina is not supported by any relevant evidence as to its necessity to
40
Sound insulation and noise reduction for buildings - Code of practice. The standard specifies 30dB LAeq
as “good” for bedrooms and 35dBLAeq as “reasonable” (Table 5).
225
Dibden Bay Inquiry - Inspector's Report
protect amenity. Indeed the evidence is to the contrary. There is no evidence that any
other ro-ro vessel or activity would make materially more noise than the "Falstaff".
3.1256 Any complaint that the approach now adopted causes difficulty with the
Environmental Statement is misplaced. The Environmental Statement considered the
noise generated by ships berthing and noise from ships generators. However, the
Technical Statement is explicit in indicating that such matters are not under ABP's
control (TS/NV1 paras 12.35 and 37). Nowhere does the Environmental Statement
suggest the results of the assessment rely on the imposition of controls on such sources.
3.1257 The position adopted by ABP with regard to vessel noise is consistent with the
approach in the Environmental Statement.
The Secretary of State has all the
information before him, and is able to reach a view on the proposals and the likely
noise generation potential.
Enforcement
3.1258 It is not accepted that ABP's inability to control vessel noise would make it
impracticable to control other operational noise. The Terminal operator would have to
lay out, equip and manage the Terminal so as to comply with the overall limits set in
the condition. If the limits were breached, the onus would be on the Terminal operator
to show that it was for reasons beyond their control. Separating vessel noise from other
noise sources should not present insuperable difficulties.
Conclusion
3.1259 Dibden Terminal would have an effect on noise levels in the area. However, it could
not reasonably be concluded that the effect would be unacceptable or at odds with
policy as expressed in PPG24 and the New Forest District Local Plan.
Rail Noise
3.1260 It appears not to be part of the County and District Councils case to suggest that the
noise levels from rail operations associated with Dibden Terminal are such that consent
should be refused (Day 101, p71). Rather, they seek measures, over and above the
noise barriers proposed by ABP, to further mitigate the effect of Dibden Terminal trains
on residential properties close to the Fawley Branch Line. Their justification for this
appears to rely on the WHO Guideline 60dBLAmax figure being exceeded41.
3.1261 Implicit in that line of argument is the suggestion that the Secretary of State has
endorsed such a figure with regard to the assessment of the effects of rail noise.
However, their expert witness accepted that PPG24 contains no such endorsement
(Day 101, pp74-76). On the contrary, the footnote in Annex 1 suggests regular nighttime exceedences of 82dBLAmax free-field as one of the tests to be applied when
deciding whether to grant planning permission for new houses adjacent to existing rail
lines. This reflects the 85dBLAmax facade-level single event threshold reported in the
Mitchell Committee Report, but not subsequently taken forward into the Railway Noise
Insulation Regulations 1996 (Day 97, p102).
WHO “Guidelines for Community Noise” specify a guideline value for sleep disturbance of 45dB LAmax
inside bedrooms (NFDC/4/3, Appendix 7, Reference 10). With windows partially open, this would approximate
to 60dBLAmax outside.
41
226
Dibden Bay Inquiry - Inspector's Report
3.1262 The matter is not taken any further by the paper by Rice and Morgan referred to by
Mr Davis (NFDC/4/13). Whilst 25% of the population are reported as likely to suffer
sleep disturbance from all causes where LAmax levels exceed 85dB(A) (ibid para 10.4),
this needs to be viewed against the background of 20% of the population having
sleeping difficulties which are totally unrelated to noise (ibid para 10.2). Furthermore,
the Secretary of State has made it clear, in paragraph 71 of the Heathrow Terminal Five
decision letter, that criticisms of the limited nature of the Department of Transport's
1992 Sleep Disturbance Study are not accepted (HCC/0/34, para 71).
3.1263 It is common ground that there is no evidence that the 82dBLAmax figure would be
exceeded by Dibden Terminal trains (Day 101, p76). The noise levels would not be
unacceptable when measured against any adopted Government Standard; neither would
they be at such a level as to lead to the invoking of the Noise Regulations, which the
Government has adopted as a matter of Policy. Accordingly there is no case to refuse
the powers and consents sought on the grounds of rail noise and vibration.
3.1264 As to the conditions sought by Southampton City Council, no evidence adequately
supports the proposition advanced; neither was any case put to ABP's witness which
would support the approach adopted.
3.1265 The Secretary of State should anyway not be concerned with the effects of the
proposals on railway noise levels beyond the limits of the Fawley Branch Line and the
TWAO Works (ABP/11/7). It is an established principle that when powers were
granted for the construction of railways, compensation was paid for the effects that
would arise from the operation of the railway in any manner for all time. There is no
question of revisiting the issue merely because of intensification. When the Secretary
of State made the Railway Noise Insulation Regulations he expressly provided that the
provisions for insulation only arose with new or altered railways.
Vibration
3.1266 Notwithstanding the concerns initially expressed by the County and District Councils
it is agreed that (Day 101, pp82-87):

The Secretary of State has made clear that the levels of vibration set out in BS 6472 are
acceptable.

The maximum assessed level for vibration at Dibden Terminal is a ppv of 0.88mm/s.

The maximum assessed level is, by reference to BS 6472, a level which would be
regarded as acceptable.
3.1267 During construction, vibration due to piling would be clearly perceptible. Having
regard to the safeguards provided by the agreed conditions42, the maximum levels of
vibration would not, however, at any time be unacceptable.
42
CD/ABP/121, Schedule 3, clauses 7O to 7U.
227
Dibden Bay Inquiry - Inspector's Report
Road Noise
3.1268 It was originally the case that the road traffic noise implications of the proposal were
regarded as uncontroversial (NFDC/4/1, paras 11.20/21). Subsequently the Councils
raised issues regarding HGV movements during the night and evening periods,
following which an agreed note was produced (ABP/11/11a).
3.1269 There is no accepted method of rating night-time road traffic noise. Notwithstanding
this the note sets out the predicted change in LAeq noise levels in the 6 hour period 2400
to 0600. Measured on this basis, the predicted noise increases at sensitive receptors
close to the A326 are modest. At Tatchbury Mount Hospital43, an increase of 4.5dB(A)
is predicted assuming 65% of containers are transported by road (5.8dB(A) with 85%
by road). Elsewhere the increase is predicted to be around 3dB(A), except at
Hounsdown where it would be only 0.2dB(A). For properties close to improved
sections of the A326, where stone mastic asphalt would replace the present road
surfacing, the predicted increases would be some 2dB(A) less44.
3.1270 Accordingly, there is no rational basis for any concern about road traffic noise effects,
notwithstanding the significant increase in the numbers of heavy goods vehicles using
the A326.
Countryside Issues
New Forest National Park Designation Order
3.1271 The Secretary of State for the Environment, Food and Rural Affairs has convened a
public inquiry into the New Forest National Park Designation Order. That inquiry
opened in October 2002 and was still in progress when the Dibden Terminal Inquiry
closed. It is common ground between the parties that the Secretary of State for
Transport has no role in deciding whether there should be a New Forest National Park;
or in deciding whether Dibden Bay should be within the National Park boundary.
3.1272 It should be noted that the Countryside Agency gave evidence at the Dibden Terminal
Inquiry, relating to their decision to include the Dibden site within the designated
National Park boundary. However, they declined to cross-examine any of ABP's
witnesses. On the other hand, the County and District Councils produced a document
dealing with the implications of the National Park proposals (HCC/0/32) but called no
witness on countryside issues. However, the Councils did cross-examine ABP's
witnesses on these matters.
3.1273 There is a single issue for the Secretary of State for Transport in relation to the
proposed New Forest National Park. This concerns the weight to be given to the fact
that the Designation Order has been made, with a boundary that would include both the
Dibden Reclaim and the Hythe to Cadland foreshore. Each of these areas is outside the
NFHA.
43
For location of Tatchbury Mount Hospital see ES, Figure 17.3.
44
Predicted noise increases would also have been less at all locations had the base traffic data been
corrected to classify vehicles over 1525kg unladen weight as heavy vehicles – see ABP/11/11a, p2.
228
Dibden Bay Inquiry - Inspector's Report
3.1274 The relevance of this issue is tempered by ABP's acceptance that the Dibden Terminal
would entail major development within the NFHA; and that the tests set out in
paragraph 4.5 of PPG7 should apply to the Dibden Terminal proposals as a whole. The
Secretary of State for Transport must therefore be satisfied that it would be in the
public interest for the proposed development to proceed; and he must assess:

the need for the development in terms of "national considerations";

the availability of alternative ways of meeting such a need;

the environmental and landscape effects; and

the extent to which these effects should be moderated.
These matters have already been considered exhaustively.
The National Park and the NFHA
3.1275 In considering the weight to be attached to the designated National Park boundary, the
following matters should be borne in mind. First, the Countryside Commission (the
forerunners of the Countryside Agency) helped establish the boundary of the NFHA.
They approved the criteria that determined which land should be included (ABP/2/13,
Appendix 14, para 2.13); and, in 1991, they advised the Government that the NFHA
should be treated as a "national park equivalent" (ibid, para 2.6).
3.1276 Second, in 1998 the Countryside Commission again advised the Government that "the
most appropriate arrangement for the New Forest is designation of the Heritage Area as
equivalent to a National Park and establishment of a co-ordinating authority through
special legislation" (CD/CA/8, Annex 1 para 20a). It is important to stress that this
advice referred specifically to the Heritage Area, and not some larger area that would
include Dibden Bay.
3.1277 Third, the Commission's approach was entirely logical, because in 1994 the
Government had announced that the NFHA would be subject to the same planning
principles as applied in the National Parks. As a result, since 1994, everyone has
known the status of the NFHA; and that it was defined so as to protect the particular
interests of the New Forest. Fourth, the Countryside Agency have never suggested that
the criteria used for defining the NFHA boundary require amendment.
3.1278 In the light of these considerations, the Countryside Agency are poorly placed to
argue that the aims of the New Forest National Park differ fundamentally from those of
the NFHA; or that the boundary of the NFHA should now be set aside. In fact, the
Agency's approach to defining the boundary of the National Park has been muddled.
Criteria for the Inclusion of Land in the National Park
3.1279 Previous National Park boundaries have been defined on the basis of the 1947
"Hobhouse criteria" (CD/CA/5, Annex 1). These indicated the National Parks "should
normally exclude areas where the needs of urban or industrial development conflict
with, or outweigh, the essential values of the Park".
229
Dibden Bay Inquiry - Inspector's Report
3.1280 The Countryside Agency have now adopted a new approach to defining National Park
boundaries (ibid, Annex 2). Paragraph 2i of their new approach indicates that land on
the margins of a National Park, which is shown in an adopted minerals local plan to be
worked for the quarrying and mining of important deposits, should normally be
excluded from the Park. It continues - "this approach should also extend to major
industrial and commercial developments shown in adopted development plans at the
time of designation". This plainly applies to proposals for future development, such as
the Dibden Terminal.
3.1281 Nevertheless, despite the fact that the adopted development plan identifies Dibden
Bay as a potential location for port development, the Countryside Agency have
included the relevant land within the designated National Park boundary. The reasons
for this are unclear. It is not the Agency's intention that land upon which there is
proposed to be significant urban development should be included within the National
Park.
3.1282 In ABP's view, the Countryside Agency should not have included Dibden Bay within
the designated National Park boundary until the Secretary of State for Transport's
decision on the present applications is known. That decision will test the need for the
proposed Terminal, in accordance with development plan policy. To promote the
revised boundary for the protected area of the New Forest, at a time when the Dibden
Terminal scheme is actively under consideration, appears to be an attempt to hamper
the approval of that development. The Agency accept that it would be quite wrong to
use National Park designation as a means of defeating development proposals (Day 92,
p73).
3.1283 Nevertheless, the minute of the Agency's decision to include Dibden Bay within the
designated area of the National Park reads as follows (CA/1/5, Minute 6d):
Dibden Bay should be included. A development of national importance could
still proceed in a National Park. This area deserved protection against
anything less than nationally justified development.
This implies that the Dibden site was included within the National Park boundary
precisely in order to protect it from development.
3.1284 In July 2000, the Board of the Countryside Agency considered a report on the
proposed boundary of the New Forest National Park (CD/CA/6). At paragraph 11e,
this report unambiguously confirms that Dibden Bay was not historically part of the
New Forest. The report goes on to state, incorrectly, that the proposed Dibden
Terminal development "would not be consistent with the adopted local plan". In fact,
the Local Plan expressly refers to the possible requirement for port development on
land at Dibden Bay (CD/NFDC/1, para C13.15).
3.1285 The Countryside Agency has no evidence with which to test whether the proposed
Dibden Terminal development would comply with the requirements of Policy EC6 of
the Hampshire Structure Plan Review. They have simply presumed that those
requirements would not be met.
3.1286 The Countryside Agency cite the open character of the Dibden Reclaim as a reason
for the inclusion of this land within the National Park. However, they fail to
230
Dibden Bay Inquiry - Inspector's Report
acknowledge that this openness results from the land having been safeguarded for
precisely the sort of development that is now proposed.
3.1287 The fact is that the adopted development plan makes provision for the Dibden
Terminal. Consideration is now being given to whether the present proposals comply
with the development plan criteria. By including the Terminal site within the
designated National Park, the Countryside Agency are attempting to frustrate that
process.
3.1288 The lack of rigour in the Countryside Agency's approach can be seen most clearly in
the inclusion of the Hythe to Cadland foreshore within the designated area of the New
Forest National Park. There is no independent landscape advice to support this. In the
New Forest National Park Boundary Study, which consultants ERM undertook for the
Countryside Agency, this area is described as having only a "tenuous" link with the
New Forest (ABP/2/18, para 4.3.1). ERM recommended its exclusion from the
National Park. The officers of the Countryside Agency also recommended against its
inclusion. Nevertheless it has been included in the designated area, by a decision of the
Agency's Board.
Progress through the Statutory Procedures
3.1289 Objectors have sought to compare the weight to be attached to the National Park
designation to the weight that is attached to a draft development plan as it progresses
through the statutory procedures towards adoption. However, such an approach would
not tell in favour of attaching much weight to the Designation Order. This is because:

a public inquiry into the Designation Order is under way;

there are strong objections to the National Park as a whole, and specifically to its
boundary at Dibden Bay;

the NFHA already has equivalent status to a National Park, and its boundary in this area
has been established in successive local plans - it is not clear why it should now be
changed;

the NFHA boundary reflects considerations of natural beauty, and excludes Dibden Bay;

Dibden Bay is described in the New Forest District Local Plan as "flat and featureless"
with "little visual impact" (CD/NFDC/1, para C3.9).

recreational activity in the NFHA is constrained as a matter of policy, because of
potential damage to unique ecological and landscape interests;

the Dibden Reclaim is not used for recreational purposes and does not offer a "markedly
superior recreational experience".
The New Forest Committee
3.1290 The designated National Park boundary has been influenced by a coterie of objectors
to the Dibden Terminal project, who constitute a substantial part of the New Forest
Committee (NFC). Their motive has been to defeat the Dibden Terminal proposals.
The Countryside Agency are also represented on the NFC.
231
Dibden Bay Inquiry - Inspector's Report
3.1291 The NFC's Strategy for the New Forest was produced in 1996 (CD/NFC/1). It
supports the NFHA boundary. The Strategy for the New Forest was clearly prepared
with an awareness of the characteristics of the coast, but contains no suggestion that
Dibden Bay should be included within the NFHA. At p29 it notes that:
Plans to develop Dibden Bay are currently being discussed. Any development
in this area may have ramifications for the conservation of the area. Any
proposal will need to be looked at very carefully in conjunction with a
comprehensive environmental assessment.
3.1292 In the context of the NFC's case, it should be noted that ABP fully support the view
that the New Forest is of great value and importance. This is attested to by its inclusion
on the Government's tentative list of World Heritage Sites. However, the proposed
World Heritage Site is co-extensive with the NFHA, and not some wider area that
would include Dibden Bay (NFC/1/1, Section 2, Appendix 1). This is not surprising,
since the Government have long recognised that the NFHA, as defined by the local plan
process, should provide the basis for the boundary of the new statutorily designated
area (ABP/2/15, para 3.15).
Agricultural Considerations
3.1293 Only lower grade agricultural land (in Land Classification Grade 3b or worse) would
be affected by the Dibden Terminal project. Some 241ha of the land directly affected
by the proposed development would otherwise be potentially available as grazing land.
The effect on long-term agricultural production would be insignificant. None of the
existing occupiers of the land that would be directly affected by the proposed
development has the benefit of long-term security of tenure.
Commoning
3.1294 Objectors have made numerous assertions (but produced relatively little reliable
evidence) about commoning. The study of commoning undertaken by Cox and Sevier
for the New Forest Committee (NFC/1/3) was not raised in the relevant Joint Data
Group. Whilst it purports to be based on discussions with land owners, no attempt was
made by its authors to discuss its subject matter with ABP, who are a major landowner
in the area studied and whose land was covered by the survey.
3.1295 One of the weaknesses of the Cox and Sevier study is the definition of "back-up
grazing" that was used. It derives from a paper produced by the New Forest Committee
(NFC/1/1, Section 7, Appendix 3) and includes land used "to keep non-depastured
cattle, sheep and pigs, and other livestock (poultry, goats etc) which form part of the
cottage economy of the commoner". Plainly, this is not consistent with the use of
"back-up land" to supplement the grazing available to livestock de-pastured in the New
Forest.
3.1296 The NFC definition is wider than that used by Land Use Consultants for the purposes
of defining the boundary of the NFHA in 1991 (CD/HCC/16, para 3.3) a definition
approved by the Countryside Commission. It is also wider than that used in the New
Forest District Local Plan (CD/NFDC/1, para D1.20). Neither of these definitions
include land that is never used to support de-pastured stock, but simply provides
commoners with an additional source of income, unrelated to their use of the open
Forest.
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3.1297 It is noteworthy that the availability of "back-up grazing land" was considered at the
inquiry into objections to the New Forest District Local Plan. The Inspector noted
evidence that "the New Forest contains far more back-up grazing land than the current
number of commoners and their stock, or any reasonable increase in that number, might
require ...". He concluded that "there is no direct evidence that the New Forest
landscape is under threat of decline as a result of shortage of back-up grazing currently,
or in the foreseeable future ..." (CD/NFDC/13, para 5.1.87).
3.1298 The Cox and Sevier study does not justify a conclusion that there is now a shortage of
"back-up grazing land"; or that the demand for such land exceeds supply. It does not
provide evidence that there is a shortage of people coming forward to participate in the
commoning economy; or that a shortage of "back-up land" is preventing people from so
doing. It does not provide evidence of a need for the Dibden Terminal site as "back-up
grazing".
3.1299 The results of the Cox and Sevier study are inconsistent with a report on "back-up
land" in the Dibden area that was produced for ERM in 2000 (ABP/14/5, Appendix 2).
This (incorrectly) shows an extensive area of the Reclaim as being used for as "back-up
grazing". That was a factor that led to the Countryside Agency's conclusion that the
Reclaim should be included in the New Forest National Park. The Cox and Sevier
study shows that, between July 1999 and June 2001, only a small part of the Reclaim
was used to support commoning (by Mr Renyard of Talbot Farm). Otherwise, it
provides no evidence of any use of the Reclaim for commoning purposes.
ABP's Evidence on "Back-up Land"
3.1300 ABP's evidence is that the use of the Reclaim as "back-up grazing" has been very
limited. They own the whole of this area. Since it became available for agricultural
use, the majority of the Reclaim has been let to Mr Duell, the occupier of West Cliff
Farm, who has used it for grazing. However, he has never actively engaged in the
Forest commoning system, either in terms of de-pasturing his own stock, or in terms of
purchasing de-pastured stock for finishing.
3.1301 The Reclaim has limitations in terms of its suitability as "back-up grazing". It is
relatively inaccessible, being some distance from the open Forest, from which it is
separated by the Marchwood Stream, the Fawley Branch Line and the A326. Unlike
most "back-up land", it is not divided into small enclosures. In terms of fertility, it
compares unfavourably with the higher quality land that surrounds the Forest grazings.
Furthermore, the recent designation of the Reclaim as a SSSI implies constraints on its
future management. These are unlikely to be wholly compatible with the introduction
of a "back-up grazing" regime.
3.1302 As to the other agricultural land affected by the Dibden Terminal scheme, Talbot
Farm is occupied by Mr Renyard, an active commoner. He owns some 11ha and rents
adjoining land at Church Farm and on the Reclaim. He has a suckler herd of 25 cattle
and maintains a herd of 15 horses. He exercises Forest rights in relation to the horses.
His cattle are not depastured.
3.1303 Veal's Farm consists of 61ha of grassland and supports a herd of 42 suckler cows. It
has attached Forest rights, which have never been exercised by the present occupiers.
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3.1304 Pumpfield Farm has an area of about 16ha, which is wholly owned by ABP. It
operates as a mixed smallholding, supporting poultry, suckler cows and sheep. The
occupiers supply caterers in London and do not form part of the commoning economy.
Although Pumpfield Farm has Forest rights, these are not exercised.
3.1305 In recent years, ABP have let land at Church Farm on annual tenancies. The land has
been variously used for agriculture and for recreational equestrian purposes. In
addition to the occupier of Talbot Farm, some of those renting this land may have had
commoning interests.
3.1306 The evidence provides no basis for placing a need for "back-up grazing land" in the
balance against the proposed Dibden Terminal. It should also be borne in mind that the
Church Farm Nature Conservation Area offers considerable potential for grazing use.
The net loss of grazing land in the NFHA, as a result of the proposed development,
would be about 35ha.
Conclusions
3.1307 The designated boundary of the New Forest National Park is not consistent with the
boundary of the NFHA at Dibden Bay. The decision to include the Reclaim (and the
Hythe to Cadland foreshore) within the National Park is not supported by any rational
criteria. Some of the evidence that was used in the definition of the National Park
boundary is contradicted by fresh survey material. The National Park proposals will be
considered for confirmation by the relevant Minister following a separate public
inquiry.
3.1308 In the circumstances the suggestion that the designated National Park boundary
should carry significant weight is unfounded. There is no basis for concluding that the
need for "back-up grazing" should tell against the Dibden Terminal.
Rights of Way
3.1309 Remarkably few public rights of way would be affected by the proposed Dibden
Terminal development. There is no public right of access to any part of the Dibden
Reclaim. There is no general public right to walk along the foreshore. The only public
rights of way that would be affected lie at the periphery of the Reclaim. They are
Hythe and Dibden Parish Footpath 10; and Marchwood Parish Footpaths 12 and 13
(ABP/2/20)45.
3.1310 In the case of Footpath 10, the proposal is that the path should be diverted rather than
stopped-up. The diversion is necessary to facilitate the creation of the Church Farm
Nature Conservation Area. Section 17(2B) of the Harbours Act 1964 requires that,
before the Secretary of State can make a HRO that provides for the diversion of a
footpath, he must be satisfied that the path would not be substantially less convenient to
the public as a result of the diversion.
45
The plan attached to ABP/2/20 incorrectly labels Footpath 10 as being in Marchwood Parish rather
than Hythe and Dibden.
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3.1311 The diverted route of Footpath 10 would be about 130m longer than the existing
route. It would be surfaced, so as to provide sure footing throughout the year, an
important improvement. A cycleway would run alongside the footpath, providing
cyclists with a new route between Hythe and Veal's Lane. The diverted section of
Footpath 10 would be well away from the operational area of the Terminal, and would
adjoin the Church Farm Nature Conservation Area. The Section 106 Agreement makes
financial provision for the maintenance of the diverted right of way (ABP/0/149).
There is no maintenance funding specifically devoted to Footpath 10 at present. The
County Council's Rights of Way Officer agrees that the proposed diversion would not
detract substantially from the convenience of the public.
3.1312 The HRO provides for Footpaths 12 and 13 to be stopped-up. Section 17(2A) of the
Harbours Act 1964 requires that, before the Secretary of State can make a HRO that
would extinguish a public right of way, he must be satisfied either:

that an alternative right of way would be provided; or

that an alternative right of way is not required.
3.1313 Footpath 13 would be stopped-up where it crosses the proposed Terminal access road
and railway spur. The short length affected leads to a dead-end at the boundary of the
Marchwood Military Port. There have been no objections to its closure. Accordingly,
the provision of an alternative right of way is not required.
3.1314 Footpath 12 would be stopped-up to the south of the Terminal access corridor (plan
attached to ABP/2/21). This would sever the connection between Veal's Lane and
Marchwood Footpath 11a. However, ABP propose the creation of a new footpath and
cycleway alongside the Terminal access road. They also propose the retention of the
northernmost section of Footpath 12, to provide a pedestrian link between the Terminal
access road and Footpath 11a. The diverted section of Hythe Road would link the new
footpath and cycleway to Veal's Lane. By these means, an alternative right of way
would be created between Veal's Lane and Footpath 11a. No objector has suggested
that this would not meet the relevant statutory test.
3.1315 Nevertheless, some objectors have argued against the stopping-up of Footpath 12.
The retention of this route would allow pedestrians to cross the Terminal access road
and railway at grade, giving rise to a potential safety hazard. It would also necessitate
the clearance of semi-natural ancient woodland in order to create the requisite visibility
splay, so that pedestrians could be seen by oncoming drivers. ABP do not consider that
these adverse effects would be justified by the dubious benefits, particularly as there
would be an alternative pedestrian route from Veal's Lane to Footpath 11a.
3.1316 A new footpath is proposed to link the truncated ends of Footpaths 12 and 13 on the
southern side of the Terminal access corridor. This would complete a circuit of
footpaths through the Post Copse Complex, beginning and ending in Veal's Lane (plan
attached to ABP/2/21).
3.1317 Certain objectors seek the creation of a link between Marchwood Footpaths 11a and
11b, across ABP's land. These are the remaining limbs of a path that was severed by
the establishment of the Marchwood Military Port. Footpath 11b passes over the
unmanned railway level crossing at Pumpfield Farm. Railtrack have indicated that they
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would oppose any link that encourages greater public use of that level crossing
(ABP/0/122). ABP agree that the link would be undesirable because of the potential
safety hazard. The proposal to create such a link does not arise from any test that the
Secretary of State must apply in connection with the HRO.
3.1318 The HRO provides for the temporary stopping-up of Footpath 11b, while it is used by
construction vehicles prior to the completion of the Terminal access road. Nobody has
objected to this provision, which is plainly necessary in the interests of safety.
Recreation and Tourism
3.1319 Southampton Water is both an internationally important recreational resource and the
location of a busy commercial port. There is no evidence to support the view that the
recreational resource would be adversely affected by the Dibden Terminal proposals.
Recreational activity and the expanded port would continue to co-exist.
3.1320 It is fanciful to suggest that the proposed development would have any impact on
people's willingness or desire to visit the New Forest. Its effect would be limited. It
would blend well with the range of existing uses along the estuary, and would add to
the interest generated by shipping movements and port activity.
3.1321 It has been asserted that the Dibden Terminal would adversely affect the business of
cruise liners, because passengers would not like the view of a commercial container
port as they sailed up or down Southampton Water. However, Cunard, a leading cruise
operator, support the proposed development (ABP/2/13, Appendix 26). They say:
Only a healthy thriving port can provide the appropriate levels of service and
we believe that the Dibden Terminal expansion will be a major contributory
factor in improving the full range of facilities provided by the port in the years
ahead.
3.1322 On the evidence, there is no likelihood that the proposed development would cause
significant harm to tourism or recreation. There is, however, evidence that failure to
proceed with the Dibden Terminal would damage one of the elements of the local
leisure industry, with effects across a range of trades and service providers.
Miscellaneous Matters
3.1323 It is a reflection of the suitability of the Dibden Reclaim as a site for the type of
development proposed, that a number of matters that were originally controversial have
now been resolved, without the need for objectors to call "live" evidence. This is true
of air quality and climatic factors; archaeology; flooding and drainage; contaminated
land; and the use of land in the safeguarded area around the Marchwood Military Port.
Air Quality and Climatic Matters
3.1324 The Dibden Terminal would be a multi-modal transport interchange and would
comply with the Government's sustainable distribution strategy. It would facilitate the
use of rail and water (rather than road) transport and would contribute to the
Government's objective of reducing greenhouse gas emissions.
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3.1325 The Environmental Statements are supported by an Air Quality Impact Assessment.
This is contained in Technical Statements TS/AQ1 to TS/AQ3, which deal respectively
with the proposed Terminal and the proposed road and rail access arrangements. The
pollutants considered include dust; airborne particles (PM10); sulphur dioxide; nitrogen
dioxide; iron oxide particles; and polycyclic aromatic hydrocarbons. The assessment
has been carried out against national air quality standards and objectives.
3.1326 There is substantial agreement between ABP and objectors on the topic of air quality
as recorded in the Second Agreed Statement of Facts (CD/GEN/2A). The reservations
expressed by objectors in that document are minor and have not been pursued by them
at the inquiry.
3.1327 The District and County Councils and ABP have entered into an agreement with
regard to the protection of air quality during the construction and operation of the
Dibden Terminal (ABP/0/149, Part 5). In the light of this, the County and District
Councils have withdrawn their objection to the proposed development on air quality
grounds (NFDC/5/3) as have the Hythe Marina Parties (HMV/0/8). The Environment
Agency have also indicated that they no longer intend to pursue the issue of air quality
(EA/0/4).
Archaeology
3.1328 Archaeological matters are considered in detail in ABP's Archaeology Impact
Assessment (TS/A1); and in an Agreed Statement of Fact (CD/GEN/18). They are now
the subject of a legal agreement between ABP and the County and District Councils
(ABP/0/149, Part 4). The agreement provides for a programme of archaeological work
to be undertaken in accordance with a written scheme of investigation. The outstanding
concerns raised by objectors are dealt with in Part 16 of ABP/0/125A. They are either
based on unsupportable contentions about the history of the area; or would be
addressed through the written scheme of investigation. In particular, steps would be
taken to mitigate effects on the relics of Mulberry Harbour components on the Dibden
site, including removing examples to new locations.
Flooding and Drainage
3.1329 Flooding and drainage issues are considered in detail in ABP's Freshwater Impact
Assessments (TS/FW1-FW3); and in an Agreed Statement of Fact (CD/GEN/5). Some
objectors are concerned that the proposed development would interfere with the
existing drainage pattern and increase the risk of flooding. This matter is dealt with in
Part 18 of ABP/0/125A. Dibden Creek would be engineered in such a way that there
would be no increased of tidal flooding to existing residential properties. A positive
seaward gradient would be maintained on the upper part of the Hythe to Cadland
Recharge, to ensure that this element of the scheme would have no adverse effect on
land drainage. The widening of the railway embankment to accommodate the
extension to the Fawley Goods Loop would be so designed as to ensure that there
would be no loss of floodplain storage. Compliance with the Environment Agency's
requirements would reduce impacts to an insignificant level.
Contamination
3.1330 Contaminated land is considered in detail in ABP's Ground Quality Impact
Assessments (TS/GC1 and GC2); and in an Agreed Statement of Facts (CD/GEN/4).
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Some objectors argue that the Dibden Reclaim is an area of contaminated fill material.
During the construction and operation of the Terminal, contaminants may be disturbed
and cause pollution. This matter is dealt with in Part 19 of ABP/0/125A.
Investigations have shown that, in general, contaminant concentrations in the dredged
materials are low. However, the Section 106 Agreement provides for the preparation of
a risk assessment, which would have to be submitted to and approved by the District
Council before the Terminal development could proceed (ABP/0/149, Part 1).
Marchwood Military Port
3.1331 The Ministry of Defence initially objected to the Dibden Terminal proposals on
various grounds, including the fact that part of the proposed development would be
within the explosives safeguarding zone of the Marchwood Military Port. These
objections have now been resolved to the extent that the Ministry no longer sustain any
objection in principle.
Written Representations
3.1332 Many of the points raised by objectors who rely on written representations are dealt
with above. However, ABP have prepared a comprehensive written response to the
representations made by parties listed on Parts 2 and 3 of the Inquiry Register, and by
unregistered parties (ABP/0/125 and 125A).
ABP's Conclusions
3.1333 There is no dispute as to the Port of Southampton's success. Since being freed from
the restrictions imposed by the National Dock Labour Scheme and the centralised
bureaucracy of the National Ports Council the port has gone from strength to strength.
It plays no small part in supporting the UK economy, particularly by attracting shipping
lines to make direct calls, rather than feed the UK from European ports. This helps
attract investment to Britain.
3.1334 Southampton hosts the largest cruise liners, and is a gateway for the import and export
of vehicles on a scale that would have been unimaginable just a decade ago. But most
significantly, it is an immensely successful deep-sea container port. The growth in this
trade has been such that the port has now practically reached its capacity.
3.1335 For many years, the Government's view has been that customers should choose the
ports that they use. It is clear that Southampton's locational advantages and the
facilities that it offers have combined to make it the port of choice for many shipping
lines, manufacturers and traders. Considerations of particular importance have
included the port's proximity to the international shipping route that links north-west
Europe to the rest of the world; the availability of good road and rail connections; and
the availability of space to accommodate growth. However, unless additional space is
now provided, the port will stagnate and go into decline.
3.1336 Other European Governments appreciate the importance of having efficient and
internationally competitive seaports. They actively support the growth of port
facilities. In view of the growing shortage of container capacity in the UK, there is a
danger that this country's deep-sea trade will increasingly be carried through European
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hub ports. The consequent costs and delays would threaten the long-term health and
vitality of the UK economy. This process has already begun, with Felixstowe losing
some direct call services.
3.1337 The continued success of the Port of Southampton is essential to local, regional and
national prosperity. That success depends upon the provision of the Dibden Terminal.
Proposals for port development elsewhere are irrelevant to the needs of the Port of
Southampton. They are not alternatives to the Dibden Terminal. They address the
needs of other ports and other markets.
3.1338 Furthermore, if additional container capacity were to be provided at Felixstowe or
Bathside Bay, rather than at Dibden, a competition issue would arise. The UK's
overseas trade would be substantially controlled by a single operator. Customers would
be denied an effective choice.
3.1339 Container terminals on the Thames are already being rejected in favour of
transhipment through European ports. A new terminal at London Gateway would have
no better prospect of attracting direct calls, and no likelihood of operating as a
transhipment hub. It would have no track record; and it would have obvious
disadvantages in terms of poor landward access; distance from the main shipping
routes; exposure to rough weather; and lack of manoeuvring space for the largest
container ships. If the Secretary of State were to prefer such a solution to the Dibden
Terminal, he would risk the future health of the UK economy and our ability to handle
our international trade.
3.1340 The Dibden Terminal inquiry has demonstrated that the planning system can process a
large and complex proposal in a relatively short time. It would be most unfortunate if
substantial delay were now to arise as a result of the Secretary of State comparing the
Dibden project with other proposals elsewhere, in the manner proposed by some
objectors. This would particularly be so, as the Secretary of State has repeatedly
stressed that he will deal expeditiously with proposals of this kind, on their merits.
Delay would be at the expense of all those who depend upon the UK's ability to handle
its trade effectively; in other words, the nation as a whole. Our European competitors
would look gleefully on, as a process that had initially held such promise surrendered to
one that had more in common with the consideration of the application for Heathrow
Terminal 5.
3.1341 The thoroughness of the work underlying the Dibden Terminal proposals is
exemplified by the Environmental Statement and its supporting Technical Statements,
which have stood up to examination in a remarkable way. This thoroughness can give
the Secretary of State confidence that in approving the scheme, he will have discharged
all of the relevant obligations under both domestic and European law.
3.1342 There is no sound legal or planning reason why the Dibden Terminal should not be
approved, to the benefit of Southampton, the region and the UK as a whole.
Accordingly, the Secretaries of State are asked to make the Orders and grant the
permissions necessary for this project to proceed, subject to the modifications and
conditions proposed by ABP, and the agreements and undertaking to which ABP are
committed.
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4
The Case for Hampshire County Council and the New Forest District
Council
Introduction
4.1
The County and District Councils present a joint case in opposition to the proposed
Dibden Terminal. Three features of this project should be borne in mind from the
outset. These are first, the enormous scale of the proposed development; second, the
special characteristics of the Dibden site; and third the extent to which the scheme is
justified by reference to the need to service the UK's sea-borne trade.
Scale of the Proposed Development
4.2
The main elements of the proposal (excluding the proposed recharge of the mudflats to
the south of Hythe) would cover an area of some 387ha. The proposed Terminal would
occupy 202ha, of which 72ha would be devoted to the storage of containers. The
estimated throughput of containers would approach 1.4 million a year. In addition the
Terminal would have the capacity to handle approximately 150,000 ro-ro units and 1.5
million tonnes of aggregates annually. Aggregates would be stored in stacks up to 13m
high on an area of 7.5ha.
4.3
The main quay would be over 1,850m long, and would be able to accommodate 6 large
container ships. There would also be a 240m long return berth for smaller vessels. A
quayside berthing pocket would be dredged to a depth of -16.5m CD. In addition, an
approach channel would be dredged to a depth of -12.6m CD, to link the Terminal with
the main shipping channel in Southampton Water. The dredging would remove some
13 million cubic metres of material.
4.4
There would be up to 20 ship-to-shore cranes along the main quayside, each extending
to a maximum height of over 113m. The Terminal would include a railway yard, with
16 sidings, each capable of accommodating a train up to 750m long. Containers would
be moved about the Terminal by a substantial number of rubber-tyred or rail-mounted
gantry cranes, each over 22m high.
4.5
The Terminal would operate 24-hours a day, 7-days a week, 365-days a year. It would
be brightly lit. Working lights on the quayside cranes would be some 40m above
ground level. Lighting columns would be up to 30m high on the quayside, up to 20m
high in the ro-ro areas, and up to 15m high elsewhere in the Terminal.
4.6
A new road would be built to provide access between the Terminal and the A326; and a
new length of railway would link the Terminal to the Fawley Branch Line. Outside the
Terminal, there would be a public "park and ride" site, with capacity for some 500 cars.
There would be a substantial increase in traffic on the A326 and the local road network,
including at least 3,000 additional HGV movements a day. In addition, the Terminal
would be expected to generate up to 44 additional railway movements a day, of which
some 28 might be at night. Significant works are proposed to the Fawley Branch Line,
particularly at its junction with the main line at Totton.
4.7
A tidal creek, approximately 1,500m long, would be excavated to flow into the River
Test immediately to the south of the proposed Terminal. Immediately to the west of the
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Terminal, a new nature conservation area would cover over 130ha. Existing rights of
way would be diverted or closed and new routes created. The draft HRO makes
provision for works that would increase the stability and height of the Hythe Marina
Bund, and for an area of replacement open space at West Cliff Hall. It also makes
provision for the recharge of up to 200ha of mudflats between Hythe and Cadland,
using up to a million cubic metres of dredged material.
4.8
The construction programme would be likely to extend over a period of at least 9 years.
It would take as long as many major minerals operations. On any analysis, the proposal
is for a very large project that would inevitably have wide ranging effects on many
aspects of the environment.
Characteristics of the Dibden Bay Site
4.9
Dibden Bay undoubtedly has significant advantages for port development. For
instance, it is close to the deep-water shipping channel that serves the Port of
Southampton; and it is relatively close to the Fawley Branch Railway Line.
4.10 However, the site is particularly sensitive, being subject to a series of statutory nature
conservation designations. The foreshores at Dibden Bay and between Hythe and
Cadland include parts of the Solent and Southampton Water Ramsar Site and SPA.
The foreshore between Hythe and Cadland also forms part of the Solent Maritime
cSAC. The Dibden Terminal would destroy or otherwise directly affect habitats within
these areas of international nature conservation importance. In addition, the Dibden
Reclaim, which would be entirely lost as a result of the proposed development, has
recently been notified as a SSSI, and makes a significant functional contribution to the
ecology of the adjacent Ramsar Site and SPA.
4.11 The land lying immediately to the west of the Dibden Reclaim falls within the New
Forest Heritage Area (NFHA) and includes sites of local importance for nature
conservation. The Government's policy is that this area is to be subject to the same
planning principles as a National Park. The Dibden Terminal development would
clearly affect the character of parts of the NFHA. Some major elements of the scheme,
including the road and rail access corridor, and the proposed "park and ride", would fall
within the NFHA.
4.12 The Countryside Agency have included virtually the whole of the area covered by the
draft HRO within the designated area of the New Forest National Park, which awaits
ratification by the Secretary of State for the Environment, Food and Rural Affairs,
following a public inquiry. The whole of the Dibden site has an undeveloped,
"greenfield" character. It features in important views from the NFHA towards
Southampton Water; and from Southampton towards the New Forest.
4.13 The site of the proposed Dibden Terminal is close to substantial amounts of housing. It
forms part of a rural gap between the settlements of Hythe and Marchwood. The
proposed development would be likely to have a significant impact on residential
amenity, particularly in terms of noise and visual impact. In addition, the existing local
highway network would be inadequate to take the predicted increase in traffic without
substantial improvement.
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Justification for the Proposed Development
4.14 Given the established national and international interest in the conservation of the
Dibden site, the proposed development can be justified only by reference to some
overriding national need. It is undoubtedly in the national interest that UK ports should
be able to service the requirements of the UK's container trade. The case for the
Dibden Terminal is essentially that it is required to provide additional container port
capacity. It follows that this development should be authorised only if there is a
predicted national shortfall in container port capacity. ABP's attempt to justify the
proposed development by reference to the expansion requirements of the Port of
Southampton is untenable. If the UK had an ample supply of container wharfage, there
could be no realistic case for the development of a further container terminal on this
sensitive, internationally protected site, regardless of any commercial advantages that
might accrue to the Port of Southampton.
4.15 In considering whether the Dibden Terminal development would be justified by a
national need for additional container wharfage, it is necessary to consider whether
there are alternative and better means by which that need could be met. The
requirement to consider alternatives derives from the Environmental Impact
Assessment (EIA) Directive (as transposed into the Harbours Act 1964); from the
Habitats Directive (as transposed into the Habitats Regulations 1994); and from
domestic planning case-law.
Legal Considerations
Environmental Impact Assessment
4.16 The Environmental Statement submitted in support of the draft HRO is unsatisfactory
in two respects. First, the development that it assesses is not necessarily the
development that would be carried out pursuant to the HRO. Second, it provides an
unduly restricted assessment of alternatives.
Rochdale Compliance
4.17 The draft HRO as submitted to the Secretary of State lacks the detail necessary to
enable a proper assessment to be made of the likely environmental effects of the
proposed development. The judgments in R v Rochdale BC ex parte Tew and R v
Rochdale BC ex parte Milne (NFDC/0/3, Cases 6 and 7) make it clear that the
assessment contained within an Environmental Statement must be based upon an
adequate description of the proposed development. This is to ensure that, if the scheme
proceeds, the project that is undertaken corresponds to the project that has been
assessed.
4.18 However, paragraph 4.5 of ABP's Environmental Statement in support of the draft
HRO (CD/ABP/3) reads as follows:
The HRO powers sought by ABP are, of necessity, general in nature. It is not
possible for ABP to commit precisely to what will be built within the
operational Terminal. Variations may be required to take account of technical
innovation (for example in ship and cargo handling methods), changing trade
patterns and the needs of future port customers. Once consent for the Terminal
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is granted, ABP will be free to vary the detail of what is built. The EIA is
therefore based on an indicative scheme.
It is noteworthy that the unsatisfactory Environmental Statement in the Tew case
was similarly based on an indicative scheme.
4.19 A number of potential problems that arise would be dealt with by modifications to
Schedule 3 of the HRO that are now promoted by ABP (CD/ABP/121). These include:

a proposed restriction on the use of the proposed Terminal for purposes other than
container handling, aggregates and (within a limited area) ro-ro traffic;

a requirement that the local planning authority should have regard to the design strategy
that accompanies the Environmental Statement when they consider applications for prior
approval, made in connection with the exercise of permitted development rights within
the proposed Terminal;

a limitation on the height of ship-to-shore cranes to 120m AOD; and

restrictions on the use of the Terminal prior to the provision of some railway sidings
within the site and the completion of a rail connection to the Fawley Branch Line.
4.20 Other potential problems are dealt with by the Section 106 Agreement made between
the Councils and ABP (ABP/0/149). However, a number of potential problems remain.
In the absence of legal controls to deal with these, the proposed development might
deviate from the scheme described in the Environmental Statement. It would fail to
comply with the principles established in the Rochdale cases.
The Councils' Proposed Modifications to the HRO
4.21 If, contrary to the Councils' objections, the Secretary of State is minded to make the
HRO, the Councils request that further modifications be made to the Order (HCC/0/45).
These would secure an appropriate degree of congruence between the Environmental
Statement and the authorised development, or otherwise protect the environment. The
suggested modifications include the introduction of new paragraphs into Article 3 of
the HRO which would:

require that the phasing of the Terminal development accord with that shown in the
Environmental Statement; and

ensure that work on the quay wall does not exceed 1,640m in length until the Secretary of
State is satisfied that the national rail system is capable of handling at least 15% of the
overland movement of containers to or from the Terminal.
4.22 The suggested modifications also include the introduction of new conditions into
Schedule 3 of the HRO. These would:

outline the objectives and content of a Habitat Management Plan for the Church Farm
Nature Conservation Area;

provide that work on the construction of the Terminal will not commence until such a
Habitat Management Plan has been submitted to, and approved by, the County Council;
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
provide that ABP shall implement the Habitat Management Plan as approved, and fund
the Nature Conservation Area in perpetuity;

regulate construction noise and vibration, operational noise, and train noise;

preclude the commencement of construction work on the Terminal until ABP have
acquired all rights necessary over the land required to carry out the proposed
improvements to the Ashurst Railway Bridge on the A326;

preclude trains from entering or leaving the Terminal between 1900 hours and 0700
hours, until the proposed railway noise barriers have been erected; and

safeguard a suitable part of the Terminal for use as an aggregates wharf.
4.23 Finally, a suggested modification to Article 6 of Schedule 3 to the HRO would preclude
the storage of aggregates within the proposed Terminal prior to the approval (by the
County Council) and implementation of a scheme for the disposal of surface water
from the storage area.
Treatment of Alternatives
4.24 Paragraph 8(2)(d) of Schedule 3 of the Harbours Act 1964 states that an Environmental
Statement should include "an outline of the main alternatives studied by the applicant
and an indication of the main reasons for his choice, taking into account the
environmental effects". In the present case, this amounts to an obligation to include,
within the Environmental Statement, information about the principal sites on which the
national need for container wharfage could be met. However, ABP's Environmental
Statement limits the consideration of alternatives to sites that could meet the expansion
needs of the Port of Southampton. It is submitted that that approach is flawed as a
matter of law.
4.25 Understandably, when ABP compiled their Environmental Statement, they did not have
as much information about other potential sites for container ports, such as Shellhaven
or Bathside Bay, as they did about Dibden Bay. However, the relevant legislation
allows for this. Annex IV of the EIA Directive (which underpins the domestic
legislation) provides for an Environmental Statement to include "an indication of any
difficulties .... encountered by the developer in compiling the required information".
The Environmental Statement should have contained such information on alternatives
as was available to ABP. The onus is on the prospective developer to provide this
information.
4.26 It is for the Secretary of State to ensure that the necessary environmental information is
available and has been assessed. If there are limitations on the ability of ABP, as a
major port operator, to obtain details about potential alternative sites for port
development, there are even greater difficulties in the way of individuals and planning
authorities. The environmental assessment regime was introduced precisely to deal
with this type of difficulty.
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The Habitat Regulations 1994
Regulation 48
4.27 Regulation 48(1) of the Habitats Regulations transposes Article 6(3) of the Habitats
Directive into domestic law, by providing for the appropriate assessment of projects
that would be likely to have significant effects on European sites. In the view of the
County and District Councils, the requirement for appropriate assessment applies to
ABP's core project - the development of the proposed Dibden Terminal. Peripheral
matters (such as habitat creation measures) which have been included in the same
application as the core project in order to offset potential adverse effects, should be
excluded from the appropriate assessment of the Dibden Terminal. Those peripheral
measures constitute separate projects, which may require separate appropriate
assessment. The Councils' approach to this matter is fundamentally different to the
approach adopted by ABP. ABP argue that, for the purposes of appropriate assessment,
their project consists of everything that has been included within their HRO
application.
4.28 The Councils' approach is consistent with the purposes of the legislation. One of the
purposes of appropriate assessment is to prevent development in circumstances where it
cannot be ascertained that there would be no adverse effect on the integrity of a
European site. Regulation 49 provides a derogation for schemes that must be carried
out for imperative reasons of overriding public interest and for which there are no
alternative solutions. If the derogation applies, Regulation 53 requires the Secretary of
State to secure that any necessary compensatory measures are taken to ensure that the
overall coherence of Natura 2000 is protected.
4.29 If the term "project" is to be defined broadly, in the manner proposed by ABP, it would
be open to a prospective developer to include all manner of compensatory measures
(which might otherwise be required in accordance with Regulation 53) within his
application. These compensatory measures would then be taken into account in the
appropriate assessment. The result might be that, although the developer's core project
would be harmful to the European site, the broader effect (including that of the
compensatory measures) would be beneficial. If the appropriate assessment were
positive, permission could be granted without reference to Regulation 49.
4.30 By this means, a core project that is of itself harmful to a European site, and which
could not be justified by reference to any imperative reasons of overriding public
interest, might nevertheless be permitted. In effect, the purpose of the Habitats
Regulations would have been circumvented by the simple expedient of including
Regulation 53 compensatory measures within the initial application for permission. It
cannot be right that the Regulation 49 tests should be avoided by such means; or that
the decision on a scheme should depend upon the question of whether compensatory
measures, that would be required by virtue of Regulation 53, have been included within
(or excluded from) the application.
4.31 ABP's approach to this problem relies in part upon the judgment in WWF-UK v
Secretary of State for Scotland (HCC/0/24). However, that case provides no help in
determining whether a scheme having many separate aspects should be regarded as a
single project for the purposes of the Habitats Regulations. It was concerned with the
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distinction between the development for which permission had been sought and the
terms of a related planning agreement.
4.32 The Councils' approach to this matter is consistent with the European Commission's
guidance in Managing Natura 2000. Although paragraph 4.3 of that document
supports a broad definition of the term "project", the context makes it clear that this is
to ensure that the requirement for appropriate assessment is not confined to built
development schemes, but might also include such matters as the introduction of
intensive agricultural practices.
4.33 Paragraph 4.5.2 of Managing Natura 2000 describes the types of mitigation measures
that may properly be taken into account in an appropriate assessment. All the examples
given entail carrying out the core project in such a way as to minimise its impact, for
instance by avoiding works during the breeding season, or by using particular tools.
None of the examples given include providing compensatory replacement habitat
elsewhere.
4.34 Paragraph 5.4.1 of Managing Natura 2000 deals with compensatory measures.
Importantly, it says that:
Proposing compensatory measures from the beginning could not exempt from
the need to respect beforehand the steps described in Article 6 [of the Habitats
Directive], in particular the study of alternatives and the comparative
assessment of the interest of the project/plan in relation to the natural value of
the site.
4.35 Paragraph 5.4.2 of Managing Natura 2000 gives "improving the habitat on part of the
site" as an example of a compensatory (rather than a mitigation) measure. It follows
that, in the present case, the Hythe to Cadland Recharge, Dibden Creek and the Church
Farm Nature Conservation Area should all fall to be considered as proposed
compensatory measures, and should not be taken into account for the purposes of
appropriate assessment.
Regulation 49
4.36 Regulation 49 of the Habitats Regulations applies to projects that must be carried out
for imperative reasons of overriding public interest, where the appropriate assessment
under Regulation 48 is negative. For such a project to proceed, the competent authority
must be satisfied that there are no alternative solutions. The duty to investigate whether
there are alternative solutions in the present case falls upon the Secretary of State for
Transport. If, at the time of his decision, there are proposals for container port
development other than at Dibden, he must apprise himself of the nature of those
proposals, to establish whether they offer alternative solutions. This obligation is
independent of the material produced by the parties to the Dibden Terminal Inquiry.
4.37 There are at least three possible approaches to the consideration of alternatives. ABP's
approach is to say that proposals for container port development on sites outside
Southampton Water are irrelevant, because they would make no contribution to the
expansion needs of the Port of Southampton. The RSPB advocate that the Secretary of
State should defer a decision until he is fully apprised of the merits of all the potential
sites for port development. The County and District Council's contend for a sequential
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approach, which would favour the development of existing port land, other
"brownfield" sites and sites with outstanding consent for port development, in advance
of "greenfield" sites such as Dibden Bay (see para 4.99 below).
4.38 The obligation to consider alternatives was recognised in the Secretary of State's recent
decision on the Felixstowe Dock and Railway Harbour Revision Order 2000, in which
he expressly considered potential alternatives at Dibden Bay, London Gateway and
Bathside Bay, as well as a "do nothing" scenario (ABP/0/121). In that decision, the
Secretary of State concluded that there were no alternatives to the relatively small port
extension proposed at Felixstowe. This was partly because of the time that would
elapse before any of the other proposed developments could become operational; and
partly because the Secretary of State considered that he should not pre-empt the
consideration of applications for the other proposals.
4.39 However, in the present case, it would be inappropriate for the Secretary of State to
dismiss, as alternative solutions, other proposals that are before him (including London
Gateway and Bathside Bay) on the grounds that he does not know whether they will
receive consent. Rather, he must evaluate the prospects of those projects obtaining
consent and decide how to act in the light of that appraisal.
4.40 The legislation cannot be interpreted in such a way as to tolerate the so called "Catch
22" analysis advanced by the Inspector in CD/INQ/746. The Regulations must be
construed purposefully, in a manner that achieves the objectives of the underlying
Habitats Directive. In the "Catch 22" approach, the decision-maker would cease to be
under any obligation to consider other locations for the project, if development at those
locations would have an adverse effect on the integrity of a European site. That cannot
be right, because it completely separates the issues of "alternative solutions" and
"overriding public need". Faced with a choice between two ways of meeting an
established public need, either of which would have an adverse effect on a European
site, the Secretary of State must recognise that if he permits one, that will necessarily
reduce (and possibly eliminate) the need for the other. It would be inconsistent with the
purposes of the legislation for him to permit both projects, in order to meet the same
need. He must consider, and if necessary choose between, the options available. He
must not ignore the alternatives.
4.41 The recent judgment in R (Medway Council and Others) v Secretary of State for
Transport (attached to RSPB/0/26) is instructive. This concerns a Department for
Transport consultation paper The Future Development of Air Transport in the United
Kingdom: South East. The paper described various options for providing additional
airport capacity, including the provision of a new airport on land within a SPA at Cliffe
in Kent. However, the paper failed to include the expansion of Gatwick Airport as an
option. Paragraph 33 of the judgment records that:
On behalf of the Secretary of State it was conceded that if proposals were to be
brought forward for the development of Cliffe, then Gatwick would have to be
considered at that stage as an "alternative solution".
46
For an explanation of this “Catch 22” see the footnote to paragraph 3.412 below.
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The judge concluded that it had been irrational to exclude all Gatwick options from
the consultation process. It would be similarly irrational to exclude consideration of
alternative sites for container port development when deciding upon the present
application for the Dibden Terminal.
Regulation 53
4.42 The Councils do not accept ABP's interpretation of Regulation 53, which would render
the Secretary of State powerless to prevent development that would damage the
coherence of Natura 2000. On the contrary, Regulation 53 obliges the Secretary of
State "to secure that any necessary compensatory measures are taken to ensure that the
overall coherence of Natura 2000 is protected". The critical word is "ensure". If the
Secretary of State is in any doubt about whether there would be damage to the
coherence of Natura 2000, he must remove that doubt by securing compensatory
measures that would ensure the required outcome. If in a state of doubt, he were to
require no compensation, he would run the risk of damage to the coherence of Nature
2000. In those circumstances, he would have breached his duty to ensure the required
result.
4.43 In the Councils' submission, the Secretary of State is obliged to identify and secure any
necessary compensatory measures at the time of granting consent. If adequate
compensation cannot be secured (and in the present case there is nothing to suggest that
it can be) consent must be refused.
4.44 This approach accords with a purposive construction of the Habitats Directive. It is
inconceivable that those who enacted the European legislation intended to produce a
result whereby Member States would be powerless to prevent a threat to the coherence
of Natura 2000.
The Basses Corbières Judgment
4.45 The seaward boundary of the Solent and Southampton Water SPA is drawn at MLW. It
is generally accepted that this line has no ecological significance, a point conceded by
ABP's witness, Mr Colebourn (Day 48, pp22-23). The line was chosen because of a
policy decision that the SPA boundary should follow the boundary of a SSSI, which in
turn follows a local government boundary. The evidence is that, in ornithological
terms, there is no significant difference between the mudflat above and below MLW.
The Councils' case is that the seaward boundary of the SPA should have been drawn to
include both the mudflat below MLW and the shallow sub-tidal area (ie the boundary
should have been drawn at the edge of the dredged shipping channel). It is submitted
that it is not open to a Member State to define or adhere to a boundary that excludes the
area below MLW from the SPA for purely administrative reasons.
4.46 In the Basses Corbières judgment (Commission v France, EN/0/19K) the European
Court of Justice held that France had failed to fulfil its obligation to classify a SPA.
The consequence of this was that the strict regime set out in the first sentence of Article
4(4) of the Birds Directive was held to apply to the land that should have been so
classified. Accordingly, France was placed under an obligation to take appropriate
steps to avoid significant deterioration of the habitat within that area. However, it was
further held that the derogation machinery under Articles 6(4) of the Habitats Directive
would not be available. Article 6(4) of the Habitats Directive has been transposed into
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UK law as Regulation 49 of the Habitats Regulations. It provides the means whereby,
within a properly classified SPA, and in the absence of alternative solutions, a project
that has been the subject of a negative assessment may nevertheless be carried out for
imperative reasons of overriding public interest.
4.47 There is no reason for treating the area below MLW at Dibden Bay any differently
form the area which, according to the Basses Corbières judgment, should have been
classified as a SPA. ABP argue that the two cases can be distinguished because the
Basses Corbières site is the habitat of an Annex 1 species; and because the French
Government have admitted their failure to classify that site as a SPA. However, these
points of difference do not affect the application of the principles established by the
Basses Corbières judgment to the present case.
4.48 It is not open to the Secretary of State to proceed on the basis that the area below MLW
is not required to be included within the SPA. That would be unlawful, in that it would
perpetuate a boundary that has been drawn in the wrong place on the basis of
administrative considerations that are legally immaterial. It is well established that the
boundary of a SPA must be established solely by reference to ornithological criteria.
4.49 The Dibden Terminal development would destroy habitat within the area below MLW.
In the absence of any derogation for imperative reasons of overriding public interest,
there is no legal basis on which the Dibden project could be permitted. The only way
of avoiding this conclusion would be for the Government to classify the area below
MLW as a SPA. If that were done, additional compensatory measures would have to
be secured in accordance with Regulation 53, to take account of the loss of habitat
below MLW, before the development could proceed.
Planning Case Law
4.50 In addition to the Environmental Impact Assessment regime and the requirements of
the Habitats Regulations, there is a substantial body of planning case law which
establishes the need to consider whether there is a more appropriate alternative site for
the proposed development. In Trusthouse Forte Hotels Ltd v Secretary of State for the
Environment (NFDC/0/3, Case 2) it was held that:
Where there are clear planning objections to development upon a particular
site, then it may well be relevant or indeed necessary to consider whether there
is a more appropriate site elsewhere. This is particularly so when the
development is bound to have significant adverse effects and where the major
argument advanced in support of the application is that the need for the
development outweighs the planning disadvantages inherent in it.
4.51 In GLC v Secretary of State for the Environment and London Docklands Development
Corporation (NFDC/0/3, Case 3) Oliver LJ concluded that there would be cases where
"a comparable site had to be a material consideration; an obvious example was an
airport". Although the Dibden Terminal case is not concerned with an airport, it is a
case that turns on the national need for a major infrastructure project that has major
environmental implications.
4.52 Oliver LJ went on to identify some characteristics of cases where the comparison of
alternative sites would generally be appropriate. These are:
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
the presence of a clear public advantage in the proposal under consideration;

the existence of inevitable adverse effects or disadvantages to the public or some sections
of the public in the proposal;

the existence of an alternative site for the same project which would not have those
effects, or would not have them to the same extent; and

a situation in which there could be only one permission granted for such development, or
at least a very limited number of permissions.
4.53 These characteristics are all present in the current case. The proposal under
consideration is intended to cater for a national need. It would inevitably have
considerable adverse effects. There are potential alternative sites for a major container
terminal, which remain to be assessed but which are likely to have less serious adverse
effects. There will be only a very limited number of permissions granted for new
container terminals. In the circumstances, the Secretary of State must evaluate
information relating to alternative means by which the national need for container port
capacity might best be met.
4.54 In Secretary of State for the Environment v Edwards (NFDC/0/3, Case 4) a decision to
grant planning permission for a "motorist service area" was quashed, because the
procedure adopted had prevented a comparison of alternative sites. In Elmbridge BC v
Secretary of State for the Environment Transport and the Regions (NFDC/0/3, Case 5)
permission for a new motorway service area was quashed because the Secretary of
State had failed properly to compare other potential sites that had been proposed for
such a development. These decisions underline the legal imperative that the Secretary
of State give proper consideration to alternative proposals before deciding on the
Dibden applications.
Port Operational Land
4.55 ABP have drawn attention to the fact that, technically, the Dibden Reclaim constitutes
port operational land. However, this is a matter of no consequence. The sole reason
why the site is port operational land is that ABP's predecessors acquired it prior to
December 1968. Section 264 of the Town and Country Planning Act 1990 indicates
that land acquired after that date does not constitute port operational land unless a
specific planning permission has been granted for its development for such a purpose.
It would be absurd if Dibden Bay's status as port operational land, which results from a
policy approach that was abandoned over 30 years ago, should have any resonance
today.
4.56 Any port development on the Dibden Reclaim would inevitably have a significant
environmental effect, not least because of the site's ecology. Accordingly, the site's
status as operational port land confers no permitted development rights.
The Policy Background
Planning History
4.57 While ABP attach some weight to the planning history of Dibden Bay, the proposed
development must be considered against current, rather than former, policies.
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However, it is noteworthy that, contrary to ABP's case, the Dibden site has never been
formally allocated for the construction of a container terminal. Rather, the approach
has been to safeguard this site as an open area, whilst recognising its long-term
potential for development for a number of purposes, including port activities. There is
no foundation for the suggestion that planning policy has consistently accepted that the
Dibden Reclaim would eventually be used for port purposes.
4.58 The earliest permission for the reclamation of Dibden Bay by the deposit of dredgings
was granted in 1950. It was conditional upon "the reclaimed land being used for
agricultural purposes" (NFDC/1/6, p28; and NFDC/0/5). The terms of this permission
are not consistent with ABP's assertion that the site was reclaimed for port
development. The purpose of reclamation seems to have been to dispose of dredged
material, with a view to the reclaimed land being used for agriculture.
4.59 The subsequent planning history of the site is of relatively little relevance to the
Secretary of State's decision. There has been little or no development on this land that
has not related to the disposal of dredgings. It is important not to perpetuate a
misleading view that the Reclaim has fulfilled the role of a port site. Its primary use
has been for grazing; and it unarguably has a "greenfield" character.
4.60 The first, non-statutory, planning policies for the Dibden Reclaim were in the
Waterside Parishes Local Plan of 1969. This provided as follows (NFDC/1/6, p2):
In the longer term, this area may be retained in its existing use, but it may be
used for industrial and service development requiring a waterside location, or
substantial residential development, or it may provide sites for open areas
incorporating recreational facilities. In any event, policy for the area cannot be
determined in advance of the South Hampshire Structure Plan.
There is no suggestion that the Dibden site was reserved specifically for port
development.
4.61 The non-statutory Marchwood Local Plan of 1975 recognised the potential of Dibden
Bay for future port or industrial use, without formally allocating this land for
development (NFDC/1/6, p5). Normal countryside conservation policies applied to the
site.
4.62 The South Hampshire Structure Plan was approved in March 1977. This contained a
specific proposal to safeguard "land at Dibden Bay for possible long-term use for the
development of maritime activity, subject to the satisfaction of the environmental,
access and other criteria relating to industrial development (including port-related
industry as well as dock activity)" (CD/HC/8, p182).
4.63 This safeguarding approach was maintained in the South Hampshire Structure Plan
First Alteration of 1988 (CD/HCC/9). Policy ED7.2 of the First Alteration contained "a
presumption against development which would remove or reduce opportunities at
Dibden Bay for long-term port expansion, port related development, or development
for industry or services requiring access to deep water". However, the policy indicated
that, before any development could proceed, it would be necessary to show that
satisfactory access arrangements could be made; and that the ecological and landscape
impacts would be acceptable. Policy E6 indicated that there was to be a strong
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presumption against development in the open gap between the settlements of
Marchwood and Hythe
4.64 In 1988 ABP's property arm, Grosvenor Estates, sought planning permission for the
development of the southern part of the Dibden Reclaim with 162 dwellings, marina
berths, toilets, parking and a service area. This proposal was promoted as an extension
to Hythe Marina Village. Planning permission was refused for reasons that included
the protection of the strategic gap between Marchwood and Hythe. It is clear that, at
that time, ABP had no intention of reserving the Dibden site for the development of a
container port.
4.65 In 1989, ABP made a submission to the Hampshire County Structure Plan Examination
in Public, in which they sought a mixed development of the Dibden Bay site, to include
residential, retail and industrial elements. The submission included the following:
There is no longer an overriding need for Dibden Bay, as a whole, to be
reserved for port-related or industrial development requiring access to deep
water. There is an adequate supply of more suitable sites. However, it is still
proposed to make some provision for this use within the site.
4.66 No specific policy safeguarding Dibden Bay for future port development was contained
in the Hampshire County Structure Plan, which was approved 1994. The Panel who
conducted the Examination in Public concluded that it would be unnecessary for the
Structure Plan to include such a policy, since the Dibden site was already protected by
more general policies which constrained development (NFDC/1/6, pp7-8).
4.67 No specific policy for port development at Dibden Bay was contained in the New
Forest District (East) Local Plan, which was adopted in 1995 (NFDC/1/6, p9). The
Inspector who held the public inquiry into objections to that plan concluded that there
was insufficient evidence to lead him "to believe that port or port-related development"
was likely to commence during the plan period (NFDC/1/8, Appendix).
Current Policy
4.68 There are inevitably a large number of current policies that are relevant to the proposed
development of the Dibden Terminal. Appendix A of the Agreed Statement of Facts on
Planning Background contains details of the policy framework (CD/GEN/9). However,
two policies are of crucial importance. They are Policy EC6 of the Hampshire County
Structure Plan Review; and the Government's policy document Modern Ports.
The Hampshire County Structure Plan 1996-2011 (Review)
Policy EC6 - Port Development at Dibden Bay
4.69 The Hampshire Structure Plan Review (CD/HCC/2) was adopted in 2000. It aims to
achieve a balance between development, the environment and transport needs.
Generally, development proposals have to be considered against a range of policies.
However, a specific policy, Policy EC6, sets out the tests against which proposals for
port development at Dibden Bay are to be assessed.
4.70 Policy EC6 states that "port development requiring access to deep water may be
permitted at Dibden Bay" provided that certain criteria are met. The use of the word
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"may" (rather than "will") is important. It implies that, even if all the specified criteria
are met, permission could nevertheless be withheld for other strategic reasons. One
such reason could be the existence of a better alternative site elsewhere. The policy
does not imply that there is a commitment to port development at Dibden Bay.
4.71 Policy EC6 places a burden on the prospective developer to demonstrate that the need
for the proposed port development at Dibden Bay outweighs any adverse impact on
areas of importance to nature conservation; on the landscape and ecology of the New
Forest; and on local communities. Thus it is wrong to construe this policy as allocating
land for development, with the implication that the need for the development has
already been established. In the absence of sufficient need to outweigh the adverse
environmental impact, the policy requires that the site remain undeveloped. The
strength of the need case cannot be established without considering the existence of
alternative locations for development.
4.72 Policy EC6 also requires that sufficient provision be made to offset the impact of the
development, including the replacement or substitution of habitats or features lost; and
the conservation of ecological networks. This is similar to the legal requirement to
secure compensatory measures under Regulation 53 of the Habitats Regulations. The
requirements of the policy have not been met in the present case.
4.73 Finally, Policy EC6 indicates that the required access to the port development must be
achieved without serious disturbance to the countryside, coastal areas or communities
affected; and that maximum use must be made of rail and sea routes. Appropriate
contributions must be secured to fund infrastructure and services required as a result of
the development.
4.74 Inevitably, a development of the scale proposed would have profound adverse effects
on the local community, particularly in terms of traffic, noise and visual impact. The
adverse impact on amenity falls to be weighed against the need for the proposed
development.
4.75 The need referred to in Policy EC6 must be a national rather than a local need. This is
because the proposed scheme would inevitably have a serious adverse impact on
environmental assets of national (and international) importance. In particular, it would
destroy habitat within a Special Protection Area and a Ramsar Site; and it would entail
major development within the New Forest Heritage Area (and the proposed New Forest
National Park).
The EiP Panel's Approach to Policy EC6
4.76 ABP make much of the fact that GOSE objected to the deposit draft version of Policy
EC6 on the grounds that that version indicated that port development at Dibden Bay
should be permitted only if this would be "in the interests of the national and regional
economy". In the event those words were excised from the policy. The County
Council accepted that it would have been wrong to have a policy requiring the
demonstration of a national need for development, without any information about the
extent to which that development would be harmful. However, the change of wording
does not limit the sort of need that would have to be demonstrated to justify the
development of this sensitive site in the manner now proposed.
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4.77 ABP also attach great weight to the EiP Panel's comments on the likely future of the
Port of Southampton without the Dibden Terminal. However, the Panel's conclusions
on this matter appear to have derived from their misunderstanding of a 1994 report on
The Economic Impact of the Port of Southampton in the City Region, which the County
Council had commissioned from the consultants Pieda Ltd (HCC/0/4).
4.78 The Pieda report described three scenarios for the development of the Port of
Southampton. Scenario A was a "do minimum" approach, in which the port would
continue to operate without significant investment in new facilities. The consultants
predicted that this would result in Southampton losing a significant share of its existing
container traffic. This prediction provided the basis for the Panel's assessment of the
consequences of not proceeding with the Dibden development.
4.79 However, by the time of the EiP, Scenario A had been overtaken by events. The
shipping channel in Southampton Water was being deepened; and Berth 207 was being
developed to provide a facility that could accommodate the largest container ships.
Scenario B, which was based on significant investment in the existing port, was best
reflected by the course of events between the preparation of the Pieda report and the
EiP. It did not envisage a cataclysmic loss of employment.
4.80 In any event, the EiP Panel's conclusions are not determinative of the correct approach
to policy. The County and District Councils accept that additional container handling
capacity will be required in the UK. However, the Dibden Terminal is one of a number
of possible means of providing that capacity. Others include increasing capacity at
existing ports through improved efficiency; and increasing capacity by the development
of new container terminals at alternative locations.
Policy G2 - The Strategic Gap
4.81 Policy G2 of the Structure Plan Review provides for the maintenance of a strategic gap
between Marchwood and Hythe, which will protect the separate identities of these two
settlements. The precise boundaries of the strategic gap are defined in the New Forest
District Local Plan (CD/NFDC/1). The gap includes the Dibden Reclaim. The
inclusion of Dibden Bay within the strategic gap recognises the fact that the port
development referred to in Policy EC6 of the Structure Plan Review is merely a
possibility, not a firm allocation.
Policy NF1 - The New Forest
4.82 The purpose of Policy NF1 of the Structure Plan is to protect the special character of
the New Forest. It applies throughout the New Forest Heritage Area as defined in the
New Forest District Local Plan. It indicates that development will be permitted only
where it will not harm the flora, fauna, geological, archaeological or landscape
character of the area. It applies even to development that would accord with other
Structure Plan policies.
The New Forest District Local Plan
4.83 The New Forest District Local Plan was adopted in November 1999. It does not
contain any specific policy relating to possible port development at Dibden Bay; nor is
land allocated for such a use on the Proposals Map. Instead, a section of explanatory
text refers to Policy EC6 of the Structure Plan Review (CD/NFDC/1, paragraph
C13.15).
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4.84 Both the Structure Plan and the Local Plan contain policies for the protection of sites of
nature conservation interest. In addition to international and national designations,
such as SPAs, Ramsar Sites and SSSIs, the protection afforded extends to Sites of
Importance for Nature Conservation (SINCs) which are of local interest. Designated
SINCs include the Dibden Reclaim, West Cliff Marsh and the Post Copse Complex.
While ABP are critical of the selection criteria for SINCs in Hampshire, these have
been agreed between the local authorities, English Nature and the local wildlife trust.
Furthermore, the SINCs shown in the Local Plan have already been the subject of
statutory procedures, which included a right of objection. There is no evidence to show
that their quality has changed significantly since the Local Plan was adopted.
4.85 The New Forest Heritage Area (NFHA) has emerged through the Local Plan process.
The District Council first adopted a boundary (and protective policies) for this area in
1985. The Government subsequently recommended that that boundary should be
revised. In 1991, the New Forest Committee proposed a new boundary, on the basis of
a report prepared for them by Land Use Consultants (CD/HCC/16). That boundary
took account of the need to include the minimum area of land, beyond the open Forest,
which is essential to protect the Forest landscape. It is reflected in the current Local
Plan, although there are some differences of alignment, for instance in the Avon Valley.
4.86 Policy NF-E1 of the Local Plan states that development will only be permitted where it
does not damage the unique character and quality of the New Forest. Policy NF-E3
precludes development that would result in the loss of land actively used for "back-up
grazing", or having potential for such use. These policies apply within the NFHA.
Policy CO-E1 of the Local Plan applies to rural areas outside the NFHA, including the
Dibden Reclaim. It indicates that development will be strictly controlled to safeguard
the character and appearance of the countryside.
The Hampshire, Portsmouth and Southampton Minerals and Waste Local Plan
4.87 The Minerals and Waste Local Plan was adopted in 1998 (CD/HCC/4). It identifies a
need for a rail-linked, deep-water wharf to handle the future demand for sea-borne
aggregates in Hampshire and adjoining counties. However, it does not allocate any
specific site for such a development. The Minerals and Waste Local Plan is based on
the guidance for aggregates provision in England set out in MPG6, which dates from
1994. It is now generally accepted that MPG6 over-estimates the demand for
aggregates. Furthermore, the expected development of coastal super-quarries in
Scotland has failed to materialise. The Government are to issue revised guidance on
aggregates in due course. If the proposed development of Dibden Bay proceeds, it
would be prudent to safeguard part of the site for the provision of a deep-water
aggregates wharf. A suitable modification to the HRO is proposed (HCC/0/45A,
Section E). However, the immediate need for such a facility is uncertain.
National Ports Policy
4.88 The Government's policy for port development is set out in Modern Ports. The
Councils' interpretation of this document differs significantly from that of ABP. ABP's
approach is that Modern Ports aims to promote the competitiveness of individual ports,
and indicates that port development should be driven by market considerations.
Therefore, provided a market case has been made for the expansion of the Port of
Southampton onto the Dibden site, that is sufficient.
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4.89 However, while Modern Ports recognises that there is pressure to expand container port
capacity, it does not indicate the locations at which further port development should be
permitted. And it certainly does not suggest that port development should be permitted
merely because a market case has been made out; or that each and every expansion
proposed at a major container port is necessarily in the national interest. Rather, it
requires a balanced planning judgement to be made. It is particularly important to
distinguish those passages in Modern Ports that deal with planning policy from those
that do not.
4.90 For instance, paragraph 1.1.6 of Modern Ports concludes by saying that "ports must
compete by offering long term value, and must be allowed to do so - domestically and
internationally - on level terms". Similarly, paragraph 2.1.9 repeats that "those
operating port facilities must be allowed to compete on level terms". ABP appear to
regard these passages as planning advice. They argue that it would be contrary to that
advice to refuse permission for the expansion of a particular port, because that would
hamper that port's ability to compete with other ports on level terms. On the other
hand, the Councils do not accept that the reference to "level terms" is intended to have
any planning implications. It certainly does not indicate that the Government will place
less weight on environmental considerations because of a desire to foster competition
between ports.
4.91 Similarly, the conclusion in paragraph 1.1.8 of Modern Ports (that "it is not the
Government's job to run the ports industry") is not a statement of planning policy, and
does not indicate that the Government is relinquishing its responsibilities with regard to
development control.
4.92 On the other hand, paragraphs 1.2.1 and 1.2.2 of Modern Ports do contain planning
policy advice. One of the Government's key objectives is to:
maintain a balanced policy on development which aims to make the best use of
existing and former operational land, secures high environmental standards,
but supports sustainable projects for which there is a clear need.
This plainly requires a balance to be struck between need and environmental
considerations. When the environmental considerations include the destruction of
areas that are designated as being of national and international environmental
importance, the need case will have to be commensurately strong if the development
is to be permitted.
4.93 Paragraph 2.1.17 of Modern Ports is also important, and particularly pertinent to the
Dibden Terminal proposals. It reads as follows:
Sustainable development must recognise the importance of meeting economic,
social and environmental objectives at the same time. Government has a
crucial role in balancing conflicting interests. Development can threaten the
delicate natural environment of shorelines and tidal estuaries, or expose many
people to noise disturbance. That is why Government regulates port
development, for example through the Environmental Impact Assessment,
Wild Birds and Habitats Directives. On the other hand, sustainable
development may safeguard jobs, reduce long-distance road haulage and cut
costs and journeys to market.
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This is a clear recognition of the Government's crucial role in achieving a balance
between economic, social and environmental objectives, through the operation of the
planning system.
4.94 Modern Ports records that forecasts point to a prospective shortfall in container port
capacity (which obviously means a national shortfall). Paragraph 2.4.7 says:
Some ports need to increase capacity to meet future demand. This may require
substantial new port development in a relatively small number of cases.
Where there is a clear need, we will support sustainable port projects, but each
case must be looked at in detail on its merits.
The "need" referred to arises from the predicted national shortfall in capacity.
Looking at a case "on its merits" does not imply that no account should be taken of
the alternative means by which the national need for container port capacity might
best be met. If there are better alternatives, this will detract from the merits of the
case under consideration.
4.95 The aim of Modern Ports is to make the best use of existing capacity in preference to
providing new infrastructure. Special tests are to be applied to proposed port
developments that would affect environmentally sensitive sites. In such cases the
developer must show that the benefits would outweigh the environmental
disadvantages, and that there is no other, better option. Promoters of port developments
must show that they have assessed the options available by reference to the criteria set
out in A New Approach to Appraisal (NATA).
4.96 Paragraph 2.4.15 of Modern Ports states that "port developments have to be
demonstrably commercially viable, regardless of the status of the port". Similarly,
paragraph 1.33 of the DETR publication A Guide to TWA Procedures indicates that an
applicant for a TWAO "may need to provide a financial appraisal of the scheme for the
purposes of any public inquiry and .... be ready to counter any questions about the
project's financial viability".
Application of National Ports Policy to the Dibden Terminal Proposals
4.97 A number of key points arise in relation to Dibden Bay proposal. First, if the scheme is
to proceed, it is necessary that the applicants should demonstrate that there is a "clear
need" for this development. In the absence of a "clear need" the scheme should be
rejected.
4.98 Second, in view of the site's international importance for nature conservation, and its
national landscape importance, construction of the proposed container terminal would
be inconsistent with one of the objectives of sustainable development. Accordingly, it
is necessary for the applicants to demonstrate that the project would meet an overriding
national need that could not be met in some better way. This requires a consideration
of alternative solutions at a national level, in accordance with NATA principles.
4.99 Third, the Government's aim of making the best use of existing infrastructure suggests
that a sequential approach should apply to the selection of sites for port development.
The following hierarchy should be followed nationally:
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
initially, maximum use should be made of existing operational port land, in accordance
with the principle set out in Modern Ports;

next, preference should be given to the development of "brownfield" type sites, in line
with the guidance in PPG1;

then, preference should be given to the use of other sites with outstanding approvals,
which have not yet been developed; and

finally, the development of "greenfield" sites, such as Dibden Bay, should be considered
as a last resort.
4.100 Fourth, the requirement to demonstrate the commercial viability of port development
implies that ABP should have published a financial appraisal of their scheme. They
have not done so. The Secretary of State has no knowledge of the sensitivities of the
appraisal that they have undertaken. The costs of the project could rise as a result of
measures to reduce the adverse impact of the proposed development. These might
include the adoption of an alternative method of quay wall construction with no
percussive piling; or the provision of additional replacement habitat to meet the
requirements of the Habitats Regulations. It is not clear what effect such measures
would have on the viability of the project.
4.101 It is not possible to say that the absence of demonstrable financial viability would have
no planning consequences. In a world where a number of similar, competing projects
are proposed, it would be wrong to select and grant consent for one, if there were a risk
of that one failing to proceed for commercial reasons. And there is a danger that
unnecessary environmental damage could be done by a project which might fail.
National Countryside Policy
4.102 In July 1994, the Government proposed that the New Forest should have the same
planning status as a National Park. Circular 12/96 sets out the Government's policies
toward National Parks, which are reaffirmed in paragraph 4.5 of PPG7. This makes it
clear that "major development should not take place in the National Parks .... and the
New Forest Heritage Area, save in exceptional circumstances". It indicates that
consideration of applications for such development should normally include an
assessment of:

the need for the development, in terms of national considerations, and the impact of
permitting it or refusing it on the local economy;

the cost of, and scope for, developing elsewhere outside the area, or meeting the need in
some other way;

any detrimental effect on the environment and the landscape, and the extent to which that
should be moderated.
4.103 The Dibden Terminal and associated works would undoubtedly constitute a major
development, a point conceded by ABP. The development would be partly within and
partly adjacent to the New Forest Heritage Area. The Terminal would be within the
boundary of the New Forest National Park, as currently proposed by the Countryside
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Agency. The implication of the policy in PPG7 is that there must be an assessment of
the national need for such a development, and that in carrying out such an assessment,
full regard must be paid to alternative means by which that need could be met outside
the area. Consideration will also have to be given to the visual impact of the proposals,
the extent to which this can be mitigated, and the adequacy of ABP's landscaping
scheme.
4.104 Circular 125/77 remains extant. It sets out the Government's policy for roads and
traffic in National Parks. It confirms that no existing road should be upgraded unless it
has been demonstrated that there is a compelling need, which cannot be met by any
reasonable alternative means.
4.105 The Countryside Agency published a Designation Order for the New Forest National
Park in February 2002. Dibden Bay and the Hythe to Cadland foreshore are included
within the designated area. The County and District Councils support the inclusion of
these areas. A public inquiry into the Designation Order was in progress when the
Dibden Terminal Inquiry closed. PPG1 indicates that increasing weight should be
attached to development plans as they progress through the statutory procedures
towards adoption. By analogy, the Designation Order is now entitled to a degree of
weight.
National Policy for Nature Conservation
4.106 PPG9 sets out the Government's commitment to biodiversity and the conservation of
wildlife. It lists the framework of international obligations to which the UK is party,
and stresses that the Government are determined to honour them. The decision making
process for development proposals affecting SPAs, SACs and Ramsar Sites follows the
legal requirements of the Habitats Regulations 1994. If the proposed development
would adversely affect the integrity of the designated site, permission must not be
granted, except where there are no alternative solutions and the development must be
carried out for imperative reasons of overriding public interest.
4.107 The reference to there being "no alternative solutions" is not geographically restricted.
It points once again to a consideration of potential alternatives at the national level.
Taken together, PPG7 and PPG9 imply an extension of the sequential approach,
outlined above, in which the development of sites of international importance for nature
conservation, and solutions that would adversely affect the New Forest Heritage Area,
should be regarded as the very last resort.
Regional Policy
4.108 Policy T7 of the Government's Regional Planning Guidance for the South East (RPG9)
provides support for the sustainable development of seaports. However, the regional
guidance indicates that:
A study of port and shipping markets is required in order to develop a more
regionally specific ports strategy. It will need to acknowledge the role of
neighbouring ports in adjoining regions and inform the next revision of the
RPGs for the South East and East of England and the Spatial Development
Strategy for London.
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4.109 One of the purposes of the proposed regional ports strategy will be to guide decision
making with regard to the limited number of port developments that are likely to be
proposed in the South East in the foreseeable future. No strategy is yet in place.
4.110 Policy E1 of RPG9 states that:
Priority should be given to protecting areas designated at international or
national level either for their intrinsic nature conservation value, their
landscape quality or their cultural importance.
This implies that, in considering proposals for the development of a designated site
of national and international importance, such as Dibden Bay, priority should be
given to the protection of the features for which the site has been designated, rather
than to the requirements of the proposed development. It also implies that, if the
development could take place on an alternative site that is not subject to the same
degree of protection, that solution should be preferred.
4.111 RPG9 identifies South Hampshire, Southampton and Portsmouth as a Priority Area for
Economic Regeneration (PAER). Nevertheless, it contains no specific proposal for the
expansion of the Port of Southampton. It indicates that any such proposal would need
to take account of the wider spatial strategy and its environmental, social and economic
objectives.
The Need for the Proposed Development
National Need for Container Handling Facilities
4.112 In paragraph 6.40 of the Environmental Statement supporting the draft HRO, ABP
expressed their conclusion on the national picture in these terms:MDS Transmodal has calculated that, even allowing for anticipated increases
in quay productivity, trade growth will lead to a shortfall of 2.4 kilometres of
deep-water quay in UK south east ports by 2011.
4.113 ABP made it clear that the figure assumed 10% spare capacity "to retain market
flexibility" and that it took into account the planned expansion of Tilbury, Thamesport,
and Trinity IV (alias Trinity III, Phase 2) in Felixstowe. They did not, however, take
into account Shellhaven (alias London Gateway), Bathside Bay, or anything else. It is
the approach to these emerging alternatives that constitutes the real divide between the
parties. The forecast of a shortfall of 2.4 kilometres by 2011, or any shortfall at all,
depends critically on leaving the emerging alternatives out of the account.
4.114 The Councils accept that the differences between them and ABP in relation to the
demand forecasts are small. There are differences, but there is a need, of about the
same order of magnitude, whether one accepts the Councils' figures or ABP's. Other
forecasts of national container demand have been prepared, for example by Drewry on
behalf of P&O (HCC 4/9) and by Baxter Eadie for the South East England, London,
and East of England Regional Ports Study (HCC 4/16). The Councils take some
comfort from the fact that neither of these forecasts shows higher figures than those in
the forecasts prepared by inquiry participants. Indeed, the P&O case is that the
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capacity at London Gateway alone would be sufficient to meet national need until
beyond 2015.
4.115 During the Inquiry, the position in 2006/7 assumed greater importance in ABP's
arguments than it had in the Environmental Statement. Put shortly, ABP claim a
particular tightening of the demand/supply picture at that time, with adverse
consequences for the UK container market, which Dibden, being further advanced in
any timetable leading to consent, is particularly well placed to meet. This argument is
addressed below (see paras 4.127-4.134). It is however to be observed that the recent
slow down in growth, both of the economy and of container trade, is relevant to this
pinch point. There is a dispute between the Councils' witness and ABP's witness about
the extent of the slowdown in container trade (HCC2/6 and ABP 5/24).
The Councils' Assessment of National Need for Container Capacity
4.116 The Councils' evidence on the demand side can be summarised as follows. Their
consultant's report of June 2001 on the UK Container Port Market (HCC 2/4) contained
forecasts which dealt separately with the UK intra-European demand; deep-sea
demand; and transhipment. The salient demand figures from this report are (all in
million TEUs):
Case
Year
2010
2011
2015
HCC/2/4 Base Case, UK Intra Europe & Deep Sea
Combined
7.74
8.12
9.85
HCC/2/4 Base Case, UK Total Including Transhipment
9.25
9.72
11.71
HCC/2/4 Low Case, UK Intra Europe & Deep Sea
Combined
7.28
7.59
8.98
HCC/2/4 Low Case, UK Total Including Transhipment
8.48
8.82
10.31
HCC/2/3 Revised Case, UK Intra Europe and Deep Sea
Combined
7.35
7.74
9.39
HCC/2/3 Revised Case, Including Transhipment
8.81
9.25
11.14
4.117 The base case in HCC/2/4 used central economic forecasts, and reflected the predicted
relationship between demand and GDP. The low case in the same document was
developed to test a more pessimistic view of economic growth. By autumn 2001 it was
appropriate to develop a revised case in the light of lower central economic forecasts
(HCC/2/3). This case lies between the base case and the low case in HCC/2/4.
Developments since then suggest a further revision downwards (see paragraph 4.124
below).
4.118 The significance of these figures emerges when they are placed alongside the predicted
growth in capacity. Case III on p6 of HCC/2/3 shows the relationship. The Councils'
consultant describes this case as the most likely development of capacity without
Dibden Bay. It assumes some contribution, in terms of capacity, coming forward from
London Gateway in 2007 and from Bathside Bay in the same year. Case III has a
capacity figure of 9.92 million TEUs in 2010. The comparable demand figure for the
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same year is 8.81 million TEUs on the revised case; 9.25m TEUs on the original base
case; and 8.48 million TEUs on the low case.
4.119 This clearly shows that the hypothesis of the Environmental Statement, ie a shortfall of
2.4km of container quay, can only be made good if the emerging alternatives are left
out of account.
4.120 The period after 2010 of course has to be considered as well. But at that distance in
time there will necessarily be greater uncertainty and greater potential for developments
that have not been foreseen. Also, importantly, the Case III capacity figures for 2010
do not show the full capacity of the planned projects (HCC2/1, para 3.15). Additional
capacity would be available at London Gateway (an extra 2.9 million TEUs of quoted
capacity) and at Bathside Bay (an extra 0.5 million TEUs of quoted capacity). Other
possibilities include the Isle of Grain (1 million TEUs); Southampton Berths 201/2 (0.4
million TEUs); and redevelopment of the Landguard Terminal at Felixstowe (1.5
million TEUs). In total, these developments could provide an additional 5.9 million
TEUs. This compares to the difference between the revised case demand figure of 8.81
million TEUs in 2010 and 11.14 million TEUs in 2015, an incremental growth of 2.33
million TEUs from 2010 to 2015.
4.121 The Councils' case is not that all, or even most, of the projects identified above will
necessarily come forward. The point is that at this stage in the forecasting, a number of
potential options are on the horizon. The emergence and very active promotion of
London Gateway is an object lesson in how not to discount the possibility of even
completely unforeseen developments making a contribution to the balance between
supply and demand.
4.122 Any submissions by ABP to the effect that Dibden would be needed in the period to
2015, even if London Gateway and Bathside Bay were fully developed, should be
considered in the light of the above and the Councils' evidence on the utilisation of
container port capacity. This establishes that, looking at a scenario with Bathside Bay
and London Gateway fully developed, and no contribution from Dibden or any other
port developments, the utilisation rate in 2015 would be 83.6% for the revised case
(87.9% for the base case). These utilisation rates would be acceptable; indeed, if other
projects were also to proceed, there would be the possibility of over capacity (Day 22,
pp4-10).
4.123 Whilst it is clearly the case that there will be a requirement for additional capacity by
2015, it cannot be said that a refusal to authorise Dibden Terminal would have an
adverse effect on the functioning of the UK container port market (HCC/2/1 para 3.16).
4.124 This analysis now needs to be read in the light of the position that emerges if the latest
market data, economic information, and analysis of the transhipment market are
considered (HCC2/6). The Councils' revised forecasts show total demand for the
"current base" case slightly lower than the "revised base" case produced in the autumn
of 2001 (by 0.34 million TEUs in 2010 and 0.32 million TEUs in 2015 - HCC/2/6,
Table 6). The corresponding utilisation rates for 2015 would be lower than the 83.6%
calculated for the revised case (para 4.122 above). The comments about its
acceptability would apply with added emphasis.
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4.125 The same general picture, namely, of an absence of a demonstrable need case in
national capacity terms if other emerging projects are taken into account, emerges from
ABP's evidence. This envisages a shortfall of 171 quay metres in 2006 which would
grow to 1,968 quay metres by 2012 (ABP/5/1 para 7.21). (It should be noted that the
forecast of a need for an additional 2.4 km of deep-water quay in 2011 relied on in the
Environmental Statement had thus already been reduced). Potentially available to meet
this is the 1,400m from Bathside Bay and 2,500m from London Gateway, should those
projects be permitted.
4.126 The strength of this point is considerably increased by the very recent announcement by
Hutchison Ports UK as to their intentions in respect of the Landguard Terminal at
Felixstowe (HCC/0/43). This envisages a further development of close to 1,000m of
additional deep-water container berths providing 1.5 million TEUs extra capacity,
intended to be started at "the earliest opportunity". This announcement has not been
tested at all, but it does reinforce the likelihood of additional capacity becoming
available beyond that from London Gateway and Bathside Bay assumed in the above
analysis.
The 2006 Squeeze
4.127 Two other aspects of the national need case call for examination. The first is the
reliance by ABP on the "squeeze" around 2006, which will exist whatever assumptions
are made about the other emerging projects, precisely because these are unlikely to be
making any contribution before 2007 (the assumption made by the Councils' witness).
The squeeze would plainly be longer in duration if the timing assumptions on which
London Gateway and Bathside Bay would be brought forward are wrong.
4.128 There are a number of points to be made about the squeeze. The first is that, as a
matter of law, a temporary economic effect of this kind cannot amount to an interest of
overriding public importance. The interests protected by the Habitats and Birds
Directives endure in the long term. The system of protection represented by Natura
2000 is intended to provide appropriate long-term protection. The point is forcefully
made in Managing Natura 2000 at section 5.3.2, part of which reads:Having regard to the structure of the provision, in the specific cases, the
competent national authorities have to make their approval of the plans or
projects in question subject to the condition that the balance of interests
between the conservation objectives of the site affected by those initiatives and
the above-mentioned imperative reasons weighs in the favour of the latter.
This should be determined along the following considerations:
a) the public interest must be overriding: it is therefore clear that not every
kind of public interest of a social or economic nature is sufficient, in particular
when seen against the particular weight of the interests protected by the
Directive (see, for example, its 4th recital....)
b) in this context, it also seems reasonable to assume that the public interest
can only be overriding if it is a long-term interest; short-term economic
interests or other interests which would only yield short-term benefits for the
society would not appear to be sufficient to outweigh the long-term
conservation interests protected by the Directive (emphasis in original).
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4.129 The Councils adopt that passage. It would be wrong to permit Dibden Terminal
because of limited timing considerations. This is true even if fairly substantial financial
benefits might be thought to flow from permitting development. The clear import of
the above advice is that one should not release a designated site simply because of a
need that will be removed after a limited period.
Effect of the Squeeze on Footloose Transhipment
4.130 The second matter is that it is necessary to look at the effects of a temporary "squeeze"
around 2006 on a practical basis. In this context the distinction between different types
of transhipment needs to be appreciated. There is a basic difference between the
element of transhipment that follows naturally from serving direct calls, and a more
"footloose" element. A minimum level of transhipment service is essential for a fully
featured deep-sea container terminal (HCC/2/4, footnote on p43). However, a
proportion of the transhipment trade (the more footloose element) could be equally well
handled at a range of ports, broadly within the Felixstowe, Antwerp, Rotterdam triangle
(Day 20, pp122-123).
4.131 Also, the economics are heavily weighted in favour of direct calls; the cost penalties of
converting to a system of serving the UK economy by transhipping from a continental
hub port would be very considerable. The result would be that major shipping lines,
faced with the shortening balance in 2006, would not abandon direct calls. The
proportion of transhipment that is not footloose would also remain. This basic aspect
of the economics considerably limits the weight that should be attached to any
tightening of the supply position.
4.132 In the light of this perspective, it would be wrong to allow the decision about Dibden
Terminal to be influenced to any substantial degree by the position in 2006. The
central thesis of the Councils' submissions is that there are projects in the pipeline
which are likely to be developed within the next few years.
4.133 It is also important to note that the debate that took place between ABP's advocate and
the Councils' witness about utilisation rates in around 2006 was largely on the basis of
the original base case. The figures in HCC2/6 are now the relevant figures (ie a 2006
demand figure of 6.97 million TEUs (Table 6) compared with the original HCC2/4 base
case of 7.59 million TEUs (Table 2.4.5)). Even if HCC 2/6 is put to one side, the
"revised" case is more applicable.
4.134 Another way of looking at the 2006 position is through ABP's evidence. This identifies
a shortfall of 171 quay metres arising for the first time in 2006 (ABP/5/1, para 7.20).
Any reduction of the forecasts from those used at the time of the main proof
(November 2001) would effectively remove this shortfall.
Need Beyond 2015
4.135 ABP place some weight on forecasts for the period after 2015. They rely on two
"policy" bases for this exercise. The first is the Secretary of State's letter of 10
December 1999 (TS/PC1, Appendix 10). The Councils argue strongly that this letter
does not provide any basis for saying that the Secretary of State, as a matter of policy,
regards a 30 year period as a sensible planning horizon.
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4.136 It is apparent from the Technical Statement on Consultation and Scoping (TS/PC1) as a
whole that ABP originally proposed to examine only a 10-year period. The suggestion
that there should be a "check" on the result over a longer period came from the RSPB
(see para 16 in the Annex to the RSPB's letter of 11 June 1996 in TS/PC1, Appendix
VI).
4.137 The second suggested policy base is paragraph 5 of Recent Developments. That
paragraph is saying that a project "which is justified now has to have an investment
case which is sustainable over time" (Day 18, p50). It is not saying that long-term (and
therefore inherently uncertain) forecasts can be used to justify a need case for a
development which is not needed on a shorter time scale.
4.138 A similar point can be made about ABP's reliance on their witness's work for the New
York Port Authority (Day 17, p133 et seq; and Day 18 pp51-53). In considering
whether investment is justified in a project that is needed now, a developer may well
look to see whether that project is likely to remain in use over the relatively long-term.
That is different from saying that a need case can be built on the long-term forecast.
The market, economic and other uncertainties are such that it is not possible accurately
to identify the container terminal needs of the UK over a 30-year period (HCC/2/5,
section 7). Given the uncertainties inherent in any long-term forecasting, the Councils
strongly submit that a need case cannot be made by reference to requirements 30 years
hence.
Transhipment
4.139 Other aspects of the need case include the suggestion that the development at Dibden
would, first, help ensure a high (30%) transhipment rate at Southampton generally and,
second, that the transhipment rate itself would help support the economy of the City
Region by encouraging inward investment. This second aspect of the matter is closely
connected with the second part of paragraph 2.1.3 of Modern Ports, which reads:
... UK container ports are well served by direct deliveries from international
lines. Shipping companies also use them for transhipping goods to or from
other countries. Over 30% of containers landed at Felixstowe are in
transhipment. This in turn increases the range of markets available to UK
customers, bringing competitive benefits to our industry and maintaining our
attractiveness for inward investment.
Transhipment and the Local Economy
4.140 It seems to the Councils that this passage is essentially making a statement of fact
rather than laying down a policy, namely that high transhipment rates have a noticeable
effect on inward investment. But what weight should be given to this consideration in
the immediate Southampton context? The answer comes from ABP. If the advantages
to the Southampton area of increased access to markets through increased feeder
supplies from a larger Port were significant, one would expect them to have been
picked up in their analysis of the advantages of Dibden. But the opposite is the case.
Their witness made it clear that, although there might be some impact in terms of
distribution type activities, it ".... has not been a main part of the evidence"; and in
terms of value added manufacturing activity ".... it is not part of the case that Dibden
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would lead to a significant amount of employment in that type of activity" (Day 19,
pp154-155).
4.141 The Councils' evidence recognises the fact that an increase of transhipment at a port
would mean that intra-European containers could be shipped on any increased feeder
services (HCC2/5, para 5.5, first and second bullet points). However, the matter has to
be placed in context. There are numerous alternatives open to the UK exporter to
deliver his cargo from the UK to continental Europe (for example, the Channel Tunnel,
lift-on-lift-off (lo-lo) container services from small and large container ports, ferry
shipments from a variety of ports, etc). Accordingly, the addition of further feeder
operations would be a marginal relative improvement.
These considerations
significantly limit the identified "spin-off" benefits to the UK economy of the presence
of transhipment operations at a major port. What does matter is the provision of
sufficient facilities not to threaten the number of direct calls.
4.142 There is obvious common sense behind this sentiment. It is not a question of placing
no weight on the factual matters described in the last two sentences of para 2.1.3 of
Modern Ports; but rather of keeping a sense of perspective about them. One needs also
to bear in mind that the footloose transhipment business may shift location relatively
easily. This means that it is unlikely to be a major and firm basis for inward investment
decisions.
The Level of Transhipment
4.143 This matter is closely related to another aspect of the transhipment debate, that is
whether ABP are right to say that Southampton will develop a 30% transhipment rate if
Dibden goes ahead. This is of some importance because of the contrast ABP seek to
draw between Southampton with SCT, with a capacity of 1.8 million TEU plus, and
Southampton with SCT and the proposed Dibden Terminal.
4.144 ABP's prediction of a 30% transhipment rate for Southampton including Dibden is
based on their prediction for the overall amount of transhipment that could be captured
by the south-east quadrant of the UK. They establish an overall figure for the "feeder"
market and allocate a proportionate share of this to each hub port. They make no
further assumptions about the actual size of the market that such hub ports would be
well placed to serve. In particular, they do not make any assumptions about the size of
the Irish/Iberian markets or the relationship between Southampton and Le Havre in
relation to this market (Day 18, p94).
4.145 The problem about the proposition that one should assume a proportionate share for
Southampton of the notional overall UK transhipment figure is that the transhipment
shares of individual ports reflect no readily discernible pattern - at least not one that can
be safely relied upon. Table 5 in Recent Developments shows a very wide range of
transhipment rates. A 1.8 million TEU terminal at Bremerhaven has an apparent
transhipment rate of 44%. Antwerp, which handles more than 3.0 million TEUs per
annum, has, by contrast, a transhipment rate of only 11.5%. It is inland; but so is
Hamburg, which has a reported transhipment rate of 36.2%.
4.146 The Councils do not accept that it is possible to predict with any degree of confidence
that an individual port will achieve and sustain over time a given transhipment rate over
and above that which comes as a natural corollary of serving direct calls. Each
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historical example of high or low rates is to be explained by a series of ad hoc issues,
which are not only geographic, but are also related to decisions of the shipping lines.
Need and the Economy of Southampton
4.147 The Councils agree that, if it proceeds, the Dibden project would result in a substantial
injection of capital into the economy, which would bring with it welcome job creation.
The issues that divide the Councils and ABP are the characterisation of the impact; the
nature of the adverse effect if Dibden is not permitted; and the weight to be attached to
the beneficial effect on the local economy.
Job Creation
4.148 The number of jobs likely to be created by the project, if consented, was the subject of
substantial discussion through the Joint Data Group (CD/GEN/7). For operational jobs,
the agreed approach assumes that Dibden would be fully operational in 2011. Gross
operational employment at the Dibden Terminal would be 1,015 direct port-related
jobs, with a further 725 from associated activity, making a total of 1,740 full-time
equivalent jobs. The Councils accept that a further 174 jobs would be created through
the induced multiplier (HCC/3/1, para 3.1). Although there is a difference of technical
approach between them and ABP, this has no significant effect on the predictions for
jobs to be provided within the Southampton City Region.
4.149 However, the difference of approach does lead to a dispute about whether there would
be an additional 350 jobs in the wider London and South East Region (TS/EC1, para
3.63; HCC 3/1, para 4.2.4; and Day 19, pp157-158). The Councils submit that their
approach is right. The application of a high multiplier to the original figure for
operational jobs takes account of the total potential for employment generation.
Accordingly, there is no basis on which to contemplate further employment generation
outside the Southampton City Region.
4.150 As to construction employment, there was again a broad level of agreement, the gross
figure agreed by the Joint Data Group being 10,200 person years of employment
(CD/GEN/7, para 2.14).
4.151 It does not follow from the fact that the figure is agreed, however, that all this
employment would be in the City Region. This is for two reasons. First, some of the
capital expenditure would be outside the sub-region - on items such as cranes; and,
second, a large part of the construction workforce would be likely to come in from
outside the sub-region. There was a measure of agreement from ABP's witness that the
figure of 10,200 represented the theoretical upper limit that could be reached (Day 19,
p162). The reality is that it would be lower.
Effect on the Prosperity of Southampton
4.152 A more significant matter is the substantial difference between the parties regarding the
importance or otherwise of a consent for Dibden Terminal in securing the future of a
prosperous Port of Southampton. It is not part of the Councils' case that the objective securing the future of the port - is not an important one. That is recognised by policy
documents of all kinds. But this fact does not excuse one from the need to examine
whether the importance that is claimed for a consent for Dibden is in fact correct.
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4.153 In TS/EC1, ABP put forward a sort of "disaster scenario", built in part on the
identification of a "ports cluster" and on "cluster theory". Under the general heading
"The Consequences of Failing to Develop the Proposed Dibden Terminal for the
Southampton City Region and the South East Region" the text explains:
3.78 The failure to develop the proposed Dibden Terminal potentially puts at
risk all the benefits that the Southampton City Region derives from its ports
cluster, because it would make it very much harder for Southampton to remain
in the premier league of international ports......The major shipping alliances
might progressively withdraw services through Southampton.
3.79 In such an environment, the Port would find it difficult to charge
premium rates, reducing the funds for re-investment. Progressively ABP
would find it difficult to maintain investment in the infrastructure of the Port
necessary to keep up with the world leaders .... The inter-dependency of all
the Port activities within the Harbour Conservancy means that decline in one
element of the Port's business will ultimately impact on other businesses and
trades. Thus businesses in the cluster would decline as the supporting
infrastructure of businesses shrinks and as less money is available to invest in
maintaining and improving the physical infrastructure of the Port, including
the dredged channel.
4.154 Paragraph 3.80 goes on to refer to Porter's work on "clusters" and concludes:
Any region needs to consider carefully any action that undermines the
competitive advantage of one of its key clusters of economic activity.
4.155 The Councils submit that this perspective ignores the realities of Southampton's
position as a port and the nature of the relationship between the different activities that
are said, by ABP, to constitute the ports cluster. There are two strands to the argument.
The first is whether SCT, with a capacity of 1.8 million TEUs, would in fact go into
decline. The second is whether, regardless of the first, a failure to grant consent for
Dibden would threaten the remainder of the activities said to make up the "cluster."
The Councils' view on these questions is, firstly, that there is no reason at all to suppose
that a terminal with the claimed locational advantages of SCT will not prosper; and,
secondly, that ABP's use of the concept of a "cluster" leads them to overstate the
connections between the disparate activities they identify to a very significant degree.
The Future of the Southampton Container Terminal
4.156 On the first of the issues, the future of SCT, the following points should be noted:(viii)
The Port Director, when asked early in the Inquiry what contribution
Phase 1 of the Dibden Terminal might make to transhipment, said that Phase 1
(750 metres of quay) would be "two very big ship berths.....about (840/850,000
TEUs capacity).....That is a substantial slug of business. To put that in context,
that capacity over two berths, capable of handling the very big ships, is rather
more than the total current UK handling volumes of the world's biggest container
handling company, Maersk/Sealand...." (Day 5, p185). That description of
850,000 TEUs as "a very substantial slug of business" applies with force to a
terminal of 1.8 million TEUs, such as SCT.
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(ix)
The Councils' witness made a number of further points about the future
of SCT if expansion at Dibden was not authorised. He pointed out that many
terminals were currently being promoted with capacities of the order of 2 million
TEUs. His view was that: "There is a clear commercial role for container
terminals offering the capacity identified at SCT. It is not the case that, without
the expansion at Dibden, SCT will somehow necessarily decline" (HCC/2/5, para
3.3, emphasis in original).
(x)
He made a number of comments about ABP's argument that a terminal
that lacked the capacity to handle more than a single line or alliance would face
difficulties. Even where the alliance structure is strong, it is not the case that all
of an alliance's business must be concentrated in a single terminal. Different
"strings" serve different ports. Even where a single line or alliance is
predominantly centred on one port, parts of its business may well transfer
elsewhere.
(xi)
Indeed, such a mechanism is necessary if there is going to be effective
competition between ports. The whole concept of their being a "utilisation rate"
(whether it is at 90% or whatever other level) above which the UK market as a
whole is not competitive, depends on an ability to transfer parts of a line's or
alliance's overall business.
(xii)
The fact that the economics of the container trade strongly favour
direct calls makes it unlikely that such a major facility as a terminal with a
capacity of 1.8m TEUs would be left in decline, at least unless there was
substantial direct call over-capacity in the critical south-east quadrant of the UK.
4.157 In fact, ABP's witness disowned any intention to be leading evidence that SCT would
go into "terminal decline" (Day 19, p140). He indicated clearly that he was not putting
forward a scenario "where employment disappears at SCT altogether and there is no
container traffic through Southampton" (Day 19, pp141-142).
4.158 On the future of SCT, the difference between ABP and the Councils comes down to
two points. The first is whether, in the absence of Dibden Terminal, SCT would
continue to be a major player. The second is the extent to which SCT would be
vulnerable, because it might not be big enough to cater for the needs of more than a
single alliance. The Councils' perspective remains that a facility of this size will have a
prosperous future. This is particularly so as it is in an environment where economics
strongly favour direct calls; it has a dredged channel that can be readily maintained; and
(on ABP's case) it has good rail connections.
4.159 ABP put forward some other examples of facilities which, in other contexts, had
declined. They gave the examples of the ferry ports of Newhaven and Great Yarmouth,
which had proved vulnerable to loss of business (ABP 6/1, paras 2.13 to 2.15). The
Councils consider that such parallels are far fetched, given the natural ability of SCT to
continue to compete. Similar comments apply to the example of Liverpool Airport,
which ABP's witness said had been vulnerable to the loss of a single major customer
(Day 19, p145). However, Liverpool Airport had managed to overcome considerable
locational disadvantages in attracting Easyjet (and would thus obviously be vulnerable
to losing it). In contrast, SCT has every locational advantage in a direct call market,
which is likely to be highly attractive to business.
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4.160 ABP questioned whether the Councils were right to assume that SCT would have a
capacity of 1.8m TEUs (putting to one side the debate about Berths 201/2 covered in
paras 4.183 to 4.190 below). ABP's own assessment, in Technical Statement TS/N2, is
clear, however. It reads:
It is estimated that re-equipping Southampton Container Terminal (SCT),
which currently uses Straddles, with RTGs could allow the Terminal to handle
100,000 extra boxes (approximately 10%) per year. SCT keeps the efficiency
of its operational methods under constant review. At present the level of
investment required to re-equip is not economically justified, but in time is
likely to be. Other ongoing investments in productivity (for example the
addition shortly of two further post-panamax cranes) are, however, likely to
continue to raise productivity. It is estimated that these improvements will be
sufficient to raise the capacity of SCT from the current 1.5m TEU to about
1.8m TEU by 2011 (TS/N2, para 7.47, emphasis added).
4.161 The view of the market taken in the Technical Statement is that the capital investment
required to raise capacity from 1.5 million TEUs to 1.8 million TEUs is likely to be
justified. This view is difficult to reconcile with a terminal struggling to remain a
major player. The Councils consider that it confirms their case that the capacity of SCT
itself should rightly be taken as 1.8 million TEUs (or 1.9 million TEUs taking the
figure assumed by ABP's witness for 2015 - ABP/5/1, para 7.19.)
4.162 It does not seem to the Councils that the investment forecast in paragraph 7.47 of
TS/N2 is predicated on a consent for Dibden Terminal. The text does not say so; and
presumably the incentive to invest in SCT would be less, not more, if Dibden were
being developed in parallel during the period up to 2011. The possibility of temporary
reductions in traffic at SCT during the development of Dibden Terminal is
acknowledged elsewhere by ABP (ABP/6/1, para 9.4).
Cluster Theory
4.163 ABP raised "cluster theory" in the context of the relationship between SCT and the
other parts of the alleged "ports cluster"; and the impact of a refusal of permission for
the Dibden Terminal. It is important to examine whether the Dibden Terminal would
provide significant benefits, either for the port or the economy of the City Region, other
than those predicted by the multiplier effect (which is reflected in the job generation
figures). It is equally important to assess whether the refusal of consent would be likely
to give rise to significant adverse consequences.
4.164 The Councils' witness drew a sharp distinction between what he saw as the true concept
of a "cluster" and ABP's use of the phrase in relation to "a group of businesses linked
by a series of customer and supplier relationships" (HCC/3/8 paras 4.2 to 4.5). In a
note on "clusters" (HCC/0/23) he said:7. It is often helpful in seeking to grasp and interpret theoretic constructs like
clusters to refer to practical examples and Porter notes several in the USA;
information technology and software in Silicon Valley, biotechnology in
Boston, production technology in Pittsburgh and tourism in Southern Florida.
Closer to home, an example here might be the grouping of marine sciences and
marine technology businesses in South Hampshire.
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8. To a large extent these have grown out of the concentration of port activity
in Southampton developed over a long period as a result of its coastal location
and harbour; including military, commercial and leisure boating and shipping
activity. However they are now developing entirely independently, the marine
technology sector has moved on. The high technology businesses we have
heard about, the Oceanography Centre and the University's R & D activities
and specialisms in marine sciences not only have their own dynamic, they
have also developed a wide national and international market for their products
and services. They are no longer restricted to servicing the trades remaining in
the port of Southampton and hence, as Mr Nicol sets out in Table 8.2 of his
main evidence, have few if any links to the container port.
9. The marine sciences and technology cluster is innovative, has a pool of
specialist skills, is creating new businesses and business expansions and has
attracted direct support from the RDA through designation as an Enterprise
Hub.
10. This can be contrasted with the port itself. Here the businesses cited as
part of the so called port cluster are essentially suppliers of goods and services
to a number of port trades; e.g. Cruise Ships, SCT, Ferries, Ro-Ro and Bulk
Products.
11. Companies such as freight handlers, freight forwarders, container
repairers, storage, road and rail transport businesses and several other shipping
related services have to be in direct physical proximity to the port.
12. There is no need (and it doesn't happen) for these businesses to co-operate,
establish technical accords or commission joint research to help develop new
technologies, new products, new applications or new customers. The
workforce based in Southampton can only serve local customers. This
inability to innovate and initiate change in the local economy (other than by
doing more of the same) contrasts sharply with the opportunities available to
marine technology companies. They can and do seek and exploit wider
markets and can create competitive advantages; the defining characteristics of
a cluster.
13. The port is simply (and without at all diminishing its overall economic
importance to Southampton) a group of transport infrastructure businesses that
are supported by a large number of suppliers of specialist goods and services.
14. If the container handling component of the port expands (and through the
multiplier concept that we fully accept) then so will its supplier businesses.
But in becoming larger the port does not become significantly more
innovative, the nature of the supplier relationships does not change and no
additional competitive advantage or employment growth is captured beyond
that already measured by the multiplier.
4.165 The last point is the central one. No-one denies that the grant of a consent for Dibden,
or the continued prosperity of SCT, will have an effect on the economy of port and city.
The issue is whether the effect goes significantly beyond the multiplier.
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4.166 A table in ABP's evidence sets out a description of various elements in the alleged "Port
and Marine Cluster", with figures for the numbers of jobs involved and a description
(major, minor etc) of the impact of Dibden Terminal on each element (ABP 6/1, Table
8.2). Examination of the disparate elements in the table makes the Councils' point.
The table itself accepts that the impact on many of the elements will be "minor" - and it
is self-evidently right to do so. For example, category 5 covers businesses "requiring
access to the port for import/export of goods". It explains that these include oil related
businesses, Marchwood Military Port, Bacardi Martini, Rank etc. The impact is
described as "none or minor" with the explanation that "these firms will not use the
Dibden Terminal facilities. However, indirectly helped by the expansion of the Port
helping spread port operating costs more widely". The category of "ferry/cruise
operators" is explained as covering the "local and continental ferry operators plus the
cruise ship firms based at Southampton." The impact is described as "minor - cruise
ship traffic not directly affected by the Dibden Terminal development."
4.167 Examination of the table as a whole indicates that the Council's witness was clearly
right to be sceptical about the identification of any fully-fledged "cluster" in his sense.
He did not deny the existence of such clusters. An example is grouped around the
Chilworth Science Park in Southampton, with its "existing mix of high technology
businesses and its links to the Warsash Maritime Centre, Southampton Oceanographic
Centre and other marine technology research facilities at the University" (HCC/3/8,
para 4.4). But the collection of activities grouped around the port, and listed in ABP's
Table 8.2, are not symbiotic in the same way.
4.168 The Councils accept that where activity increases, there will be economies of scale and
there will be an increase in the number of firms supplying the port, and/or in
employment in those firms. However it is difficult to identify connections between
different parts of the alleged "ports cluster" that go beyond this. Where the services
relate to the principal activities of the port, merely increasing their scale would not
bring competitive advantage in terms of new markets, new business, new specialist
skills or the application of technology and innovation.
4.169 Whilst ABP's witness further suggested that Dibden Terminal might create "step
changes" in investment decisions, the historical decisions quoted related to cruise ships
and cars. It is extremely unlikely that such decisions would be influenced to any
material degree by the presence or absence of Dibden Terminal. The only obvious
mechanism for such an influence is the sharing of port infrastructure costs; but this is
unlikely to be of more than marginal relevance, as ABP acknowledged that the dredged
channel is relatively cheap to maintain in comparison with others. It cannot
realistically be thought to be under threat if the Dibden Terminal development does not
proceed.
Dibden Terminal and the PAER
4.170 The characteristic of the South Hampshire, Southampton and Portsmouth PAER is
described in RPG9, paras 12.9 to 12.13. The opening words of paragraph 12.11 are:Although the area enjoys general prosperity, there is a pronounced incidence
of local deprivation, which is exacerbated by a skills mismatch between the
requirements of jobs created by new industries and the relatively unskilled
nature of a relatively high proportion of the resident workforce. Skills
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enhancement will be an important element of a strategy to enable the
unemployed and under employed to access those jobs that already exist in the
sub-region and those that could be attracted to it in the future...
4.171 It is clear from the context that the opening words of the paragraph refer to the PAER
as a whole. The difficulty faced by the PAER is that it is an area of "general
prosperity" which contains a "pronounced incidence of local deprivation". The
principal policy prescription in RPG9 (and indeed elsewhere) is to overcome the skills
mismatch by skills enhancement and the like.
Ro-Ro and Aggregates Need
4.172 Whilst the central element of the need case that ABP necessarily have to rely on is that
relating to national container demand, the Councils acknowledge that ABP also base
part of their case on the need to expand the ro-ro trade and to create an aggregates
facility.
4.173 For the purposes of the case as a whole, the Councils' primary submission is that ro-ro
is a small subsidiary element of Dibden Terminal; the need, if any, for ro-ro cannot
conceivably justify the release of the whole Terminal site, or significantly alter the
principles involved. The constraints on the release of the Dibden site are the ecological
restrictions on development affecting sites of nature conservation importance; and the
need to protect the landscape of the NFHA and emerging National Park. It is that
landscape impact, and the totality of the ecological impact, that needs to be justified if
the site is to be developed.
4.174 On the basic issue of whether to confirm the HRO, ro-ro is a red herring. Similar
reasoning applies to the aggregates facility. The result of the review of MPG6 is still
awaited; but whatever its outcome, a case for the development on the scale proposed in
the draft HRO cannot be made on the basis of aggregates need.
4.175 In respect of the possibility of an aggregates facility on the site, paragraph 5.59 of the
Hampshire Minerals and Waste Local Plan (CD/HCC/4) requires a similar balancing
exercise to policy EC6 of the Structure Plan, in respect of need and impact. The
Inspector's Report on the Minerals and Waste Local Plan noted:
.... The development would affect only a small part of the entire land area of
some 295ha fronting Dibden Bay held by Associate British Ports, a proportion
regarded by the objectors as unprejudicial to the wider question as it would be
at the extreme northern corner of their holding, adjoining the military port,
remote from dwellings...(ABP 2/3, Appendix 13, para 5D.13).
4.176 The impacts of 10.9ha of ro-ro, or of an aggregates facility on the site, would be of a
completely different order of magnitude to those associated with the container handling
facility.
4.177 A number of other points arise in relation to ro-ro; in particular, and certainly when
viewed on a national basis, ro-ro ports are a remarkably inefficient user of land. It is
submitted that the Secretary of State should scrutinise with care a need case that is ro-ro
based, where that case is used to justify the release of such a sensitive site as Dibden.
4.178 ABP's evidence states that:
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[In 1999] Southampton itself has captured 17% of this market (for new
vehicles) overall. Its share of the deep-sea vehicle market is much higher at
35%, reflecting its key critical advantage of deep water for very large carrying
ships (ABP/5/1, para 10.2).
4.179 ABP acknowledge that Bristol is Southampton's main competitor for the deep-sea
vehicle market; Southampton's share is 35% and Bristol's is 30%. They accept that in
terms of efficiency, Bristol does not utilise its land at anything like the rate that it could.
Southampton's throughput is 543,000 vehicles on about 69ha, compared to Bristol's
418,000 on about 242ha (Day 16, pp72-73; and ABP 1/1, para 3.14). Until 2001, ABP
had not considered there to be a need for multi-storey parking facilities in
Southampton. None exist at any of the competitor ports.
4.180 The 1997 RSPB study Port Development and Nature Conservation assumed a trade car
throughput benchmark of 8,000 cars per hectare per year (ABP/0/31, p46).
Southampton's figures show that it has operated efficiently at about that level (Day 16,
p74 et seq). The Councils submit that it is plain from the RSPB study, the Technical
Statement and ABP's evidence, that car parking space is the main influence on the
capacity of a ro-ro terminal (ABP/0/31 p37 and p43; TS/N2, paras 7.15-7.18; and Day
16, pp77-82).
4.181 Part of ABP's need case is presented on the basis of ro-ro. The RSPB study predicted
rapid growth in the ro-ro market (p57) and a shortfall of 135ha in the South East ports
by 2010 (TS/N1, para 4.6). However, the RSPB report did not assume the provision of
decking at any location. ABP accept that there are other locations within the port
where multi-storey car parks could be located, and indeed believe that, in time, more
will be built (Day 16, p88; Day 28 pp157-173).
4.182 What this debate demonstrates is that ABP's ro-ro need case is insufficient to justify
development at Dibden Terminal. There is considerable scope for ro-ro facilities to be
increased at Southampton; and Southampton's main competitor, Bristol, clearly has the
potential to increase throughput considerably.
Capacity at the Southampton Container Terminal
4.183 The passages above assume a capacity for SCT of 1.8 million TEUs. The Councils
regard that as a realistic minimum.
4.184 ABP's case is that the SCT site, in its present configuration, could accommodate 1.5
million TEU, and 1.8 million TEUs with "re-equipping". ABP's witness attempted to
cast doubt on the likelihood of SCT incurring the expense of re-equipping to provide an
extra 300,000 TEU (Day 30, pp79-83). However, his evidence is incompatible with the
Technical Statement already referred to (see para 4.160 above).
4.185 The other issue about the capacity of SCT is whether there is a possibility of expansion
by utilising Berths 201 and 202 for containers. The Councils' evidence demonstrates
that the physical opportunity exists. However, they accept that the extra capacity
would be limited, and would not represent an alternative to development at Dibden
Terminal.
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4.186 There are really two issues about Berths 201/202. The first is whether the Councils'
evidence as to the possibility of expansion is soundly based technically. The second is
whether the possibility of the berths coming forward is so remote in commercial terms
that it should be discounted.
4.187 As to the first; the available land area behind Berths 201/202 (17.5ha, including area
Z2, but excluding area Z1 marked on Exhibit 4 of HCC/5/4) offers the potential
capacity throughput of up to 400,000 TEU per annum.
4.188 As to the second, it is obvious, and the Councils accept, that the use of Berths 201/202
for container handling would necessitate the relocation of some activities that take
place there at present. However, the Port of Southampton reacts dynamically to
accommodate changes in trades. There are relatively frequent land-use changes within
the port. Recent examples include the departure of Standard Telephone and Cable from
parts of the Western Docks, and the subsequent use of that land for container storage;
and the departure of the banana trade from the Windward Terminal.
4.189 The County Council recently commissioned consultants High Point Rendel to report on
the potential of the SCT (HCC5/4). ABP attempt to make much of the reference in that
report (Conclusions, p20) to there being "no realistic opportunities for a major
expansion of container facilities within the existing port area ....". Elsewhere, however,
the report clearly identifies and describes the physical potential of Berths 201/202 for
container handling.
4.190 If one imagines a world in which there is no Dibden Terminal, the Councils do not
accept that it is right to rule out the possibility that Berths 201/202 would come back
into container use in the medium term. They are physically well located in relation to
the existing SCT. The Councils accordingly consider that the correct way of describing
the capacity of SCT is as a terminal with an ultimate capacity 1.8 million TEUs, with a
possibility of expansion to 2.2 million TEUs.
Alternatives
4.191 The existence of emerging proposals for container port development, particularly those
at Bathside Bay (Harwich) and London Gateway (Thurrock), is relevant to the
evaluation of the need for the Dibden Terminal under Structure Plan Policy EC6 (see
4.70 et seq above). The County and District Councils submit that a very considerable
degree of weight should be attached to these alternatives. The material that supports
this proposition is discussed below.
Progress with Major Alternatives
London Gateway
4.192 There is no doubt that London Gateway is being promoted by P&O with all available
energy as a major container port. A public inquiry into their proposals is scheduled to
begin in February 2003. It will cover not only the proposed container port, but also a
major landside logistics and distribution depot, and related access proposals.
4.193 The proposed port would occupy a water frontage of some 3,000m, of which some
2,300m would be for containers. The London Gateway HEO Environmental Statement
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Non-Technical Summary describes the port proposals as follows (HCC/4/18, Tab A,
para 1.3.4):
The port would be primarily used for the import, export and distribution of
containerised freight. The Container Terminal would comprise berths,
container storage yard and associated facilities capable of handling 3.5 million
(TEUs) per year when fully developed. It would also accommodate a facility
for ro-ro operations. In addition, there would be, in common with all modern
competitive ports, aggregates, general cargo and bulk fluids handling berths
and areas.
4.194 With regard to the dredging proposals it states (ibid, para 1.3.8):
It is envisaged that navigational access to the port would need to be provided
for design ships with draughts of up to 15.0m.....
4.195 ABP are sceptical about the achievability of the dredge and the disposal of dredged
materials. However, P&O's proposals remain to be tested at inquiry. The only realistic
approach that can currently be taken to London Gateway is that it does represent,
subject to assessment, an opportunity for a major container port.
Bathside Bay
4.196 The position in relation to Bathside Bay is set out in a letter, dated 18 November 2002,
from Rees and Freres on behalf of Hutchison Ports UK (CD/INQ/34). This refers to
the Harwich Parkeston Quay Act 1988, and notes that applications have now been
made for:

tidal works, under the 1988 Act, including the construction of a 1,400m
long quay wall and the reclamation of 72ha from the inter-tidal area;

the Harwich Parkeston Quay Revision Order 2002, "for the purposes of
extending the deemed planning consents conferred by the 1988 Act by
five years..."; and

two separate consents to widen and deepen the existing channel and to
dispose of dredged arisings.
4.197 The letter goes on to record that the Secretary of State has indicated that these four
applications should be considered together at a public local inquiry; that Hutchison will
soon be making a comprehensive package of planning applications, and producing a
further Environmental Statement to complement the one submitted with the tidal works
application; that Hutchison anticipate that the new applications will be conjoined with
the existing applications for consideration at a single public inquiry; and that they
expect the inquiry to commence by about November 2003 and sit for some 2-4 months.
4.198 This timetable is entirely realistic and achievable. ABP's witness indicated that if
someone on the Bathside Bay team "puts their mind to it and does it quickly, as fast as
possible, then we are perhaps talking about three or four months to get a proper ES
together." He thought an inquiry in early to mid 2003 was possible (Day 27, pp8-9).
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Dibden Bay Inquiry - Inspector's Report
4.199 Thus the position is that the proposal for a container port at Bathside Bay, as well as
having existing authorisation to the extent provided by the 1988 Act, is being actively
promoted.
Landguard Terminal, Felixstowe
4.200 On 4 December 2002, in the penultimate week of the Dibden Terminal Inquiry, the Port
of Felixstowe Ltd announced their decision to develop additional deep-water container
berth capacity at Felixstowe, and upgrade the existing Landguard Terminal to handle
the latest generation of container vessels. This follows the decision by P&O North Sea
Ferries to withdraw their ro-ro operations from that part of the port. The development
would increase the quay length available for container handling by almost 1,000m, and
increase capacity at the port by 1.5 million TEU (HCC/0/43). At the close of the
Dibden Terminal Inquiry, nothing more was known of this proposal.
The Position of London Gateway and Bathside Bay as Considered in the Dibden Terminal
Environmental Statement
4.201 In the Dibden Terminal ES, ABP positively countenance the possibility that London
Gateway (alias Shellhaven) and Bathside Bay will come forward (ES, paras 5.29-5.38).
4.202 As to Shellhaven, the ES is written on the basis of the site being considered as a
possible location to serve the "largest container ships." It is recognised that this would
require new marine infrastructure, including substantial deepening of the navigational
approaches and reclamation to provide a new quayline. It is also noted that road and
rail routes to the site would pass through and around London; and that the costs of
cleaning up the site are unknown. Notwithstanding this, it is stated that the proposal
"would not be expected to raise major development plan policy objections" (ES, para
5.32). The conclusion states (ES, para 5.34):
Subject to positive proposals for the re-use of the site and the results of
environmental assessment ..... it is considered that the development of new
infrastructure to enable Shellhaven to handle deep-sea containers is a
possibility to help meet the medium and long-term UK market demand.
4.203 The Dibden Terminal ES does not rule out Shellhaven, neither does it foresee a role for
it that is limited to a particular kind of container traffic, or which is exclusively ro-ro.
Rather, it foresees a role for Shellhaven as a potential location for a major deep-sea
facility serving the largest container ships.
4.204 Things have moved on from the time the ES was written. An environmental
assessment of the London Gateway project has been carried out. The feasibility of the
proposed dredge will be considered at the forthcoming inquiry. This is the context in
which the need for the Dibden Terminal must now be considered.
4.205 The approach in the Dibden Terminal ES to the Bathside Bay proposals is similar but
shorter. Nothing indicates that ABP considered the proposals lacked either feasibility
or credibility. Paragraph 5.36 indicates simply:Bathside Bay is owned by Sea Containers .... who, in 1988 obtained
Parliamentary approval under the provision of the Bathside Bay Act, for a
fifteen year period, for a mixed development, including a quay and port
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operations. This position is reflected in the statutory development plan. The
port proposals have not been implemented ....
4.206 Paragraph 5.37 is positively supportive:
The site has good local road and rail access, strategic access being similar to
that serving the Port of Felixstowe. Harwich Haven has excellent deep water
access but the channel within the River Stour leading to Bathside Bay is
limited in depth and would require deepening, including the provision of a
large turning basin.
4.207 Paragraph 5.38 concludes:
The acceptability of deep-sea container operations at Bathside Bay would
depend on the results of an assessment of environmental impacts covering
similar topics to the Dibden Terminal ES.
4.208 Thus, the Dibden Terminal ES is the starting point for the proposition that the need case
for the Dibden Terminal is very substantially reduced by the existence of potential
alternatives at London Gateway and Bathside Bay.
Policy Background
4.209 This perspective is further reinforced by the policy background. In short, the County
and District Councils submit:

That a consent for London Gateway would help fulfil a policy objective of national
importance, namely the regeneration of Thames Gateway, and would be consistent with
important policies concerning the re-use of derelict land. An important consequence of
this for the Dibden Terminal Inquiry is that a consent for the London Gateway scheme is
prima facie highly likely. The need case for Dibden Terminal must be approached on this
basis.

Container port development at Bathside Bay already has the support of the 1988 Act, and
the positive support of the development plan. In accordance with Section 54A of the
Town and Country Planning Act 1990, the grant of any further requisite consents must
also be regarded as highly likely. Once again, the need case for Dibden Terminal must be
approached on this basis.
Policy Background to London Gateway
4.210 The starting place is RPG9. Paragraph 4.9 says:
The regeneration of the Thames Gateway is a regional and national priority.
This guidance recognises the complexity of the area's structural problems but
also emphasises the potential for Thames Gateway to make a vital and major
contribution to the growth of the regional economy and the enhancement of its
environment. Extensive areas of derelict land, the availability of surplus
labour and the proximity to Central London, international transport hubs and
continental Europe are some of the factors which combine to make this a
unique opportunity for the Region.
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Dibden Bay Inquiry - Inspector's Report
4.211 Paragraph 7.4, read together with Policy RE5, gives firm impetus to making the best
use of land resources. Policy RE5 provides:
Better use should be made of existing employment land resources. Sites for
industry and commerce should be developed particularly in urban areas and in
places which are accessible by environmentally friendly modes of transport.
Precedence should be given to the re-use of developed land over the release of
new land and wherever possible the intensification of use on existing sites
should be encouraged.
4.212 In the eyes of its promoters, the proposed development at London Gateway, including
the container port, is entitled to the benefit of this policy approach. The County and
District Councils agree. ABP's witness accepted that investment in a container port at
London Gateway could be a major means of implementing the Thames Gateway
strategy (Day 27, p106).
4.213 The County and District Councils consider that the London Gateway container port
proposals are being promoted in a location where they relate naturally to the landside
proposals. They are consistent with RPG9 and, by assisting in the regeneration of the
site, would assist in bringing about a major strategic objective of national importance.
The landside development would be very substantially "brownfield" development,
which is entitled to all the relevant policy support. Whilst ABP stressed that the port
development would involve a considerable amount of reclamation, it is obvious that it
would assist in the re-use of a redundant refinery site. It would therefore contribute to
general sustainability objectives, and would be different in kind from the "greenfield"
development proposed at Dibden Bay.
4.214 In terms of more local policy documents, the Thurrock UDP Pre-Deposit Consultation
Draft of May 1999 is consistent with national policy. It contains specific comments on
the Shellhaven site, which are consistent with the Councils' case. It aims to:
Direct more employment opportunities towards the east of the Borough by
encouraging appropriate redevelopment of the Shellhaven oil refinery site.
Make provision for river-related uses .... (HCC/4/4, Appendix L, para 3.1, 4th
bullet point).
4.215 Subsequently it notes that the proposed closure of the Shellhaven refinery presents an
opportunity to re-allocate much of the site for alternative industrial/commercial
purposes (ibid, para 7.23) before stating:
.... The Council intends to identify opportunities for industrial and commercial
redevelopment, and for port activities where appropriate, to generate additional
employment, especially in the east of the Borough at Shellhaven (ibid, para
7.26).
4.216 The site is shown on the Strategy Plan at p11 of the document with the symbol for new
port facilities and the text "Shellhaven redevelopment - more job opportunities".
4.217 The First Deposit Draft of the Thurrock UDP was considered by Thurrock Council on
30 October 2002 but it has not yet been published (HCC/4/15, para 6.18).
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Dibden Bay Inquiry - Inspector's Report
4.218 In terms of more local environmental objections, it is not part of ABP's case that there
would be major landscape or noise issues to be considered at Shellhaven (Day 27,
pp136-138).
Policy Background to Bathside Bay
4.219 At Bathside Bay, the policy background is different. It nonetheless supports the
proposition that the grant of any further requisite consents must also be regarded as
highly likely.
4.220 In 1988 Sealink Harbours Limited secured the passage of the Harwich Parkeston Quay
Act, specifically authorising the construction of port development. Accordingly, there
was necessarily a specific parliamentary judgement that the site could be reclaimed and
released for port purposes. Reclamation of the land was authorised, as was the use of
the reclaimed land up to 600 metres behind the quay line for port purposes (subject to a
provision requiring the Secretary of State's consent for tidal works). Development
would also now be subject to the requirements of the Habitats Regulations. ABP
accept this as being the position (Day 27, p71).
4.221 This is, at the very least, a highly significant part of the background. ABP make great
play of the lack of any detailed scrutiny of the visual implications of the development,
and the Councils acknowledge that the parliamentary record does not show detailed
consideration of these matters. But that is only half a point. The parliamentary
procedure provided an opportunity for strategic and local planning authorities, amongst
others, to object if the implications of development were unacceptable. They did not do
so.
4.222 It is not for the County and District Councils to express any legal view on whether or
not further planning permissions are required; Hutchison Ports (UK) are intending to
progress a planning package (see para 4.197 above). The strength of the commitment
to Bathside Bay, however, and the likelihood of all consents required ultimately coming
forward, is to be judged not merely by the existence of the Act, but by the development
plan.
4.223 The Essex and Southend-on-Sea Adopted Replacement Structure Plan, April 2001,
provides the clearest possible support for the development of a deep-sea container port
at Bathside Bay. Unlike Policy EC6 of the Hampshire Structure Plan, it does not
require any demonstration of need before development takes place. The most material
part of the explanatory text reads as follows (HCC/4/4, Appendix F):
10.44 The seaport of Harwich specialises in short-sea and near-sea crossings
to Scandinavia and the European Mainland. It consists of two entities. First,
Harwich International Port at Parkeston, which is of national and international
importance. It provides a modern port complex .... with a passenger terminal
.... container terminal, trade car terminal, and an oil terminal. Second,
Navyard Wharf at Harwich which is much smaller in scale ....
10.45 Harwich is well placed to take advantage of expanding world trade on
pan-oceanic routes and also with the European mainland and Scandinavia.
Port facilities can be expanded and upgraded at Harwich International Port to
handle more passengers, road vehicles, and freight traffic. The Port's position
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Dibden Bay Inquiry - Inspector's Report
will be strengthened even further by 2002 when a new container facility is
completed on 101 hectares .... of adjoining reclaimed land at Bathside Bay.
This facility will provide a new quay of 1,400 metres, capable of handling four
deep sea container ships concurrently with a capacity of 1.7m standard sized
containers a year ....
4.224 The text goes on to refer to the rail connections and comments on the fact that "major
improvements" are needed to the A120.
4.225 The express reference to berths capable of handling "four deep sea container ships"
shows that the structure plan authority knew exactly what was contemplated. The
visual and other amenity effects of major container development are apparent just
across the water at Felixstowe.
4.226 Following the explanatory text, the policy reads:
Policy BIW10: Seaports
The port facilities at Harwich .... are of national economic importance and will
be supported as follows:
(xiii)
Improved access facilities by road and rail will be provided and
encouraged;
(xiv)
The provision of improved port facilities at Harwich International Port
within its existing site, and through the future development of Bathside Bay, will
be supported.
4.227 Reading the policy together with the earlier explanatory text, it is apparent that the
policy is to "support" deep-sea container berths, with all the implications, visual and
otherwise, that ensue.
4.228 When the proposition that "we have express Section 54A support for the Bathside Bay
scheme?" was put to ABP's witness, his answer was "Subject to the other provisions of
the plan, yes" (Day 27, p78). He went on, however, to argue that policy BIW10 is
exactly the same as policy EC6 of the Hampshire Structure Plan.
4.229 The County and District Councils do not accept this. This approach rests on the view
that policy EC6 is equivalent to an allocation. It is not. The simple difference between
policy EC6 on the one hand and policy BIW10 on the other is that the first requires
demonstration of need and the second does not.
4.230 As to ABP's assertion that Bathside Bay would require dualling of the A120 (Day 26,
p103; Day 27, p115), this is not apparent from the Structure Plan. Improvements
would be required, but there is no evidence to suggest that these could not be secured.
In a letter responding to the DTLR consultation on the tidal works and channel
deepening proposals, Essex County Council noted with regard to the traffic impact
assessment that:
There are a number of technical issues still outstanding in connection with the
assessment of [data relating to the impact on the A120], which are being
discussed with the port. However, recent positive discussions with the port's
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Dibden Bay Inquiry - Inspector's Report
operators are likely to produce some further material in this connection ....
(CD/INQ/5, final para of attached letter)
4.231 Essex County Council's position statement to the Dibden Terminal Inquiry states:
The authority views the possibility of a major container port at Harwich as a
key catalyst in generating economic growth in North East Essex (CD/INQ/5,
p1).
4.232 At local level, Policy HAR28 in the Tendring District Local Plan allocates Bathside
Bay:
.... for a mixed use development comprising the following; port development,
housing, industry/warehousing and business park, retail park, hotel and leisure
complex .... (HCC/4/4, Appendix G).
4.233 The accompanying text records that the allocation reflects a development package
submitted by the then landowners and subsequently approved in outline by the
Tendring District Council. Notwithstanding this, the policy reflects an acceptance by
the local planning authority of the positive desirability of the reclamation of Bathside
Bay.
4.234 In the view of the Hampshire County Council and New Forest District Council, the
local plan allocation, taken together with Policy BIW10 of the Essex and Southend-onSea Structure Plan, creates a positive framework for development at Bathside Bay.
This is very different to the framework that Policy EC6 of the Hampshire Structure
Plan Review provides in relation to the development of Dibden Bay.
4.235 This entirely favourable planning background for development at Bathside Bay is
reflected in RPG9. Paragraph 12.42 deals with the Tendring Coast PAER. Support for
port development as an element of the PAER strategy is clear. The position is
described as follows:
12.43 Major economic restructuring is taking place on the Tendring coast
and substantial levels of investment may be needed for it to fulfil its potential.
Harwich has been hit by redundancies in its port operations .... The three
towns [Harwich, Clacton and Walton] have high unemployment rates and poor
job prospects. Their relative remoteness and poor accessibility has hindered
efforts to provide alternative employment .... Most wards have Assisted Area
(Tier 3) status, which could be exploited both to strengthen the towns' current
roles and to diversify into other activities ....
12.44. Harwich requires investment in its port infrastructure and its links to
other areas, if its role is to grow and prosper .... .
The Councils' Approach
4.236 The sequential approach to the selection of sites for port development advocated by the
Councils is helpful in deciding the weight that the Secretary of State should give these
emerging alternatives when he considers whether to grant consent for Dibden Terminal
(see para 4.99 above). This approach has been much criticised. ABP may submit that
it is unworkable; and that, applied to the facts of the present case:
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Dibden Bay Inquiry - Inspector's Report

the first priority for release would be the redevelopment of the Landguard terminal at
Felixstowe;

Bathside Bay cannot be regarded as a site with approval because it requires both tidal
works consents and planning permission; and

the London Gateway container port would not be on a "brownfield" site, because most of
the land required would be reclaimed from the sea.
However, such a dismissal of the approach would be too easy. In reality, ABP have
two bases for opposing the Councils' sequential approach:

they say it is misconceived, because the policy behind Modern Ports is market driven;
and

they say it does not work, as indicated above.
4.237 On the first matter, Modern Ports, properly read, is consistent with the County and
District Councils' approach (see paras 4.88 et seq).
4.238 As to the second matter, it is possible to discern a hierarchy on the lines of the
Councils' sequential approach that assists in deciding the weight that should be given to
alternatives that are well advanced. One way of testing this is to see what the position
would be if there were a scheme to utilise true port operational land (the Councils' top
category). It would be unrealistic to think that the existence of such an alternative,
albeit unassessed, would not significantly affect the weight of the need case advanced
in respect of a "greenfield" site. Indeed, it may be that the recent announcement about
the Landguard Terminal points to the emergence of such a scheme. Currently, the
Councils simply point to it as providing some reassurance about the overall supply
figures to 2015.
4.239 In relation to the two main existing alternatives, London Gateway and Bathside Bay:

London Gateway does have characteristics similar to a true "brownfield" site. The
proposal would facilitate the re-use of a disused refinery. That is one of the reasons why
it has to be seen as a credible alternative at this stage.

Bathside Bay does require further consents, at least as to the tidal works, and possibly
planning permission. However, the parliamentary history, taken forward into the
development plan, cannot be put to one side. The principle of development has been
accepted at Bathside Bay, in a way that is not the case at Dibden.
4.240 The consultation paper, A Project Appraisal Framework for Ports contains some advice
about the treatment of alternatives not under the control of the developer. It states (para
3.10):
Identification and appraisal of options in the control of the promoter should be
carried out in some detail. However it is unrealistic to expect promoters to
develop and appraise alternatives about which they have little detailed
information, or which may be speculative or hypothetical. If other interested
parties wish to argue on the basis of publicly available information that
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Dibden Bay Inquiry - Inspector's Report
developments outside the promoter's control present (or could present) a viable
alternative to the promoter's own project, the promoter will need to address
those arguments on their merits, again on the basis of publicly available and
verifiable information.
4.241 At paragraph 3.15 under the heading "Alternatives at Other Ports" it states that:
Assessing alternatives at other ports or sites outside the promoter's control will
inevitably be more difficult. .... Where debating alternatives at other ports,
promoters and objectors should make use of available information, but it is
unlikely to be productive to engage in speculative argument based on
unverifiable assumptions or hypotheses.
4.242 These passages (whilst inevitably recognising the relevance in some circumstances of
alternatives at other ports) are not easy to apply in the present circumstances. Neither
the London Gateway proposals nor the Bathside Bay proposals have yet been tested at a
public inquiry, and information available on them will have moved on since they were
considered at the Dibden Terminal Inquiry. The Dibden Terminal Inquiry did not
attempt to engage in any "ranking" exercise. At the same time, neither proposal can be
described as "speculative or hypothetical". They are not.
4.243 Unless the process of assessment reveals a knock-out blow that would render Bathside
Bay or London Gateway unacceptable, the only sensible basis on which the Secretary
of State can proceed when he considers the Dibden Terminal is to conclude that
consents are likely for these other projects. The options already discussed therefore
arise. They are:

regarding the existence of sites outside Southampton Water as irrelevant (as advocated by
ABP);

deferring a decision pending a comprehensive comparative assessment of all the options
(as advocated by the RSPB); or

applying a sequential approach (as advocated by the County and District Councils), which
would point to refusing permission for the development of a "greenfield" site such as
Dibden, if alternatives are available within existing operational ports, or on "brownfield"
type sites, or on sites with outstanding consents (see para 4.99 above).
4.244 The Councils have carried out a comparative exercise between the various national
alternatives (HCC/4/7). It was, necessarily, based on the untested assumptions of the
relevant Environmental Statements, and accordingly has limitations. Nonetheless, it
provides a degree of support to the Councils' view that consents are likely to be
forthcoming at both London Gateway and Bathside Bay. It suggests that Dibden
compares unfavourably with the alternatives, particularly due to its environmental
effects in terms of noise, landscape impact and biodiversity.
Effect on the Integrity of European Sites
4.245 With regard to the three major alternatives, the Councils accept that, as a working
hypothesis, there is likely to be an adverse effect on the integrity of European site(s) at
all three. However, at Dibden the Inquiry is complete and ABP have not produced
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Dibden Bay Inquiry - Inspector's Report
adequate compensation to maintain the coherence of Natura 2000 (see 4.276 et seq
below). English Nature continue to recommend refusal on that basis. Even if ABP's
legal submissions are correct in saying that it is possible for the Secretary of State to
grant consent without, at the moment, securing compensation, that would be a
remarkable course to take. That is particularly so, as there is no reason to assume that
adequate compensatory arrangements, satisfactory to English Nature, would not be
made in respect of the alternative proposals at London Gateway and Bathside Bay.
Rail Access
4.246 It is not disputed that if ABP can achieve the modal split that they claim, Dibden
Terminal would be a sustainable development and accord with the broad policy
objectives set out in the Transport 2010 and Sustainable Distribution which encourage
growth in rail freight.
4.247 However, the SRA's Freight Strategy makes it clear that it is SRA policy to plan ahead
".... to serve new port capacity wherever this is ultimately provided." (CD/SRA/2 p37).
If alternative deep-sea container port locations are selected, the SRA would adjust their
strategy accordingly (Day 70, pp86-87).
4.248 Therefore, rail-connected deep-sea container terminals in alternative locations, such as
Bathside Bay and Shellhaven, would also be sustainable development and would help
meet the Government's objective of transferring significantly more freight onto rail.
This appears not to be controversial as far as Bathside Bay is concerned.
4.249 The enhancement of the capacity and gauge of the routes between Felixstowe and
Nuneaton, and between Southampton and the West Coast Main Line, are both Phase 1
"Major projects" in the SRA's strategy, for implementation in 2-5 years (CD/SRA/2,
pp19-21). Also in that category is the capacity enhancement of the London orbital
lines, which includes gauge clearance to join North Thames Estuary ports and terminals
to North West London via the Barking - Gospel Oak - Willesden route and/or the North
London Line.
4.250 The Councils accept that the London Gateway proposals face issues, arising from the
need to provide rail access through London and the use of the southern part of the West
Coast Main Line, that are not faced by either Dibden Terminal or Bathside Bay.
However, there is a considerable degree of uncertainty about the provision of the
improvements necessary to serve the Dibden Terminal. The SRA's aspiration to
provide the requisite train paths is by no means definite in terms of the timing, extent
and scope of the works, or their deliverability.
Dredging, Sediment and Erosion
Changes in the Inter-tidal and Sub-tidal Areas
4.251 The construction of the proposed Dibden Terminal, together with its berthing pocket
and approach channel, would directly affect about 128ha of inter-tidal and sub-tidal
habitat. Of this, some 42ha would be above MLW, forming part of the Solent and
Southampton Water SPA and Ramsar Site. A further 34ha would lie between MLW
and LAT; and 52ha would lie in the shallow sub-tidal zone, between LAT and the
existing deep-water navigation channel (CD/GEN/14A, Table 1).
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4.252 There would also be a reduction in the tidal range in Southampton Water. This would
result in a further reduction of about 3ha in the total area of exposed inter-tidal mudflats
(CD/GEN/14A, Table 2).
4.253 In the longer term, there would be further alterations to the extent of the inter-tidal area
in Southampton Water, as a result of changes in the pattern of erosion and deposition of
sediment consequent upon the development of the Dibden Terminal. Various attempts
have been made to model these effects. It has now been agreed with ABP and English
Nature that a figure of 10ha should be adopted, on a precautionary basis, to represent
the additional area that would be lost from the estuary's inter-tidal mudflats, over a
period of 50 years. There would be a commensurate gain in the area of the shallow
sub-tidal zone. The figure of 10ha is derived from the "ratio model", which assumes
that a fixed proportion (15%) of sub-tidal siltation in the estuary results from erosion of
the inter-tidal area (CD/GEN/14A, Table 4).
4.254 On this basis, over a 50-year period the overall loss of inter-tidal habitat would amount
to some 89ha, of which 45 ha would be above MLW and 44ha would be between MLW
and LAT. There would also be a net loss of about 39ha of shallow sub-tidal habitat.
4.255 This long-term change in the area of the estuary's inter-tidal zone can be apportioned
between Southampton Water and the Rivers Test, Itchen and Hamble. This implies that
there would be a small loss from the inter-tidal area of the Hamble Estuary as a longterm consequence of the proposed development. However, given the lack of
observational evidence, caution should be exercised in assessing the significance of this
change.
4.256 It has been estimated that about 4% of the alluvium dredged in the course of the
proposed development would escape into the water column (CD/ABP/44, Tables 8 and
9). When stiff clay, greensand and gravel are dredged, the loss of fine material will be
less. The total volume of alluvium to be dredged would exceed 5 million m3. It
follows that during each phase of dredging, some 70,000m3 of fines could be released
into suspension. The net effect would be that there would be elevated concentrations of
suspended sediment over the inter-tidal area. This could result in significant accretion
on mudflats and saltmarshes during the periods in question.
Offsetting Measures
4.257 ABP propose two measures which are intended to help offset the losses from the intertidal area. These are the construction of Dibden Creek; and the recharge of the
foreshore between Hythe and Cadland Creek with dredged sediment. It is accepted that
Dibden Creek would provide about 30ha of inter-tidal mudflat above MLW. ABP
predict that the recharge would increase the area of mudflat above MLW by about
19ha. So if both schemes work in the way intended, there would be a gain of about
4ha in the area of mudflat above MLW. On the other hand there would be a significant
loss of mudflat below MLW, amounting to some 63ha.
4.258 The Councils concur with English Nature's objection to the Hythe to Cadland recharge.
This would be a novel exercise. The volume of material to be deposited would be an
order of magnitude greater than that used in any other recharge scheme previously
attempted in the UK (or, as far as is known, elsewhere). The recharge would cover an
area of about 134ha. The risks attached to the scheme are therefore large. It is
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significant that the placed mud would thin towards the edges of the recharge area.
There is evidence that, in view of this, the effective area of the recharge could be up to
10ha less than planned.
4.259 Inevitably, the existing benthos would be smothered by the recharge. There would be
an immediate detrimental affect on the protected habitat. In addition, there is a risk that
the recharge would have an adverse effect on the adjacent saltmarsh, through siltation;
and on the cheniers, through interrupting the supply of cockle shells.
4.260 It is now proposed that the recharge material would be taken from depth on the Dibden
foreshore, rather than from the surface as originally intended. As a result, there would
be few, if any, benthic invertebrates transported to the recharge site. This would be
likely to affect the length of time needed to establish the requisite habitat for waterfowl.
4.261 ABP have yet to demonstrate that the recharge would work. The methodology to be
used would be contingent on the results of the proposed pilot exercise. It would take
some 6 months to place the mud in the pilot study, and a further 12 to 18 months to
assess the results. By that time Phase 1 of the Terminal construction would be nearing
completion.
4.262 The pilot scheme would itself constitute a large project that could adversely affect the
existing habitat (CD/ABP/93, Figure 2.5). There would be no opportunity for the
Secretary of State to assess how the recharge would work before authorising the
Dibden Terminal development.
4.263 The proposed methodology for the recharge has changed markedly since the
Environmental Statement was published. The proposed method of constructing the
containment barrier is untested. There is considerable uncertainty about ABP's ability
to construct a recharge of the size proposed in such a way as to provide a mudflat
surface that would function in a predictable manner.
4.264 A Government funded report on the Beneficial Use of Muddy Dredged Materials,
produced by consultants HR Wallingford, specifically identifies the proposed Dibden
Terminal development as a project that would entail the large-scale placement of mud.
It says:
Whilst lessons have been learned from smaller schemes that have been
implemented the relevance to larger schemes must be questioned. If the
method for containing the placed mud for a small scheme gave rise to concerns
during the construction process, as was the case at North Shotley .... surely the
same principles should give rise to concern for larger schemes? If different
methodologies are proposed for the new schemes what is the basis for
providing confidence that the scheme will function as proposed? The level of
risk and uncertainty associated with larger schemes based on our present
understanding is high and may be perceived as a barrier to implementation
(CD/ABP/106, pp27-28).
4.265 The recharge would therefore have an immediate adverse effect on existing habitat,
within a site that is subject to a number of national and international nature
conservation designations, in order to achieve uncertain and ill-defined long-term
benefits.
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4.266 One of the advantages claimed for the proposed recharge is that it would cap mud that
is contaminated with hydrocarbons that have been discharged in effluent from the
petro-chemical complex at Fawley. ABP assert that this contamination has an adverse
effect on the use of the foreshore by migratory waterfowl, and that the capping of the
mudflat with clean material would provide an ecological benefit.
4.267 However, the incidence of elevated levels of contamination on the Hythe to Cadland
foreshore is now known to be highly localised. Up to 70% of the mudflat in question
could reasonably be characterised as uncontaminated. It is doubtful whether the
capping of this area would offer any ecological advantage. The correlation between
contamination and low bird use (as asserted by ABP) is unproven.
4.268 If the recharge cannot be engineered in the way ABP intend, or fails to deliver the
ecological benefits they claim, no alternative offsetting measure is proposed. In the
circumstances, the Secretary of State cannot be sure that the coherence of Natura 2000
would be protected.
Nature Conservation
Appropriate Assessment
4.269 In his letter of 25 July 2001, setting out the matters about which he particularly wishes
to be informed, the Secretary of State seeks information about the likely effect of the
Dibden Terminal project on the Solent and Southampton Water SPA and Ramsar Site;
and on the Solent Maritime cSAC. He asks whether he should rely on the appropriate
assessment undertaken by ABP, which concluded that the Dibden Terminal project
would not adversely affect the integrity of these sites (CD/ABP/69). And if the answer
to that question is negative, he asks for information to help him to decide whether
compensatory measures are available to maintain the overall coherence of Natura 2000.
4.270 It is now common ground that no reliance can be placed on the result of ABP's
appropriate assessment. ABP are no longer able to assert that the proposed
development would not adversely affect any European site. It is therefore necessary to
consider whether adequate compensatory measures are available.
4.271 Consideration of this matter would in any event be necessary in applying Policy EC6 of
the Structure Plan to the proposed development. This places a burden on ABP to
demonstrate that sufficient provision would be made to offset the impact of the
proposed port development, "including replacement or substitution of habitats or
features lost ...." (CD/HCC/2).
ABP's Net Effect Approach
4.272 It is noteworthy that ABP rely on the evidence of a general ecologist, rather than on the
evidence of specialists in fields such as ornithology. Mr Colebourn's approach to the
impact of the proposed development is starkly at odds with that of the expert
ornithologists called by the County and District Councils, English Nature and the
RSPB. Nowhere, is that difference more clear-cut than in the assessment of the extent
to which the Dibden Terminal project would adversely affect the integrity of the SPA
and Ramsar Site. ABP have adopted a "net effect" approach to this question. This
proceeds on the basis that the destruction of functional habitat within, or adjacent to,
sites of international nature conservation importance, can be traded off against
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proposed habitat creation or improvement proposals (ie the Hythe to Cadland recharge,
Dibden Creek and the Church Farm Nature Conservation Area).
4.273 The "net effect" approach implies that, provided a project includes measures that would
offset any adverse impact on a European site, no restriction will be imposed on the
developer as a result of the Habitats Regulations. This would apply to any type of
project, regardless of whether it would serve a public interest.
4.274 For instance a marina development, which would lead to the destruction of protected
habitat, might be permitted to proceed as long as offsetting replacement habitat was
provided to accommodate the displaced birds. It would not be necessary to show that
the development would further any overriding public interest. Nor would it be
necessary to consider whether an alternative solution was available. The Councils
submit that such an approach would be contrary to one of the clear purposes of the
legislation, which is to protect designated habitat.
4.275 ABP's view that the replacement of habitat can mitigate the adverse effect of
development on an international site is contrary to the guidance given in paragraph
5.4.1 of Managing Natura 2000. This defines "mitigation" as "measures .... which aim
to minimise or even cancel the negative impacts on the site itself". The provision of
replacement habitat would neither avoid not reduce the loss of protected habitat. It
clearly constitutes compensation rather than mitigation, and cannot be taken into
account for the purposes of appropriate assessment under Regulation 48. However,
even if ABP's erroneous "net effect" approach is followed, it is still impossible to
maintain that the integrity of the international sites would not be adversely affected by
the Dibden Terminal development.
Compensatory Requirement for Waterfowl Habitat
4.276 If the Secretary of State considers that the Dibden Terminal project complies with the
criteria set out in Regulation 49, concerning the absence of alternative solutions and the
existence of an overriding public interest which tells in favour of the proposed
development, he must consider the requirement for compensatory measures. Given the
fundamental need to protect habitat, and the uncertainty of predicting the behaviour of
birds, the Councils have taken a habitat-based approach to the assessment of the
requisite compensatory measures (HCC/8/3).
4.277 The Councils share the opinion of English Nature and the RSPB that the proposed
Hythe to Cadland recharge would be damaging to the SPA, Ramsar Site and cSAC. It
would smother benthic fauna, deprive birds of a food resource, and threaten the
vegetation of the adjacent saltmarsh. Consequently the Councils do not consider that it
should be taken into account as a compensatory measure.
4.278 The proposed development would entail the destruction of 76ha of inter-tidal mudflat
and 52ha of shallow sub-tidal habitat. A further 13ha would be lost from the inter-tidal
area as a result of changes in tidal range and long-term erosion caused by this project
(CD/GEN/14A). However, this loss would be matched by a commensurate gain in the
shallow sub-tidal area.
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4.279 All of the lost habitat is functionally important to the SPA. While part of it is excluded
from the designated area, the administrative boundary of the SPA fails to reflect
ornithological considerations, and sub-divides an integrated habitat.
4.280 The proposed Dibden Creek would create about 31ha of inter-tidal mudflat and 1ha of
shallow sub-tidal by way of compensation. There is some uncertainty about how
successful the Creek would be in replicating the ecological function of the foreshore
mudflats that would be destroyed. However, on the assumption that it would be
effective, the net loss of marine habitat would be some 58ha of inter-tidal mudflat and
38ha of shallow sub-tidal.
4.281 If the Dibden Terminal project is to proceed, this habitat should be replaced on a like
for like basis. The new habitat should consist of a mixed-sediment open shore, capable
of functioning as a component of the Solent and Southampton Water SPA. It should
include both inter-tidal and shallow sub-tidal elements.
4.282 If there is a time lag between the Terminal development and the creation of the
replacement habitat, then additional habitat would be needed to compensate for this
factor. Similarly, if the replacement habitat is remote from Dibden Bay, there will be a
requirement for additional compensation, proportionate to the distance of displacement.
Additional compensation would also be required if the replacement habitat were of a
different character to the habitat destroyed, for instance in terms of its sediment type or
its location in relation to the estuary.
4.283 The precise requirement for compensation in terms of area would depend upon the
details of the timing, location and character of the habitat to be provided. However, as
a minimum, it is likely that a 25% margin should be allowed, over and above the
replacement of the area lost. This would imply an outstanding requirement for some
75ha of inter-tidal mudflat and 50ha of shallow sub-tidal habitat.
4.284 The destruction of habitat on the Dibden Reclaim would give rise to a further
requirement for compensation. This grassland is particularly important as a feeding
resource for Wigeon, particularly at night. Over 2,500 of these birds have been
observed using this site. They require wet grassland as a feeding habitat, but avoid
areas that are under shallow water. They favour sites that have an open landscape,
from which they can see potential predators over a considerable distance. They also
favour sites from which there is direct access to open water. A survey of the Dibden
Reclaim identified an area of about 71ha that is used by feeding Wigeon, as measured
by the distribution of their droppings.
4.285 The Reclaim also provides a habitat for substantial numbers of Teal. Its use by
breeding Lapwing is one of the reasons for its recent notification as a SSSI. It is also
used as a roost and feeding ground by sizeable populations Curlew, Shelduck and
Redshank; and possibly nocturnally by Snipe. Furthermore, the Reclaim is used as a
staging post by migrant birds in passage. These include Whimbrel, Black-tailed
Godwit and Ruff.
4.286 Taking account of the need for openness, a feeding ground capable of sustaining the
number of Wigeon that currently use the Reclaim would need to measure at least 90100ha (assuming a 50m wide buffer zone to provide visibility of potential predators
around an area of 71ha). If the replacement habitat were to be provided in a number of
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small sites, a greater area would be required to accommodate the buffer zone around
the perimeter of each site. As with marine habitat, an addition of at least 25% might be
needed to compensate for delay in provision, displacement from Dibden Bay, and
uncertainty as to the character of the habitat to be provided. On this basis, an area of
125ha may be needed.
4.287 In summary, the additional compensatory habitat required to maintain the coherence of
Natura 2000 is estimated as:

Shallow sub-tidal habitat

Inter-tidal mudflat
75ha

Open wet coastal grassland
125ha.
50ha
ABP's Approach to Compensatory Measures
4.288 ABP argue that a negative assessment under Regulation 48 does not necessarily imply
that compensatory measures would be required. However, the Birds Directive
emphasises the need to conserve the habitat of internationally important bird
populations. The conservation objectives for the SPA and the Ramsar Site, also refer to
the need to maintain habitat in favourable condition (CD/EN/7). It is for this reason
that the generally accepted method for assessing the adequacy of compensation is to
measure the extent of habitat that would be lost and seek replacement on a like for like
basis, making an appropriate allowance for such factors as delay, displacement and
uncertainty. This approach has been adopted by DEFRA (ABP/8/3, Appendix D).
There is evidence that it is also used elsewhere in Europe and the USA (Day 57, p155).
It would be extremely unfortunate if the Secretary of State were now to adopt some
different basis for assessing the compensatory measures required.
4.289 Even if ABP were right in their interpretation of Regulation 53 (and this is disputed)
their stance ignores the clear requirement for replacement habitat to be provided in
accordance with Policy EC6 of the Structure Plan. Their argument that no further
compensatory measures are required is untenable.
4.290 ABP's denial of the necessity of further compensatory measures is founded upon their
"functional approach" to ecological assessment. This has been criticised by both
English Nature and the RSPB. The Councils adopt the arguments advanced by those
bodies.
4.291 However, even within the context of the "functional approach" there are a number of
shortcomings in ABP's analysis. First, the Environment Agency's evidence (EA/2/5)
demonstrates that the Hythe to Cadland foreshore is not as contaminated as ABP
originally assumed. This seriously affects the degree of reliance that can be placed on
the recharge in offsetting the loss of habitat from the Dibden foreshore.
4.292 Second, there is inadequate evidence to support ABP's assumptions about the behaviour
of birds that would be displaced as a result of the Dibden Terminal development. A
precautionary approach is necessary. In his book The Ecology, Conservation and
History of the Solent, the late Colin Tubbs suggested that the area is nearing (or at) its
carrying capacity for wading birds (HCC/8/3, Appendix 3). There is little or no
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information about the effects of severe weather on the survival of waders wintering in
the SPA/Ramsar Site. However, the inter-tidal flats at Dibden Bay are currently
exploited by a large number of waders, who arrive immediately the mud is exposed and
feed at a high density. A loss of habitat here would be likely to increase mortality. It is
unlikely that other mudflats in the estuary would be able to provide a substitute feeding
resource for the displaced birds. Similar considerations apply to the loss of the shallow
sub-tidal shelf between the Dibden foreshore and the existing deep-water channel.
4.293 Third, ABP's reliance on the mean counts of birds (rather than the mean peak47 counts)
provides an unsatisfactory measure of the importance of the affected sites, and an
unsatisfactory basis for assessing the compensatory measures that would be required.
A useful analogy can be made with a London Underground station. A description of
the station in terms of its mean hourly use by passengers would fail properly to describe
its importance in the rush hour. If a replacement station were to be designed to
accommodate only the mean hourly number of passengers, serious problems could
reasonably be expected during peak periods.
4.294 Fourth, ABP are mistaken in their assumption that existing mudflats will have the
capacity to accommodate displaced birds as long as the mean density of occupation
remains below the peak density. The peak density is normally supported for only a
short period. It may not be possible for a mudflat to sustain so high a density for a
longer period, or more frequently. The feeding resource provided by a mudflat is
limited. It cannot be assumed that, because a mudflat sometimes supports a relatively
high density of feeding birds, it will be able to sustain an increase in the mean number
of feeding birds over an indefinite period.
4.295 Fifth, ABP argue that the wet grassland in the Church Farm Nature Conservation Area
could provide a habitat for a substantial number of the Wigeon displaced from the
Reclaim (ABP/0/81). However, only 13.5ha of new wet grassland is to be created.
This would be in a relatively enclosed landscape setting, which would be unattractive to
Wigeon and similar waterfowl (ABP/0/66D, Map 3). To the north, it would be
bounded by a tree-lined railway embankment. To the east, the planted perimeter bund
of the container port would rise above the grassland. To the south-east of the grassland,
electricity lines would cross the valley at the head of Dibden Creek. To the south-west,
there would be partly-wooded rising ground. In effect, the new wet grassland would be
within a sunken bowl. It cannot be relied upon to function in the way predicted by
ABP.
4.296 Sixth, ABP appear not to have considered the possibility that algal mats may form in
Dibden Creek. The Creek would be fed by the Marchwood Stream. The stream is
likely to be rich in nutrients, carrying the run-off from agricultural land. In such
circumstances, extensive algal mats can develop during the summer. These can give
rise to anaerobic conditions in the underlying mud, and can have a profound effect on
benthic fauna. Although the mats break up in the autumn, research has shown that the
affected mudflats remain unattractive to many waterfowl species, including Curlew,
Oystercatcher, Shelduck and Redshank.
47
The mean peak is the average of the peak counts taken in each year of a 5-year period.
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4.297 Seventh, ABP may particularly have over-estimated the use likely to be made of the
proposed Creek by Dunlin. These birds typically feed along the drying line, on the ebb
tide. Dibden Creek would be narrow, with most of its mudflat above MLW. The
drying line would move rapidly across the mudflat, so that the feeding niche for Dunlin
would be available for only a short period in each tidal cycle. It is difficult to
determine whether Dunlin would be attracted to the Creek for so limited a feeding
opportunity.
Other Features of Nature Conservation Interest
4.298 In addition to its adverse effect on waterfowl, the proposed development would damage
other features of nature conservation interest. These include the Hythe Marshes, which
are part of the Solent Maritime cSAC; the Dibden Reclaim and West Cliff Marshes,
which are within the Dibden Bay SSSI; and certain Sites of Importance for Nature
Conservation (SINCs) identified in the New Forest District Local Plan (CD/NFDC/1).
Additional SINCs are proposed for inclusion in the emerging First Alteration to that
plan (CD/NFDC/14).
The Hythe Marshes
4.299 The Spartina sward within the saltmarsh area between Hythe and Cadland Creek is
notable for both its biological and its historical interest. The Spartina anglica that
dominates the marshes arose through an evolutionary process that began in the 19th
century with the introduction to Southampton Water of a North American species,
Spartina alterniflora. This hybridised with the local species, Spartina maritima, to
produce a new infertile cordgrass, Spartina townsendii. Later, a new mutant, Spartina
anglica, arose from that hybridisation. This fertile species has spread vigorously across
Europe.
4.300 The evolutionary process that took place within Southampton Water makes the
Spartina swards between Hythe and Calshot, of particular significance. Undoubtedly,
they are a good example of this habitat type, which is listed in Annex I of the EU
Habitats Directive. The Spartina marshes of Southampton Water and the Solent are
among the most important in Europe. Their selection by English Nature for inclusion
within the cSAC is clearly merited.
4.301 The proposed recharge and the consequent sediment deposition would pose a threat to
the Spartina swards of the Hythe Marshes. In addition to Spartina swards, the
saltmarsh contains areas of Atlantic saltmeadow; and areas of Salicornia habitat. These
are also identified as interest features of the cSAC. Excessive sedimentation as a result
of the recharge would also put these botanical communities at risk.
4.302 The annual drift line vegetation is a further interest feature of the cSAC. The drift line
between Hythe and Cadland Creek is marked by cheniers, and provides the best
example of this unusual habitat in the Solent. The cheniers are potentially threatened
by the proposed recharge. Although the mechanism that maintains the cheniers is not
fully understood, it clearly requires a significant amount of wave energy to replenish
them with shells, and to maintain their disturbed condition. It is this that enables the
annuals that constitute the drift line community to recolonise the cheniers each spring.
Were the wave energy to be reduced by some barrier, it is possible that the cheniers
could become fossilised. They might then be colonised by sea couch grass, which
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would both reduce their intrinsic nature conservation value and their value as roosts for
birds which prefer to sit out in the open.
4.303 ABP have suggested that by dissipating wave energy, the recharge would reduce the
rate of saltmarsh erosion. However that would not be the entire picture, and the
potential negative effects should be taken into consideration as well. In the Councils'
view, the recharge would pose a threat to the integrity of the cSAC.
The Dibden Bay SSSI
4.304 The ornithological importance of the Dibden Reclaim has already been described.
However, that is not the limit of its nature conservation interest. Its botany and
entomology also merit consideration.
Botany
4.305 The most extensive vegetation types on the Reclaim are as follows:

saline influenced inundation grassland/saltmarsh mosaic;

wet grassland;

low lying pans and seepages, containing saltmarsh and swamp vegetation - these include
nationally scarce grasses such as Sea Barley (Hordium marinum), Annual Beard-grass
(Polypogon monspeliensis) and two species of saltmarsh grass (Puccinellia); and

dry grassland often forming a mosaic with bramble and other scrub.
4.306 This mosaic of saltmarsh and coastal grassland vegetation conforms to the definition of
the Annex I habitat "Atlantic saltmeadow" as agreed by the Nature Conservation Joint
Data Group. So far, the selection of examples of this habitat for inclusion in the Natura
2000 network has been confined to sites that are inundated by the tide. However, this
policy may change in the future.
4.307 The Environmental Statement has undervalued the vegetation of the Reclaim,
particularly its mosaic of vegetation types. Moreover, while the saline pools have been
given special prominence in the description of the Reclaim, their distribution is in fact
more widespread than is stated by ABP.
4.308 ABP have argued that, because there is no periodic seawater flooding, the Reclaim's
saline vegetation is unsustainable. However, a study carried out for the County Council
suggests that salinity levels in the soils will remain high. It may take decades for salt to
leach from the soil in sufficient quantity to affect the vegetation. Significant changes in
the character of the saline pan soils could take hundreds of years. Thus any changes to
the soil would take place very slowly. Changes in the pattern of vegetation would lag
behind changes in the soil.
Invertebrates
4.309 Four habitats within the Dibden Bay SSSI are of particular importance for
invertebrates. These are:

saline seepages near the seaward edge of the Reclaim;
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
a band of dry gravelly ground and banks along the seaward edge of the Reclaim;

seasonal saline pools near the rear of the Reclaim, the shallower of which dry in summer
to produce salt pans; and

a low bank which runs along the outer perimeter of the Reclaim.
4.310 A total of 21 nationally rare and 67 nationally scarce invertebrate species have been
recorded on the Reclaim. The aggregate number of notable species is greater than that
recorded at any of ten other sites of acknowledged nature conservation value along the
Solent. The invertebrates are fairly evenly distributed between the four habitat areas
identified above. They fall largely into three categories (HCC7/4, Table 1):

those restricted to saline wetlands;

wetland species tolerant of freshwater and saline wetlands; and

species associated with well-drained dry ground, either bare or with open-structured
vegetation.
4.311 Three of the recorded beetles (two ground beetles, Amara strenua and Anisodactylus
poeciloides, and a click beetle, Trixagus elateroides) have Red Data Book status. They
are largely dependent upon saline habitats. They have not been recorded elsewhere in
Hampshire or Dorset in recent years and are considered to be the species of highest
conservation value within the Dibden Bay SSSI. The snail-killing fly Psacadina
vittigera is also noteworthy.
4.312 Six species from the Reclaim and its boundary bank, including the ground beetles cited
above, are on lists of globally threatened/declining species in the Biodiversity Action
Plan. However, one of these species, the solitary bee Nomada ferruginata, has not
recently been seen on the Reclaim and is no longer being treated as a priority species.
4.313 ABP's survey of invertebrates for the Environmental Statement was deficient in several
respects:

the groups targeted for survey were unduly restricted in their range;

a disproportionate amount of effort was devoted to the survey of bees and wasps; and

in the evaluation of conservation interest, bees and wasps are given a higher value than
members of other groups with the same status.
4.314 As a result, undue importance is given to bees and wasps associated with the boundary
bank, relative to other habitats and other invertebrate groups. At the impact assessment
stage, bees and wasps were the only terrestrial invertebrates specifically considered by
ABP. Despite the presence of 15 nationally scarce species of water beetle, and the
recognition that some of the other fauna present are of high conservation value, the
assemblage of these species is assessed as being of low conservation importance.
ABP's impact assessment is, therefore, misleading.
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4.315 The notification of the Dibden Bay SSSI (HCC/6/3, Appendix 2) confirms that the
Reclaim provides habitat for a nationally important assemblage of invertebrates. ABP
concede that their proposals make no provision for the replacement of certain
invertebrate habitat features, such as the saline seepages. Whatever complaint ABP
may have about the designation of the SSSI, the designation process is now complete.
There can be no question that the Dibden Terminal proposals must be considered in the
light of that designation and the related policies.
Compensatory Measures for Invertebrate Habitat
4.316 The entire Reclaim area, and much of the boundary bank, would be destroyed by the
proposed development. The fauna associated with three of the main invertebrate
habitat areas would be eradicated. These areas are the saline seepages; the saline pools
and pans; and the dry gravelly ground and banks at the seaward edge of the Reclaim. A
proportion of the fauna associated with the boundary bank would also be lost.
4.317 To be effective, compensatory measures for invertebrates must ensure the provision of
the four important habitats identified above. ABP have concentrated on the provision
of habitat for bees and wasps. This would entail the retention of part of the existing
gravel bank at the rear of the Reclaim, coupled with the provision of gravelly "islands"
within the Church Farm Nature Conservation Area.
4.318 Saline pools and scrapes have been included within the habitat creation proposals, but it
is doubtful whether these would provide sufficient suitable habitat for all the species
living in the existing pools. The proposed pools would be flooded through tidal
inundation. However, the water beetle assemblage could not survive in anything
approaching full strength seawater. If the proposed pools were at such a concentration
for even part of the breeding season, they would not be suitable.
4.319 With the exception of parts of the dry bank at the rear of the Reclaim, the existing
invertebrate habitats (and their resident communities) would be destroyed before any
replacement habitat becomes available. There could be no guarantee that the relevant
species would colonise the new habitats after their extinction on the site. For that, it
would be essential for the new habitats to be created in advance of the development.
Sufficient time should be allowed to enable the new habitats to develop to a suitable
stage, and for it to be shown that they have been colonised by key species.
The Post Copse Complex
4.320 The Post Copse Complex SINC covers some 19ha (HCC/6/3, Appendix 1, Site 9). It is
composed mainly of ancient semi-natural woodland and mature secondary woodland.
It would be seriously fragmented by the proposed port access corridor, which would
directly destroy almost 3ha of woodland. Three small parcels of woodland, with an
aggregate area of under 2ha, would be left to the north of the corridor. Because of their
small size, and the indirect impact of passing road and rail traffic, there would be a
significant reduction in the biodiversity of these fragmented areas. To all intents and
purposes, they would no longer constitute functional woodland.
4.321 Less than 14ha of woodland would remain to the south of the access corridor. About
1ha of this would be within 30m of the proposed access corridor, and would be
significantly affected by traffic noise, disturbance, pollution and lighting. There would
be a loss of useable habitat for protected species of amphibians, bats and dormice.
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4.322 In their assessment of woodland loss, ABP have considered only the destruction of
woodland within the line of the proposed port access corridor. They have taken no
account of the indirect effect of construction activities or traffic; or of the fragmentation
that would result from the proposed works. They have considered the impacts upon
vegetation and birds independently, and have made no assessment of the effect on the
woodland ecosystem as a whole. The woodland planting proposed by ABP would be
inadequate to compensate for the damage caused by the loss of irreplaceable ancient
semi-natural woodland.
4.323 English Nature's national woodland advisor considers that approximately 3 to 5 times
the area of woodland lost should be replanted by way of compensation (HCC/6/20).
The Councils do not disagree. On this basis, between 19 and 32ha of replacement
woodland would be required. The new woodland should either be in a block of at least
20ha, or related to existing woodland so as to provide blocks of at least this size. These
requirements reflect the fact that new woods contain fewer species than established
woodlands; and large woods tend to contain more species than small woods.
Veal's Row Meadows
4.324 Veal's Row Meadows consists of two fields with a combined area of about 7ha. They
have been proposed for inclusion as SINCs in the emerging First Alteration of the New
Forest District Local Plan (HCC/6/3, Appendix 1, Sites 7 and 8). They meet the agreed
selection criteria; and include three national priority Biodiversity Action Plan (BAP)
habitats. These are:

neutral grassland (classed as MG5) with elements of semi-improved grassland (MG6);

unimproved lowland wet grassland (supporting a characteristic flora of MG12 and MG13
communities); and

wet woodland/scrub, containing naturally established willows (W1).
4.325 The access corridor would cut through Veal's Row Meadows (East). Although the
southern parts of the meadows would be included within the Church Farm Nature
Conservation Area, the impact would be serious. Unimproved wet grassland would be
destroyed; and changes to the hydrological regime would dramatically alter the plant
and invertebrate communities within this site.
Hythe Marina Mound
4.326 The Hythe Marina Mound is a bund created from dredged material. It covers an area of
just under 4ha and is proposed for inclusion as a SINC in the emerging First Alteration
of the New Forest District Local Plan (HCC/6/3, Appendix 1, Site 6). Seven notable
plant species have been recorded on this site, including the vulnerable Perennial Beardgrass (x Agropogon littoralis); the nationally scarce Annual Beard-grass (Polypogon
monspeliensis); and two nationally scarce species of Saltmarsh Grass (Puccinellia).
ABP's original scheme proposed the total reconstruction of the Marina Mound. Their
revised proposals would have a reduced effect on this feature. However, the impact on
notable plant species must be seen in the context of the loss of a similar assemblage of
plants from the Dibden Reclaim.
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Church Farm Fields
4.327 These two pockets of semi-improved and unimproved lowland wet grassland have a
combined area of about 0.8ha. They are proposed for inclusion as a SINC in the
emerging First Alteration of the New Forest District Local Plan (HCC/6/3, Appendix 1,
Site 5). They would be affected by the works to be carried out in connection with
Dibden Creek. At present, it is unclear where they would lie within the tidal frame
following the inundation of this area. Were they to be completely flooded, the impact
would be of significance.
The A326 Verges
4.328 Four areas of roadside verge along the A326 have been proposed for inclusion as
SINCs in the emerging First Alteration of the New Forest District Local Plan
(HCC/6/3, Appendix 1, Sites 10 to 13). However, one of these areas, between
Staplewood Lane and Twiggs Lane, has been damaged by engineering operations and
no longer qualifies for designation. The other areas would be damaged to varying
degrees by the road improvements now proposed by ABP.
Development and Management of the Church Farm Nature Conservation Area
4.329 The Church Farm Nature Conservation Area (including Dibden Creek) would
constitute a substantial habitat creation proposal. If the Dibden Terminal project is
approved, machinery will need to be established to secure the Councils' role in relation
to the development and management of this part of the scheme. As a minimum,
machinery would be needed to:

agree the content of a Habitat Management Plan for the nature conservation area, and
review that plan from time to time;

draw up and approve a schedule of works necessary to implement the plan;

certify the satisfactory completion of each area of habitat creation;

decide upon a management regime; and

secure that ABP provide the funds necessary to establish and maintain the nature
conservation area in perpetuity.
4.330 ABP's current proposals make provision for the Secretary of State to approve a plan for
the management and development of the Church Farm Nature Conservation Area
(CD/ABP/121, Article 32B). They do not precisely define the machinery for the
delivery of the nature conservation area, and leave arrangements for its long-term
maintenance uncertain. ABP's unilateral undertaking in respect of the nature
conservation area refers to arrangements whereby they would liaise with interested
nature conservation bodies. However, it contains no provision for the enforceable
supervision of the development and management of the nature conservation area by any
external agency.
4.331 ABP's obligation to fund the nature conservation area would be limited to a period of
40 years. This is unacceptable. In similar circumstances, the Welsh Development
Agency have undertaken to fund the Gwent Levels Nature Reserve in perpetuity
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(RSPB/0/22). There is no good reason why a similar obligation should not be required
in the present case.
4.332 In order to overcome these difficulties, the Councils propose that Schedule 3 of the
HRO should be modified to include new provisions relating to the Habitat Management
Plan. The terms of the proposed modification are set out in pages 3 to 5 of HCC/0/45.
They would prevent construction work on the Dibden Terminal from starting until a
Habitat Management Plan for the proposed nature conservation area has been submitted
to and approved by the County Council. Any dispute arising from the failure of the
Council to approve the plan would be resolved by the Secretary of State for the
Environment, Food and Rural Affairs. The proposed modification includes details of
the objectives of the plan. And it lists certain matters that the plan must incorporate.
These include provision for:

the timing of implementation of the plan;

monitoring habitat creation and its ecological results;

remedial action as required;

the periodic review of the plan;

liaison with relevant nature conservation bodies; and

funding by ABP in perpetuity.
4.333 The modification proposed by the Councils stands as an alternative to the modification
proposed by ABP through the introduction of Article 32B. It is suggested without
prejudice to the Councils' opposition to the Dibden Terminal project in general, and
their objection on nature conservation grounds in particular.
Land Access
Road Access
Capacity and Safety of A326
4.334 In June 2002, the County and District Councils, ABP and Defence Estates reached
agreement on the design and capacity of works to improve the A326 (ABP/10/16).
4.335 The agreement provides for ABP's proposals to be amended to provide an additional
one metre of carriageway widening to give a total carriageway width of 13m on the
single carriageway sections of the A32648. This additional widening would provide the
flexibility sought by the County and District Councils and allow the carriageway to be
laid out with two narrower lanes in each direction. It would also provide additional
safety enhancements over the scheme as originally promoted.
48
Revised drawings were subsequently submitted to New Forest District Council, to replace those
submitted with the original planning application (No 70243). The revised proposals were advertised on 24
October 2002.
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4.336 The Councils are satisfied that the revised scheme overcomes their objections in
principle relating to the highway design and capacity of the A326. However, it does
not overcome their objection to the road proposals on landscape grounds.
Conditions and Agreements
4.337 Three concerns nonetheless remain regarding undertakings offered by ABP in respect
of highways matters. The first relates to the need to ensure that the widening of
Ashurst Bridge is not unreasonably delayed by the need to acquire land from Railtrack.
The second concerns the contribution offered by ABP in respect of mitigation works to
offset the effects of increased closures of the Totton level crossing. The third concerns
the sums offered by ABP in respect of any mitigation measures that may be required to
discourage traffic from routing through Marchwood and the New Forest.
Ashurst Bridge
4.338 The agreed proposals for improvements to the A326 include widening of the section of
carriageway between Fletchwood Road and Foxhills/Cocklydown Lane49. This
requires works to widen Ashurst Bridge, where the road passes over the Bournemouth
to Southampton railway50. This, in turn, entails gaining control of land presently
owned by Railtrack.
4.339 Without the bridge widening, a "pinch point" would remain where the carriageway
would narrow from 11.0m (excluding the 1.0m edge strips) to 7.3m. This would be a
road traffic problem from the opening of the Terminal. When the agreement on
highway matters was concluded (ABP/10/16) it was envisaged that the bridge would be
widened as part of the "Phase 2 works", which ABP proposed to complete "within 6-12
months of the opening of the Terminal for freight traffic"51. Subsequently this was
relaxed, with the Councils' agreement, to within 2 years of the Terminal opening or
prior to bringing more than 1,000m of quay wall into use52.
4.340 Whilst these negotiations were taking place, the form of the option agreement shown to
the Councils provided for an option for ABP to purchase the land required to build the
bridge from Railtrack, at a price already fixed at the date of the option agreement. Such
a mechanism would have ensured that there would not have been any difficulties
regarding land acquisition as between ABP and Railtrack.
4.341 However, the draft option agreement subsequently produced set out a formula for
fixing the price (HCC/0/39, Appendix, Clause 4.1)53. Under this agreement, ABP
would be able to serve a Price Notice after planning permission was granted, but there
would be no obligation to serve an Option Notice. The agreement also provides that
the price would not be finally determined until judicial proceedings were exhausted
(ibid, Clause 4.8). This is a material change in the form of the option agreement.
49
See planning application 70243, drawings 1025/067C and 1065/068E.
50
See planning application 75359, drawings 1025/94 and 95.
51
See Draft Framework S278/38 Agreement Clause (i) (CD/ABP/95B, Tab 1).
52
See s106 Unilateral Undertaking, Part 2, Clause 2.1 (ABP/0/149).
The inquiry was advised by Railtrack’s agents on 11 Dec 2002 that an Agreement had been completed
between ABP and Railtrack (RT/0/1). However, that agreement was not put before the Inquiry.
53
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Dibden Bay Inquiry - Inspector's Report
4.342 The Councils accept that the agreement effectively gives ABP a choice. They could
either wait until the price is agreed, or, by virtue of clause 5.5, they could serve the
Option Notice prior to the price being determined, enter the land under licence, and
carry out the works in advance of the price being agreed.
4.343 The Councils do not seek to speculate as to ABP's likely course of conduct, faced with
such a choice and the risks inherent in the potentially complex valuation and legal
issues. However, the fact remains that on the face of the agreement ABP are not
obliged to exercise the option in advance of agreeing the price. The agreement of the
price could well take years to resolve. It could raise issues which might make ABP, or
their successor in title, extremely reluctant to exercise the option. The timing and
implementation of the Stage 2 works could thereby be threatened.
4.344 In the circumstances, the Councils submit that the land acquisition issue in relation to
the vital Ashurst Bridge widening works has not been satisfactorily resolved.
4.345 It is both reasonable and necessary to require certainty about the delivery of the agreed
A326 road proposals, prior to the commencement of development. This is reflected in
the Section 106 Agreement, which requires ABP to enter into a Section 278 Agreement
for the Stage 2 road works prior to occupation of the Terminal. The Stage 2 road works
include the Ashurst Bridge widening. However, if the Railtrack land is not secured
there would be no assurance that ABP would be in a position to carry out the works.
And there would be an unacceptable risk that the Councils would be faced with a
compromised highway solution, at a time when the Terminal was partly constructed.
4.346 Accordingly, the Councils submit that it is necessary to modify the Harbour Revision
Order to include a Grampian condition requiring ABP not to commence any
development until they have actually acquired the rights necessary to do the Ashurst
Bridge works. The form of the suggested condition is set out in HCC/0/45A/1.
4.347 The Councils also oppose in principle the inclusion of any provision which relaxes the
timetable if it is not "practicable or possible" to complete the Phase 2 works (HCC/0/41
and ABP/0/149, Unilateral Undertaking, Part 2, Clause 2.2).
Totton Level Crossing
4.348 Dibden Terminal would impact on Totton Town Centre in two main ways:

It would add traffic to the strategic road network "box" around Totton (the A35 to the
south, the A326 to the west, the M27 to the north and the M271 to the east) which may
encourage more traffic to pass through Totton.

Trains from Dibden Terminal passing over the Junction Road level crossing would
increase the number of crossing closures, and hence delays to vehicles and pedestrians at
the crossing.
4.349 Junction Road level crossing is a critical part of the access to central Totton for vehicles
and pedestrians. The increased closures due to trains from Dibden Terminal would add
to the current severance that exists between south and central Totton.
4.350 There is no issue between the Councils and ABP that a contribution should be made by
ABP to offset the effects of the increase in crossing closures. However, there is a large
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Dibden Bay Inquiry - Inspector's Report
measure of disagreement as to the amount. The County and District Councils originally
sought £1.5 million, (about 3% of the total projected cost of works proposed in the
Totton Town Centre Strategy (HCC 9/4, para 10.17)). That sum would have funded a
new or improved footpath/cycleway crossing of the railway. ABP have offered
£450,00054. The County and District Councils now seek a contribution of £2.5 million.
4.351 The justification for this stems from the increased severance that the additional crossing
closures would cause. The impact on the local environment and the efficiency of the
local transport infrastructure in the Totton area would be significant. The current
barrier down-time at the level crossing is already considerable and, when fully
operational, Dibden Terminal would result in an additional 44 trains per day passing
through Totton. It is agreed that down-time at the level crossing would be increased by
25%. On average the crossing would be closed to traffic for an additional 5minutes 37
seconds each hour.
4.352 There are three footbridges that cross the railway in Totton 55 but none are suitable for
people who are not able-bodied. The Junction Road level crossing provides the only
vehicular crossing of the railway between Redbridge (A35) and Ashurst (A326); and
the only crossing suitable for mobility impaired persons and cyclists. It is an essential
link between the communities in southern Totton and the central shopping and
commercial areas to the north of the railway.
4.353 ABP justify their offer of £450,000 on the basis that the Dibden Terminal would cause
an additional down-time of 25% at the Junction Road level crossing. They therefore
consider it appropriate that they should meet only 25% of the cost of improved crossing
arrangements that are currently being considered by the Councils. These would consist
of a new bridge at Junction Road and an upgraded footbridge at Brokenford Lane, at a
total cost of £1.8m (ABP/10/20).
4.354 The Councils do not accept ABP's logic (HCC/9/9 and Day 111, pp22-27). A 25%
increase in down time in a situation where down times are already unusually high
would have a disproportionately adverse effect on local amenity. The need for a
solution would be pressing. Provision of that solution is necessary to allow the
development to proceed, in accordance with Structure Plan Policy EC6.
4.355 Accordingly, the Councils submit that it is reasonable to expect a contribution from
ABP to overcome the severance effect. £2.5 million would cover the cost of a
pedestrian/cycle bridge at Junction Road, together with an allowance for connecting the
new bridge into the local network. This represents a necessary and appropriate solution
to the severance effects that the Dibden Terminal would cause in Totton. A part of a
bridge would not enable people to get across; and there is no certainty that other
funding will become available.
4.356 The full contribution should become payable by the opening of Phase I of the Terminal
or the completion of 1,000m of quay, whichever is the earlier (HCC/0/45).
54
See Section106 Unilateral Undertaking, Part 2, Clauses 1 and 3.1 (ABP/0/149).
55
These are at Brokenford Lane, Junction Road and Station Road (for location see map at TETC/1/4).
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Traffic Monitoring in Marchwood and the New Forest
4.357 It is agreed that ABP should fund traffic monitoring in Marchwood and the New Forest.
However, there remains an issue as to the sum to be paid for mitigation measures in the
event that monitoring shows that traffic routing through these areas has grown as a
result of the Dibden Terminal beyond the agreed trigger points identified in the
agreement.
4.358 The methodology and timescale of the monitoring is agreed 56.
establish:
Its purpose is to

whether there is an increase in through traffic in Marchwood village or the New Forest,
which can be directly attributed to increased congestion on the A326; and

whether any commercial traffic associated with Dibden Terminal is travelling through
Marchwood village or the New Forest.
4.359 The agreed methodology provides for continuous monitoring of the A326 traffic and
Terminal traffic, and one week counts on local roads every 3 years, at agreed locations.
If traffic growth on local roads is greater than background growth on the A326, detailed
surveys would be triggered to identify the need for mitigation measures. If these
surveys show that commercial traffic from the Terminal is travelling through
Marchwood or the New Forest, or that journey times on the A326 have deteriorated
beyond set levels, then mitigating measures would be put in place. These would be
designed and implemented by Hampshire County Council, at ABP's cost, up to a
specified sum.
4.360 The sums sought by the Councils are £250,000 for works within Marchwood and
£500,000 for works within the New Forest. In each case the sum is specified as a
maximum. The money would only be called in the event that the surveys show that
mitigation measures are necessary.
4.361 ABP's undertaking provides for a maximum of £150,000 for Marchwood, and £150,000
for the New Forest.
4.362 The sum sought by the Councils for Marchwood is based upon an assessment of the
likely types of traffic management and calming measures that might be required, and
experience of implementing such schemes elsewhere in Hampshire. Traffic from
Dibden Terminal could have a seriously adverse effect upon the local community. A
maximum sum of £250,000 is both entirely appropriate and reasonable.
4.363 The sum sought for the New Forest is justified because of the extensive area of highly
sensitive environment and the likely extent of measures to mitigate traffic impact
arising as a result of Dibden Terminal. It reflects the proximity of the New Forest to
the Terminal, its area, and its sensitivity and importance.
4.364 The sums offered by ABP would be inadequate to secure the traffic management and
calming measures that might be required.
56
See Section106 Unilateral Undertaking, Schedule 1 (ABP/0/149).
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Dibden Bay Inquiry - Inspector's Report
4.365 It is both appropriate and eminently reasonable for the Secretary of State to secure, at
this stage, a proper contribution figure, which would enable effective measures to be
put in place if problems should arise in the future.
Park and Ride
4.366 ABP seek to accommodate the impact of the development by introducing a "park and
ride" scheme to remove traffic from the A326. The Councils have no objection in
principle to the "park and ride". However, before introducing the scheme, the Councils
would wish to be reasonably confident that it would be sustainable in the medium term
(Day 69, pp55-64).
4.367 At present the situation regarding the "park and ride" is uncertain and, if it were
introduced today, it would probably not be successful. Its success would depend on
Southampton City Council changing their transport policies and introducing restraint
proposals to ensure bus transport is made more attractive and competitive. Policies are
moving in this direction and a study has been undertaken. However, at present there is
no clear timescale for the implementation of a "park and ride" service to and from
Southampton.
4.368 The package of measures agreed with ABP accordingly provides for the funding
required to support the "park and ride" service to be applied flexibly. If it were
concluded that "park and ride" would not be viable, then other measures could be
introduced. These could include improvements to the Hythe Ferry service.
Workboats
4.369 The Section 106 Agreement (ABP/0/149) requires ABP to produce a Port Travel Plan,
which would include provision for workboats to carry port employees between the
proposed Terminal and Southampton. The Councils are concerned that this matter may
fall outside the powers conferred by Section 106 of the Town and Country Planning
Act 1990, because the workboats would operate outside the land regulated by the
Agreement. To overcome any potential difficulty, the Councils consider that the
relevant obligation should be the subject of a new Article to be included in the HRO
(HCC/0/46)
Rail Access
4.370 ABP have assumed that, provided that there is no change in Government policy, the
SRA "...will apply funds to the works required" (ABP/5/16, para 5.8). Whilst it is
reasonable to expect money to be spent upgrading the network from Southampton, it is
not the case that all the works that would be required will necessarily be implemented,
either in the way envisaged by ABP or within the timescales as currently projected.
4.371 The differences between the SRA and ABP in terms of cost estimates and the capability
of proposed upgrades to the Southampton and West Midlands route are set out in
summary form by the SRA (SRA/1/3, Table). The SRA's general position is that they
cannot be committed to projects that do not pass the tests of practicality, value for
money and affordability. At the time the evidence was written, the SRA were "midway" through their detailed project formulation analysis and evaluation and were not
able to be categoric as to the outcome. ABP were not correct when they assumed that
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Dibden Bay Inquiry - Inspector's Report
the requisite analysis with respect to economic evaluation had been completed
(SRA/1/3, para 5).
4.372 Rail use of the Dibden Terminal would rely on the connection to the West Coast Main
Line, via Reading, Didcot and Leamington. As regards the network between Reading
and the West Coast Main Line, the SRA want to enhance both passenger and freight
movements in a scheme designed to deliver both functions. However, the major
infrastructure works identified as necessary to create a key freight route from
Southampton are still at an early assessment stage and will only progress if the
investment can be justified in rail business and economic terms.
4.373 A particular issue is the bottleneck on the network at Reading. It is common ground
that that additional works would be necessary at Reading to accommodate additional
freight trains. Whilst the works required there have not yet been defined, in the view of
the SRA, at least one, and possibly two, grade separated junctions will be required (Day
70, pp86-92). The SRA were not impressed with ABP's suggestions for flat junction
improvements at Reading, their witness saying (Day 70, p95):
We do not think that a flat junction would work either with current levels of
traffic or future levels of traffic, so we are building into all our research plans a
grade separated junction, plans for costing, for benefits and for signalling ....
Our research shows that in order to achieve what is necessary for the route
from Southampton to the West Coast Main Line a grade separated junction is
required at Reading.
4.374 ABP's proposed solution for Reading addresses simply the freight track issues.
However, the SRA need to produce a comprehensive solution at Reading to meet the
freight requirements generated from Southampton, other freight requirements,
passenger train movements and the need to replace the present signalling system which
is nearing the end of its useful life.
4.375 In their rail update note, ABP advise that they have re-run the Multirail pathing
exercise and submitted it to the SRA (ABP/5/23). The exercise is claimed to show that
an extra train in each direction can be accommodated along the route from Dibden
Terminal to the Midlands in each off-peak hour. The note states that the exercise is
based on the Winter 2002 timetable, which includes the additional Virgin Cross
Country passenger trains. However, it does not allow for future passenger train growth,
neither does it provide any guarantee about the timing of the required works at
Reading. It also remains the case that Railtrack (or more accurately their successor)
may insist on the grade separated junctions to meet their wider long-term aspirations
(Day 70, pp91-94). The SRA's response to the re-run pathing exercise is not reported.
4.376 If ABP were able to achieve the 35% modal split that they claim would be possible (or
even the more robust assumption of 25-30% advocated by the Councils' witness), the
Councils accept that the development would meet sustainable policy objectives.
However, achieving such a rate would be dependent, amongst other matters, on the
necessary infrastructure works at Reading and elsewhere being carried out.
4.377 It remains uncertain whether the number of freight paths required could in practice be
provided. If fewer paths were to be achieved, then the projected modal split of 35%
would not be met and a greater volume of containers would travel by road.
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Dibden Bay Inquiry - Inspector's Report
4.378 Given the variety of inherent uncertainties, and ABP's heavy reliance on their projected
modal split, the Councils propose that Article 3 of the HRO be modified as shown in
HCC/9/6B. The effect of this modification would be to restrict the length of the
proposed quay to 1,640m, until the Secretary of State has certified that the national rail
network has the capacity to accommodate at least 15% of the inland movement of
containers to and from the Terminal. This reflects the sensitivity testing of the highway
capacity, which was carried out assuming a minimum rail share of 15%.
4.379 ABP claim a considerable locational advantage in terms of national rail connections
and it is appropriate to impose a mechanism to ensure that this minimum assumption at
least can be physically delivered before the development is fully constructed. The
restriction proposed would achieve this. The justification for it is as follows:
(xv)
The ABP case draws heavily on the proposition that Dibden, as a
location, offers advantages in terms of its potential rail connections.
(xvi)
"Phase 3" of the development, which is effectively the phase which
would be prevented on the formulation used in HCC/9/6B, is environmentally
sensitive.
(xvii)
Should it in fact transpire that the national rail network is not capable
of delivering a 15% modal share, that aspect of the claimed locational advantages
will not have come about.
(xviii)
In those circumstances, it would be wrong to allow environmental
disadvantages to take place. An important point of the locational advantages, on
the basis of which the consent had been obtained, would have been falsified by
events.
4.380 Local rail access issues between Totton and the Terminal have been resolved and
agreed.
Landscape and Visual Impact
Landscape Character Assessment
4.381 The proposed development would have a significant impact on the landscape and on
visual amenity. There is no dispute that an assessment of the existing landscape
character of the area is necessary to provide a baseline against which to evaluate that
impact. Such an assessment should provide a measure of the sensitivity and value of
the landscape, and of its capacity to absorb change.
4.382 However, ABP's approach to landscape character assessment relies on a somewhat
limited and outdated methodology. It downplays the value of the existing landscape in
an attempt to reduce the apparent impact of the proposed development. For instance,
ABP rely heavily on visual assessment, and fail to take full account of historic and
ecological interests. As a result they do not consider landscape character in an
integrated way. This is a grave deficiency when dealing with the landscape of the New
Forest, which has a particular sensitivity and value.
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The LUC Report and the New Forest District Landscape Character Assessment
4.383 ABP have used a 1991 report produced by Land Use Consultants (LUC) to inform their
landscape character assessment (CD/HCC/16). That report was commissioned by the
New Forest Committee (NFC) for a specific purpose - to define a revised boundary for
the New Forest Heritage Area. It was never intended systematically to assess the
landscape character of the entire District. LUC's brief was to "incorporate the
minimum area of land beyond the open forest which is essential to protect important
open forest landscapes in the long term".
4.384 The LUC Report was very useful in its day. The Councils do not seek to discredit it, as
ABP imply. Indeed the District Council have utilised it on a number of occasions in
connection with the preparation of Local Plans.
4.385 However, the LUC Report pre-dates the Countryside Commission's Landscape
Assessment Guidance of 1993 (CD/CA/11); the Countryside Agency's Interim
Landscape Character Assessment Guidance of 1999 (CD/CA/1); and the same body's
more recent Landscape Character Assessment Guidance for England and Scotland
(CD/CA/1A). The current guidance emphasises the distinction that should be made
between landscape types and landscape character areas. The LUC Report fails to
reflect that distinction.
4.386 The New Forest District Landscape Character Assessment was published by the
District and County Councils, the Countryside Agency and English Heritage in July
2000 (CD/HCC/15). It was prepared for them by Environmental Resources
Management (ERM).
It takes account of the up-to-date guidance on landscape
assessment, a point conceded by ABP's witness, Mr Kelly (Day 75, p172). It
constitutes the most recent, comprehensive and relevant source of reference about the
landscape of New Forest District, and has been adopted by the local planning authority
as supplementary planning guidance. It provides the basis for the Councils' Baseline
Landscape Assessment for Dibden Bay (NFDC/7/3).
4.387 ABP claim that the New Forest District Landscape Character Assessment does not
always acknowledge the landscape influences from the other side of the estuary.
However, there are clear references in its descriptions of the local landscape types,
character areas and settlements, to their estuarine setting and the presence of
Southampton.
Landscape Character of the Dibden Reclaim
4.388 There are major differences between the Councils' baseline assessment and the baseline
assessment produced by ABP, particularly with regard to the Dibden Reclaim. In line
with the LUC Report, ABP's assessment categorises the Reclaim as being within the
"Urban Fringe Coastlands". It states that:
The proposed Terminal site comes entirely within the Urban Fringe
Coastlands, along with Fawley, Fawley Oil Refinery and Power Station,
Fawley Petrochemical Complex, Hythe, Marchwood, Marchwood Military
Port, Husbands Shipyard and the site of the former Marchwood Power Station.
This landscape type, and thus these areas, occur outside the NFHA as a result
of the strong urban fringe influences giving a generally developed and
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frequently degraded character and therefore not meeting the criteria for
inclusion within the New Forest (TS/LV1, para 7.78).
4.389 However, the character and nature of the Dibden site is very different to that of all the
industrial and residential areas cited. Furthermore, ABP accept that the Dibden
Reclaim is neither developed nor degraded (Day 75, p167).
Landscape Type and Landscape Character Area
4.390 The New Forest District Landscape Character Assessment shows the Reclaim to be part
of the "Coastal Fringe" landscape type. This is characterised as:
A large scale, flat, open landscape with wide views and a quiet, but exposed
and bleak, character. Saltmarsh, shingle beaches, muddy creeks, grazing
marshes and coastal woodlands are features, supporting waders, wildfowl and
other birds. .... Wooded skylines form a backdrop and contrast to the open
shoreline (CD/HCC/15, p18).
4.391 The New Forest District Landscape Character Assessment places the Dibden Reclaim
in the Waterside Parishes Landscape Character Area (LCA). The description of this
area includes the following:
Although views inland are restricted, the coastal edge is open in character and
allows clear views out across Southampton Water, and conversely, from the
edge of Southampton towards the Waterside Parishes. There are few areas of
undeveloped coast; those remaining at Eling Creek, Dibden Bay and Cadland
Creek provide important historic and visual links between Forest and water.
The exposed coastal edge is highly visible, and is also particularly rich in
nature conservation designations. The saltmarshes and inter-tidal mudflats
carry SSSI, SPA and SAC designations ..... There is a large SINC between
Hythe and Marchwood (CD/HCC/15, p55).
4.392 The Waterside Parishes LCA includes a diversity of landscape types, including areas of
heavy industry as well as areas of coastal fringe (CD/HCC/15, Figure 8). Among its
key characteristics are:

the open coastal edge with inter-tidal mud and expansive views across to Southampton;

major infrastructure, including the A326;

tall vertical elements such as electricity pylons, oil refinery chimneys and the stack of
Fawley Power Station; and

high density development, including residential estates, industrial parks, military ports,
docks and urban fringe activities.
However, there is no implication that each of these features would be in character in
every part of the Waterside Parishes LCA. Such an approach would subvert the
landscape assessment process, the purpose of which is to ascribe a character to an
aggregation of existing land uses and landscape types (CD/CA/1A, Chapter 2). It is
not a function of the process to encourage a proliferation of certain existing key
characteristics throughout an area, regardless of their visual merit.
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Attributes of the Dibden Reclaim
4.393 The flat, open nature of the Reclaim is a landscape asset. Despite its location in the
Waterside Parishes LCA, the Reclaim is not dominated by road and rail infrastructure,
tall vertical structures or other built development. It provides a strong visual link
between the New Forest and the estuary, thereby contributing to landscape character
and quality. This function is explicitly recognised in the New Forest District
Landscape Character Assessment (CD/HCC/15, pages 54-5). The site's proximity to
the New Forest and the environmental sensitivity of its water frontage are also
emphasised in the District Council's non-statutory Coastal Management Plan
(CD/NFDC/4, para C11.14).
4.394 The Reclaim is an attractive waterside area. It provides a sense of open space and
tranquillity. Rather than being dominated by urban development, it has a simple and
pleasing rural aspect, which enhances the settings of Hythe, the Marina Village,
Marchwood and Southampton. Its man-made nature has little relevance to its
landscape value. Most landscape is man-made. That does not of itself render open
land suitable for development. The Reclaim is mostly rough pasture. It has developed
a ground flora of some biological significance.
4.395 Its formal nature conservation designations confirm that the Reclaim is of increasing
ecological importance. The latest national guidance on landscape character assessment
stresses the importance of ecological considerations (CD/CA/1/A, Box 7.4). Thus the
Reclaim's ecological characteristics are a part of its landscape character; and their
presence contributes to its rating.
4.396 The Reclaim is part of a varied coastal landscape. To the east, it is separated from the
urban area of Southampton by a substantial body of open water (NFDC/7/4, Appendix
3, Photographs NW-A1 to NW-A8).
4.397 To the west, the Reclaim is bounded by an area of mainly pasture and woodland. Here
the land rises towards the New Forest Core. The inclusion of the Reclaim within the
designated area of the New Forest National Park underlines the obvious landscape
connections between the New Forest and the coast at this point. This reflects a wellestablished historic link.
4.398 There is a degree of enclosure to the south and north of the Reclaim. However, the
open area of the Reclaim helps to maintain the separate identities of Hythe and
Marchwood. About 30% of the strategic gap between these settlements would be lost
as a result of the proposed development. In views from the east, there would be a
perception of urban coalescence. Furthermore, the visual link between Southampton
and the New Forest would be severed.
4.399 In views from the west, the gap between Hythe and Marchwood would appear to
diminish by varying degrees, according to the location of the viewpoint. The effect
would be to bring major port development across the estuary and closer to the New
Forest. There would be a perception that the link between the New Forest and the
estuary had been severed; and a perception of increased coalescence.
4.400 In the Councils' baseline assessment, the Reclaim is sub-divided into three local
landscape character areas - Dibden Bay; the Dibden Inter-tidal; and the Dibden
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Lagoons (NFDC/7/3, Figure 16, and pp43-51). This provides a far more accurate
description than ABP's classification of the site as "River Test Urban Coastal Fringe"
(TS/LV1, pp60-61). The classification of the site as "urban" is wrong and plainly
overstates the influence of distant development on this open, grazing land.
Landscape Character of Southampton Water and Southampton City
4.401 There is no dispute that Southampton Water has a varied character. This is amply
demonstrated by aerial photography, and by photographs of the shoreline (NFDC/7/4,
Appendix 3). The undeveloped shoreline amounts to about 40% of the total
(NFDC/7/13). There are also areas of docks, heavy industry and urban waterfront.
Some of the development on the coast benefits from either a wooded backcloth, or from
trees along the shoreline, resulting in a far softer character than is typical of a city
waterfront.
4.402 The height of existing structures around the estuary provides a useful guide to the
potential impact of the proposed development (ABP/12/7, Appendix 6). The 20
quayside cranes proposed at the Dibden Terminal could have a height of up to 120m
AOD. The only existing structures near Southampton Water that are more than 100m
tall are the ship-to-shore cranes at the Southampton Container Terminal (up to 106m
high); the flare stacks at the Fawley Refinery (up to 137m high); and the Fawley Power
Station chimney (some 200m high).
4.403 The western side of Southampton Water is still semi-rural, particularly to the north of
the Fawley Refinery. It has a lower proportion of hard waterfront and more wooded
coastline than the eastern shore. Typically, its settlements are small, with low-rise,
low-density buildings; low levels of illumination at night; and strong landscape
frameworks. Traditionally the New Forest came right down to the shoreline. The
photographs that illustrate these points (NFDC/7/4, Appendix 3) are not misleading,
despite ABP's assertion to the contrary. They are selected merely to rebut ABP's claim
that the estuary's shoreline is developed, a point that is also contradicted by their own
illustrations (ABP/12/7, Appendix 2).
4.404 The Councils do not dispute that there is large-scale development at places around the
estuary, particularly in Southampton and at Fawley. But that existing large-scale
development would not provide the immediate context for the proposed Dibden
Terminal.
4.405 The potential impact of the proposed development is strikingly demonstrated in the
aerial photograph and photomontage produced by ABP (ABP/12/7, Appendix 2,
Figures 1 and 2). These graphically show:

the scale of the potential loss of undeveloped land in the context of the estuary; and

the value of the Dibden site as an open link between the New Forest and Southampton
Water.
4.406 The Dibden site forms part of the landscape setting of Southampton. The Southampton
City Council have produced a City Centre Urban Design Strategy, which plainly states
that the views across open water are one of the four main components that dominate the
urban grain of Southampton's waterfront (CD/SCC/11, p69). The diagrams (on pages
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24, 36, 42 and 68) and photographs (on pages 43 and 47) clearly show a view of
strategic importance from the City Centre towards the Dibden Reclaim. The text,
immediately above a photograph showing the view down Bugle Street towards the
western shore, refers to:
Protecting existing views and developing spaces around appropriate
viewpoints as a means to experience and interpret the city (CD/SCC/11, p43).
4.407 Structure Plan Policies C4, C5 and E16 (CD/HCC/2) require such views to be taken
into account. People standing on the Southampton waterfront and looking across to the
Dibden site currently see an open shore with a backcloth of trees, at the edge of the
New Forest. This would be substantially altered by the proposed Dibden Terminal.
4.408 ABP and the City Council have adopted a rather disingenuous approach to the City
Centre Urban Design Strategy. While there is no explicit reference to the views of the
western shore from the Southampton waterfront, the Strategy plainly aims, implicitly,
to preserve and enhance such views.
Landscape Character of the New Forest Heritage Area
4.409 The New Forest Heritage Area extends up to the western edge of the Dibden Reclaim
(the former shoreline). In the New Forest District Landscape Character Assessment,
the pastures and woodlands immediately to the west of the Reclaim are included within
the Hythe and Ashurst Forest Farmlands LCA (CD/HCC/15, Figure 7). The key
characteristics of this area include:

settled farmland on the edge of the forest heaths, with large copses and some wood
pasture;

small-medium scale pastures bordered by hedgerows with hedgerow trees;

major infrastructure, including the A326 and the Totton to Fawley railway line; and

short views, usually to the next field boundary or woodland edge (CD/HCC/15, p52).
4.410 The proposed port access corridor would cut through the New Forest Heritage Area
from the A326 to the Dibden Reclaim, a distance of approximately 1.3km. Its
provision would entail the diversion of Hythe Road; the formation of a new junction on
the A326; and the erection of bridges, underpasses, embankments, cuttings and
retaining structures. In addition, land would be developed to provide the proposed
"park and ride" site. The port access road would be 10m wide, plus 3m for a footpathcum-cycleway. The port access road and the "park and ride" would be lit at night. The
total area covered by the access corridor and the "park and ride" would be about 22ha.
The whole of that area is within the NFHA and forms part of the strategic gap between
Hythe and Marchwood.
4.411 The existing field patterns would be disturbed, and there would be a loss of over 4ha of
woodland from the Post Copse Complex. This would include irreplaceable seminatural ancient woodland, the loss of which could not be mitigated, a point conceded by
ABP (Day 75, p162). The access proposals would constitute a serious disturbance to
the countryside.
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4.412 A location partly within the New Forest Heritage Area, and wholly within the
designated boundary of the New Forest National Park, is plainly not ideal for largescale port industry. ABP have allowed themselves to be drawn to the opposite
conclusion by the subjectivity of their own assessments. The Dibden site is simply a
low-lying area of coastal land; it is not located in a natural depression as ABP contend.
The proposed Terminal would not be contained by the landform. It would be highly
visible from parts of the New Forest Heritage Area; and would be seen to sever the link
between the New Forest and the estuary.
A326 Improvements
4.413 The proposed improvements to the A326 would also affect the New Forest Heritage
Area. They would include carriageway widening, and the introduction of traffic signals
and street lighting. ABP have produced schematic drawings of the proposed
landscaping of these improvements (ABP/0/102 and 102/A). These fail to provide
answers to some important questions. The outstanding issues include whether existing
trees would be lost or damaged; whether there would be sufficient space for contractors'
plant to operate; whether there would be room to replant trees at particular locations;
and whether changes to the drainage pattern would have an adverse effect on
vegetation.
4.414 ABP intend that the precise impact of their proposed highway improvements should be
considered in a more detailed survey, with detailed questions of landscaping resolved in
conjunction with the highway authority. However, the provision of detailed
landscaping plans is particularly important because of the urbanising effect that the
proposed highway improvements would have on the New Forest Heritage Area.
Paragraph 4.5 of PPG7 requires that proposed development within this area should be
subject to "the most rigorous examination"; and that construction "should be carried out
to high environmental standards". It is vital to be sure that the mitigation measures
promoted by ABP can, in fact, be achieved as claimed.
4.415 The Councils submit that ABP have provided insufficient detail for the Secretary of
State to be sure on this point. While the Section 106 Agreement provides for more
detailed work to be undertaken in due course, there can be no certainty about the
effectiveness of the proposed landscaping measures. For the avoidance of doubt, while
the Councils acknowledge that the revised road access proposals overcome their
objection to the Dibden Terminal project on highway grounds, this is without prejudice
to their case on landscape and visual impact.
Visual Impacts
The Councils' Methodology
4.416 The Councils' assessment of the visual impact of the proposed Terminal is set out in
tabular form in Appendix 2 of NFDC/7/7. Daytime impacts are shown in Table 1, and
night-time impacts in Table 2. The analysis includes assessments of impact during
construction; on completion of the Terminal; and 15 years after the Terminal's opening.
The locations of the receptors described are shown in Figures 5A to 8A of NFDC/7/8.
4.417 The assessment reflects the results of the balloon flight, which was made in May 2002,
in accordance with a specification agreed by the Landscape and Visual Impact JDG.
The purpose of this flight was to help gauge the effect of the proposed quayside cranes.
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4.418 The methodology of the assessment is explained in Appendix 5 of NFDC/7/5. The
sensitivity of the receptors and the magnitude of change are evaluated to give a 5-level
indicator of impact. The levels are:

substantial;

moderate/substantial;

moderate;

slight; and

insignificant.
4.419 ABP have suggested that the inclusion of a split "moderate/substantial" category of
impact tends generally to inflate the degree significance and is unwarranted. However,
the alternative would have been for the impact of a change of medium magnitude on a
receptor of high sensitivity to be rated as "substantial" rather than
"moderate/substantial". It is noteworthy that one of the examples cited in the latest
Guidelines for Landscape and Visual Impact Assessment includes split impact levels
(CD/IEA/2A, Appendix 6, Example 5). If there is any doubt about the level of impact
on a particular receptor, the impact has been categorised at the lower level.
4.420 The revised assessment focuses on the predicted impacts of the development, and so its
final output does not specify receptors or viewpoints where there would be no impact.
This accords with the latest Guidelines for Landscape and Visual Impact Assessment
produced by the Landscape Institute and the Institute of Environmental Management
and Assessment (CD/IEA/2A, paragraph 7.51).
4.421 Whilst it may not be a normal function of the development control system to protect
views from individual properties, the latest guidance indicates that effects on residential
properties are relevant. It provides that occupiers of such properties may be amongst
the most sensitive receptors of visual impacts (CD/IEA/2A, paragraph 7.32). The line
taken in the Councils' impact assessment is to consider groups of such properties as
receptors.
4.422 It is certainly not accepted that the predicted impact at Pepperbox Hill (NFDC/7/7,
Appendix 2, p24) should be regarded as any kind of benchmark, as asserted by ABP.
Indeed it is agreed that the impact in most views over 10km from the centre of the
Terminal site would be insignificant. However, it is noteworthy that the quayside
cranes would be clearly visible from Pepperbox Hill alongside the existing cranes at the
Southampton Container Terminal, across a distance of over 20km.
4.423 The May 2002 balloon flights have facilitated the production of photomontages
illustrating the visual impact of the proposed development from a variety of public and
private viewpoints (NFDC/7/8, NW-P1a to NW-P16). Photographs have also been
produced to show the positions of the balloons, which simulated the height of the
proposed quayside cranes in the centre and at either end of the proposed quay
(NFDC/7/8, Views A to Z57). All of the Councils' assessments have assumed that the
57
The captions of Views Y and Z in NFDC/7/8 have been transposed in error.
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tops of the quayside cranes would be at a height of 113.25m AOD. It follows that
every impact that has been assessed would be slightly greater if cranes with a height of
120m AOD were to be installed, as provided for in the filled-up HRO (CD/ABP/121).
The Councils' photomontages show either 7 or 9 crane booms in the upright position,
whereas ABP's photomontages show only 6 booms upright (NFDC/7/10).
4.424 The Councils have made separate assessments of the landscape and visual impacts of
ABP's road and rail proposals. These are respectively contained in Appendices 7 and 8
of NFDC/7/5.
ABP's Methodology
4.425 ABP have not produced detailed tables setting out the visual impact that the proposed
development would have on sensitive receptors. Rather they rely on the assertions
contained in Figures 3a to 6a of ABP/12/7, which are unsupported by evidence of the
methodology used to derive the impact shown. While ABP's witness, Mr Kelly,
referred to "some very substantial research .... which has been undertaken over a long
period of time" (Day 75, p31) no details of this were produced.
4.426 The Landscape Institute and the Institute of Environmental Assessment have given the
following guidance:
Charts and tables tend to be under-used in landscape and visual impact
assessment. They can be effective, especially for summarising data on
landscape and visual sensitivity, impact magnitude and impact significance.
They permit ready comparison between different scheme options and types of
impact, and this can be valuable, especially in the early stages of planning and
design. In addition, they are probably the best way of making complex
information more accessible to consultees and the public. They must be
prepared carefully and consistently, as they may often be subject to close
scrutiny by decision makers (CD/IEA/2, paragraph 3.80 - similar advice is in
CD/IEA/2A at paragraph 8.9).
Without presentation of the supporting data and an explanation of the methodology
used, Figures 3a to 6a of ABP/12/7 are of limited value.
4.427 ABP have not shown that their viewpoints were systematically chosen, so as to be fully
representative of the landscape and visual effects of the proposals. Furthermore, their
"landscape assessment areas" (TS/LV2, Figure 27) have been very loosely drawn, so
that it is often difficult to tell within which area, if any, a particular location falls.
Nevertheless it is clear that the Terminal site itself is not in any assessment area. This
has led ABP to under-estimate impacts on the site itself.
4.428 The Environmental Statement contains only 6 daytime and 6 night-time
photomontages. This is a surprisingly small number for so large a scheme in such an
environmentally sensitive location. ABP's photomontages are not representative of the
full range of locations at which the most significant impacts of the proposed
development are likely to be experienced. Some of the photomontages span unusually
wide panoramas, well in excess of the normal field of vision for the human eye. As a
result, the images of the proposed Terminal have been compressed. The chosen format
has reduced the apparent scale of the potential visual change.
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Review of Photomontages
4.429 ABP have made a number of criticisms of the Councils' photomontages. Among other
things they have suggested that the Councils have exaggerated the height of the
container stack, and the number of gantry cranes. They have also incorrectly asserted
that the Councils have used "zoomed in" views in photomontages.
4.430 A detailed technical review of all the photomontages prepared by ABP and the
Councils has now been completed by the relevant Joint Data Group (CD/GEN/19B,
Appendix 12). The following points arise:

The digital wireline model used in the Councils' photomontages was supplied by ABP's
consultant and was not altered. No cranes, stacks or other plant were added.

Several of ABP's criticisms of the Councils' photomontages apply equally to ABP's own
photomontages. For instance, both parties use images from a photographic library that
show cranes with fluorescent markings at the tips of their booms, whereas the proposed
quay cranes would apparently not have such markings. Similarly, both parties
erroneously show containers stacked more than 3 high in some of their photomontages.
In none of these instances does the error have any material effect on the conclusions
drawn.

The heights of the quayside cranes are correctly shown in all instances.

In no case is the number of gantry cranes shown greater than the number in the wireline
model.

The only significant defect in the Councils' photomontages is the omission of the
landscaped Terminal bund from Photomontage NW-P7 (the view from Dibden Golf
Course). ABP's photomontage from the same location depicts the bund, which would
screen the container stack (TS/LV2, Photo P9).
Population Affected
4.431 About 345,000 residents live within 10km of the Dibden Terminal site (NFDC/7/4,
Figure 1). They would be likely to experience the visual impact of the proposed
development. A composite map of the Zone of Visual Influence of the cranes within a
15km radius was prepared prior to the latest balloon flights (NFDC/7/4, Figure 9). The
upper parts of the quayside cranes would be visible over a considerable area, while the
full height of these structures would be visible from many parts of Southampton and the
Waterside settlements.
4.432 Furthermore the full visual impact of the proposed Terminal would be apparent from
Southampton Water. In 2000, over 3 million ferry passengers and about 330,000
cruise-ship passengers sailed past the Dibden Reclaim. In addition to recreational
sailors, the proposed Terminal would also be seen by a proportion of approximately 7
million annual visitors to the New Forest.
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Impact of the Proposed Terminal
Views from Southampton
4.433 There is no dispute that the proposed Terminal would have a substantial adverse impact
generally in views from the east. The effect is demonstrated in the Councils'
photomontages (NFDC/7/8). Photomontage NW-P13 shows how the existing view of
the New Forest from Southampton's Town Quay would be obliterated, and replaced by
an unrestricted view of the Terminal. The adverse effect could not be mitigated. There
would be a similar impact on the view from the City Walls, across Mayflower Park and
the River Test, towards the New Forest. This view from the Old Town Conservation
Area is shown in Photomontage NW-P5.
4.434 Photomontage NW-P14 shows an elevated view from the fifth floor of the De Vere
Grand Harbour Hotel in Southampton. Although not a public viewpoint, there are
many rooms in this hotel and the neighbouring Holiday Inn with a similar outlook. The
character of this central location would be adversely affected. The wooded backdrop to
Southampton Water would be obscured by a view of a working container port.
Photomontage NW-P12 shows a similar effect from the top level of the public, multistorey car park, attached to the West Quay Shopping Centre.
4.435 Photomontage NW-P11 shows the view from the Itchen Bridge (which is part of the
Solent Way long distance footpath). At present the prospect across Southampton Water
towards the New Forest Valleyside forms part of the city's setting. This would be
replaced by an industrial skyline, dominated by cranes.
4.436 The harm would not be confined to views from Southampton's historic waterfront. For
instance, there would be an impact on the view from the residential tower blocks in
Weston; and on the neighbouring stretch of the Solent Way, about 2.8km south-east of
the proposed Terminal (NFDC/7/7, Appendix 2, Nos 5S and 5R; and NFDC/7/8,
Photomontage NW- P6). The development would also have a moderate adverse effect
as far north as the Southampton General Hospital (No 10A); and to the south-east,
beyond the city boundary, at the Royal Victoria Country Park (No. 10K). The claim
that these impacts would be acceptable to Southampton residents is not easy to
reconcile with the objection from the Southampton Federation of Residents'
Associations.
Views from Hythe
4.437 The Hythe waterfront is of notable landscape character and quality. The Pier and
Promenade are both in the Hythe Conservation Area (CD/NFDC/1, Local Plan
Proposals Map insets 2 and 2A). Although ABP's impact assessment concludes that the
Dibden Terminal would have a substantial adverse impact on the seaward end of Hythe
Pier (ABP/12/7, Figure 3a) this is not mentioned in the Environmental Statement.
Photomontage NW-P1a (NFDC/7/8) shows the predicted impact on this historic
landmark, which is one of the principal gateways to the New Forest. There would, of
course, be similar impacts in the view from the Hythe Ferry and other waterborne
traffic. Photographs W and Y in ABP/12/9, which show the positions of balloons
flown to simulate the height of the proposed quayside cranes, were taken from the route
of the Hythe Ferry.
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4.438 ABP seem to consider that the impact of the completed Terminal on Hythe Promenade
would be insignificant, but this is not so. Photomontage NW-P8 (NFDC/7/8) shows the
scene looking northwards from the Promenade towards Hythe Pier and Hythe Marina
Village. The sensitivity of the view from this part of the Conservation Area, to which
there is public access, is obvious. So is the magnitude of the change that would take
place, with the quay cranes towering above the roofs of Hythe Marina Village. The
Local Plan recognises that the Promenade is in need of some improvement
(CD/NFDC/1, paragraphs F17.11, 16 & 19, and 42-44). However, this cannot be a
reason for downgrading its sensitivity as a receptor. Supplementary Planning Guidance
for the Hythe Waterfront aims to extend public access (NFDC/7/12). Photograph P4 in
ABP/12/9 is taken from Hythe Promenade. It shows the balloons simulating the
proposed quayside cranes above the rooftops of Hythe Marina Village.
4.439 ABP also appear to assess the impact of the completed Terminal on the upper end of
Dale Road, Hythe, as insignificant. This is shown in Photomontage NW-P9. The
housing here is obviously a receptor of some sensitivity, commanding views over the
lower part of Hythe. It is clear from the photomontage that there would be a medium
magnitude of change, with the cranes projecting above rooftops and trees on the lower
ground. The adverse impact is rated as moderate to substantial, varying somewhat with
the aspects of the individual houses.
4.440 Northerly views are obtainable from other elevated places within the housing areas of
western Hythe, such as Douglas Way, Overbrook, Hillview Road and Copsewood
Road. ABP themselves predict that some elevated locations in the town would suffer
from a moderate adverse impact. But Photomontage NW-P10, which shows the view
from The Mead, suggests that ABP's mapping of such an impact (ABP/12/7, Figure 3a)
should be extended to the north-east, as the open views across the estuary would
dramatically change due to the domination of the proposed quayside cranes.
Furthermore, other residential properties to the south of Dibden Road, Hythe, would
suffer moderate adverse impacts by day and by night (NFDC/7/7, Appendix 2, Tables
1a and 2, Receptor 2V).
4.441 Many residential properties in Hythe Marina Village would be substantially affected by
the proposed development. The effect of the Terminal would be permanent. There
would also be a significant short-term impact during the reconstruction of the Hythe
Marina Bund. Photomontage NW-P3a shows the views from the first floor balcony of
35 Astra Court, in Hythe Marina Village. It shows the Hythe Marina Bund
reconstructed in the form originally proposed by ABP. However, the revised proposals
for the Bund would not significantly reduce the impact of the quayside cranes in this
view. The photomontage assumes that new planting would be established on the Bund.
4.442 Photomontage NW-P15 is from a second floor window of a property in Waterside, just
outside the south-western boundary of Hythe Marina Village. Once again, the
representation of the enlarged Bund follows ABP's original proposal rather than their
revised scheme. The photomontage shows that open views across the estuary would be
lost, and that the upper parts of the quayside cranes would be conspicuous. It is
obvious that ABP's assessment of a slight adverse impact is an understatement.
4.443 ABP seem to have completely overlooked the impact of their proposals on the highly
sensitive public areas along the Marina's waterfront. The revised version of
Photomontage NW-P2b (NFDC/7/9) shows conclusively that there would be a high
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magnitude of change in views to the north, and hence a substantial adverse impact.
This is confirmed in Views U and V in ABP/12/9, which show the balloons simulating
the height of the proposed quayside cranes from the Marina waterfront.
Views from the New Forest Heritage Area
4.444 The proposed development would have a significant adverse impact on views from the
New Forest Heritage Area to the west. An example is the view from Dibden Golf
Course, shown in Photomontage NW-P7 (NFDC/7/8). Projected summer and winter
scenes from a similar viewpoint are provided in Appendix C-12 of TS/LV2. The
quayside cranes would be silhouetted against the sky across a distance of about 2km.
The perception would be that the industrial waterside of Southampton Docks had
encroached onto the New Forest side of the estuary. The view of Southampton Water
would be seriously diminished.
4.445 Photomontage NW-P16 shows the view from Yew Tree Heath, within the New Forest
Core, some 5km south-west of the proposed Terminal. The quayside cranes would be
clearly visible. When raised, they would be substantially more intrusive than the
existing electricity pylons, 6 of which are shown. Although intrusive, 50m high pylons
such as these are not an uncommon feature in the rural scene. They are inherently less
incongruous than quayside cranes. Furthermore, the 20 quayside cranes would occupy
a much more compact area than the 6 pylons. This would increase their visual impact,
which the Councils assess as moderate.
4.446 The tops of the quayside cranes would be seen from further afield in the New Forest.
For instance they would be visible from Bolton's Bench at Lyndhurst, across a distance
of about 10km (NFDC/7/7, Table 1c, No 10D). The visibility of the cranes in these
views may increase as a result of an extensive programme of woodland clearance,
which is planned by the Forestry Commission. The Councils assess the potential
impact as moderate.
Views from Marchwood
4.447 The proposed Terminal would have moderate adverse impacts on some sensitive
receptors in Marchwood, including the barracks and other residential accommodation
in the Marchwood Military Port, and some neighbouring civilian housing. This would
be due to views of the upper sections of the quayside cranes (NFDC/7/7, Table 1a, Nos
2C and 2E). Construction activity would also have a moderate adverse impact on the
Sports and Social Club (No 2D). The Public Hard and Yacht Club would experience a
moderate adverse impact from the completed Terminal (No 5A).
4.448 At the southern end of the village, the impact would not simply be slight as predicted
by ABP. Pumpfield Farm and the adjacent footpath are sensitive receptors (No 2F).
Initially, they would experience moderate to substantial adverse impacts from the upper
sections of the quayside cranes, as well as from the "park and ride" and the port access
corridor. The effect would be most acute during the construction period. In the longerterm, the effect would be mitigated (to moderate) by the proposed woodland planting.
The Pilgrim Inn (No 2G) would also have views of the cranes as well as of the access
proposals, although the adverse effect would diminish from moderate/substantial to
slight over the years as the proposed landscaping matures.
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Visual Impact of the Proposed Access Improvements
A326
4.449 ABP have under-estimated the visual impact of the proposed A326 improvements on
Marchwood Infant School, a listed building (NFDC/7/5, Appendix 7, Annex C, No
L258). A moderate/substantial adverse impact is expected, and this would not be
confined to the short-term. The proposed planting would limit views of the
carriageway, but would itself be visually obtrusive. The proposed planting would do
little to reduce the impacts of the proposed lighting.
4.450 A number of other sensitive receptors would be subject to moderate/substantial adverse
visual impacts as a result of the proposed highway improvements. These include
residential properties in Twiggs Lane and Hythe Road, Marchwood (Nos R24 to R26);
in Park Lane, Pooksgreen (No R20); in Earthmere Court, Copinger Close and
Chillenden Court, Totton (Nos R13 to R15); in Ashurst Bridge Road (R11 to 12); and
in Roundhouse Drive, Totton (unreferenced, but adjacent to the Fletchwood Junction).
In each case new lighting would be installed along sections of the A326 that are
currently unlit. New lighting would also have an adverse visual effect on Dickens Dell,
Totton (No R3); and at Hanger Farm, Totton, a listed building (No L1). However, in
these cases the initial impact would diminish to moderate as the proposed landscaping
matures. There would also be an adverse impact on the views from some public rights
of way.
Rail Proposals
4.451 A number of receptors would be subjected to adverse visual impacts as a result of
ABP's proposals for the Fawley Branch Line (NFDC/7/5, Appendix 8). These are
shown in Figures 23 to 29 of TS/LV4. However, in some instances ABP have
understated the significance of the effect. The receptors include residential properties
at Oakleigh Crescent (No R2); Roseleigh Drive to Amberley Court (Nos R5 to R8); and
numerous properties in Marchwood. ABP have also understated the visual effect of
these proposals on Hounsdown School (No C2) and on some public rights of way.
4.452 ABP have always accepted that the proposed noise barriers would cause moderately
adverse visual intrusion where installed close to residential properties. It now appears
that Railtrack will not permit some of the proposed planting, which would have
provided mitigation. If residents are to be confronted with a hard choice between the
visual intrusion caused by the noise barriers and noise intrusion without the barriers, it
may be preferable to opt for the visual intrusion. But this is within a policy context of a
prohibition on serious disturbance to local communities, and is another example of
ABP's failure to assess the impact of the mitigation measures separately from that of
the development itself.
4.453 ABP accept that there would be some localised substantial adverse impacts in Totton
from the Goods Loop Rail Proposals (TS/LV4, Figures 21-2). However they have not
clearly addressed the impact on the British American Tobacco Sports Ground (as
distinct from its building). The Councils consider that that there would be an overall
58
The reference numbers of some of the receptors affected by the road proposals are shown in Figures 31
to 46 of TS/LV3. However, this does not cover all the receptors identified in Annex C to Appendix 7 of
NFDC/7/5.
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moderate/substantial adverse impact on the sports ground in both the short and long
term, due in part to much more frequent views of trains (NFDC/7/5, Appendix 8,
Section 3.2.1). There would also be a long-term substantial adverse impact on the users
of Footpath 17 (No. Y3); and a substantial adverse impact on residential properties in
Jackie Wiggs Gardens (No R8) during the construction period.
Lighting
4.454 Lighting in the Countryside: Towards Good Practice is a 1997 report on research
commissioned by the Department of the Environment (NFDC/8/3, Appendix C). At
paragraph 6.5 it says:
Designated landscapes such as AONBs and National Parks together with our
most important heritage and nature conservation designations, represent
countryside resources that are acknowledged to be of national importance.
Increasingly they are described as part of Britain's "critical natural capital".
Lighting impacts upon such areas, which often coincide with dark landscapes,
should be regarded as significant.
This clearly applies to the site of the proposed Dibden Terminal development, which
is partly within the New Forest Heritage Area, wholly within the designated area of
the New Forest National Park, and contains a number of nature conservation
designations. The proposed lighting would transform the nocturnal appearance of
both the application sites and the surrounding area.
4.455 Much of the guidance relied upon by ABP is of limited assistance in evaluating the
impact of new lighting installations. The Guidance Notes for the Reduction of Light
Pollution, produced by the Institution of Lighting Engineers (ILE) in 2000, are relevant,
but are primarily concerned with minimising intrusive light (NFDC/8/3, Appendix D).
They do not provide a mechanism for determining whether or not a development is
acceptable. Nor do they indicate how much lighting can reasonably be introduced or
added in a particular location.
4.456 However, the ILE Guidance Notes do specify Environmental Zones, which link the
sensitivity of an area to the control of light pollution. National Parks and similar areas
fall within Zone E1. The main issue between the Councils and ABP is the significance
of the impact of the sky glow that would be associated with the Dibden Terminal.
Obtrusive light limitations for exterior installations are specified in Table 1 of the
Guidance Notes. For sky glow, the specified limit for an installation within Zone E1 is
that the Upward Light Ratio (ULR) should be zero. The ULR is defined as "the
maximum permitted percentage of luminaire flux for the total installation that goes
directly into the sky".
4.457 The Councils do not accept ABP's evidence that there is a difference between the
propensity of direct light and reflected light to produce sky glow. A beam of given
intensity will be reflected from particulate matter in the atmosphere to create the same
sky glow effect, regardless of whether that beam consists of direct or reflected light.
The brightness and size of the sky glow produced is influenced by the area covered by
the lighting installation; the intensity of the illumination; and the viewpoint of the
observer (including the degree to which that viewpoint is itself illuminated).
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Dibden Bay Inquiry - Inspector's Report
4.458 Therefore, although the Dibden Terminal might generate only half the intensity of the
lighting at the existing Southampton Container Terminal, the size of the sky glow
created would be much greater, because the Dibden Terminal would cover a much
bigger area. Furthermore, if the observer were located close to the Dibden Terminal,
the area of sky affected would be perceived as being much larger than would be the
case were the observer further away.
4.459 The Councils consider that ABP's night-time photomontages must be treated with
caution, because of the uncertainties inherent in their production. Sky glow will vary
according to atmospheric conditions, and there is no certain method of reproducing its
effect pictorially. Each photomontage is effectively a snapshot of the possible effect
under one specific set of conditions.
4.460 Figure 1 and 2 in TS/LV5 record that ABP's Assessment Areas 1, 2 and 4 are almost
entirely unlit at present. These areas include the New Forest Core, the New Forest
Valleyside and the rural area immediately to the west of the Dibden Reclaim.
Similarly, Assessment Area 10 (the estuary) is completely unlit, save for the lights on
passing vessels. There is thus a continuously dark area, from the New Forest Heritage
Area, across the Reclaim, to Southampton Water. The existing lighting at the Dibden
Golf Course driving range is on a very small scale compared to the proposed lighting at
Dibden Terminal.
4.461 ABP argue that the Terminal site is not within a predominantly dark landscape, because
of the effects of the adjacent lighting in Marchwood, Southampton and Hythe.
However, this contention is not supported by observation of the Dibden Reclaim at
night.
4.462 ABP argue that the Marchwood Military Port is intensely lit, and that this lighting is a
conspicuous feature in the scene. However, the operational lighting at the Military Port
is used at irregular intervals and is of a significantly lower magnitude and extent than
the proposed Dibden Terminal lighting, which would be in use throughout every night.
The existing lighting in Hythe Marina Village is dramatically different to the proposed
Terminal lighting in scale, intensity, extent and height. In terms of the quantity of
lighting, the Dibden Terminal would be by far the largest single installation on the
western waterfront.
4.463 When seen from the New Forest, there is already significant nocturnal skyglow on the
horizon above Southampton and Fawley (TS/LV5, Appendices G-3 and G-4).
However, the fact that there is existing light pollution on the horizon does not mean that
it would be acceptable to add more. Although ABP's witness, Mr Pollard, considers
that the New Forest Core has the capacity to absorb more lighting (Day 78, p47) the
basis for this assertion remains unclear. Furthermore, ABP's assessment makes no
allowance for existing light pollution to diminish, as older installations are replaced by
better designed equipment.
4.464 When seen from the Southampton waterfront, the proposed development would have a
significant adverse impact at night. The appearance of the Dibden Reclaim would
change from a dark rural landscape, which is scarcely visible, to a brightly-lit industrial
port (TS/LV5, Appendix G-5).
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Mitigation Measures
4.465 ABP make much of the amount of mitigation that they propose. However, landscaping
would not overcome all of the adverse visual effects of the proposed development. For
instance, it could not reduce the impact in views from the east, nor compensate for the
loss of ancient woodland. Despite the extensive measures contemplated by ABP,
development on the scale proposed would dominate its surroundings in this sensitive
location at the edge of the New Forest Heritage Area. The size of the mitigation
package (which in terms of area would be almost as large as the proposed Terminal
itself) is an indicator of the difficulty that ABP have had in accommodating their
scheme in this location.
4.466 The test of the proposed mitigation measures in relation to the visual amenity of the
New Forest Heritage Area is whether they would avoid serious disturbance to the
landscape. The proposed measures have not been ignored in the Councils' assessment
of the impact on the NFHA - the detailed impact tables make frequent reference to
them. But the Councils do not consider that these measures would be successful. In
practice it would be impossible to devise adequate mitigation measures for a
development of the scale proposed in this location.
4.467 ABP have not assessed the impact of the mitigation measures separately from that of
the development. Despite their emphasis on the physical extent of their "environmental
package", the on-site landscaping plus the structural buffer immediately to the rear of
the Terminal (ABP/12/3, Figure 9) would appear insignificant compared with the scale
of the development. The proposed tidal creek would be ineffective, because the
Terminal would cut the estuary off from the New Forest. In any event, an agreed
environmental plan would be required to secure delivery of the proposed off-site
planting and land management.
Noise and Vibration
4.468 The noise and vibration impacts on the local area and communities would be a
substantial planning downside to any grant of consent for the Dibden Terminal. The
impacts would be significant during operation of the Terminal; and also during
construction. Because of the length of the construction period, this aspect deserves
particular attention.
Operational Noise
4.469 It is common ground that BS 4142:1997 provides an appropriate basis for assessment
of noise impacts from the proposed Terminal during the operational phase. It is further
agreed that where the BS 4142 rating level exceeds the typical background (LA90) noise
level by more than about 10dB, there is a likelihood of complaints (BS 4142, para 9).
For the purposes of assessment, differences of this magnitude are be regarded as
substantial (TS/NV1, para 4.29).
4.470 This approach is consistent with the guidance in PPG24, Annex 3, paragraph 19. In
paragraph 10, the policy guidance indicates that a balance needs to be struck between
necessary development and ensuring that there is not an unacceptable degree of
disturbance. Notwithstanding this, differences of 10dB or more between the BS 4142
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Dibden Bay Inquiry - Inspector's Report
rating level and the typical background level do indicate, in the Councils' submission,
substantial adverse impact.
4.471 ABP's assessment, reported in TS/NV1, and summarised in the Environmental
Statement, shows "marginal" night time impacts59 at all receptors except Locks Farm
and Hythe, where the calculated rating levels are predicted to exceed the background
noise level by 6 and 7dB respectively (TS/NV1, Table 12.5 and ES, Table 17.15).
4.472 In arriving at this conclusion, ABP made two assumptions, both of which are critical to
the accuracy of the assessment. Firstly, the levels were calculated for "typical"
meteorological conditions. Secondly, the calculated rating levels were subject to a
deduction of 6dB, allegedly to deal with the proposition that:
The maximum noise emission from the whole Terminal has been determined
by simply adding the noise levels from the individual operations, assuming
they all occur continuously. While this condition could conceivably occur, the
simultaneous generation by each operation of its maximum noise level is
considered most improbable, particularly at night when the reference time
period is five minutes. By considering the more likely scenarios a total noise
emission 6dB below the maximum has been taken as being more typical and
this has been used in the assessment (TS/NV1, para 6.15).
4.473 Before the noise topic was considered at the Inquiry, the Noise and Vibration Joint
Data Group considered and agreed maximum noise levels at various locations, which
could be inserted as conditions of the HRO if the development were to proceed. The
Council's expert witness, Mr Davis, recorded that ABP offered these on the basis that
they were "the lowest that could practicably be achieved" (NFDC/4/4, para 3.2). These
"condition" levels assume the "worst case" meteorological circumstances, without any
6dB correction. They are significantly higher than those used in ABP's impact
assessment. The differences range from 8dBLAeq at Hythe Marina, to 12dBLAeq at
receptor locations in Southampton (NFDC/4/4, para 3.3).
4.474 If these condition levels are taken forward into a BS 4142 assessment, by adding a 5dB
acoustic feature correction to obtain the rating level and comparing this with the
existing night-time background noise levels from the Environmental Statement,
substantial noise impacts result at all but one of the receptors assessed. For locations
on the Waterside, the differences range from 17dB at Hythe, and Locks Farm, through
15dB at Veal's Farm and 14dB at Marchwood to 11dB at Hythe Marina. On the
Southampton side of the estuary, the difference is 11dB at Unwin Close and 10dB at
Mayflower Park (NFDC/4/4, Table following para 3.4).
4.475 The background noise level at Mayflower Park, however, is not representative of that
of nearby housing. In Merchants Walk (the nearest residential location in Southampton
with a direct line of site to the proposed Terminal) night-time background noise levels
are some 5dB below those in Mayflower Park (SCC/5/2, paras 3.3-4). The
corresponding difference between the BS 4142 rating level and the night-time
background noise level at this location would be 15dB.
59
The rating scale adopted by ABP for operational noise is shown in Table 17.3 of the ES. Where the BS
4142 rating level exceeds the typical background level by between 0 and 5dB, the impact is rated as marginal.
Between 6 and 10dB, it is rated as moderate. Excesses of more than 10dB are rated as significant.
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Dibden Bay Inquiry - Inspector's Report
4.476 If this assessment of the actual night-time operation of the Terminal is reasonable, it
does indeed reveal a substantial noise impact, and a substantial planning downside. In
deciding whether it is reasonable, the following matters need to be considered:
(xix)
Is it correct to disregard the 6dB correction originally made in TS/NV1
for these purposes?
(xx)
How frequently will the worst case weather assumptions occur? What
weight should be put on them for BS 4142 purposes?
(xxi)
Should there be a 5dB acoustic feature correction for the noise from
the Terminal?
(xxii)
Is it appropriate to assume that the Terminal would operate at the noise
limits rather than below them for most of the time?
The 6dB Correction.
4.477 The ABP approach to the 6dB correction is misconceived. A reduction of 6dB is
equivalent to assuming that each item of equipment would operate for only 25% of any
noise assessment period. However, the calculations in TS/NV1 for each of the
identified activities in the operational port are already based on assumptions about ontimes for each piece of plant and the like involved in the activity. It is clear that they
are intended to produce a representative noise level; not one that assumes everything in
the cycle is turned on for the activity in question. For example, the analysis of noise
from loading and unloading ships assumes four vessels are berthed at the same time,
representing 65% occupancy. Similarly, container stacking and unstacking does not
assume that all plant involved in this activity is working all of the time; rather it is
based on the activity level required to achieve the required hourly throughput of
containers (Day 98, pp101-125).
4.478 ABP's witness, Mr Thornely-Taylor, agreed that the calculations were intended to
produce a representative noise levels for each activity and accepted that "what one
needs to know is the likelihood of the activities in question coinciding, not the
individual noises coinciding" (Day 98, p117). Once this point was reached, the 6dB
correction became indefensible.
4.479 The point is reinforced, however, firstly, by the way "distributed" sources are dealt with
in the calculations. Generally these are grouped at one location. This approach is not
unreasonable where the distance between the site and the receptor is large. However,
errors can accumulate and they can be significant where the receptor is close to the
boundary. As an example, ABP's calculations assume that quay cranes are centred at
850m from Hythe Marina. At Hythe Marina, the predicted noise levels from 4 ships on
berth and four cranes operating on each berth, is 34dBLAeq for typical weather
conditions and 35dBLAeq for worst weather conditions. The equivalent calculation for
four cranes only, working on the berth nearest the Marina gives higher noise levels of
36dBLAeq and 37dBLAeq for typical and worst weather conditions respectively. More
importantly the noise level generated by this activity alone (without any other activities
on the terminal) exceeds the "typical" total noise level of 34dBLAeq at Hythe Marina
given in TS/NV1. This anomaly arises from the application of the 6dB correction.
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Dibden Bay Inquiry - Inspector's Report
4.480 It is further reinforced because, counter-intuitively, ABP's approach would produce a
lower 5 minute night-time noise level than the 1 hour daytime level (Day 98, pp114117 and 122-125). The reason why BS 4142 has a five minute assessment period
during the sensitive night time is, however, to produce a more rigorous test.
4.481 Accordingly, ABP's 6dB correction should be rejected.
Weather Conditions
4.482 Analysis of the wind rose data shows that worst case weather propagation conditions
(CONCAWE Categories 5 or 6) would occur for approximately 40% of the time at
Hythe Marina, including during the critical night-time period (CD/GEN/8E and
ABP/11/14). This is plainly frequent enough to be taken as a normal case for the
purposes of a BS 4142 assessment.
4.483 The equivalent figure for the wind component towards Southampton (Mayflower Park)
is 56.6% for the night-time period.
5dB Acoustic Feature Correction
4.484 ABP's assessment in TS/NV1 applied the 5dB acoustic feature correction to all
Terminal operations except those associated with berthing and loading and unloading
of aggregates. Subsequently, however, Mr Thornely-Taylor argued that if the 6dB
correction were not made, then the 5dB acoustic feature correction should not be
applied, because the noise from any individual source would be at least 2dB lower than
the combined level of all other sources (or at least 4dB lower than the overall total).
He further argued that in the light of this no acoustic feature correction is necessary,
because the noise from the Terminal would not be perceived as having a tonal or
impulsive character (ABP/4/11, para 4.21). However, no support for this approach
from any standard or published document was put forward; and the County and District
Councils do not accept that the approach has any scientific basis. Nor, as a matter of
judgement, do the Councils accept that it reflects reality.
4.485 Ultimately, the issue of whether it is correct to add a 5dB acoustic feature correction to
the noise that would emanate from the Dibden Terminal is one of judgement, to be
informed by actual experience. The Inspectors' view will be informed by their site
visits to Southampton and Felixstowe, and more generally. The Councils submit that
there is only one answer. The bangs and clatters that accompany an active container
port are distinctive, not merely audible, and would make the noise from the Terminal
more annoying than the equivalent noise level produced by a steady source. The
assumption in TS/NV1 that the acoustic feature correction should be applied to port
activities such as ships' generators, container handling and so on was entirely correct.
Would the Terminal Operate at the Limits?
4.486 It is common ground that active management would be necessary in order for the
Terminal to comply with the operational noise levels set in the agreed condition (Day
98, p128). The issue is whether the Terminal would in fact be likely regularly to
operate at about the limits used for the condition. It is here that the developments
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Dibden Bay Inquiry - Inspector's Report
concerning measurements from the "Falstaff"60 and the issue of control of ships
generally become highly relevant. There are two separate points in relation to this
matter.
4.487 The first is that the high noise readings from the "Falstaff" appeared to come as
something of a surprise. They were not taken into account in ABP's assessment carried
out in TS/NV1. There is accordingly a sharp issue as to whether, in terms of ship
generated noise, the predictions may be too low in some circumstances. The second is
that the consideration of whether and how it would be possible to control ship
generated noise revealed real practical problems.
4.488 These matters led to ABP submitting a note (ABP/0/131), accepting that noise
generated by ships would not be under their control as they have no right to direct the
Master of a vessel to operate it in a particular way (ibid, para 2). The note further
accepted that, if a vessel such as the "Falstaff" were in the Terminal and operating as it
was when the noise measurements were taken, then the limits in the noise condition
could be exceeded at the nearest unobstructed property in Hythe Marina. The breach
would be by about 2dB in neutral weather conditions and 5dB in worst-case weather
conditions (ibid para 5).
4.489 The Councils are content that the wording in the agreed operational noise conditions
(CD/ABP121, Schedule 3, clauses 7C to 7F) creates an enforceable and indeed sensible
way of addressing the problem. However, it has to be recognised that the effect has
been to change a condition which was drafted on the basis that it created an absolute
limit into one which contemplates that there may be specific circumstances relating to
ship generated noises where ABP would not be able to prevent a breach.
4.490 In these circumstances, it would not be sensible to base any BS 4142 assessment on the
hypothesis that the Terminal would, in normal and favourable weather conditions, be
operated so as to leave a margin between the noise generated and the level specified in
the condition. There seems every reason for taking the levels specified in the condition
as a sufficiently robust basis for a BS 4142 assessment.
4.491 For these reasons the Councils submit that there is a substantial issue concerning
operational night-time noise. It is no answer to this to argue that the absolute levels are
low by WHO standards. TS/NV1 adopted, deliberately, a BS 4142 approach as the
appropriate method of assessment; and the Councils agree with that. BS 4142 adopts
no "cut off" at any particular internal noise level. On the basis of the BS 4142
methodology, complaints are to be expected at the operational noise levels used for the
condition. This is a very substantial planning downside.
Operational Noise Conditions
4.492 The Councils' suggested modifications to Schedule 3 of the HRO include a restriction
on ro-ro vessels berthing within 1,000m of any dwelling in Hythe Marina61
(NFDC/4/15A, condition 4). The need for this arises out of the noise measurements
60
Noise measurements on the Falstaff (a ro-ro vessel fitted with deck mounted purging fans) were
undertaken after the noise topic ended. The agreed results are reported in NFDC/4/12.
61
1,000m from the nearest dwelling in Hythe Marina corresponds approximately to the two berths at the
seaward end of the Terminal.
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Dibden Bay Inquiry - Inspector's Report
from the "Falstaff". It is not unreasonable to require port operations to be designed
from the outset to avoid this type of noise problem.
Construction Noise
4.493 In the Councils' submission, the construction noise impacts of the development would
be very substantial. In themselves, they would constitute a significant negative factor.
The construction period of 36 quarters would be very long for a building project; it
would be of a duration equivalent to many substantial minerals operations.
The Approach to Noise Impact taken in the Environmental and Technical Statements.
4.494 The Environmental Statement acknowledges that "No specific guidelines exist for the
establishment of construction noise impact" (para 17.14). Nevertheless it goes on to set
out a table (17.1) headed "Thresholds of significant impact - LAeq". The levels shown
in this table are high. For the daytime, the threshold levels are 65, 70, and 75dBLAeq,
depending on the prevailing ambient level. The explanation notes (para 7.16):
For the purposes of grading the magnitude of the impacts the above thresholds
are considered to be the point at which an impact of moderate magnitude
occurs, with impacts of substantial magnitude occurring if the noise level is
more than 10db above the threshold.
4.495 On this basis, the Environmental Statement was able to state (para 17.56):
During certain stages of the construction programme the level of noise from
construction is well above the existing background levels. This is particularly
the case at Hythe Marina Village and Hythe. However, at almost all times
these noise levels do not exceed the threshold of impact magnitude derived
from national guidelines for noise and set out in Table 17.1. The magnitude of
the change in noise level from construction activity is therefore assessed to be
marginal.
4.496 In the Councils' view, something has gone wrong in an assessment methodology which
rates the construction noise impacts, over the timescales involved in this project, as
experienced at, for example, Hythe, as "marginal". The Councils accept that, in some
circumstances, higher noise levels for construction noise may have to be accepted than
those that would be accepted for operational noise. But this fact should not disguise the
reality of the impact over the construction periods involved.
4.497 In fact, it is recognised within the body of TS/NV1 that other standards have relevance
to measuring the impact in this case. Paragraph 4.35 notes:
Usually the temporary nature of construction noise permits a more lenient
approach than that described above for operation noise.
4.498 However, para 4.37 continues:
The timescale of the construction programme for the Terminal is rather long
and BS 5228 and MPG11 both imply use of a procedure similar to BS 4142
under such circumstances. An assessment based on this Standard has therefore
also been undertaken.
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Dibden Bay Inquiry - Inspector's Report
4.499 The Councils agree with this approach. The point is not that BS 4142 ought to be used
in some absolute way to determine acceptable levels for construction noise, but rather
that its use, in the case of a long construction programme, does provide some measure
of the scale of the impact.
4.500 It is true that paragraph 4.39 of TS/NV1 sets out some reasons why the authors consider
that the use of BS 4142 as a means of rating construction noise is inappropriate. The
majority of the difficulties cited, however, are present in applying BS 4142 to many
industrial sources where its use is commonplace and envisaged by PPG24. The
Councils submit, therefore, that the use of BS 4142 as a means of getting some measure
of the scale of the impacts that are present is entirely appropriate.
4.501 TS/NV1 also recognises the potential relevance of MPG11. Paragraph 5.3 reads:MPG11 is a Planning Guidance document the aim of which is to provide
advice on how the planning system can be used to keep emissions from surface
minerals workings within environmentally acceptable limits without imposing
unreasonable burdens on operators. Since there are many similarities between
surface minerals workings and the large-scale earthworks required for this
development the criteria given in MPG11 can be considered relevant.
4.502 The County and District Councils agree.
The Councils' Approach to Construction Noise
4.503 The approach taken by the Councils' expert witness, Mr Davis, is both to use BS 4142
as a basis for forming a judgement of the magnitude of the impact of construction
noise; and to propose realistic absolute limits based on MPG11. This approach has been
substantially carried forward into the conditions.
4.504 The results of the Technical Statement's BS 4142 assessment shows a large number of
quarters, in individual locations, where the impact is rated as substantial. At Hythe,
quarters 1 to 5; 10 to 13; 17; and 31 to 34 are all so rated (TS/NV1, Appendix V, Table
4142.Mit). In phase 3, the exceedances, on a BS 4142 rating basis, are very large, at 18
and 20dB in quarters 31 and 32. This would amount to a very substantial noise effect.
The picture for Hythe Marina is worse. At Unwin Close, in Southampton, the
assessment is rated as substantial in 12 of the 36 quarters.
4.505 The peaks in the levels shown in the table reflect the impact of either the construction
of the Hythe Marina Bund or quay wall construction using impact piling. The impact
on Hythe would occur at three distinct points in the construction period, spread over the
whole of it. The effect would be similar to that of a large minerals working, with a
noise impact spread over a long period of time.
4.506 The general daytime construction noise limit proposed for Dibden Terminal is
55dBALeq62 (CD/ABP/121, Schedule 3, Table 2). This is an absolute limit; it includes no
allowance for the particular qualities of the impulse piling. In this regard, two points
should to be noted.
62
Except for defined periods in Phases 1 and 3 when higher limits are proposed (see CD/ABP/121,
Schedule 3, Clause 7I).
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Dibden Bay Inquiry - Inspector's Report
4.507 Firstly, a level of 55dBALeq is in itself high, in the sense that higher levels "could well
cause annoyance" (MPG11, para 34). Mr Davis notes that planning consent for a
mineral extraction or waste disposal site would not normally be granted unless it could
be shown that its operation could comply with the noise limits in MPG11 (NFDC/4/4,
para 2.20). The World Health Organisation defines 55dBLAeq as the guideline value for
serious daytime and evening annoyance in outdoor living areas. Similarly,
BS 8233:1999 recommends (para 7.6.1.2):
In gardens and balconies etc it is desirable that the steady noise level should
not exceed 50LAeqT dB and 55LAeqT dB should be regarded as the upper limit.
4.508 Secondly, the presence of impulsive piling noise means that an uncorrected level of
55dBLAeq, as contemplated by the condition, would in fact result in significantly more
community annoyance than that contemplated by the MPG11 limit. Impulse piling is
not a normal characteristic of minerals working. It is a potent source of community
annoyance.
4.509 This characteristic of the piling noise would be compounded by the presence of
vibration. ABP's Technical Statement notes that vibration would be perceptible at a
distance of 1,200m from Hythe Marina (TS/NV1, para 11.28). Notwithstanding Mr
Thornely-Taylor's attempts to argue the contrary, the Councils' submit that Mr Davis is
plainly right to contend that the combined effect of perceptible vibration and piling
noise would produce a degree of nuisance not reflected in the absolute noise level of
55dBLAeq.
4.510 This picture is not altered by the further information on piling provided by ABP. This
indicates:
That the strike rate of the piling hammer would be between 45 and 60 blows per minute
(ABP/3/12). Accordingly, the recipients of the noise would feel exposed to a continuous
series of loud noises and perceptible vibration. In the Councils' view, their perception of
the combined impact would not be changed by the time lapse between the noise and
vibration effects of each hammer blow63.

That in a day of efficient working, and with quay and anchor wall piling happening
simultaneously, there might be 5 hours driving in a single day (ABP/3/12). A day of this
sort would represent a high degree of disturbance. Plainly, if there were such days, there
would be a compensatory lack of piling on other days. Nonetheless, the average
combined piling times for the two walls would be up to 2.24 hours per day.64
63
The timing of noise and vibration impulses at a receptor some distance from the source is different due
to the different speeds of propagation through soil and air (Day 99, p52 et seq)
64
Construction of a quay wall requires a line of piles along the quay. Behind these, a second line of piles
forms an anchor wall. 2.24 hours is the higher estimate of average daily driving time for the quay and anchor
walls in Phase 1. The corresponding estimates for Phases 2 and 3 are 1.72 and 1.62 hours/day respectively. For
the lower estimate of driving times, the figures are 1.79, 1.38 and 1.29 hours for Phases 1, 2 and 3 respectively
(Tables attached to ABP/3/11).
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Dibden Bay Inquiry - Inspector's Report
Noise During the Phase 3 Works
4.511 The matter of piling noise is particularly relevant to the Phase 3 works. In Phase 3,
ABP seek a relaxation of the 55dBLAeq daytime construction noise limit to 60dBLaeq. As
proposed by ABP, the relaxation would operate for a period of 33 weeks; and it would
exclude noise generated by pile driving for the quay and anchor walls (CD/ABP/121,
Schedule 3, clause 7I). In the Councils' view, the derogation should be limited to 33
weeks at 60dBLAeq, including all piling activities.
4.512 The proposed limit of 60dBLAeq is high; and the period of 33 weeks is long. It is
significantly longer than the period for which MPG11 suggests that it would be
appropriate to relax noise conditions whilst baffle mounds and the like are constructed
(MPG11, paras 42 and 61). Those affected by the Phase 3 works, would be so affected
at the end of a lengthy construction period and would also have previously suffered the
effects of the relaxation for the extension of Hythe Marina Bund65. There is an estimate
of the numbers of properties that would be affected by construction noise levels higher
than 55dBLAeq during the Phase 3 exception period66. However, there is no such
estimate for the numbers that would be affected by the higher noise levels from
impulsive piling, which would be permitted with ABP's version of the condition.
4.513 Mr Davis estimated the noise levels that would be likely to occur if an alternative
suspended deck method of construction for the quay wall were to be adopted
(NFDC/4/4, para 2.30ff and Appendix 5). This showed that there would be no need for
a further relaxation of the 60dBLAeq exception limit with this method of construction.
Mr Thornely-Taylor did not dispute his estimates (Day 98, pp62-63).
4.514 The Engineers'