PROPOSED PRESSURE REDUCTION INSTALLATION ON LAND ADJACENT TO
LIME STREET AND MOOREND ROAD, OFF B4211, CORSE, GLOUCESTERSHIRE
CLOSING SUBMISSION ON BEHALF OF CAPRI
Impact
1. Impact on the intrinsic character of the countryside
1.1 It is Central Government policy that the countryside should be protected for the sake of its intrinsic character (PPS 7 principle 1 (iv).
1.2 That is a different matter from the protection of the countryside for the sake of our enjoyment and perception of it. Central Government policy goes much further than that. It endeavours to protect the “intrinsic” character of the countryside.
1.3 The principle that the countryside should be protected for its own sake lies behind the “fundamental aim” of the Local Plan, “to protect the countryside from unnecessary development”.
1.4 The appeal site is currently an open field. It makes its intrinsic contribution to the character of the countryside as an open field.
1.5 The intrinsic character of the countryside would be radically altered by the implementation of the appeal proposals. Thus:-
(i) A 2.5 ha greenfield site would be subjected to development;
(ii) That is, development which is described on the application form as “industrial”;
(iii) Of which the facility and access road would comprise no less than 1 ha;
(iv) And the four buildings would have a total footprint of 400 sq m;
(v) And 12 flues on 6 stacks each 8.5m high;
(vi) Together with 7 security lights each 5m high
(vii) Surrounded by a spiked, heavy duty security fencing system;
(viii) And a bund the alien appearance of which would be worsened by the constraints of the size of the chosen site, forcing contours to be used which would draw attention to themselves as incongruous impositions within an otherwise naturally formed topography.
(ix) The result will be to erase the contribution currently made by the appeal site to the intrinsic character of the countryside and to supplant it with large scale industrial development.
1.6 That interference with the intrinsic character of the countryside requires justification. Mr Reid, the Appellant’s landscape witness, accepted that prima facie, planning permission for the appeal proposal should be refused, in the absence of a case of need.
1.7 Mr Reid also accepted that if that impact on the intrinsic character of the countryside could be avoided or reduced, it should be.
1.8 This degree of interference with the intrinsic character of the countryside is not an inevitable consequence of locating a PRI within the countryside. It is the site specific consequence of locating a PRI of the type currently proposed on the appeal site itself. It is not inevitable that the need to connect the Milford Haven supply to the NTS would have this degree of impact upon the intrinsic character of the countryside.
1.9 If the harm attributable to this degree of impact upon the intrinsic character of the countryside can be reduced, it should be.
2. Visual impact
2.1 The visual impact of the proposal is a separate and additional planning consideration to its interference with the intrinsic character of the countryside.
2.2 The Environmental Statement (p43 et seq) examines 22 visual receptors.
2.3 The 10th year winter impact (which is considered as being the same as the permanent impact) identifies no fewer than 20 of these receptors as having adverse impacts (of which four are not neutral – slight adverse).
2.4 The non-technical summary of the E.S. states, at page 96:-
“For visual receptors which are afforded direct views towards the proposals visual impacts would not be able to be adequately mitigated. From these locations, residual visual impacts would remain post construction, despite the inclusion of landscape proposals, as the relationship between viewpoint elevation, proximity to the development site and receiving landscape cannot be mitigated by way of planting. In these cases visual impacts are envisaged to remain into Year 30, with planting proposals going some way to integrate the scheme into the receiving landscape pattern; however visually prominent features such as the boiler house stack (sic) and associated gas plume emissions and floodlighting would remain visible, predominantly during cooler winter periods ...”
2.5 It is important to remember that even this predicted outcome is based upon an assumptions being made about optimal rates of growth and the success of the landscaping scheme. The visual impact upon the countryside could be much worse than contemplated by the ES. The success of the landscaping is also threatened by the size of the site – producing steep bunds upon which growth is likely to be particularly difficult, and leaving very limited space and opportunities available for landscaping within it.
2.6 It can only be appropriate to take the risk of the more serious impact that would be caused by the failure of the landscaping scheme occurring in practice, or to rely upon such a small site, if it can be shown that no better alternatives are available.
2.7 As Mr Reid frankly accepted, this degree of visual impact requires justification.
2.8 The eradication of an area of countryside of some 2.5 ha and its replacement with a substantial industrial complex, of such a scale that whatever attempts are made to screen it, it will be permanently visible from beyond its boundaries, is a planning event that could only be justified on an unequivocal and robust case, either that the connection must be made at this point, or that other points at which the connection could be made, would cause the same, or a greater degree of harm.
2.9 It is a degree of impact which should be avoided, if it can be.
3. Impact in terms of the consumption of a Greenfield land before brownfield
3.1 One of the Central tenets of contemporary Central Government policy, as reflected in policies at local level, is that brownfield sites should be developed before greenfield sites.
3.2 The use of a greenfield site should be avoided where a brownfield site is available. As appears below, a brownfield site at Wormington, is available. There are probably others, now that the area of search conducted at the time of the ES, has been discovered to be some 1% of the true area within which it is operationally feasible to make the connection.
4. Impact in terms of unacceptable risk
4.1 There is no satisfactory means by which the independent assessor may reach the conclusion that the acknowledged risks associated with the proposed PRI are such that it is acceptable to locate it next to existing occupied dwellinghouses.
4.2 NG says, that it has carried out a risk assessment. But it cannot prove it, because the exercise was never consolidated in a documentary form. That is remarkable. The late production of several pieces of paper (NG 63) that may bear some relation to work earlier carried out, does not take matters much further forward.
4.3 The Appellant has conducted itself on the assumption that its work need not be checked, it is sufficient for it to say, that the work has been carried out. The expectation is then, that the veracity of the exercise should be taken on trust.
4.4 That is difficult to do, for a number of reasons.
4.5 There are two references in the documents to the dwellinghouses that were taken into account. Obviously the numbers of dwellinghouses are absolutely critical to the outcome of the risk assessment.
4.6 On the two occasions in the documents, on which reference are made to the dwellinghouses that were taken into account, we are told that these were Flat Farm and Corse Hill Farm.
4.7 In cross-examination, I asked why Newlands had not been taken into account.
4.8 I was told, that it had. And that the wrong information had been recorded in NG’s documents on not one, but two occasions.
4.9 That was not a satisfactory answer. It is not satisfactorily corroborated by the map of “dwellinghouses” in NG 63 – which contains no reference to allow the reader to conclude when it was compiled. The “risk assessment” suffers from the critical shortcoming that it is not possible to check which houses were taken into account. The documents say 2 houses, the witness in cross-examination said more. But this is an issue of public safety. It is not an issue upon which it is safe to give a witness, the benefit of the doubt, when two documentary references suggest that he is wrong.
4.10 The unquestionable implication of the documentary evidence, is that Newlands was left out of account. This means that no weight should be given to the “risk assessment”. To take the chance that the witness was right and the documents wrong, and to grant planning permission in the absence of a robust risk assessment that could be tested, would be, we think, a grave threat to public safety.
4.11 National Grid has repeatedly thought it appropriate to state in public that there has been no serious incident in 35 years on the high pressure transmission system (July 2006 presentation RAF 2 p9; information provided to LPA Mr Hillier F10 p28; ES addendum section 2 p5; and David Mercer BBC interview RAF 28 p189-190).
4.12 That statement, made to foster a belief that National Grid has an “exemplary” safety record, is difficult to reconcile with known facts since the Palaceknowe incident is acknowledged to be a serious incident, which occurred on the high pressure system, within the last 35 years.
4.13 In the event, far from an “exemplary” safety record, Mr McCollum was forced to admit, following an examination of the other incidents in respect of which National Grid has been found to be culpable; and subjected to very substantial fines by the Courts, as follows:-
“I think you acknowledge that is a regrettable safety record?”
“Yes” (day 5 p57 line 11).
4.14 That was the answer given by the Appellant’s own safety witness.
4.15 The Company does indeed have a regrettable safety record. Its failure to be open about it, indeed to make statements which appear to be untrue, about a lack of accidents in the past, is important to this Inquiry for four reasons:
(i) It raises the question as to whether the Company can be relied upon, at all, to give a fair an open appraisal of the safety credentials of the proposed PRI;
(ii) It is a reason to be all the more wary of the Company’s inability to provide an account of its “risk assessment” that can be independently verified;
(iii) It raises questions as to the judgment of NG’s employees who have responsibility for making assessments of risk. The statements made in the face of Palaceknowe show a propensity on the part of the Company to put a positive gloss on safety issues. I asked Mr McCollum for some assurance that the Company had changed its position as to the openness with which it should treat the public, since the 4 denials of accidents on the high pressure system, were made. He was unable to give me any.
(iv) It makes it more difficult to accept that, despite what the documents undeniably show, Newlands was taken into account in the “risk assessment” process.
4.16 The Company has, according to its own witness’s concession, a regrettable safety record. The true picture, is very different from that which has hitherto been presented to the public; and maybe is very different from that which the Company has hitherto admitted to itself.
4.17 It is our case, that the matters to which I have referred, alone, are a sufficient basis for dismissing this appeal. There simply is not the evidence to be satisfied that the proposed PRI is safe. It is not good enough to say that HSE have not objected. We do not know whether they have been put fully in the picture, in the way this Inquiry has. We strongly suspect not.
4.18 However, quite apart from everything I have said on this issue thus far, even worse perhaps, is that on NG’s own case as to the findings of its “risk assessment”, the individual risk there identified is far too high to be imposed upon existing occupiers, in the absence of a thorough assessment of the operational search area, to see if it could be reduced.
4.19 The individual risk has been asserted to be about 1:150,000.
4.20 The HSE’s considers three categories of risk: the broadly acceptable, the tolerable and the unacceptable.
4.21 In “Reducing risks, protecting people” (NG 25), for members of the public who have a risk imposed on them “in the wider interests of society”, a risk becomes “unacceptable” if the individual risk of death is 1:10,000 per annum (p46 paragraph 132).
4.22 A risk is “broadly acceptable” if it is 1: 1m per annum.
4.23 A risk is “tolerable” if it lies between these two figures.
4.24 On a scale between 1: 1m (broadly acceptable) and 1:10,000 (unacceptable), the risk asserted by NG, of 1: 150,000, is just 15% from the top. The risk asserted is very close to the “unacceptable” category. HSE policy regarding risks in the “unacceptable” category is that such risks should be regarded as unacceptable “whatever the level of benefits associated with the activity. Any activity or practice giving rise to risks falling in that region would, as a matter of principle, be ruled out unless the activity or practice can be modified to reduce the degree of risk so that it falls in one of the regions below, or there are exceptional reasons for the activity or practice to be retained.” (p42 paragraph 122).
4.25 The concern about the proximity of the level of risk calculated by the “risk assessment” must be all the greater in the light of the uncorroborated assertion, contrary to the documentary evidence, that Newlands was taken into account; and by the fact that the salient features of the proposed PRI (outside a beach terminal, dealing with a pressure reduction from 94bar to 75 bar, using a 1200mm pipeline) apparently when combined, would be entirely innovative; and in any event, for the most part, are not ones that have been built into the modelling process, and where they have, the operational experience from which data has been assessed, is in the overall context, de minimis. Added to that, we know the “risk assessment” to be additionally defective, because Mr McCollum admitted that a known risk, of seismic events, was deliberately not taken into account.
4.26 Even were it not for these special areas of concern, HSE policy on such a high level of risk within the tolerable region, is that “the protocols, procedures and criteria described in this document should ensure that in practice, risks are controlled to such a degree that the residual risk is driven down the tolerable range so that it falls either in the broadly acceptable region or is near the bottom of the tolerable region, in keeping with the duty to ensure health, safety and welfare so far as is reasonably practicable.” (page 43 paragraph 127 – my emphasis).
4.27 We do not know, upon what basis HSE chose not to object to this proposal. NG were not able to offer the assurance that HSE was aware of the high level of risk that had been identified in NG’s own “risk assessment”. We can only speculate upon the stance HSE might have taken if it had known the full facts.
4.28 Certainly, it would be in accordance with HSE’s policy as expressed in “Reducing risks, protecting people”, for the risk associated with connecting the Milford Haven supply to the NTS to be reduced from the top of the tolerable level, to the bottom of it, if not to within the broadly acceptable region.
4.29 NG, through its proposal asserts through its witness that “there should be no concern about the safety of this installation” (NG 23 p23 pr 9.2) and suggests that it is appropriate for an involuntary individual risk, of 1/10 of the voluntary risk of being a road user from all accidents, to be imposed upon existing householders. If this PRI is permitted, it will be 1/10 as dangerous for them, just to continue to live in their own homes, as to be road users, or workers in agriculture, construction or the fishing industry.
4.30 We do not agree that “there should be no concern about the safety of this installation”. We have difficulty separating the approach that allows such a statement to be made in these circumstances, from the approach that it is acceptable to tell the public that there has been no serious incident on the high pressure transmission system in the 35 years that NG have operated it, when this is clearly not the case.
4.31 Where does this leave the Inquiry?
4.32 Can we be sure that more than two dwellings were taken into account? We think not and it cannot be right to grant planning permission in such circumstances.
4.33 Can we be sure, if Newlands had been taken into account, that the individual risk, would not be within the “unacceptable” region? Can we be sure that, if seismic events had been taken into account, the individual risk, would not have been in the “unacceptable” region. Should the Appellant be given the benefit of the doubt? We believe that, since we cannot be sure on these crucial points, it follows that it cannot be right to risk public safety by granting planning permission in these circumstances.
4.34 Similarly, when, even on the Appellant’s case, the risk assessed falls only just short of the “unacceptable”, and it is HSE’s policy to reduce risk towards the “broadly acceptable” category, it cannot be right to grant planning permission in the absence of a thorough investigation within the operational area of search (of which a tiny percentage has so far been examined), to see if the risk of connecting to the NTS can be reduced, by doing so elsewhere.
5. Impact in terms of an unnecessary additional exposure point to acts of terrorism
5.1 Mr McCollum on behalf of NG, did not deny that the threat of terrorism is a real one.
5.2 NG gives evidence of the impact of a loss of supply at Corse:
“It would be necessary to cut of customers in order to attempt an orderly run down of the NTS and Distribution Networks.
“This in turn would de-stabilise the gas supply market. A sudden large loss of supply would cause gas prices to rise steeply as market participants sought alternative supplies. The price volatility can be expected to last for the period required to restore supplies and would feed through to higher prices for consumers. As 40% of electricity generation is gas fired, similar consequences would occur in the electricity supply market.
“Unlike an electricity network it is not safe to turn gas supplies on and off without ensuring customers have turned off their appliances in a managed way and this would result in a major operation to ensure affected areas were checked for appliance isolation prior to recharging the network. This means that the effects can last for weeks and is the reason why pressure rundown and termination of supplies to consumers must be avoided wherever possible.”
(NG 18 p13)
5.3 NG propose, having failed to investigate whether the same result could be achieved without increasing isolated points of exposure to acts of terrorism, to pass 20% of the nation’s gas supply, above ground, on an isolated, unmanned site. Deterrence is in the form of a security fence.
5.4 Mr McCollum confirmed that NG do not challenge the evidence that:
(i) “natural gas facilities have been favoured terror targets internationally ... over the past two years, gas and oil pipelines have been attacked in at least half a dozen countries” (C13 RAF 28 PNA 31 p284)
(ii) The threat is such that gas facilities at Peterhead, Gargolie and Bacton are guarded (PNA 31 p292; C33 RWPC 3)
(iii) “.. at least two known Al-Qaeda suspects have been spotted reconnoitring Bacton gas terminal in North Norfolk.
“The initial discovery was made in September and the Eastern Daily Press understands laptop computers seized in terror arrests since then contained plans of the Bacton site”
(C33 RWPC 3)
25% of the nation’s supply passes through Bacton. The intelligent observe is bound to ask, which would prove the more attractive target, the guarded Bacton, or the isolated Corse?
(iv) That evidence was given at the recent Old Bailey trial that one of the potential targets had been the gas network and that one of the defendants was said to have worked for Transco and was accused of having a CD Rom on his home computer with details of the UK’s gas pipeline network (RWPC 1);
(v) That there are thought to be 2000 people in this country prepared to undertake terrorist operations (C31 pr 2.3.2.2);
(vi) That large quantities of explosives have been stolen in Iraq and that there are fears that these have been exported from Eastern European countries (C31 p6 pr 2.3.2.3)
5.5 Coded assurances from ambiguous sources, are irrelevant to this issue. The threat posed by having an additional point of exposure, could be removed entirely if there were no additional point of exposure.
5.6 Why, in the light of this, has active consideration not been given avoiding the introduction of an additional point of exposure, by locating the PRI at Wormington. The answer is that that option would be less profitable; and that NG have not taken the threat of terrorism seriously. If they had done, Wormington would have been considered voluntarily by NG, rather than under duress.
5.7 If this grave threat can be removed by the simple expediency of not offering an additional target, by providing an additional point of exposure, it should be.
5.8 The safety case is in any event, nudging the boundary of the unacceptable. When the terrorist threat is added to this, surely there can be no excuse for making the obvious mistake of locating the PRI at Corse.
6. Noise
6.1 The Appellant admits that events, perceived as noisy, will disturb nearby residents and land users.
6.2 The Appellant has been unable to give any indication of the frequency of these events.
6.3 That is unacceptable and it is an impact which it is incumbent upon the Appellant to avoid, by carrying out a thorough investigation of the 90+% operational area of search which has so far been ignored.
7. Light pollution
7.1 The same points apply as to light pollution. No indication has been given as to the frequency or duration of the intrusive impact. Again, that is not acceptable and it is an impact which should be reduced by a thorough investigation of the operational area of search, if it can be.
8. Case of need
8.1 As documents have emerged in the course of the appeal process, it has become clear that the operational area of search is far greater than that suggested by NG’s initial application in which a 1 km radius was examined in the ES.
8.2 It is now clear that
8.2.1 The PRI could be located at Wormington
8.2.2 The PRI could be located anywhere within a 10km radius (314 sq km) – only 1% of this area was investigated in the E.S.
8.2.3 A reduced PRI, potentially with no stacks, could be built at Corse;
8.2.4 By factual implication, such a reduced PRI could be built anywhere within a 10 km radius;
8.2.5 Two potential sites exist within the 5km area to the West (those identified by Mr Reid), which NG has given no indication that it has investigated further;
8.2.6 A further site exists at Fiddington (site view) which lies within the operational ranges agreed by NG at the Inquiry.
8.3 The public and the Council were originally lead to believe that the PRI had to be located close to the Tirley AGI.
8.4 NG have, under the pressure of the Inquiry process, exerted by CAPRI, now been forced to admit that the operational area of search is 100 times greater than the area of search identified in the ES.
8.5 The case has changed.
8.6 The case is now, that the connection needs to be made at Corse (a) because it would be more harmful in environmental terms, for the PRI to be located elsewhere and (b) because it would be more expensive for the PRI to be located elsewhere.
8.7 The case for the PRI
8.7.1 As a matter of principle, on the face of it, it is accepted that if NG can demonstrate that a PRI is needed downstream from Treaddow, in order to connect the Milford Haven supply to the NTS, such development must necessarily take place away from occupied buildings and therefore it is likely to have to take place in the countryside.
8.7.2 Where it is argued that development is justified in the countryside because it is development which necessarily must be located in the countryside, the normal rural development control principles continue to apply.
8.7.3 Thus, the impact of satisfying that need must be reduced in terms of (a) visual impact (b) impact on the countryside for its own sake.
8.7.4 It follows that the impact of satisfying the need to make a connection to the NTS must be reduced. It must cause as little harm as possible.
8.7.5 Similarly, the impact of satisfying that need in terms of reducing risk to public safety, reducing disturbance attributable to noise and light pollution, preferring the development of brownfield rather than greenfield sites and avoiding an additional exposure point to terrorism, must be reduced. The impact of satisfying the need must cause as little harm as possible.
8.7.6 The Appellant has recognised the veracity of this general approach in submitting its planning application. In doing so, of its own volition, it investigated the (then) operational area of search, to see if the harm attributable to satisfying the need could be reduced.
8.7.7 It then followed this process through, by examining the alternative sites suggested by the LPA. It did not resist the LPA’s suggestion that further sites within the operational area of search should be investigated. Nor did it suggest that that approach was inappropriate.
8.7.8 Similarly, in the course of preparing for the Inquiry, and under pressure from CAPRI, the Appellant, in producing evidence of a wider search area, 5km to the West and East of the Tirley AGI, has continued to recognise the veracity of this approach. It is only because the Appellant recognises the need to investigate the impact of the PRI within the areas within which it might otherwise operationally be located, that it has gone to the expense of carrying out, albeit superficially, such further work as it has.
8.7.9 The Appellant, by carrying out the work on alternative sites that it has, has recognised the basic principle, that where development is proposed in the countryside on the basis of a case of need, it is impossible to make the necessary assessment, that the impact on the countryside of satisfying that need, is a little as possible, without make a proper assessment of the other areas within which it could be satisfied.
8.7.10 To put it another way, the Appellant has accepted, as it must, that if it is to justify a harmful impact on the countryside, on the basis of a case of need, it must demonstrate that that need could not be met in a less harmful way. Otherwise, the decision taker, would be unable to make the necessary assessment of the application against policies which state that its impact on the countryside should be kept to a minimum.
8.7.11 As summarised above, the Inquiry process has revealed:
(i) That depending upon the treatment of the gas at Treaddow, the downstream PRI does not have to be as large as is proposed in the current application. If gas were released at (we said for the purposes of establishing the principle) 79 or 80 bar from a PRI at Treaddow, by the time it arrived at Corse, it would only be at, or just above 75 bar and so a PRI would not be needed to reduce pressure by 20 barg as assumed in the application. This would mean that the need for heating would be greatly reduced; and indeed it is possible that no stacks would be needed at all. Mr Cooper accepted that that would be a matter for the design team.
In those circumstances, it cannot be right to grant permission for the substantial industrial complex that it currently proposed. It may not be needed at all. The work that is necessary to make an assessment at to whether or not the impact that it would have on the countryside could be reduced, has not been carried out.
The work that the Appellant has recognised as being necessary at first instance, of examining alternatives to see if the impact could be reduced, has not been carried through to examine this option, because many options have either not been thought about before Dr Furness’s involvement, or have been dismissed without further investigation.
The logic of the “reducing pressure at Treaddow” approach, would seem to apply wherever the PRI were located downstream of Treaddow i.e. whether at the appeal site, at Wormington, or at any other site, within a 10km radius of the AGI (see below). When combined with the acknowledged potential to reduce ground levels – if no stacks were needed, there is a vast array of potential for reducing the impact on the countryside.
(ii) That the PRI can be located anywhere within a 10km radius of the AGI. This turns the original ES area of search on its head. The area of search becomes some 314 sq km (πr2 = 3.14 x 10 x 10). The ES area of search was 3.14 km. This means that only just of 1% of the operational area of search has been investigated.
The Appellant knew and acknowledged at the ES stage, that it was not appropriate for permission to be granted without looking further at the area of operational search – at that time immediately adjacent to the existing AGI to see if the impact on the countryside could be reduced. Applying a consistent approach, it must now also be acknowledged that it is inappropriate for permission to be granted without looking further at sites within the 10km radius.
(iii) That the PRI could be located at Wormington – and on previously developed land at Wormington.
(a) In opening, I asked the rhetorical question, were it not for the presence of the existing 900mm pipeline between Wormington and Tirley, where would it be proposed to connect the new Milford Haven pipeline to the NTS?
(b) From Mr Cooper’s evidence, it is now clear that the answer to that question, is Wormington. He explicitly acknowledged this. Were it not for the existence of that pipeline, NG would have argued, as they may still argue, that no environmental harm would be caused by taking the pipeline to Wormington. The only reason that the connection is not proposed to Wormington, is to save the cost of the additional line.
(c) As to the environmental impact of laying the pipeline to Wormington:-
· There can be no sensible comparison between the impact of an underground pipeline and eradicating 2.5ha of open countryside and replacing it with an substantial industrial complex, the visual presence of which it is acknowledged, cannot be prevented from becoming a permanent feature of the countryside.
· The laying of an underground pipeline has nothing like the same planning significance. As NG explained in the non-technical summary of the ES on the Felindre – Tirley pipeline “one of National Grid’s top priorities .. to return the visual and physical integrity of the landscape, as closely and as quickly as possible, to its previous condition. Specialist techniques have evolved and improved over the past 20 years and are continually being developed.” (C13 RAF 28 PNA 28 p270 columns 3- 4)
· We believe that Mr Reid’s last minute assessment of the route between Tirley and Wormington should be treated with much caution because:
- Mr Reid told us that he had not carried out his journey between Tirley and Wormington until a time at which his client was already firmly committed to the appeal site. He had not carried it out until some 2 weeks after the exchange of proofs of evidence. However dispassionate a consultant may try to be, those are very difficult circumstances in which to make an objective judgement about the potential impact of laying the pipeline. It will be recalled that Mr Reid, in cross-examination, expressed the view that the intrinsic character of the countryside would not be changed by the Corse PRI proposal. We think that that evidence is of itself reason to cause concern as to the degree of objectivity with which Mr Reid was able to make his assessments. Similarly, we are not satisfied that Mr Reid has been given a proper opportunity to make an unrushed and unpressured assessment of the very limited impact that a buried pipeline has upon the landscape through which it travels;
- Mr Reid was able to devote very little time to this exercise. During cross-examination he explained that he had spent more than 3 days on site visits alone, examining the appeal site, but only ½ day on the whole 30km stretch between Tirley and Wormington;
- Mr Reid, with respect to him, is not in a good position to make a judgment about the impact of pipelines on the landscape, his practical experience being limited to a single 4 km stretch;
- No attempt was made properly to assess the other side of the equation, the reduced impact of a PRI at Wormington. It could not have been, because he did not know where it would be located. He assumed that it would have to be on a greenfield site, because at that time, that was his client’s position. Further, he had not had the opportunity to investigate any of the sensitive receptors, roads, houses, footpaths, bridleways etc. Unbeknown to him, Mr Cooper was later to concede that the PRI could be located within the landscaped boundary at Wormington;
- Mr Reid was unable to point to any harm attributable to the existing buried pipelines. If he had been able to identify harm, no doubt he would have done, because that would have been supportive of his client’s case. The powerful suggestion must be, that if the existing pipelines are not harmful, there is no reason to believe that a new linking pipeline, should be.
· In any event, no evidence has been given that any of the various designations noted en route, would be adversely affected – the pipeline route shown, is well clear of them. There is no need for the pipeline to go through the AONB, which in the area in question, would not be worthy of an independent designation, as Mr Turner explained.
(d) We would draw attention to Mr Radmall’s response document F2.7 and the accompanying statement of Mr Brian Minshull on the more likely impact of the laying of the pipeline on this route. There is no reason to believe that any harmful impact in the medium/long term would be caused by the laying of a new line between Tirley and Wormington.
(e) We now know (NG 51) that a PRI could be located on previously developed land at Wormington, subject to a minor diversion of an existing pipeline, to which no technical objection was raised by Mr Cooper. Further landscaping could be carried out, outside the present site, to replace the small amount lost within the site.
(f) As to the question of whether the overall harm associated with the Corse proposal, could be reduced by connecting at Wormington, the answer must be yes. This is because, the PRI would be seen and accommodated within the context of an existing industrial complex, there would be no need for an additional exposure point to terrorism to be introduced; and the greater distance to the nearest dwellings makes it likely that individual risk could be reduced (at the expense of what NG has referred to as a “marginal” increase in societal risk), as could the disturbances attributable to noisy incidents and light pollution.
8.7.12 The Appellant has acknowledged the need to demonstrate that the harm attributable to the need to make the connection to the NTS, could be less than that associated with the Corse proposal. It has done so by examining alternative areas of search, first prior to the refusal; and latterly in most unsatisfactory circumstances, immediately prior to, and indeed, following the commencement of, the Inquiry.
8.7.12.1 But that is no way to make a convincing case that the harm associated with the need to connect at Corse could not be reduced by connecting somewhere else. This is for four reasons:
(i) The “investigations” that have been carried out post-refusal, have been carried out after NG has become heavily committed to a single site. With the best will in the world, there is a very significant difference between searching for something highly motivated to find it; and searching for something, hoping not to find it. We believe that, if by the decision on this appeal, the Appellant is obliged to carry out a thorough search, more would be found, even in the limited areas that have been covered, than has to date;
(ii) The investigations have not only been poorly motivated, but they have been of necessity entirely superficial, prepared under the duress and time pressures that are inescapable, if work is left until two weeks before, or worse, after, the commencement of a public inquiry;
(iii) Only an insignificant proportion (just over 1%) of the 10 km search area has been investigated. 300 sq kms of technically feasible operational area, remain unresearched;
(iv) In these circumstances, it is an impossible task to decide whether the harm associated with the need could be reduced. It is therefore impossible to make a decision by reference to policies which seek to secure the reduction of harmful impacts.
8.8 The plea to economics is one which we find unimpressive. As far as it is made in the context of a statutory duty, then the public interest which the duty to provide an economical system seeks to protect – that of the consumer, would not be adversely affected in the sense contemplated by the Gas Act. That duty is always, it is accepted, subject to the need not to cause environmental harm. It should not be relied upon as a justification for causing environmental harm.
8.9 Indeed, it is not clear that any additional expense would be imposed upon consumers – any additional expense may have to be sustained by the Company. NG does not seek to argue that it would be unable to meet the costs of more environmentally acceptable solutions.
8.10 Insofar as any additional costs would impact upon the consumer (a figure of £0.0006p per cubic metre was accepted, although given the 20 year life (NG70 1.4) of the project only 1/20th of this amount would be recovered annually), this is the basis upon which our planning system works. The additional costs to avoid unacceptable environmental harm, are always ultimately, sustained by consumers.
9. Alternative sites – basic planning principles
9.1 It is useful, when looking at the issue of alternative sites, to take an example of a developer who acknowledges that his development will cause harm, but seeks to justify that harm, on the basis of a case of need.
9.2 Let us suppose that it had been argued that the only place that the connection to the NTS could be made, was a site at the top of Corse Hill.
9.3 It would be open for the decision taker to refuse permission, however powerful the case of need. The assessment would be a straightforward one of need against impact.
9.4 Let us now suppose, that the developer acknowledged that the need could be met either on a site at the top of Corse Hill, or within a 2 km radius. But he refused to carry out any search in that wider area. He simply sought his permission at the top of Corse Hill.
9.5 The decision taker, as always, may refuse permission on the basis of the harmful impact. Permission may be refused on the basis of the harm caused, without any alternative sites being identified.
9.6 Decision takers have sometimes, rather than simply refusing permission on the basis that the harm is not outweighed by the case of need, gone further and made the observation that they think that the need could be met elsewhere. This latter approach has lead to litigation.
9.7 Permission in this case could be refused, simply because of the harm caused at Corse. NG knows this and has known it throughout.
9.8 In order to avert a refusal, NG has carried out a search of the areas within which the operational connection may be made. It has done this in order to satisfy the decision taker, that the need could not be met in a less harmful way, or that the costs would be so disproportionate to the reduction of harm, that it should be allowed to cause the harm originally proposed.
9.9 That is the way in which the alternative sites issue arises in this case. It is not a question of whether or not other parties have identified specific alternative sites, but of whether, the developer has successfully avoided a refusal on the basis of harm, by showing that that harm could not be reduced, if the need is to be met i.e. that his need is one which will inevitably cause that degree of harm.
9.10 This Appellant knows that it bears the onus of making a case in relation to this proposal, that the connection could not be made in a less harmful way. That is why five other sites were originally reviewed; and then a further nine. The Appellant took the initiative to investigate its operational area of search, in order to demonstrate that there were unlikely to be less harmful sites within it. It did this in order to avert a refusal.
9.11 Again, when it became clear that the operational area of search was not as limited as had previously been suggested, the Appellant knew that it had to prepare at least some evidence, in relation to Wormington and the 5 km areas to the East, and latterly to the West. I have already referred to the shortcomings of that evidence and to the fact that no work at all has been carried out by far the greatest part of the 10 km search area (an area nearly 100 times as great as the 1km search area which was the subject matter of the ES).
9.12 That is the context within which the alternative sites issue should be examined. That this is a case in which the developer has sought to avert a refusal of planning permission by actively making a case that within the operational area, there are no less harmful sites.
10. Alternative sites – authorities
10.1 In Trusthouse Forte Hotels Ltd v Secretary of State
(1986) P & CR 293. The High Court found that it was not necessary for alternative sites to be specifically identified before it could be concluded that a need could be met on an alternative site.
(i) At p298 (last line) – 299 (top) “Mr Horton accepts that the Inspector could have said:
I recognise that the need may well not be met if this appeal is dismissed, but I nevertheless recommend its dismissal because the planning objections are such as to outweigh the need.
“But as Mr Horton rightly points out, this was not the basis of the decision, rather it was that the need could be met elsewhere.”
This is the point that I have made at 9.5 and 9.6 above. Permission in this (Corse) case could be refused simply on the basis that the case of need presented did not justify the harmful impact. It is not necessary to go on to find that the need could be met on an alternative site.
(ii) MLF Mr Holgate successfully argued in the Trusthouse Forte case that “there was no objection in principle to a planning authority concluding in certain cases at least that a particular need can be satisfied elsewhere than upon the appeal site even though no other specific sites are identified and established as preferable alternatives” (p301).
(iii) Seven indicative features are then set out in the judgment. As to each of these:
(a) This is a case where planning objections are sought to be overcome by reference to need. There are substantial objections and this means that it is very material to consider the possibility of meeting the need elsewhere.
(b) It is not appropriate in this case for the LPA/objectors to identify alternative sites. First, because NG has not been open as to the operational area within which such sites might be found (we still only know what CAPRI has been able to force from NG – there may be an even wider area of search for all we know) and secondly because the technical knowledge as to detailed site constraints make it impossible for the LPA and objectors to identify alternatives. NG knows, and has consistently conducted itself on the basis, that it is for the Company to carry out the search, within the operational area, for alternative sites; and this they have failed to do.
(c) The objections relate to the development of the appeal site itself rather than to some intrinsically offensive aspect of the proposed development wherever it might be sited. It is the nature of the appeal site and its surroundings that means that permanent visual harm cannot be successfully mitigated, that the bunds have to be so steep, that there is hardly any space for landscaping, that the proximity of dwellings unacceptably raises individual risk etc. It may well be that this form of development could be entirely satisfactorily located on another site. Indeed it is likely that it could be satisfactorily located at Wormington. The points is, that the work has not be carried out to determine this. Most of the area of search has been ignored.
(d) This is an alternative to (e). The requirements are (we now know) not specific and exacting to meet the need. Even on the work that a resident’s group has carried out, it is now clear that operationally, the asserted need could be met within an area of some 300 sq km.
(e) Clearly it is more difficult, but the reason for the difficulty has been the lack of openness about the true operational area of search.
(f) The facts of this (Corse) case answer this point without more. The Appellant knows that the circumstances are such that the burden is upon it, not upon objectors, to establish that the need can be met elsewhere. That is why NG, of its own initiative, made an investigation of the operational area of search at the outset, to prove that there were no more suitable sites. Now that it has become clear that the operational area of search is some 100 times greater than originally acknowledged, NG should, consistently with its approach in the past, search the whole of that wider area.
(g) It is accordingly open to the decision taker to conclude on the facts that the accepted need can and should be met elsewhere than upon the appeal site without reference to specific alternative sites.
(iv) An alternative (and more simple) approach, would be simply to conclude that the Appellant has failed to demonstrate that it needs to develop the appeal site (see paragraphs 9.5, 9.6 and 10.1 (i) above).
10.2 Edwards
This case concerned alternative identified sites and is not relevant, although it is consistent with Trusthouse Forte which was cited (page 63 (e)).
10.3 Scott Jones
For the same reason, the case is not directly relevant, but the test
“such circumstances will particularly arise where the proposed development, though desirable in itself, involves on the site proposed such conspicuous adverse effects that the possibility of an alternative site lacking such drawbacks necessarily itself becomes, in the mind of a reasonable local authority, a relevant planning consideration” (pr 30)
is one which, if applied to the Corse case, would invite the consideration of alternative sites. NG treated the application as passing this test, by investigating alternative sites on its own initiative. The test was found not to be satisfied on the facts in Scott Jones
10.4 Mount Cook Land
The Court of Appeal approved Scott Jones (pr 34) and found that where the application itself did not harm, but preserved and enhanced its host environment, it was not appropriate to examine alternative sites (pr 32). Trusthouse Forte was cited with approval (pr 34).
11. Conclusion
11.1 The Appellant has not begun the work that it knows that it must do, as a Company with clear public responsibilities and duties, to demonstrate that it does not need to cause the harm that it proposes to cause, in the field opposite the Tirley AGI.
11.2 It knows that it must now establish that the need to connect to the NTS, cannot be met without inflicting the heavy toll that it has hitherto proposed to inflict upon the residents of Corse and Staunton.
11.3 It knows that it must now carry through the work that it began in investigating a 1km radius area of search, by investigating the other 99%, or more than 300 sq kms of land, that it has to date ignored.
11.4 It knows that it must carry out a detached and dispassionate appraisal of the potential of Wormington to accommodate the PRI, which has been impossible in the contentious, tense and pressurised environment that inevitably accompanies the Inquiry process. It cannot properly appraise Wormington, nor any other site nor area, whilst it is doing all it can in its power to defend the site to which it has psychologically committed itself at Corse.
11.5 There is time to do this – Mr Cooper’s appendices show that the time of maximum demand for the gas, is still more than 2 ½ years away.
11.6 The ill preparedness of the Company for this Inquiry has taken the local residents by surprise. Certainly more than half, possibly as much as 80% of its evidence, almost all relating to matters that it should have known it should have covered in the first instance, has emerged after the exchange of proofs of evidence.
11.7 The Company’s plans are in no fit state, legitimately for it to claim to be entitled:
· To cause permanent harm to the intrinsic character of this much treasured corner of the English countryside;
· To compound this by causing significant, obvious and permanent visual harm;
· To eradicate a Greenfield site, when a brownfield site is known to be available
· To introduce new levels of noise and light pollution in circumstances in which it is frankly admitted, it is not known what the consequences in terms of frequency and duration, of these will be,
· To inflict a level of risk upon existing householders, just below that considered “unacceptable” by the HSE
· To inflict that level of risk on the basis of a “risk assessment” that cannot be checked, but has to be taken on trust
· To do so without carrying out any investigation whatsoever as to whether that high level of risk could be reduced by locating the proposed development elsewhere
· To introduce into an isolated position a new and obvious target for terrorism
· To do so, at a time when it is known that terrorists are specifically considering the gas network as a target, without carrying out any investigation at to whether or not potentially dreadful consequences could be avoided by the simple expedient of locating on a more sensibly located site elsewhere.
11.8 The appeal proposals are ill thought through, highly presumptive and have not begun to be shown to be necessary in this location. CAPRI urges our Inspectors to recommend to the Secretaries of State that this appeal should be dismissed.
SEBASTIAN HEAD
HEADLAND CHAMBERS