Harbours Act 1964 Public local inquiry in connection with The Rosyth International Container Terminal (Harbour Revision) Order 201[X] Note of matters agreed at or arising from pre-inquiry meeting in Rosyth CSSC Club, Castle Road, Rosyth on 14 September 2011
Introduction 1. The Scottish Ministers have appointed Lindsey Nicoll, Chief Reporter and David Gordon, Principal Reporter with the Scottish Government’s Directorate for Planning and Environmental Appeals to hold a public local inquiry into objections made to applications by Port Babcock Rosyth Ltd (‘Babcock’) for two Harbour Revision Orders: •
The Rosyth International Container Terminal (Harbour Revision) Order 201[X] (the ‘RICT’ Order); and
The River Forth (Port Babcock Rosyth Port Limits) Harbour Revision Order 201[X] (the ‘River’ Order).
2. In their objections to the orders Forth Ports Ltd argued that Ministers do not have the legal powers to make the orders sought and asked for this legal issue to be decided before any inquiry into the objections to the orders was held. 3. Ministers wrote to Babcock and Forth Ports on 2 September 2011 informing them that: (1) they do not consider that the River Order can proceed further; and (2) they are satisfied at this stage that it would be within their powers to make the proposed RICT Order. 4. Babcock have confirmed that they are no longer pursuing the application for the River Order. Accordingly the inquiry will deal with the objections made to the RICT Order.
Inquiry dates and venue 5. The inquiry will start at 10.00 a.m. on Monday, 16 January 2012. It will generally sit four days a week, Monday-Thursday, and may last up to four weeks. 6. From the second day onwards, the inquiry is likely to start at 9.30 or 9.45 a.m. It will normally sit until about 4.45 p.m., with a break of one hour for lunch.
7. It will be held in Pitbauchlie House Hotel, Aberdour Road, Dunfermline KY11 4PB. The hotel will provide secure overnight storage for documents etc.
Parties who intend taking part in inquiry 8.
The following parties indicated that they may participate in the inquiry: •
The applicant (case to be presented by Dr Martin Sales, Biggart Baillie LLP)
Fife Council (Angus Dodds, Development Management Planner)
Objectors: Forth Ports Ltd (Morag McNeill, General Counsel) RSPB Scotland (Aedan Smith, Head of Planning & Development) Charlestown, Limekilns & Pattiesmuir Community Council (including some individual objectors) (case to be co-ordinated by Ms Suzanne McIntosh) Mr J Bebbington (who may join in with the community council) Dr Tom and Mrs Beryl Leatherland (As they were unable to attend the meeting, the reporters do not know whether they would be willing to join in with the community council.) Councillor Gerry McMullan
Supporter: Rosyth Community Council (Mike Shirkie)
Main issues to be considered at the inquiry 9. Forth Ports confirmed that they wish to make further submissions on the legal powers of Ministers to make the proposed RICT Order. They may, in addition, wish to lead evidence on this issue. Further written submissions are to be made on this point as soon as possible. 10. The reporters referred to the National Planning Framework 2 (NPF2) which designates ‘additional container freight capacity on the Forth’ (including Rosyth) and ‘Grangemouth Freight Hub’ as projects of national importance. 11. NPF2 accepts that there is need for additional capacity at both Rosyth and Grangemouth. That policy has been endorsed by the Scottish Parliament. It would not be appropriate for that debate to be reopened in the context of this inquiry. For this reason the reporters indicated that they are unlikely to find evidence that questions the need for a facility at Rosyth or suggests that improving facilities at Grangemouth would be a better economic investment, to be useful or relevant to the issues before them.
12. However, in considering the application for the RICT Order, Ministers must have regard to the criteria set out in section 14(2)(b) of the Harbours Act 1964. If Ministers were to make an order they would have to be satisfied that it was desirable in the interests of securing the improvement, maintenance or management of the harbour in an efficient and economical manner or of facilitating the efficient and economic transport of goods and passengers by sea or in the interests of the recreational use of sea-going ships. 13. Finally, on this issue, NPF2 establishes the need in principle for designated projects. Specific proposals for development require to be assessed for their environmental impact in the usual way. 14.
The main issues for consideration at the inquiry will include: •
the policy context: NPF2, national ports policy (Modern Ports: a UK Policy), Scottish Planning Policy, the structure plan, the adopted local plan, and the draft local development plan;
environmental impacts from construction and operation;
relevant issues raised by consultees and others who have made representations; and
possible modifications to the Order.
Clarification of the relationship with other consenting regimes 15. The reporters would find it useful if the main parties (in particular, Babcock, Forth Ports and Fife Council) could briefly address in their statements of case the relationship between the procedure for seeking a HRO and the planning system (especially the GPDO) and the marine licensing system. Which works authorised by the RICT would require additional consents and what is the up to date position regarding applications for those consents? 16. It would be helpful if copies of recent decision letters and orders made under the Harbours Act 1964 (e.g. Lerwick, Port Ryan and Scrabster) could be lodged as documents. 17. A common feature of recent orders is for the harbour authority to undertake the works specified in the order in accordance with the commitments given in the Environmental Statement and/or for an Environmental Management Plan to be drawn up and submitted to SEPA/Scottish Ministers for approval before works can commence. 18. Article 17 of the proposed RICT Order binds Babcock to act in accordance with the commitments in the Environmental Statement. The reporters note that Babcock have reached agreement with SEPA that Article 17 should be amended to provide that no works shall commence until
Scottish Ministers, on SEPAâ€™s advice, have approved an Environmental Management Plan. 19.
The reporters asked for clarification of 3 matters:
(1) Updating information/developments since publication of the ES. The Environmental Statement, supporting documentation and draft orders, were published in January. Parties had 42 days to submit objections or representations. The reporters have copies of all objections and also representations or advice given by statutory bodies and consultees such as Fife Council, SEPA, SNH, Transport Scotland, Historic Scotland and Marine Scotland. Babcock entered into discussion with those who had made objections/representations to see if these could be resolved or addressed. The reporters have been given copies of those written exchanges. It appears that in response to further information or assurances given, some people or bodies changed their position and have withdrawn or conditionally withdrawn their objections. The reporters would like to know whether any information/assurances given as a result of that process of discussion/negotiation are to be incorporated into the commitments given in the Environmental Statement or whether any amendments to the Statement are proposed in the light of comments made. (2) Scope of the Environmental Management Plan The reporters would like to know whether the Environmental Management Plan to be submitted to Scottish Ministers would be concerned essentially with works or operations that might have an impact on water quality. Would it cover, for example, issues such as noise, lighting or traffic associated with the construction or operation of the works? If not, how would other environmental impacts be regulated/monitored? (3) Fife Council It appears that Fife Council is not objecting in principle to the HRO. In responding to publication of the draft HRO the council raised a number of outstanding issues about traffic, noise and light emissions from the site, disposal of dredged materials, and the completion of a feasibility study regarding the use of rail freight and upgrading existing rail routes. It appears that Babcock have had continuing discussions with the council on these issues. It would be helpful to have an update on the progress of those discussions. How are any additional requirements/undertakings/commitments on issues relating to traffic (including infrastructure improvements), noise and light to be reflected in the Order?
Further reports 20. Babcock intend publishing two further reports – an assessment of cumulative dredging impacts on the River Teith SAC, and an updated noise assessment (in the light of recent Scottish Government advice). These will be published no later than 5 October (3 weeks after the pre-inquiry meeting). 21. For the purposes of paragraph 10A of schedule 3 to the Harbours Act 1964, the reporters consider that these reports are required for the purposes of the inquiry.
Inquiry procedures 22. There are no rules or regulations governing the conduct of public local inquiries under the Harbours Act. The reporters have decided to adopt, with adaptations, the Compulsory Purchase by Public Authorities (Inquiries Procedure) (Scotland) Rules 1998 – and the guidance in SODD Circular 17/1998.
Pre-inquiry distribution of material 23. Statements of case are required from Babcock and from “relevant persons”. The relevant persons – if they are participating in the inquiry – are Fife Council, Forth Ports, RSPB Scotland and the Charlestown, Limekilns & Pattiesmuir Community Council. 24. Statements of case must contain the full particulars of the case to be presented at the inquiry by that party. They should be accompanied by a list of the documents to which reference will be made, and they should indicate which witnesses are likely to be called. They must be submitted no later than 19 October 2011. 25. If any of those parties who have submitted a statement of case wish to adjust it in the light of comments made in other parties’ statements, they must submit the revised version no later than 2 November 2011. 26. Parties are encouraged to consider preparing agreed statements. These should be submitted by 23 November 2011. 27. Documents include, not just written documents, but also such things as maps and photographs. Where any party wants to refer to such material in the course of their evidence, they must submit it in advance – as a document, not as an appendix to a precognition. Documents should be clearly numbered, and properly ordered, preferably in ring binders. Documents must be submitted no later than 1 December 2011.
28. Parties should co-operate in the identification of ‘core documents’ – i.e. those that are likely to be referred to by others, including the environmental statement, development plans and other background material. 29. Precognitions are required from all witnesses who propose to give evidence. Where precognitions exceed 2000 words, a summary precognition must also be produced. Precognitions and summaries must be submitted no later than 12 December 2011. 30. The reporters would encourage the use of rebuttal precognitions in appropriate circumstances. Where a precognition is received which includes material with which a witness for an opposing party disagrees, but which has not been addressed in their precognition, it can sometimes be helpful for that witness to produce a rebuttal precognition dealing with that matter. Rebuttal precognitions must be submitted no later than 19 December 2011. 31. Parties lodging any of the above items must send copies to Babcock, the relevant persons and the reporters. The reporters request that they are sent two sets of all documents in hard form, plus electronic copies where possible. They are content for statements of case and precognitions to be sent to them electronically (as Word documents). 32. Hard copies of material should be sent to those parties who request that it be sent in this form. However some parties may be content to receive material electronically. Parties lodging material should liaise with each other to agree how they would wish the exchanges to take place. 33. One full set of all the above mentioned material (statements of case, documents, precognitions etc.) will be held on deposit, and available for public viewing, at Rosyth Library, Parkgate, Rosyth KY11 2JW. Fife Council will bring this material to the inquiry venue on 16 January 2012, and ensure that it is available to those at the inquiry, for the duration of the inquiry. 34. Statements of case, documents and precognitions, along with other relevant inquiry material, will be posted on the Directorate for Planning and Environmental Appeals website – www.dpea.scotland.gov.uk. It can be accessed via the simple case search by entering ‘Port Babcock Rosyth’ in the file reference box. 35. If any party wishes to make legal submissions that might have a bearing on the inquiry programme, they should put these in writing and forward them to the reporters as early as possible. Such submissions should not be left until the opening day of the inquiry.
At the inquiry 36. The reporters anticipate that evidence will be presented on a case-bycase basis, starting with Babcock. They have no fixed view on the order in which other parties should present their evidence. One option might be:
Rosyth Community Council, Fife Council, Forth Ports, RSPB Scotland, Charlestown, Limekilns & Pattiesmuir Community Council, and finally, individuals. 37. Witnesses will read out their precognition – or their summary precognition, if the main precognition exceeds 2000 words. Opposing parties will be invited to cross-examine witnesses. In general, a party who is crossexamining a witness should restrict their questions to issues which they have raised in their own evidence. Those ‘on the same side’ will not be allowed to cross-examine each other, but will be allowed to seek clarification. The reporters may ask questions, after cross-examination – or at any other time. Where a witness is being led, their lawyer (for example) will be allowed to reexamine the witness after the reporters’ questioning has been completed. 38. All parties who give evidence will have the opportunity to make closing submissions – with Babcock having the last word. This may be done by means of a written exchange. 39. The reporters would urge everyone – in their presentation of evidence and in examining others – to focus on the main areas of disagreement. Parties should also avoid repetition. The reporters are likely to intervene if they think evidence – or questioning – is irrelevant or repetitive. 40. The reporters would encourage parties to discuss, and seek agreement on, a suggested indicative programme for presenting evidence. This should be submitted to the reporters a week before the start of the inquiry. The programme is likely to be adjusted as the inquiry progresses.
Site inspections 41. The reporters would like to visit the site, in the company of parties, before the start of the inquiry. The case officer will contact Babcock – and other parties – about arrangements for this. 42. The reporters will make unaccompanied inspections of the area as required. They will consider, with others, whether an accompanied inspection, probably at the close of the inquiry, would be useful.
Further information and questions 43. A copy of this note will be sent to all those who have indicated they wish to participate in the inquiry. It will also be posted on the DPEA website. 44. Questions to the Directorate for Planning and Environmental Appeals should be directed in the first instance to the case officer – Scott Sayers. His contact details are:
• • • •
address – 4 The Courtyard, Callendar Business Park, Callendar Road, Falkirk FK1 1XR telephone – 01324 696 469 fax – 01324 696 482 email –Scott.Sayers@scotland.gsi.gov.uk
Annex – Contact details for applicant and relevant persons
Port Babcock Rosyth Ltd •
Dr Martin Sales, Partner - Planning
Biggart Baillie LLP, No 2. Lochrin Square, 96 Fountainbridge, Edinburgh, EH3 9QA Tel: 0131 226 5541 firstname.lastname@example.org
Fife Council •
Angus Dodds, Planner
Development Management, Development Services, Forth House, Abbotshall Road, Kirkcaldy KY1 1RU Tel: 08451 555 555 (480165) Angus.Dodds@fife.gsx.gov.uk
Forth Ports Ltd •
Morag McNeill, General Counsel
Forth Ports Limited, 1 Prince of Wales Dock, Edinburgh EH6 7DX Tel: 0131 555 8731 Morag.McNeill@forthports.co.uk
RSPB Scotland •
Claire Smith, Conservation Officer - Tayside & Fife
RSPB Scotland, Tayside & Fife Office, 1 Atholl Crescent, Perth PH1 5NG Tel: 01738 783235 email@example.com
Charlestown, Limekilns & Pattiesmuir Community Council â€˘
Suzanne McIntosh, Suzanne McIntosh Planning, Planning Consultancy, Urban Design and Mediation
45C Bath Street, Portobello, Edinburgh EH15 1HB Tel: 07792 230979 firstname.lastname@example.org â€˘
Sue Hamilton, Secretary
3 Charles Court, Limekilns KY11 3LG Tel: 01383 872947 email@example.com * Please note that Charlestown, Limekilns & Pattiesmuir Community Council have requested that hard copies of documents and other inquiry material are sent to Mrs Hamilton, not Ms McIntosh.