Environmental understatement, part 1

In my blog Join up the dots and see what you get (posted 27 Jul 2016) I explained that it is only now, with the recent addition of an indication of the extent of the lowest observed adverse effect level (LOAEL) as determined by the maximum noise level from a single train pass-by (LAMax), that the operational noise maps published by HS2 Ltd indicate the true impact on health and wellbeing. That, you might think, would be bad enough, but the underlying implications cut much deeper into the essence of the HS2 design.

Simply, the reason why the LAMax LOAEL was not shown on the noise contour maps as originally published is, as I understand it, because the adoption of the LAMax LOAEL post-dated the publication of the Environmental Statement (ES). As far as I can tell, the first mention of the LAMax LOAEL came when Information Paper E20 was first published, which was some eight months after the ES (see footnote 1). The result of this is that you will search the ES in vain to find any reference to LOAEL expressed in terms of LAmax (see footnote 2).

It is true that you will find predicted values of LAMax for every assessment point in the tabulations in the Appendix SV-004-0xy series in ES Volume 5, but these are required because the ES employs LAMax as one of the parameters for the determination of the significant observed adverse effect level (SOAEL) threshold (see footnote 3): these maximum noise level predictions have not been utilised to determine if the assessment points will be at, or above, LOAEL.

The outcome of this important omission is that the evaluation of the acoustic impacts of the HS2 design, and consequent assessment of the need for mitigation, have been based upon too lenient criteria and are, subsequently, deficient; and I don’t think that I am being over-dramatic in making that claim.

A good illustration of what this means in practice was brought to the attention of the Lords HS2 Select Committee by Cllr Michael Burgun when he presented the petition of the Joint Parish Council for Eathorpe, Hunningham, Offchurch and Wappenbury (see footnote 4). Cllr Burgun complained that the “average noise maps used during all previous meetings” with HS2 Ltd had “created the impression that the village of Offchurch was effectively outside the affected area” (see footnote 5). One of the exhibits that he presented to the Committee, which I reproduce below, is the HS2 Ltd “average noise map” covering Offchurch village and surrounding area, to which Cllr Burgun and his colleagues have added a single red line near the bottom of the frame.

Source: Lords HS2 Select Committee evidence

Source: Lords HS2 Select Committee evidence

Cllr Burgun referred to this red line as “the 57dB free field peak noise approximate contour”: this corresponds to the 60dB façade level that HS2 Ltd has set as LOAEL night. Although the councillor accepted that this addition to the HS2 Ltd drawing was “an amateur attempt”, he was clear what it unequivocally demonstrated (see footnote 6):

“… the average grey contour of 40dB at night average noise has correctly or otherwise created the illusion that the village was outwith any noise effects of any consequence. The peak noise contour, accepting please, that it is approximate, indicates that Offchurch village sees peak noise in excess of the contour drawn.”

Cllr Burgun reinforced the message by then showing the Committee the tabulation reproduced below.

Source: Lords HS2 Select Committee evidence

Source: Lords HS2 Select Committee evidence

The councillor clarified that the tabulation includes “all of the noise receptors, including a couple outside our area on the road that proceeds towards Cubbington” and explained (see footnote 7):

“Any time that the day-time average goes over 50, we’ve made it red; every time the night-time average goes over 40, we’ve made it red; and every time the peak noise goes over 57, free field measurement, we’ve put it red.”

He concluded that it showed, “Quite a lot of red for our quiet rural greenbelt and conservation area to be subjected to” (see footnote 8). Indeed, whereas 16 of the 27 assessment locations exceed the 40dB LOAEL night equivalent continuous sound level, amounting to 59 per cent, that figure rises to 25, or 92 per cent, when the LAMax LOAEL threshold is employed.

Of course, what Cllr Burgun was demonstrating to the Lords Select Committee for Offchurch had already, as I reported in my blog A very noisy bird, part 1 (posted 22 Aug 2015), been shown to be true for Wendover and Berkswell to the Commons Select Committee, and, we can be sure, applies up and down the HS2 route.

(To be concluded …)

Footnotes:

  1. According to the front cover of each volume, the original issue date of the Environmental Specification was November 2013 (actually 25thNovember 2013). The date printed on Information Paper E20 has been updated with each new version without, contrary to good practice in document control, an issue history being included in the document. However, the website that is a gateway for downloading the E-series of information papers lists the original issue date as 30th July 2014.
  2. See, for example, paragraph 1.5.41 of ES Volume 5 Appendix SV-001-000, where LOAEL is defined in terms of LpAeq
  3. See paragraph 1.5.26 of ES Volume 5 Appendix SV-001-000.
  4. The hearing may be viewed from the start of the video of the afternoon session of the HS2 Lords Select Committee held on Tuesday 19thJuly 2016.
  5. See paragraph 34 of the transcript of the afternoon session of the Lords HS2 Select Committee held on Tuesday 19thJuly 2016.
  6. See paragraph 35 of the transcript of the afternoon session of the Lords HS2 Select Committee held on Tuesday 19thJuly 2016.
  7. See paragraph 36 of the transcript of the afternoon session of the Lords HS2 Select Committee held on Tuesday 19thJuly 2016.
  8. See paragraph 37 of the transcript of the afternoon session of the Lords HS2 Select Committee held on Tuesday 19thJuly 2016.

Acknowledgement: I wish to thank Michael Burgun for providing me with copies of the two items from the evidence exhibits submitted to the Lords HS2 Select Committee by the Joint Parish Council for Eathorpe, Hunningham, Offchurch and Wappenbury.

Important Note: The record of the proceedings of the Lords HS2 Select Committee from which the quotes reproduced in this blog have been taken is an uncorrected transcript of evidence, which is not yet an approved formal record. Neither witnesses nor Members have had the opportunity to correct the record in such instances, and it may therefore be subject to changes being made in the light of any such corrections being requested.

Join up the dots and see what you get

When I was a lad I was a big fan of the puzzle page in the children’s comics of the day. I remember one particular type of puzzle that was a jumble of numbered dots: only when you joined the dots in sequence by straight-line segments did a picture emerge. Whilst this may not have posed much of an intellectual challenge, it was very satisfying to see a picture gradually emerging from the chaos of dots and numbers. I don’t know whether these puzzles have survived the technological revolution that has meant that the kids of today have many more sophisticated distractions, but I hope so. Certainly, to judge by a drawing that has recently come into my possession, HS2 Ltd might have taken some inspiration from them.

The drawing to which I refer came to me within the Promoter’s evidence pack provided for the Lords Select Committee hearing of the petition by Cubbington Parish Council, for which I was acting as Roll B Agent, and it depicts the operational noise contours that will affect the Parish. It bears the Promoter’s reference P1191 12. Since the Cubbington PC petition did not raise noise as an issue, I assume that a similar drawing will be standard issue to all petitioners irrespective of whether they have petitioned against noise or not. The drawing reference number is the same as the equivalent drawing that was included in Volume 5 of the Environmental Statement (SV-02-046). I have reproduced a section of this drawing below.

Source: HS2 Ltd

Source: HS2 Ltd

The new version of SV-02-046 appears identical to the original version in the Environmental Statement (ES) with one small change; some of the dots indicating locations where operational noise assessments have been made now have squares drawn around them. The drawing legend informs that these squares indicate that these particular assessment locations have LAMax in excess of, or equal to, 60dB, measured at the façade of a building. A further note advises that the level that has been calculated is for HS2 train noise only, and the calculated free-field levels tabulated in the ES have been converted to façade levels by adding a 2.5dB correction – so a level of 57.5dB LAMax in the ES tabulation comes out at 60dB façade.

Those of you who have been paying attention over the past months will appreciate that what the drawing is showing is the extent of operational noise from HS2 trains that is predicted to equal or exceed the lowest observed adverse effect level (LOAEL) determined in three ways. The full line enclosing the grey shaded area is a contour for 40dB LpAeq,night, which has been specified by HS2 Ltd as LOAEL night using the equivalent continuous sound level methodology for calculating noise. A reasonable simplifying assumption has been made that this contour also represents 50dB LpAeq,day. The squares are an attempt to indicate the limits of the LOAEL contour when considering the noise from a single train pass-by. This lowest adverse effect level has been determined by considering the sleep disturbance effects of each train pass-by, and the health effects arising therefrom, and so is applicable to the night hours only; as I explained above, this LOAEL has been set by HS2 Ltd at 60dB façade (57.5dB free-field).

What we can’t tell precisely from the HS2 Ltd version of a join up the dots puzzle is exactly where the 60dB LAMax contour should be drawn. All that we can say is that it will lie somewhere between each dot with a square around it and the nearest dot without a square that is further away from the trackline.

So these squares represent HS2 Ltd’s response to its acceptance that the noise maps were deficient in only showing the limits for LOAEL calculated in two out of the three possible ways. As I was told at the Kenilworth information event in late April this year, and reported in my blog What a turn-up (and turn-out)! (posted 16 May 2016), we have not been given the LAMax LOAEL in contour form, and so the depiction is inconsistent with the way that the two equivalent continuous sound level LOAELs have been shown.

What is abundantly clear from the location of the squares is that the area over which operational peak noise from a single train pass-by is predicted to exceed LOAEL is much larger than when LOAEL is defined in terms of the equivalent continuous sound level.

Take for example the bottom-most and most right square on the map reproduced above, which happens to be within fifty metres of where I live. This dot/square is just about twice as far from the track centreline as the 40dB LOAEL contour. This hardly comes as a surprise, since it was pointed out in evidence given to the Commons Select Committee by the Promoter’s noise expert, Rupert Thornely-Taylor, a number of times, that the LAMax LOAEL contour defines a larger area, as I reported in my blog I’m sorry, what did you say? (posted 14 Nov 2015).

It is important to bear in mind that this isn’t a trivial matter. LOAEL is an important threshold, because as well as demarcating the area where HS2 noise may lead to adverse effects on health and wellbeing being observed it also designates the point at which the developer is required to “mitigate and minimise adverse impacts on health and quality of life” by the Noise Policy Statement for England.

What is clear is that the noise contour maps that the Promoter produced as evidence of noise effects throughout the Commons Select Committee process understated the true effects of HS2 operations, and it is only now, more than thirty months after the ES was first published and almost two years after the first petitioners were heard, that maps that show the true picture are being presented in evidence.

You might think that this clean breast has taken far too long, and has come far too late to influence the Bill process – you might very well be right.

So what can you do for me, My Lord?

Having just returned from my session presenting the petition of my parish council to the House of Lords HS2 Phase 1 Select Committee (see footnote 1), I feel bound to reflect on the differences between this experience and the similar visit that I made to Westminster some eighteen months ago to petition the equivalent committee of the House of Commons. The Commons Committee described the Lords as undertaking “a similar task to ours” (see footnote 2), but I think that anyone who was expecting that we would see a simple rerun of the examination of issues that had already been considered by the Commons Committee would by now realise that is not what is going on. The House of Lords may have an important role in scrutinising and reviewing decisions that are taken in the Lower House, but the evidence so far is that the Lords HS2 Select Committee does not appear to have much of an appetite for challenging decisions taken by its Commons counterpart. The Promoter’s legal team appear to be using this reluctance to their advantage by citing decisions taken “in the Other Place” as being sufficient justification that those decisions were correct (see footnote 3). What petitioners are experiencing appears to be far removed from the promise made in the guide put out by the House of Lords Private Bill Office that “the two Houses consider the bill entirely independently” (see footnote 4).

To my mind, the appointment as Chairman of the Lords Select Committee of a former Justice of the Supreme Court of the United Kingdom has coloured the way that decisions and rulings have been made. These are handed down by Lord Walker in a form that appears indistinguishable from the rulings that he would have delivered from his Supreme Court bench, and rely on a strict judicial interpretation of Standing Orders and precedent, rather than on the modicum of good sense and common justice that the Commons Select Committee brought to bear – on a good day that is. Without doubt this has favoured the Promoter’s legal team, who have been able to pray in aid rules and past rulings that many feel are inappropriate in a modern context in order to severely limit the scope for petitioning. So most of the locus standi objections lodged by the Promoter have been upheld, leaving little more than a half of those who petitioned able to have their petitions heard in Committee Room 4. Even worse than this perhaps, the Government’s view that the Lords Select Committee has no powers to consider further changes to the HS2 design that would require an additional provision has been accepted by the Committee, so ruling out many of the remedies suggested by petitioners.

This is not to say that I think that Lord Walker is guilty of unduly favouring the Promoter. He is a Crossbencher and, as such you would hope, independent of any influence that the Government’s business managers might want to exert to get the hybrid Bill to Royal Assent as soon as possible. It is just that the judicial view of life and what one might call a common sense appreciation of what is right do not always arrive at the same conclusions. What does appear to be the case is that the Promoter’s legal team have enjoyed almost complete success with their attempts to reign back the rights of petitioners.

I also sense that under Lord Walker’s stewardship we are seeing a shift in the way that select committee proceedings are conducted. Although the Commons Select Committee was said to be a quasi-judicial process, it was a remarkably relaxed affair and petitioners appearing were often allowed considerable latitude. From what we have seen so far, it appears that proceedings in Committee Room 4 will be far closer to the conduct of a court of law and petitioners may expect to be brought into line if they stray off course.

I witnessed an example of how brutal this approach could be on the very day that I attended the Committee. A petitioner who was unhappy with the valuation that he had been given for a compensation payment under the Express Purchase Scheme was told that the Committee were “not going to listen to any more of this” and were “not a Committee that can deal with detailed questions of valuation”. When the petitioner continued to argue his case, Lord Walker terminated the hearing, telling the petitioner that he was “wasting [the Committee’s] time” (see footnote 5).

The day following my visit to Westminster, another person appearing in front of the Committee was given short shrift. In spite of having previously advised those “whose individual petitions are disallowed” that they could “still contribute … as witnesses on others’ petitions” (see footnote 6), the Chairman curtailed the evidence of one such witness, protesting that he was “simply trying to have another go at his own personal complaints” (see footnote 7).

The day following that, the presentation of evidence by a parish meeting petitioner was interrupted by the Chairman – Lord Freeman, not Lord Walker on this day – to ask the Promoter’s Counsel, “Do you believe that what [the petitioner is] basically asking for is what’s called an additional provision?” (see footnote 8).

The additional disadvantages being suffered by petitioners as a result of the rulings being made by the Select Committee were further added to by a statement made by Lord Walker at the start of the session that I attended. He upheld the Promoter’s challenge to the locus standi of eight Members of Parliament who had petitioned, on the basis that they had no locus as of right and that the Committee saw no basis on which to grant its discretion in this matter. One MP, the Rt Hon Cheryl Gillan, was as a “mark of respect” given the right to address the Committee, but not as a petitioner. Lord Walker stressed that the ruling “does not in any way diminish the reciprocal relations of courtesy and respect that prevail between Members of the two Houses” (see footnote 9).

I’m not sure that Mrs Gillan agrees with Lord Walker’s assessment of the impact that his ruling might have on relations with the Lower Chamber: she is quoted by one source as describing the decision as “an affront to democracy” (see footnote 10). It certainly silences eight powerful voices supporting petitioners.

At the start of the morning session of the Committee’s penultimate day of public hearings before the summer recess, Lord Walker warned petitioners yet to be heard that (see footnote 11):

“They will be squandering their time if they choose to present proposals which would require an additional provision, just as they will if they present proposals which go against the principle of the Bill. Instead, they would be wise to focus on issues and solutions over which the Committee does have power to intervene.”

That being the Committee’s view, it would be helpful, I feel, for Lord Walker to identify the areas where he feels that his Committee does have the power to intervene.

In the face of all this negativity, I am pleased to report that at least one petitioner has returned from Westminster with a victory. After an appearance before the Commons Select Committee after which he thought that he had been granted a fair deal, followed by eighteen months of frustration with HS2 Ltd holding back on delivery, this petitioner was granted a no ifs or buts ruling by the Lords Select Committee, giving him what he was asking for, within hours of having his petition heard (see footnote 12).

This particular petitioner, who is a near neighbour of mine, was obviously delighted, declaring that, “It just goes to prove that the House of Lords is worth keeping”.

Well I’m not sure that I would go quite that far!

Footnotes:

  1. Cubbington Parish Council’s hearing made be viewed from 17:08hrs in the video and is reported from paragraph 331 in the transcript of the afternoon session of the Lords HS2 Select Committee held on Monday 18thJuly 2016.
  2. See paragraph 406 in the publication Second Special Report of Session 2015-16, House of Commons Select Committee on the High Speed Rail (London-West Midlands) Bill, 22ndFebruary 2016.
  3. For an example, see paragraph 389 of the transcript of the afternoon session of the Lords HS2 Select Committee held on Monday 18thJuly 2016.
  4. See the section I petitioned in the House of Commons, do I need to petition again? on page 3 of the Petitioning Kit Guide The High Speed Rail (London–West Midlands) Bill: How to Petition against a Hybrid Bill in the House of Lords.
  5. See paragraphs 253 and 263 of the transcript of the afternoon session of the Lords HS2 Select Committee held on Monday 18thJuly 2016.
  6. See paragraph 6 of the transcript of the afternoon session of the Lords HS2 Select Committee held on Monday 13thJune 2016.
  7. See paragraph 143 of the transcript of the afternoon session of the Lords HS2 Select Committee held on Tuesday 19thJuly 2016.
  8. See paragraph 88 of the transcript of the morning session of the Lords HS2 Select Committee held on Wednesday 20thJuly 2016.
  9. See paragraphs 12 and 15 of the transcript of the afternoon session of the Lords HS2 Select Committee held on Monday 18thJuly 2016.
  10. See the article HS2 Ltd successfully blocks MPs from speaking to the House of Lords committee, getbucks, 20thJuly 2016.
  11. See paragraph 2 of the transcript of the morning session of the Lords HS2 Select Committee held on Tuesday 19thJuly 2016.
  12. The hearing starts at paragraph 6 of the transcript of the morning session of the Lords HS2 Select Committee held on Wednesday 20thJuly 2016 and the ruling may be found in paragraphs 1 to 9 of the transcript of the afternoon session of the Lords HS2 Select Committee held on Wednesday 20th July 2016.

Important Note: The record of the proceedings of the Commons HS2 Select Committee from which the quotes reproduced in this blog have been taken are uncorrected transcripts of evidence, which are not yet an approved formal record. Neither witnesses nor Members have had the opportunity to correct the record in such instances, and it may therefore be subject to changes being made in the light of any such corrections being requested.

Not necessarily a good thing, part 3

(… continued from Not necessarily a good thing, part 2, posted on 15 Jul 2016).

Another important criticism made by the Woodland Trust when it gave evidence to the Commons HS2 Select Committee in support of its petition concerned the way that HS2 Ltd had performed its “no net loss calculation”. The Trust’s witness, its Senior Conservation Adviser Richard Barnes, cited in particular that “the current metric used by HS2 Limited assumes that the loss of irreplaceable habitat and ancient woodland can be offset”. According to Mr Barnes, “that doesn’t reflect government policy nor what Defra or Natural England have suggested”. He also alleged that HS2 Ltd had, in contravention of national planning policy guidance, awarded a “lower evaluation” in the calculation to plantations of ancient woodland sites than to semi-natural ancient woodland and that, to add to all this, HS2 Ltd had simply got its sums wrong (see footnote 1).

Mr Barnes told the Committee that, in contrast to what HS2 Ltd had done, the “impacts on the irreplaceable habitat should be considered separately” when making a no net less calculation, and that “the scale of compensation proposed should use a bespoke metric that reflects the likelihood of success”. It was not appropriate to lump irreplaceable habits in with those that could be reasonably recreated. As Mr Barnes put it, “you’d look for them having a caveat that what they’re doing for no net loss doesn’t take into account the actual residual loss of ancient woodland” (see footnote 2). To do other than this results, in words displayed by Mr Barnes on one of his evidence slides, in “a fundamentally flawed approach”.

Readers who have put up with me for some time will know that so-called habitat translocation is a particular bête noire of mine (see footnote 3), and I was pleased to hear that Mr Barnes is not, it appears, its biggest fan either. In the first place, he described the term “habitat translocation” as “inaccurate really”, in that it does not reflect “the partial nature of what is being moved”; he noted that Natural England refers to it as “a salvage operation”. He added, “it’s not done like an archaeological dig with a trowel and a brush”: showing an image of a mechanical digger at work, he likened the technique as “very much an engineering operation” and described it as “done with a digger and dumper trucks and then spread again with diggers” (see footnote 4).

He stressed that habitat translocation “has to be done very carefully and you have to stick to the process prescribed in the best practice if you are going to do that”, and also expressed strong reservations about whether the right timing to carry out the operations involved would be observed in practice. He referred to “a narrow window of opportunity”, which is “different for the ancient woodland soil than it is [for] coppice stools”, where the latter are also being moved. This dictated that, for the process to be carried out correctly, “the translocation timing should dictate the engineering programme”. Mr Barnes reflected that the Trust’s “experience is that that doesn’t happen: the engineering operation happens and the translocation is done at the time that is convenient for the engineering operation, not vice-a-versa”. He added ruefully “there’s plenty of examples of that, unfortunately” (see footnote 5).

Now, don’t get me wrong, I can see that, if you’re going to trash a piece of ancient woodland, then there is nothing wrong with spreading the soil that you remove in another location that could do with some additional biodiversity. The problem is, as Committee Member Mike Hendrick MP astutely spotted, that habitat translocation is “being sold as if it’s like for like”, or as Mr Barnes put it, “plopping it somewhere else in the same state”. But, according to Mr Barnes, there is “no proof that it does actually produce the benefits that are indicated or suggested” – so it’s, in all probability, a dangerous delusion (see footnote 6).

Mr Barnes summed up all that he had told the Select Committee about the Promoter’s approach towards ancient woodland as having “fallen woefully short of adopting best practice”. He said that, in view of HS2 being a major project, the Trust was “particularly concerned that HS2 mustn’t create a precedent”. He made a plea direct to the Committee (see footnote 7):

“We would like the Committee to state that it accepts that this is the case because it’s vital to ensure that HS2 does not set a precedent and is not held up as an example of best practice, especially for the next phases of HS2.”

At least one Member of the Select Committee, Mark Hendrick MP, appeared to get the message that, perhaps, HS2 Ltd’s environmental credentials should be subjected to some outside scrutiny. On the afternoon of the same day as the Woodland Trust had made its morning appearance in Committee Room 5, he remarked to Matt Jackson, Head of Conservation Policy and Strategy Berkshire, Buckinghamshire and Oxfordshire Wildlife Trust (see footnote 8):

“Again, if HS2 are judging, or marking their own homework, as far these metrics and biodiversity is concerned, that’s not necessarily a good thing, is it?”

Despite this Member’s apparent unease, and a direct recommendation in a letter from the House of Commons Environmental Affairs Committee that the Select Committee should “comment and report to the House [of Commons] on any issue relating to the environmental impact of HS2”, the Select Committee avoids commenting directly in its Final Report on the issues raised by the Woodland Trust by:

  • directing the Promoter to identify an independent third party arbiter to review the different net loss metrics and publish its findings (paragraph 303 of the Final Report); and
  • suggesting that “colleagues in the Lords may wish to consider … issues arising from the only recently published no net loss calculations (paragraph 304 of the Final Report).

Footnotes:

  1. The Woodland Trust’s hearing made be viewed from 11:45hrs in the video and is reported from paragraph 306 in the transcript of the morning session of the Commons HS2 Select Committee held on Tuesday 3rdFebruary 2016. The quotations are taken from paragraph 335 of the transcript. “Ancient semi-natural woodland” is mainly made up of trees and shrubs native to the site, usually arising from natural regeneration, whereas “plantations on ancient woodland sites” are areas of ancient woodland where the former native tree cover has been felled and replaced by planted trees, usually of species not native to the site. Both types of woodland are afforded equal protection under the National Planning Policy Framework.
  2. See paragraph 335 of the transcript of the morning session of the Commons HS2 Select Committee held on Tuesday 3rdFebruary 2016.
  3. See, for example, my blog The answer lies in the soil (posted 8 Mar 2012).
  4. See paragraph 349 of the transcript of the morning session of the Commons HS2 Select Committee held on Tuesday 3rdFebruary 2016. For a discussion of the impacts that such treatment might have on soil biodiversity see paragraphs 350 to 363 in that same transcript.
  5. See paragraph 373 of the transcript of the morning session of the Commons HS2 Select Committee held on Tuesday 3rdFebruary 2016.
  6. See paragraphs 364 and 365 of the transcript of the morning session of the Commons HS2 Select Committee held on Tuesday 3rdFebruary 2016.
  7. See paragraph 375 of the transcript of the morning session of the Commons HS2 Select Committee held on Tuesday 3rdFebruary 2016.
  8. See paragraph 190 of the transcript of the afternoon session of the Commons HS2 Select Committee held on Tuesday 3rdFebruary 2016 – ignore the date on the title sheet of the transcript, which is incorrect.

Important Note: The record of the proceedings of the Commons HS2 Select Committee from which the quotes reproduced in this blog have been taken are uncorrected transcripts of evidence, which are not yet an approved formal record. Neither witnesses nor Members have had the opportunity to correct the record in such instances, and it may therefore be subject to changes being made in the light of any such corrections being requested.

 

 

Not necessarily a good thing, part 2

(… continued from Not necessarily a good thing, part 1, posted on 11 Jul 2016).

One of the criticisms made by the Woodland Trust when it gave evidence to the Commons HS2 Select Committee in support of its petition was that the new habitat-creation “planting does appear to be constrained by the Bill limits and no additional powers are sought for more planting [outside of those limits]” (see footnote 1). It is true that the restoration of habit as close to the site where habitat will be destroyed can be beneficial in the case where the original habitat is also seen as a community leisure amenity, such as an open-access woodland. Clearly, a community needs to access any replacement, and so it should be reasonably close to any natural amenity that has been destroyed or degraded by HS2: even in this instance, however, the eventual amenity value of the replacement habitat, if its location is constrained by the Bill limits, may be severe degraded by proximity to a high-speed railway, and it might prove to be more beneficial to site the replacement well away from the offending noise and visual intrusion.

What is clear is that the policy has caused anger to many landowners who have seen the threat of losing land for the construction of HS2 and then have suffered insult heaped on injury to be told that further land – sometimes of high-grade agricultural quality – will be taken for compensatory planting to replace the habitat value of the land lost to construction. It is also blatantly the case that, even if the Promoter was to concede that much higher replacement ratios were in order for irreplaceable habitats such as ancient woodland, he would surely be strapped to find space within the Bill limits for all the necessary planting.

From his point of view, the attraction of the Promoter’s approach is transparently clear: he has compulsory purchase powers available to him for all of the land within the Bill limits, and so is able to dictate where planting will go without the danger of protracted negotiations and without encountering problems of commercial supply and demand pressures possibly driving up prices.

The alternative that the Woodland Trust “and many other people are proposing is landscape scales compensation outside the Bill limits” by means of entering into “voluntary agreements”. The Trust’s witness, its Senior Conservation Adviser Richard Barnes, gave examples of schemes – he cited the Environment Bank and AB Agri – where “real landowners” have registered to host offset habitat creation on their land on a voluntary basis, but “using conservation covenants or other such voluntary, but legally and financially binding, agreements”. In theory, such compensatory planting could be miles away from HS2; even in other parts of the world in the extreme. Select Committee Member Geoffrey Clifton-Brown MP, himself as farmer, told Mr Barnes that he liked his “voluntary approach much better than HS2’s compulsory approach in some areas” (see footnote 2). He would have no doubt had in mind that most farms contain corners where commercial production is not really viable, and that habitat creation was a potential way to derive an income from otherwise unprofitable land – in many cases, such Cinderella ground is likely to be far more suited to habitat planting that high-enriched prime farmland. Mr Barnes was happy to concur (see footnote 3):

“… we agree that you shouldn’t be taking up prime agricultural land for the compensation for HS2. We feel it’s better done and you’ll get better results for biodiversity, and better results for farming, if you are to do it through voluntary schemes …”

The other important advantage claimed by Mr Barnes from having a freer hand in the siting of habitat recreation is the potential that it could be located where it “would provide better connectivity and landscape resilience” in line with the Lawton principles (see footnote 4).

Mr Clifton-Brown returned to this theme when the time came for the Promoter’s Counsel, James Strachan QC, to make his pitch. Remarking that the Committee had seen “lots of petitioners … complaining about land to compensate for land that HS2 is acquiring from them”, the MP asked the silk (see footnote 5):

“Does HS2, as a matter of course, adopt Mr Barnes’ policy of trying to find landowners that actually would be more than happy to have planting on their land and therefore requiring less compensatory land to be compulsory acquired against the owner’s wishes along the line?”

In response, Mr Strachan read out an assurance that the Promoter has provided to the Woodland Trust (see footnote 6):

“Provided it doesn’t increase project costs, and subject to obtaining the necessary consents and permissions, the nominated undertaker will consider any reasonable and timely opportunities that arise to undertake enhancements of existing ancient woodland outside the Bill limits as an alternative to providing compensation as authorised by the Bill and consider new opportunities where reasonable practicable to maximise biodiversity gain.”

Students of the assurances that have been given by the Promoter will, I am sure, recognise a familiar set of caveats that serve to render the assurance almost worthless. The Trust’s barrister, Reuben Taylor QC, pointed out, in particular, “the limitation about not increasing cost”, which is indicative, I feel, of the peremptory approach that HS2 Ltd appears to have to the protection of our natural environment. Mr Taylor also pointed out that, in the assurance, the Promoter had made “no commitment to increase the amount of planting beyond that which is already within the project”, which the trust regarded as inadequate (see footnote 7).

On a slightly more positive note, Mr Strachan did say that the assurance “has to be viewed alongside what will be done specifically for particular landowners where there’s the opportunity to discuss compensation measures in one location and potentially transferring them to other locations within their own landownership” (see footnote 6). Whilst such ad hoc arrangements could alleviate some of the problems associated with the Promoter’s current policy, it is by no means a complete solution to the issues that the Woodland Trust identified.

(To be concluded …)

Footnotes:

  1. The Woodland Trust’s hearing made be viewed from 11:45hrs in the video and is reported from paragraph 306 in the transcript of the morning session of the Commons HS2 Select Committee held on Tuesday 3rdFebruary 2016. The quotation is taken from paragraph 336 of the transcript.
  2. See paragraphs 344 and 347 of the transcript of the morning session of the Commons HS2 Select Committee held on Tuesday 3rdFebruary 2016.
  3. See paragraph 348 of the transcript of the morning session of the Commons HS2 Select Committee held on Tuesday 3rdFebruary 2016.
  4. See paragraph 340 of the transcript of the morning session of the Commons HS2 Select Committee held on Tuesday 3rdFebruary 2016
  5. See paragraph 446 of the transcript of the morning session of the Commons HS2 Select Committee held on Tuesday 3rdFebruary 2016.
  6. See paragraph 447 of the transcript of the morning session of the Commons HS2 Select Committee held on Tuesday 3rd February 2016.
  7. See paragraph 483 of the transcript of the morning session of the Commons HS2 Select Committee held on Tuesday 3rdFebruary 2016.

Important Note: The record of the proceedings of the Commons HS2 Select Committee from which the quotes reproduced in this blog have been taken is an uncorrected transcript of evidence, which is not yet an approved formal record. Neither witnesses nor Members have had the opportunity to correct the record in such instances, and it may therefore be subject to changes being made in the light of any such corrections being requested.

Not necessarily a good thing, part 1

As a result of finding my last posting down the back of the sofa, as it were, I have gone back over the evidence that the Woodland Trust gave to the House of Commons HS2 Phase 1 Select Committee last February, which examines some of the matters referred to in Shallow planting (posted 7 Jul 2016) in a little more detail, as well as raising some associated concerns (see footnote 1).

At the hearing, the Trust was represented by barrister Reuben Taylor QC with the Promoter’s legal team putting up James Strachan QC. Mr Taylor called Richard Barnes, Senior Conservation Adviser at the Woodland Trust, as his witness. In this blog I will rely on the evidence given verbally at the hearing, although any of my readers wishing to delve deeper should note that Mr Barnes also submitted a full written evidence statement.

In his presentation of evidence, Mr Barnes set out the contradiction that lies at the heart of the position taken by the Trust on HS2. He referred to the Promoter having made the commitment that HS2 would be “an exemplar project”, which he concurred was “appropriate for a major infrastructure project of large scale that’s promoted by the government”. In line with this, the Promoter had claimed to have “adopted a no net loss to biodiversity approach”. However, according to Mr Barnes, the “irreplaceable” nature of ancient woodland implies that “best practice is to assess the options and ensure no net loss or impact through avoidance of harm” (see footnote 2).

However, Mr Barnes told the Committee that, far from avoiding causing harm to ancient woodland, HS2 Phase 1 will result in “a loss of over 30 hectares of ancient woodland which is comprised of direct effects on 34 ancient woodland[s]”. He added that “some of these woodlands are actually severed to create small disconnected woods”, meaning that “the actual impact on the biodiversity is greater”. If this were not bad enough, Mr Barnes claimed that “a further 29 ancient woodlands” would suffer “indirect effects”, which he explained were “things like noise, dust, construction traffic, artificial lighting causing disturbance and collateral damage” (see footnote 3).

Mr Barnes accused HS2 Ltd of failing to “avoid ancient woodland when assessing their route” and of refusing to reduce the consequential toll on ancient woodland by adopting tunnelling alternatives that had been identified and “by moving haul routes” (see footnote 4).

Mr Barnes underlined the point that, irrespective of the Promoter’s stated aim for HS2 to result in no net loss to biodiversity, “a loss of ancient woodland will be a net loss to biodiversity” and that “you cannot offset [this] loss”. He advised that, where ancient woodlands and veteran trees are involved, Natural England regarded compensation as “always a last resort” and that such new tree planting “can only partially compensate for damage”. In such circumstances, he ventured, “compensation needs to be at a large scale” (see footnote 5): he told the Committee that Natural England had suggested to HS2 Ltd that a ratio of 24:1, by area, should be employed. However, due to what he described as “a lot of uncertainty” in the time that would be required for the newly-planted woodland to establish, he said that the Trust was recommending increasing this to 30:1 to apply “a precautionary principle” (see footnote 6).

It appears that HS2 Ltd’s proposals are a long way short of meeting even the Natural England suggestion, let alone what the Woodland Trust considers an appropriate level of compensation planting. In his evidence paper, Mr Barnes advises that Natural England has estimated the planting ratio offered by HS2 Ltd at between 3:1 and 4:1: the Trust’s own estimate is 3.4:1 (see footnote 7).

Committee Member, Mark Hendrick MP tried to get confirmation of the compensation ratio that HS2 Ltd was providing from the Promoter’s Counsel, James Strachan QC, and the MP had to work very hard to gain any enlightenment (see footnote 8). The silk did confirm that the Promoter did not accept a replacement ratio of 30:1, but appeared very guarded about what was on offer in way of a ratio, claiming that his client hadn’t “calculated it as a figure”. Mr Hendrick told the barrister that it was “clear” that the replacement ratio that had been used was “nothing like the scale” and that he “wouldn’t say [the Promoter was] in double figures”. Mr Strachan’s retort that he hadn’t got a calculator was, to my mind, tending towards the mildly insolent.

(To be continued …)

Footnotes:

  1. The Woodland Trust’s hearing made be viewed from 11:45hrs in the video and is reported from paragraph 306 in the transcript of the morning session of the Commons HS2 Select Committee held on Tuesday 3rdFebruary 2016.
  2. See paragraph 329 of the transcript of the morning session of the Commons HS2 Select Committee held on Tuesday 3rdFebruary 2016.
  3. See paragraph 330 of the transcript of the morning session of the Commons HS2 Select Committee held on Tuesday 3rdFebruary 2016.
  4. See paragraphs 332 and 385 of the transcript of the morning session of the Commons HS2 Select Committee held on Tuesday 3rdFebruary 2016.
  5. See paragraph 334 of the transcript of the morning session of the Commons HS2 Select Committee held on Tuesday 3rdFebruary 2016.
  6. See paragraph 338 of the transcript of the morning session of the Commons HS2 Select Committee held on Tuesday 3rdFebruary 2016. So the Trust is saying that for every hectare of ancient woodland that is lost 30 hectares of new woodland should be created.
  7. See paragraph 87 of Mr Barnes’ paper Proof of Evidence on Nature Conservation & Ecology pertaining to Ancient Woodland and Ancient Trees affected by HS2 Phase 1.
  8. See paragraphs 405 to 440 of the transcript of the morning session of the Commons HS2 Select Committee held on Tuesday 3rdFebruary 2016.

Important Note: The record of the proceedings of the Commons HS2 Select Committee from which the quotes reproduced in this blog have been taken is an uncorrected transcript of evidence, which is not yet an approved formal record. Neither witnesses nor Members have had the opportunity to correct the record in such instances, and it may therefore be subject to changes being made in the light of any such corrections being requested.

Shallow planting

I have a confession to make. Other priorities, not the least of these being preparing for an appearance in front of the Lords HS2 Select Committee that is fast approaching, mean that I haven’t prepared anything new to post this time. Fortunately, I have had a blog knocking about for more than three years now that I have never got around to and, having reread it, it still appears relevant, so I intend, quite shamelessly, to use that instead. So here it is …

This is genuine ancient woodland …

South_Cubbington_Wood_April2013… and this, so HS2 Ltd would have us believe, is an adequate substitute.

Tree_plantingA walk amongst the trees of the former can be an uplifting and soul-restoring experience, but I doubt that a stroll through the polypropylene tree tubes of the HS2 Ltd version will be quite the same.

Now you may think that I am being a trifle unfair in presenting this stark comparison, but I do it to illustrate the point that, whilst the planting of new trees and shrubs is essential to mitigate some of the impacts that HS2 would have on our environment, it is by no means a universal panacea. However despite this doubt, I warmly welcome the report in an article on the website of the Landscape Institute that HS2 Ltd is planning “to plant more than four million trees near the line of the HS2 high-speed rail line between London and the north of England”.

Four million sounds a very impressive number, but the truth is that it is impossible for us to assess whether this is adequate, generous or insufficient. The article reports the view of Steve Rodrick, Chief Officer of the Chilterns Conservation Board, that the four million figure, “has been plucked out of thin air’. Mr Rodrick is also credited by the article with the opinion that, “no more than 10% of the seedlings planted can be expected to be thriving as trees in 50 years’ time, even assuming a good and continuing programme of maintenance”. This rate of attrition is due to plantings that fail to take, vandalism, disease, drought, browsing by animals and the need to thin out plantings to make space for the growth of the more-successful specimens.

Mr Rodrick’s reference to “a good and continuing programme of maintenance” is also very relevant to the success of any planting programme. He expresses “valid reasons for concern on this front”, citing HS1 as a precedent, where he describes the state of trees planted alongside the line as “derelict”.

However, despite these doubts new planting will have a very real part to play in the mitigation of some of the impacts of the construction and operation of HS2. The benefits that such planting may bring, if properly planned and carried out, include:

  • Softening the visual impact of earthworks.
  • Providing visual screening of the trackway and some noise mitigation.
  • Screening other mitigation structures, such as noise barriers.
  • Enhancing existing habitats for wildlife and flora and even creating new habitats.
  • Providing alternative wildlife corridors for those severed by the trackway, and even improving the linking of habitats.
  • Offsetting some of the carbon impacts from construction.

Regular readers of my blogs, for example The answer lies in the soil (posted 8 Mar 2012), will not be surprised that I have not included translocating habitats, such as ancient woodland in this list. The Landscape Institute article gives some support to my view. It reports the view of Steve Rodrick that, “There’s no way of replacing ancient woodland – simple off-setting just doesn’t work”. It also quotes Sue Holden, Chief Executive of The Woodland Trust, as saying, “… it is also essential to understand that planting trees in no way compensates for the loss of ancient woodland which, by its very nature is irreplaceable”.

The Landscape Institute article also reports that:

“The DfT will also be looking at options for ‘fast tracking’ the planting to the beginning of the construction stage, ‘therefore maximising the landscape and wildlife benefits, as well as providing more effective screening for the line once the main engineering works have been completed’.”

Whilst it may prove possible for some planting that is away from the trackway, such as that designed to improve habitat linkage, to be done early on during construction, it is very unlikely that planting closer to the trackway will be practical at this stage, and it will certainly not be possible to plant on earthworks until after the major construction work has been completed. You may think, as I did until recently, that for faster results it would be better to plant developed trees, rather than the “whips” that you can see in the second photograph in this blog and which are familiar from motorway verge plantings. However, I learnt from a recent seminar that, although whips require more time to produce the desired results, they have a better success rate and so are to be preferred.

The Landscape Institute also talked to Conservative MP for Amersham and former Welsh Secretary Cheryl Gillan, who described the tree planting proposals as “a crude bit of public relations” and “a fairly shallow announcement”.

And I thought that I was being harsh.

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