A stab in the dark, part 2

(… continued from A stab in the dark, part 1, posted on 24 June 2017).

In an uncharacteristic manifestation of candour, HS2 Ltd has admitted that “the hydrological processes that support the salt meadows [of the Pasturefields Nature Reserve] are imperfectly understood” (see footnote 1). The same passage in the source document gives an indication of why this should be the case:

“The salt water is derived from natural deposits within the underlying rock and is carried to the site by groundwater. It is currently understood that the local topography and orientation of below ground geology cause the salt water to rise to the ground surface to form the springs at Pasturefields Salt Marsh SAC.”

The passage concludes by expressing the expectation that further work to improve the understanding of this complex hydrogeology “could involve some advance groundwater investigation if feasible and required”.

The Government has published guidance for planning authorities faced with applications for developments that may have the potential to impact upon internationally designated biodiversity and geological conservation sites. Under the terms of the legislation, any such authority is deemed a “competent authority” for the purposes of making a determination regarding the application. In the case of projects of national significance, such as HS2, the same rules apply but the competent authority will be the relevant Secretary of State, who is required to consult the appropriate statutory nature conservation body (SNCB). For HS2 this SNCB is Natural England (see footnote 2).

A set procedure is prescribed for the assessment of a project that may affect the integrity of a European site, known as “Habitat Regulations Assessment (HRA)”. This procedure has been conveniently described in a published flow chart, and comprises four stages. The initial stage is termed “screening” and is defined as (see footnote 3):

“The process to identify the likely impacts of a project upon a European site, either alone or in combination with other plans and projects, and consider whether the impacts are likely to be significant.”

It is the developer’s responsibility to undertake this screening process and to decide, for his proposal, whether there is “no potential likely significant effect on European sites, either alone or in combination with other plans or projects” or whether “an anticipated potential significant effect on European sites exists either alone or in combination with other plans or projects”. In either case, the developer will be required to furnish the competent authority with documentary evidence in support of his conclusions, in the form of a HRA screening report, in order that the competent authority may “in due course … be satisfied that it agrees with the developer’s conclusion” (see footnote 4).

If the HRA screening report concludes that there will be no potential likely significant effect, then the developer may append a “No significant effects report” to his HRA screening report and, subject to the competent authority concurring, “no further assessment is required”. If the HRA screening report concludes that an anticipated potential significant effect exists, then the HRA must proceed to Stage 2 “appropriate assessment” (see footnote 4). It should be noted that it is a key pillar of this decision process that the precautionary principle must apply in that “any project is to be subject to an appropriate assessment if it cannot be proven, beyond reasonable scientific doubt, that there is no significant effect on that site” (see footnote 5).

Considering its importance as environmental information concerning the protection of a conservation site within the Natura 2000 network, it is frankly beyond comprehension that HS2 ltd appears to have failed to make its HRA Screening Report for Pasturefields Salt Marsh publically available (see footnote 6). This failure to make environmental information freely available to the public is, at the very least, contrary to the spirit of the Aarhus Convention and is, arguably, also in contravention of the letter of that compact (see footnote 7).

The HRA Screening Report for Pasturefields Salt Marsh considers the anticipated potential significant effects that would result from three different route options as they pass its vicinity. These three route options, and their locations relative to the location of the salt marsh, indicated by a red star, are shown in the map that is reproduced below (see footnote 8).

Source: HS2 Ltd

The three routes that were screened by HS2 Ltd for the Stage 1 habitats regulation assessment are:

1. The original first choice route, identified as HSM3 in the HS2 Ltd 2012 options report, but relabelled by me as “Route B” (see footnote 9). The section of this route that passes Pasturefields runs from south-east to the north-west of Pasturefields, and at its closest point is 300 metres to the north of the SAC.
2. A more southerly alternative, identified as HSM1 in the HS2 Ltd 2012 options report. The section of this route corridor that passes Pasturefields runs from east to west to the south side of Pasturefields, and at its closest point is 650 metres to the south-west of the SAC.
3. An option identified as HSM2 (or HSM02) in the HS2 Ltd 2012 options report. The section of this route corridor that passes Pasturefields runs from south-east to the north-west of Pasturefields, and at its closest point is 660 metres to the north of the SAC.

As it turned out, the route that was selected by HS2 Ltd for public consultation was none of the above, but used a fourth alignment running a little to the south of HSM1 (see footnote 10).

The conclusion drawn by the HRA Screening Report for Pasturefields Salt Marsh is that “it is not possible to conclude no likely significant effect in the basis of the information currently available for route options HSM02 and [Route B]” and, hence, “Appropriate Assessment would be required [if either of these routes were employed]”. The report adds that “due to the uncertainties which remain in relation to the underlying geology and route of the brine flow which feeds the Pasturefields Salt Marsh SAC, on-site intrusive investigations would be required to fully understand the groundwater and brine flows for either route” (see footnote 10).

If route HSM1 were to be employed, however, the report concludes that HS2 “would have no likely significant effect on the site as it is downstream of Pasturefields Salt Marsh SAC, outside of the surface water catchment of the River Trent at Pasturefields (and therefore the Pasturefields Salt Marsh SAC), and south of the SAC (downstream of the groundwater catchment of the SAC)”. The report determines that “Appropriate Assessment would therefore not be required for this route option as described”. A significant comment made in the report, for reasons that will become clear in part 3 of this blog series, is that the conclusion drawn by the report in regard to HSM1 applies equally to “other route options were they to follow a similar southern alignment past Pasturefields Salt Marsh SAC at a similar or greater distance from the SAC” (see footnote 12).

The report claims that “HS2 Ltd has undertaken regular consultations with NE [Natural England] and continues to do so”, with the implication that Natural England concur with the report’s conclusions. The report also advises that consultation “has also been undertaken with the Environment Agency (EA) in relation to hydrological matters” (see footnote 12).

Nevertheless, for reasons that I will explain in due course, I regard the report’s finding that HSM1, and similar southern routes, will have no significant effect on the Pasturefields Salt Marsh SAC as unsafe.

(To be continued …)

Footnotes:

1. See Text Box 2 on page 48 of the report Options for phase two of the high speed rail network: A report to Government by HS2 Ltd, HS2 Ltd, 29^thMarch 2012.
2. See the sections Summary of this Advice Note on page 1 and the entry Secretary of State in the table Terms and abbreviations used in this advice note on pages 18 and 19 of the publication Advice note ten: Habitats Regulations Assessment relevant to nationally significant infrastructure projects, The Planning Inspectorate, Version 7^thJanuary 2016.
3. The flow chart is reproduced as Figure 1 on page 6 of Advice note 10 and the four stages are defined in Table 1 on page 3 of the same document. The definition of screening has been taken from Table 1.
4. The quote phrases are all taken from the section Pre-application (no prescribed timeframe) on pages 12 and 13 of Advice note 10.
5. See the section Background and legal context on page 2 of Advice note 10.
6. A single paper copy of the HS2 Ltd HRA Screening Report was provided to a resident living close to Pasturefields in response to a freedom of information request, and I have been provided by that resident with a copy of that copy for the purposes of writing this blog series. The document citation is HS2 Phase 2 HRA Screening Report for Pasturefields Salt Marsh, Environmental Resources Management (ERM) for HS2 Ltd, September 2012.
7. For example, see Article 7 of the document Convention on access to information, public participation in decision-making and access to justice in environmental matters, United Nations Economic Commission for Europe, Aarhus Denmark, 25^th June 1998.
8. The reproduced map is an enlarged section of the map on page 16 of the publication Options for Phase 2 of the high speed network Appraisal of Sustainability, Environmental Resources Management (ERM) for HS2 Ltd, March 2012. In the main text of my blog I have referred to this report as the “HS2 Ltd 2012 options report”.
9. I have made this change to avoid the confusion that HS2 Ltd has caused by reusing the route designation HSM3 for the route eventually selected for public consultation, which runs further to the south of HSM1. This confusion is referred to by the local MP in the first paragraph on page 9 of the document High Speed Rail 2 (Phase Two) Response to the Phase Two Route Consultation, Jeremy Lefroy MP, January 2014.
10. I will include a map showing the alignment of this consultation route in part 3 of this blog series.
11. See paragraph 9.1.2 in the unpublished HS2 Phase 2 HRA Screening Report for Pasturefields Salt Marsh.
12. See paragraph 9.1.1 in the unpublished HS2 Phase 2 HRA Screening Report for Pasturefields Salt Marsh.
13. See paragraph 2.2.1 in the unpublished HS2 Phase 2 HRA Screening Report for Pasturefields Salt Marsh.

Acknowledgements:

I am very grateful to Cllr Michael Woodhouse of Ingestre with Tixall Parish Council for hosting and guiding my fact-finding visit to Ingestre, providing background information and copies of unpublished documents, checking the factual content of this blog, and for his helpful suggestions for improvements.

The Ordinance Survey mapping upon which the HS2 Ltd routes are overlaid has been reproduced in accordance with the principles of fair dealing as set out in the Copyright, Designs and Patents Act 1988.  On this basis, this mapping is:

Reproduced by permission of Ordnance Survey on behalf of HMSO.

© Crown Copyright. All rights reserved.