Contact: Tony Cook, tel 023 8033 3067

1. Summary

1.1 The following decisions are sought:

(i) That the Department for Transport, Local Government and the Regions be informed that whereas the consultation document `A Project Appraisal Framework for Ports' does provide some advice on the analysis of factors to be used by decision takers, the County Council considers that the document is not satisfactory in its definition of alternatives, and that this approach involves leaving out of the framework considerations which are necessary in decision making on port expansion. The County Council also considers that if there is a high level of harm associated with a proposal, the analysis of alternatives should be on a wider scale and not restricted to the locality of the development.

(ii) That a copy of the attached report be sent to the Department for Transport, Local Government and the Regions as representing the detailed comments of the County Council in response to the consultation document.

2. Reason

2.1 To set out the County Council's views on the proposed appraisal technique for assessing port developments which have to be submitted by 5 April 2002.

3. Other Options Considered and Rejected

3.1 None.

4. Conflicts of Interest Declared by the Decision Maker or a Member or Officer consulted - Not applicable.

5. Dispensation granted by the Standards Committee - Not applicable.

6. Reason(s) for the Matter being dealt with if Urgent - Not applicable.

Approved by: Date:

Councillor K B Estlin

7. Background

7.1 On 19 December 2001 the Department for Transport, Local Government and the Regions published a consultation document entitled `A Project Appraisal Framework for Ports'. The Government had previously set out its approach to ports in `Modern Ports - A UK Policy'. This document included a commitment to develop an appraisal framework for ports.

7.2 The consultation document indicates that, in line with the policy put forward in `Modern Ports - A UK Policy', the project appraisal framework should not start from a strategic view about where ports should be located or require that projects adhere to a central forecast or model. It is for the promoters of the development to demonstrate, using the framework, that they have considered different sites and types of development within their control to meet the forecast development.

7.3 The consultation document is designed to cover all port projects requiring some form of official approval. The consultation document indicates that in order to conduct a meaningful appraisal it is important that there is a comparison of plausible alternatives. The document states "comparisons of current and potential sites in different parts of the country outside the promoter's ownership and control may also be relevant in some cases" (paragraph 1.19 of the document).

7.3 The document makes a distinction between identification and appraisal of options in the control of the promoter and "alternatives about which they have little detailed information, or which may be speculative or hypothetical" (see paragraph 3.10 of the document). It states that "if other interested parties wish to argue on the basis of publicly available information that developments outside the promoter's control present (or could present) a viable alternative to the promoter's own project, the promoter will need to address those arguments on their merits, again on the basis of publicly available and verifiable information". Paragraph 3.15 of the document addresses the same topic, referring to sources of information that might be publicly available and stating "Where debating alternatives at other ports, promoters and objectors should make use of available information, but it is unlikely to be productive to engage in speculative argument based on unverifiable assumptions or hypotheses".

7.4 The consultative document seeks comments on various questions comprising, among others, the suggested approach to appraisal, including the identification of alternatives and the coverage of impacts.

8. County Planning Officer's Comments

8.1 The preparation of an appraisal framework to be applied to the approval of port development in the UK is welcomed. There are, however, concerns about the general approach put forward, especially the proposed definition of alternatives and the intended coverage of impacts.

General Approach

8.2 The consultation document proposes that alternatives within the control of the promoter will be subject to detailed appraisal. However, it is felt unrealistic to expect promoters to appraise alternatives about which they have little detailed information or which may be speculative or hypothetical. If other parties wish to argue that developments outside the promoter's control present a viable alternative, the promoter should address these arguments on their own merits.

8.3 The issue of the correct approach to "alternatives" raises a central difficulty in the document; a difficulty that the County Council stresses must be confronted. The evaluation of whether a project is necessary to meet a need (so as for example to justify the release of a site doing environmental damage) is envisaged as being conducted within a framework that requires detailed evaluation only of "different types and sites" of development within the control of the promoter, but not otherwise. The consultation document goes on to effectively remove any obligation on the promoter to appraise sites outside its ownership except in response to arguments of others.

8.4 It is accepted that the relevance of potential solutions outside the developer's control will vary from case to case; but there will be cases (for example, major projects causing considerable environmental harm and serving a national market) where they are plainly highly relevant. The position is even stronger if there are, at the relevant time, other proposals which are being actively promoted. It is unrealistic to leave such proposals out of account, and accordingly an appraisal framework must be devised which takes them into account. It should be noted that the logic of the consultation document as drafted would mean that other proposals elsewhere in the country had to be appraised in detail if under the ownership of the promoter; but not otherwise. The County Council strongly submits that this approach involves leaving out of the framework considerations which are necessary to the decision in question on the port expansion. In addition, a more strategic appraisal of the need for the development is required.

8.5 Accordingly, the County Council submits that the approach in the consultation document is unsatisfactory in a number of ways:

(i) It restricts detailed appraisal to only those alternatives under the control of the promoter. An objective exercise is required that is not constrained by ownership or control.

(ii) The process fails to recognise the rigour of appraisal that is required if the level of harm is significant. For example, the County Council considers the impact of the Dibden Bay proposal is so severe that an appraisal of national alternatives is required to assess whether less damaging alternative solutions are viable such that the proposal should be refused. Given the level of harm, the analysis of alternatives should not be restricted by ownership or geography.

(iii) It is felt that it should not be left to other parties to present developments outside the promoter's control. It is beyond the resources of most objectors to consider and appraise alternative proposals. The promoter should from the outset present a detailed appraisal of meaningful alternatives.

(iv) The identification of alternatives should not be constrained to those about which the promoter has little detailed information, or could `claim' the solutions were speculative. The promoter should be required to investigate to an appropriate depth suitable realistic alternatives to the development, and then present the analysis. Advice should be provided in the consultation document on thresholds for the scale of the development and its impact that should require study.

(v) The consultative document suggests that factors of ship size, tidal restrictions, the scale of infrastructure requirements, surface access and effects on designated areas are relevant considerations in the identification of alternatives. However, it needs to be stressed that proposals at other locations could alter the situation and the identification of alternative solutions needs to take into account the potential removal of constraints at other sites.

(vi) The consultative document does not rigorously require a promoter to demonstrate that the appraisal of alternatives has taken into account the potential that could be realised by further utilising existing facilities. `Modern Ports - A UK Policy' states there is a presumption in favour of making the best use of existing infrastructure where possible. However, the consultative document only requires allowance for investment by the promoter at sites under his control. Potential throughput at other ports which do not require official approval should be specifically identified and appraised.

(vii) The appraisal of alternatives should be consistent with other obligations in law. Accordingly if the promoter's development requires consideration of alternatives and the nature of any overriding interest of public importance under the Habitat Regulations, then the possibility of different practicable approaches which might have a lesser impact should be part of the appraisal. The approach in the consultation document is predicated on the basis that the structure of the UK Ports industry is such that a promoter will only have detailed information on sites under its own control. This characteristic of the national industry cannot alter the content of obligations under EU law.

8.6 The consultation document also raises the question as to which bodies have prime responsibility for preparing appraisals for port developments. It is recommended that the promoter should prepare the appraisal framework. This should contain wide-ranging information that should assist the final decision on the proposal. Any appraisals under the Habitat Regulations should be separate and a competent authority, eg the Government, could utilise any information in the framework as a contribution to any decision to fulfil its obligations.

Coverage of Impacts

8.7 Specific comments on the coverage of impacts and the proposed assessment approach are given below.

8.8 The Government has adopted five headline objectives for the appraisal framework to be used for all transport investment. These cover safety, economy, environment, accessibility and integration, whilst commercial viability is included under a separate heading. Sub-objectives have been identified. The consultation document is to an extent limited in advice on the methodologies for investigating the headline objectives. More detail is required in how to address scoring the individual factors.

8.9 The proposed approach would benefit from the following amendments:

(i) The Economy sub-objective of demonstrating that there is sufficient capacity on the road and rail links to carry the predicted port traffic would more appropriately be included under the accessibility heading. In addition, the ability of the marine access to serve the predicted trade should also form part of the appraisal. This again should be included under the accessibility heading.

(ii) The Environment sub-objective on landscape should refer to current practice in assessing landscape and visual impact assessment, especially the identification of landscape character.

(iii) The Biodiversity sub-objective is identified as "to support biodiversity". This should be reworded as "to maintain and enhance biodiversity". The Biodiversity sub-objective is also mainly concerned with effects on the land. Effects on marine habitats are considered under the `Water' heading. It is felt that it would be more appropriate for all the biodiversity effects to be considered together. The Water sub-objective should concentrate on hydraulic and geomorphological implications.

(iv) Land Use Policies are included under the `Integration' objective. This issue is considered as such an important factor that it ought to be under a separate heading. The consultative document also suggests a three point scale. This would produce an over simplified rating and a five or seven point scale should be adopted.

(v) A Commercial Viability sub-objective has been proposed under the heading of `Further Considerations'. This is aimed at ensuring that a scheme would be commercially viable and not lead to long term over capacity. Whilst this consideration is to be welcomed, the consultative document does not give sufficient advice as to how this may be identified. The County Council has indicated to the Dibden Terminal Inquiry that to appraise whether a scheme is demonstrably commercially viable, financial information would have to be provided which includes clearly stated assumptions of the financial appraisal, and a risk and sensitivity analysis. This standard of assessment should be included in the appraisal framework.

7057/TC