Contact: Tony Cook, Stuart Reynolds, Barbara Beardwell, tel 02380 333067

1. OVERVIEW

1.1 Associated British Ports (ABP) has submitted proposals for port development at Dibden Bay. The County Council has objected to the proposals and a Public Inquiry is currently considering the development. At the same time, negotiations have been taking place with ABP over possible obligations and conditions that might apply to the development if it was granted consent. The negotiation of an agreement does not degrade the objections, in principle, to the proposed Terminal. The purpose of entering into an agreement would be to safeguard the County Council's interests and to exercise some influence on the manner in which the development proceeds if it were to receive approval. The main report below considers the terms of such an agreement. The report also highlights the outstanding matters in the negotiations that are not agreed. In addition, it covers evidence on other control mechanisms which have been or are being presented to the Public Inquiry. A delegation arrangement will be sought to deal with any outstanding matters of disagreement with ABP.

1.2 As a preliminary to the County Council considering the report, a seminar for Members was held on 18 November 2002. The purpose of the seminar was to appraise Members of the current situation at the Dibden Terminal Inquiry and provide details of the areas of agreement and disagreement with ABP.

1.3 Potential areas of control have been debated at the Public Inquiry on a topic by topic basis. It is only the detailed aspects of these areas in the drafting of an agreement or the orders that are left to be considered. The main report therefore concentrates on those main areas, ie land access, nature conservation, archaeology and rights of way.

1.4 At the Transport topic at the Public Inquiry, ABP submitted revised proposals for the A326. These improvements added a further one metre to the proposed widening of the A326. Appraisal of the revised scheme, using computer modelling techniques and with reference to the appropriate flow criteria, indicated that the new scheme provided adequate capacity along the route to accommodate predicted traffic forecasts at 2011, with reserve capacity for future growth. The County Council, following consultation with the Leader and Executive Member for Environment, accordingly submitted to the Public Inquiry that its objections to the inadequacy in highway capacity terms of the proposed improvement of the A326 were resolved and would not be pursued. This position has been accepted at the Public Inquiry and therefore no further submissions on this matter should be proposed.

1.5 There are three main items which will require decision by the County Council:

(i) The level of contributions to mitigation measures at Marchwood and New Forest Heritage Area.

(ii) The level of contributions to mitigation measures at Totton Town Centre.

(iii) The extent of involvement in the monitoring and management of the Church Farm Nature Conservation Area.

1.6 For Marchwood and the New Forest Heritage Area, ABP has put forward a safeguarding arrangement if there were to be an impact caused by Dibden Terminal traffic. Levels of traffic would be monitored against agreed criteria. A contribution to mitigation measures would then be made to a maximum of £150,000 for Marchwood and £50,000 for the New Forest Heritage Area. The County Council's approach in the negotiations is that the full contribution should be made, subject to appropriate criteria being met, to an effective set of measures at Marchwood, costing a maximum of £250,000, and at the New Forest Heritage Area, costing a maximum of £500,000. An earlier trigger of monitoring surveys will also be sought.

1.7 At Totton Town Centre, ABP considers that as its proposals only increase the downtime at the Junction Road level crossing by 25%, it should contribute this proportion of the total cost of a new pedestrian/cycle bridge and the refurbishment of an existing bridge. This equates to about £450,000. Whilst it is recognised that there are already some existing problems caused by the closure of the crossing, an increase in downtime of 25% in the circumstances that pertain in Totton Town Centre represents a substantial increase in severance. It is considered that the County Council's approach should be to aim to seek a contribution that reflects the need to fund a complete package of new and refurbished pedestrian/cycle bridges as well as other measures to improve accessibility, to a maximum of £2.5 million in order to mitigate the impact.

1.8 There are a number of other transport items which have been negotiated with ABP covering public transport, port travel plan, freight quality partnership, lorry routeing, port closure, and signing strategy. However, there is currently no agreement with ABP on the County Council's submission to the Public Inquiry that there should be measures to ensure infrastructure is in place to allow at least 15% of land borne containers to go by rail. This matter will now have to be resolved by the Secretary of State.

1.9 The County Council has objected to the Dibden Terminal proposals on nature conservation grounds and it will ultimately be up to the Secretary of State to decide whether he agrees with the County Council's views on levels of compensation, etc. The main issues for the County Council with regard to the nature conservation provisions in the proposed legal agreement are whether the County Council should be involved in the monitoring of the implementation of ABP proposals for the Church Farm Nature Conservation Area (CFNCA), and, whether the County Council would wish to ultimately undertake the management responsibility for the nature conservation site.

1.10 It will be important to ensure that the objectives of the CFNCA are achieved. ABP is seeking agreement to the involvement of various nature conservation bodies in monitoring the implementation of the management plan. The various bodies are proceeding on the basis of sharing the monitoring requirements and absorbing their own costs of this work. The County Council should therefore dedicate what could be considerable staff time to this exercise. The latest management plan for the CFNCA effectively postpones any decision on management responsibility for nine years after the commencement of development and the County Council can revisit this issue at a later date. It will be essential to ensure that obligations are agreed with ABP that there will be adequate funding of the long term management of the nature conservation site.

1.11 With regard to archaeology and rights of way, suitable provisions are being proposed as part of the legal agreement. It should be noted that the County Council has negotiated a contribution of £7,000 towards future maintenance of two footpaths and a new cycle track. This contribution is suitable to the County Council in relation to expenditure on these matters.

1.12 In conclusion, it is recommended that the County Council should enter into an appropriate agreement with ABP on those matters where there is agreement. However, the County Council should insist on full contributions for appropriate measures at Marchwood and within the New Forest Heritage Area, and aim for a full contribution to accessibility measures at Totton Town Centre. If this is declined by ABP, the County Council should submit to the Public Inquiry that any final approval of the Dibden Terminal proposals should be dependent on full contributions to these measures.

MAIN REPORT

2. Introduction

2.1 This report is to facilitate the signing of a legal agreement to cover the main issues relevant to the County Council involved in the Dibden Terminal proposals. The report also covers the main outstanding matters for negotiation. In addition, it indicates the possible conditions that the County Council would like the Secretary of State to impose on the various applications.

3. Background

3.1 ABP formally submitted proposals for port development at Dibden Bay on 2 October 2000. The submission comprises the following elements:

(i) a Harbour Revision Order for the main port development;

(ii) a Transport and Works Act Order for works to the Fawley Branch Line;

(iii) two planning applications for works to the A326 and for noise barriers along the railway line; and

(iv) Stopping Up Orders for roads and footpaths, Compulsory Purchase Order for the Hythe Marina Bund and part of the foreshore, Exchange Land Certificate for Westcliff Hall site and various Food and Environment Protection Act Licences.

3.2 The Orders and the Certificate have been submitted to the then Secretary of State for the Environment, Transport and the Regions, the Licences to the then Ministry of Agriculture, Fisheries and Food and the planning applications have been submitted to the District Council (although these have now been called in by the Secretary of State). Subsequently two further planning applications have been made for further noise barriers along the railway line and improvements to the A326, including the widening of Ashurst Bridge. Numerous documents accompany the proposal, including two Environmental Statements (one for the port development and one for the Fawley Branch Line improvement), an Appropriate Assessment under the Conservation Regulations, 54 Technical Reports and various plans.

3.3 The site of the Dibden Bay proposals is an area of former intertidal saltmarsh reclaimed between the 1930s and the 1980s by the deposit of dredged material partly from earlier development for the Port of Southampton. The site forms part of a strategic gap; the foreshore is part of a Special Protection Area (SPA) and Site of Special Scientific Interest (SSSI), and the main area of the reclaim has now been designated as an SSSI. The western part of the site is within the New Forest Heritage Area. The whole site has been included within the proposed boundary for the New Forest National Park which is now the subject of a separate public inquiry.

3.4 The key elements of ABP's proposals are a deep water quay of about 1.8 kilometres in length, a deep water channel connecting to the main navigation route in Southampton Water, a docks area of 202 hectares, a landscaping area, including a new tidal creek, an access road connecting to the A326, a rail connection to the Fawley Branch Line, a park and ride site for 500 cars, improvements to the A326 and a recharge, using the arisings from the dredge in front of the quay, of the foreshore between Hythe and Cadland which is within a candidate Special Area of Conservation (cSAC).

3.5 A joint meeting of the former Policy and Resources and the Planning and Transportation Committees on 12 February 2001 considered a detailed appraisal of the Dibden Bay proposals. The Committees resolved:

"1. That the Department of the Environment, Transport and the Regions be informed that the County Council considers that the Secretary of State should not make the Harbour Revision Order, Transport and Works Act Order or approve any other consents related to the Dibden Bay port development as it does not conform to national ports policy, draft revised Regional Policy Guidance Note 9 Policy T7, and Hampshire County Structure Plan (Review) Policies EC6, G2, NF1, T5, T6, C1, C7, E6, E9, E10 and E11.

2. That the Department of the Environment, Transport and the Regions be informed that the County Council formally objects to the proposed port development at Dibden Bay in relation to the above policy framework in resolution 1 with regard to:

(i) the need for the development;

(ii) the treatment of alternatives and their ability to provide better solutions to the development;

(iii) the impact on the New Forest;

(iv) nature conservation implications;

(v) landscape impact;

(vi) transport issues;

(vii) employment implications;

(viii) minerals and waste matters;

(ix) marine issues;

(x) the strategic impact on local communities;

(xi) viability of the proposals;

(xii) rights of way issues; and

(xiii) any other detailed issues which may arise from further examination of the proposals.

In addition matters relating to archaeology require further discussion with ABP.

3. That the County Council considers that the Appropriate Assessment has not been adequately carried out by ABP and that it is contrary to guidance, and that the Department of the Environment, Transport and the Regions should require that a new Appropriate Assessment be undertaken by ABP for consideration by all parties prior to the Public Inquiry.

4. That the County Council should present the objections outlined above to the forthcoming Public Inquiry.

5. That the County Planning Officer, County Surveyor and the Chief Executive be authorised to make appointments of appropriate consultants to pursue the above objections, subject to satisfactory budgetary provision being made.

6. That the appraisal of ABP's proposals continue with a view to resolving any objections.

7. That officers are instructed to continue discussions with ABP to seek a satisfactory resolution of the transport proposals and other aspects should Dibden Bay be permitted.

8. That the County Planning Officer, County Surveyor and Chief Executive be given authority in consultation with the Leader of the County Council and any appropriate Chairmen, to take any urgent action necessary to enable the County Council to respond quickly and effectively to any matters relating to pursuing the above objections to ABP's proposal at the forthcoming Public Inquiry.

9. That ABP, New Forest District Council and Southampton City Council be informed of this resolution."

3.6 The Secretary of State decided in January 2001 to call for a Public Inquiry on the Dibden Bay proposals. The Inquiry commenced in November 2001. The Inquiry has been organised on a topic basis and the County Council has submitted evidence on Planning, Need, Alternative Solutions, Nature Conservation, Land Access, Countryside and Rights of Way. New Forest District Council has also participated in a number of topics and, in particular, has submitted evidence on Landscape, and Noise and Vibration. The detailed position on some of the above topics is covered in Sections 5 to 11 of this report.

3.7 An Inquiry Session on Conditions and Agreements commenced on 19 November 2002. It should be noted that the parties to the Public Inquiry have already been required to raise the controls they would wish to see imposed on each topic as the subject has been considered during the course of the Inquiry. This current session is to examine any outstanding matters and consider the full details of any controls. Following closing statements by all the main parties, it is likely that the Inquiry will close on 13 December 2002.

4. Principles for an Agreement

4.1 There are various measures by which the Dibden Bay proposals could be controlled or regulated if the Secretary of State decided to approve the Harbour Revision Order, the Transport and Works Act Order, the planning applications and other submissions. These include the terms or undertakings of a legal agreement under Section 106 of the Town and Country Planning Act 1990, the terms of the various Orders permitting the development and conditions imposed on the planning applications. The Inspector has called the Session on Conditions and Agreements to review the content of the various regulatory measures and to receive evidence on the progress with legal agreements. Proposed conditions and agreements have already been considered under each individual topic but it is only now that the full details are emerging.

4.2 The Secretary of State cannot compel any parties to enter into any legally binding agreement. ABP could if it so chose not enter into an agreement and instead offer a unilateral undertaking under Section 106 of the Town and Country Planning Act 1990. In particular, ABP could submit to the Public Inquiry that it was justified in taking this action in the context where it felt that a unilateral undertaking could be demonstrated to have sufficient provisions to overcome any planning objections. The Secretary of State is however empowered to modify the terms of the draft Orders and impose conditions on the planning applications.

4.3 It would be advantageous if the County Council could enter into an agreement on the right terms as this would protect the County Council's interests. In addition, it should be noted that formulating an agreement and submitting evidence about possible conditions, etc is accepted at Inquiries as being on the basis that it will not be construed as in any way weakening an overall case of objection to the proposals.

4.4 The general terms of the proposed Section 106 Agreement with ABP are dealt with below under the main areas of interest to the County Council. Each section will cover the negotiations on the topic prior to the Inquiry, the drafting of the agreement as it currently stands, and the identification of any outstanding matters of disagreement.

5. Land Access

5.1 The County Council's former Planning and Transportation Committee considered its position regarding the ABP proposals for development at Dibden Bay in February 2001, at which time any urgent matters arising with regard to transport issues were delegated to Chief Officers and leading Members. The transport topic was considered at the Inquiry during June 2002. The Chief Engineer (Implementation) and rail consultants presented evidence on transport issues on behalf of Hampshire County Council and New Forest District Council. This evidence sought to bring to the Inspector's attention the potential shortcomings of ABP's transport proposals in respect of the proposed Terminal development, and to raise objection to these elements of ABP's case.

5.2 During the course of the Inquiry (and after the commencement of the Land Access Topic), ABP improved its offer of transport mitigation measures for the A326. Using delegated powers as referred to in the above paragraph and following consultation with the Leader, Executive Member for Environment, the County Planning Officer and County Surveyor, it was accepted that ABP had overcome the technical objections by these improvements. This was agreed at the Inquiry and is not a current topic for decision. As already indicated, there is no technical case that can be advanced to the effect that the current improvement proposals for the A326 are inadequate. A number of other issues presented to the Inquiry were either resolved prior to the Inquiry, or objections remained extant and subject to satisfactory resolution.

Outstanding Transport Issues

5.3 Issues that have arisen during the course of the consideration of this development can be divided into those where a resolution has been agreed at the Inquiry and those for which disagreement with an issue remains, either in principle or on the level of mitigation/contribution offered. For issues agreed at the Inquiry, no further evidence will be accepted by the Inquiry. However, where disagreement exists the highway authority should pursue its position and the Inspector will make a recommendation to the Secretary of State on his conclusions. Each issue has been flagged to show the level of agreement reached, as follows:

*details agreed at Inquiry are highlighted

**agreed in principle but details under discussion

***no agreement with ABP

(i) A326 improvement*;

(ii) Port access road**;

(iii) impact on the New Forest Heritage Area and Marchwood**;

(iv) Totton, Hounsdown and Marchwood level crossings*;

(v) public transport infrastructure**;

(vi) Port Travel Plan**;

(vii) Freight Quality Partnership*;

(viii) lorry routeing*;

(ix) Port closure contingency plan**;

(x) signing strategy*; and

(xi) rail modal share***.

5.4 All but one of the transport issues have been agreed in principle through the Inquiry with ABP. The only outstanding matter relates to predicted rail modal share of container movement. This has not been accepted by ABP and, if not agreed, will be a matter for the Secretary of State to determine. Generally, agreement in principle has been reached on all other matters and those outstanding relate mainly to the level of contribution to be paid by ABP.

Summary of Proposals

A326

5.5 ABP proposes that the A326 between the Terminal access and the A326 spur be upgraded to a wide single carriageway of 13 metres with appropriate signalisation of junctions. The application of carriageway white lining is to be determined by the highway authority but could be a wide single carriageway with 1 metre hard strips either side and a 1 metre central hatching. Alternatively, the road could be marked partially or wholly as a four-lane carriageway, comprising 0.35 metre edge markings, a 3 metre and 2.75 metre lane in each direction and a 0.8 metre central hatching. This latter layout would ensure the road at the junctions channelled traffic into four lanes, rather than the ad-hoc arrangement often seen on wide single carriageways.

5.6 Although ABP presented proposals at the Inquiry, it is considered appropriate to review the junction measures at Twiggs Lane and Staplewood. The staggered crossroads in the ABP proposal is not as efficient as the current Local Plan proposal, which sought to provide a standard crossroads solution. This latter solution provides added benefits for traffic on the A326 and for the Infant School on Twiggs Lane. The Local Plan solution is not within ABP's gift, but through negotiation with ABP it has been agreed that, should the local authorities reach a way forward to provide the Local Plan scheme, ABP would be prepared to amend its proposals. This may require further planning consent and financial input from the County Council, and this is being explored.

5.7 At Staplewood Lane junction a further staggered crossroads is proposed. Traffic levels on the side roads are light and consideration is being given to reducing the impact of this junction on the A326. This may require some restricted traffic movements but the improvement would reduce delay on the A326.

5.8 North of the A35 the widening of the A326 varies, as presented to the Inquiry and shown on the plans. Of particular note is the widening of the railway bridge over the London to Bournemouth line. This will also improve the currently narrow footway over the bridge. The signalisation of the junctions from Foxhills to Michigan Way was demonstrated at the Inquiry to be satisfactory.

5.9 The timing of these improvements is linked to the Terminal development but it is desirable that the Stage 1 improvements (ie those improvements from the Terminal access to the A326 spur) are completed prior to the Terminal coming into operation. The Stage 2 works (ie those works north of the A35, and the works at Marchwood and Hounsdown level crossings) should be completed within two years of the Terminal coming into operation or occupation of 1,000 metres of quay wall, whichever is the sooner.

5.10 The section of the A326 south of the A326 spur is currently in need of structural repair. As part of the negotiations on road improvements, agreement has been reached that ABP should bear the full costs of the reconstruction of this road at the time of improvement, in lieu of any commuted sum for future maintenance of the A326 and the adopted part of the Terminal access road. It is also intended that the road will be surfaced with low-noise surfacing materials.

Terminal Access Road

5.11 The access road provides two functions, its prime use is to support the Terminal and its secondary use is to provide access to a proposed park-and-ride site. Consideration has been given to adopting the section of access road between the Terminal access junction on the A326 and the park-and-ride site. Adoption of this section of the Terminal access road depends on agreement of a commuted sum for maintenance (see paragraph 5.10 above).

Impact on the New Forest Heritage Area and Marchwood

5.12 ABP's case is that there will be a negligible impact caused by Terminal generated traffic on the local roads in the New Forest Heritage Area and Marchwood. However, as a safeguard, ABP has submitted draft proposals for mitigating the impact of the Terminal on the New Forest Heritage Area and Marchwood should this not be the case. The principles of the proposals are that over a period of nine years the levels of traffic are monitored and assessed against agreed criteria. Should the criteria be exceeded a contribution towards mitigation measures is triggered. ABP has currently limited its responsibility to a maximum of £150,000 for Marchwood and £50,000 for the New Forest Heritage Area. Should the monitoring exercise in future reveal a problem attributable to the Terminal, officers' advice is that the above figures are likely to be inadequate and that the maximum sum of £250,000 should be set aside for Marchwood and £500,000 for the New Forest Heritage Area. The opportunity to undertake monitoring surveys at an earlier time is also being investigated.

Impact on Totton, Marchwood and Hounsdown Level Crossings

5.13 ABP has agreed to fund pedestrian facility improvements at Marchwood and Hounsdown level crossings. New barriers will also be provided as part of the rail improvements.

5.14 ABP has been requested to provide a contribution to improved accessibility within Totton Town Centre. The recent study of Totton Town Centre involves a range of schemes. The value of the study proposals is expected to be many millions of pounds, and includes provision for a new station and pedestrian/cycle railway crossings. Options for improved railway crossings range from improving existing footbridges to new bridges in different locations from the existing. ABP considers that as its proposals only increase the downtime at the Junction Road level crossing by 25%, it should contribute this proportion of the total cost of a new pedestrian/cycle bridge and the refurbishment of an existing bridge. This equates to about £450,000. Whilst it is recognised that there are already some existing problems caused by the closure of the crossing, an increase in downtime of 25% in the circumstances that pertain in Totton Town Centre represents a substantial increase in severance. It is considered that the approach should be to aim to seek a contribution that reflects the need to fund the complete pedestrian/cycle overbridges and other measures to improve accessibility with a total cost of £2.5 million, otherwise it does not mitigate the impact.

Public Transport Proposals

5.15 ABP presented a package of measures to the Inquiry, which includes:

(i) a new park-and-ride site;

(ii) an express bus service to/from Southampton;

(iii) improved existing local services;

(iv) a new bus service to/from the Hythe Pier; and

(v) enhancement of bus services in Southampton.

The costs of these services were presented by ABP and accepted by Hampshire County Council and New Forest District Council.

5.16 There is a possibility that the park-and-ride element of the proposals might not be approved. If this were to be the case, ABP has offered to commute the cost of the park-and-ride site to a Public Transport Strategy for the Southampton and Totton and Waterside Transport Strategy area, and provisions to cover this possibility are currently being drafted. To date the value of this commuted contribution in lieu of a park-and-ride site and the costs of maintenance has not yet been agreed.

Port Travel Plan

5.17 In an attempt to achieve greater sustainability, ABP has been encouraged to develop a travel plan for the Terminal, which will encourage staff to use more sustainable modes of transport. ABP submitted a travel plan to the County Council for assessment against Department for Transport, Local Government and the Regions (now Department for Transport) criteria. Following discussions a satisfactory travel plan has now been developed and ABP has agreed to a number of actions to ensure its effective delivery. The provision of an internal port employees work boat service across Southampton Water is currently being investigated, and legal safeguards to require its delivery are being drafted.

Freight Quality Partnership

5.18 A key issue for the local and wider community is the behaviour of freight vehicles in the Waterside and adjoining area. There is little direct action that can be taken to control use and behaviour of such vehicles but, as a result of pressure from the County Council, ABP has agreed to set up a Freight Quality Partnership (FQP) and enlisted the assistance of the Freight Transport Association (FTA). An FQP for Dibden and the Waterside has now been formed and terms of reference are shortly to be agreed and registered with the Department for Transport.

Lorry Routeing

5.19 Concern was expressed at the Inquiry about the potential of heavy goods vehicles using unsuitable roads. In particular, the route from Cadnam to Fordingbridge across the New Forest (B3078), the A3057 between Romsey and Andover and local roads in the area of the Terminal are of concern. Although the potential of lorries using unsuitable routes is low, the impact of even small numbers can be significant. It is therefore proposed that the lorry routeing strategy contains restraints for lorries to limit their use to mainly county primary routes, motorways and trunk roads.

5.20 By discussion through the FQP it is hoped that much of the `problem' can be regulated by the industry. However, if offending vehicles continually abuse some routes, more draconian measures will need to be considered. It should be noted, however, that such measures might be difficult to develop and enforce.

Port Closure Contingency Plan

5.21 The Port Closure Contingency Plan (PCCP) is an emergency measure that, it is predicted, will be rarely used but is essential for the safe operation of the Terminal. It is intended for use when highway access to the Terminal is unavailable and traffic may be turned away. To avoid congestion and safety concerns through inconsiderate parking, the Plan provides measures for warning drivers to avoid the area and contingency emergency parking, if necessary.

5.22 In the event of a closure the Police will have the power to impose the contingency plan and have indicated their acceptance of the measures. These include emergency parking measures on the A3090 between the A27 and A36, along a lightly trafficked section of dual carriageway.

Signing Strategy

5.23 Most of the signing for the Terminal will be on the motorways and trunk roads, which are the responsibility of the Highways Agency. The County Council will seek to ensure that any agreement respects local road signing and provides adequate advice to drivers to avoid local roads.

Rail Modal Share

5.24 The applicant has stated that 35% of container traffic could be carried by rail. In evidence the County Council and New Forest District Council stated their scepticism that this level of mode share would be achieved. During the course of the Inquiry submissions have been made seeking to secure measures that will allow a minimum mode share of 15% to be achieved, this being ABP's lower band forecast use.

Land Access Conclusions

5.25 The value of the highways-related transport infrastructure proposals suggested by ABP, including contributions, is likely to be in excess of £18 million. However, there still remains key decisions over the acceptability of the level of financial contribution offered by ABP to mitigate the impact on Totton Town Centre, Marchwood and the New Forest Heritage Area.

6. Nature Conservation

6.1 The County Council contends that the development would have an adverse effect on the integrity of the Solent and Southampton Water SPA, Solent and Southampton Water Ramsar site and Solent Maritime cSAC and therefore should not be permitted, unless it can be demonstrated that there are no alternative solutions and there are imperative reasons of overriding public interest. The consideration of alternative solutions would have to include examination of other sites in the UK. It is also considered by the County Council that provision of adequate compensation should be guaranteed, that the current proposals do not provide sufficient compensation and therefore additional compensation is required.

6.2 ABP has put forward a number of elements which it feels will re-provide for displaced species and habitat loss, and will enhance the nature conservation value of the existing interests. The Church Farm Nature Conservation Area (CFNCA) including a creek comprises a significant element of ABP's nature conservation package covering a total area of 170 hectares managed for nature conservation purposes.

6.3 A Habitat Establishment and Management Plan for the CFNCA has been submitted to the Inquiry. The Plan identifies the principal environmental aims of the CFNCA and its management. In the short term, ABP proposes to retain both ownership and management responsibility for the CFNCA, establishing the Conservation Area and its farming arrangements, and deferring any discussion as to its long term funding or management arrangements. ABP would fully fund this phase of the Plan. ABP indicates that after nine years it will review the tenure of the site, management responsibility and the funding to ensure continuation of the management to achieve the objectives. At the time of the review ABP will consider, among other options, whether to lease the CFNCA to a local authority or conservation group with an obligation to achieve the objectives of the Plan. There will be regular reviews of the management of the site involving relevant conservation bodies.

6.4 ABP is currently drafting an obligation which addresses compliance with the Management Plan. This would be in the form of a covenant with the County Council. Guarantee would be by surety.

6.5 The County Council is currently considering the technical provisions of the Management Plan and will be submitting its views to the Public Inquiry. The County Council would wish to ensure that, by entering the agreement, adequate provision and financial commitment was made to establish the Management Plan. ABP has proposed that various nature conservation bodies, including the County Council, are involved in monitoring the creation of the CFNCA. These bodies will share the monitoring activities and other parties are proceeding on the basis of absorbing their own costs in undertaking this work. It is proposed therefore that the staff resource requirement for the County Council to participate in the monitoring of the Management Plan is borne by the County Council's own budget. In addition, it is open to the County Council to consider whether it wishes to undertake the nature conservation management responsibility for the site if ABP chooses to relinquish this duty after nine years. County Council staff may need to be involved in these deliberations. It will be necessary to secure that, regardless of the managing agent, the ultimate management requirements should be fully funded by ABP.

6.6 ABP has also proposed a recharge of the Hythe-Cadland foreshore as part of its Nature Conservation package. Although the negotiations are with English Nature on this matter, the County Council would wish to be assured that suitable provisions for implementation are being made.

7. Archaeology

7.1 There has been further discussion with ABP on archaeology matters since February 2001. The County Council is generally satisfied with the proposed archaeology provisions but has a number of caveats. In addition, the County Council would recommend that any permission for the port proposals should be subject to an archaeology condition similar to the model conditions set out in paragraph 30 of PPG 16. The Secretary of State would also have to be satisfied, from the evidence submitted, that there were no indirect impacts from the port proposals on any Scheduled Ancient Monuments.

7.2 There is still some archaeological investigation work to be undertaken. Officers are prepared to accept that this work is not required before determination of the proposals by the Secretary of State, provided certain obligations are met by ABP. This would cover provisions that the outstanding work was undertaken prior to the commencement of the port development and the results of this work were incorporated into a final Working Scheme of Investigation (WSI). An arbitration clause will be required.

7.3 Subject to suitable drafting, the County Council could agree to an appropriate obligation in the Section 106 Agreement on archaeological investigations.

8. Rights of Way

8.1 The County Council submitted objections to the proposed Dibden Terminal on the grounds of the impact it would have upon the rights of way network. The County Council has accepted that the network of paths proposed does not represent an overall loss to the public in terms of length and alignment but their value to the public will be largely diminished should the port proceed. The County Council submitted evidence to the Inquiry on possible improvements to the network and other requirements that were necessary.

8.2 ABP at the Public Inquiry has recommended three further amendments to the rights of way network. In addition, ABP indicated a willingness to fund the cost of maintenance of certain footpaths affected by the proposals.

8.3 Obligations for inclusion in the Section 106 Agreement are being prepared to cover Rights of Way. In addition, provision is being made for the sum of £7,000 to be paid to the County Council towards the future maintenance of two footpaths and a new cycle track linking Hythe with Marchwood. This contribution is suitable to the County Council in relation to relevant expenditure on this type of work.

8.4 Subject to satisfactory drafting, the above approach to Rights of Way can be agreed for inclusion in the Section 106 Agreement.

9. New Forest District Council Matters

9.1 The County Council also objected to the Dibden Terminal proposals on the grounds of adverse landscape impact, the potential employment implications and that there would be severe disbenefits for the local community, especially in terms of noise effects. The District Council, supported by the County Council, has submitted detailed evidence on these matters.

9.2 ABP submitted landscaping proposals to the Public Inquiry. However, the Councils contended that the proposals were insufficiently detailed to properly assess how far the landscaping mitigated the impact of the Terminal and the road improvements. ABP has put forward draft obligations to provide all the necessary details for approval by the local planning authority prior to the commencement of the main development or the A326 improvements. Other provisions are necessary to cover future management of the landscaping areas, soil management plan, lighting impact, etc. The Councils are seeking obligations in order to secure the effective delivery and future maintenance of the landscaping works.

9.3 The Councils' evidence on employment put forward that ABP should contribute to a local training initiative to assist the local labour supply acquiring the requisite skills to undertake some of the jobs that will be created in the construction of Dibden Terminal. An appropriate planning obligation in the Section 106 Agreement needs to be drafted and ABP is currently preparing provisions to cover how it will contribute to the initiative.

9.4 The District Council submitted detailed technical evidence of the noise implications of the proposed Dibden Terminal. As a result the Councils are considering appropriate noise conditions to be attached to the Orders. The Section 106 Agreement requires obligations to be drafted to cover construction and operational noise and vibration requirements. Specific provisions proposed cover maximum permitted noise levels for construction, including piling, restriction of working hours for construction, operational noise limits and restrictions on the noise level of train locomotives. In addition, provisions are required to cover the installation of noise barriers to mitigate rail noise.

9.5 There are also provisions covering other topics such as air quality, contamination and the Hythe Marina Bund.

10. Terms of The Orders

10.1 The draft Harbour Revision Order and the Transport and Works Act Order submitted by ABP have provisions which permit and control the permitted development. The provisions include tying the development to that which has been assessed, control of operational noise and restrictions on the quayside cranes.

10.2 During the course of the Public Inquiry the County Council has put forward variations to the provisions and suggested certain additional restrictions on the development.

10.3 The main provisos put forward by the County Council cover the operation by ABP of the permitted development rights. Certain conditions covering the provision of the aggregates wharf have also been submitted by the Councils. The County Council has, as mentioned above, proposed a further requirement that the last stage of the development shall not commence until the Secretary of State is satisfied that sufficient off-site rail infrastructure has been provided in order to allow ABP to at least achieve a 15% rail modal split of land borne containers.

11. Proposed Conditions on the Planning Applications

11.1 All the planning applications have been called in by the Secretary of State for determination. The Councils are putting forward proposed conditions to be applied to the four applications. These cover the timing of the proposals, the submission of details and certain other restrictions.

12. Conclusions

12.1 Whilst maintaining its objections to the Dibden Terminal proposals, the County Council needs to consider what it could achieve by entering into an agreement with ABP to control the development, if it were to be approved by the Secretary of State.

12.2 A binding legal agreement under Section 106 would have advantages in guaranteeing a level of control that might not be achieved if matters were left to the discretion of ABP in unilateral undertakings.

12.3 Certain matters have been agreed with ABP, either at the Public Inquiry or in direct negotiation, and these can be incorporated into the agreement. Substantial areas of the agreement are still being drafted and it will be necessary for officers to finally determine that the agreement is drafted in a satisfactory form.

12.4 There are a number of issues where there is still disagreement, eg the level of financial contribution by ABP to mitigate the impact on Totton Town Centre, Marchwood and the New Forest Heritage Area; the commuted park-and-ride costs, etc. Officers will continue to negotiate for full contributions to these measures and an oral update will be given at the County Council meeting. It may be that negotiations may continue after the date of the County Council meeting and suitable delegation arrangements are required.

12.5 The County Council should continue to press for suitable controls through the terms of the Orders and possible conditions on the planning applications.

Recommendations

1. That Agreements, in such form as the Chief Executive may determine, be entered into with Associated British Ports and any other relevant parties in relation to the implementation of the Dibden Terminal proposals, in the event of the Secretary of State granting approval of the development, in respect of the following aspects as referred to in this report:

Transport - A326 measures, Terminal Access Road, Marchwood and Hounsdown Level Crossings, Public Transport Proposals, Port Travel Plan, Freight Quality Partnership, Lorry Routeing, Port Closure Contingency Plan and Signing Strategy.

Nature Conservation - measures relating to monitoring and management agency arrangements in the Church Farm Nature Conservation Area.

Archaeology - archaeological investigations.

Rights of Way - contributions to maintenance.

District Council matters - any relevant matters to the County Council.

2. That the County Council rejects the proposed provisions by Associated British Ports for financial contributions to traffic movement measures at Marchwood, within the New Forest Heritage Area and the overbridges at Totton Town Centre. The County Council would be prepared to agree to provisions for a maximum of £250,000 towards mitigation measures at Marchwood and a maximum of £500,000 for the New Forest Heritage Area. The County Council should seek provisions to achieve a contribution of £2.5 million towards improved accessibility at Totton Town Centre. If the above proposals are declined by Associated British Ports, the County Council should submit to the Public Inquiry that any final approval of the Dibden Terminal proposals should be dependent on full contributions to these measures.

3 That the Chief Executive and Director of Environment be given authority, in consultation with the Leader and any appropriate Executive Member, to agree, notwithstanding Recommendation 2 above, any outstanding financial contributions, commuted sums, matters of drafting that are currently in disagreement with Associated British Ports and any other appropriate matters, with the aim of achieving a completed Agreement prior to the closure of the Dibden Terminal Inquiry, or, if considered unsatisfactory, to reject certain parts of the Agreement.

4. That the Chief Executive and Director of Environment be authorised to pursue further possible controls of the proposed development through submissions to the Public Inquiry on the terms of the Orders and possible conditions on the planning applications.

7556/TC