Contact: Tony Clatworthy, tel 01489 576387 email: [email protected]

1. Summary

1.1 This report provides details of an application by Universal Marina to make alterations to a previously consented application by seeking permission for part of a high level jetty and houseboats to be retained in situ. The full removal of the high level jetty and houseboats formed part of a previous Harbour Works Consent granted to Universal Marina in February 2005. Removal of the high level jetty and houseboats was offered as mitigation for River Hamble intertidal habitat lost in the capital dredging and refurbishment of the marina at Universal. The project was completed in the spring of 2006 and the high level jetty and houseboats have not yet been removed.

2. Recommendations

2.1 That the River Hamble Harbour Board grants consent for the current application to remove part of the high level jetty and houseboats as per drawing DRG No. 8686/38 A3, thereby providing part of the mitigation measures required for lost intertidal habitat and enabling the applicant to comply with the Section 106 agreement dated 12 April 2007 with Fareham Borough Council ("the Section 106 Agreement" ), with the following conditions:

a. The marina operator shall ensure that the master or owner of each vessel moored on the high level jetty has sufficient insurance to enable recovery or disposal of the vessel should it sink either at its moorings or in transit to or from a boatyard.

b. Should a vessel moored at the high level jetty be abandoned by the owner, the marina operator shall immediately become responsible for disposal of the vessel in a safe way that will not damage the environment nor impact on navigation.

c. The marina operator shall on dismantling the whole or any part of the high level jetty dispose of the resulting materials to a suitable licensed disposal site.

d. No vessel shall be permitted to move from the high level jetty without first obtaining written consent from the Harbour Master.

e. The marina operator shall comply with the requirements and conditions of the Section 106 Agreement attached at Annex A.

2.2 Future Harbour Works Consents that require compensation or mitigation measures will normally be subject to a condition that the Works will not be allowed to commence until such time as the Harbour Master has stated in writing that the compensation and mitigation measures have been completed to his satisfaction.

3. Proposals

3.1 John Willment Marine Ltd (Universal Marina) has requested Harbour Works Consent to remove 60 metres of high level jetty and allow 142 metres of jetty to remain in place along with 79 metres of houseboats as per drawing DRG No. 8686/38 A3 produced by Lymington Technical Services Limited, which is attached to this report.

4. Designated Sites and the Harbour Authority's Responsibilities

4.1 The River Hamble Harbour Authority is a Relevant Authority under The Conservation (Natural Habitats, & c) Regulations 1994, commonly known as the Habitats Regulations. As a Competent Authority the Harbour Authority has a legal duty to secure compliance with the requirements of the Habitats Directive and to ensure that in the exercise of any of its powers or functions it will have regard to both direct and indirect effects on the interest features of the European Marine Site.

4.2 The River Hamble is part of the Solent European Marine Site and is afforded protection due to its international nature conservation value. The majority of the Hamble Estuary East and West banks fall within the Solent and Southampton Water Special Protection Area and Ramsar site. The whole river lies within the Solent Maritime Special Area of Conservation.

4.3 As a Section 28G Authority under the Wildlife and Countryside Act 1981 (as amended by the Countryside and Rights of Way Act 2000), the River Hamble Harbour Authority has a duty to take reasonable steps, consistent with the proper exercise of the Authority's functions, to further the conservation and enhancement of the flora, fauna or geological or physiographical features by reason of which the site is of special scientific interest.

4.4 Consent may be granted by the River Hamble Harbour Board permitting harbour works in the navigation of the River Hamble to accord with Section 10 of the Southampton Harbour Act 1924 and Section 48 of the Southampton Harbour Act 1949, as amended by the River Hamble Harbour Revision Orders 1969 to 1989. Within the River Hamble Harbour Board's statutory duties lies the responsibility to ensure that all matters concerning navigational safety and responsibilities under the Habitat Regulations are addressed. This area of responsibility includes the proposed works at Universal Marina.

5. Consent History

5.1 On 5 April 2004 a report was presented to the River Hamble Executive Member's Group with details of the proposed new layout of Universal Marina and Crableck Marina. The Executive Member's Group considered the report and advised the Executive Member to grant consent for the proposed development subject to the successful conclusion of the following:

a. Consideration of the effect and impact that the proposed development may have on the Aims and Policies of the River Hamble Estuary Management Plan;

b. Consideration of the type of vessel that will be encouraged to take up moorings in the modernised marina and the effect that may have on the fairway traffic in the future; and

c. All other appropriate consents being obtained.

5.2 Before the Executive Member moved to make a decision, two issues required attention to ensure that environmental damage would not occur because of the proposed development and that agreed mitigation could be established if required. These issues were:

a. Would the capital dredge affect the main channel or any other marinas in the River?

b. Would other Competent Authorities require the establishment of appropriate mitigation to replace the proposed loss of 503m² of intertidal mud above Mean Low Water?

5.3 The removal of the high level jetty and associated house boats would restore 684m²of intertidal mud, and this was accepted as suitable mitigation by all competent authorities. Following further consultation with English Nature (now Natural England), The Environment Agency, Defra and Fareham Borough Council, the Appropriate Assessment took into account the proposed removal of the high level jetty and associated houseboats as mitigation for loss of intertidal mudflat and concluded that the proposal in its entirety would have "no adverse affect on the integrity of the cSAC and other international sites designated in the area". Fareham Borough Council then drew up a Section 106 Agreement for the removal of the high level jetty and houseboats (attached at Annex B to this report.)

5.4 On 15 February 2005, the Executive Member granted Harbour Works Consent to Universal Marina, in the knowledge that suitable mitigation for the loss of the mudflats had been identified, and that the Harbour Authority's legal responsibilities under the Habitats Regulations had been fulfilled. The Executive Member was also informed that English Nature, The Environment Agency, Defra and Fareham Borough Council were in full agreement with the established Section 106 Agreement and was satisfied that the decision was compliant with the legal environmental responsibilities. It was also confirmed that any dredging would not affect the main channel or any marinas in the River.

5.5 The Harbour Works were completed during Spring 2006 except for the removal of the high level jetty and houseboats which remain in place. Thus, the agreed mitigation has not materialised and, to date, there has been a net loss of intertidal habitat.

5.6 On 10 February 2007, the Harbour Authority received a request for Harbour Works Consent from Lymington Technical Services acting for John Willment Marine Ltd (Universal Marina) to remove 60 metres of the high level jetty and retain the remaining 142 metres, along with four house boats. Such an arrangement would leave the equivalent to 644m² of mudflat remaining in use by the jetty and house boats. The applicant offered in compensation an area of 1,000m² which is currently mudflat and intertidal mud and is not currently used either for commercial or leisure activities and, because of its location, could not be used for development. (see attached drawing DRG No. 8686/38 A3) The Harbour Authority does not consider this as suitable compensation as this area already exists as natural habitat, therefore offers no net gain.

5.7 The Harbour Authority was asked by Fareham Borough Council to comment on the new application to leave the houseboats and high level jetty in place.

5.8 On 12 April 2007 Fareham Borough Council released Universal Marina from the original Section 106 Agreement dated 25 February 2005 without consulting the Harbour Authority, and established a new Section 106 Agreement between Fareham Borough Council and the applicant, Universal Marina. The new agreement allows the jetty and houseboats to remain with the following conditions:

a. A houseboat may only remain moored to the jetty for so long as it is occupied by the person or persons who currently occupy the houseboat.

b. Houseboats may be temporarily removed for the purpose of repair or maintenance.

c. Any houseboat remaining unoccupied for a period of two calendar months shall then be removed from the mud land within twenty-eight days.

d. Within twelve months of the removal of any of the house boats currently moored to the jetty the positioning of the remaining houseboats shall be consolidated to take up the vacated space and that section of the jetty be removed.

5.9 On 11 May 2007, Fareham Borough Council gave consent to Universal Marina for the retention of the high level jetty and houseboats, subject to the above conditions being met.

6. Harbour Master's Comments

6.1 Conservation (Natural Habitats &c) Regulations: The Marina and the proposed works lie adjacent to the Solent Maritime Special Area of Conservation and the Solent & Southampton Water Special Protection Area/Ramsar Site. These sites form part of the Solent European Marine Sites Under Regulation 48 of the Habitats Regulations, this project should be subject to an Appropriate Assessment as it could have a significant effect on a European Site. Land south of the Marina is designated as part of the Lee-on-Solent to Itchen Estuary SSSI.

6.2 Environmental Impact Assessment: The proposed project was subject to an Environmental Impact Assessment under the Town and Country Planning Environmental Impact Assessment (EIA) Regulations and the Harbour Works EIA Regulations.

6.3 Under Regulation 48 (1) "an Appropriate Assessment needs to be taken (before any Competent Authority i.e the Harbour Authority, decides to give any consent) for the plan or project". This also applies where there has been a change to a plan or project. The Harbour Authority stated that a new and inclusive Appropriate Assessment should be produced to fully assess the effects of the new proposal on the adjacent European Sites. The original Harbour Works Consent was based on the Appropriate Assessment at the time and the mitigation being offered.

6.4 The conditions under which the Harbour Works Consent was granted by the Harbour Authority complied with its legal responsibilities under the Conservation (Natural Habitats &c) Regulations. These conditions were that the high level jetty be dismantled and the houseboats removed as set-out in the original Appropriate Assessment. Any failure to comply with the original conditions may have a significant detrimental effect and therefore a new Appropriate Assessment was required.

6.5 The Harbour Authority has recently carried out substantial consultation with all other competent authorities once learning that the applicant was granted consent for the revision by FBC. In order to ensure our compliance with the Habitat Regulations we have undertaken a revision to the original Appropriate Assessment, taking into account the modifications to the scheme. The conclusions are:

a. " The RHHA have reviewed the original AA with regard to the modifications and conclude that retaining the houseboats and part of the high level jetty under the terms of the revised S106 does not alter the conclusions of the original appropriate assessment. This is because the modifications to the mitigation offered is for the loss of undesignated mud rather than impact to the designated site.

b. The modification is seen as providing equal environmental gain in terms of the impact on the designated site. The mitigation offered for the loss of sub-tidal Solent Maritime cSAC remains unaltered at 8000m² of non-designated mudflat within the control of the applicant being set aside for nature conservation (further details of this are provided in the original AA). Natural England have been consulted for this revision and the conclusions are in accordance with that consultation." A copy of this has been sent to Defra, the Environment Agency, Fareham Borough Council and Natural England.

6.6 Although the retention of the houseboats and part of the high level jetty is not thought to adversely impact on the European Sites in the area, the Harbour Authority still has numerous concerns that result from the modified scheme. These are also held by the other competent authorities. The Environment Agency states: "The Agency would not wish to see any net loss of the foreshore and is extremely concerned about the continual loss of small areas of intertidal habitats. The removal of the high level jetty and houseboats was offered as compensation against the loss of intertidal area through the pontoon re-arrangement and dredging activity, which has already taken place."

6.7 The continuation of the jetty and houseboats at that location raises a number of concerns which have been addressed within the conditional Harbour Works Consent. These are:

a. It is likely that the jetty and houseboats will remain in place for ten or fifteen years, possibly longer. During that period the condition of the vessels is likely to deteriorate and they may become unseaworthy.

b. As the vessels will have no resale value at their current mooring due to the terms of the Section 106 agreement, abandonment could be a factor that will have to be accounted for.

c. Disturbance; both physically and environmentally,will continually affect the area. This will include the discharge of grey water and sewage.

6.8 The Harbour Authority, along with other competent authorities, feel that environmental best practise has not been met. We therefore seek to compensate for that by the inclusion of the conditions set out in paragraph 2.1 (a.) to (e.) along with paragraph 2.2 which ensures that future applications will ensure that any mitigation measures are in place before development work takes place.

7. Navigational Safety Risk Assessment

7.1 Navigational safety would be affected if a houseboat should sink in the main channel during transit to a yard for re-fit or when being taken from its mooring for demolition and disposal.

8. Consultation

8.1 The application for Harbour Works Consent appeared on the Harbour Authority website on 26 June 2007. Email notification of the application was emailed to all stakeholders on the email distribution list on 26 June 2007.

9. Equalities Impact Assessment

9.1 This report has no direct impact on the availability of the services and facilities of the Harbour Authority, therefore no impact assessment has been completed.

10. Conclusion

10.1 It is concluded that the revised Appropriate Assessment and associated conditions satisfy the Harbour Authority's legal responsibilties and that Harbour Works Consent for the proposed works can now be granted.