NESS DISTRICT SALMON FISHERY BOARD (NDSFB) – Holding Objection (Part 2)
Following on from ‘Part 1’, here is the second instalment from the initial NDSFB ‘holding objection’, issued last year. it picks up from where we left you in the previous blog…..
Related Cases
50. There are two other major pumped storage hydro cases in the Highlands where some comments can be made that will be relevant to the determination of this application.
51. The Council were consulted on the Earba S36 pumped storage hydro scheme and responded with a no objection comment. The scheme, located within a Wild Land Area (WLA 14), has since been consented by Scottish Ministers.
52. In the Council’s Report and response on Earba the effects of the seven year long construction stage are significantly underassessed (including temporary accommodation for up to 500 workers), a considerable number of objections were lodged, and a very considerable number of controlling and further information conditions were set out. The JMT questioned how the delivery of these could be monitored, controlled and guaranteed. Indeed, the fact that so many key aspects still remain to be designed and assessed at a post consent stage raises serious questions as to whether a consent should have been given on such a high risk basis.
53. Possibly the most striking aspect is in the conclusions, para 9.8, where the case officer states “…. The extent of landscape and visual effects as well as all other construction impacts being outweighed by the contribution the development would make towards tackling climate change.” That statement is nonsense that is not justified in any way in the Report. It is utterly spurious as the project, if built and operated, will have absolutely no effect whatsoever on future global climate patterns or on the impacts of climate change on Scotland. The asserted planning balance used to justify the project is without any objective basis either in the application documentation or in the Committee Report.
54. There are now some “challenging” discussions and possible landowner objections as SSEN try to find a route to take the electricity from the scheme to the market via underground connections, OHLs and a very large new substation. None of this was addressed in the determination of the application.
55. The Council’s SPAC has recently considered the Loch Kemp pumped storage hydro scheme. This would also use Loch Ness. The Report of Handling is again very lengthy, the construction stage effects are underassessed, some 53 planning conditions are needed to control the development, and once again, a very considerable number of very serious adverse effects are set aside on the basis of the contribution to tackling climate change. Any experienced Chartered Planning Professional, faced with the fact that what is effectively a detailed (full) planning application that needs some 53 control and further information conditions to make it acceptable, would readily conclude that the determination recommendation was clearly wrong. Indeed, the SPAC appears to have reached the same conclusion, and they voted to object. Many of the issues that are relevant to Loch Kemp case will also be material for this case. The NDSFB are objectors to the Loch Kemp proposal.
The Development Plan Assessment
56. The assessment below concentrates on National Planning Framework 4 (NPF4) since this postdates the adoption of the Council’s Highland Wide Local Development Plan. All of the material set out earlier in this objection has been taken into account in preparing the Development Plan Assessment. It also focusses on the policies that are relevant to the technical assessment produced by the NDSFB. Should the case be taken to a PLI then a fuller policy review will be undertaken at that stage.
57. Within NPF4 the relatively generic text in the section on Regional Spatial Strategy lists renewable energy generation (including storage) and transmission as one of the priorities whilst recognising the area’s exceptional assets and natural resources. However, this broad brush generic statement of spatial planning priorities cannot then translate directly across to an approval for any specific project in any specific location. The various relevant policies in NPF4 still have to be applied. NPF4 is very clear on this aspect.
58. In terms of NPF4 the proposed project is a national development category (national development 3 – strategic renewable energy generation, storage, and transmission). The text in this part of NPF4 is a fairly generic statement and is not locationally specific or project specific in any way. Indeed, what is said is no more than the obvious. It is stated in NPF4 that delivery of this national development 3 will be informed by market, policy, and regulatory developments and decisions. However, it is not explained how these other regulatory systems are to interact with the role of the Planning Authority or with the Electricity Act section 36 determination process.
59. In addition, the introduction text to Annex B National Developments and the text under Spatial Strategy makes it clear that proposals still need to be considered carefully at project level, that this status does not grant planning permission (or presumably deemed planning permission) for the development, and that all relevant consents are required.
60. In summary, for specific project proposals set in a specific location, there is little in the way of specific support that flows from these generic, obvious statements.
61. Therefore, for national developments the location specific and project specific policy assessments from NPF4 still have to address the key question as to whether or not this is the right development in the right location. To do that requires the consideration of NPF4 Policies as addressed in the following paragraphs.
62. Policy 1 (tackling the climate and nature crises) is an overarching policy that requires that significant weight is given to these two issues when considering development proposals. In relation to this Policy there is ample evidence that the proposal will cause harm to nature through effects on the Loch Ness ecology, a range of protected species, habitat displacement, and loss of peat as partly recognised in the EIA-R. Furthermore, the applicants can point to no evidence that the project, on its own or in combination with other wind farm and/or transmission projects and/or storage projects, will have any verifiable and measurable beneficial effect on future global climate patterns. The proposal, therefore, is not supported by any evidence of any beneficial effect on global climate but it has an adverse effect on nature (that is not offset by net biodiversity gain) and so the proposal fails to demonstrate compliance with the terms of this overarching policy test.
63. In the EIA-R the findings of non significant effects for the various biodiversity considerations are predicated on (proposed but not guaranteed) mitigation being successful. As far as is known there are no NatureScot sponsored peer reviewed scientific studies into the effectiveness of renewable energy related mitigation measures in Scottish energy schemes. On the contrary, the experience with projects such as the existing Fallago Rig wind farm, the Creag Riabhach wind farm, the Viking wind farm (Shetland), and the Sutherland Spaceport is that the reliance on planning controls through conditions has not worked and that environmental harm occurs without any subsequent effective enforcement action to remedy the situation.
64. Policy 3 (biodiversity) is key. The scale, range and significance of the adverse effects on the biodiversity and ecology of Loch Ness and its shorelines are set out in the NDSFB technical assessment. Taking that assessment into account, Policy 3b provides that for, inter alia, national developments, these will only be supported where it can be demonstrated that the proposal will conserve, restore and enhance biodiversity, including nature networks so that they are in a demonstrably better state than without intervention. In this respect the NDSFB technical assessment and the criticism in the consultation response from the Council’s Development Plans team are of considerable importance. Although a metrics based and objectives based approach is referenced in the application documentation, the EIA-R does not provide any detailed metric based specific proposals and guaranteed delivery mechanisms to deliver on the policy requirement for betterment (having regard to the accepted adverse biodiversity effects of constructing and operating the scheme). In addition, the final locations for offsite enhancement have yet to be identified.
65. The technical assessment for the NDSFB sets out a series of concerns around the assessment of effects and the inadequacy of mitigation. That assessment does not identify any proposed enhancement beyond the proposed mitigation.
66. Therefore, it is considered that without clearly identified locations (that have been legally secured in perpetuity), a final set of metrics based specific proposals, addressing the very detailed concerns of the NDSFB, and a long term guaranteed delivery mechanism, it is simply not plausible to rely on say an outline Habitat Management Plan or Biodiversity Enhancement Plan, with details to follow, as a basis for asserting compliance with this NPF4 policy.
67. In terms of the criteria set out in Policy 3b) it is concluded as below for the proposed Hub:
i. It is agreed that the context is partly understood but many of the initial assessments have been inadequate or partial and a significant range of concerns are set out in the NDSFB technical assessment.
ii. It is not clear that all feasible opportunities have been taken to integrate and make best use of nature based solutions.
iii. In terms of the mitigation hierarchy the first principle, avoidance, should have led to a more detailed consideration of alternatives on other sites or the use of other technologies.
iv. There is no evidence of significant biodiversity enhancements of the types mentioned in the Policy text, nor of the required certainty of delivery, nor of binding provisions for the long term management, retention and monitoring that is required to deliver the benefits envisaged by this Policy.
v. Nor are there firm proposals for delivering and securing local community benefits from biodiversity enhancement.
68. In conclusion, the proposal fails in respect of this policy test having regard to the general principles and to the related criteria (bar criterion 1 which relates to the understanding of the existing characteristics). The proposal, therefore, fails in terms of this key policy test.
69. As an aside, and in respect of NPF4 Policy 3, it is noted from other cases that the RSPB is requesting that biodiversity management and/or enhancement plans are secured by way of a S75 Agreement so that the terms are legally binding on all current and future parties with an interest in the relevant land.
70. Policy 5 Soils is relevant in terms of considering the effects of the project on peat resources taking into account the technical assessment by the NDSFB and the SEPA consultation response. The unavoidable level of loss and disturbance to the high quality peat resource is not justified. The proposal fails in terms of this policy test.
71. Policy 11 (energy) is the key policy in terms of the assessment of renewable energy proposals.
72. Policy 11b) does not apply as the proposal is not in a National Park or an NSA.
73. Policy 11c) addresses net economic impact and whilst the application asserts a number of claimed economic benefits there is no assessment of the net effects to take account of social and environmental costs or displacement (the SPAC considered some of these issues when objecting to the Loch Kemp proposal). Therefore, the proposal does not demonstrate that the net economic benefit is maximised and the proposal conflicts with this policy.
74. In terms of the specific impacts listed in Policy 11e), the proposal has not adequately addressed and mitigated:
a. Very significant adverse effects on salmon and brown trout, as detailed in the submitted NDSFB technical assessment.
b. Impacts on communities and scattered houses.
c. Landscape and visual effects that impact adversely and for the long term on sensitive receptors.
d. Cultural heritage effects.
e. Impacts on road traffic (including cumulative effects).
f. Significant adverse biodiversity effects in terms of the NDSFB statutory interests.
g. The full suite of cumulative impacts in terms of the known proposals for other major renewable energy related development proposals.
75. There are also the risks that arise from the location on a geological fault line where those risks have not been adequately assessed and mitigated.
76. Notwithstanding that considerable weight is to be given to the contribution to renewable energy targets and emissions reduction targets, the adverse impacts are unacceptable to the NDSFB.
77. Policy 11f) addresses the issue that wind farm sites should be expected to be suitable for that use in perpetuity and presumably this will also apply to the pumped storage hydro scheme and the associated transmission infrastructure. That is the approach that has been taken in this holding objection.
78. The overall conclusion that is reached is that the proposal, therefore, fails in terms of this key NPF4 policy.
79. Some consideration should be given to Policy 14 (design, quality and place). Although not considered to be a key determining issue, the proposal fails the test of Policy 14a in that it has not been designed to improve the quality of the rural locations it affects. It will not contribute towards creating a successful place.
80. In terms of the policy outcomes for Policy 18 (infrastructure first) the applicants have not demonstrated that the existing infrastructure assets can be used sustainably without the need for this proposed new development.
81. Policy 22 Flood Risk and Water Management allows that essential infrastructure can be allowed to proceed even where there is a flood risk. However, as set out in the SEPA response and the NDSFB technical assessment, all risks of flooding have to be fully understood with no reduction in floodplain capacity and no increased risks to others. It is considered that the proposed development does not comply with these caveats and therefore does not comply with this policy.
82. Therefore, it can be concluded that, overall, and apart from the classification of the proposal within the fairly generic national development 3 description, the proposal can draw no support from the various NPF4 Policies assessed above.
Material Considerations
83. In previous renewable energy applications, the applicants have tended to lodge or refer to vast amounts of documentation on international and national protocols and treaties and intentions on climate change alongside various documents on energy policy and energy strategy. However, beyond the need to understand the bigger picture issues, as set out earlier, and to address the full set of cumulative and consequential effects, the NDSFB remains satisfied that all of the appropriate policy provisions and material considerations for a determination are now captured in the very up to date NPF4 and there is no need to go beyond that in terms of material planning policy considerations.
Development Plan Conclusions
84. In summary, for the reasons given in this holding objection, the proposal is not in accordance with the Development Plan, in respect of NPF4, and material considerations do not change this conclusion. That is a material factor which weighs heavily in the balance against the granting of a S36 consent and deemed planning permission.
Electricity Act Assessment
85. The current approach of decision makers to the question of compliance with the provisions of the Electricity Act is simply to assess whether or not sufficient mitigation has been delivered by the proposals to offset the significant adverse scheme specific and cumulative effects. Having regard to the EIA-R, this holding objection, and the submitted technical assessment for the NDSFB, the conclusion that is reached is that sufficient mitigation has not been secured.
86. In particular, the significant effects on the aquatic environment of Loch Ness that would arise are not capable of being mitigated to acceptable levels in the considered opinion of the NDSFB.
87. The proposal, therefore, is not in accordance with the provisions of the Act.
Overall Conclusions in respect of the Electricity Act and the Development Plan
88. In summary two overall conclusions can be reached. Firstly, in terms of the Electricity Act, the applicants have failed to deliver on adequate mitigation with some aspects being underassessed (especially the construction stage effects) and other aspects not capable of being mitigated. Therefore, the requirements of the Act have not been met. Secondly, in terms of the Development Plan the proposal has been assessed in terms of the very up to date NPF4, and it has been concluded that the proposal is in breach of key policies as insufficient mitigation has been secured to overcome the adverse effects.
Conclusions and Submission
89. This application is materially flawed with inadequate or missing assessments combined with what is little more than guesswork on some aspects at this stage. To contemplate consenting the scheme would run the very significant risk of severe environmental harm being caused.
90. The NDSFB respectfully submit that the Scottish Ministers should refuse S36 consent and deemed planning permission for the proposed Glen Earrach pumped storage hydro S36 application on account of the requirements of the Electricity Act not being met and on account of it being contrary to the relevant provisions of the Development Plan including NPF4.
Next Stages
91. Further submissions may be made on behalf of the NDSFB once the position of key statutory consultees is published, once the requested further information has been provided, and once the position of the Council is known. This process could involve updating the draft technical assessment and submitting a final version.
Caveat
92. Should the situation arise that the Council does not object to the application and then Ministers are considering a consent, it would be essential that the Board is involved in discussions about the deemed planning permission conditions dealing with mitigation and monitoring in order to e