SEPA Objection
Advice for the determining authority
We submit a holding objection due to potential impacts on flood risk and peat and carbon rich soils. We will consider withdrawing this objection if the issues outlined in section 2.4 and 3.2 of this letter are addressed. Should the above issues be addressed we ask that the conditions outlined below be applied to the consent, if granted. Please also note the other advice provided.
Our position and advice is based on your authority ultimately determining that the proposal is classed as development that could be supported for the purposes of assessment under Policies 5 and 22 of National Planning Framework 4. If this is not the case, please advise so we can re-consider our position and advice.
1. Water Environment (Controlled Activities) (Scotland) Regulations 2011 (as amended) (CAR) authorisation for hydro scheme
1.1 The applicant has not yet applied for an authorisation under CAR for the hydropower element of the development, but we understand it is imminent.
1.2 There are many aspects of this proposal that will be considered as part of the CAR licence determination. These include the frequency in loch level changes, third party interests, fish passage and downgrades to classification; impacts on protected species and habitats, fish ecology, hydrology and hydromorphology will all need very careful consideration as part of the CAR licence determination. SEPA is working with the developer during the pre-application process to ensure all information in support of the application is provided.
1.3 We are not able to provide a view on whether the proposals are capable of being consented at this time. Details such as abstraction and discharge rates and the detailed design of related structures will only be determined as part of the full CAR assessment process. We consider it to be at the developer’s own risk should there be a need to amend any planning permission in the future.
2. Flood risk
2.1 In line with National Planning Framework 4 (Policy 22) a precautionary approach to flood risk should be taken by avoiding development within areas at risk of flooding (land or built form with an annual probability of being flooded of greater than 0.5% which must include an appropriate allowance for future climate change).
2.2 The site is partly shown to be at risk of flooding based on the SEPA Future Flood Maps. This indicates that there is a risk of flooding from Loch Ness, the Allt Coire an Ruighe and a number of other watercourses within the site. You can view the SEPA Flood Maps (including the Future Flood Map) and find out more about them at Flood Maps | SEPA – Flood Maps | SEPA (https://map.sepa.org.uk/floodmaps).
2.3 This type of development is generally considered Essential Infrastructure, falling under Policy 22a(i) of NPF4 and therefore the location of the development may be acceptable in a flood risk area (1 in 200 year including climate change flood extent). However, the development must comply with the requirements of Policy 22, and in particular here our concern is over increased risk for others as a result of development.
2.4 We have reviewed the Flood Risk Assessment (FRA) and Water Resources Assessment and found most aspects to be based on appropriate methods and parameters for the catchment. However, we have concerns over the proposed maximum level for ceasing generation as we believe the level of 17.6mAOD is higher than the indicated 1 in 10 year level. The FRA outlines that during an event in October 2014 a flow of around 600mÑ/s was recorded on the River Ness, which had a return period of around 1 in 10 years and that the modelled flood level of 17.6mAOD corresponds well to recorded levels at Foyers. However, the highest flow recorded at Ness Side in October 2014 was 542mÑ/s and this corresponded to a level of 17.03mAOD at Foyers. The highest level recorded over the gauged record on Loch Ness (1991 to 2013 at Fort Augustus and 2014 to present at Foyers) is 17.52mAOD in March 2015, which corresponded with a flow of 696mÑ/s at Ness Side and a likely return period of around 1 in 25 to 30 year event. Flood impacts were reported at Fort Augustus and Inverness during this event. We are of the opinion that the maximum level for generation should be lowered to prevent any increase in flood risk on Loch Ness, particularly at Fort Augustus, and downstream on the River Ness. Alternatively, additional justification is required to support the levels provided in the FRA. We therefore object until this issue is addressed.
2.5 We note that the FRA makes reference to proposals for a variable weir at Dochfour Weir and the water balance assessment includes scenarios for this indicating there would be no increase in maximum levels. However, as these proposal do not form part of this Section 36 application and there is no guarantee that they would receive separate planning permission or CAR authorisation we do not consider they can be taken into consideration as part of this application and as a result we have not reviewed the proposals for the weir in detail and provide no comment on the findings. We will only consider this mitigation once it has planning permission/CAR authorisation or if specifically directed to by you. We are also aware that Statera Energy, developer for Loch Kemp Pumped Storage Hydro, is proposing a variable weir (see Ness Weir II | Ness Weir II [https://nessweir2.co.uk/]) at Dochfour and it is not clear whether the proposals within this submission are related to this work or not. We recommend that a joined-up approach be taken by all the operators to the management of levels on Loch Ness and the River Ness, to ensure that the combined impacts do not have a significant effect on the water environment or result in an overall increase in flood risk.
2.6 The Headpond will be of a volume that is regulated under The Reservoirs (Scotland) Act 2011. Our Reservoir position statement (Ref 1) outlines that the probability of failure of a reservoir structure managed under the 2011 Act is considered to be so low that it is beyond the scope of likely probabilities set out in Policy 22 of NPF4 (the document references SPP but the case remains under NPF4).
2.7 The temporary workers compound is located in an area shown as at flood risk from the surface water and small watercourse flood maps. However, we note that the development is located set back from the small watercourses and the flow pathways are likely to be representative of surface water runoff from the hillside. Surface water and its management is within the remit of the Local Authority. Notwithstanding this, we would recommend that mitigation, e.g. maintaining flow pathways, use of cut off drains, raised finished floor levels, etc, are implemented where feasible to reduce the risk to this part of the development.
3. Peat and peatland
3.1 As you know we have streamlined our approach to consultations concerning peat and carbon rich soils. We now focus our planning advice on the avoidance, minimisation, and use of peat in areas disturbed by construction activities and no longer provide advice on peatland restoration; developers should refer to NatureScot guidance (https://www.nature.scot/doc/peatland-action-technical-compendium) for advice on restoration.
3.2 Generally the development avoids deeper peat and near natural peatland habitat. However it nonetheless is estimated to disturb over 400,000 m3 of peat. It is noted that a quarter of this relates to compounds and temporary workers accommodation. Figure 2.28 indicates that site facilities are wide ranging and relatively spaced out. We object until the layout is revised to reduce the volume of peat disturbance, clearly demonstrating adherence to the NPF4 mitigation hierarchy. A smaller footprint could be achieved by a variety of means including moving the proposed infrastructure closer together, providing some of the infrastructure (such as car parking and storage) in an off-site location, providing multi-level facilities and not stripping peat and carbon rich soils from all the area.
3.3 The Peat Management Plan (Appendix 15.2) indicates that all the peat can be used in site reinstatement, however it is noted that uses include as track bunds, which is not recognised best practice.
3.4 We ask that a condition is applied requiring a finalised Peat Management Plan to be agreed with the planning authority in consultation with SEPA. The finalised plan should be supported by further peat probing information and clearly demonstrate the further measures that have been taken to minimise peat disturbance. All proposals for use of peat on site should follow recognised best practice guidance.
4. Other impacts on the water environment
4.1 A condition should be applied requiring watercourse crossings to be constructed in line with the design requirements outlined in Appendix 10.3 and section 10.7.73 of the EIA report. Where existing crossings are to be replaced (rather than extended) then the design of the replacement structure should be in line with best practice guidance.
4.2 Based on the information provided it would seem that the assessments in Appendix 10.2 are based on the point use of the water supply rather than the water source. If this is the case we recommend further assessment is carried out based on the location of the water source and our guidance-on-assessing-the-impacts-of-developments-on-groundwater-abstractions.docx (Ref 2). Should there be a requirement to undertake a Stage 3 assessment then we recommend that we be re-consulted in line with the above guidance.
5. Earthworks material management
5.1 We welcome the submission of a Materials Management Appraisal (Appendix 15.1). It estimates that approximately 9.6 million tonnes of rock spoil will be generated by the development and of this it is estimated that just under 3 million tonnes is considered as excess material from the main construction project. However section 3.4 of the EIA report indicates that this material can be used for other parts of the development or in reinstatement of other area and the final volume of excess material is approximately 100,000m3. Mention is made that this material may be taken off site and that the final destination and use will be confirmed with The Highland Council and SEPA post consent.
5.2 We note that the Appraisal has been produced before any intrusive ground investigations have taken place and will need to be updated after such works. In view of the need for these investigation works and the fact that a use has not been currently identified for all excavated materials we ask that a condition is applied requiring a finalised Materials Management Appraisal to be agreed with the planning authority in consultation with SEPA. The finalised appraisal should be based on ground investigations and provide an updated mass balance, identifying the fate for all excavated materials with clear detailed plans relating to any proposals to remove material for site. For the avoidance of doubt there should be no long-term storage of material on site and material should only be temporarily stored within the identified construction areas unless agreed with the planning authority in consultation with SEPA.
6. Pollution prevention and environmental management
6.1 We are generally content with the pollution prevention and environmental management proposals outlined and brought together into the Mitigation Register (Appendix 19.1), Outline Construction Environmental Management Plan (Appendix 3.1) and Outline Water Management Plan (Appendix 10.4). Due to the scale of the development, we will directly control pollution prevention measures relating to surface water run off via a CAR water runoff permit and as a result, and as peat and waste management issues will be covered via the requested spoilt and peat management plans above, we are not requesting planning conditions to cover these aspects. To ensure that the planning authority has control over these issues you may nonetheless wish to condition the CEMP requirements; however, if this is the case please do not specifically name SEPA as requiring consultation on it.
Advice for the applicant
7. Assessment advice
7.1 Please note that SEPA has relatively recently updated its GWDTE and groundwater abstraction guidance. Please ensure any future work complies with the revised requirements; see Guidance and advice notes | Scottish Environment Protection Agency (SEPA) [https://www.sepa.org.uk/environment/land/planning/guidance-and-advice-notes/].
8. Regulatory advice
8.1 Details of general regulatory requirements and good practice advice can be found on the regulations section of our website.
8.2 You should continue to liaise with our Water Permitting team regarding your CAR authorisation.
8.3 Excavated peat will be waste if it is discarded, or the holder intends to or is required to discard it. Unless the waste peat is certain to be used for construction purposes in its natural state on the site from where it is excavated, it will be subject to regulatory control. Further guidance on this may be found in the document Is it waste – Understanding the definition of waste (Ref 3). If there are any proposals to make use of excavated peat that do not meet the above requirements the developer should contact SEPA’s waste permitting team via wastepermitting@sepa.org.uk to discuss potential regulatory controls of use of excavated peat.
8.4 Should it be determined that the development result in the generation of waste spoil you should consider the regulatory implications outlined at Waste | Scottish Environment Protection Agency (SEPA) [https://www.sepa.org.uk/regulations/waste/].. Any material removed from site will need to be put to genuine use (which may require to be permitted) or taken to a suitably permitted facility for treatment or disposal.
8.5 For information on the Reservoir Act please see Reservoirs | Scottish Environment Protection Agency (SEPA) [https://www.sepa.org.uk/regulations/water/reservoirs/].
If you have queries relating to this letter, please contact us at the email above including our reference number in the email subject.
Susan Haslam
Senior Planning
References
- chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.sepa.org.uk/media/219585/reservoir-position-statement.pdf
- https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fwww.sepa.org.uk%2Fmedia%2Fmfzpnjwb%2Fguidance-on-assessing-the-impacts-of-developments-on-groundwater-abstractions.docx&wdOrigin=BROWSELIN
- chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.sepa.org.uk/media/154077/is_it_waste.pdf