H&H Land & Estates Ltd on behalf of Alan Moore Bowe - Trustee of the Winderwath 1989 Settlement
"IN THE MATTER OF THE NATIONAL HIGHWAYS A66 NORTHERN TRANS-PENNINE PROJECT DEVEVELOPMENT CONSENT ORDER APPLICATION AND IN THE MATTER OF LAND TO BE ACQUIRED PERMANENTLY AT THE WINDERWATH ESTATE, PENRITH, CUMBRIA ______________________________ REPRESENTATIONS OF JOHN RICHARD LANE, JAMES HARE, ALAN MOORE BOWE AND SARAH CRANE AS THE TRUSTEES OF THE WINDERWATH 1989 SETTLEMENT TRUST ______________________________ 1. John Richard Lane, James Hare, Alan Moore Bowe and Sarah Crane are the Trustees of the Winderwath 1989 Settlement Trust (“the Representors”) and the owners of land extending to some 2,750 acres of agricultural and woodland in the Eden Valley on either side of the A66 located between Penrith and Temple Sowerby (“the Estate”) and are the registered proprietors under title No CU205235 and unregistered owners, approximately 146 acres of which are proposed to be acquired under a draft development consent order (“the DCO”) being sought for the National Highways A66 Northern Trans-Pennine Project (“the Project”). 2. By reference to the Book of Reference vol 2, the Land Plans 2, 3 and 4 at 5.13, and Environmental Statement 2.8 mitigation maps, the plot numbers listed at Annex 1 hereto are being sought to be acquired permanently. Further, the Representors have the benefit of sporting rights over the category 2 plot numbers also listed in Annex 1. 3. The parts of the Estate to be permanently acquired include agricultural land, and a residential property known as High Barns and an associate range of buildings. 4. The Representors do not object to the principle of the Project, but the Representors make the following representations on its effect on their ownership. 5. Lack of proper pre-application consultation: The Representors say that the pre-application consultations resulted in little progress as National Highways provided very little detailed information. In particular, no progress was made in the November 2021 and March 2022 statutory consultations. The actual contractors and detailed designers were only appointed on the 1 July 2022. This means that to date the Representors have had no details to consider on design and the specifics on which they have been making enquiries consistently regarding issues such as boundary treatments, junction designs, drainage, services etc. This is in addition to a lack of fundamental responses from National Highways on core principles, being the matters set out herein. 6. Environmental Mitigation: First, land proposed to be acquired is excessive in area and should not be taken from the Estate for environmental mitigation as the land so identified is grade 2/3 agricultural land and being highly productive its loss for the production of agricultural products and livestock is an extremely relevant consideration that must outweigh any environmental mitigation consideration. This is particularly (but not exclusively) the case concerning plots 03-02-01, 03-02-18, 03-03-06, 03-03-32, 03-03-33, 03-04-03, 03-04-04, 03-04-12 and 03-04-14. It is also considered that land taken for environmental mitigation areas should be proportional to the land area being acquired from any particular landowner rather than some landowners having larger areas of mitigation and some having relatively little. 7. Second, if contrary to the above if some land of the Estate is required for mitigation, the 18 acres of “Adrian’s Wood” (located at grid ref NY58422884 and mainly east and northeast of plot 03-04-06), which was planted recently as a shelter to adjoining property from the A66, should be used for the purpose. The Representors understand that the biodiversity net gain calculations ignore the newly planted woodland which under more recent biodiversity net gain matrix (3.1) should be accounted for. The Representors believe this would remove the need for any of the proposed environmental mitigation elsewhere on the Estate and particularly the blocks of mitigation planting and management proposed to the southeast on Whinfell House Farm (plots 03-04-04, 13-04-12 and 03-04-14). The Representors maintain that the most up to date matrix should be used and National Highways should not rely on an older version. The Representors understand that changes in the biodiversity net gain calculation matrix would now allow for the newly planted woodland to be considered. Further, the Representors are able to demonstrate that the Estate planted the new woodland in order to directly mitigate against the impact of the Scheme albeit not necessarily directly for biodiversity net gain purposes, but more particularly for screening but the wood was planted in direct anticipation of the scheme and the Representors can provide evidence to show this. 8. Third, in the further alternative to “Adrian’s Wood”, mitigation woodland planting should take place along the north side and adjacent to the Project, which would have the dual purpose in providing additional screening to the Estate properties to the north, as well as providing the required environmental mitigation. 9. Fourth, in the further alternative mitigation planting should take place on the less productive areas of the Estate as identified on the plan submitted as part of the First Consultation and entitled “Winderwath Settled Estate – Proposed Woodland Creation Areas”. 10. Fifth, the current proposals for mitigation planting would have severe negative impacts on the estates shoot management, which would be avoided by the alternatives put forward above. 11. Sixth, permanent acquisition of land for the environmental mitigation is unnecessary as the Representors will offer rights and enter into restrictive and enforceable positive covenants to plant and manage these areas in an agreed manner. Without prejudice to that general point, there is no compelling case for the permanent acquisition of the access route to the said mitigation area as the acquisition of rights only for the purpose will suffice. 12. Seventh, without prejudice to the above, and further representations below, the Representors object to the taking of any land where there is no coherent years 1 to 15 management plan that is consistent with the uses of the adjoining land of the Estate. 13. Access and additional Public Rights of Way (“PROWs”): First, The Representors fundamentally object to the imposition of additional public access on their Estate by PROWs or otherwise. Additional public access is not justified by the Project itself and/or its objectives. 14. Second, if PROWs are to be imposed the Representors are particularly against the joint use of private farm/estate access tracks where the public are walking or cycling. The combining of private and public access has an inherent risk and the Trustees maintain that segregation of public and private access should take place. Suggestions on how this could be achieved were contained in Consultation Response 2, with sketch plans. 15. Third, the Representors also object to the route of the proposed private and public access tracks which are routed around balancing ponds (with 90-degree bends) rather than logically adjacent to the highway, to avoid the acquisition of valuable agricultural land and make daily use of tracks easier with large agricultural machinery. Generally, where possible routes should as straight as possible and be adjacent to field boundaries. Further, tracks should be at least 4m wide and have adequate passing places. 16. Fourth, the Representors require detail on the third-party rights of access that will be granted along the access tracks, so that it is clear in respect of Estate land which third parties (e.g. National Highways, Utilities, local councils, neighbours etc) are to be granted rights of access over their land and in respect of neighbouring land, where the Estate will be granted rights of access to reach either public highways or other land in their ownership. To date National Highways has provided no detail on this. 17. Fifth, the Representors also have issues in regard to clarification on future maintenance of both private and public access particularly if they are mixed and also the issues on public liability insurance and liability on the Estate for any public accidents if tracks and access are shared. The Representors maintain that if additional public access is required that segregation of private and public use is an absolute necessity. 18. Sixth, the Representors object to any proposal to create any bridleways across their retained land. Although the plans now available are unclear on this point, seeking powers to impose public bridleway rights over their land where no rights either exist or will be interfered with under the Project cannot satisfy the requirement of a compelling case to take rights compulsorily. 19. Land form: The Representors believe that the level of the road particularly around the Centre Parcs Junction could be better engineered to lower the levels of the road in this area and to consequently produce a less obvious structure in the landscape, whilst also reducing the amount of land and reforming of adjacent agricultural land as a consequence: see Consultation Response 2. 20. Balancing and/or attenuation ponds: First, there are numerous number of balancing ponds shown on the Project plans (plots pt 03-02-06, pt 03-02-24, pt 03-03-06, pt 03-03-08pt 03-04-11) located on the Estate. The Representors believe that these balancing ponds should be rationalised into the least number of ponds necessary thus reducing access and potential issues with outfall drainage. A number of the locations show two ponds, which is not acceptable and does not mitigate land take. The size of ponds has also been questioned but as yet without any satisfactory response: see Consultations Reponses 1 and 2. 21. Second, there is extensive car parking shown for each of the balancing ponds which is deemed unnecessary and will take up valuable agricultural land. In any event, taking land for car parking is not with the powers of the proposed DCO. 22. Third, there is no apparent management plan for these ponds and the associated ditches. In particular work to existing ditches, drains and culverts would appear necessary, but is not detailed or agreed. 23. Fourth, the private means of access numbered 18, 22, 27 and 33 on sheets 2, 3 and 4 of document 5.19 Rights of Way and Access Plans are neither understood nor seen as necessary, and valuable agricultural land should not be permanently acquired for the purpose. 24. Fifth, in relation to the proposed ponds on the plots firstly at nos. pt 03-02-01, and secondly, nos. pt 03-02-26, 27, 28, 29, 30, 31, 30 34 and 35, the ponds appear to drain to the river via corridors of land to be permanently acquired. There is no compelling case for the permanent acquisition of these corridors as the acquisition of rights only for the purpose will suffice. 25. Layby locations: The Representors object to the proposed location of laybys being inappropriately located relative to nearby Estate residential property potentially causing nuisance and excessive injurious affection. The lay-bys could be located in more secluded and less obvious locations along the route. National Highways response to this representation to date has been that this would be a matter for detail designers. This is not acceptable: see Consultation Reponses 1 and 2. 26. Land acquisition: The Representors have maintained that the extent of the red line boundary and the areas over which National Highways seek to take permanently and by temporary occupation is excessive. Despite asking on numerous occasions, the DCO documentation still shows the majority of land being permanently acquired but the Representors now know that some areas are only required for temporary purposes. The Representors object to the extent of the proposed permanent acquisition and maintains that permanent land acquisition should be reduced to a minimum. Details need to be provided by National Highways. 27. Miscellaneous design and related matters: first, there is no agreement on the following features; boundary treatment, specification and location of proposed walls, fences, hedges, gates, cattle grids, surface treatment of access tracks and service supplies. These are important matters to mitigate damage to the Representors’ land, and management plans for years 1 to 15 must be agreed. 28. Second, no detail has been provided on drainage schemes and the impact of additional drainage on the Representors’ and neighbouring land. This is a crucial aspect as inadequate drainage arrangements can seriously affect the use and viability of agricultural land. 29. Third, the requested rationalisation of parking at St Ninian’s Church has not been addressed so that the Representors’ land will be unnecessarily adversely affected. 30. Fourth, the land required for contractors’ compounds is excessive and should be reduced. If required only temporarily, they should not be acquired permanently. 31. Compulsory acquisition restraints: In support of the points made above against the use of permanent acquisition, the Representors will rely on the guidance in Compulsory purchase process and the Crichel Down Rules (updated July 2019), particularly at paras 12 (there must be a compelling case in the public interest) and 13. In relation to the offers made above by the Representors to enter into rights for the benefit of National Highways, and to provide other land for mitigation plantings, and otherwise, there cannot be a compelling case in the public interest to acquire land in such circumstances. 32. In the cases mentioned above where rights can be granted in place of permanent acquisition, there are powers in the Planning Act 2008 for National Highways to seek rights, in place of permanent acquisitions, which power does not appear to have been considered. Annex 1 Category 1 land 03-02-01 03-02-06 03-02-07 03-02-12 03-02-15 03-02-17 03-02-18 03-02-23 03-02-24 03-02-25 03-02-27 03-02-29 03-02-33 03-02-34 03-03-01 03-03-02 03-03-06 03-03-07 03-03-08 03-03-32 03-03-33 03-03-34 03-03-37 03-03-38 03-03-39 03-03-40 03-03-41 03-03-42 03-04-01 03-04-03 03-04-04 03-04-05 03-04-06 03-04-08 03-04-10 03-04-11 03-04-12 03-04-13 03-04-14 03-04-16 03-04-17 03-04-19 03-04-20 03-04-21 03-04-24 03-04-26 Category 2 land - Sporting rights 03-02-08 03-02-09 03-02-11 03-02-14 03-02-20 03-02-21 03-02-22 03-02-32 03-03-04 03-03-05 03-03-09 03-03-10 03-03-12 03-03-13 03-03-14 03-03-15 03-03-17 03-03-19 03-03-20 03-03-21 03-03-31"
