Portsmouth City Council
"Relevant Representation of Portsmouth City Council in relation to the Application for a Development Consent Order made by Aquind Limited in respect of a proposed development - Aquind Interconnector Project - for an electric power transmission link between the South Coast of England and Normandy in France PINS reference EN020022 1. Introduction 1.1 The proposed development covers the administrative boundaries of four UK local planning authorities (also with a marine licence component, under jurisdiction of the Marine Management Authority). It affects land within the ownership of Portsmouth City Council ("PCC"). PCC is an 'affected person' within the meaning of the Planning Act 2008 and related legislation. 1.2 PCC objects to the DCO Application by Aquind Limited and wishes to take a full part in the examination, including any issue specific hearing and compulsory acquisition hearings relevant to its interests and the matters set out herein. 1.3 This relevant representation describes the principal concerns and objections of PCC in relation to the Application. PCC intends to submit detailed Written Representations in relation to the points raised in this relevant representation when the examination has begun and timetable set. 2. Procedural and Legal Issues 2.1 With regard to the Draft DCO Content, a failure effectively to engage with PCC and other stakeholders at the crucial ‘frontload’ stage in respect of key details of the scheme prior to the DCO application has in turn produced a draft DCO that overreaches and fails to justify the powers it seeks in principle and detail. 2.2 Further, the breadth of Order Land to be burdened is excessive and unjustified. This is exacerbated by the fact that significant areas of Order Land exist for public use and the Order is unable to offer any certainty as to the duration of interference during and beyond construction. Instead, the Order defensively seeks to reserve maximum flexibility for Aquind, causing maximum uncertainty and inevitable disruption to the public. Even where land is not to be compulsorily acquired, Aquind seeks to secure powers that hand it special rights going forward and exceptions to the usual process. For example Aquind would not through the Order need to seek approval for the felling etc. of trees, despite their immense value to the public on an island city. The powers sought to maintain the development after completion are wide ranging and onerous, for example, the draft powers seek to limit development potential of land and deny access during maintenance operations. 2.3 Additionally, the proposed amendment through the DCO of existing legislative frameworks that empower local authorities to govern, for example, interference with trees, highways and traffic is a recurring theme throughout the provisions of this draft Order. The Council takes the view that the justification offered by Aquind for the loss of these public rights and protections amounts to no more than convenience to Aquind and that this falls far short of justifying the transfer of such powers away from a democratically accountable local authority into the hands of a private body. 2.4 Even where Aquind proposes in the Order to request approvals from local authorities, it seeks deeming provisions that allow Aquind to proceed as it wishes where a local authority is unable to respond within a short, fixed number of days. 2.5 It is unacceptable for Aquind to have provided so little detail of its programme whilst seeking maximum flexibility for itself and actively seeking to curtail the power of local authorities to make reasonable decisions which affect the public in an appropriate and fair timescale. 2.6 The nature and breadth of the powers sought, the exceptional amendments sought to existing statutory regimes and the priority it seeks to award itself over democratically accountable local authorities are symptomatic of Aquind attempting to obtain special, unwarranted treatment through the DCO process, overreaching itself and behaving without due regard to proportionality. 2.7 In relation to Special Land, under Article 23 of the draft Order the developer seeks the compulsory acquisition of rights and the imposition of restrictive covenants for the allotments and public open space. The developer has wholly failed to satisfy the requirements of s132 of the Planning Act 2008. For example, no replacement land is being offered. 2.8 In respect of Human Rights, the human rights of the Council and members of the public associated with the legal ownership of and use of public land which would be lost as a consequence of confirmation of this DCO are also threatened. 2.9 Open space and garden allotment land are assets for the purposes of Article 1 to the First Protocol of the European Convention on Human Rights ("ECHR"), benefitting the Council and members of the public generally (in relation to open space) and specifically (in relation to allotment holders). The breadth of land-take and the onerous restrictive covenants sought over public open space land, combined with short notice periods to enter onto the public open space land and take control of it represent an indeterminate, uncertain, fluctuating control of Council land that at short notice will deny the Council and the public possession of its land. 2.10 The proposed acquisition of subsoil to the highway, where the provisions of the New Roads and Street Works Act 1991 are available to Aquind like any other undertaker is overreaching the necessary minimum measures, demonstrating inadequate consideration and proportionality. A statutory framework exists in the New Roads and Street Works Act 1991 and it is submitted that interference should only be in accordance with this accepted regime which provides checks and balances in the public interest. From the perspective of proportionality, Aquind has not made a clear case for the need to alter the regime as necessary; amendments to the legislation are solely posed in reality for Aquind's own convenience. It is submitted that no good reason has been given to depart from the New Roads and Street Works Act 1991 as the pre-eminent English statute that is accessible, precise and foreseeable. It is also an example of the abuse of the Planning Act 2008 by Aquind. 2.11 Further, the attempt by Aquind to acquire highway subsoil unnecessarily will impact upon the Article 8 ECHR right to respect for private and family life where private homes adjoin affected highway and own that subsoil under the ad medium filum presumption. It is not clear that such persons have been properly consulted on the loss of this part of their property or at all - any suggestion that such interests are ‘nominal’ and somehow do not warrant full consultation with affected properties and cogent justification like any other interest in land proposed for compulsory acquisition, is wrong in law. Deprivation of such property without compensation would also offend Art 1 of the First Protocol of the ECHR and is counter to the Planning Act 2008 in any event. 2.12 This application for development consent with regard to the compulsory acquisition powers it seeks is notable not only because the would-be ‘acquiring authority’ is a private company with an interconnector licence with minimal public standing, reputation or goodwill but also in this instance is a DCO which is targeting mostly public, not private land. The protection of public interest is in strict contrast to the applicants’ aims which is to serve its own profitable business venture. This is a further example of an abuse of the Planning Act 2008. 2.13 The Council as a long-standing, archetypal public authority represents a significant population and strongly rejects the applicant’s claim that the compulsory acquisition of rights sought is in the public interest and is compelling in any way. The applicant must as a matter of law demonstrate this and it cannot. The Council maintains that the interference with public land to the extent that has been articulated within the application to date is both weak as well as unorthodox. The interference is in short unjustified due to the prejudice identified by the Council and the absence of public benefit. 2.14 In respect of CJEU Litigation and Regulatory Uncertainty, the Court of Justice of the European Union ("CJEU") litigation relating to regulation of the continental half of the interconnector represents a serious impediment to the underlying scheme and its likely implementation within a reasonable timescale. It raises clear issues as to the scheme’s viability and the applicant’s expectation of implementation even within the 7 years sought. 2.15 As noted by PINS in its s51 advice Aquind has 2 cases pending at the CJEU: Aquind v ACER, Case T-735/18 and Aquind and Others v Commission, Case T-885/19. In Aquind v ACER, Case T-735/18, Aquind has pleaded with the CJEU to acknowledge "the legal impossibility for the applicant to operate the proposed interconnector in France without an exemption". This submission undermines the Aquind’s case which must be proven as compelling and in the public interest and underscores the unquantified risk that the vague financial statement alludes to; the financial viability of the project is in therefore in evident and serious doubt. 2.16 As for this application including the laying of Fibre Optic Data Cables together with the electricity cables, the facilitation of a commercial data cable under Electricity Act 1989 powers is incompatible with that legislation. In terms of the nature of the equipment and the commercial purpose it will be applied to; it is not a necessary part of this project if it is to be treated as a nationally significant infrastructure project. It finds no support in National Policy Statement EN-1. It is therefore ultra vires the Electricity Act 1989 and the Planning Act 2008. The applicant does not appear to hold a relevant telecommunications licence, is not a statutory undertaker in this regard and therefore is in no legal position to interfere with the public interest in this matter. The inclusion of data cable is quite clearly motivated in purely commercial terms and is not ‘associated development’ within the meaning of the Planning Act 2008. It is a further example of the abuse of the 2008 Act by Aquind. 3. Background and Context 3.1 A previous joint response from PCC, Havant BC, East Hants DC and Winchester CC considered the project should be determined by the relevant local authorities through the planning application process rather than a Development Consent Order. 3.2 Whilst PCC acknowledges the Secretary of State issued a direction under s35 of the Planning Act 2008 that the scheme be treated as an NSIP and the application has been accepted, PCC considers for a number of reasons the project in reality fails to meet the requirements of the Planning Act 2008 and therefore cannot lawfully be allowed (see above). 3.3 PCC has now seen the Environmental Statement (‘the ES’) which purports to set out the need for new electricity infrastructure project of this nature. PCC will draw attention to the original business case from when the National Grid Transmission Studies identified 10 substations that could accommodate the Interconnector and whether the decision to discount of 7 substations was re-examined and properly justified in light of the s.35 direction in July 2018. 3.4 In particular PCC will draw attention to Aquind’s decision at the earliest stage that the route should be in highway and also to its early rejection of Chickerell, near Weymouth, as a potential location. This latter decision was seemingly based solely upon the potential cost of rebuilding and reinforcing the electricity network. 3.5 This decision was not based upon any or any proper consideration or understanding of the environmental effects as a consequence of choosing other locations compared with this location. 3.6 PCC considers that the ES has still not provided a robust justification for discounting this location. 3.7 Available information on alternative options at the time the decisions were made about them and their impacts were inconsistent and insufficient. The ES and the application have not clarified these significant matters any further. Consideration of alternative landing points and cable routes for the Interconnector still appear incomplete. Hayling Island, for instance, is discounted for constraints associated with crossing Langstone Harbour and inability of Langstone bridge to carry the cables; the same constraints exist for Eastern Road bridge that also forms a crossing of the same environmentally sensitive harbour. Cabling along the former Hayling railway ‘Billy’ line could have significant benefits during construction compared with a highway route, for any future disruption of repair/maintenance of the Interconnector over its lifetime use and path improvement upon completion. 3.8 The promotion of the formal consultation in local media and via social media was insufficient. More resources/advertising should have been allocated to promoting the consultation events and promoting the consultation to the wider population as well as those directly impacted by the proposed cable route; for example, people who use the recreational areas that will be affected would likely be unaware of the consultation and would have missed this opportunity to voice their opinion. The engagement with other stakeholders, community or interest groups and others who may have an interest in the proposed development as well as hard to reach groups has not been sufficient for a project of this size and significance. 3.9 The A2030 (Eastern Road) conveys in excess of 40,000 vehicles per day and represents only 1 of 3 road links between Portsea Island and the mainland. Any reduction in capacity on one of these three key routes seriously reduces the resilience of the already strained highway network in Portsmouth. 3.10 A final route through Portsea Island and the mainland beyond has yet to be defined. This is unacceptable at this stage of the process. 3.11 It is still not clear why Portsmouth, the most densely populated city outside London and the UK's only island city, has been chosen as the landfall point for the on-shore cable. Whilst Aquind suggest the cable route encroaches into the highway as little as is practicable in certain locations this is unavoidable. Implications of cabling through the highway would in fact have far greater an impact than off-road routing and result in severe impacts upon traffic movement with significant disruption and inconvenience to city residents, businesses and visitors. Queueing, diverted or rat-running traffic will significantly impact air quality, detrimentally impairing the ability of PCC to achieve its statutory obligations. 3.12 In national policy, where a new energy NSIP may give rise to substantial impacts on the surrounding transport infrastructure, including during its construction phase, the applicant should mitigate these impacts of the development. Given the serious congestion on the local highway network the Construction Management proposed is an entirely inadequate response to mitigate the serious issues which will arise during construction. 3.13 PCC consider that a fund for community benefits to secure localised improvements for road users should be at least be required from Aquind to assist project mitigation. Biodiversity enhancement measures and a delivery programme for such improvements at Eastney after completion of works for the landfall underground connection bay should also form part of essential mitigation works. 3.14 The potential for cumulative effects and co-ordination of the Interconnector project with other development schemes have not been adequately assessed. A number of planned works and events conflict with the proposed cable route(s). The most significant of these will be the Coastal flood defences being renewed along both the eastern side of Portsea Island and the Seafront, Eastney to Old Portsmouth; these schemes will clash with the Interconnector construction programme. Whilst coastal defences work will not encroach into the A2030, there will be a number of associated HGV movements, as compound space is extremely restricted. Due to constraints imposed upon these works as a result of the protections placed upon Langstone Harbour, no delay can be accepted as the programme is carefully planned to avoid impacting on protected wildlife for overwintering periods. 3.15 The absence of a clear rationale and weighting of environmental, social and economic effects, taking into account technical feasibility, call into question the decisions made to discount the East Wittering cable route where crossing private land could have significant benefits during construction compared with the disbenefits of mainly highways routing. As noted this seems to have been set as a scheme parameter at a very early stage with no proper understanding or justification for the implications of that choice. 4. Traffic and transport 4.1 As noted PCC has considerable concerns about the impacts the scheme will have upon its highways and the adequacy of Aquind’s assessment and understanding of these likely impacts and which are of fundamental importance at this stage. 4.2 Given the density of population in Portsmouth and significantly congested road network, a development of this type in this location would be highly unsuitable. The A2030 - Eastern Road - is a prime example; large parts of it will be significantly affected over an extended period of time. The A2030 conveys in excess of 40k vehicles per day and forms one of only three road links between Portsea Island and the mainland. Any reduction in capacity on one of these three key routes will load further demand onto the other routes and as a consequence seriously reduce the resilience of an already strained highway network in Portsmouth. 4.3 Significant impacts would be experienced by all road users along the routing of the cable during construction. The roads proposed to form the cable route through Portsmouth are mostly classified roads and form a corridor linking the eastern areas of the city to the national strategic road network. It is expected that motorised users of the affected roads including Public Transport and Freight Vehicles; and non-motorised users, including pedestrians and cyclists, will be significantly affected. 4.4 A defined route through Portsmouth has in fact yet to be determined and the extent to which the cable route will pass through the Highway remains unclear. This is especially relevant in the Milton area of Portsmouth where two very different alignments are indicated. The implications of the Highway route would be far greater than the mostly off-road route however both potential alignments would be expected to cause significant disruption to residents, businesses and visitors. 4.5 The number and location of joint bays are still unknown. Whilst it is suggested that the intention is to place these "off-carriageway", like the cable route, this will ultimately be decided by the contractor or contractors whom have yet to be appointed. Unlike the cable route, no suggested locations have even been given for these joint bays and as such their impact is impossible to assess. Furthermore, the location of the cable route and joint bays could prejudice future road improvement works as the cost of diverting such services would likely be prohibitive to undertaking a future scheme; this is especially the case were a contractor to choose a Highway route at A2030 Eastern Road. 4.6 The traffic modelling has been carried out in line with the scoping note previously submitted to and agreed by the LHA. In line with this approach, the applicant has attempted to replicate a "worst case" scenario. However, the modelling does not cover a possible cable route along the A2030 between Tangier Road and Eastern Avenue nor does it account for cumulative residual impacts of traffic merging to pass-by works or diverting away from works. It is noted that SRTM does make an assumption as to the redirection of traffic however it does not accurately predict vehicle movements at a microscopic level and as a consequence, the overall impacts of the works are likely to be greater/wider than anticipated. 4.7 Abnormal loads are briefly referenced within the Framework Traffic Management Plan however incorrectly state that "a vehicle is considered abnormal when…. the gross weight is over 80 tonnes". The official definition of an abnormal load is those in excess of 40 tonnes (amongst other criteria). The applicant's consultants suggested during pre-submission consultations periods that 50 tonne cable drums would be brought to site each day during cable-pulling (possibly from the Ferry port where the cable drums could be stored). This would result in abnormal loads being transported through the centre of Portsmouth on a daily basis, which would inevitably disrupt traffic and bus services even if undertaken outside of peak hours. The frequency and/or proposed route of abnormal loads have simply not been addressed or their impact assessed. 4.8 A framework Construction Traffic Management Plan has been provided, however a tailored CTMP produced for each construction phase is proposed to be submitted only when a contractor(s) is appointed. This would be too late as the impact should be properly understood at this stage. 4.9 Presently the traffic management drawings are very high level and simply indicate where lane closures/road closures are required and what the likely diversionary routes will be. It is suggested that roads closed will prevent vehicular access for residents; this will be unacceptable, access to residents and business, and for emergency services should be available at all times. Details of the consultation strategy for each cable section should also be included, to be agreed with the LHA. 4.10 No over-arching programme has been provided at sectional (and sub-sectional) level, as a consequence it is not possible to ascertain whether the various assumptions/restrictions applied to each section (and sub-section) will translate to a viable programme. In a "worst case" scenario, some elements of the provided programme would appear undeliverable. At engagement meetings with Aquind's transport consultants, it was suggested that due to the scale of the project, more than one contractor is likely to be granted contracts for work packages associated with this project. It is of paramount importance that coordination is achieved between the two (or more) contractors, delays to one (or more) of the contractors has the potential for additional and unnecessary delay especially of working on the same section of road. The CTMP should detail how this relationship would work if multiple contracts are to be awarded and who will ultimately be responsible for coordinating highways works on behalf of the applicant. 4.11 The Overarching National Policy Statement for Energy (ONPSE EN-1), in para 5.13.6, states that a new energy NSIP may give rise to substantial impacts on the surrounding transport infrastructure, including during the construction phase of the development. The applicant is required to mitigate these impacts with an aim to secure more sustainable patterns of transport development when considering mitigation measures (para 5.13.9); funding to bring forward proposals for increased capacity in the P+R (Tipner) earlier may, for instance, present an effective management measure for road congestion and mitigate against contributing to poor air quality. 4.12 The proposed programme of works for the development will likely clash with significant schemes being delivered in Portsmouth and risks delaying these work packages; in the case of proposed works associated with the Transforming Cities Fund any delay could jeopardise the overall delivery given the time restrictions likely to be placed upon the funding. The City Council, in conjunction with Hampshire County Council and the Isle of Wight Council, has been shortlisted for a share of this Fund and will receive a decision from DfT in March 2020. The proposed cable route will intersect and travel along sections of the route proposed to form the new South East Hampshire Rapid Transit (SEHRT) network (both in Portsmouth and Hampshire authority areas). If successful in obtaining funding, the programme of works will run until March 2023 and is time limited. Implementation of what will be a congested delivery period could not be delayed nor could newly installed highway infrastructure be disturbed/undermined. 4.13 Through a PFI, Colas contractually undertake the network duty of coordination of third parties/statutory undertakers on the public highway acting as Local Highway Authority. All works on the public highway are required under the New Roads and Street Act 1991 and Traffic Management Act 2004 to have notices served correctly on the Street Works Register, appropriate traffic regulation orders etc. It is probable that Portsmouth will be operating a permit scheme by summer 2020, with a lane rental scheme to follow; any works on the highway associated with this development will be expected to adhere to the procedures set out by the Local Highway Authority. Portsmouth LHA objects to any deviation from or disapplication of the NRSWA 1991 (the '91 act). As statutory undertaker, the '91 act provides sufficient rights and protections to undertakers to install and maintain any apparatus or carry out any other activity related to the operation of that apparatus. 4.14 Portsmouth LHA objects to an undertaker having rights to make, alter, impose and enforce Traffic Regulation Orders (both permanent and temporary) as if it were the LHA. The LHA will be unable to properly manage and control its network should the Undertaker be given such powers. The LHA already has robust set processes for drafting, advertising and making TROs (both permanent and Temporary) that are used successfully for other undertakers carrying out works on the Highway. There appears to be no justification for obtaining this power other than previous precedent. 5. Air Quality implications 5.1 The City Council is currently in receipt of ministerial directives from DEFRA with regard to the Air Quality in Portsmouth. Whilst the areas subject to these directives are not located along the proposed cable routing, it is highly likely that the works will result in diverting trips to the other two main routes which each have a ministerial directive placed upon them (A3 & A2047). 5.2 Recent Air Quality modelling also suggests that the air quality in Portsmouth is worsening with the areas of exceedance likely to increase from 4 to approx. 12. Compliance in the areas subject to ministerial directives must be achieved by mid-late 2021, putting this date firmly within the construction period for this project. A sustained period of disruption as would be caused by the proposed works will contribute further to the serious issue of poor air quality in Portsmouth which the city is seeking to address and this in itself should be a key reason to consider alternative routes outside of the city. 6. Surface Water Resources and Flood Risk – Sequential Test 6.1 The ES is inaccurate. It describes the site of the proposed ORS buildings at Eastney as located within Flood Zone 2. The Environment Agency Flood Maps show the site within Flood Zone 3. 6.2 This means that a full sequential test should be applied and met which has simply not occurred. 6.3 The test would need to set out what other locations with a lower risk of flooding have been considered for the proposed siting of ORS buildings and why it cannot reasonably be located within an area with the lowest probability of flooding (Flood Zone 1, or if no site is available then Flood Zone 2). 6.4 To that end the application and the ES is wholly deficient in this regard. 7. Heritage and design 7.1 The introduction of two buildings, power supply equipment and fuel tanks is not justified at the proposed location (or at all). The original intention for the scheme at landfall was "…works to connect the onshore HVDC underground cables to the marine HVDC cables, comprising two underground chambers to house the cable joints, known as transmission joint bays." Aquind has never explained the true nature or relationship of the electricity undertaking with the commercial telecommunications undertaking. There is also an extraordinary level of uncertainty around how many FOCs are necessary which can be treated as genuinely incidental and ancillary to the requirements of an electricity interconnector (eg how many cables in total, how many are proposed to link to Normandy and how many to Lovedean). 7.2 The site at Eastney is in use as a public car park, which is finished in rolled scalpings. The parking facility nestles inconspicuously into the scrubland character of the adjacent open space to the north-east, which forms part of a Local Wildlife Site encircling Fort Cumberland. 7.3 The proposed ORS buildings at Eastney would significantly affect the setting of Fort Cumberland, a Scheduled Monument and in a group containing one Grade II* and three Grade II listed buildings. The ORS buildings are intended to be prominently sited in the car park, in close proximity to adjacent highway, within the 'fields of fire' from the ravelin towards Fort Cumberland Road. 7.4 Functional in form, the indicative parameter plan shows rectangular boxes with back-up power supply enclosures and fuel tanks, in a fenced compound; in the open coastal plain and within the setting of heritage assets these permanent ORS structures would be dispiriting and out of place, would not represent the principles of 'good design' and have a significant adverse landscape and significant impact upon visual amenity. The suggestion made by Aquind that the ORS buildings are analogous with more simple electricity generation plant is nonsensical. Other small-scale infrastructure buildings are indeed often assimilated into the built environment but this is because they demonstrate a more appropriate or sympathetic approach to architectural quality. 7.5 To meet the requirements of the NPPF (2019) the applicant should demonstrate harm to heritage significance has been minimised as far as is possible through careful design of the proposals. They should also sustain and enhance the significance of heritage assets, and make a positive contribution to the distinctiveness of the local area. 7.6 The ORS buildings should be more sympathetically assimilated amongst other built-form on the Eastney peninsula rather than prominently sited in the open coastal plain and setting of heritage assets, where it may be visually receding if the intended architectural quality is functional at best. 7.7 There are also archaeological concerns in this location which the applicant has not properly considered or addressed. Appropriate Requirements will be needed to ensure the archaeological value of the area is not prejudiced and this is a matter PPC will address further in its LIR. 8. Impact on trees 8.1 Trees are a valuable component of Portsmouth city's green infrastructure network. Trees contribute to urban character and soften the appearance of the built-up area, especially in a city covering just 40 sqkm that is the most densely populated outside of London, at over 5000 people per sqkm. PCC has around 30,000 trees under its care in parks, other open spaces and adjacent to roads. More than 3,000 trees of particular importance are subject of Tree Preservation Order (TPO); these will typically be on private land in the city. 8.2 PCC’s practice is not normally to TPO trees within its guardianship and consequently has important trees in the city that are not subject of a TPO. Trees contribute to the city's environment by providing oxygen, improving air quality, climate amelioration, conserving water, preserving soil and connectivity that provides movement corridors for wildlife. 8.3 The loss of any tree, including those of such amenity value to warrant protection by TPO, must be avoided. The DCO application requirement for felling of any trees, including those protected by TPO, is not considered acceptable. Despite a dense urban nature, there is a rich variety of biodiversity within Portsmouth with 30% of the city covered by statutory national and international nature conservation designations. Langstone Harbour includes SSSI, Ramsar, SPA and part of the Solent Maritime SAC and sections of Portsdown Hill as designated SSSI. There are also a number of areas used as feeding sites by waders and Brent Geese or categorised as local wildlife sites, all of which add to the markedly more verdant character of the east side of the city along route options between Eastney and Portsdown Hill. 8.4 As examples, after reviewing entries in Schedule 11 of the DCO, a suggestion of potential felling of trees marked G654 (in TPO 75) is completely untenable and unacceptable. There are a variety of species through the site but largely Common Beech trees along its frontage in London Road. These prominent trees on raised ground behind a listed wall contribute significantly to the local area and graveyard setting of the Grade II listed "Christ Church Portsdown". In addition, an avenue of trees in Furze Lane (TPO 215) form a valued local feature in Milton. Any felling requires overriding justification as a last resort rather than first preference option, at the whim of any future contractor(s) whose priorities for swiftness and value-for-money may be held to outweigh environmental interests. Replacement tree planting would takes decades to make any substantial contribution locally. Existing trees along the site boundary of the west side of the football pitch used by Baffins Milton Rovers FC, fronting onto the A2030 (Eastern Road) and south of the junction to Kendall's Wharf, provide a crucial screening function to an existing industrial seaborne aggregates operation. Felling of the existing trees, without replacement, would have a detrimental impact on the visual amenity of the site and its surroundings. It would also undermine the careful design and mitigation measures for North Portsea Island Phase 4 coastal defence works. 8.5 The impact upon eco-system services provided by the current trees potentially for removal has not been calculated; mitigation planting should be engineered to compensate for the total current eco-system services to be lost. Impacts of a loss of established or mature trees and their contribution to air quality, health and well-being that cannot be readily compensated for in the shorter–term by equivalent numbers of replacement (smaller) tree planting. The proposed one-for-one replacement using nursery stock will take years to adequately recreate the current levels. 9. Socio-Economics/Human Health 9.1 The Interconnector route would go through sports pitches at Bransbury, Langstone and Farlington resulting in the loss of sports provision for both football and cricket with no mitigation measures in place. The current provision of pitches at these key sports grounds are: (a) 10 senior + 1 junior football pitches and 2 cricket pitches at Farlington, (b) 3 senior football pitches at Bransbury and (c) 1 senior pitch and 1 cricket pitch plus one football pitch leased to Baffins Milton Rover FC (Wessex League Premier Division) at Langstone. All of these pitches are intensively used and there is no spare capacity to accommodate games at alternative venues. To give an indication of the scale of disruption to organised sport, there are an average of 238 football matches and 38 cricket fixtures in a season at Farlington, 64 football matches and 42 cricket fixtures in a season at *Langstone and 54 football matches at Bransbury. The intensity of use at Baffins Milton Rovers FC (on a separate leased football pitch at *Langstone) is less straightforward to quantify but includes 18 home Wessex League fixtures as well as home games for 'Portsmouth Ladies' team as well as training and practice games for other squad players that form part of the wider team setups. 9.2 At Farlington Playing Fields, the potential but unspecified requirement for existing parking facilities that serve the football and cricket pitches is problematical. Parking provision at Farlington is oversubscribed on match days. Alternative parking facilities proximate to the pitches would be required to fulfil the sporting fixtures. Temporary loss of parking provision serving the open spaces during construction will also effect wider public access, with localised change to patterns of dog walker activity likely to impact recreational disturbance on the SPA for waders and Brent geese. It is unclear whether the timing/duration of cabling activity on the playing fields recognises non-availability and prior reinstatement for bird foraging during overwintering periods (1st October to 31st March). 9.3 The ES describes the magnitude of impact to Farlington Playing Fields/Bransbury Park as moderate adverse and to Langstone as low. Such assertions lack credibility. Without mitigation, by reprovision elsewhere within the local area, the impact on players/followers if unable to complete football and cricket fixtures for up to three sporting seasons has been fundamentally underestimated and for many would be devastating. 9.4 The DCO application fails to recognise the length of time required for reinstatement of playing field surfaces to a condition where sport can once again be played; depending on timing of works reseeding of grass (spring or autumn) will take 6-12 months, including reinstatement of existing land drainage schemes. 9.5 The timing and duration of temporary loss of open space and loss of pitches is unclear. No mitigation strategy, by reprovision of open space and sports pitches during the period of works, has been devised with a resulting detrimental effect on leisure/recreational provision, play facilities serving local communities with consequential effects on the health and well-being of residents. 9.6 Life expectancy for both males and females residing in Portsmouth is lower than the regional and national average. In general, the health of people in the city is worse than the rest of England, and there are significant health inequalities. Accessible sports facilities and opportunities to be physically active have a vital role to play in addressing local health inequalities. 9.7 The presentation by Aquind to the Milton Allotment holders assured the tenants of allotments that the cabling route tunneled under the site by Horizontal Directional Drilling (HDD). The DCO application now reneges on this position and introduces potential significant interruption to tenancies of allotment plot holders. 9.8 There will be significant impact on and loss of open space for the holding of events or use to support events elsewhere in the city. Off-site camping for 'Victorious Festival', the major yearly August Bank Holiday weekend event on Southsea Common, is accommodated across the whole of the Farlington Playing Fields. Mitigation measures to ensure the timing/duration of appropriate reinstatement of ground conditions suitable for camping, with associated car parking, are essential for the sports fields and car park for Victorious to operate. 9.9 The works permitted under the order are too broad for the public open space and allotments and would impact on their long term use (eg the order permits bunds, embankments, footpaths, apparatus etc) and no replacement land is being offered under Planning Act 2008. 9.10 The maintenance rights sought are too onerous for the public open space and allotments and would impact on their long term use (eg the order permits broad maintenance of the works at short notice). 9.11 During the construction period there will be significant adverse effects due to temporary diversions of 7 PROW and four long distance footpaths and an off road cycle route. 9.12 The proposed programme of cable works will potentially give rise to a loss of business activity within the city due to increased congestion. 10. Funding 10.1 PCC considers that funding should be a principal issue for detailed testing and interrogation at examination. Aquind Limited's Funding Statement is manifestly insufficient in detail as to how the proposed project costs have been calculated, and how the project is to be funded. 10.2 There is paucity of information regarding the ability of Aquind Limited to fund either the construction costs, or the costs of land acquisition of the proposed development. As acknowledged in the Funding Statement, "the Project does not have the benefit of full funding at this stage", and in fact given that "funding for the project is expected to be subject to grant of the development consent order" this would indicate that the project is almost entirely unfunded and at risk. 10.3 Aquind Limited states it intends to raise equity capital and project debt financing to meet the estimated costs of the proposed development, these are stated to be secured against the operational profits of the project. However the Funding Statement is entirely silent on what levels of revenue will be generated by the project, the timing of such revenue, and whether these would be sufficient to act as the required security. This is a crucial component of the overall viability of the project as well as its case for compulsory acquisition. 10.4 Equity capital and project debt financing is proposed to be funded from a number of sources (including infrastructure funds and institutional investors). Aquind state that "Market engagement has been undertaken", this is not evidenced, and additionally there is only anecdotal evidence that there "is a strong interest in the provision of finance for the Project." 10.5 Usually, SPV companies promoting Development Consent Orders are backed either by Government departments or by UK registered parent companies (such as regulated utilities) or by publically listed companies with audited accounts, extensive assets and track records for delivery of similar projects and detailed public information regarding shareholdings and governance. Aquind Limited is a recently incorporated SPV company with little trading history. Its most recent set of accounts filed at Companies House (for the year ended 30 June 2018) show that the company has a Shareholders deficit of £1.85m. Additionally the accounts show an amount of £12.6m being owed to group undertakings, this is an overseas entity which would require an additional level of due diligence to be carried out on it. 10.6 The current capital cost estimate for the proposed development (£622m) shown within Aquind Limited's Funding Statement is based on an equal split of the estimated overall cost of the project between the elements in France and in the UK. This is an incredibly simplistic assumption and the Funding Statement does not in any way demonstrate how realistic this is. Are the construction elements required in France and the UK similar in nature? In complexity? The Funding Statement is entirely silent on this. 10.7 The broad breakdown of the proposed development cost estimate is very high-level. With regards to a project of this size PCC would expect to see a much more detailed breakdown, especially of the £599m construction cost figure (representing 96% of total costs). Additionally development costs are stated at £19m which is confusing given the statement that "As at 30 June 2019, it is estimated that the total assets of the Applicant were approximately £24.5m, mainly consisting of the capitalised development costs of approximately £23m." 10.8 It is unclear whether there are any allowances for risk or contingency within the proposed development cost estimate, which would be a pre-requisite of any financial modelling at this stage of a project of this size and infancy. 10.9 Aquind Limited's Funding Statement asserts that "the costs of interest and other debt servicing will be met from revenues generated by the Project". To reiterate the comment made above, the Funding Statement is silent on what levels of revenue will be generated by the project and whether these would be sufficient to meet the costs of interest/debt servicing (as well as providing security for the project finance funding). 10.10 The land acquisition costs stated within the Funding Statement exclude the valuation of the Crown Estate's seabed interest. There is every chance that this is a material cost which would further add to the sizeable unfunded capital cost estimate of the project and would require additional funding to be identified and secured. 10.11 Aquind Limited also do not anticipate any claims for blight will arise, this is a rather disingenuous position given a project of this scale and the proposed route of the HVDC onshore cables. If they do arise they would add to the unfunded proposed development cost estimate. 10.12 Beyond that, there is only anecdotal evidence that there is any prospect of credible investors agreeing to invest the hundreds of millions of pounds necessary to deliver the proposed development on the basis of the limited business case set out in Aquind Limited's Application. It is PCC's case that investors require a significant amount of certainty that the project is viable, and that they would see a return on their investment before they would even consider to invest circa £600m for the construction of the proposed development. 10.13 There is no evidence from the Application materials that Aquind Limited has actually assessed the commercial viability of the proposed development. There is no evidenced business case for the proposed development. Aquind Limited should be called upon by the Examining Authority on behalf of the Secretary of State to present a full viability appraisal as part of the examination of the proposed development. This should include as a minimum: • details of the land valuations used in the model; • details of the assumptions and projections for build costs for each element of the proposals; • details of any allowances for risk and uncertain costs; • details of provisional values of operational costs, replacement costs and decommissioning costs; • revenue assumptions and short, medium and long-range revenue forecasts for each revenue element; and • details of project financing costs and structures. 10.14 Once the information detailed above has been provided and due diligence is carried out it will then and only then be possible to understand if Aquind Limited's development proposals are at all viable and realistic. 10.15 The current Funding Statement and other application materials contain no information on how the estimated land compensation sum of £4m has been calculated. PCC does not consider that this figure represents a full and proper valuation of the costs of land acquisition for the proposed development. 10.16 Similarly, the Funding Statement and other application materials merely assert that the total construction cost of the proposed development will be £599million without any proper breakdown or explanation as to how this figure has been arrived at, or how this expenditure is to be phased through the life of the proposed development. 10.17 There is no consideration given in the Funding Statement or elsewhere in the application to the lifetime costs of the proposed development, or how ongoing maintenance costs are to be met from expected revenues. 10.18 There is no information on the expected operational revenues, which would be necessary in order to inform a view on the likely economic viability of the proposals. This is a key requirement due to the reliance on the revenues to secure project finance funding. 10.19 Accordingly, PCC requests that a full viability model is provided as a highly important part of the examination into this purported DCO. 11. Ground conditions/contamination 11.1 There are parcels of land with significant pollution along the route options. A detailed assessment of each of these parcels of land would have been expected as part of the DCO application; the desk study should have included a sampling rationale and progressed onto the testing of identified sites. Some of these areas have been previously remediated for their current use (Milton Common being the most obvious example). A desk study review of available records for several areas encountered by the route has been started but not completed. For each location of previously used land a conceptual model, as described in the relevant British Standard BS10175, should be created to risk assess the impact that the cable construction will have, to ensure exposure will not occur during or after works, and where remediation has been undertaken, show that remediation will not be compromised by the groundworks. 11.2 The limited data in the ES is not a pollution focused survey. It is baseline testing and the pollution focused survey is intended to be completed at a later date. A desk study of the route was to be created and any further sampling, as suggested from that preliminary Conceptual Model, is yet to be completed. This proposed testing should be summarised in the form of a sampling rationale. There are no proposals in the ES for consideration. Testing of these potentially polluted locations would normally already have been undertaken and no adequate justification for their absence is provided. 11.3 Any polluted locations that can be identified from historic records or local knowledge should be considered in advance, and the approach to these areas to ensure no new exposures, not allowing the movement of pollution, both during and after works should be documented in advance of works. There should also be a Watching Brief for the entire route for any unexpected areas of pollution that may be encountered. The details in the ES are therefore incomplete. 11.4 Whilst a Watching Brief and Method Statement should be in place to resolve unforeseen pollution that maybe encountered, there should also be site investigation and Remediation Method Statement documents to guide site working, remediation and waste disposal for any areas where pollution is reasonably foreseeable. In particular the remediation of any disused landfill sites that the cable route will encounter, such as Milton Common, must not be compromised. The quality of restoration soils left at the surface should be proven clean and documented as such, so that no concerns remain. The migration of bulk gases (both carbon dioxide and methane) must be prevented both during and after works are complete. Dust and exposure to landfill wastes by public and workers should be prevented. This requires a desk study to consider available records, site investigation to resolve any unknowns, and a remedial method statement to show what will be done to restore each of these areas. After works and remediation/restoration, a verification report will be needed to show each of the land areas is now suitable for use. The cable run is a linear feature and so is likely to encounter several areas of previously used land with pollution present. 11.5 Whilst a general Method Statement should be in place to resolve unforeseen pollution encountered, there should be assessment and remediation documents in place for foreseeable areas to guide site working, remediation and waste disposal. 11.6 The ES should have included a plan showing areas that have historical uses and indicating which areas that works will be undertaken by Method Statement with Watching Brief alone, and areas with Remedial Schemes. Any detailed mitigation must include the following requirements: (a) The Phase 1 desk study. This is in progress but not yet complete for all parcels of land with potential pollution present. Each area would need its own conceptual model (diagram, plan, and network diagram) showing the potential contaminant linkages, including proposals for the testing if required (the sampling rationale for all proposed sample locations and depths should be linked to the conceptual model). Although commenced, this work is incomplete. (b) The Phase 2 site investigation report documenting the ground conditions of the various parcels of land. This should include testing as identified by the conceptual model, with the sampling rationale being linked to that model. The report should refine the conceptual model of the site and demonstrate how the route can be safely constructed over each parcel of land using, at its simplest level, the general Method Statement and Watching Brief, or indicate that a Remediation Method Statement will be required to work in this area and (c) For each of those identified areas, a Remediation Method Statement report detailing the remedial scheme and measures to be undertaken to avoid risk from contaminants and/or gases when the development should be provided. 12. Onshore Ecology 12.1 Until there is greater clarity on the final cable route there is potential for significant effects on bird disturbance to the Solent SPAs (notably the adjacent Langstone and Chichester Harbour SPA, designated predominantly to protect over-wintering birds) and Functionally Linked Land lying outside the physical boundaries of the SPA/Ramsar sites used by birds associated with the designated sites or measures for mitigation required to reduce impacts to acceptable levels to ensure the Conservation of Habitats and Species Regulations 2017 (the Habitat Regulations) and integrity of any relevant European sites are met. 12.2 Eastern Solent Coastal Partnership (who provide a comprehensive coastal management service and is directly employed by PCC and three other partner authorities) raised concerns surrounding the adequacy of the impact mitigation and the impact being secured as part of coastal defence projects being undertaken to Portsea Island. Cumulative impacts are based on inaccurate information and requires updating to reflect overlap in construction and therefore in-combination impacts. The DCO needs to ensure any flood defences are retained or replaced, to ensure the same level of flood protection is maintained and Aquind reduce any cumulative impacts and disruption, to ensure ecological mitigation of sea defence works remains effective. 13. Impact on Coastal Flood Defences 13.1 The project proposes HDD from Farlington to the north-west of Kendall's Wharf to avoid impacts on Langstone Harbour and Phase 1 of the North Portsea Island (NPI) coastal defence scheme. The project identifies a construction compound use of the yard to the south-west of Kendall's Wharf. Depending on timing there is the potential for conflict with delivery of NPI Phase 4 coastal defence works that already has its construction compound there. 13.2 To the south of Kendall's Wharf there are options for cabling (a) to the west of the Baffins Milton Rovers FC playing pitch, through the cricket pitch and the second southern football pitch before crossing a car park and into Eastern Road or (b) along the eastern side of the Baffins Milton Rovers FC pitch. If the latter option is used it would likely affect the landscaping/screening that will be installed as part of the NPI Phase 4 works to mitigate disturbance to birds using the Core SWBGS site (P11) from re-routing of the footpath landward of the Andrew Simpson Watersports Centre/Tudor Sailing Club. 13.3 Between Airport Service Road and the northern end of Milton Common the cabling options are in the carriageway and/or verge of the highway. The cumulative construction traffic effects and potential impacts on access to the NPI construction compounds/haul roads requires assessment. However, the Access and Rights of Way Plans includes land to the east of the highway that raises potential concern that (a) south of the Langstone Harbour Viewing Car Park, this land will be realigned in 2022 as part of the NPI Phase 4 coastal defence works and (b) on the northern end of Milton Common, this area will be used as a construction compound during the NPI Phase 4 works and based on the current programme will be unavailable from April 2021 until September 2022. 13.4 Across Milton Common, it is anticipated that the cable will progress through the corridor adjacent to the path which runs from north-to-south through the Common, parts of which form the coastal flood defences. At the northern part of the coastal defences, a short HDD will be required below the bund of the coastal defences. The cable would then continue south, adjacent to the path to the south-east corner of Milton Common. This suggests that only the crossing of the secondary defence will be HDD and the remainder of the route across the common will be open trenched. 13.5 The HRA (ref 6.8.1) and the Winter working restrictions (ref 18.104.22.168) documents indicate that no works will be undertaken in SWBGS core, primary or secondary sites during October to March. There should, therefore, be no impact on the bird usage of the mitigation areas ESCP propose on Milton Common to offset the impact of the NPI Phase 4b Compound 6 on the SWBGS core site P23R during the winter (NB Aquind ES refers to P23R and P23A – in the latest  version of the SWBGS these polygons have been merged and are both now included within P23R). However, these mitigation areas are very close and potentially overlapping the proposed route north-south across the common. The project must ensure that it would not inadvertently impact on the mitigation areas during construction works in the summer months and their need to be returned to grass by the end of September. 14. Cumulative effects 14.1 New development at Fraser Range Eastney is identified. A planning application for this site, ref 19/00420/FUL, has been formally submitted for new housing (for 134 dwellings) with sea defence works, which is pending consideration. 14.2 Reference is also made to Coastal Defence Schemes for Portsea Island. A planning application for Phase 4A of the North Portsea Island defence scheme, between Kendall's Wharf and the A2030 (Eastern Road), was granted planning permission in July 2019. Construction of the Phase 4A works is underway. A planning application submitted for Phase 4B, between Kendall's Wharf and Milton Common, has been resolved to be in February 2020 and the intended construction programme will form a continuation of the Phase 4A works. Furthermore, in December 2019 planning permission was granted for the £115 million Southsea Sea Defence project. It relates to a 55.75ha site along a 4.5km stretch of seafront, from Old Portsmouth to Eastney, designed to protect 8,077 homes and 704 businesses from the risk of tidal flooding for the next century. Construction is programmed to start in early 2020 and the project completed in 2026. 14.3 The HRA in-combination assessment for onshore defers to the onshore ecology cumulative effects assessment. The NPI Phase 4 sea defence project (see above) has been screened out of cumulative effects with the Aquind project at Stage 2 on the basis that it "…will not interact with the Proposed Development to lead to cumulative effects." This cannot be accepted as correct. Based on the potential interactions outlined under 'Onshore Ecology' and 'Impact on Coastal Flood defences' and, in particular, the potential of the cable route and construction works to impact mitigation measures incorporated into the NPI Phase 4 works to avoid an adverse effect on the SWBGS sites there clearly would be such effects. The final cable route and its timing/access would require close working with the ESCP to ensure no adverse effect on brent geese and waders. 15. Compulsory land acquisition 15.1 It is clear from the application and as set out above that Aquind does not have in place the required agreements with the French authorities. In addition, in light of the UK’s withdrawal from the EU Aquind failed to provide any or any sufficient evidence as to how and when these will be obtained (doc 5.2). 15.2 Prior to the application being accepted by the Examining Authority the applicant (a) did not engage with PCC about the compulsory acquisition sought of PCC land and compensation (b) did not provide heads of terms for PCC land (c) did not provide the proposed Order land plans or details of the parcels of land 15.3 The applicant has not demonstrated that all of PCC's land is required for the development or is required to facilitate or is incidental to the proposed development (s122 PA 2008). 15.4 The final cable route through the City of Portsmouth is not clear from the application. Consequently, the breath of the order land sought is evidently far too wide for what Aquind purportedly need it for in places and is more than is reasonably required for the development. 15.5 The applicant is seeking permission for commercial telecommunications infrastructure under the Electricity Act 1989 powers. As noted earlier this is incompatible with that legislation in terms of the nature of the equipment and the commercial purposes for which it will be applied and is not a necessary part of the interconnector development and is ultra vires. Minimal Fibre Optic Cables (FOCs) are required for monitoring this interconnector scheme alone there is no justification for building an ORS to address the FOCs which are to be used for commercial purposes unrelated to the HVDC cables. No other interconnector schemes have an ORS. 15.6 In order for the commercial FOCs and the ORS and indeed any development related to the project to be treated as ‘associated development” under the Planning Act 2008 it needs meet the following in accordance with the PINS Guidance : (i) a direct relationship between associated development and the principal development. Associated development should therefore either support the construction or operation of the principal development, or help address its impacts. (ii) should not be an aim in itself but should be subordinate to the principal development. (iii) should not be provided in order to cross-subsidise the cost of the principal development or only be necessary as a source of additional revenue for the applicant, (iv) should be proportionate to the nature and scale of the principal development. (v) should be typical of development brought forward alongside the relevant type of principal development or of a kind that is usually necessary to support a particular type of project, for example (where consistent with the core principles above), a grid connection for a commercial power station. 15.7 It is clear that the laying of the large number of FOCs for commercial telecommunications and the ORS which is only required for the FOCs in that capacity fall short of all the criteria above. 15.8 The compulsory acquisition of the land for these works is therefore not reasonably necessary for the purpose of the interconnector development and is not proportionate. Such powers therefore cannot lawfully be provided under the DCO. 15.9 The proposed interference with the Council's rights in land and the public's rights to use that land (highway, public open space and allotments) for the commercial telecommunications is not for a legitimate purpose and is not necessary or proportionate. 15.10 There is no compelling case in the public interest to justify the compulsory acquisition of the PCC's interests in land. The public benefit does not outweigh the loss that the Council, its residents and users of the land within the Order Limits (including the highway, public open space and allotments). 15.11 The applicant has the benefit of an Electricity Interconnector Licence and is therefore a statutory undertaker for the purposed of the New Road and Street Works Act 1991 (NRSW). The acquisition of highway subsoil is not necessary where NRSWA can be applied. 15.12 The applicant is seeking permanent rights, restrictive covenants, access rights as well as temporary use of all of the order land, during construction and for maintenance of the development and to seeking extinguish of existing rights. The extent of the rights sought by the applicant are far too wide and would conflict with the use of the land, in particular the highway land, public open space and allotments which are held for public use. This will significantly and adversely affect the existing and future use, character and nature of the Council's land. 15.13 The applicant is seeking compulsory acquisition of rights of special category land. This land comprises of allotments, public open spaces including Portsmouth Primary Public Sports Fields. 15.14 Under Article 23 of DCO the developer requires the compulsory acquisition of rights and the imposition of restrictive covenants for the allotments and public open space. The developer has not satisfied the requirements of s132 of the Planning Act 2008 for example (as recognised by PINS in its s51 advice to Aquind) no replacement land is being offered. 15.15 The applicant does not take into account the nature and character of the land over which such rights are being sought and the persons currently benefitting"