Wedlake Bell LLP on behalf of The Bristol Port Company
"FIRST CORPORATE SHIPPING LIMITED PORTISHEAD BRANCH LINE - METROWEST PHASE 1 RELEVANT REPRESENTATIONS 1. INTRODUCTION 1.1 The following representations are submitted by First Corporate Shipping Limited, which trades as The Bristol Port Company ("BPC"), in relation to the application by North Somerset Council ("NSC"). 1.2 BPC's overriding needs are: 1.2.1 to ensure the proposed temporary and permanent works have no negative impact upon its statutory undertaking, operations and the activities of its tenants and customers; and 1.2.2 to achieve an outcome which minimises the impact on its operations of land being lost to or sterilised by NSC's proposed development during the pre-construction, construction and operational phases. 1.3 Pursuant to the Bristol Dock Acts and Orders 1848–2010, BPC is the statutory undertaker (harbour and competent harbour authority) for Bristol and the owner and operator of the commercial port of Bristol ("Bristol Port"). As explored below, BPC questions the need for and extent of some of the works proposed and also the requirement for its land to be taken in connection with them. It disputes that a compelling case has, or can, be made that it is in the public interest for the compulsory acquisition powers proposed affecting its land to be granted. It further does not accept that the compulsory acquisition proposed can be achieved without serious detriment to its undertaking. It has various other concerns as amplified below. 1.4 The text below summarises the primary submissions BPC proposes making; BPC necessarily reserves its position to add to or amend these submissions as necessary or appropriate and insofar as further information becomes available and to make further written and oral representations. 1.5 BPC has identified a number of matters which require consideration by the Examining Authority at issue specific hearings, including the key issues of the need to preserve reliable and timely access for rail freight traffic to and from Bristol Port throughout the construction of the new railway and its future use, and how BPC's continued access between parts of its operational land across the railway close to Court House Farm is to be secured. In addition, BPC registers its objection to the proposed rights of compulsory acquisition over land in BPC's ownership and anticipates pursuing this objection at a compulsory acquisition hearing. It further reserves its position to appear at any open-floor hearing insofar as appropriate or necessary. 1.6 BPC has responded to NSC’s earlier consultations in relation to this project: 1.6.1 stage 1 consultation (BPC letter of 31 July 2015); 1.6.2 first Section 42 consultation (BPC letter of 4 December 2017); and 1.6.3 further Section 42 consultation (BPC letter of 16 August 2019). 2. BPC'S POSITION 2.1 While BPC recognises the ambition to provide an alternative transport mode for commuters from Portishead travelling to the Greater Bristol Region, it is concerned about the impacts that the detail of the scheme now being considered will have on its undertaking. It is notable that the current scheme looks to provide only an hourly service for passengers but will have a significant and disproportionate impact upon BPC’s undertaking during its construction and future operation and will involve the permanent loss of land in BPC’s ownership held for the purpose of its statutory undertaking. 2.2 BPC therefore disagrees with elements of NSC's proposals in their current form because they will adversely affect the efficient and economic operation of Bristol Port now and in the future. 2.3 In formulating its proposals in their current form, NSC has failed to have sufficient regard to and/or fully to assess various matters, including: 2.3.1 the damaging effects of those proposals on the highly dynamic nature of BPC's business and statutory undertaking that must be able to deliver operational certainty to its customers and provide at all times a rapid, efficient link to inland transport, via the strategic road network (M5) and the national rail network; 2.3.2 the effect of those proposals on the continued availability of rail paths for freight trains to and from Royal Portbury Dock (during and after construction of the works) and the interaction between those trains and passenger services; 2.3.3 the adverse impact of those proposals on the use by BPC of the private crossing between its transit cargo storage areas on either side of the proposed railway; 2.3.4 alternatives to those proposals, including in relation to the proposed land take for the temporary and permanent works, in order to minimise the strategic and operational impacts on Bristol Port; 2.3.5 the effect of the construction activity on the day to day operation of Bristol Port and the other port-dependent businesses on the Royal Portbury Dock estate (“RPD Estate”); 2.3.6 the operational consequences of NCS's proposed restrictions during construction and NSC/Network Rail’s future access rights; and 2.3.7 the effect on the future of Bristol Port of land which has been safeguarded for port development no longer being available for that purpose by virtue of its being taken compulsorily for purposes ancillary to the DCO scheme. 3. DEVELOPMENT CONSENT ORDER 3.1 The draft development consent order ("DCO") currently appears to contain inadequate controls over the nature and proposed method of execution of the works. 3.2 The DCO amongst other things does not: 3.2.1 provide adequate and acceptable protective provisions for BPC as operator of, and statutory undertaker for, Bristol Port; 3.2.2 justify the requirement for powers of compulsory acquisition which would affect BPC; and 3.2.3 state with sufficient clarity how NSC and third parties, including Network Rail, intend to exercise compulsory acquisition powers. 3.3 Further concerns in relation to the draft DCO, insofar as necessary or appropriate, will be provided at a later date following detailed consideration of its provisions and the related documentation, including the Book of Reference. These will include concerns about what appear from an initial review to be provisions which could affect private rights granted by BPC to National Grid Electricity Transmission PLC and Western Power Distribution (South West) PLC which are necessary for the delivery of the Hinkley Point C Connection Project. 3.4 BPC notes the inclusion of draft protective provisions in favour of BPC and its statutory undertaking in the draft DCO. However, these are currently inadequate in their scope and content. Without detracting from the other issues of principle raised in these representations, BPC will expect provisions to be added to cover a range of concerns, including appropriate controls over works or other activities on or affecting roads on and giving access to Bristol Port, over any proposed temporary, drainage or other ancillary works on any of BPC's land, over the temporary use of land and works programming, and restrictions on access during construction. Controls of this sort, and to delimit the location of all works and activities to the extent they affect BPC's land and/or operations, are necessary to provide the certainty required to ensure that the safe and efficient operation of Bristol Port can continue without interruption during construction of the DCO scheme. Further detail will be provided following detailed consideration of the DCO's provisions. 4. RAIL ACCESS 4.1 BPC has previously expressed concerns about the extent of the rights sought over its freight rail line and the works proposed there, and has sought assurances that both during the construction of the scheme and once the new passenger service is in operation, access for freight traffic between Bristol Port and the national rail network will not be restricted. 4.2 Documentation relating to the proposals states that access for freight traffic to and from Bristol Port will be adversely affected during construction of the various works, but BPC is unsure where details of the interruptions and the necessary assessment of their impact on port operations may be found. BPC will need to be provided with sufficient information about these matters and with adequate protections so as to ensure its service delivery to customers and its other port operations will not be impeded. 4.3 In relation to future operation of the railway, statements are made in the application documentation that the scheme has been designed to accommodate the existing freight rail paths, but, again, BPC has not been able to find the detailed evidence or analysis to support the statements. 4.4 BPC is also concerned that merely accommodating whatever is meant by 'existing' freight paths would be inadequate to avoid serious detriment to BPC's statutory undertaking: reliable and timely access for rail freight traffic to and from Bristol Port is critical, not only for efficient port operations within the RPD Estate but also for securing the necessary modal shift from HGV traffic to rail. 4.5 BPC will therefore expect suitable assurances to protect current and future freight traffic to be encapsulated in enforceable provisions of the DCO. 4.6 NSC's proposals include the creation of a permanent road-rail access point at the location where the perimeter track referred to in paragraph 7.2 below meets BPC's privately-owned railway within the RPD Estate. From the documentation provided, it appears that the proposals envisage NSC/Network Rail acquiring permanent rights over the perimeter track to bring road and rail vehicles to the access point, and further permanent rights for Network Rail's engineering and other works trains to pass over BPC's private railway for the benefit of the national rail network generally. Unspecified works are proposed to BPC's level crossing to create the access point and further (unspecified) works are suggested for the perimeter track. NSC also requires an area of BPC's land under the M5 bridge on a permanent basis in support of the use of the access point. These proposals cause BPC concern because of the interference they will cause to BPC's use of the track and its private rail link, and the damage to its infrastructure which will result, and their acceptability will need to be considered further. 5. LOSS OF RAIL CROSSING AND SAFEGUARDED LAND 5.1 BPC notes the intention to close its private crossing that connects operational land to the north and south of the disused railway in the vicinity of Court House Farm. The NSC proposals currently make no provision for any alternative access between the sites. In the absence of alternative provision, closure of the crossing will clearly constitute an unacceptable interference with BPC’s operations and statutory undertaking. 5.2 BPC also notes the proposed compulsory acquisition of an area of land adjacent to its boundary (to the south of the railway and to the east of Marsh Lane) for Flood Mitigation and Pond with associated ecological works (Work Nos. 16B and 16D). NSC also proposes to take a permanent right of access from Marsh Lane over BPC’s adjacent land. The land that NSC seeks is specifically safeguarded for port development within NSC’s adopted planning policy in recognition of the need of Bristol Port for additional land for development at Royal Portbury Dock. Despite that designation, it appears no assessment has been made of the effect on Bristol Port of this land no longer being available for development, including by virtue of the access rights being sought over large parts of BPC's adjacent land. In the absence of any provision for alternative land being made available to meet the needs identified by the planning policy, BPC objects to this safeguarded land being taken and used for purposes ancillary to the DCO scheme. 6. COMPULSORY ACQUISITION 6.1 BPC objects to the nature and extent of the proposed compulsory acquisition powers to be conferred by the DCO and requests a compulsory purchase hearing, pursuant to section 92 of the Planning Act 2008. 6.2 So far as they affect BPC's land, the compulsory acquisition powers sought include those of outright purchase (of land, subsoil and/or airspace at NSC's option), of the imposition of rights and of restrictive covenants, of the extinguishment and overriding of rights and other interests and of possession during construction. All land affected by these compulsory acquisition powers forms part of BPC's operational land held by it for the purpose of its statutory undertaking. Therefore the Examining Authority will need to be satisfied that all the powers sought may be exercised without any serious detriment to BPC's statutory undertaking. On the basis of the DCO as currently drafted, BPC considers this condition cannot be met. 6.3 In particular, the extent of compulsory land acquisition powers sought over land which is part of or adjacent to public vehicular highways appears excessive, particularly at Marsh Lane and Royal Portbury Dock Road. Even if permanent works are needed as part of the scheme to these areas of highway and adjacent land, it has not been demonstrated satisfactorily why that necessitates BPC or anyone else being compulsorily deprived of its interests in the land or NSC acquiring any interest in any land beyond that normally vested in a local highway authority by dedication and adoption. 7. OTHER CONSTRUCTION ISSUES 7.1 No full and final details have been made available concerning NSC’s proposed arrangements for HGV and other construction traffic movements in the vicinity of the RPD Estate. BPC will need to be satisfied that these and any associated works or measures will not have any detrimental effect on traffic and cargo resorting to and from, and moving around, the RPD Estate and will require appropriate protective provisions in relation to these issues and in relation to the regulation of all construction activities within the RPD Estate. 7.2 BPC notes the proposed use during construction of the track around the perimeter of part of the RPD Estate between Marsh Lane and the M5 overbridge for HGV traffic (ref Compounds, Haul Roads and Access to Works Plan Sheet 5 – Access Point AW 5.1). BPC is very concerned that this proposed use conflicts with other regular vehicular use of the track by BPC and others including CLH, Highways England and contractors working on the National Grid Hinkley C Connection project all of which access and use must be preserved. The effect of the use of the track on the security of the RPD Estate is also a significant concern. BPC is also unclear whether NSC’s proposal includes carrying out any work to this track and, if so, what work is proposed. If BPC permits access over the track during construction, then it must be maintained and eventually left in the same or a better condition than when NSC’s works commence and BPC would need the absolute right to approve any proposed works to the track. 7.3 The proposed location of a construction compound on BPC land beneath the M5 overbridge will interfere with the need for access (by BPC and others) and impair the security integrity of the RPD Estate (ref Compounds, Haul Roads and Access to Works Plan Sheet 5). 7.4 BPC has found no further detail of the proposals to deal with culverts that discharge surface water from south of the rail to the north. BPC’s particular interest lies in the Easton-in-Gordano culvert (some 200 metres West of the M5 on the railway line route) and the unnamed culvert linking the Court House Farm site, beneath the north abutment to the Royal Portbury Dock Road, and eventually to the Drove Rhine. BPC will need to understand the current proposals and the protections proposed before it can express a view about their acceptability. 8. PUBLIC PATHS 8.1 BPC has previously expressed concern about the various works proposed affecting the network of public bridleways/cycleways which it has created in and around the RPD Estate, including proposals to add to that network by creating and imposing further public rights of way over BPC’s land. The proposals include alterations to the existing infrastructure at Royal Portbury Dock Road and the creation of new public paths near Marsh Lane and close to the M5 bridge embankment, involving the compulsory acquisition of BPC land. BPC does not accept that a need for these works has been demonstrated, either at all or such that the works proposed can properly constitute associated development. The existing dedicated public paths, the routes and specification of which were agreed with NSC, provide a complete public bridleway/cycleway route towards Pill. Even if the works to re-open the railway line proceed, once those works were complete, these paths will continue to be available as they are now, so no works to or to supplement them are necessary. 8.2 It is in any case inappropriate that BPC should be permanently and compulsorily deprived of land in order to provide additional public rights of way in substitution for routes which are currently only permissive and for which the existing (dedicated) public path network already provides an adequate alternative. 8.3 NSC proposals in relation to the various paths also go further than could ever be necessary or proportionate, in that NSC seeks to acquire the whole of the land over which the new works and/or paths may lie. All that would be necessary to secure public access would be the dedication as public highway of the route of any new work, as is the case with the existing dedicated network into which NSC seeks to connect the new paths. 9. ECOLOGY The Examining Authority will need further information on a number of issues, including: 9.1 BPC's environmental management plan for the Court House Farm development; and 9.2 the wider adverse environmental impacts on flora and fauna within BPC's established wildlife corridors and green areas on the southern boundary of the RPD Estate. First Corporate Shipping Limited trading as The Bristol Port Company 26 February 2020"