PLANNING & TRANSPORTATION

Head of Service: Chris Elliott

Rt Hon Eric Pickles MP Secretary of State for Communities and Local Government Eland House Bressenden Place London SW1E 5DU Dear Sir

Our Ref: CJE/96387/97128 Your Ref:

2 June 2011

Request for Call-In Planning application number 11/97128 Development of Shore Works, including replacement and upgrading of existing berthing arrangements, modification to ship berths and standby berths 1 and 2 Lymington Car Ferry Terminal, Shore Road, Boldre SO41 5SB Planning application number 11/96431 Recharge and Habitat Creation Works Intertidal Zone at Boiler Marsh, Boldre, Lymington New Forest District Council and the New Forest National Park Authority have received new planning applications for the two developments described above. They have both been submitted by Mr John Burrows on behalf of Wightlink Limited. Two earlier planning applications from the same applicant have recently become the subject of non-determination appeals. The non-determination has arisen for reasons which appear below. A date for a public inquiry to consider these schemes is currently being considered by the Planning Inspectorate. New Forest District Council and the New Forest National Park Authority request that you callin the two recent planning applications for your own determination. This could be in conjunction with the planning appeals already lodged by Mr Burrows on behalf of Wightlink. The Council’s reasons for taking the unusual step of drawing these applications/appeals as appropriate to the Secretary of State’s attention as suitable for call-in (and, in the case of the pending appeals, for recovery of jurisdiction) are as follows. As you may be aware, there is a rather complex background to these applications. Wightlink is the operator of the long-standing passenger ferry service between Lymington, Hampshire (in this Council’s area) and Yarmouth, Isle of Wight. Both sets of applications arise out of Wightlink’s decision to introduce new, larger `W’-Class vessels in place of the former `C’Class vessels operating the route. In connection with this change, Wightlink made proposals to this Council to exercise its permitted development rights as statutory undertaker to make improvements to the berthing and passenger facilities at its Lymington terminal. At the same time there grew significant Cont’d ./.. Page 2

the works which Wightlink proposed to carry out were such a “project” and the operations of the new ferries were sufficiently connected with those works to require the Council. in particular their impacts on the rate of erosion of protected intertidal saltmarsh habitat on the coast around the Lymington River estuary. The result was that attention came to focus on the possibility that works to re-create intertidal habitat. as a “competent authority”.4 of the Habitats Directive – that is. the Solent and Southampton Water Special Protection Area (SPA) and Solent Maritime Special Area of Conservation (SAC). The Council was an interested party in those proceedings. NE and other interested bodies.Rt Hon Eric Pickles MP 2 June 2011 local concern about the environmental impacts of the new vessels.” though also raising a number of subsidiary issues. It became apparent that the central environmental (and ultimately legal) issue was the impact of operations with the larger vessels on the rate of coastal erosion processes in the vicinity of the navigable channel. local residents began judicial review proceedings against Defra and Wightlink. which lie within the Hurst Castle to Lymington River Estuary SSSI. by recharge of dredgings to a section of coastal saltmarsh at Pylewell Bank. During the course of these developments. on the basis that the project must be treated as Cont’d . Wightlink’s overall proposals also required a number of other consents including consent under FEPA from what was then the Defra’s MCA.. would (in combination with other measures) sufficiently mitigate or offset the consequences of the ferry operations to enable Wightlink’s proposals to meet the integrity test. The Council’s view was that whether or not the ferry operations themselves were a “plan or project” to which regulation 48 of the former Regulations applied. the recharge operations could be only be taken into account. primarily raising the question whether the ferry operations were themselves a “plan or project. The Claimants in the judicial review proceedings took the view that as a matter of law. Natural England (NE) gave advice to the Council and other regulatory bodies involved. if at all. as compensatory measures under Article 6. extensive discussions took place between Wightlink. That in turn gave rise to the question whether or not the various competent authorities could properly have regard to the recharge proposals in applying the integrity test./… Page 3 . The areas in question form part of a number of designated sites including two Natura 2000 sites. to make an appropriate assessment (AA) of the impact of the ferry operations on the Natura 2000 interest and to determine whether it was demonstrated that those operations would not adversely affect site integrity. Meanwhile. as a result of which the Council required an application to be made to it for prior approval under regulation 62 of the former Habitats Regulations 1994.

Each of the four decision-making bodies. concluding (among other things) that the ferry operations were a “project”. In due course it became apparent that NE were unable to advise favourably. However. Wightlink then notified the Council and other interested bodies that it would not proceed under its permitted development rights. on the integrity of the Natura 2000 sites. It may well be that NE’s advice.Rt Hon Eric Pickles MP 2 June 2011 failing the integrity test. The Council is likely to give NE’s expert views considerable weight. because the competent authorities awaited NE’s considered views on the effects of the proposals. It also proposed applications to the MMO for FEPA consent and to the Environment Agency for relevant statutory consent. the Ferry operations themselves. Pylewell Bank is in the area of the National Park Authority as local planning authority. Subsequently the High Court gave judgment in the judicial review proceedings. coupled with the habitat recharge proposals at Pylewell bank. Instead it proposed to make full applications for planning permission to this Council (for the Lymington terminal works) and to the National Park Authority (for the recharge works at Pylewell Bank). any decision by the competent authorities on the integrity test will also require resolution of two issues of principle which recent Cont’d …/…. The Council therefore adopted a negative AA and refused Wightlink’s regulation 62 application. Those applications were duly submitted last year. however. The “compensation” issue regarding the recharge works did not. as matters stood. The determination process became stalled. the competent authorities may properly conclude that the integrity test is satisfied. are such that provided those measures are suitably secured. however. and indeed Wightlink itself as statutory harbor authority for the Lymington terminal. Wightlink have now submitted duplicate applications to both authorities. will be to the effect that the proposed operating constraints on the ferries. and therefore subject to former Regulation 49. Page 4 . and the recharge works at Pylewell Bank – as a single “project” within what is now regulation 61 of the Habitats Regulations 2010. on the efficacy of the proposed recharge works. when received. is a competent authority within regulation 61. as now formulated. In anticipation of definitive advice from NE during the next few weeks. It is for that reason that Wightlink have appealed the planning applications made to this Council and the NPA for non-determination. The applications would be supported by an Environmental Statement and Wightlink indicated that it would treat the three elements – the shore works at Lymington. The duplicate application to this Council has been registered with the above number. which required such a project to be supported by “imperative reasons of overriding public interest” (IROPI). fall for determination in those proceedings. The Lymington Harbour Commissioners also have a role in determining operating constraints on ferry movements in the navigable channel. accompanied by an Environmental Statement and extensive associated documents.

the Council and NPA will be challenged either by appeal (if planning permission is refused) or judicial review proceedings (if permission is granted).. The first is the risk that the LPAs will concurrently reach a different view from the inspector on the same issues. rather than one of pure law. This gives rise to two major concerns.Rt Hon Eric Pickles MP 2 June 2011 correspondence has revealed as highly controversial. 61 is primarily one of judgment as to the nature of the measures and their connection with the impacts of the ferry operations. it seems most appropriate and economic for all the issues to be determined together at the highest level of the planning system. Page 5 . Indeed those representing the Lymington River Association have already intimated the possibility of court proceedings. The second is that there is a significant likelihood that the “compensation” issue will be decisive of the decision on the planning applications. Thus whichever way the issue is determined. and for the approach that the British Government takes to the implementation of the 2010 Regulations. is whether the recharge measures can lawfully be taken account at all in applying the integrity test: the question that remains outstanding following the judicial review proceedings. It will also have major implications for other schemes which affect European Sites throughout England and Wales. As regards the pending appeals. Thus this Council invites you to call in the re-submitted applications for your own determination becauseCont’d …. So a final view can only be reached when NE’s definitive advice is received and interested parties have provided their consultation responses to it. Since there are already parallel appeals before you. This Council’s officers have expressed the provisional view that the question whether the recharge measures can be taken into account under reg. The decision on this legal issue is not only critical to the adoption of an Appropriate Assessment by the two authorities.. But the issues will fall for resolution by the LPAs in determining the re-submitted applications.. These impacts will be national. Either way. there are enormous resource implications for both authorities. well beyond the local or even the regional area.. these will be questions for the inspector rather than either LPA to resolve. The second. and more significant. The first is whether the habitat recharge works are properly categorized as part of the same “project” as the Lymington shore works and the ferry operations./.

You are respectfully invited to acknowledge the importance of these decisions by calling-in the new applications and recovering jurisdiction of the existing planning appeals.elliott@nfdc.Rt Hon Eric Pickles MP 2 June 2011    they involve development that may conflict with national policies on important matters. Yours faithfully. Chris Elliott Head of Planning and Transportation Tel: 023 8028 5310 Fax:023 8028 5223 Email: chris. not just on the Lymington River but throughout the whole of England and Wales. the decision on these developments will have significant effects beyond its immediate locality they involve important and nationally significant legal difficulties arising from the interpretation of the Conservation of Habitats and Species Regulations 2010. In this way you can ensure that the Conservation of Habitats and Species Regulations 2010 are correctly interpreted.uk .gov.

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