Desmond Swayne Questions in the House

19 Nov 2008 : Column 334

Lymington River

Motion made, and Question proposed, That this House do now adjourn. —[Mr. Frank Roy.]

6.58 pm

Mr. Desmond Swayne (New Forest, West) (Con): Through you, Madam Deputy Speaker, I thank Mr. Speaker for allowing me this opportunity to bring the question of the Lymington river to the attention of the House almost a year after I first raised it. Complex technical and legal matters are involved, so to dispose of the business in the time available, there will have to be a measure of simplification.

The mouth of the Lymington river is bounded by the Solent marine conservation area, as designated by the habitats directive. The New Forest district council coastal protection team believes that, at the current rate of erosion, the salt marshes that constitute the special conservation area will not survive another generation. In 1991, HR Wallingford was commissioned by the Lymington harbour authority to investigate the erosion consequent on the existing Wightlink ferry service between Lymington and Yarmouth. The company reported the extent of the erosion and predicted that it would continue, as has now transpired. The erosion had been noticed at the time by the then harbour master, and I mention in passing that it strikes me as extraordinary that the regulators were prepared to live with that, rather than take action to deal with it.

Leaving that aside, a new horror has now arisen. Wightlink is to replace the two ferries of the existing service with three, much bigger ones. The new ferries—

It being Seven o’clock, the motion for the Adjournment of the House lapsed, without Question put.

Motion made, and Question proposed, That this House do now adjourn. —[Mr. Blizzard.]

Mr. Swayne: The new ferries have almost 76 per cent. more water displacement, and the jet thrusters used to propel them have almost 200 per cent. more horsepower thrust. Those jet thrusters—quite different from the conventional screw propulsion systems—are largely directed at the bed of the river, gouging it up and leaving the spoil to have to be dredged and dumped out by the Needles. In addition, they have 84 per cent. more windage. Windage is a complicated term, but essentially it means that for a significant amount of the time, those thrusters are pointed directly at the banks of the salt marshes, leading to a much faster rate of erosion.

To implement the new ferries, Wightlink believed that shore works would be required so that they could be berthed and loaded. A planning application therefore had to be made, and that application will be determined by New Forest district council and the Marine and Fisheries Agency. Those bodies will be guided in their determination by Natural England, based on whether there will be any adverse impact on the special area of conservation. The Marine and Fisheries Agency decided that an appropriate assessment must take place to establish whether there will be an adverse impact.

Mr. Andrew Turner (Isle of Wight) (Con): Does my hon. Friend not accept that, owing to open port duty regulations, the only reason that would prevent Wightlink from using the new ferries on the Lymington river is
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that they are unsafe? Despite extensive sea trials and investigations, no evidence has been produced to suggest that they are, or that there are any substantive environmental impacts.

Mr. Swayne: I thank my hon. Friend for that intervention, although I disagree with that analysis. I shall explain why shortly.

I made it clear from the start that, for a number of reasons, I was not satisfied with the appropriate assessment. First, it excludes from the equation important areas of policy that will be affected, not least the leisure yachting industry in Lymington, which has a huge impact on the economy of Lymington, and the implications for traffic through the New Forest national park consequent on the greater capacity of the new ferries. In addition, under the appropriate assessment, there would be no public consultation.

The collection of data for the appropriate assessment is being carried out by the consultants BMT SeaTech, under the supervision of the Lymington harbour commission in its attempt to design the safety parameters in which the ferries can operate. However, hydraulic measurements to establish safety are wholly different from the hydraulic measurements that are needed to establish whether there is an adverse environmental impact. I was never persuaded that the right measurements would be taken, never mind how those measurements would be interpreted.

My third reason for being suspicious of the appropriate assessment arises from the way in which Natural England decided to interpret the regulations. It seems to me that Natural England is measuring “adverse impact” as incremental, additional damage—the extra damage of the new ferries, over and above that caused by the existing ferries. That runs counter to both the spirit and the letter of the regulations. The existing ferry service is accountable to article 2.2 of the habitats directive, which requires maintenance and restoration of a favourable conservation environment. I do not believe that that is happening, although it is supposed to be happening now, while the existing ferry service is in place.

The new ferries constitute a plan or project under regulation 48 of the Conservation (Natural Habitats, &c.) Regulations 1994. As such, they need to be judged in their own terms, and not against the old ferries, which do not constitute part of that plan or project. As far as I am aware, the old ferries have a long life ahead of them—at least another 13 years. For all those reasons, I believe that a full environmental impact assessment is a better way forward than an appropriate assessment. In that, I am supported by New Forest district council, the elected local authority.

I thank the Under-Secretary of State for Environment, Food and Rural Affairs, the hon. Member for Ogmore (Huw Irranca-Davies) for at least keeping the door open to the possibility of an environmental impact assessment. In his written answer to me of 13 October, he said that

“a number of related environmental issues need to be considered, potentially with an environmental impact assessment.”—[ Official Report, 13 October 2008; Vol. 480, c. 938W.]

The Minister has left the door ajar; I want him to open it and go through it, because the situation has changed
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dramatically. On Monday, the Lymington harbour commissioners were informed by Wightlink that it no longer requires the shore works to which the appropriate assessment was attached. Furthermore, it has judged that the ferries are safe to operate, notwithstanding the fact that Lymington harbour commissioners are still conducting the sea trials. Wightlink has therefore unilaterally declared that it will implement the new service in December, without asking permission from anyone.

Mr. Turner: That is what my hon. Friend does not seem to understand; Wightlink is entitled to do so. It is entitled to use the river whenever it wishes.

Mr. Swayne: I understand that; I just happen to disagree with it, as will now unfold. Wightlink will pursue the option that I mentioned without seeking permission from anyone. I ask the Minister to perform two actions. First, will he make contact with his ministerial colleagues in the Department for Transport to establish fully the legality of what Wightlink is proposing to do, and what the powers of the Lymington harbour commissioners are? If they do not have the power to overrule Wightlink, there does not seem much point in having harbour commissioners.

To come back to a piece of legislation to which my hon. Friend the Member for Isle of Wight (Mr. Turner) drew my attention, my understanding is that Wightlink believes that its absolute right to use the ports is consequent on the Harbours, Docks and Piers Clauses Act 1847. The Act was put in place to ensure that shipping could continue to trade after the great storms that had washed away so many of our harbours. Ships had moved further up river because of the disappearance of the harbours, and many people were denying the ships access.

I have been briefed on legal advice to the effect that under the existing ferry arrangements, Wightlink is responsible for some 22,500 ferry movements a year, which stands well outside the parameters of the 1847 Act. If Ministers were prepared to take the matter to court, the Act would be overturned in respect of the port of Lymington, as it has been for other ports, under existing case law. That is the first action that I ask the Minister to take.

The second action is on the environmental impact assessment. Now that the appropriate assessment option seems to have disappeared, I should like him to initiate a full environmental impact assessment. Notwithstanding the fact that there are now to be no shore works, I have no doubt that the option of the environmental impact assessment remains with him, because Natural England’s advice—based on the legal advice that it was given—was that Wightlink proposes a plan or a project, and the European Commission is clear in its advice about the interpretation of the habitats directive. It says:

“The term ‘project’ should be given a broad interpretation to include both the construction works and other interventions in the natural environment”,

of which this is most definitely one.

I am not anti-ferry, and I want there to be a thriving ferry service between the ports of Lymington and Yarmouth, because it is vital to my constituents and to those of my hon. Friend. But a lot of fear has been floating about, and people have been saying that Wightlink has made it known that it does not intend to renew the safety licences of the existing ferries after next spring—in other words, Wightlink has said, “There won’t be a ferry service unless you accept these new ferries.” It has
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now gone further, effectively saying, “It doesn’t matter what you do; we’re going to implement the new ferries.”

The Lymington to Yarmouth route is a profitable monopoly. Wightlink has invested a significant sum in the project, and I just do not believe that there is any prospect of Wightlink walking away from it. I therefore believe that we should call its bluff. Wightlink is owned byMacquarie, which has form. It has gained the most aggressive reputation for the way in which—how can I put it charitably, Madam Deputy Speaker?—it pursues the interests of its shareholders with a singular vigour, and it is time for Ministers to call Macquarie to order.

I believe that, had there been a marine Bill, we would never have been in this position, and I hope that there will be a marine Bill in the Queen’s Speech, because it will certainly have my support. We do not have a marine Bill, and we will not get one in time for Lymington, but I believe that, under existing regulations, Ministers have the power to act, and I am here tonight to ask them to do so.

7.12 pm

The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Huw Irranca-Davies): I congratulate the hon. Member for New Forest, West (Mr. Swayne) both on the passionate and extensive way in which he has set out the case on behalf of his constituents, and on the way in which, since I have been a Minister, he has been persistent, consistent and diligent on behalf of his constituents on a wide range of related issues. As he said, he is not necessarily anti-ferry, but he wants a proportionate way forward, and to deal with very significant issues regarding the potential environmental impact.

The debate is very timely because of the issues that the hon. Gentleman has raised, and because of developments that I shall come on to. By the end of my contribution, I hope to have dealt with all his points and given clear and categorical assurances about what we consider to be the way forward to reach the right outcome not only on the environmental issues, which are close to the hon. Gentleman’s heart, to those who have worked locally with him, and to my heart, because it is a very beautiful and precious part of the world, but on the economic and social interests that are linked to the ferry.

It may be helpful if, in part of my contribution, I set out how we have got to where we are and how we can take the matter forward. I shall also deal with some of the hon. Gentleman’s comments on how the issue has developed in literally the past 24 hours. That will also give me the opportunity to talk not only about the area but about the Government’s commitment to protecting our biodiversity—our variety of species and habitats. That is very close to the Government’s heart as well as to his.

The hon. Gentleman mentioned that the salt marshes and mudflats at the Lymington estuary are internationally designated as part of theSolent and Southampton Water special protection area for birds. They constitute a Ramsar site, and are part of the Solent maritime special area of conservation; they are also part of the national sites of special scientific interest series.

The harbour itself is part of a complex of sheltered, semi-natural estuaries in the Solent, supporting a diverse
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coastal ecology. The key features of international interest are extensive salt marshes, supporting plants such as sea lavender, sea blite and sea purslane. In addition, the extensive mudflats and sandflats support marine invertebrates that provide food for thousands of water fowl, which arrive each autumn to feed on the rich food supply of the sheltered inlets marking the Solent estuaries.

However, although, like the hon. Gentleman, we recognise the significance of the nature conservation interest, we, like him, are also aware of the socio-economic importance of Lymington harbour. We are therefore keen for there to be a balanced and sustainable solution to any problems facing the port. The harbour needs a solution that takes into account nature conservation, landscape, and archaeological and environmental issues, while securing the future of the recreational and commercial activities that sustain the local economy and enrich the lives of communities and visitors. We are keen to support such a solution.

On the habitats directive and requirements under regulations, I should say that development applications likely to affect European protected sites need to be assessed under the habitat regulations; there is a legal procedure associated with applications that may have a significant effect on a protected site. The procedure requires an “appropriate assessment” to be carried out by the consenting body or competent authority. In relation to the conservation objectives, that includes a detailed study of impacts, mitigation measures and an assessment of alternative solutions. When the assessment process suggests that there are no alternative solutions, but there may be adverse effects on the protected site, the development can go ahead only if it is judged that there are “imperative reasons of overriding public interest”, or IROPI, and if the member state—in this case, the UK—takes all compensatory measures necessary. That is some of the background.

The hon. Gentleman mentioned Wightlink. The development proposal affecting Lymington harbour is the subject of an application by Wightlink Ferries. It wants to operate larger ferries from Lymington harbour to Yarmouth, on the Isle of Wight. The enabling shoreside works require consent, and through the consent procedure the need for an appropriate assessment under the habitat regulations has been triggered. The hon. Gentleman has been aware of and involved in that issue. The appropriate assessment will include the effects of changing from the existing ferries to the new W-class vessels.

As the hon. Gentleman will understand, it would be inappropriate at this stage for me to comment in detail on the assessment or speculate on its likely outcome. Only after it has been completed will we have a complete picture of the likely effect on the protected sites of operating the larger ferries.

Mr. Swayne rose—

Huw Irranca-Davies: The hon. Gentleman may not want to intervene, as I will come in a moment to how the issue has developed.

I turn now to the science and the appropriate assessment. The competent authority has been in close contact with Natural England over the scientific work needed properly to assess the impact of the new ferries; as Minister, I have been keeping an eye on that issue. The competent authority has consulted Natural England on the different impact of the larger ferries. Without going into the
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details, I should say that the scientific work includes an initial assessment of whether the existing ferries appear to be having any detrimental effects, in order to assist in predicting whether the new ferry will cause additional such effects.

The assessment includes consideration of mapping evidence to assess changes to the navigational channel, consideration of sediment movement and a review of other natural and anthropogenic influences on the navigation channel. The work will also consider propulsion and ship wash modelling and other effects likely to result from the increased size of the new ferries.

Mr. Swayne: I do not complain that the Minister is dwelling on the appropriate assessment, as I did so myself. However, is he confident that the appropriate assessment will be completed? It is tied to the application for the shore works. Wightlink is now saying, “We don’t need the shore works and we’re going to start next month without them.”

Huw Irranca-Davies: The hon. Gentleman makes a valuable intervention. When I deal with the immediate issue before us, I will refer to the need to ensure that the timeliness of any decisions works for the balance of the environment and the economic considerations.

In terms of the assessment, the requirements of the habitat regulations will ensure that the adverse effects will be identified and mitigating measures explored. The current position is that the new ferries are undergoing sea trials under the management of the Lymington harbour commissioners. This work is primarily aimed at determining safe navigation and speeds, but valuable environmental information will also be gathered. It is hoped that the appropriate assessment will be concluded before Christmas. I am not in a position to give any guarantee on that, but I am watching the situation very closely. It is important to ensure that the assessment is sufficiently rigorous.

I am sure that the hon. Gentleman would want me to record the valuable input of the Lymington River Association. Although opposed to the introduction of the larger ferries, it has, to be fair, entered into a constructive dialogue with Natural England about the scientific issues. Although it has not been possible to include all the science that it has proposed, Natural England has pursued some of its suggestions and is still considering others. I hope that this valuable dialogue will continue in future, and I know that the hon. Gentleman will encourage that. I understand that he has met officials from the statutory agency, Natural England, to go through the issues relating to the appropriate assessment. I sense from this debate that he may still have some reservations about the scope and timeliness of the scientific work, but I hope that this important dialogue will continue.

Let me turn now to the wider environmental issues to explain some of the background. I will come to the point about timeliness, but it is important to explain why we have got to this position and some of the ways forward. Several regulators have a role to play in a proposal for a new development, including, in this instance, the local authority, the local harbour commissioners and DEFRA’s Marine and Fisheries Agency—the MFA. The MFA was asked to license minor improvements to berths in Lymington harbour
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under the Food and Environment Protection Act 1985. It was not apparent when the original application for the works was submitted to the MFA that it could be part of a wider process facilitating the introduction of these new ferries. That information came to light only through subsequent discussions between regulators, the applicant and stakeholders. Since then, my Department, alongside the MFA, has continued to work with other Government Departments, the Government office for the south-east and regulators in order to address the issues that this complex case presents within the regulatory regime.

I am grateful to the hon. Gentleman and his constituents for raising wider concerns over the possible effects, including possible traffic increases, the effects on local yachtsmen, and the environmental and economic impacts. However, I note that, as with many issues of this type, there are always at least two sides to every story. I understand that many people at the other end of the ferry route, in Yarmouth, feel that these ferries provide a lifeline for them to the mainland. Many of them rely on the service for access to health services, education and employment. We must also consider the important social and tourism aspects and the economic benefits to Lymington. Of course, the new ferries will comply with all modern safety and operational standards, so we need to ensure that our course of action is the right one.

The hon. Gentleman mentioned the marine Bill. I will not go into great detail on that, but I think he is right to mention it, and we will welcome his support when it is introduced. We are looking forward to that. The Bill will bring in a new planning system allowing for the creation of a much more integrated regime for planning in the coastal zone—that is long overdue. It will also provide for the designation and protection of marine conservation zones. Together with European marine sites, MCZs will contribute to the UK’s achieving, first among the nations, an ecologically coherent network of marine protected areas. As the hon. Gentleman says, that may not be in time, despite our best wishes, but the marine Bill will have an impact in future.

I come now to the immediate issue before us. The proposal by Wightlink to introduce new ferries in the near future seems, on my first reflections, to be rather premature in the light of the ongoing assessments, and I would suggest that Wightlink might constructively like to reflect carefully before pursuing this course. Although I am not aware of anything unlawful in this proposal, Wightlink is a harbour authority as well as a commercial company, and although I accept that its existing ferries may no longer meet safety standards, and that it is waiting for a decision on its application for consent to the enabling shoreside works, I urge it to give due consideration to its responsibility for the environment.

The regulators need to consider carefully the full implications of any such action. There are general duties under the habitats regulations that require Lymington harbour commissioners to have regard to the requirements under the habitats directive when exercising their functions and the commissioners would need urgently to assess the position. Furthermore, it is of particular concern that the company is contemplating the introduction of new ferries on this route before the appropriate assessment under the habitats regulations has been completed. We are not talking about a big overlap of time in this case. Should the assessment, when completed, show that the operation of the new ferries would have an adverse
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effect on the integrity of the protected site, and that mitigation measures could not be agreed with Wightlink, the Department for Environment, Food and Rural Affairs and the other regulators would need to consider carefully, and as a matter of urgency, any regulatory powers they have or might need to exercise in order to fulfil the UK’s obligations under the habitats directive.

I should point out that my officials have already met the Department for Transport to discuss this case. I will instruct them as a matter of urgency to explore further with that Department and other regulators, including the harbour commissioners, the implications of any such action. I will consider carefully any existing regulatory powers that might need to exercised in order to fulfil the UK’s obligations under the habitats directive.

I will not step over the mark tonight and outline the exact course of action that I am likely to pursue, and I stress the balance between the social and economic needs of the ferry service and its responsibility, as a harbour commissioner, to the environment. After reading the transcript of this debate—the strong and powerful contribution of the hon. Member for New Forest, West, the intervention by the hon. Member for Isle of Wight (Mr. Turner) and my comments—I hope that Wightlink will take its responsibilities seriously, consider the issue in the round and recognise that an appropriate assessment is under way, through which we are rapidly gathering the science to make an appropriate decision. I hope that, on that basis, we can find a way forward and that Wightlink hesitates before acting prematurely and rapidly introducing the larger ferries. I hope it recognises that, although it is a commercial operator, it has wider responsibilities.

I believe that there is a way forward. The debate has shown the complexity of regulation in the marine
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environment. I feel strongly that—curiously—the marine Bill is uniquely fitted in Europe to introduce a coherent and integrated regime, which has the buy-in from stakeholders at the earliest opportunity, and can consider such an eventuality in future.

In the meantime, there is a regulatory framework, and work is under way, in which the hon. Gentleman has not only been involved but pushed along diligently. That is the way we need to proceed. That would be my message to the constituents with whom the hon. Member for New Forest, West has worked, to those who rely in his constituency and that of the hon. Member for Isle of Wight on the important economic link that the ferry constitutes, and to the operator, who has an understandable desire to improve the service. I also ask them to take their responsibilities seriously and work with the agencies and regulators who are currently involved with making the appropriate assessment. We can then determine the further action that might need to be taken.

I thank the hon. Member for New Forest, West for raising the matter in a timely fashion and for the way in which he did so. I urge him to continue his close involvement with the issue and to keep communicating with the Department directly. I hope he is reassured that I, as a Minister, the Department and my officials are fully engaged in the matter and keeping a close eye on progress. We want to work with Wightlink and agencies in the area to ensure the right outcome, which balances priorities in a beautiful, diverse and environmentally important area of the coast.

Question put and agreed to.

Adjourned accordingly at twenty-nine minutes past Seven o’clock.

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