Mr P. Griffiths
Lymington Harbour Commissioners
25 February 2009
Dear Mr Griffiths
It has been announced by Wightlink that Wightlink have decided at a Board Meeting yesterday to commence a commercial service with the new W Class ferries from midnight tonight. Wightlink have issued a statement this afternoon.
As you will know, following an exhaustive Appropriate Assessment process conducted under the Habitats Directive, Natural England have issued advice to all the Regulators that the new W Class ferries will cause a significant and as yet un-quantified “adverse effect on the Natura 2000 designated sites that the ferry passes through in the Lymington River in the decades ahead” .
With their press release Wightlink have produced an opinion from their solicitors and leading counsel to the effect that Wightlink are a statutory harbour authority in respect of Lymington Pier and therefore have environmental duties under section 48A of the Harbours Act 1964.
Those duties should have regard to the conservation of the natural beauty of the countryside and natural features of special interest and to take into account any effect which the proposals may have on those features.
Similarly the opinion states Wightlink has statutory functions requiring it to have regard to the requirements of the Habitats Directive so far as those requirements may be affected by the Wightlink’s activities.
The clear effect in the case of the Lymington River is to the saltmarshes and the river channel itself.
No doubt other opinion may contradict Wightlink’s own opinion that it can effectively act as judge and jury as its own statutory harbour authority but regardless of that, the legal opinion that Wightlink has received has made it quite clear that under the above provisions Wightlink should carry out an environmental assessment of the effect of introducing the new ferries. An environmental assessment shall be equivalent in form and scope to the appropriate assessment process which is under way by Natural England.
There are clearly issues between the various marine surveyors and experts involved in that process and Natural England’s consultants at least, HR Wallingford, take the view that there is unacceptable impact resulting from the new ferries.
Wightlink have effectively pre-empted further discussion and argument which would lead to a resolution and conclusion of the appropriate assessment by concluding that their experts are correct and on that basis, subject to a final sea trial, are proposing to enter the ferries into service.
In view of the unresolved issues between the surveyors that would appear to be a premature conclusion. However Wightlink states in its press release that the advice shows that Wightlink has fully complied with its legal obligations. This would appear not to be the case on the face of the documentation produced by Wightlink.
The Lymington Society have never sought to be an expert in this issue but have sought to ensure that the interests of the Lymington and its environment are fully taken into account in the decision-making processes and are protected and accordingly the Society draws this position to your attention representing that you as a relevant authority should take steps to prevent Wightlink’s prejudgement of the regulatory position.
In the circumstances the Society urge all the regulators to ensure that they use the powers at their disposal to ensure that Wightlink are prevented from starting this commercial service prematurely which according to Natural Englands experts, will lead to a clear adverse affect on the Natura 2000 site by the anticipated 23,000 ferry sailings per year of the significantly larger ferries.
Clive Sutton Lymington Society Chairman.