Representation by The Baird Farming Partnership (The Baird Farming Partnership)
- Date submitted
- 6 November 2023
- Submitted by
- Members of the public/businesses
6 November 2023 Without Prejudice The Baird Family remain supportive of the benefits that offshore wind energy can bring and are grateful for this opportunity to submit their further comments. The Bairds have been engaged in ongoing discussions with RWE and their agents and have submitted 2 objections in previous consultation rounds. A small number of objections have been overcome by RWE making acceptable changes to their proposals in so far as they affect Baird land. On 27 June 2023 the Bairds received letters in relation to negotiations concerning voluntary acquisition of rights. Upon taking advice the Bairds were simply not in a position to sign those heads of terms (HOTs) as they were severely deficient in detail, without prejudice and subject to contract for contracts they had not seen. On 3 November 2023 (being one working day before closure of consultation) the Bairds received the template contracts referred to in the earlier HOTs; being an Option for grant of easements and a Deed of grant of easement for a term of years. The Bairds want the Planning Inspectorate to be aware that they are ordinarily professional business people, managing a large Estate and are frankly unused to this manner of negotiation. Due to a lack of information from RWE they were not in a position to sign the June 27 letter and have not had time to consider the November 3 templates. It would therefore be enormously unjust for the Inspectorate to hand RWE CPO powers in the alternative of what must be fair negotiations; The Bairds are put at a severe disadvantage but remain willing to enter into rational dialogue with RWE. Here follows the matters that remain outstanding; these were raised through a formal objection lodged 16 September 2021 and directly with RWE and their agents. The inspectorate will need to refer to those earlier representations for the accompanying text. There has been extensive correspondence and site meetings have been held, but for whatever reason RWE has been unwilling to address these objections preferring instead that the Planning Inspectorate adjudicates to make a decision. 1. Impact of the proposed easement corridor for the cable on proposals for delivering Natural Capital improvements and the ‘Weald to Waves’ wildlife corridor. There seems to be a fundamental flaw in RWEs approach to the future management of the cable corridor; the assumption is that the pre-development landscape will be restored and maintained in that condition for the lifetime of the scheme. This is a daring supposition; Natural Capital markets are emerging with a whole range of eco-system services on offer from payments for carbon sequestration from tree planting, to biodiversity crediting and flood management, being just a few examples. The prohibition on any tree planting as described at paragraph 5.1.1 of the template Option for grant of easements is untenable for the Bairds, being in direct conflict with their landscape recovery ambitions and Government direction. The agreement states an outright prohibition on ALL trees, however, RWE’s own Environmental Statement suggests that hazel coppice (for example) is acceptable on the easement strip. The Bairds suggest that a realistic and proactive approach is taken towards the presence of trees on the easement strip. It could be argued that applicants should specify the types of tree species that may be compatible with the cables, and the height (or diameter) that other trees may grow to before they pose a risk to the cable. But the problem with rewilding is that acorns are planted by Jays, the wind blows willow and sycamore seeds, a regenerated landscape cannot be planned and mapped. The pragmatic solution is that the cable depths and specification of works will need to be altered to allow for tree growth in areas where the landscape use may change over the life of the scheme. It cannot be right for the Inspectorate to sign off a DCO that allows sterilisation of biodiversity for the life of the scheme. The Bairds are part of a cluster of land managers who have submitted a Landscape Recovery funding bid with the South Downs National Park Authority as applicant; this is investment readiness funding to explore these Natural Capital markets; a decision by DEFRA is imminently anticipated. The Bairds have for some time (commencing before RWE proposed entering their land) been exploring Natural Capital opportunities on their land. The Bairds have undertaken extensive biodiversity baselining and invested in marketing in readiness for mandatory BNG opportunities; their entire Estate (minus LEGA) has been submitted to be placed on Arun District Council’s BNG register. Agricultural practices are adapting as land managers adjust to tackle the twin climate and biodiversity crises; this includes introducing practices such as Agro-Forestry, hedgerow restoration and orchard reinstatement; DEFRA’s flagship Sustainable Farming Incentive (SFI) scheme offers significant grants to farmers for restoring such features, yet RWE propose to disallow engagement across a vast track of land and without compensation or robust justification. The Bairds met with RWE and their engineering consultants Woods to understand the rationale behind the decision point to disallow tree growth in any form along the easement corridor. The engineer brought a UK Gas Network pamphlet to demonstrate that there was a risk of pipe fracture from tree roots. The Bairds explained gas pipes and electric cables were not comparable examples; RWE could offer no other reasoning or evidence. The Bairds asked them to provide further evidence; they have failed to produce any. The Bairds do not believe that a professionally well laid cable of the right specification at an appropriate depth will be affected in any way by tree growth; in fact RWE are proposing to HDD install cables underneath some of the Bairds woodland which will continue to grow over the top of the cables. The Bairds suspect this measure is being introduced out of an abundance of caution by RWE and respectfully ask the Planning Inspectorate to intensely scrutinise this point including revisiting the specification and depths of cables where there is genuine intent to market land for biodiversity. The Bairds have raised a further concern about the proposals for the end of the scheme. There is uncertainty whether the cables will remain within the soil or will RWE have to recover all cables and ducts? Clearly it would be unconscionable to contemplate that the Planning Inspectorate would sign off a DCO that sanctioned biodiversity rich habitats, the preference must surely be that the ducting is designed to remain in situ and perhaps be used by future generation schemes? The Bairds believe this may be the reason why RWE are seeking to degrade biodiversity along the easement, in order to make extraction less damaging to wildlife, but the Inspectorate needs to consider very carefully the impacts of this. The further point that emerges here is one of management responsibility; suppose the Bairds do sell biodiversity credits, as they have for a long time intended, the expectations of the investor is that the land will be managed to restore biodiversity to offset loss elsewhere, they would not expect it to be a barren landscape devoid of trees. RWE has not divulged how it expects the trees to be managed, on the Bairds 1.3kms corridor it presumably would have to be annually slashed, removing all growth in the process. The fact is were the Bairds to agree to sign the template Option for grant of easements document which specifically prohibits tree establishment, the Bairds would not be able to offer that land for Biodiversity Net Gain (BNG) marketing. There does not appear to be any compensation offered by RWE for this loss of revenue. Further, the Bairds have been in high level discussions with Southern Water (SW) regarding the installation of reed bed habitats to be used as bio filters. This involves extensive tracts of land, something that is in short supply in this densely populated area, which is in part why RWEs cable is proposing to come through their land. The SW proposal will require significant engineering to create terracing to manage water flows for quality control; this may involve lowering or most likely raising the land above the cables to allow these features to function. RWEs proposed prohibitions jeopardise delivery of this important societal capital project. In February 2020 following storm Ciara and more recently following storm Ciaran significant parts of the cable route have been inundated with over washed sea water. The Environment Agency strategy for the area includes the installation of new flood defence bunds. These are described in the River Arun to Pagham Flood and Coastal Erosion Risk Management Strategy at Table 6-11 Preferred Options for Strategy Implementation; “Construction of a new bund along the south side of the A259 will contain flood waters from the river and Climping, and a new low bund to reduce the ‘back door’ flood risk to Rope Walk in future years.” This objective appears to be in direct conflict with the Option for grant of easements paragraph 5.1.2 “that the Grantor will not within 40 metres of the proposed location of the Cable shown by the red line on the Plan materially raise or lower the existing level of the surface of the land”. 2. Impact of the cable route being adjacent to the Littlehampton Economic Growth Area (LEGA). LEGA remains a strategic housing development site of the Arun District Council’s (ADC) local plan, programmed for delivery at the latter stages of the plan. The Bairds have been working closely with Savills as agents and developers to secure a promotion agreement to aid delivery. The site has many complex issues that require intricate exploration for due diligence purposes one of which has been uncertainty over the RWE cable route, depth and easement terms. At a meeting with ADC held 3 July 2023 it was agreed with the Chief Executive and Head of Planning that the Bairds would prepare a comprehensive masterplan for the whole allocation; this has been put in hand but the severance of the allocation caused by RWE’s preferred cable route has jeopardised the viability of the whole scheme, making it impossible to secure any offers from promoters. This is further compounded by the uncertainty around what can be placed over the cable easement post works. In short RWE’s Draft easement templates need significant amendments. Were the Bairds to sign them in their current form it would put at risk delivery of the important LEGA strategic housing allocation; they respectfully ask that the Inspectorate gives this matter close scrutiny. 3. Works Compound at 8a in Onshore Works Plan Page 1 of 18. RWE propose to construct a site compound on land the Bairds are promoting for residential development. Despite a professional and competent firm of developers (Hallam Land) having spent considerable time and expense in preparing this land for development, RWE have rejected its development prospects purely on the grounds that it is not allocated in the Arun Local Plan. This statement was not properly assessed or debated and failed to reflect on the specific issues of this local authority area. The LPA has a housing land supply that is substantially less than the required 5-years. As a consequence, land outside of allocated areas has an equally good chance in obtaining planning consent provided that certain criteria is met. Hallam believe this site has good prospects. It falls within an existing sustainable location, where there are existing public transport links, a primary school and employment opportunities. The proposed development could make a contribution to providing much needed market and affordable housing in the short term in a location consistent with the Local Plan’s strategy, and there is the possibility that the site could be allocated in the emerging Local Plan Review as the Council will need to allocate sites that are available for development in the short and long term. The compound proposed by RWE will in effect sterilise the development potential of the site in the short term and prohibit the promotion of the site for residential development. As a potential development site, the land is sensitive to any contamination. The Bairds are concerned that RWE propose to use the land for storing soil and arising from the project, which may introduce new contaminants (natural or manmade). RWE have rejected the proposal for them to undertake a baseline contamination survey prior to entry, and have not provided any method statements or undertakings as assurance that contamination will be monitored and dealt with appropriately. The Bairds asked RWE to consider alternative sites for this significant compound and they declined. Two site meetings were held, the Bairds impressed on RWE their concerns that there were better locations for the site compound that lay north of the railwayline. The entire scheme is to be serviced by just 3 major compounds, it makes no sense at all to have one at the extreme end of the scheme and severed by a busy railway, the logistical holdups to themselves and the pressure put onto local traffic make it a far more logical for RWE to secure a site north of the railway line. The Bairds absolutely object to RWE using their land as a works compound. 4. Works number 9 & 7 Compound and Access; Onshore Works Plan Page 2 of 18. The Bairds maintain their objection to this route due to the significant impact upon their leisure and camping enterprises. Other matters that remain outstanding from that earlier objection are; 5. The Bairds would still like to see net gains, they think this is best practice and what is needed given the ecological emergency being faced. At a meeting with RWE it was suggested that they were prepared to deliver BNG as part of their corporate responsibility agenda. 6. There should not be 50 metre wide easements across ditches, hedges or other sensitive areas unless this extreme width can be comprehensively justified. 7. The land in front of St Mary’s Church has been identified as a possible works access area; this is community land that has royal celebration trees planted upon it. Should this access route be used the trees must be protected. 8. The Bairds have informed RWE that they have nationally rare indigenous Black Poplar trees growing on their land. Without prejudice to other concerns and mitigations identified within this representation, the Bairds want cast iron assurances that should it be comprehensively demonstrated that these trees need to be removed, then they shall be relocated as close to their current positions as possible with the work carried out by competent professionals. 9. Many of RWEs work and access areas are on land where the Bairds have for a long time been establishing wildlife and hedgerows. Removal of these will set back nature recovery by 20 years so these features should be fully avoided and alternatives to their removal must be a feature of the DCO. 10. Most of the Baird’s land is drained with complicated drainage arrangements, more information can be provided if required. RWE will need to contemplate installing new drains each side of working areas to maintain those systems during the work phase and reinstate the system upon completion, bearing in mind that the land will need time to settle before installation. In addition to the drainage problems, RWE has failed to consider or offer compensation for the severance of land that will be caused by the scheme. The Bairds do not have the luxury of accessing their fields from multiple sides, the effect of the trenches will mean large parts of the farm will be severed from access. It is therefore vital that access is maintained at all times. The severance causes a further issue; the Bairds operate a commercial arable business using large machinery that is unsuitable for small fields. RWE proposed cable route will cause small fields to be created and their expectation is that the Bairds will continue to farm those as normal so no compensation is on offer for losses outside of the easement corridor. Whereas these smaller fields will be hopelessly less efficient and most likely unfarmable for the duration of the scheme, the Inspectorate needs to closely scrutinise this point. The Bairds have experience of the SW wastewater pipeline scheme that crossed their land in the 1990’s. Compensation was based upon a sliding scale of crop losses reducing in loss over the seven year period post scheme works. The reality has proved very different, with crop losses and drainage problems associated with the scheme still impacting crop output to this day. The Bairds therefore have a grave concern that RWE compensation calculators need to take account of the longer term impacts of their scheme. The Bairds are today in receipt of a 20 page Option for grant of easements and a 27 page Deed of grant of easement for a term of years and have one working day to consider these documents to make an informed consultation response. Some months ago they were sent draft heads of terms that were lacking in any of the details now declared in these two documents and were expected to sign those HOTs; they were incentivised by the lure of a bonus payment for a timely signature, yet they could not receive clarification despite repeated requests by their agent. This part of the process has been incredibly unfair sensing it has been engineered to be so; The Planning Inspectorate needs to closely scrutinise RWEs tactics in this regard, it simply cannot be right that the Bairds should be expected to sign documents not having had sight of the full details of contracts. A vain attempt at responding to the two documents received today is made here without prejudice and rights are reserved to make further representations pending advice from professional advisors who will have had the opportunity to properly consider them. The Baird’s agent has provided further commentary on the template Option and Easement agreements which seek to impose very unfair and unreasonable terms on the landowner. For example: • A farmer will not be able to undertake routine works, such as improving farm tracks or laying drainage pipes without first seeking consent from RWE. Furthermore, RWE have not stipulated the information they require in order to consider those requests, whether costs are payable, any obligation to reply in a specific timescale, or confirm whether any costs are payable as part of this consenting process. The ongoing disruption to the farming business will be significant, as often work must be carried out quickly in response to flooding or similar events, or can only be undertaken when the conditions are right. We argue that the need for consent should only relate to matters that actually pose a genuine and plausible risk to the cable, seeking consent should not incur any costs for the landowner, the Easement should accurately state the information required for RWE to make a decision, and works should be allowable if RWE does not make a decision within a given timescale. • It seeks to make a landowner liable for costs dealing with any natural or manmade contamination that the applicant might find in the land, whereas on Rampion 1, the cable was laid through registered landfill sites and known areas of natural contamination without imposing any mitigating costs on the landowner. • Previous (verbal) conversations with RWE and their agents confirmed that residential and industrial development would be possible on the easement strip, provided that the easement strip is not to be occupied by buildings, but instead roads, footpaths, verges, gardens etc could be positioned on the strip. The easement documentation now prevents this. It is effectively impossible to develop any part of this land because clauses prevent the surface from being levelled or for drainage ditches, SUDS etc from being installed. The applicant should identify all potential land and lay the cable at a greater depth (or undertake other measures) so that the development of a field is compatible with the easement strip. i.e the surface may be levelled, and new drainage ditches can be dug across the easement strip. • The applicant acknowledges it will need to comply with BNG requirements, but it’s solution is to plant trees anywhere on the landowners estate. The ES states that RWE will look after the trees, however, the template easement agreements merely state that RWE can plant anywhere with no rights for continued management. BNG is a 30-year commitment and is it unclear which party will have the liability to comply with this. Landowners have not been offered the ability to claim compensation for land that may be taken for BNG. We argue that RWE should not be allowed to satisfy it’s BNG requirements by simply claiming ‘rights’ to plant trees outside of the easement strip. RWE should conduct itself in a proper and commercial manner without abusing it’s CPO powers. By comparison, Highways England seek to purchase land that is required for BNG and therefore a landowner losing land to BNG is compensated in the same manner and quantum to say a landowner losing land to an actual road. Just this week the Bairds agent has been invited to have a detailed conversation with Carter Jonas following receipt of the template Option and Easement Agreement. On behalf of the Bairds and other clients the agent has replied with the following generic comments and concerns; • The agreements are very restrictive. A farmer will never be able to improve a farm track, lay a water pipe, or install a land drain within the easement strip without first seeking RWE’s permission. Furthermore, when seeking permission from RWE, it’s not known whether they will demand documents and surveys from, charge a fee, or ask to cover their expense? • The wording suggests RWE will only compensate landowners for wrongful acts and where RWE break up the land. This must be amended because causing crop loss is not ‘wrongful’ and areas will be damaged that are not ‘broken’ or ‘opened up’ (eg accesses and compounds) • This cable should be so professionally laid, that RWE don’t need to be consulted on new water pipes and drains crossing the easement. • In circumstances where permission is needed, this should be a nil cost and without delay, otherwise the landowner should be allowed to continue with the works regardless. • They must allow levelling and the development of roads, pavements, ditches, verges, gardens, garages, garden fences etc to take place The Bairds remain willing to enter into fair and open negotiations with RWE. For the reasons stated above, the Bairds OBJECT in the strongest possible terms to the current proposals brought forward for consultation.