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Representation by Thames Water Utilities Limited (Thames Water Utilities Limited)

Date submitted
14 June 2024
Submitted by
Members of the public/businesses
  1. INTRODUCTION 1.1 These representations are made on behalf of Thames Water Utilities Limited (“TWUL”) in respect of the application for development consent (“Application”) submitted for the Cory Decarbonisation Project (“the Proposed Scheme”) by Cory Environmental Holdings Limited (“Cory”) under section 37 of the Planning Act 2008 (“the 2008 Act”). 1.2 TWUL is appointed under Chapter 1 of Part II of the Water Industry Act 1991 (“WIA”) as water and sewerage undertaker for the Thames region, which includes the area comprising the Proposed Scheme, and is therefore a statutory undertaker for the purposes of the 2008 Act. 1.3 TWUL owns land, sewers and other apparatus within the Order limits of the Proposed Scheme, including Crossness Nature Reserve (“CNR”) which would be subject to compulsory acquisition powers as proposed by the draft Development Consent Order (“dDCO”). TWUL also owns and operates the Crossness Sewage Treatment Works (“STW”) which is in close proximity to the Order limits. 2. SUMMARY OF TWUL’S POSITION 2.1 TWUL has undertaken a summary review of the documentation and plans submitted with the Application to date and intends to carry out a more detailed review in due course due to the large scale of submitted material. TWUL sought to engage with Cory at the pre-application stage and submitted a number of initial concerns to Cory on 27 November 2023. However, despite receiving a response from Cory’s agents, Ardent, on 5 January 2024, insufficient information was made available prior to submission of the Application (despite numerous requests being made) to address the concerns to TWUL’s satisfaction. 2.2 Now that the Application has been submitted and reviewed, TWUL continues to have concerns and this response should be regarded as TWUL’s holding objection to the Proposed Scheme. TWUL therefore wishes to invite Cory to engage substantively on the following main issues as part of the DCO examination process, to assess whether or not the objection is capable of being resolved in part or in full: 2.2.1 Impacts on and loss of the CNR; 2.2.2 Site selection; 2.2.3 Compliance with existing section 106 obligations; 2.2.4 The proposed compulsory acquisition of TWUL land; 2.2.5 TWUL’s secondary/emergency access to and egress from the STW from Norman Road; and 2.2.6 Impact on TWUL’s network and apparatus. 2.3 Each of the above issues is considered in further detail below. However, it should be noted that TWUL reserves the right to make further representations as part of the examination process and as engagement with Cory progresses. 3. THE CROSSNESS NATURE RESERVE 3.1 The CNR is one of the last remaining areas of grazing marsh land within the Greater London area and is an important part of the Erith Marshes Site of Metropolitan Importance for Nature Conservation (“SINC”), into which TWUL has invested considerable time, money and resources over the past 25 years towards its management, maintenance and enhancement. 3.2 Over time, the CNR has become both an invaluable wildlife site and an important community asset, with ever increasing numbers of members joining the ‘Friends of Crossness Nature Reserve’ (“FoCNR”) group. It houses a variety of habitats, including the largest reedbeds in the London Borough of Bexley, ponds and ditches and areas of scrub and grassland and is an important site for water voles and other protected species such as breeding barn owls and reptiles. 3.3 With so much of the Proposed Scheme proposed to be carried out on or within close proximity of the CNR, the proposed expanse and height of buildings/infrastructure during the operational phase will create significant visual impacts, directly and indirectly eroding the openness of the marshland landscape, as is evident from Appendix 10-4 of the Application’s Environmental Statement (‘Photomontages’) (Examination Library reference APP-104). 3.4 The part of the Proposed Development along the eastern boundary of the CNR will include large industrial components, such as 2no. 116 metre absorber columns, 16no. 20 metre diameter cylinders and multiple other components that appear to range between 15 and 50 metres in height. Whilst visitors to the CNR will arrive with the expectation that they are visiting an urban nature reserve, the Proposed Scheme will create a perception of an industrial estate. TWUL fears that this will eventually lead to reduced visitor numbers, drive away members of the FoCNR group and result in fewer volunteers engaging with and wanting to help with the CNR’s upkeep and maintenance. 3.5 The effects on visual amenity are considered by TWUL to be large adverse (significant) in isolation. However, the cumulative impacts of the Proposed Scheme and those resulting from the recently consented Riverside Energy Park project will, fear TWUL, all but extinguish the remaining attraction of the CNR. 3.6 In addition to loss of visual amenity, TWUL understands that the Proposed Scheme will result in the loss of approximately 2.5 hectares (10%) of the CNR towards its eastern boundary with Norman Road. Additionally, a further 1.7% of the CNR land will be effectively lost due to the footprint of elevated flue gas pipework. TWUL considers that this loss will have significant adverse impacts on the habitats and species that will be directly displaced by the Proposed Scheme along the eastern boundary, and will also result in irreversible harm to the remainder, including the most wildlife rich part of the CNR, known as ‘West Paddock’. 3.7 |Cory appear to acknowledge that even with mitigation measures, the air quality impact of the Proposed Development will be significant (up to moderate adverse) during the operational phase. With the additional emissions anticipated from the construction phase also, the Proposed Scheme could lead to the degradation of aquatic habitats through nutrient enrichment and pollution, resulting in adverse impacts on freshwater fish and aquatic macroinvertebrates, including those with ‘nationally rare’ and ‘nationally scarce’ status. In turn, this also has the potential to negatively impact species higher in the food chain, including breeding birds and foraging bats. 3.8 Further, TWUL is concerned as to the potential for contaminated run-off, particularly during the construction phase. This could result in degradation of habitats and wetlands in terrestrial parts of the TWUL’s retained land, and would affect foraging resources used by wintering birds. This degradation of ditch habitat would have negative impacts on water quality leading to die-off and further degradation of habitats supporting these species. Macroinvertebrates, water voles and freshwater fish would all be impacted through changes to water quality. 3.9 It is also apparent that the additional lighting required for the Proposed Scheme, particularly during construction, would lead to disturbance of bats foraging and commuting in areas of adjacent habitat during the active season (April to October) and potentially other nocturnal species such as the breeding barn owl (a ‘Schedule 1’ species for the purposes of the Wildlife & Countryside Act 1981). Whilst TWUL note the ‘Outline Lighting Strategy’ submitted with the Application, the Proposed Scheme will nevertheless result in additional skyglow, worsened by the proximity to the Riverside Energy Park (which itself causes substantial skyglow, despite having its own lighting strategy). 3.10 Following a review of the Applicant’s shading study (Appendix 7-11 to the Environmental Statement, Examination Library reference APP-098), TWUL has been unable to locate an interpretation of the results of the study, save where referenced in the Terrestrial Biodiversity Chapter of the Environmental Statement (Examination Library reference APP-056). Although it is stated that “with mitigation, the assessment concludes there will be no residual effects as a result of shading during construction or operation of the Proposed Scheme”, we would expect to see a proper assessment of the results of the study. Without this, it remains a concern that the long-term effects from shading to bats, breeding birds, reptiles, terrestrial invertebrates, water voles, freshwater fish, aquatic macroinvertebrates, and macrophytes, through degradation of habitat, will be significant. 3.11 Finally, despite the Terrestrial Biodiversity Chapter finding that the impacts of noise and vibration will be negligible (not significant) (seemingly due to the existing baseline of relatively high levels of background noise from the Riverside Energy Park), TWUL consider that, during the construction period at least, a significant level of noise and vibration is likely to occur. This will likely result in a detrimental effect on breeding bird and other species, as a result of disturbance to nesting and foraging areas. 3.12 As the above demonstrates, TWUL has significant concerns as to the amenity and environmental impact the Proposed Scheme will have on the CNR. At this stage it is not considered that the Application demonstrates satisfactory mitigation on either issue for two main reasons: 3.12.1 the methodologies used to established the baseline data for a number of ecological/environmental surveys (from which assessments were made as to effects and mitigation) are not considered by TWUL to be sufficiently robust; and 3.12.2 the proposed solution for the loss of the CNR land – an ‘extended nature reserve’ on land owned by Peabody Estates – Norman Road Field – is not considered by TWUL to amount to appropriate replacement. This is detailed further below. 3.13 With regards methodologies, for example, the methodology for the bat survey (Appendix 7-4 of the Environmental Statement, Examination Library reference APP-091) involved placing only one automated detector on the CNR, with the remaining two being positioned on the Norman Road Field to the east. This is very close to the existing Riverside Energy Park development and there is therefore a risk that the baseline data for bat activity is not a true representation of that which takes place on the CNR. In TWUL’s opinion a detector positioned further west, on one or more darker corridors of the CNR, would have provided better comparison data of bat activity due to less disturbance and light pollution. 3.14 A further example is with the methodology used for the shading study. Reptile surveys were only carried out on the eastern edge of the CNR’s East Paddock, where it adjoins Norman Road and is therefore subject to considerable disturbance, in the last two weeks of September 2023, which TWUL considers is inadequate for a nationally significant infrastructure project. The remainder of the survey was undertaken on Peadbody’s Norman Road Field. TWUL believes that surveys should have taken place throughout the entire season (March to October), with a refugia density of 10 per hectare in the East Paddock. Surveys should also have taken place elsewhere on the CNR, not least in the West Paddock which provides suitable habitat and will be shaded out by the Proposed Scheme. As a consequence, TWUL consider that the data used to assess the effects on reptiles is unreliable. 3.15 With regards the proposed strategy for the loss of the CNR land, this is based on enhancements to 8 hectares of existing habitat on the Norman Road Field, to the east of the CNR. It is understood by TWUL that this land is already mitigation for other Peabody/Tilfen developments in accordance with the section 106 agreement associated with planning permission reference 02/03373/OUTEA, which relates to property know as East Thamesmead Industrial Estate Extension and therefore represents a future baseline. As such, enhancements to this land would be double counting and is not considered by TWUL to adequately mitigate the direct loss of designated nature reserve and the habitats thereon. 3.16 Ultimately, whilst Cory has sought to demonstrate mitigation of the above effects, TWUL’s position is that the effects appear to have been understated and, where mitigation is proposed, it is not sufficient. As such, TWUL considers that the effects of the Proposed Scheme on amenity and the environment need to be reassessed using more robust methodologies for data collection and analysis. 4. SITE SELECTION 4.1 The issues set out above could be substantively avoided if the Proposed Scheme was to be located on a site more appropriate for industrial use rather than the proposed existing Metropolitan Open Land (“MOL”) and CNR. 4.2 As already noted, the CNR is part of the Erith Marshes SINC but it is also designated as MOL. As per Policy G3 of the London Plan 2021, MOL is afforded the same status and level of protection as Green Belt land, and the same NPPF policies that apply to Green Belt apply to MOL. This is acknowledged by Cory in its ‘Potential Main Issues for the Examination’ document (Application document 5.8, Examination Library reference APP-048). 4.3 As such, National Policy Statement (“NPS”) EN-1 (in accordance with which the Application must be determined in accordance with section 104 of the 2008 Act) requires that substantial weight is to be given to any harm to the CNR and that very special circumstances should apply if the Application is to be consented. 4.4 Cory’s Planning Statement (Application document 5.2, Examination Library reference APP-040) seeks to set out that very special circumstances do apply, on the basis that (inter alia) the Proposed Scheme will result in a net negative quantity of CO2 emissions when operational. However, the majority of these savings appear to relate to the CO2 emissions produced by the Riverside Energy Park scheme. TWUL therefore considers that the very special circumstances case is exaggerated and, in any event, does not outweigh the substantial weight that must be attributed to the direct loss of a significant part of the CNR and indirect effects on the remainder. 4.5 It is TWUL’s position that no sound justification is evident in the Application documents as to the choice of site for the Proposed Scheme. The Applicant’s Terrestrial Sites Alternatives Report (Application document 7.5, Examination Library reference APP-125) (“TARP”) states that nine individual parcels were initially considered. Of the five options taken forward for consideration, all result in loss of part of the CNR and MOL. 4.6 Further, of the six ‘Optioneering Principles’ set out by the Applicant in section 2.8.2 of the TARP, only two are met by the preferred option: Principle 5 (ease of required connections with the Riverside Campus and Proposed Jetty) and Principle 6 (seek to minimise engineering complexity and consequent cost); the remaining Principles 1 to 4 (regarding impacts to biodiversity sites, protected species, existing businesses and the MOL) are not met (in full, at least). It appears that substantial weight has been given to the cost that would be involved in removing or relocating the larger businesses in the area (Iron Mountain and Lidl). 4.7 In TWUL’s view, the other development zones were dismissed without proper justification. For example, both the North and East Zones were said to ‘perform poorly’ against the Optioneering Principles and were dismissed at an early stage, notwithstanding that the South Zone performs similarly poorly – arguably more so, given the impact on the CNR and the MOL. Cory cites the need to “utilise land located within close proximity to Riverside 1 and Riverside 2, to facilitate the routing of the flue gas from the respective flue gas stacks to the carbon capture facility”. However, no adequate justification is given or assessment undertaken as to why the carbon capture facility could not be located further away (e.g. on vacant industrial land), utilising longer pipes. 4.8 Overall, TWUL’s summary assessment of the TARP is that the site was ultimately chosen because it involves the least cost, contrary to the mitigation hierarchy, which is required to be demonstrably applied by NPS EN-1. TWUL therefore requests a more detailed site selection methodology be provided, with a further site selection process being undertaken in order to more robustly demonstrate whether or not there are any suitable alternative sites which do not include the CNR or MOL. 5. SECTION 106 OBLIGATIONS 5.1 At present, TWUL is obliged to maintain and enhance the CNR pursuant to a section 106 agreement dated 21 July 1994 (“the 1994 Agreement”). It is understood that the dDCO would abrogate the relevant provisions of the 1994 Agreement entirely following completion of Work No.7 (as defined in the dDCO), meaning that TWUL would no longer be required to maintain and enhance any part of the CNR (but comments would be welcomed if this is not the correct interpretation of the dDCO). 5.2 It is not clear to TWUL at this stage as to whether the local planning authority (which has the benefit of the obligations in the 1994 Agreement) objects to this approach. It is further unclear as to the extent to which construction of the Proposed Scheme prior to Work No.7 being completed (and the abrogation taking effect) would impede TWUL’s ability to comply with its obligations under the 1994 Agreement. 5.3 A third potential issue arises whereby no part of the 1994 Agreement is abrogated but the part of the CNR which is within the Order limits is acquired (compulsorily or otherwise) by Cory, resulting in two parties being bound by the 1994 Agreement to maintain and enhance the CNR. If this situation were to arise, it appears that TWUL and Cory would have to work together to ensure a coherent and cost effective approach to maintaining and enhancing the CNR, which may have additional cost or resource implications for TWUL and could result in disputes arising between the parties. 5.4 Cory has not discussed the issue of amending the 1994 Agreement in any detail with TWUL and therefore TWUL must reserve its position until such time as it is assured that the Proposed Scheme will not adversely affect TWUL’s ability to comply with the 1994 Agreement, nor put TWUL in a worse position than it is at present. 6. ACQUISITION OF TWUL LAND 6.1 TWUL’s initial calculations indicate that Cory is seeking permanent acquisition of or temporary rights over a significant amount of land owned by TWUL. Despite this, no meaningful attempts have been made by Cory to date to acquire the land by agreement. 6.2 It was initially suggested by Cory that a tripartite agreement with the owner of other land within the Order limits (Peabody Estates) could be made. However, this was dismissed by TWUL partly on the basis that a tripartite management arrangement was suggested in relation to the entirety of the subject land, which concerned TWUL on the basis that it may impose obligations to maintain land it does not currently own e.g. Norman Road Field. 6.3 Draft heads of terms were subsequently proposed by Ardent in November 2023 for a bilateral agreement between TWUL and Cory, but specific details are awaited. A meeting has been arranged for July 2024 to discuss the matter further and TWUL expects Cory/Ardent to propose more detailed terms, including details as to compensation, if any land deal is to progress. As detailed in Government guidance on compulsory purchase, such powers should be a matter of last resort and those seeking to acquire land should be able to demonstrate that they have taken reasonable steps to acquire all of the land and rights included in the Order by agreement. TWUL does not consider this to be the case to date. 6.4 Further, TWUL is also concerned (in the event the Proposed Scheme were to be consented on the current site) that Cory is not seeking to acquire the part of the TWUL land over which the flue gas pipes are to be constructed. Rather, Cory is seeking rights in the form of an easement in respect of the pipes themselves and a corridor either side for access, security and maintenance. It is TWUL’s position that Cory should also permanently acquire this land as, not only would the pipes effectively render the land itself unusable, regular access with vehicles and equipment across the CNR would potentially further disrupt wildlife and may also lead to dispute between TWUL and Cory as to responsibility for maintenance and protection. TWUL considers it would be much ‘cleaner’ to dispose of this land to Cory and will seek to discuss the matter further when the above mentioned meeting takes place. 7. CROSSNESS STW SECONDARY/EMERGENCY ACCESS 7.1 Cory has failed to engage with TWUL to date with regards how the Proposed Scheme will affect the TWUL access road crossing the CNR between the STW and Norman Road. Such secondary access is essential for Health & Safety and to comply with the Control Of Major Accident Hazards Regulations 2015 (“COMAH Regulations"). 7.2 Crossness STW is designated as a ‘Lower Tier’ COMAH site due to the storage of biogas, which is potentially explosive and fuel oil which is potentially flammable and dangerous to the environment. As such, TWUL has a legal requirement to retain the access as an escape route and for emergency services in the event of a major incident. Under regulation 7 of the COMAH Regulations, every operator of an establishment (including TWUL and the STW) must prepare and retain a written major accident prevention policy (“MAPP”) for the establishment. The MAPP must be implemented by a safety management system in accordance with Schedule 2 of the COMAH Regulations, which involves (inter alia) the preparation of quantitative risk assessments and emergency procedures. In relation to the STW, the alternative access via the CNR on to Norman Road was established as the most appropriate route for the emergency services and escape route in the event of a major incident. 7.3 It is noted that the current dDCO contains protective provisions to the effect that Cory must agree a diversion with Thames before stopping up the access road or extinguishing rights over it, TWUL understand that the proposal is to divert the access to the south, via Lagoon Field. However, TWUL does not believe that Cory has engaged with the COMAH Regulations in terms of the preparation of an alternative access. As set out above, a route cannot simply be diverted; the diversion must be properly assessed and agreed as safe with a number of bodies, including emergency services and the HSE. 7.4 In addition, the Great Breach Dyke East runs along the southern boundary of Lagoon Field, the banks of which are an important area for wintering wildfowl. Even if a diversion via Lagoon Field is proposed and would comply with the requirements of the COMAH Regulations, the land loss and disturbance by people and vehicles through Lagoon Field that would occur would negatively impact wintering birds and potentially breeding birds, such as pochard (a ‘Birds of Conservation Concern Red List’ species) and water vole that breed on Great Breach Lagoon. Any diversion may also result in further loss of the CNR. 7.5 TWUL would therefore welcome engagement from Cory on this issue as soon as possible, in order to clarify its proposals and allow TWUL to assess whether there are more suitable alternatives and whether any alternative would be capable of complying with the COMAH Regulations. Without this further clarity, TWUL cannot be confident that the Proposed Scheme’s impact on the STW secondary access will not have a detrimental effect on its undertaking. It should also be noted that TWUL would require its costs to be met in full by Cory for any diversion, including those incurred due to engaging the COMAH Regulations process. 8. IMPACT ON TWUL’S NETWORK AND APPARATUS 8.1 The following assets are known to be within or in close proximity to the Order limits: 8.1.1 a 150mm steel clean water distribution main in Norman Road; 8.1.2 a 180mm MDPE clean water distribution main running along the east side of the red line boundary; 8.1.3 a 355mm barrier pipe clean water distribution main in Norman Road; 8.1.4 several gravity wastewater sewers in Norman Road at its junction with the A2016; and 8.1.5 twin 450mm GRP rising mains and a 245mm cast iron foul water rising main at the southern boundary of the CNR. 8.2 Although the plans submitted as part of the Application have been reviewed by TWUL, it is unclear whether the Proposed Scheme will impact existing TWUL assets. It is therefore requested that the TWUL standard protective provisions are included within the DCO to ensure any TWUL assets are suitably protected. These are available on request. 8.3 Further, any work completed within a 5m (or 15m if impact piling) face-to-face distance of any TWUL asset will need to have an impact assessment completed and may require diversion. To complete this, Cory needs to provide detailed drawings of any piling, foundation or other construction works being completed, including clearance to TWUL assets. 8.4 In relation to water demand for the Proposed Development, discussions have taken place between WSP (Cory’s consultant) and TWUL. Cory has reduced their initial request by approximately 50% and TWUL have now modelled 50 l/s demand in a way that ensures this does not erode any existing headroom or headroom created by reinforcements already planned/proposed. 9. CONCLUSION 9.1 We trust the above sets out TWUL’s concerns with the Proposed Scheme at present in sufficient detail, and look forward to working with Cory to seek a satisfactory resolution to each, where possible.