Representation by Environment Agency (Environment Agency)
- Date submitted
- 17 May 2024
- Submitted by
- Other statutory consultees
The Planning Inspectorate [via Planning Inspectorate website] Our ref: XA/2024/100084/01 Your ref: EN010139 Date: 17 May 2024 Dear Sir/Madam PRE-EXAMINATION - BYERS GILL SOLAR DEVELOPMENT. INTERESTED PARTY REPRESENTATION. MULTIPLE LOCATIONS ACROSS DARLINGTON, STOCKTON, AND DURHAM. We are advised that on 9 March 2024 an application (reference: EN010139) for a Development Consent Order (DCO) was accepted by the Planning Inspectorate for Examination. These Relevant Representations contain an overview of the project issues which fall within our remit. They are given without prejudice to any future detailed representations that we may make throughout the examination process. We may also have further representations to make when supplementary information becomes available in relation to the project. We have reviewed the Environmental Statement (ES), draft DCO, and supporting documents submitted to the Planning Inspectorate as part of the above-mentioned application. Summary of Environment Agency (EA) position 1) The flood risk has not been appropriately assessed. Therefore, there is a risk that the proposed mitigation measures are not appropriate. 2) It is not possible at this time for us to support the applicant’s request for disapplication. We have concerns about the lack of information regarding the disapplication of Flood Risk Activity Permits (FRAP) under the Environmental Permitting Regulations (2016). We are currently reviewing our standard Protective Provisions and will discuss this issue further with the applicant. 3) The Water Framework Directive Assessment (WFD) lacks information and has been incorrectly screened/scoped. Specifically, the WFD Assessment does not assess the proposed drainage outfall into a main river or the Directional Drilling under a main river. 4) i) The Outline Construction Management Plan (oCEMP) does not include mitigation and/or management measures to protect otter and its habitat. Therefore, we request that Requirement 4 includes details of a biodiversity mitigation/ management plan. We request to be consulted when the detailed CEMP is submitted to the relevant Local Authority. ii) The oCEMP does not address the potential impacts of Directional Drilling specific to sites involving a watercourse crossing. Fish could be adversely affected by these activities. 5) We request that the EA are consulted on the Construction Surface Water Management Plan and the water quality monitoring requirements that are to be set out in the detailed CEMP. 6) The depth of the Directional Drilling has not been established. Directional Drilling could enhance surface water/groundwater interaction, with the potential implications of this required to be addressed. Appendix 1 – Environmental Statement Key Issues Appendix 2 – Draft DCO Key Issues Yours faithfully [Redacted] Planning Specialist Direct dial: [Redacted] Direct e-mail: [Redacted]@environment-agency.gov.uk ? Appendix 1 – Environmental Statement Key Issues Flood Risk Issue The assessment has not demonstrated that the Sequential Test has been passed. Therefore, it is unclear whether the process to locate development in lower flood risk areas has been carried out. Impact The opportunity to determine whether the development can be located in a lower flood risk area has been missed. Solution The Applicant must fully assess the flood risk over the development’s lifetime and use that information to demonstrate that the Sequential Test is passed. Comment Paragraph 5.8.10 of NPS EN-1 states that “it would only be appropriate to move onto the Exception Test when the Sequential Test has identified reasonably available, lower risk sites appropriate for the proposed development where, accounting for wider sustainable development objectives, application of relevant policies would provide a clear reason for refusing development in any alternative locations identified.” Please note the responsibility for the Sequential Test lies with the relevant local planning authority. Issue The Planning Practice Guidance (PPG) (Paragraph: 006 Reference ID: 7-006-20220825) recommends that a lifetime of 75 years should be considered for non-residential development when assessing flood risk. However, the Flood Risk Assessment (FRA) states the development’s design life is expected to be at least 40 years. Impact It is important to understand how flood risk might change over the lifetime of the development and appropriate mitigation is in place. Solution The development should include an assessment of flood risk over at least 75 years. This is in line with the PPG. Issue Fluvial flood risk has not been properly assessed. There remains a risk of increased flood risk on or off site. Impact It is unclear whether the scheme will result in an increase in flood risk elsewhere. In addition, there has been no assessment of higher central and upper climate change flood levels thus resilience of the site is unknown. Solution It is the Applicant’s responsibility to appropriately assess the flood risk associated with their proposed development. For a development of this scale with a vulnerability classification of ‘essential infrastructure’ we would expect any assessment of fluvial flood risk to be based on detailed flood modelling. Comment The FRA only uses the Flood Map for Planning and the Risk of Flooding from Surface Water (RoFWS) mapping to assess fluvial flood risk. The FRA mentions that solar PV Panels will be 800mm above ground level and comparisons against the Risk of Flooding from Surface Water Depths are undertaken showing that the panels in most cases would be above the 1% surface water flood depths. No assessment of higher central and upper climate change flood levels has been undertaken. It is important to note that the Flood Map for Planning is only intended as a planning tool to prompt where a more detailed assessment of flood risk may be required. The Flood Map for Planning does not account for future flood risk, taking climate change into consideration, and is also not detailed enough to cover any catchments smaller than 3km2 (regardless of whether there is an associated fluvial flood risk or not). The Flood Map for Planning identifies areas of the site as being within Flood Zone 2 and 3. The FRA also mentions that some of the solar PV modules will be located within the mapped flood zones so further assessment of this fluvial flood risk is required, particularly with respect to the impacts of climate change. The EA and the Lead Local Flood Authority may sometimes have detailed flood modelling available. However, where this is not the case, it is the Applicant’s responsibility to ensure that sufficient flood risk data is available to inform their assessment of flood risk, which may involve undertaking any detailed flood risk modelling themselves. The lack of existing detailed flood modelling is not indicative of a lack of fluvial flood risk, For more information please refer to Using modelling for flood risk assessments - GOV.UK (www.gov.uk). Until the risk is properly understood, the Sequential and Exception Tests cannot be applied and passed. The notes to Table 2 of the NPPF are also clear that in Flood Zone 3a, ‘essential infrastructure’ should be designed and constructed to remain operational and safe in times of flood, which means equipment necessary for its operational would need to remain dry. We would expect a 1 in 100 year, plus an allowance for climate change, including a 600mm freeboard to be used as the design flood level. The 600mm freeboard accounts for any uncertainty in modelled flood levels, as well as for the presence of any floating debris caught within flood flows, which could damage the solar panels. It is unclear whether any other above ground elements of the scheme could be at risk from fluvial flows. The assessment of future flood risk should incorporate a credible maximum scenario and should also be able to demonstrate how proposals can be adapted over their predicted lifetimes to remain resilient to the credible maximum climate change scenario, as required by NPS EN-1. Water Framework Directive Issue The development includes the installation of a drainage outfall into a main river and Directional Drilling under a main river. These activities have not been assessed as part of the WFD Assessment. Therefore, the WFD Assessment has been incorrectly screened/ scoped. Impact These activities could cause or contribute to deterioration of status or jeopardise the water body achieving good status as there is a risk to the following WFD receptors: • hydromorphology • biology – habitats • biology – fish • water quality • protected areas • invasive non-native species Solution The impacts of these activities on the above receptors need to be considered within the WFD Assessment. Biodiversity Issue The impacts on Otters have not been appropriately mitigated. The otter is a protected species/habitat under the Wildlife and Countryside Act (1981, as amended) and has been found to be present at the proposed development site. Impact The development may have a detrimental effect on protected otters and its habitat. Solution The oCEMP and detailed CEMP should contain mitigation and/or management measures to be implemented. This is to protect the otter and its habitat within the development site, and to avoid damaging the site’s nature conservation value. Comment We request the following mitigation measures are included in the oCEMP and detailed CEMP: • a pre-construction checking survey for otter to be completed in advance of any works within 50 m of any watercourse on the site. • An Otter Protection Plan (OPP) to be implemented during construction of the Proposed Development with full details outlined in the CEMP. The OPP should include the following for proposed water course crossings, modifications to existing watercourse crossings, and any other in channel works: i) detailed drawings (location and construction) ii) timing of works iii) methods and materials to be used. The OPP will be a live document subject to review and updating and will assist site personnel in the protection of species during construction, under the guidance of an ecological clerk of works. The Preliminary Ecological Appraisal Report states that “an otter survey should be undertaken in advance of construction to confirm that there are no shelters or couches that could be disturbed by the works”. This mitigation measure has not been brought forward into subsequent documents including the ES Chapter 6 Biodiversity: Appendix 2.14 Outline Landscape and Ecology Management Plan. Two new watercourse crossings are proposed, whilst other watercourse crossings may be modified as mentioned in paragraph 10.8.6, ES Chapter 10 Hydrology and Flood Risk [APP-033]. Otter are vulnerable to habitat fragmentation. Therefore, any newly constructed watercourse crossings, and any modification of existing watercourse crossings, should ensure that permeability of the watercourse to otter is maintained. Fisheries Issue Directional Drilling will be used to install cables that are required to go underneath watercourses within the 10m watercourse buffer zone. Impact The oCEMP has not addressed the potential impacts of Directional Drilling specific to sites involving a watercourse crossing. There is a risk of fish being adversely affected by these activities. Solution Further information is required including: • The distance from the watercourse that the drilling will take place. • The depth and width of the drilling. • Vibration and noise impact assessment on potential fish species residing in the watercourses. Comment The information being provided should be specific to each different site that involves a watercourse crossing. Separate from the above we advise that the angling organisations/fishery owners are consulted directly on the proposal and made aware if there is to be any impact on their respective fisheries. The Preliminary Ecological Appraisal Report, Figure 6.1.3 shows the distribution of ponds within the site area. These ponds are active fisheries known as: • The Carrs Angling Lakes, located just East of Carlton. • West House Trout Lakes, located South of Stillington. The Northern Lake overlaps with the buffer zone. • West Farm Lake, North of Bishopton. Surface Water Quality Comment The oCEMP states that a Construction Surface Water Management Plan (CSWMP) will be produced prior to construction and that appropriate water quality monitoring requirements will be agreed with relevant stakeholders and set out in the detailed CEMP. It’s common for these to end up as separate document - we would request that it is ensured the EA are consulted on the CSWMP and the water quality monitoring requirements. Groundwater Issue No details are given regarding the depth Directional Drilling will reach. Given the nature of these works, this is likely to be deeper than the proposed solar panel foundations. Impact Directional Drilling could enhance surface water/groundwater interaction, with the potential implications of this required to be addressed. Solution Further details are required as it is proposed to use Directional Drilling under surface water courses. We request the following details: • The depth of drilling. • The ground conditions/superficial geology where drilling is occurring. • The likelihood for groundwater to be intersected. Issue The pollution risks associated with Directional Drilling need to be managed. Impact Potential risk of leakages e.g., Bentonite would have an adverse effect on groundwater. Solution The oCEMP needs to be updated to ensure that the risks are fully addressed in any detailed CEMP. Comment We would expect to see an assessment of potential leakages as part of the oCEMP and further details of appropriate mitigation in the detailed CEMP (e.g. a Bentonite Breakout Plan). Appendix 2 – Draft Development Consent Order Key Issues Disapplication of Flood Risk Activity Permit (FRAP) At this time, we are unable to support the applicant’s request for the disapplication of a FRAP. Although draft Protective Provisions have been included within the Draft DCO, there is very limited information thus we cannot determine what is being proposed and the level of risk to the environment. We would require further information on: 1. The number of outfalls. 2. The diameter of the outfalls, if this is not yet known a range or maximum would be adequate. 3. Rough location of the outfalls e.g. which watercourse the outfall is located on. We also need the developer to consider and let us know if there are any other activities that would require a FRAP. Furthermore, the EA is currently reviewing its standard Protective Provisions. The EA will discuss this issue further with the applicant and update the Examining Authority in due course. Requirement 4 Construction Environmental Management Plan Requirement 4 of the Draft DCO prevents the applicant from commencing any phase of construction before the local planning authority has approved the CEMP for that phase. Impact The CEMP provides essential mitigation to prevent impacts from sedimentation and pollution from construction sites and protect water dependant species and habitats. We often encounter construction sites that have adversely affected the environment because their CEMP was either insufficient or was not adhered to. Solution We request to be consulted on the CEMP to be approved under Requirement 4 and ask that part 1 and 2 of this Requirement is re-worded and amended as follows: “(1) No phase of the authorised development may commence until a CEMP for that phase has been submitted to and approved by the relevant planning authority, in consultation with the Environment Agency. Any CEMP submitted for approval must be in accordance with the outline CEMP and any approved CEMP must be adhered to for the duration of the works in the phase of the authorised development to which the CEMP relates. (2) The CEMP for each phase of the authorised development must provide details of – (k) a construction and environmental management plan for biodiversity that must accord with the outline construction and environmental management plan for biodiversity.