Representation by D P Nott & Sons (D P Nott & Sons)
- Date submitted
- 17 July 2023
- Submitted by
- Members of the public/businesses
REPRESENTATION IN RESPECT OF THE BRAMFORD TO TWINSTEAD PROJECT SUBMITTED BY BROWN & CO PROPERTY CONSULTANTS AS AGENTS FOR AND ON BEHALF OF MR G V S NOTT OF MAGNOLIA HOUSE, PEBMARSH, HALSTEAD, ESSEX, CO9 2PB INTRODUCTION Mr G V S Nott is the owner and occupier (trading as D P Nott & Sons) of land at Pebmarsh, Halstead, Essex. The farm extends in total to approximately 130.228 hectares of arable land. Mr Nott is identified within the Book of Reference as PIL (Person with an Interest in Land) No. 702. National Grid are proposing to acquire a permanent right of access (defined as Class 4 – Compulsory Acquisition of Rights – Access) across Mr Nott’s land, identified as Land Parcel Nos.; 29-01, 29-02, 29-03, 29-04 and 29.05 (in common with others). The stated purpose of the right to be acquired is to provide access, during the construction period, to the Stour Valley West CSE Compound and provision, in the long term, for access to the site should National Grid have a need to undertake substantial repair or re-building works to the infrastructure in the future. From discussions with representatives from National Grid and their agents, Messrs Bruton Knowles, it is understood that during the construction period, a temporary haul road will be constructed across Mr Nott’s land, which will subsequently be reinstated but, upon three months’ Notice, could then be reinstalled if required. When the Project was initially proposed in 2013, an alternative access to the Stour Valley West CSE Compound was at that time proposed, which would have had a minimal effect upon Mr Nott’s land holding. In the Autumn of 2022, the route shown within the plans accompanying the DCO application was proposed. It should be noted that there had at that point been no prior consultation with Mr Nott, despite the impact to his land. At the time, the proposal was that the route would only be used on a temporary basis during the construction phase of the Project. On 19th October 2022, Mr Nott and his Family submitted a detailed response to the proposed route for the access as part of the Consultation Process associated with the Project, highlighting their concerns and suggesting alternative routes and variations thereon. On 8th March 2023, National Grid, via their agents’, issued draft Heads of Terms proposing the requirements as now detailed in the DCO application, including the acquisition of permanent rights. On 29th March 2023, Brown & Co on behalf of Mr Nott submitted a formal response to the Consultation Notice issued by WSP on behalf of the Project, highlighting their clients’ concerns and proposing alternative routes across his land or via the road network. A copy of the text of the email and the accompanying plans showing the proposed alternative routes are attached as Appendix 1. Between 8th March 2023 and the submission of the DCO application, Brown & Co, acting on behalf of Mr Nott, have been engaged with the agents for National Grid in seeking to; • clarify the rationale for the proposed route; • review potential alternative routes to minimise the anticipated disruption to Mr Notts’ farming activities; • highlight the concerns of Mr Nott as to the likely impact of the route for the access on the existing land and mole drainage in the fields affected by the work; • agree terms for a Non-Intrusive Licence Agreement (now completed); and • agree Heads of Terms reflecting National Grids’ requirements (not yet agreed). Mr Nott and his Family support the proposed development of the Bramford to Twinstead Project in broad principle but have a number of concerns which they wish the Planning Inspector to address. HEADS OF TERMS FOR THE OPTION AGREEMENT AND DEED OF EASEMENT To date, the draft Heads of Terms circulated and the accompanying Deed of Grant (for a proposed permanent right of way), have been based upon standard documentation utilised by National Grid for the acquisition of rights to lay cables beneath land with associated access rights thereto. Whilst changes to the Heads of Terms have been proposed and some agreed, to date National Grid have not been prepared to provide an updated draft of the proposed Deed of Easement in respect of the proposed right of way to which reference within the Heads of terms is made. The rights sought and proposed restrictions contained within the Heads of Terms and the associated Deed of Easement remain unclear, both in terms as to their extent and effect. The extent of the easement width has not yet been confirmed, nor a clear basis for its’ determination. Further clarity has been sought from National Grid and their agent but, at the date of this representation Mr Nott requests that the Planning Inspector seeks clarity from National Grid as to exactly what they require on both a temporary and permanent basis and require them to provide site specific draft documentation for review, together with accompanying plans. RATIONALE FOR THE ROUTE PROPOSED Since March 2023, Mr Nott has sought clarification from National Grid, via their agents’, as to the rationale for the route proposed. At the date of this representation, whilst we have been advised that this will be forthcoming in the form of a composite report, nothing has been received. On 10th July 2023, a meeting was convened on site with representatives from the National Grid, their agents and a Highways Consultant from Jacobs. Mr Nott and his Family outlined their concerns regarding the proposed route and again confirmed to National Grid; • that they would be happy to permit passing bays to be constructed on their land, either side of the road, between Oak Road and Cripple Corner to enable the Public Highway to be utilised; • that they accepted that National Grid would be unable to utilise Lorkins Lane and therefore access to the east of this road over their land would be required; National Grid explained that the route identified within the DCO application was based upon the advice received from their Highways Consultants, taking into account the anticipated movements required for a range of vehicles associated with the Project, and that it was upon this that they had consulted the Local Highways Authority and others. It was agreed that National Grid would review the conclusion to the access options set out in the Environmental Statement: Main Report Chapter 3 – Alternatives Considered (6.2.3), covering the Temporary Access Route vs Local Road Network, specifically reviewing TAR Option 2a vs TAR Option 3. It is requested that the Planning Inspector examine the rationale for the route chosen over the other options available to National Grid. REQUIREMENT FOR A PERMANENT RIGHT OF WAY At the outset of discussions in Autumn 2022, National Grid sought only a temporary right of way over Mr Nott’s land to facilitate construction and delivery of the required infrastructure. Given; • the existence and capacity of the local road network; • the anticipated duration before access is likely to be required again (25 years); and • the impact of the proposed easement on any future plans for development or diversification of the farm; Mr Nott requests that the Planning Inspector consider whether it is both reasonable and necessary for National Grid to acquire a permanent right of way across his land holding, effectively bisecting the farm in two and whether, if required, such rights of access should be solely limited to a temporary right to facilitate construction and delivery of the Project. BASIS OF ACQUISITION OF RIGHTS The rights to be acquired are defined within the Book of Reference as ‘Class 4’. It is unclear from both the plans attached to the DCO application and from the wording contained within the Book of Reference as to exactly ‘what’ area the proposed easement for the right of way will cover. Discussions with the agents’ for National Grid have not, as yet, provided a confirmation of their requirements nor a definition as to what the proposed easement will encapsulate; i.e. is it solely the haul road itself, or does it include for the provision of the land on which to store the stripped topsoil? The wording of the proposed restrictions within Class 4 are not representative of the requirements of the Project across Mr Nott’s land, in particular those contained within Sub-Paragraphs (c), (d) and (e), which only bear relevance where cables have been installed beneath the ground or pylons placed over it. Mr Nott requests that the Planning Inspector consider whether the definition of the rights and restrictions contained within Class 4 are appropriate to the requirements of the Project over his land and whether an alternative ‘Class’ be defined. REMEDIATION OF LAND DRAINAGE As part of the ongoing discussions with National Grid regarding the proposed route for the required access over his land, Mr Nott provided copies of his land drainage plans to the Project. The land through which the route for the access proposes to pass has been extensively drained over the last 70 years, with further mole drainage undertaken on a regular basis. The route for the access passes through what had until it was filled in and drained, been a former pond on the crest of the field. There is substantial drainage within this area, which Mr Nott and his contract farmer, Robert Gardiner, are concerned will be significantly impacted by the proposed works to form the haul road. Within the documentation submitted in support of the DCO and in negotiations direct with Mr Nott, National Grid have made reference to their standard approach to land drainage and remediation thereof associated with the installation of cabling. As part of our negotiations with the agents’ acting on behalf of National Grid, we have sought to expand on their standardised wording to be reflective of the anticipated requirements for the installation of both pre-construction and post-construction remedial land and mole drainage in the fields affected by the Project. Mr Nott requests that the Planning Inspector give consideration to reviewing National Grid’s standardised form of wording pertaining to the remediation of land drainage, to include provision for the cost of the appointment of specialist land drainage consultants to act and advise on the impact of the Project on affected land. Drainage consultants with relevant practical experience and experience of working in Suffolk / Essex need to be engaged by National Grid to carry out a pre and post construction assessments of the impact that the construction of the infrastructure associated with the Project, will have or has had on drainage and, prior to undertaking any proposed drainage schemes, will consult with landowners and occupiers and their appointed drainage consultant on the design of any land drainage works required in connection with the construction works and on the design of any land drainage works required for the subsequent restoration of drainage on the landowners’ / occupiers land. SOIL MANANGEMENT The treatment and reinstatement of soil during and after Project has been completed is one of the main issues of concern. Mr Nott has asked that the Planning Inspector consider imposing the following requirements, as a minimum; • prior to the commencement of work, detailed testing should be undertaken to establish existing soil nutrient values and soil profiles over both the working areas and adjacent land which will be sterilised from production; • detail of soil handling, storage, management and reinstatement, should be agreed in advance with the landowners and occupiers; and • details of post completion soils testing and aftercare management, should be agreed with the landowners and occupiers; It is noted from discussions with representatives from National Grid on 10th July 2023, that the final design for the proposed access to be constructed across Mr Notts’ land, will be left for the appointed contractor to design and implement, but that it is likely that the soil will be stripped to a depth of 300 to 350mm. Given that the preliminary designs and provision within the plans attached to the DCO application are for solely a single stack of soil, Mr Nott wishes the Planning Inspector to consider whether National Grid have provided sufficient storage provision to the suitable separation of the top and sub soils? SITE SECURITY Notwithstanding Mr Notts’ aforementioned comments in relation to the proposed access route, as part of the ongoing negotiations with National Grid and their agents’ for the proposed haul road, the question of site security has been raised, as the proposed route effectively creates a ‘surfaced’ right of way through the centre of the farm. Mr Nott is already aware from ‘passing comments’ that locals see the creation of the haul road as an access that can be used for joy riding (of motorcycles), as a potential access for hare coursers and potentially to facilitate access to third parties to the residual farmland. Mr Nott requests that, should approval to the haul road as shown on the plans attached to the DCO application, the Planning Inspector give consideration to reviewing National Grid’s proposed security arrangements and setting down minimum standards, including; • the requirement to fence the haul road, • to create secure gates / bollards across the entrance onto the land over the Public Highway, • provision of manned guards at each end of the haul road, when in use to ensure no unauthorised access is taken; and • provision of additional security measures outside of working hours. PRIVATE AND AGRICULTURAL ACCESS PROVISON Notwithstanding Mr Notts’ general comments in relation to the proposed access route; i.e. that it be diverted for the most part around the Public road network, as part of the ongoing negotiations with National Grid and their agents’, the question of private and agricultural access provision over the proposed haul road has been discussed. To date, Mr Nott has been advised that this is something that can only be discussed in detail once the contractors for the Project have been appointed and that any retained access will need to comply with their Health and Safety requirements. This point is, of course, understood, but Mr Nott requests that, should approval to the haul road as shown on the plans attached to the DCO application, the Planning Inspector give consideration to imposing a requirement on National Grid to ensure that ‘reasonable’ private and agricultural access is maintained for Landowners in general to their residual land holdings to enable them to continue to farm their land and for sporting and amenity purposes. WORKING HOURS Document 7.5: Construction Environmental Management Plan, Paragraph 2.3 states that the core working hours will be, ‘between 0700 and 1900 Monday to Friday and between 0800 and 1700 on Saturdays, Sundays and Bank Holidays, unless otherwise approved by the relevant planning authority. Mr Nott asks the Planning Inspector to consider whether, given the duration of the Project over a four-year period, it is reasonable for the works to be progressed 24/7, 365 days of the year, resulting in continuous traffic movements over both the proposed access across his property and the surrounding road networks. Mr Nott requests that the Planning Inspector consider that no works, unless for the reasons stated in Sub-Paragraph (2) are undertaken on Bank Holidays. CONSTRUCTION MITIGATION MEASURES Mr Nott asks that as a minimum, more detailed consideration of physical mitigation measures that could be undertaken during the construction period to minimise disturbance to local residents are considered, including the strategic banking of topsoil to form an acoustic bund on the ‘western’ side of the proposed access across his land. REQUEST TO ATTEND HEARINGS AND REPRESENTATIONS The landowner and / or agent requests to make oral representations at the Public Inquiry or any other Hearings that may be held. ? APPENDIX 1 COPY OF RESPONSE TO CONSULTATION NOTICE DATED 23.02.2023 Dear Sirs I write on behalf of our client, Mr G V Nott, in connection with the Consultation Notice dated 23rd February 2023, issued in connection with the Bramford to Twinstead Reinforcement scheme. Although the Notice makes it clear that any comments submitted in response to previous consultations, do not need to be re-submitted, my client has asked me to highlight that, despite repeated requests, as at the date of this consultation response, he has not been provided with any substantive explanation by National Grid as to why there is a need for the proposed temporary haul road to be constructed across his property, rather than the contractors utilising the existing road network. During both the Consultation undertaken in the Autumn of 2022 and in subsequent discussions with National Grid’s agents over the intervening period, our client and his family continue to feel that; • their general concerns and comments regarding the proposals are not being listened to or acknowledged; • their specific concerns about the impact of the haul road on; (a) the existing land and mole drainage in the fields affected and (b) their physical ability to farm the land with it installed where proposed are either not understood or have been ‘dismissed’; • the substantial ecological damage that will result from the construction of the haul road, versus using existing road network, has not been properly considered. Our client has spent a lifetime caring for and improving the soils and general ecology of the farm. • their willingness to engage and assist with using local roads and providing potential passing places and the corners of fields, where needed, to obviate the need to bisect their fields has not been acknowledged; • their reasonable request to utilise the latest versions of ‘agreed’ forms of Licence Agreement have, until recently, been turned down by National Grid’s agents’. As advised to Bruton Knowles, when National Grid come to make their formal application for the Development Consent Order, they will be required to provide evidence to the Inspector at the Public Inquiry of their engagement with landowners and that they acted reasonably in their negotiations therewith. Coupled to that, they will also need to demonstrate that they have not contravened our clients’ Human Rights. Article 1 of the First Protocol (A1P1) to the European Convention on Human Rights states that: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by the law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deemed necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties." Whilst my client accepts that A1P1 is a qualified right, in that no one shall be deprived of his possessions "except in the public interest and subject to the conditions provided for by law’, the point is that he is neither wanting to be difficult or obstreperous, but simply wants to understand in the first instance the rationale and justification for the conclusions reached by National Grid as, for example, my client would be happy to accommodate passing places on his land if required or to consider cutting field corners, if that saved the majority of the field from being affected by the proposed works. Although not mentioned within the Notice, our client has recently been advised by Bruton Knowles that, rather than the proposed access across his land being required on a temporary basis, the proposal to now be sought is for a ‘permanent’ easement allowing National Grid to reinstate the temporary haul road, whenever required, in perpetuity. Notwithstanding the compensation issues that will be dealt with under the provisions of the Compensation Code, the ‘permeance’ of the haul road provision also has a practical impact on the management and cultivation of the fields affected. We reject the assertion that National Grid should be permitted to acquire a permanent right over the land when our client has not been provided with any justification for National Grids’ rejection of the alternative routes proposed and circulated in October 2022. Notwithstanding any evidence National Grid may provide for the absence of any alternatives ‘at this moment in time’, my client contends that this may be time limited and any future use should not be ‘inevitable’, but rather assessed at that future date; i.e. the haul road ‘if’ required to be constructed across our clients’ land should only be on a temporary basis and not as a permanent easement. The fields through which it is proposed that the haul road be constructed, have been both under drained, using a mixture of clay and, more recently, plastic pipes and mole drained. The mole drainage is renewed on a regular basis (every 10 years) to ensure good water percolation through the clay soils, thereby avoiding waterlogging and associated reductions in yields. Whilst the route for the haul road will, if only required on a temporary basis during the initial construction period, still significantly impact on the drainage system in the fields and result in areas of the fields being unable to be cropped due to the size of modern farm machinery, the fact that there is now to be a permanent easement means that additional consideration as to the long term impact of the proposed route should be taken into account. Having liaised with our client and is farm manager, I attach two plans. The first assumes that National Grid could utilise, in part, the existing road network to obviate the route across most of my clients property; i.e. it is only where the contractors traffic is required to turn down Lorkins Lane, that a temporary haul road would be required. The second plan shows a revised access route across the whole of my clients land, in the event that National Grid can justify that none of the existing road network can be utilised. The revised route seeks to minimise the long term impact on the drainage systems in the fields affected; i.e. as and when National Grid need to come back in the future, and to reduce the impact on the physical cropping and cultivation of the fields affected by avoiding cutting through the centre of the fields and, where possible, following the field boundaries. If National Grid ultimately do provide justification to the Public Inquiry into the Development Consent Order of the requirement to cross my clients’ property, as opposed to utilising the existing road network, then they request that consideration to the re-location of the proposed haul road, as shown on the attached plans be given. Yours faithfully Simon Gilbey