Representation by Canal & River Trust (Canal & River Trust)
- Date submitted
- 12 July 2024
- Submitted by
- Members of the public/businesses
The Trust is the charity who look after and bring to life 2000 miles of canals & rivers. Its waterways contribute to the health and wellbeing of local communities and economies, creating attractive and connected places to live, work, volunteer and spend leisure time. The Trust is a charitable organisation and is the navigation authority for the River Trent within the red line boundary of the application. The Trust own parts of the river and river bank. The Trust has a duty under s105 Transport Act 1968 to maintain commercial waterways in a suitable condition for use and this applies to the relevant part of the River Trent. The Trust also has a duty under the Trust Agreement with the Secretary of State for Environment, Food and Rural Affairs (28 June 2012) (the “Trust Agreement”) to operate and manage the waterways for public use and enjoyment. The Trust’s charitable objects include, for the public benefit, the preservation, protection, operation and management of inland waterways for navigation and conservation, protection and improvement of the natural environment and landscape of inland waterways. The Trust also has environmental and recreational duties under s22 British Waterways Act 1995 when considering proposals relating to its functions. These include considerations of effects on flora and fauna and preserving access to towing paths for the public. The Trust is a statutory party for the purposes of s88(3) of the Planning Act 2009 as the application is likely to have an impact on the River Trent, or land adjacent to the river, which is an inland waterway in England. The Trust is a statutory undertaker for purposes of s127 of the 2008 Act. It is landowner of several parcels of land which would be affected by National Highway’s proposals. The proposals include the construction of two new viaduct structures, which will cross the River Trent parallel to existing crossings. The works also include the use of Trust land to form attenuation basin(s) (work no 67), south of the crossing at Nether Weir (north of Fiddlers Elbow Bridge), in addition to the use of Trust land to provide access to different parts of the scheme. With respect to the Relevant Representation, the Trust wish to make comments on the following parts of the scheme: Draft DCO – Part 7 Article 58 - Temporary suspension of navigation in connection with the authorised development The River Trent is a major river, providing passage for leisure and commercial craft. It is the primary waterway providing access between the Midlands and the River Witham (including Lincoln). No practical diversionary route exists for waterway users. Day time closures with limited notice of that closure could have a significant impact on the passage of vessels, impacting several different types of user, including local pleasure craft, hired holiday boats, commercial vessels and recreational paddle craft. Leisure and commercial vessel users do typically plan routes many months in advance, and appropriate notice is required to ensure that any closure does not inadvertently impact commercial movements on the network. Examples of users that could be affected include Kings Marina in Newark, Torksey Lock Moorings, and touring boats from Newark. Unplanned closures could impact these users and affect traffic and visits in Lincoln and other places downstream. It is essential that any works to install the new roadways are co-ordinated with the Trust in accordance with its established Code of Practice for Works Affecting the Canal & River Trust to allow it to appropriately manage vessel passage and maintenance activities on the river, in accordance with its responsibilities. The Trust engineers and National Highways are discussing the mechanisms to enable delivery of the scheme without the need to close the river at all or without the need to close the river during the day. These discussions are ongoing. We understand that arrangements including the use of night time operations (where closures would not impact day time boat movements), and/or the use of spotters/marshalls (not requiring closure of the river channel to boat movements) are feasible to allow for the works sought. If these arrangements are feasible, then the powers sought under Article 58 of the draft DCO (explained below) would not be needed in their full form, if at all. Article 58 of the draft DCO, as submitted, grants a broad power to National Highways to close the river during periods of construction and maintenance. We have a significant concern that could allow for works to interrupt river traffic or maintenance access with limited co-ordination with the Trust. The proposed powers sought in the DCO for the “temporary suspension of navigation in connection with the authorised development”, as worded, could prevent the Trust from carrying out its duties. No controls exist within the current wording of the draft DCO to allow for co-ordination between both parties over the timings of the works. The only stipulation being that 21 days’ notice is provided to the Trust that the closure is to take place, and that any closures do not exceed 12 hours and do not occur for more than 25 occasions. The draft wording could therefore allow for unscheduled closures of the River Trent during times when craft passage is necessary for use of the waterway and for maintenance. No Protective Provisions have been provided for the Trust within the draft DCO. We welcome National Highways’ commitment in the draft Explanatory Memorandum to providing protective provisions for the Trust. The Trust provided a set of acceptable Protective Provisions to National Highways before the submission of the application. Where the Trust’s Protective Provisions are referred to in this relevant representation, this refers to the set of Provisions provided by the Trust. The Trust’s Protective Provisions would secure the proposed works with potential to impact the river as a navigable waterway and/or impact the Trust as navigation authority to be carried out in accordance with the Trust’s Code of Practice for Third Party Works. The Code of Practice is designed to safeguard the Trust’s assets and to deal with the nuances of works affecting navigable waterways. In the event that Trust engineers and the National Highways project team agree that the delivery of the scheme will necessitate the closure of the river, then the Trust will work with National Highways to agree revised wording for Article 58 which is acceptable to the Trust, together with associated additional protective provisions referred to above. Temporary Bridge Crossing of the River Trent Paragraph 9.1.18 from the Scheme Design Report highlights that a temporary bridge crossing of the River Trent will be incorporated to allow for construction access (work number 63). We note that this is described as single span, and that it will be designed to ensure that the navigational rights along the River Trent are not impeded. We agree with this wording, and wish for this detail to be retained and secured in any final determination. The Trust would need to review full details of the proposed crossing to ensure that the final design will be appropriate to allow for safe boat passage below. This could be secured via the Trust’s Protective Provisions. Public Access to the River During and Post Construction The WCHAR report (Chapter 12, appendix C of the Environment Statement) identifies the presence of a footpath/trail next to the river Trent on the north west side north of Fiddlers Elbow Bridge (connecting with BW5 next to the bridge). This path provides local access to the riverside for leisure (notably to access fishing pegs) and essential access to the Nether Weir Hydro Electric Power Station. Due to the location of the proposed compound and proposed bridge construction associated with work nos 62 and 63 we understand that it is highly likely that this route will be impacted during the construction scheme. We assume this relates to the ‘footpath at end of BW5’ within table 12-12 within Chapter 12 of the Environmental Statement. We agree with the statement within the report that the path is used primarily for recreational purposes, and note that this corresponds with the higher level of use during the weekend period. Table 12-12 states that access on this path will be maintained throughout construction during the development. We do question, however, whether this would be the case as it conflicts with the statement in table 12-15, which identifies that access to the fishing pegs on the west bank of the Trent between Fiddlers Elbow Bridge and Nether Rail BR27 will be inaccessible for a 30 month period as a result of bridge deck construction works. We would therefore welcome further clarity from the National Highways upon this. Elsewhere, we note that BW2 and BW6, both bridleways proving access for leisure users to the River Trent, will be impacted by construction activities. We note that the use of a diversionary route and the use of marshals are proposed to manage access during the construction phase, which the Trust take no significant issue with. Safeguarding of the Cable from the Hydroelectric Power Station The access track to Nether Weir would be crossed by the new road. The Submitted Streets, Rights of Way and Access Plans identify that the existing track (identified as 4A on the plans) will be stopped up, and a new access track (between points P-4B and P-4C) will be created to provide access to the plant. Paragraph 2.6.129 from chapter 2 of the Environmental Statement states that a temporary access to the hydroelectric station will be provided to maintain access. We wish to highlight that an existing cable exists connecting the Hydroelectric Power Station at Nether Weir to Newark, which travels below the access track between the site and Fiddlers Elbow bridge, continuing under the path to Kings Marina. Works to divert the path and to install a new road viaduct could impact this connection. The promotor should ensure that they undertake the relevant prior investigations to ensure that this cable route is appropriately protected and diverted if necessary. The Trust need to fully assess our agreements with the hydro electric plant operator for the cable on our land, and will provide additional comment should we identify any issues that need to be addressed. Impact on Fishing Rights Chapter 12 from the Environment Statement confirms that access to fishing pegs on the River Trent will be restricted during the construction phase of the development. Notably, table 12-15 identifies that fishing pegs on the west bank of the River Trent, between Fiddlers Elbow Bridge and Nether Rail BR27 will be inaccessible for a 30 month period as a result of bridge deck construction works. We also note that the installation of a temporary bridge crossing at Nether Lock will temporarily disrupt access on the eastern bank, between Fiddlers Elbow Bridge BR25 and Nether Rail BR27 for a period of ten weeks. The promotor should ensure that they have liaised fully with Fishing Clubs and organisations who utilise these pegs. The Trust need to fully assess our agreements with the Fishing Clubs, and will provide additional comment should we identify any issues that need to be addressed. Measures to Protect the River Trent from Pollution During the Construction Phase of the Development 9.11.9 from the Environmental Statement identifies that potential effects during construction on the River Trent include risks of surface water runoff to become entrained with sediment and resulting in pollution of the river. Mitigation against these risks are discussed in the First Iteration Environmental Management Plan (EMP) (TR010065/APP/6.5). We consider the measures within references GS3 and GS5 within table 2-1 of the document to be pertinent. These identify measures including the use of cut off ditches to collect runoff, the use of drip trays and precautions over the storage of fuels and refuelling of plant and equipment. These measures are considered appropriate. We note that the document confirms that more detail will be provided within the Second Iteration EMP. Any necessary environmental mitigation specific to the Trust’s assets not already covered in the Second Iteration EMP would be covered by the Trust’s Protective Provisions. Measures to Protect Fiddlers Elbow Bridge during the Construction Phase Fiddlers Elbow Footbridge is a grade II* listed asset, and lies within the red line boundary of the project proposals. Appendix 6.3 of the Environment Statement ‘Assessment of Cultural Heritage Effects During Construction of the Scheme’ (TR010065/APP/6.3) identifies that Fiddlers Elbow Bridge (described in the document as ‘Concrete Footbridge across River Trent’ reference MM038) has the potential to be damaged from the works due to potential vibration issues from the presence of construction compounds and the temporary gantry bridge and associated machinery. Mitigation against this risk identified in the First Iteration Management Plan, where reference CH2 states that structural monitoring will be required before, during and after construction. The document states that the contractor will be responsible for ensuring that a monitoring plan is prepared as part of the Phase 3 AMP (Archaeological Management Plan). The Trust would wish to review this monitoring plan to ensure that our bridge is appropriately protected. This could be secured within the Trust’s Protective Provisions. Surface Water Drainage Proposals The submitted Drainage Strategy Report (6.3, Appendix 13.4) identifies that the proposals seek to discharge water to the River Trent, utilising three existing outfalls to the river (labelled as 01, 09 and 09a.) The Trust only has records of outfall 09a being present. We cannot identify from the document whether all of the discharge points are in use, and whether the peak velocity or discharge rate from them would change compared to the existing situation. High rates of discharge flow or velocity could have the potential to impact negatively on the safe passage of craft on the river. We understand that the intention is for full drainage details to be developed as part of the detailed design of the scheme. Within the submitted draft DCO, schedule 2 13 (1) requires the submission to, and the approval by, the Secretary of State of full written drainage details prior to commencement. To enable the Trust to assess whether the discharge could impact navigational safety, we would need to understand existing and proposed peak flows and peak velocities from the outfalls affected. The Trust would wish to review these details during the examination to ensure that the principle of the discharges sought are acceptable. Impact on Archaeological Assets Within our pre-application correspondence with National Highways, including our feedback on the PEIR, the Trust have highlighted that archaeological remnants associated with past use of Nether Weir may be present on site and could be impacted by the new road and any construction compounds associated with the construction works proposed. We therefore suggested that the desk based assessment proposed in the PEIR should consider for the presence of assets in this area. The submitted Archaeological Management Plan (TR010065/APP/6.8), which seeks to outline the archaeological potential for archaeological remains within the Order Limits, does not fully explore the potential for Archaeological Assets within the area close to the proposed River Trent Crossing in proximity Nether Weir. This area is not discussed in the Management Plan. We note that, within TR010065 - 6.3 Environmental Statement - Appendix 6.3, table 1-2 identifies that photographic evidence of the construction of the original A46, as well as recent work on the weir itself shown on Google earth imagery demonstrates heavy disturbance in the area of Nether Weir. The document states that it is assumed that potential archaeological remains associated with the original Weir will have been removed or truncated alongside this disturbance. The examining authority may wish to ensure that they are fully satisfied that this statement provides appropriate justification for this area not being considered in the Management Plan. Currently, no mitigation for any impact on assets in this area, should they be present, is identified. Should it be considered that there is potential for assets to be present here, an evaluation or watching brief may be appropriate for works in this area to avoid any irretrievable loss to assets associated with the historic use of the river corridor. Comments on the Book of Reference and Land Ownership The Trust have reviewed the Book of Reference and the Land Plots identified as being of interest to the Trust. The Trust is identified as ‘occupier’ of both plots 7/1a and 7/3a. The Trust do not, however, occupy this land (it relates to land parcels alongside a section of the River Trent upon which the Trust have no direct responsibilities). The Book of Reference may therefore need to be amended to account for this to avoid confusion. We are also identified as landowner and/or occupier of other plots within the Book of Reference. These statements, to our knowledge, are correct. The Trust is continuing to review its land interest in the context of the Book of Reference and the Land Plots, and in the event any further discrepancies are identifies the Trust will notify National Highways and the Examining Authority at the earliest opportunity. Proposed compulsory acquisition of the Trust’s property Compulsory purchase is intended as a last resort to secure the assembly of all the land needed for the implementation of projects and should only be made where there is a compelling case in the public interest. We understand that the confirming authority will expect the acquiring authority to demonstrate that they have taken reasonable steps to acquire all of the land and rights included in the Order by agreement as opposed to Compulsory purchase. The Trust is willing to engage with National Highways to enter into an agreement in respect of the rights which it requires to deliver the Project. As such National Highways cannot currently demonstrate that compulsory purchase powers are being sought as a matter of last resort and their approach is in conflict with the Planning Act 2008 Guidance related to the Compulsory Acquisition of Land (DCLG September 2013). Discussions with National Highways on this matter commenced in September 2022. The Trust has emphasised the need to ensure the negotiations are commenced at as early stage as possible. As of 21st May 2024, National Highways have promised to introduce the Trust’s lead negotiator to the District Valuer. We are still awaiting this, and have chased the promoter on this issue by email on 20th June 2024.