Representation by James Miller (Kelham) Ltd
- Date submitted
- 12 July 2024
- Submitted by
- Members of the public/businesses
Comments submitted by Lucie Muddiman (Savills (UK) Ltd) on behalf of James Miller (Kelham) Ltd owned by John Miller to: “Register to have your say about a national infrastructure project due by 14 July 2024” Land Parcels 1/1r, 1/5l, 1/5m, 1/5n, 1/5o, 1/5p, 1/19a, 1/19b, 2/1a, 2/2a and 2/5b 1.0 Preamble 1.1 Skanska and Mott Mac first approached my client John Miller in late 2022 to discuss inclusion of my client’s land within the A46 flood compensation Red Line Boundary Area. Since then there have been regular meetings (often weekly meetings for the first part of 2023), in partnership with Adrian Hatton at Kelham who is also subject to land affected by the Flood Compensation Area (FCA), to agree a solution with National Highways for flood compensation as well as discussions for the ongoing management of this area. Having reviewed the documents submitted for the DCO Examination our main points of concern are listed below and covered individually in more detail further in this text: 1.1.1 Choice of Flood Compensation Area – my client will lose almost 10% of his farm 1.1.2 Biodiversity Net Gain ‘BNG’ – Use of terminology and impact of lost BNG on my client 1.1.3 Flood Compensation Area and removal of minerals 1.1.4 Legally document a right of access to severed land 1.1.5 Pre and Post construction drainage plans to be provided 2.0 Choice of Flood Compensation Area (FCA) (2/1a, 2/5b, 1/19a and 19/b) 2.1 Within Document APP 047 – 6.1 Environmental Statement Chapter 3 Assessment of Alternatives, there is reference to other sites having been considered. 3.3.96 of this document states that in choosing the site, one of the considerations was existing land usage. This land is productive Grade 3 agricultural land amounting to 110.69 acres in total, loosing this farmland along with Parcel 3/15a (5.32 acres) - which my client occupies under an Agricultural Holdings Act 1986 tenancy – constitutes a significant proportion of his 1600 acres (666ha) holding, the loss of this acreage will significantly impact the profitability of his commercial operation. 3.0 Future ownership and ongoing Management 2/1a, 2/5b, 1/19a and 1/19b - Environmental Mitigation and Biodiversity Net Gain (BNG). 3.1 Land Plans Regulation 5(2)(i) Sheet 2 of 7 shows Parcels 2/1a, 2/5b, 19/1a and 1/19b in Pink - land to be permanently acquired. The Statement of Reasons references ongoing discussions with the interest (my client) to agree a permanent / temporary ownership / hand back with rights / covenants to maintain environmental mitigation associated with Flood Compensation measures. 3.2 App 052 - A46 Newark Bypass_6.1 Chapter 8 Biodiversity (8.3.8) states that it is unlikely that BNG requirements as set out in The Environment Act 2021 will be in force prior to determination of this Act, however our discussions with the Project Team have always been that this scheme would be a test pilot, also there is continued reference throughout the DCO documents to BNG. 3.3 APP – 177 6.3 Environmental Statement - Appendix 13.2 Flood Risk Assessment states in s 3.3.18 (Farndon West FCA) and 3.3.19 (Farndon East FCA) that the maintenance of these FCA’s and all of its features will be ensured by the Applicant for the operational life of the Scheme. 3.4 3.1, 3.2 and 3.3 above show a lack of consistency for what is proposed in terms of ongoing ownership / management of the land and despite early engagement by my client with discussions between him (and his Biodiversity Net Gain (BNG) advisor), National Highways and their contractors Scanska and Mott Mac, the form of this agreement is still unknown. 3.5 My client has shown a willingness to retain ownership and manage this land through a commercial BNG agreement, however with a lack of clarity over what is involved discussions ceased some time ago leaving my client in an uncertain position. 3.6 If the Scheme continues to make reference to BNG and that it is striding towards hitting future requirements for BNG and outwardly promoting itself by using the term ‘BNG’ in its examination documents, then a payment that reflects what would be paid for a BNG scheme needs to be included in any compensation payment to my client for land that is used for BNG. 3.7 If the land is to be permanently acquired by the acquiring authority for BNG / Environmental Mitigation the Market Value my client receives for this land should reflect the BNG income forgone. My Client has included land adjoining Parcel 1/19a in Newark and Sherwood District Council (NSDC) BNG: Call for Sites. 4.0 Excavated Minerals for the Purpose of Creating a FCA (Parcels: 1/19a, 1/19b, 2/1a and 2/5b) 4.1 My client worked with National Highways, Skanska and Mott Mac to resolve National Highway’s FCA requirement and identified a section of their own land in the western section of 1/19a which would be suitable; the whole of 1/19a (Farndon West FCA) and 1/19b (Farndon East FCA) is to be acquired for FCA. We had been advised (in our weekly meetings) by John McGinty of Skanska that the minerals here are not suitable for construction purposes. 4.2 App – 052 6.1 Environmental Statement - Chapter 8 Biodiversity (8.10.44) To contribute towards compensation for the loss of non-priority habitats, a wetland area will be created 10 metres from the River Trent, which will comprise residual ponds formed in post-borrow pit excavations at Farndon West FCA. A total of approximately 97,450 square metres of reedbeds will be created as part of this wetland area. This will also contribute to achieving the Scheme’s BNG objective. 4.3 In APP – 57 A46 Newark Bypass_6.1 Chapter 13 Road Drainage and Water Environment where it discusses the Flood Compensation Areas it states at 13.11.33 Farndon West FCA would be less than 1.4 metres deep. However, ground lowering for wetlands and ponds within Farndon West FCA may be up to 3 metres below ground level. 4.4 In App – 046 A46 Newark Bypass_6.1 Chapter 2 The Scheme Embedded mitigation measures for resource efficiency it states 2.5.136 Floodplain compensation is required to mitigate the loss of existing floodplain along the western side of the Scheme. This requires existing land to be lowered through the excavation of material which would ordinarily be sent to landfill. This has been mitigated by identifying some areas of land that can be used as a borrow pit to provide the structural fill to the widened embankments thus reducing the need to send material to landfill and import material from other locations. 4.5 The minerals are owned by my client, sand and gravel extracted from my client’s land to form ponds or FCA should be paid for through a commercial agreement. This principal has already been established thorough Heads of Terms under negotiation for land at Kelham FCA. 5.0 Ongoing access to retained land NT342330 (Parcels: 1/19a, 1/19b, 2/1a, 2/5b, 1/5l, 1/5m, 1/5n, 1/5o and 1/5p ) 5.1 Access to remainder of land at NT342330 north of Farndon West FCA needs legally documenting through 1/19a and 19/b if Parcel 1/19a and 1/19b are permanently acquired. The access needs to be adequate for existing and future advances in farm machinery and connect the retained land with the public highway; STREETS, RIGHTS OF WAY AND ACCESS PLANS REGULATION 5(2)(k) SHEET 2 shows the improved access falling short of the retained land. 5.2 The access onto the A46 from the access shown brown in GENERAL ARRANGEMENT PLANS REGULATION 5(2)(o) SHEET 2 OF 7 and green in STREETS, RIGHTS OF WAY AND ACCESS PLANS REGULATION 5(2)(k) SHEET 2 from and to my client’s retained land at NT342330 and NT389694 (including Parcels 1/5l, 1/5m, 1/5n, 1/5p and 1/5o) requires designing so it is safe for farm vehicles to access the A46 dual carriage way with a safe visibility splay. It also needs to be secure to prevent trespass, fly-tipping and anti-social behaviour with suitable and suitably placed gates; both of which need to be designed in conjunction with John Miller. 6.0 Severed land parcels: 1/5l, 1/5m, 1/5n, 1/5o and 1/5p forming part of Title NT389694 and the remainder of NT389694 Profit a Prendre 6.1 Parcels 1/5l, 1/5p form the River Trent, Parcels 1/5m, 1/5n and 1/5o forms the road which overflies the section of River Trent my client owns. If 1/19a and 1/19b are permanently acquired parcels 1/5l, 1/5m, 1/5n, 1/5p and 1/5o will be severed from my client’s land, the proposed access in green in STREETS, RIGHTS OF WAY AND ACCESS PLANS REGULATION 5(2)(k) SHEET 2 does not reach these parcels. If parcels 1/19a and 1/19b are permanently acquired, Parcels 1/5l, 1/5m, 1/5n, 1/5p and 1/5o and the remainder of this Title NT389694 will be detached from the retained land and we require a right of access to them for all purposes legally documenting. The access also needs to be secure to prevent trespass, fly-tipping and anti-social behaviour with suitable and suitably placed gates; both of which need to be designed in conjunction with John Miller. 7.0 Pre and post construction land drainage plans 7.1 As part of the second iteration of design we require full disclosure and approval of the Land Drainage plans and assurance that my client’s retained land (land to the north of NT342330) will not be impacted in the long term by increased flooding of 1/19a and 1/19b. 8.0 Control of Mink (Parcels: Parcels: 1/19a, 1/19b, 2/1a, 2/5b, 1/5l, 1/5m, 1/5n, 1/5o and 1/5p) 8.1 Whilst referenced in App-157 A46 Newark Bypass_6.3 Appendix 8.12 Water Vole Technical Report, we want to further reiterate the need for mink control in areas where habitat creation will enhance water vole population. 9.0 Recommendations 9.1 Compensation paid to my client to reflect commercial impact of losing almost 10% of his holding. 9.2 Commercial terms to be agreed for use of my clients land for BNG 9.3 Commercial terms to be agreed for minerals extracted from FCA and creation of ponds 9.4 A right of access to be agreed in partnership with my client to their severed land. 9.5 Pre and post construction drainage plans to be provided to my client and reviewed by their drainage consultant prior to implementation of any scheme.