Response of Northumbrian Water to Objections Raised
9. Objections to the Order
9.1 There have been eight objections received to the Order (for ease of reference the Plots referred to in the Order in which the Objectors have an interest are set out below). Seven of the objections were submitted by George F White on behalf of the following people: The Craster Community Development Trust, Craster Parish Council and individuals with specific interests in the land involved.
In addition, Mr J Michael Doherty has objected to the Order in his capacity as a resident of Craster. Mr Doherty does not have a personal interest in any of the land affected by the Order but it is noted that Mr Doherty is the Secretary of the Craster Community Development Trust.
9.2 NWL consider that there are several elements to the objections raised:
9.2.1 The nature of the way in which the Compulsory Purchase procedure is being used to potentially deprive owners of their interest in land.
NWL's response to this is that they have sought to acquire by negotiation the necessary interests in the land or the necessary rights over it, but unfortunately it has not been possible to reach an agreement for all of the necessary interests or rights. NWL have therefore made the Order to secure the remaining interests that it has not been possible to acquire by negotiation and in order to deliver the scheme for the improvement of the wastewater treatment system in Craster/Dunstan which, as the Objectors note, is already overdue.
9.2.2 The Statement of Reasons states that it is the intention of the Acquiring Authority to offer back various plots upon completion of the CPO works. On this basis, it is unreasonable for the Acquiring Authority to use the CPO procedure to acquire the permanent freehold for temporary occupation.
NWL's response to this is that NWL can only compulsorily purchase an interest in or right over the land in accordance with its statutory powers in S155 of the Water Industry Act 1991. The Act gives NWL the power to take an interest in or right over land, but does not give it the ability to take an interest in or right over land for a temporary period. NWL has however on 16 December 2008 provided undertakings in the terms set out in paragraphs 6.3.12, 6.4.8 and 6.5.6 of this Statement of Case to each of the owners of the land that is to be utilised as a construction compound referring to its continuing willingness to enter into a licence by agreement in respect of these Plots or by indicating that, if it does acquire the freehold of the construction compound Plots, then it will offer the land back to the current owners (once the works are completed and the land has been restored to its current condition).
9.2.3 The environmental and physical impact on the locality both during and after the proposed works.
NWL consider that the improvements arising from the Craster and Dunstan scheme outweigh the temporary disruption during the construction of the works. Any disruption will be minimised and controlled (through the Environmental Impact Assessment and planning conditions) and land will be returned to its original condition where possible.
9.2.4 The extent and reasons for the permanent land take for Plots 13, 14 and 15 are in excess of that required for facilitating the storage of machinery and equipment.
NWL refer to its comments in paragraphs 9.2.1 and 9.2.2 with respect to Plot 13. In relation to Plots 14 and 15 NWL do not require these solely for the storage of machinery and equipment. As set out in the Statement of Reasons, Plots 14 and 15 are required as part of the new sewage treatment works and for the future maintenance of Craster Beck and for access thereto.
9.2.5 The use of CPO powers is disproportionate in respect of Plots 11 and 13 as they are only required for use as a storage compound. This will interfere with the use of Plot 11 as community land and the use of Plot 13 for agriculture.
NWL refer to the points made in paragraphs 9.2.1 and 9.2.2 in response to this basis of objection.
In addition the interference with any farming business to Plot 13 will be temporary and access for the farmer to the land to the west of Plot 13 will be maintained during the construction works.
9.2.6 The proposed scheme fails to evaluate Article 1 of the First Protocol of the European Convention on Human Rights.
NWL have had regard to the provisions of Article 1 of the First Protocol of the European Convention on Human Rights. NWL have considered the provisions of paragraph 17 of Circular 06/04. By virtue of the obligation upon NWL to attain necessary standards in the quality of sewage treatment to comply with the Urban Waste Water Treatment (England and Wales) Regulations 1994 and the necessity to ensure that NWL meets the requirements of the Environment Agency, NWL consider that there is indeed a compelling case in the public interest to make the Order and that the purposes for which the Order has been made sufficiently justify interfering with the human rights of those with an interest in the land affected. The Objectors have not advanced any alternative scheme for addressing the acknowledged need for the improvement works which would not involve the acquisition of some land from the Objectors.
9.2.7 NWL have failed to submit a detailed method statement relating to the proposed working and restoration of the Plots
Details of the proposed use of the compound areas is set out in Appendix 12 of the Statement of Case and illustrative drawings are included within that Appendix.
NWL have obtained planning permission for the Craster and Dunstan Scheme as set out in this Statement of Case and the following conditions on the grant of planning permission protect the proposed working and restoration of the land as deemed appropriate by the Waste Planning Authority:
Condition 18 stipulates:- "Prior to development commencing a method statement for protection of the coastal SSSI shall be submitted to and approved by the Waste Planning Authority. Work shall be undertaken in compliance with this method statement unless otherwise agreed by the County Planning Authority".
Condition 23 controls the construction programme to being in accordance with section 2.5 of the Environmental Impact Assessment.
Condition 11 stipulates - "The areas allocated for parking on the submitted plans shall be kept clear of obstruction and shall not be used other than for the parking of vehicles in connection with the development hereby permitted"
Condition 14 stipulates - "Provision must be made within the site for the storage of materials and the parking of all operatives and visitors vehicles in accordance with a scheme which must be submitted to and approved by the Local Planning Authority. Thereafter the storage and parking areas must be kept available for use and must be used forvisitor/operative parking and material storage for the duration of the works"
Condition 22 of the planning permission stipulates: "Notwithstanding the submitted details, prior to development commencing details of appropriate seed mix and planting to be used in the restoration of the pipeline routes and Dunstan STW shall be submitted to and agreed in writing by the Waste Planning Authority. All development and restoration works shall then be carried out and maintained in accordance with these approved details".
NWL have previously referred to the fact that it will return the land used for construction purposes to the condition it was in prior to the works being undertaken.
9.2.8 A cost benefit analysis has not been undertaken
NWL have referred in previous documentation and this Statement of Case to the basis upon which the Craster and Dunstan Scheme has been considered against alternatives. It is not a requirement of Circular 06/04 that a cost benefit analysis be undertaken. If NWL were seeking to implement a considerably cheaper Option then Option 4 would have been chosen as the capital costs of constructing that scheme is considerably cheaper than for Option 1 (the proposed scheme)[see Appendix 14 of this Statement of Case. NWL do not consider that a cost benefit analysis is therefore appropriate in these circumstances. The issue of costs has been considered by NWL (see paragraph 4.3 of this Statement of Case) but it has focussed more upon reducing the impacts of the scheme by considering it against a whole range of criteria and it does not consider that cost is the most important factor.
9.2.9 The proposed acquisition of Plots 10 and 11 fall under section 19 of the Acquisition of Land Act 1981. NWL have failed to offer other equally advantageous land to the community and therefore fail to comply with the statutory direction.
S19(1) of the Acquisition of Land Act 1981 ("the 1981 Act") states as follows:
"In so far as a compulsory purchase order authorises the purchase of any land forming part of a common, open space or fuel or field garden allotment, the order shall be subject to a special parliamentary procedure unless the Secretary of State is satisfied
(a) that there has been or will be given in exchange for such land, other land, not being less in area and being equally advantageous to the persons, if any, entitled to rights of common or other rights, and to the public, and that the land given in exchange has been or will be vested in the persons in whom the land purchased was vested, and subject to the like rights, trusts and incidents as attach to the land purchased, or
(aa) that the land is being purchased in order to secure its preservation or improve its management
(b) that the land does not exceed 250 square yards in extent or is required for the widening or drainage of an existing highway or partly for the widening and party for the drainage of such a highway and that the giving in exchange of other land is unnecessary, whether in the interests of the persons, if any, entitled to rights of common or other rights or in the interests of the public, and certifies accordingly
There is therefore no requirement under section 19 of the 1981 Act to offer equally advantageous land. NWL acknowledge that the Order will be subject to the special parliamentary procedure in respect of the open space land identified in the Order.
9.2.10 Plot 11 comprises part SSSI designation. The impact to the SSSI suffered by the proposed works is not justified and is not properly the subject of the site evaluation.
It is unclear that Plot 11 is actually within the SSSI. Notwithstanding this however NWL has obtained planning permission for the scheme and the reason for the approval stipulates that the "proposed development will not adversely impact on the internationally protected coastline, the AONB ........". English Nature and Natural England were consulted as part of the planning application and did not object. In addition NWL served a copy of the notice of the making of the Order upon Natural England who raised no objection to it.
9.2 NWL intend to deal with these unresolved objections in its evidence.
In conclusion NWL consider that there is a compelling case in the public interest for the Craster and Dunstan Scheme and that the Order ought to be confirmed.