From: AINSLEY DougalTo: NavitusBayCc: WALKER Angus; "Paul Hanson"Subject: Navitus Bay - Meyrick Estate Management Limited - EN010024Attachments: Navitus Bay - Written Representation - Meyrick.DOC

Navitus Bay - Summary of Written Representation - Meyrick Estate.DOCNavitus Bay - Responses to Questions 12.1 and 12.2 - Meyrick Estate.DOCMeyrick Estate - Responses to ExA_s questions relating to landscape, seascape and heritage issues.DOC

Dear sir / madam We are acting for Meyrick Estate Management Limited in relation to the Navitus Bay Wind Parkproject. Please find attached the following documents, hereby submitted on behalf of MEM in advance ofDeadline II: - Written Representation- Summary of Written Representation- Responses to ExA's question 12.1 and 12.2- Responses to ExA's questions relating to landscape, seascape and heritage issues Yours sincerely

Dougal Ainsley SolicitorT +44 (0)20 7783 3787M+44 (0)7792 292975W www.bdb-law.co.uk For and on behalf of Bircham Dyson Bell LLP50 Broadway London SW1H 0BL

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EN010024: Navitus Bay Wind Park

Written Representation

Meyrick Estate Management Ltd

Introduction

1.1 Meyrick Estate Management Ltd (“MEM”) submitted a relevant representation objecting to the Navitus Bay Wind Park (“the project”) on the following grounds:

· The project will damage Bournemouth

· The project will have a detrimental effect on the value of the property of the Meyrick Estate

· The developer’s process for evaluating the project and its effects has been flawed

· The project does not provide for local community participation in its benefits

This written representation reasserts the objections raised in that relevant representation and raises further objections as follows.

Onshore cables in areas of particular sensitivity should be laid by a process of tunnelling or directional drilling rather than by cutting as is currently proposed

1.2 Hinton Admiral house and park: Navitus Bay Development Ltd (NBDL) intends to run its cables through the park at Hinton Admiral which is part of the Meyrick Estate. The house and parts of the park at Hinton Admiral are listed with the English Heritage, the house as a grade 1 listed building and specific parts of the gardens as grade 2, under listing numbers 1095030, 1095031 and 1156269.

1.3 There are similar listings with Hampshire County Council on their record of archaeological and historic buildings (numbers 11027, 51562, 11028 and 11029) although in this case the extent of the listing is wider and encompasses the whole of the park. Within the park in the area where the cable run is proposed are both ornamental and mature indigenous woodland.

1.4 There is the potential for significant adverse effects on the ecology and visual amenity of this valuable site as a result of the cabling operations proposed by the promoter. If the project is authorised, it will be essential for the applicant to tunnel its cables in this location in order to minimise any adverse effects and under no circumstances should the promoter be permitted to carve a 60 metre wide swathe at ground level in order to lay its cables.

1.5 What is surprising is that the developer has either failed to recognise these designations or got them wrong:

· By Table 13.8 of the Onshore Cultural Heritage Report it is clear that the developer has not recognised that Hinton Park is a registered park;

· Figure 13.7 of the Onshore Cultural Heritage Report fails to recognise that Hinton Admiral is a Grade 1 listed house

1.6 Furthermore, there is no consideration of impact of the development on the setting of Grade 1 listed Hinton Admiral.

1.7 The promoter has also proposed to lay cable through two areas of woodland, at Allensworth and through the Neacroft Bog. Both locations are within the New Forest National Park and in both of these locations the promoter should be compelled to tunnel the cables in order to minimise ecological, landscape and/or visual impacts on these valuable natural sites. We are aware that the developer does not believe there will be an unacceptable impact on the New Forest as a whole, but the Meyrick Estate is of the view that the local impact in this corner of the New Forest National Park will be severe unless mitigated by trenchless cabling.

1.8 Neacroft Bog: there is a pond at Neacroft Bog in the path of the cable route whose existence the developer appears not to have recognised – see the map at Appendix 1. The Panel will be aware of the concern raised about another pond on the route of the cable in the National Park.

1.9 Allensworth Wood: this is a mature mixed forest on the route of the cable which lies within the Bransgore Woods and Pastures Landscape Character Area whose sensitivity has been assessed to be high. The Panel will be aware that the developer intends the route of the cable to be permanently bald. The Panel’s attention is drawn to the developer’s change of stance in relation to the New Forest between the production of PEI3 and the Environmental Statement:

· At paragraph 29.251 of Chapter 29 of PEI3 under NCA 131: New Forest, it was stated by the developer: “However, the removal of woodland would be limited to very small areas and not alter the fabric and pattern of the NCA as a whole, as construction works would be limited to a 40m wide working area and would be further reduced within woodland areas.”

· At the equivalent paragraph of the ES (12.5.70), the wording underlined has been deleted. We would like the deleted wording to be reinstated and to be reflected in the DCO.

1.10 A requirement should be added to part 3 of schedule 1 of the DCO that the cables at these locations be laid be means of tunnelling or directional drilling.

The open space land at Taddiford would be less advantageous to its owners if the promoter imposed rights on it

1.11 This representation is made by MEM on behalf of the owners of the freehold reversion of the beach open space land at Taddiford, numbered 1 and 2 of the book of reference and the land plan. The owners of this land are the trustees of the Meyrick 1970 Settlement (‘the Meyrick 1970 trustees’).

1.12 NBDL is seeking the power to acquire new rights in this land to allow for the installation, inspection and maintenance of cables. NBDL is aware that this is open space land has produced a section 132 Statement (application document 4.4) setting out its position in relation to whether an order authorising acquisition of this land should be subject to Special Parliamentary Procedure (“SPP”).

1.13 MEM submits that NBDL is right to conclude that this is open space land and indeed should do so with more confidence that it does in document 4.4. Despite advisory signs at the cliff top discouraging access, public access to this area is not actively limited. The public can and does use this space for recreation, including, for example, the Chairman of MEM and his young family.

1.14 NBDL seek to rely on section 132(3) of the Planning Act 2003, i.e. NBDL claims that this order should not be subject to SPP on the grounds that the land will be no less advantageous to parties including the person in whom the land is vested once burdened with the order rights. NBDL has correspondingly included provision to this effect in the draft DCO (article 43, special category land).

1.15 MEM objects to this in the strongest possible terms. This land, when burdened by the Order right, will be considerably less advantageous to the persons in whom it is vested, i.e. the Meyrick 1970 Trustees. The laying of cables would be incompatible with many other potential uses of the land, making the land less valuable to its owner or a potential buyer who may wish to develop it in a way that will be impossible once the rights have been imposed.

1.16 MEM is also sceptical of NBDL’s claim that throughout the period of construction and operation, there will be no loss of advantage. Clearly open space that is subject to periodic disruption due to inspection and maintenance operations is less advantageous than one that is not.

1.17 For the reasons set out above, MEM submits that article 43 should be removed from the draft DCO and, if made, the order should be subject to SPP.

NBDL should not withhold relevant documents

1.18 Meyrick Estate notes that the New Forest District Council (NFDC) requested of NBDL the production of the Seascape, Landscape Visual Zone Characterisation Study that had been conducted by the LDA Design in 2010 (see page 14 of document 6.1.2.13). NBDL did not produce this as it was produced during a ‘non-statutory early feasibility stage’. MEM considers NFDC’s request to be entirely reasonable and fails to see the relevance of whether the study was commissioned as part of a process required by statute. MEM submits that requests that, for reasons of transparency, NBDL should publish this study. Whether the study contains information that enhances or diminishes the case for granting consent for this scheme, it is in the public interest that it be made available.

The promoter is seeking an unjustifiably broad power to impose restrictive covenants

1.19 MEM notes the uncertainty of the legal position on whether powers to impose restrictive covenants can be included in DCOs, as expressed in paragraphs 9.7.20 to 9.7.28 of the statement of reasons (document 4.1). MEM submits that if there is uncertainty, the DCO should not contain such powers.

1.20 Furthermore, MEM submits that even if such a power could be included in DCOs, the promoter is seeking very broad powers that are not appropriate given the strongly detrimental effect the imposition of restrictive covenants can have on landowners.

1.21 Under article 26(1) of the draft DCO, NBDL would have the power to impose restrictive covenants over any part of the Order land. This is a sweeping power which is not justified. If NBDL needs to impose restrictive covenants over any part of the order land that power should be limited to plots identified in the order, rather than applying to the order land generally.

1.22 In document 4.1 at paragraph 7.9.20, NBDL states that it is seeking to acquire restrictive covenants only in those plots listed in schedule 7. However, article 26 as drafted does not provide for this and schedule 7 is titled “land in which only new rights etc. may be acquired”. As drafted, the DCO would allow NBDL to impose restrictive covenants on any part of the Order land, while schedule 7 (if given effect properly by an article) would merely prevent NBDL from acquiring those plots listed in it (as opposed to acquiring rights in them or imposing restrictive covenants on them, which would not be restricted).

1.23 As justification for the seeking broad powers to impose restrictive covenants, NBDL admits that they are not strictly necessary, stating that without them it would be more costly to install its cables (paragraph 9.2.27 of document 4.1). This claim is not self-evident as there would be costs implied by the imposition of the covenants, and yet it is not backed up by evidence. In any event, MEM does not see why landowners should be forced to accept restrictive covenants so that NDBL can save engineering costs. The fairer solution would be for restrictive covenants to protect those sections of the route where NBDL could agree restrictive covenants with landowners and for NBDL elsewhere to employ the engineering solutions it deems necessary in the absence of restrictive covenants.

The Draft Development Consent Order (document 3.2) should further be amended as follows in order to moderate the unnecessarily broad compulsory powers

1.24 Article 23(1) “The undertaker may acquire compulsorily so much of the Order land as is reasonably and proportionately required for the authorised project or to facilitate, or is incidental to, it.”

1.25 Article 25(2) “The authority conferred by article 32 (temporary use of land for carrying out the authorised project) will cease at the end of the period referred to in paragraph (1), save that nothing in this paragraph prevents the undertaker remaining in possession of land after the end of that period, if the land was entered and possession was taken before the end of that period”

The list of rights of manors in schedule 2 of the Book of Reference (document 4.3) is incomplete

1.26 MEM would like to draw to the attention of NBDL and the Panel that the following rights of manors which may be exercisable within the order land are enjoyed by the Meyrick Estate, in addition to those already listed:

· The Lordship or Manor or reputed Lordship or Manor of Christchurch

· The Lordship or Manor or reputed Lordship or Manor of the Hundred of Christchurch

· The Lordship or Manor or reputed Lordship or Manor of Christchurch Forinseca

· The Lordship or Manor or reputed Lordship or Manor of Hinton Admiral

· The Lordship or Manor or reputed Lordship or Manor of Winkton Lewyn

· The Lordship or Manor or reputed Lordship or Manor of Winkton Westbury

· The Lordship or Manor or reputed Lordship or Manor of Fernhills Court

The proposed development should not prevent MEM from extracting minerals

1.27 MEM land at Hinton Admiral is a source of valuable minerals and MEM has plans to extract these. The proposed laying of cables through this land may sterilise those minerals and prevent them from being extracted. In the event that consent is granted, the DCO should contain provision to ensure that MEM is able to extract these minerals or be adequately compensated if the development makes it impossible to extract them.

NBDL has failed to consider alternatives for offshore development

1.28 The Meyrick Estate is of the view that a number of important considerations have not been taken into account.

1.29 The 2011 SEA recommended that offshore wind farms be situated at least 12 Nautical Miles from the coast. While it added that development within 12 nautical miles could be justified if the coastal area were not particularly environmentally sensitive, this coast, incorporating a world heritage site, is clearly more sensitive than most.

1.30 There appears to have been no consideration (in section 4.5 of Chapter 4 of Volume B of the ES) of the increased energy yield from a greater wind speed the further offshore the development is situated against increased construction costs.

1.31 Chapter 4 of the ES sets out scores of criteria that were considered during the site search. However, at no point was proximity to large areas of population/sensitive human areas considered to be a relevant criterion (see paragraph 4.4.15). Indeed, Table 4.2 indicates a bias to less populated areas and the interests of the offshore dredging industry were given a higher priority than the peoples of Bournemouth Bay (paragraph 4.11).

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EN010024: Navitus Bay Wind Park

Summary of Written Representation

Meyrick Estate Management Ltd

Meyrick Estate Management (“MEM”) has made a written representation on the following topics:

The objections raised by MEM in its relevant representation are restated

1.1 These are:

· The project will damage Bournemouth

· The project will have a detrimental effect on the value of the property of the Meyrick Estate

· The developer’s process for evaluating the project and its effects has been flawed

· The project does not provide for local community participation in its benefits

Onshore cables in areas of particular sensitivity should be laid by a process of tunnelling or directional drilling rather than by cutting as is currently proposed

1.2 In particular, Navitus Bay Development Ltd (NBDL) intends to run its cables through the park at Hinton Admiral which is part of the Meyrick Estate, and through two areas of woodland, at Allensworth and through the Neacroft Bog. NBDL should tunnel its cables in these locations in order to minimise any adverse effects. A requirement should be added to part 3 of schedule 1 of the DCO to this effect.

The open space land at Taddiford would be less advantageous to its owners if the promoter imposed rights on it

1.3 This land, when burdened by the Order right, will be considerably less advantageous to the persons in whom it is vested, i.e. the Meyrick 1970 Trustees. The laying of cables would be incompatible with many other potential uses of the land, making the land less valuable to its owner or a potential buyer who may wish to develop it in a way that will be impossible once the rights have been imposed. Therefore article 43 should be removed from the draft DCO and, if made, the order should be subject to SPP.

NBDL should not withhold relevant documents

1.4 NBDL should publish the Seascape, Landscape Visual Zone Characterisation Study mentioned on page 14 of document 6.1.2.13.

The promoter is seeking an unjustifiably broad power to impose restrictive covenants

1.5 In document 4.1 NBDL set out the uncertainty over whether a DCO may includes the power to impose restrictive covenants. MEM submits that if there is uncertainty this DCO should not contain such powers.

1.6 In any event the powers sought in the DCO are too broad and the NDBL’s justification for requiring them is weak.

The Draft Development Consent Order (document 3.2) should further be amended as follows in order to moderate the unnecessarily broad compulsory powers

1.7 The amendments, to articles 23(1) and 25(2) are set out in full in the written representation.

The list of rights of manors in schedule 2 of the Book of Reference (document 4.3) is incomplete

1.8 The following rights of manors which may be exercisable within the order land are enjoyed by the Meyrick Estate, in addition to those already listed:

· The Lordship or Manor or reputed Lordship or Manor of Christchurch

· The Lordship or Manor or reputed Lordship or Manor of the Hundred of Christchurch

· The Lordship or Manor or reputed Lordship or Manor of Christchurch Forinseca

· The Lordship or Manor or reputed Lordship or Manor of Hinton Admiral

· The Lordship or Manor or reputed Lordship or Manor of Winkton Lewyn

· The Lordship or Manor or reputed Lordship or Manor of Winkton Westbury

· The Lordship or Manor or reputed Lordship or Manor of Fernhills Court

The proposed development should not prevent MEM from extracting minerals

NBDL has failed to consider alternatives for offshore development

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Navitus Bay Examination

Reponses to the Examining Authority’s First Round of written questions

These representation are made by Meyrick Estate Management Ltd. (‘MEM’) on behalf of the various entities and people that make up the Meyrick Estate.

Question 12.1

· By Question 12.1 PINS asked about community benefit:

“The Meyrick Estate has suggested that “the project promoter should make an offer to the local community of meaningful economic participation in the project”. West Solent Solar Cooperative have stated that they hope Navitus Bay will give the local community the opportunity to share the financial benefits of their exciting and worthwhile project.

What community benefit should the applicants offer to offset the impact on local communities and how should this be achieved and secured through the DCO?”

· These representations are made without prejudice to the Meyrick Estate’s representations as to whether the development is appropriate. In short, the Meyrick Estate does not believe that the area put forward by the Crown Estate and DECC is an appropriate area to host large wind turbines. However, if the proposed development is to take place, then the Development Consent Order should provide for the community to take appropriate benefit.

· By way of preparation to the making of these representations, MEM has held discussions with a number of leading UK practitioners in the field of community benefit and renewable energy.

Precedent: the Joint Venture partners

· EDF: for the Hinkley Point nuclear plant, there appear to be two community funds: (1) an EDF fund of £20m and (2) a central Government paid fund worth £128m on the following basis:

· the local community is to be paid £1,000/MW installed per annum for the lifetime of the project;

· these monies are to be paid prior to construction; and

· these monies are to be transferred to local authorities.

· Eneco: MEM understand that Eneco have established community benefit funds for their onshore wind power operations in the UK.

· Clearly, NDBL will be able to confirm the position.

Precedent: the appropriation of local commons

· PINS’s attention is drawn to the precedent value provided by a previous large scale appropriation of commons in the south east Dorset/West Hampshire area.

· The Christchurch Inclosure Act (1802) and consequent Westover Award (1805) made provision for community benefit over a substantial area.

· This community benefit endures to this day in the form of Bournemouth’s Five Parks.

· This topic is addressed in a separate note on the appropriation of the terrestrial commons of Bournemouth.

Quantum: points of departure

· The UK onshore wind standard is: £5,000/MW installed per annum for the lifetime of the project:

· The Meyrick Estate see no reason why the standard for onshore wind should not be adopted for offshore wind.

· The onshore wind standard is 5 times greater than the Hinkley Point community benefit package.

· Crown Estate:

· It would be instructive to learn what the Crown Estate will receive from its appropriation of the sea bed off Bournemouth when setting the standard for what the community will receive.

· In the interests of general transparency and/or equity, can the Examining Authority consider the merits of inviting NBDL and/or the Crown Estate to clarify what financial benefit it will take from the Project.

Payment features

· Commencement: on confirmation of the DCO and prior to construction

· Period: for the period that wind turbines are operational in the Order area.

· Indexation: community benefit quantum to be indexed to a suitable electricity index

The recipient: the Bournemouth Bay Community Benefit Fund

· MEM are of the view that a new legal entity - the Bournemouth Bay Community Benefit Fund -should be established to receive, hold and distribute monies. MEM believe that local authorities should not be used as an intermediary.

· The Area of Benefit: within the 45 km radius of the turbine area, as adopted in the Seascape Landscape and Visual Impact Assessment.

· Use of funds: MEM suggest that:

· A dominant focus should be on local energy issues – e.g. energy poverty, energy efficiency, decarbonisation and improving local supply opportunities (e.g. a number of progressive city authorities (Plymouth and Bristol) are taking active steps to participate in the supply of energy).

· Another focus might be on development/regeneration of the seafronts and littoral districts along Bournemouth and Poole Bays.

· Representation and governance:

· Best practice to be adopted.

· Entities and areas most affected to be assured of direct representation – e.g. the people of Swanage, the people of Bournemouth, the people of Mannington Heath, private land owners on the route of the cable run.

· Trustees/directors to have specialist, local knowledge appropriate for the authorised use of funds.

· Local precedent: the Talbot Village Trust

· Established by two sisters in the mid-nineteenth century

· Today: hosts a model village, a school, a church and Bournemouth’s University district

· Area of benefit: 5 local authority areas in south east Dorset

· Funds distributed: c.£1m pa

· Governance:

· trustees with specialised local property management knowledge

· a clerk who is a senior local solicitor

Securing the Developer’s offer to the community through the DCO

· If the project is given consent, in order to increase the benefits of the project, a requirement should be added to the DCO in order to guarantee the delivery of a community benefit scheme.

Appearance before the Examining Authority

· These representations are necessarily brief. MEM would welcome the opportunity to appear before PINS to speak more widely to the issue of community benefit.

· The Chairman of Community Energy England has confirmed to MEM that he is ready to appear before PINS to speak on the matter of community ownership and community benefit.

Question 12.2

· By Question 12.2 PINS raised the issue of community ownership.

· These representations are made without prejudice to the Meyrick Estate’s representations as to whether the development is appropriate. In short, the Meyrick Estate does not believe that the area put forward by the Crown Estate and DECC is an appropriate area to host large wind turbines. However, if the proposed development is to take place, then the Development Consent Order should provide for the community to take an equity stake in the undertaker.

· By way of preparation to the making of these representations, MEM has held discussions with a number of leading UK practitioners in the field of community ownership and renewable energy including the chairman of Community Energy England and a member of the offshore wind team of the Green Investment Bank – on which see more below.

Policy & Measures: UK Government Policy – Community Energy Strategy

· The UK Government has adopted a community energy strategy to the effect that as of 2015 developers should as a matter of routine offer ownership in larger renewable energy developments to the local community.

· While the Community Energy Strategy makes co-ownership a requirement only for onshore developments, DECC’s Shared Ownership Taskforce has suggested that as a matter of best practice, the approach could also extend to offshore projects.

Policy & Measures: Shared community ownership of Renewable Energy Systems – DECC’s Shared Ownership Taskforce and The Voluntary Protocol

· PINS’s attention is drawn to the interim Voluntary Protocol issued by Community Energy England – and attached at Annexe 1.

· MEM note that Eneco together with Community Energy England are members of the Shared Ownership Taskforce which is about to issue guidance on the issue of community ownership, guidance which is likely to be adopted by DECC.

· MEM offers the following comments on the Voluntary Protocol in the context of the Navitus project:

· The developer should make a real and sustained effort to get the community to take ownership, i.e. there should be no easy discharge of the developer’s obligation.

· Given the size, geographical extent and expense of the Navitus wind project, delivering community ownership will be challenging. Consequently, sufficient time and support needs to be given to the Community Investor. MEM suggest that an option structure might be adopted to give the Community Investor sufficient time to take up its ownership interest.

· A new Community Investor will need to be created: see below.

Precedent: the Joint Venture partners

· It has been reported that Eneco are issuing up to €10m of low coupon bonds (2.5-3.5%) for the Brabant wind farm. What is not clear is whether the offer is focussed on local people.

· EDF has got some track record in shared community ownership. For example, Fenland Green Power Co-op owns 2 turbines within EDF’s 8-turbine Deeping St Nicholas Wind farm.

· Clearly, NDBL will be able to confirm the position.

Precedent: UK & Europe

There are many examples of community ownership of renewable energy assets in Europe. Indeed, in many parts of Europe, community ownership is considered to be an essential pre-condition of a project’s success – see ‘9 Good Reasons for Local Ownership’ issued by the Middelgrunden wind co-operative and attached at Annexe 2.

· Middelgrunden: half of the turbines of a 40 MW wind farm offshore of Copenhagen is owned by a cooperative with more than 8,000 members.

· Samso: an island in Denmark where 100% of the energy is fossil free and wind turbines are owned by the community.

· The UK has many examples of community ownership of renewable electricity assets, whether outright ownership (e.g. Westmill Solar) or in a joint venture with a developer (eg Falck Renewables and Energy4All in Scotland). Further detail can be provided should this assist PINS.

Form and level of ownership

· Ordinary equity is to be preferred, although it is recognised that there are other forms of ownership including quasi equity and preference shares.

· Full voting rights are to be preferred.

· Minority investor protection to be provided.

· Minority investor ‘participation’ to be provided on key strategic issues such as extension/later phases; repowering; power sales.

· Level of community ownership: up to 10%.

Source of community investment

· The quantum required will be dependent on the means of financing the project – i.e. the equity/debt split.

· The Bournemouth Bay population is large and affluent.

· The Green Investment Bank have a mandate to promote community ownership of renewable energy, although their current work is focussed on smaller onshore renewable energy projects. The Bank’s assistance should be sought and there are grounds to believe that it is likely to be forthcoming.

About the Community Investor

· A new legal entity will need to be established.

· Co-operatives and Community Benefit Societies appear to be the most common form of legal entity to be adopted and their typical mode is to:

· pay appropriate returns to members; and

· direct surplus income to a local benefit fund.

· Priority investors: those within the 45 km radius of the turbine area, as adopted in the Seascape Landscape and Visual Impact Assessment.

· Representation and governance: best practice to be adopted

SECURING THE DEVELOPER’S OFFER TO THE COMMUNITY THROUGH THE DCO

· If the project is given consent, in order to increase the benefits of the project, a requirement should be added to the DCO in order to guarantee the implementation of a system of community ownership.

· MEM suggest that consideration be given to whether the Voluntary Protocol or a successor document should be incorporated into the DCO.

Appearance before the Examining Authority

· The Chairman of Community Energy England has confirmed to MEM that he is ready to appear before PINS to speak on the matter of community ownership.

· A member of the Offshore Wind Team of the Green Investment Bank has confirmed to MEM that he is ready to appear before PINS to speak on the matter of community ownership.

Supplementary to responses to questions 12.1 and 12.2

Note on the appropriation of the terrestrial commons of Bournemouth

Precedent: The Christchurch Inclosure Act (1802) and Westover Award (1805)

· Prior to the Act and Award, what is now Bournemouth was waste of the manor in the form of heathland.

· Ownership and user rights prior to Inclosure:

· The soil was owned by the Lord of the Manor

· User rights (turf cutting; grazing etc.) were owned by local people

· This pre-Inclosure arrangement was very similar to the current ownership and user arrangement relating to the sea off Bournemouth; i.e.:

· The soil/seabed vested in a feudal overlord; and

· User rights – e.g. fishing, navigation and recreation – enjoyed by the local community.

· The appropriation/inclosure of Bournemouth was promoted by progressive agricultural improvers at a time of food shortages during the Napoleonic War – perhaps comparable to the current climate emergency.

· The appropriation of the Bournemouth terrestrial commons:

· The seignurial ‘take’: the owner of the soil, the Lord of the Manor, took a 1/18 share of the appropriated land.

· ‘Community benefit’: by section 13 of the 1802 Act large areas were held on trust (by the Lord of the Manor) for the benefit of the community – see Annexe 1.

· These areas held on trust for the community became Bournemouth’s 5 parks following conveyances from the Lord of the Manor to what is now Bournemouth Borough Council in the 1883-1906 period.

Other precedent

· There are other examples of common pool resources in the Bournemouth area being held, in effect, on trust for local people. One example is the Meyrick family holding fishing rights for the benefit of local residents at the mouth of Christchurch Harbour.

· Further information can be provided should this be of assistance to the Examining Authority.

Suggestion: inshore seabed to be held for the benefit of the peoples of Bournemouth Bay

· The Meyrick Estate invites the Examining Authority, drawing on local precedent, to consider the merits of whether the Crown should be encouraged as part of the DCO process to dedicate that part of the seabed off Bournemouth which lies between the low water mark and the development area appropriated by the Order to be held for the express benefit of the peoples of Bournemouth Bay.

ANNEXE 1: SECTION 13 CHRISTCHURCH INCLOSURE ACT 1802

AND be it further enacted that the said commissioners shall and they are hereby authorised and required to set

out and allot unto and for the lords of the several manors respectively in which the said waste grounds are

situated in trust for the occupiers for the time being of all such cottages and tenements containing less than one

acre each as were erected on ancient sites or have now been erected more than fourteen years in lieu of their

rights or pretended rights or custom of cutting turves in the said tythings or Liberties of Muscliff Muckleshell

Throop Holdenhurst Pokesdown Iford Tuckton and Week (commonly the liberty of West Stour) the manor of

Bure and Tythings of Winkton and Hinton Admiral respectively and in such other tythings (if any) as shall by

virtue of this act be divided and allotted as afore said so much and such part or parts of the said waste grounds in

such respective tythings manors or liberties as the said commissioners shall think proper for a turf common not

exceeding in the whole five acres or less than two acres for each cottage or tenement within each tything manor

or liberty respectively as shall in the judgment of the said commissioners be fit and proper for supplying turves

for fuel for the use of such cottages or tenements and which allotments shall for ever afterwards be managed and

the turf arising therefrom shall be cut taken and used by the occupiers of such cottages or tenements in such

quantities and at such time or times in every year and in such manner as the said lords of the said manors

respectively and the church wardens and overseers of the poor acting for or within such manor or the major part

of them shall from time to time order and appoint but such turf common shall not be fed or depastured by any

cattle or sheep whatsoever and that it shall and may be lawful for the lords of the said manors for the time being

to act in the execution of the trusts hereby reposed in them by their agents or proxies respectively such agents or

proxies being appointed by writing under the hands of the lords of the said manors respectively and producing

their respective appointments at the time of their acting by virtue hereof

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PROP0.DOT7

1.0Review of Volume B – Offshore, chapter 15; setting of heritage assets and setting technical report, appendix 15.1

1.1This note provides a brief review of chapter 15 and appendix 15.1, focused in particular on the assessment of heritage assets along the coast at Bournemouth, using the example of the assessment of the East Cliff conservation area. Where relevant the points are related specifically to the questions raised by PINS.

1.2Overall the assessment in the submitted ES finds no significant effects on any of the heritage assets considered. The outline in the chapter of the process used to identify the technical baseline of the assets within the 30km study area for detailed assessment, and the description of individual assets appear detailed and the assessment of setting makes use of the three-step English Heritage methodology. However, we have a number of concerns relating to the methodology used to reach the conclusions on impacts of the proposals, principally concerning the threshold used to determine the impacts that are significant in relation to the EIA regulations, but also the lack of clear definitions for the sensitivity of receptors and the magnitude of change that is predicted to occur. The assessment of the East Cliff conservation area is reviewed as an example of the effects of this methodology in underplaying potential impacts.

Methodology

(PINS question 8.1.2)

1.3The qualitative assessment in the cultural heritage chapter uses a different methodology from that outlined in chapter 5 (EIA methodology, Volume A) and used in the rest of the ES. However, in order to allow a consistent assessment of impacts across all topics the exercise of professional judgment in chapter 15 is directly related to the definitions given in chapter 5. It is stated (paragraph 15.3.41) that the significant impacts “equate to a major or moderate impact significance”, which are defined in the matrix in table 5.10. As all the receptors considered in chapter 15 are all designated at national or local level, or have been identified as undesignated assets of particular importance, we would expect the sensitivity to equate to either high or medium in the matrix, in which case effects of medium or high magnitude would result in a significant impact, and in some cases an effect of low magnitude would also be significant.

1.4Sections iii and iv in chapter 15 on sensitivity and magnitude (paragraphs 15.3.29 – 39) give no specific definitions for the sensitivity of the assets or the magnitude of change identified. Sensitivity is described in relation to tolerance to change, based on the importance of sea views to the asset (described in 15.4.9 as those assets “considered to derive importance from a relationship with the seascape [which] were considered to have a low tolerance to change within this seascape setting”) and was confirmed through a field assessment. Consideration of the magnitude of change is based on the extent of an effect, with examples given of whether the proposals change an “intrinsically expressed element of importance” of the asset or “incidental sea views”.

1.5Our key concern with the assessment is the method used for determining impact significance (section v, paragraphs 15.3.40 – 15.3.43) that underestimates the threshold of significance. Paragraph 15.3.41 states that a significant impact “is deemed to be equivalent to ‘substantial harm to or loss of’ a designated heritage asset, as defined by paragraphs 132 and 133 of the NPPF”. The definition of substantial harm is a high test, that may not arise in many cases (NPPG, paragraph: 017 Reference ID: 18a-017-20140306) and the courts have found it to be such a serious impact on an asset that its importance or significance is either vitiated altogether or very much reduced. The use of such a high threshold for significant impacts underplays the effects of the proposals and is not consistent with the rest of the ES. It also means that any potential impacts that would fall within the NPPF description of less than substantial harm are not identified in the ES.

1.6The description of the consultation in table 15.2 makes reference to a series of meetings with English Heritage and others to agree the methodology for selection of assets to be covered and other aspects of the assessment process. From the minutes supplied in the annexes to appendix 15.1 this process did not appear to include specific agreement on the use of substantial harm as in NPPF paragraph 133 as the threshold for significant impacts.

The example of the assessment of the East Cliff conservation area

(PINS question 8.1.3)

1.7In table 15.4 the East Cliff conservation area (CA43) is listed as one of six conservation areas along the Poole Bay shore of Bournemouth that are included in the detailed assessment. The series of conservation areas recognise the distinctive historic development of the resort, and the importance of the relationship to the cliff tops and the sea views they afforded to the original layout, later development and present character of the town. The East Cliff conservation area covers an area laid out from the 1850s as the new town expanded beyond the chine onto the flat cliffs. The brief appraisal of the conservation area produced by Bournemouth Borough Council highlights the priority given to sea views by the surveyors for the estate, (now known as the Meyrick estate) in particular in the retention of the open public esplanade of East Overcliff Drive along the cliff top.

1.8The qualitative analysis in section 5 (paragraphs 5.238 – 5.247) of the technical report correctly describes the importance of the sea views to the development and present setting of the conservation area. In describing the contribution of the setting of the conservation area paragraph 5.240 states that “The key elements … comprise the extensive sea views from East Overcliff Drive in the south that allow the conservation area’s coastal setting to be fully appreciated. Many of the buildings … are designed specifically to take advantage of these views”. The assessment also refers to the relationship of the most significant listed buildings within the conservation area to the seascape (paragraph 5.241), and includes in the summary of the elements of the setting of the conservation area that make a positive contribution to its significance “the aesthetic value of the extensive seascape vistas to the south” (paragraph 5.243).

1.9The assessment of impacts states, “These sea views are of primary importance to the setting of the southern part of the conservation area, where the majority of the buildings adjacent to East Overcliff Drive are designed to take in the seascape” and that the development “will introduce a new distant built element into these views that is likely to act as a focal point within the extensive seascape” (paragraph 5.244). The representative viewpoint referred to (VP 19, Undercliff Drive) is one of a number taken from the coast along Poole Bay. The assessment of these in chapter 13 identifies a medium visual change for all these locations.

1.10The narrative of the qualitative assessment therefore identifies an appreciable visual change to an attribute of the setting of the conservation area that is described as “key” and “primary” and that is experienced from a wide area of public space and some of the locally dominant buildings adjacent to East Overcliff Drive. The conclusion that follows (paragraph 5.247) that the aesthetic value of the sea views and contribution to the conservation area is not harmed, therefore does not appear to accurately reflect the analysis. The statement in paragraph 15.5.119 of the chapter that summarises the assessment of 59 heritage assets that “No effects have been identified on the importance of these heritage assets, and in each case, the impact is considered to be Not Significant” therefore underplays the effects of the proposals.

2.0Review of Volume B – Offshore, chapter 13; Seascape, Landscape and Visual and appendices 13.1, 13.2, 13.3 and 13.4

2.1This note provides a brief review of chapter 13 and appendices 13.1, 13.2, 13.3 and 13.4 focused in particular on the assessment of seascape, landscape and visual along the coast at Bournemouth. Where relevant these issues are related specifically to the questions raised by PINs.

PINs question 9.1.1

2.2The significant effects of the project are not fully recognised in the SLVIA. Taking the example of the settlement of Bournemouth it is assessed as having high-medium sensitivity. This is questionable and is discussed in response to question 9.2.1, however if we accept the high-medium sensitivity and accept the medium magnitude of effect then looking at the significance table in Diagram 2 of the methodology (page 15 appendix 13.4) the significance would lie just within the boundary of major-moderate or at least on the boundary of major-moderate and moderate. Taking “worst case” in line with EIA regulations the significance is actually major-moderate that is therefore significant. The applicant has underestimated the significance for Bournemouth and a number of other areas within the SLVIA.

Response to question 9.1.5

2.3We would agree that Challenge Navitus should supply their photomontages to Inspector as they may have used the latest SNH visualisation guidelines, which the applicant has not.

Response to question 9.1.6

2.4We note that this question is addressed to the applicant to answer and would agree that the paragraph is confusing and unclear as to its meaning. Some clarification is required.

Response to question 9.1.8

2.5We note that this question is addressed to the applicant, however we would agree with Christchurch Borough and NE that the threshold for what is deemed significant is set too high. Although there is no absolute guidance on this and EIMA page 61 states that:

“EIMA’s research also identified another trend, in the increasing use of caveats relating to an EIA’s significance findings. The most common example is the use of “not significant in EIA terms” in relation to the assessment’s findings. It is most often used during the standard matrix-led approach to indicate that findings of ‘minor significance’ are considered to be “not significant in EIA terms”. This approach clearly presents substantial scope for confusing the reader, particularly when the assessment identifies an effect as having ‘minor significance’ but the same effect is later presented as not being significant “in EIA terms”. Given that the EIA regulations do not set out terms for evaluating whether the assessment’s findings are significant or not, the phrase could also be seen to be misleading as those considering the EIA’s findings may assume that the results have not reached a specified legal threshold.”

2.6We would suggest that where a significance threshold is decided upon it should err on the side of caution and using the five point significance chart (diagram 2 of appendix 13.4) the middle level of significance therefore moderate should be used as the threshold for assessing what is deemed significant or not significant. As described above in the EIMA quotation “it is most often used during the standard matrix-led approach to indicate that findings of ‘minor significance’ are considered to be “not significant in EIA terms”. Other professional landscape architects tend to use moderate and above as the threshold as to what is considered significant and therefore the applicant has underestimated the threshold of significance.

2.7Volume A Introduction of the Navitus Bay ES, page 11 paragraph 5.7.23 states that, “Potential impacts identified as major or moderate are generally considered to have a likely significant effect in EIA terms.” It caveats this with “However, owing to the nature of certain environmental effects, the application of the matrix approach is not capable itself of determining whether or not an effect is likely to be significant. For such ES topics (e.g. landscape and visual, terrestrial ecology and cultural heritage) the professional opinion of the topic specialist, having regard to the assessment findings, is required to determine whether the potential impact is significant or not.” There is nowhere within GLVIA3 that suggests that the significance threshold for landscape and visual assessments (i.e. Chapter 13) should be higher than for other ES chapters.

Response to question 9.1.9

2.8We note that this question is addressed to the applicant to answer and would agree that further clarification is required.

Response to question 9.2.1 and 9.2.5

2.9We would suggest that there has been an underestimate of the significance of the impacts, for example for the settlement of Bournemouth. The assessment of the sensitivity of the receptors is too general, with all settlements assessed as having high-medium sensitivity. Each settlement should be assessed individually taking into account the history of the settlement and any landscape and townscape character assessments, as well as conservation areas reports undertaken by the local planning authorities. Although this follows the methodology used (chapter 13, page 37 paragraph 13.3.82) this single step process described which combines susceptibility and value is too general and does not take into account professional judgement. For example Bournemouth is an important tourist destination known for its beautiful coastline and has numerous hotels and residential properties located on the East Cliff and West Cliff that have been located here for the far-reaching sea views. It has cliff top parks, the pier, a promenade for walking and cycling with beach huts and restaurants/pubs along its length. The beach itself is popular with tourists and locals including dog walkers and has blue flag status. There are numerous footpaths with seating along the cliff top that focus on the view of Bournemouth Bay. GLVIA3 page 113 states that:

“The visual receptors most susceptible to change are generally likely to include:

· Residents at home;

· People, whether residents or visitors, who are engaged in outdoor recreation; including use of public rights of way, whose attention or interest is likely to be focused on the landscape and on particular views;

· Visitors to heritage assets, or to other attractions, where views of the surroundings are an important contributor to the experience;

· Communities where views contribute to the landscape setting enjoyed by residents in the area.”

2.10Page 114 of the GLVIA paragraph 6.37 goes on to state that:

“Judgements should also be made about the value attached to the views experienced. This should take account of:

· Recognition of the value attached to particular views, for example in relation to heritage assets, or through planning designations;

· Indicators of value attached to views by visitors, for example through appearances in guidebooks or on tourist maps, provision of facilities for their enjoyment (such as parking places, sign boards and interpretive material) and references to them in literature or art (for example ‘Ruskin’s View over Lunedale, or the view from the Cob in Porthmadog over Traeth Mawr to Snowdonia which features in well-known Welsh paintings, and the ‘Queen’s View in Scotland).”

2.11Using this guidance we would suggest that Bournemouth and some other settlements should be assessed as high sensitivity rather than the high-medium sensitivity to recognise their national importance as tourist destinations.

2.12We have also assessed the significance of Bournemouth Bay RSU. We believe that the significance has been underestimated. The RSU covers the area from Foreland/Handfast Point northwards across Poole Harbour and eastwards across Bournemouth to the headland at Hengistbury Head Nature Reserve. The applicant has only listed two factors that increase susceptibility to the type of change proposed yet lists six factors that decrease susceptibility. Using the DTI (2005) guidance criteria on page 36 of chapter 13 there are a number of additional factors that increase susceptibility for this RSU. Poole Harbour is included within this RSU and can be described as “small scale seascape, landform limits views to horizon” and also “intricate and complex coastal form” with its intricate coastline and enclosed form. Given these factors the susceptibility may have been underestimated and should probably be high-medium throughout. The value is described as ranging from national to community. Taking “worst case” in line with EIA regulations the highest value should be taken therefore using table 13.3 on page 37 of chapter 13 the value should be National. This would mean that the sensitivity would be high or at the least high-medium rather than the medium sensitivity described in paragraph 13.5.77 of chapter 13 page 91.

2.13We would also question the medium-low sensitivity of the offshore portion of the RSU. The value here is considered to range between local and community, which is drawn from the value for workers on commercial vessels in the offshore seascape. The assessment appears to have overlooked tourists entering the country from Europe on the channel ferries as well as National and sometimes International visitors arriving into Poole Harbour and crossing Bournemouth Bay on yachts for example taking part in International races such as the Fastnet Race or Round Britain and Ireland Race. The value should therefore be high or at the very minimum high-medium. Taking “worst case” in line with EIA regulations the highest value should be taken therefore using table 13.3 on page 37 of chapter 13 the value should be National. This would mean that the sensitivity would be high-medium or at the very least medium rather than the medium-low sensitivity described in paragraph 13.5.78 of chapter 13 page 91.

2.14The significance of impact for the coast and coastal sea portion and offshore portion of the RSU would therefore be major-moderate that is considered significant.

NAVITUS BAY

ASSESSMENT OF SEASCAPE, LANDSCAPE AND VISUAL AND SETTING OF HERITAGE ASSETS CHAPTERS OF APPLICANTS ENVIRONMENTAL STATEMENT

FOR MEYRICK ESTATE MANAGEMENT

20TH OCTOBER 2014

EN010024: Navitus Bay Wind Park

Written Representation

Meyrick Estate Management Ltd

1 Introduction

1.1 Meyrick Estate Management Ltd (“MEM”) submitted a relevant representation objecting to the Navitus Bay Wind Park (“the project”) on the following grounds:

• The project will damage Bournemouth • The project will have a detrimental effect on the value of the property of the Meyrick

Estate • The developer’s process for evaluating the project and its effects has been flawed • The project does not provide for local community participation in its benefits

This written representation reasserts the objections raised in that relevant representation and raises further objections as follows.

2 Onshore cables in areas of particular sensitivity should be laid by a process of tunnelling or directional drilling rather than by cutting as is currently proposed

2.1 Hinton Admiral house and park: Navitus Bay Development Ltd (NBDL) intends to run its cables through the park at Hinton Admiral which is part of the Meyrick Estate. The house and parts of the park at Hinton Admiral are listed with the English Heritage, the house as a grade 1 listed building and specific parts of the gardens as grade 2, under listing numbers 1095030, 1095031 and 1156269.

2.2 There are similar listings with Hampshire County Council on their record of archaeological and historic buildings (numbers 11027, 51562, 11028 and 11029) although in this case the extent of the listing is wider and encompasses the whole of the park. Within the park in the area where the cable run is proposed are both ornamental and mature indigenous woodland.

2.3 There is the potential for significant adverse effects on the ecology and visual amenity of this valuable site as a result of the cabling operations proposed by the promoter. If the project is authorised, it will be essential for the applicant to tunnel its cables in this location in order to minimise any adverse effects and under no circumstances should the promoter be permitted to carve a 60 metre wide swathe at ground level in order to lay its cables.

2.4 What is surprising is that the developer has either failed to recognise these designations or got them wrong:

• By Table 13.8 of the Onshore Cultural Heritage Report it is clear that the developer has not recognised that Hinton Park is a registered park;

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• Figure 13.7 of the Onshore Cultural Heritage Report fails to recognise that Hinton Admiral is a Grade 1 listed house

2.5 Furthermore, there is no consideration of impact of the development on the setting of Grade 1

listed Hinton Admiral.

2.6 The promoter has also proposed to lay cable through two areas of woodland, at Allensworth and through the Neacroft Bog. Both locations are within the New Forest National Park and in both of these locations the promoter should be compelled to tunnel the cables in order to minimise ecological, landscape and/or visual impacts on these valuable natural sites. We are aware that the developer does not believe there will be an unacceptable impact on the New Forest as a whole, but the Meyrick Estate is of the view that the local impact in this corner of the New Forest National Park will be severe unless mitigated by trenchless cabling.

2.7 Neacroft Bog: there is a pond at Neacroft Bog in the path of the cable route whose existence the developer appears not to have recognised – see the map at Appendix 1. The Panel will be aware of the concern raised about another pond on the route of the cable in the National Park.

2.8 Allensworth Wood: this is a mature mixed forest on the route of the cable which lies within the Bransgore Woods and Pastures Landscape Character Area whose sensitivity has been assessed to be high. The Panel will be aware that the developer intends the route of the cable to be permanently bald. The Panel’s attention is drawn to the developer’s change of stance in relation to the New Forest between the production of PEI3 and the Environmental Statement:

• At paragraph 29.251 of Chapter 29 of PEI3 under NCA 131: New Forest, it was stated by the developer: “However, the removal of woodland would be limited to very small areas and not alter the fabric and pattern of the NCA as a whole, as construction works would be limited to a 40m wide working area and would be further reduced within woodland areas.”

• At the equivalent paragraph of the ES (12.5.70), the wording underlined has been deleted. We would like the deleted wording to be reinstated and to be reflected in the DCO.

2.9 A requirement should be added to part 3 of schedule 1 of the DCO that the cables at these

locations be laid be means of tunnelling or directional drilling.

3 The open space land at Taddiford would be less advantageous to its owners if the promoter imposed rights on it

3.1 This representation is made by MEM on behalf of the owners of the freehold reversion of the beach open space land at Taddiford, numbered 1 and 2 of the book of reference and the land plan. The owners of this land are the trustees of the Meyrick 1970 Settlement (‘the Meyrick 1970 trustees’).

3.2 NBDL is seeking the power to acquire new rights in this land to allow for the installation, inspection and maintenance of cables. NBDL is aware that this is open space land has produced a section 132 Statement (application document 4.4) setting out its position in

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relation to whether an order authorising acquisition of this land should be subject to Special Parliamentary Procedure (“SPP”).

3.3 MEM submits that NBDL is right to conclude that this is open space land and indeed should do so with more confidence that it does in document 4.4. Despite advisory signs at the cliff top discouraging access, public access to this area is not actively limited. The public can and does use this space for recreation, including, for example, the Chairman of MEM and his young family.

3.4 NBDL seek to rely on section 132(3) of the Planning Act 2003, i.e. NBDL claims that this order should not be subject to SPP on the grounds that the land will be no less advantageous to parties including the person in whom the land is vested once burdened with the order rights. NBDL has correspondingly included provision to this effect in the draft DCO (article 43, special category land).

3.5 MEM objects to this in the strongest possible terms. This land, when burdened by the Order right, will be considerably less advantageous to the persons in whom it is vested, i.e. the Meyrick 1970 Trustees. The laying of cables would be incompatible with many other potential uses of the land, making the land less valuable to its owner or a potential buyer who may wish to develop it in a way that will be impossible once the rights have been imposed.

3.6 MEM is also sceptical of NBDL’s claim that throughout the period of construction and operation, there will be no loss of advantage. Clearly open space that is subject to periodic disruption due to inspection and maintenance operations is less advantageous than one that is not.

3.7 For the reasons set out above, MEM submits that article 43 should be removed from the draft DCO and, if made, the order should be subject to SPP.

4 NBDL should not withhold relevant documents

4.1 Meyrick Estate notes that the New Forest District Council (NFDC) requested of NBDL the production of the Seascape, Landscape Visual Zone Characterisation Study that had been conducted by the LDA Design in 2010 (see page 14 of document 6.1.2.13). NBDL did not produce this as it was produced during a ‘non-statutory early feasibility stage’. MEM considers NFDC’s request to be entirely reasonable and fails to see the relevance of whether the study was commissioned as part of a process required by statute. MEM submits that requests that, for reasons of transparency, NBDL should publish this study. Whether the study contains information that enhances or diminishes the case for granting consent for this scheme, it is in the public interest that it be made available.

5 The promoter is seeking an unjustifiably broad power to impose restrictive covenants

5.1 MEM notes the uncertainty of the legal position on whether powers to impose restrictive covenants can be included in DCOs, as expressed in paragraphs 9.7.20 to 9.7.28 of the statement of reasons (document 4.1). MEM submits that if there is uncertainty, the DCO should not contain such powers.

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5.2 Furthermore, MEM submits that even if such a power could be included in DCOs, the promoter is seeking very broad powers that are not appropriate given the strongly detrimental effect the imposition of restrictive covenants can have on landowners.

5.3 Under article 26(1) of the draft DCO, NBDL would have the power to impose restrictive covenants over any part of the Order land. This is a sweeping power which is not justified. If NBDL needs to impose restrictive covenants over any part of the order land that power should be limited to plots identified in the order, rather than applying to the order land generally.

5.4 In document 4.1 at paragraph 7.9.20, NBDL states that it is seeking to acquire restrictive covenants only in those plots listed in schedule 7. However, article 26 as drafted does not provide for this and schedule 7 is titled “land in which only new rights etc. may be acquired”. As drafted, the DCO would allow NBDL to impose restrictive covenants on any part of the Order land, while schedule 7 (if given effect properly by an article) would merely prevent NBDL from acquiring those plots listed in it (as opposed to acquiring rights in them or imposing restrictive covenants on them, which would not be restricted).

5.5 As justification for the seeking broad powers to impose restrictive covenants, NBDL admits that they are not strictly necessary, stating that without them it would be more costly to install its cables (paragraph 9.2.27 of document 4.1). This claim is not self-evident as there would be costs implied by the imposition of the covenants, and yet it is not backed up by evidence. In any event, MEM does not see why landowners should be forced to accept restrictive covenants so that NDBL can save engineering costs. The fairer solution would be for restrictive covenants to protect those sections of the route where NBDL could agree restrictive covenants with landowners and for NBDL elsewhere to employ the engineering solutions it deems necessary in the absence of restrictive covenants.

6 The Draft Development Consent Order (document 3.2) should further be amended as follows in order to moderate the unnecessarily broad compulsory powers

6.1 Article 23(1) “The undertaker may acquire compulsorily so much of the Order land as is reasonably and proportionately required for the authorised project or to facilitate, or is incidental to, it.”

6.2 Article 25(2) “The authority conferred by article 32 (temporary use of land for carrying out the authorised project) will cease at the end of the period referred to in paragraph (1), save that nothing in this paragraph prevents the undertaker remaining in possession of land after the end of that period, if the land was entered and possession was taken before the end of that period”

7 The list of rights of manors in schedule 2 of the Book of Reference (document 4.3) is incomplete

7.1 MEM would like to draw to the attention of NBDL and the Panel that the following rights of manors which may be exercisable within the order land are enjoyed by the Meyrick Estate, in addition to those already listed:

• The Lordship or Manor or reputed Lordship or Manor of Christchurch

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• The Lordship or Manor or reputed Lordship or Manor of the Hundred of Christchurch • The Lordship or Manor or reputed Lordship or Manor of Christchurch Forinseca • The Lordship or Manor or reputed Lordship or Manor of Hinton Admiral • The Lordship or Manor or reputed Lordship or Manor of Winkton Lewyn • The Lordship or Manor or reputed Lordship or Manor of Winkton Westbury • The Lordship or Manor or reputed Lordship or Manor of Fernhills Court

8 The proposed development should not prevent MEM from extracting minerals

8.1 MEM land at Hinton Admiral is a source of valuable minerals and MEM has plans to extract these. The proposed laying of cables through this land may sterilise those minerals and prevent them from being extracted. In the event that consent is granted, the DCO should contain provision to ensure that MEM is able to extract these minerals or be adequately compensated if the development makes it impossible to extract them.

9 NBDL has failed to consider alternatives for offshore development

9.1 The Meyrick Estate is of the view that a number of important considerations have not been taken into account.

9.2 The 2011 SEA recommended that offshore wind farms be situated at least 12 Nautical Miles from the coast. While it added that development within 12 nautical miles could be justified if the coastal area were not particularly environmentally sensitive, this coast, incorporating a world heritage site, is clearly more sensitive than most.

9.3 There appears to have been no consideration (in section 4.5 of Chapter 4 of Volume B of the ES) of the increased energy yield from a greater wind speed the further offshore the development is situated against increased construction costs.

9.4 Chapter 4 of the ES sets out scores of criteria that were considered during the site search. However, at no point was proximity to large areas of population/sensitive human areas considered to be a relevant criterion (see paragraph 4.4.15). Indeed, Table 4.2 indicates a bias to less populated areas and the interests of the offshore dredging industry were given a higher priority than the peoples of Bournemouth Bay (paragraph 4.11).

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EN010024: Navitus Bay Wind Park

Summary of Written Representation

Meyrick Estate Management Ltd

Meyrick Estate Management (“MEM”) has made a written representation on the following topics:

1 The objections raised by MEM in its relevant representation are restated

1.1 These are:

• The project will damage Bournemouth • The project will have a detrimental effect on the value of the property of the Meyrick

Estate • The developer’s process for evaluating the project and its effects has been flawed • The project does not provide for local community participation in its benefits

2 Onshore cables in areas of particular sensitivity should be laid by a process of tunnelling or directional drilling rather than by cutting as is currently proposed

2.1 In particular, Navitus Bay Development Ltd (NBDL) intends to run its cables through the park at Hinton Admiral which is part of the Meyrick Estate, and through two areas of woodland, at Allensworth and through the Neacroft Bog. NBDL should tunnel its cables in these locations in order to minimise any adverse effects. A requirement should be added to part 3 of schedule 1 of the DCO to this effect.

3 The open space land at Taddiford would be less advantageous to its owners if the promoter imposed rights on it

3.1 This land, when burdened by the Order right, will be considerably less advantageous to the persons in whom it is vested, i.e. the Meyrick 1970 Trustees. The laying of cables would be incompatible with many other potential uses of the land, making the land less valuable to its owner or a potential buyer who may wish to develop it in a way that will be impossible once the rights have been imposed. Therefore article 43 should be removed from the draft DCO and, if made, the order should be subject to SPP.

4 NBDL should not withhold relevant documents

4.1 NBDL should publish the Seascape, Landscape Visual Zone Characterisation Study mentioned on page 14 of document 6.1.2.13.

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5 The promoter is seeking an unjustifiably broad power to impose restrictive covenants

5.1 In document 4.1 NBDL set out the uncertainty over whether a DCO may includes the power to impose restrictive covenants. MEM submits that if there is uncertainty this DCO should not contain such powers.

5.2 In any event the powers sought in the DCO are too broad and the NDBL’s justification for requiring them is weak.

6 The Draft Development Consent Order (document 3.2) should further be amended as follows in order to moderate the unnecessarily broad compulsory powers

6.1 The amendments, to articles 23(1) and 25(2) are set out in full in the written representation.

7 The list of rights of manors in schedule 2 of the Book of Reference (document 4.3) is incomplete

7.1 The following rights of manors which may be exercisable within the order land are enjoyed by the Meyrick Estate, in addition to those already listed:

• The Lordship or Manor or reputed Lordship or Manor of Christchurch • The Lordship or Manor or reputed Lordship or Manor of the Hundred of Christchurch • The Lordship or Manor or reputed Lordship or Manor of Christchurch Forinseca • The Lordship or Manor or reputed Lordship or Manor of Hinton Admiral • The Lordship or Manor or reputed Lordship or Manor of Winkton Lewyn • The Lordship or Manor or reputed Lordship or Manor of Winkton Westbury • The Lordship or Manor or reputed Lordship or Manor of Fernhills Court

8 The proposed development should not prevent MEM from extracting minerals

9 NBDL has failed to consider alternatives for offshore development

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NAVITUS BAY ASSESSMENT OF SEASCAPE, LANDSCAPE AND VISUAL AND SETTING OF

HERITAGE ASSETS CHAPTERS OF APPLICANTS ENVIRONMENTAL

STATEMENT

FOR MEYRICK ESTATE MANAGEMENT

1.0 Review of Volume B – Offshore, chapter 15; setting of heritage assets and setting technical report, appendix 15.1

1.1 This note provides a brief review of chapter 15 and appendix 15.1, focused in

particular on the assessment of heritage assets along the coast at Bournemouth,

using the example of the assessment of the East Cliff conservation area. Where

relevant the points are related specifically to the questions raised by PINS.

1.2 Overall the assessment in the submitted ES finds no significant effects on any of

the heritage assets considered. The outline in the chapter of the process used to

identify the technical baseline of the assets within the 30km study area for

detailed assessment, and the description of individual assets appear detailed and

the assessment of setting makes use of the three-step English Heritage

methodology. However, we have a number of concerns relating to the

methodology used to reach the conclusions on impacts of the proposals,

principally concerning the threshold used to determine the impacts that are

significant in relation to the EIA regulations, but also the lack of clear definitions

for the sensitivity of receptors and the magnitude of change that is predicted to

occur. The assessment of the East Cliff conservation area is reviewed as an

example of the effects of this methodology in underplaying potential impacts.

Methodology (PINS question 8.1.2)

1.3 The qualitative assessment in the cultural heritage chapter uses a different

methodology from that outlined in chapter 5 (EIA methodology, Volume A) and

used in the rest of the ES. However, in order to allow a consistent assessment of

impacts across all topics the exercise of professional judgment in chapter 15 is

directly related to the definitions given in chapter 5. It is stated (paragraph

15.3.41) that the significant impacts “equate to a major or moderate impact

significance”, which are defined in the matrix in table 5.10. As all the receptors

considered in chapter 15 are all designated at national or local level, or have been

identified as undesignated assets of particular importance, we would expect the

sensitivity to equate to either high or medium in the matrix, in which case effects

of medium or high magnitude would result in a significant impact, and in some

cases an effect of low magnitude would also be significant.

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1.4 Sections iii and iv in chapter 15 on sensitivity and magnitude (paragraphs 15.3.29

– 39) give no specific definitions for the sensitivity of the assets or the magnitude

of change identified. Sensitivity is described in relation to tolerance to change,

based on the importance of sea views to the asset (described in 15.4.9 as those

assets “considered to derive importance from a relationship with the seascape

[which] were considered to have a low tolerance to change within this seascape

setting”) and was confirmed through a field assessment. Consideration of the

magnitude of change is based on the extent of an effect, with examples given of

whether the proposals change an “intrinsically expressed element of importance”

of the asset or “incidental sea views”.

1.5 Our key concern with the assessment is the method used for determining impact

significance (section v, paragraphs 15.3.40 – 15.3.43) that underestimates the

threshold of significance. Paragraph 15.3.41 states that a significant impact “is

deemed to be equivalent to ‘substantial harm to or loss of’ a designated heritage

asset, as defined by paragraphs 132 and 133 of the NPPF”. The definition of

substantial harm is a high test, that may not arise in many cases (NPPG,

paragraph: 017 Reference ID: 18a-017-20140306) and the courts have found it to

be such a serious impact on an asset that its importance or significance is either

vitiated altogether or very much reduced. The use of such a high threshold for

significant impacts underplays the effects of the proposals and is not consistent

with the rest of the ES. It also means that any potential impacts that would fall

within the NPPF description of less than substantial harm are not identified in the

ES.

1.6 The description of the consultation in table 15.2 makes reference to a series of

meetings with English Heritage and others to agree the methodology for

selection of assets to be covered and other aspects of the assessment process.

From the minutes supplied in the annexes to appendix 15.1 this process did not

appear to include specific agreement on the use of substantial harm as in NPPF

paragraph 133 as the threshold for significant impacts.

The example of the assessment of the East Cliff conservation area (PINS question 8.1.3)

1.7 In table 15.4 the East Cliff conservation area (CA43) is listed as one of six

conservation areas along the Poole Bay shore of Bournemouth that are included

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in the detailed assessment. The series of conservation areas recognise the

distinctive historic development of the resort, and the importance of the

relationship to the cliff tops and the sea views they afforded to the original

layout, later development and present character of the town. The East Cliff

conservation area covers an area laid out from the 1850s as the new town

expanded beyond the chine onto the flat cliffs. The brief appraisal of the

conservation area produced by Bournemouth Borough Council highlights the

priority given to sea views by the surveyors for the estate, (now known as the

Meyrick estate) in particular in the retention of the open public esplanade of East

Overcliff Drive along the cliff top.

1.8 The qualitative analysis in section 5 (paragraphs 5.238 – 5.247) of the technical

report correctly describes the importance of the sea views to the development

and present setting of the conservation area. In describing the contribution of

the setting of the conservation area paragraph 5.240 states that “The key

elements … comprise the extensive sea views from East Overcliff Drive in the

south that allow the conservation area’s coastal setting to be fully appreciated.

Many of the buildings … are designed specifically to take advantage of these

views”. The assessment also refers to the relationship of the most significant

listed buildings within the conservation area to the seascape (paragraph 5.241),

and includes in the summary of the elements of the setting of the conservation

area that make a positive contribution to its significance “the aesthetic value of

the extensive seascape vistas to the south” (paragraph 5.243).

1.9 The assessment of impacts states, “These sea views are of primary importance to

the setting of the southern part of the conservation area, where the majority of

the buildings adjacent to East Overcliff Drive are designed to take in the

seascape” and that the development “will introduce a new distant built element

into these views that is likely to act as a focal point within the extensive seascape”

(paragraph 5.244). The representative viewpoint referred to (VP 19, Undercliff

Drive) is one of a number taken from the coast along Poole Bay. The assessment

of these in chapter 13 identifies a medium visual change for all these locations.

1.10 The narrative of the qualitative assessment therefore identifies an appreciable

visual change to an attribute of the setting of the conservation area that is

described as “key” and “primary” and that is experienced from a wide area of

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public space and some of the locally dominant buildings adjacent to East Overcliff

Drive. The conclusion that follows (paragraph 5.247) that the aesthetic value of

the sea views and contribution to the conservation area is not harmed, therefore

does not appear to accurately reflect the analysis. The statement in paragraph

15.5.119 of the chapter that summarises the assessment of 59 heritage assets that

“No effects have been identified on the importance of these heritage assets, and

in each case, the impact is considered to be Not Significant” therefore underplays

the effects of the proposals.

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2.0 Review of Volume B – Offshore, chapter 13; Seascape, Landscape and

Visual and appendices 13.1, 13.2, 13.3 and 13.4

2.1 This note provides a brief review of chapter 13 and appendices 13.1, 13.2, 13.3

and 13.4 focused in particular on the assessment of seascape, landscape and

visual along the coast at Bournemouth. Where relevant these issues are related

specifically to the questions raised by PINs.

PINs question 9.1.1

2.2 The significant effects of the project are not fully recognised in the SLVIA. Taking

the example of the settlement of Bournemouth it is assessed as having high-

medium sensitivity. This is questionable and is discussed in response to question

9.2.1, however if we accept the high-medium sensitivity and accept the medium

magnitude of effect then looking at the significance table in Diagram 2 of the

methodology (page 15 appendix 13.4) the significance would lie just within the

boundary of major-moderate or at least on the boundary of major-moderate and

moderate. Taking “worst case” in line with EIA regulations the significance is

actually major-moderate that is therefore significant. The applicant has

underestimated the significance for Bournemouth and a number of other areas

within the SLVIA.

Response to question 9.1.5

2.3 We would agree that Challenge Navitus should supply their photomontages to

Inspector as they may have used the latest SNH visualisation guidelines, which

the applicant has not.

Response to question 9.1.6

2.4 We note that this question is addressed to the applicant to answer and would

agree that the paragraph is confusing and unclear as to its meaning. Some

clarification is required.

Response to question 9.1.8

2.5 We note that this question is addressed to the applicant, however we would

agree with Christchurch Borough and NE that the threshold for what is deemed

significant is set too high. Although there is no absolute guidance on this and

EIMA page 61 states that:

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“EIMA’s research also identified another trend, in the increasing use of caveats relating to an EIA’s significance findings. The most common example is the use of “not significant in EIA terms” in relation to the assessment’s findings. It is most often used during the standard matrix-led approach to indicate that findings of ‘minor significance’ are considered to be “not significant in EIA terms”. This approach clearly presents substantial scope for confusing the reader, particularly when the assessment identifies an effect as having ‘minor significance’ but the same effect is later presented as not being significant “in EIA terms”. Given that the EIA regulations do not set out terms for evaluating whether the assessment’s findings are significant or not, the phrase could also be seen to be misleading as those considering the EIA’s findings may assume that the results have not reached a specified legal threshold.”

2.6 We would suggest that where a significance threshold is decided upon it should

err on the side of caution and using the five point significance chart (diagram 2

of appendix 13.4) the middle level of significance therefore moderate should be

used as the threshold for assessing what is deemed significant or not significant.

As described above in the EIMA quotation “it is most often used during the

standard matrix-led approach to indicate that findings of ‘minor significance’ are

considered to be “not significant in EIA terms”. Other professional landscape

architects tend to use moderate and above as the threshold as to what is

considered significant and therefore the applicant has underestimated the

threshold of significance.

2.7 Volume A Introduction of the Navitus Bay ES, page 11 paragraph 5.7.23 states

that, “Potential impacts identified as major or moderate are generally

considered to have a likely significant effect in EIA terms.” It caveats

this with “However, owing to the nature of certain environmental effects, the application of the matrix approach is not capable itself of determining whether or not an effect is likely to be significant. For such ES topics (e.g. landscape and visual, terrestrial ecology and cultural heritage) the professional opinion of the topic specialist, having regard to the assessment findings, is required to determine

whether the potential impact is significant or not.” There is nowhere

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within GLVIA3 that suggests that the significance threshold for landscape and

visual assessments (i.e. Chapter 13) should be higher than for other ES chapters.

Response to question 9.1.9

2.8 We note that this question is addressed to the applicant to answer and would

agree that further clarification is required.

Response to question 9.2.1 and 9.2.5

2.9 We would suggest that there has been an underestimate of the significance of

the impacts, for example for the settlement of Bournemouth. The assessment of

the sensitivity of the receptors is too general, with all settlements assessed as

having high-medium sensitivity. Each settlement should be assessed individually

taking into account the history of the settlement and any landscape and

townscape character assessments, as well as conservation areas reports

undertaken by the local planning authorities. Although this follows the

methodology used (chapter 13, page 37 paragraph 13.3.82) this single step

process described which combines susceptibility and value is too general and

does not take into account professional judgement. For example Bournemouth is

an important tourist destination known for its beautiful coastline and has

numerous hotels and residential properties located on the East Cliff and West Cliff

that have been located here for the far-reaching sea views. It has cliff top parks,

the pier, a promenade for walking and cycling with beach huts and

restaurants/pubs along its length. The beach itself is popular with tourists and

locals including dog walkers and has blue flag status. There are numerous

footpaths with seating along the cliff top that focus on the view of Bournemouth

Bay. GLVIA3 page 113 states that:

“The visual receptors most susceptible to change are generally likely to include:

• Residents at home; • People, whether residents or visitors, who are engaged in outdoor recreation; including use of public rights of way, whose attention or interest is likely to be focused on the landscape and on particular views; •