public inquiry documentbailey.persona-pi.com/public-inquiries/m4-newport/e - pi...letter dated 11...

M4 Corridor around Newport

PUBLIC INQUIRY DOCUMENT

REFERENCE NO. : ID / 063

RAISED BY: Natural Resources Wales (NRW) DATE: 16/05/17

RESPONDED BY: ‐ DATE: ‐

SUBJECT: NRW Correspondence

NRW wish to submit the attached correspondence as an Inquiry Document.

1. Letter dated 7 March 2017 from NRW to Welsh Government;2. Letter dated 20 March 2017 from Welsh Government to NRW;3. Letter dated 5 April 2017 from NRW to Welsh Government;4. Letter dated 11 May 2017 from Welsh Government to NRW;5. Letter dated 15 May 2017 (with enclosure) from NRW to Welsh Government.

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before you discuss this email or any attachments with anyone outside Natural Resources Wales, or send it outside Natural Resources Wales.

Date: 16th May, 2017

Re: NRW NOTE FOR PUBLIC LOCAL INQUIRY M4 CaN

RE EXTENT OF NRW’S ENGAGEMENT WITH WELSH GOVERNMENT PRIOR TO OPENING OF THE PUBLIC LOCAL INQUIRY INTO THE M4 CAN SCHEME

This Note is provided by Natural Resources Wales (“NRW”) in relation an issue which arose on 28 February 2017, on the first day of the Public Local Inquiry into the M4 Corridor around Newport scheme (“M4 CaN scheme”), namely the extent to which NRW has acted in a genuine spirit of cooperation with Welsh Government (“WG”) to narrow and where possible resolve issues. The progress which has been made since NRW set out the scope of its potential objections to this scheme in its letter of 4th May, 2016 (Inquiry Document Ref: OBJ0268) is an indication of the extent of its constructive engagement with WG up until the commencement of this inquiry. The following summary provides further evidence and more detail of the same.

NRW and its predecessor bodies prior to the formation of NRW, in 2013, provided detailed advice to WG on the M4 CaN scheme and earlier iterations for many years. The extent of NRW’s direct involvement with WG and its consultants increased following WG’s decision to proceed with development of the Black Route and the appointment of the “Joint Venture” of Costain et al, in early 2015, to develop the design and undertake environmental assessment of the M4 CaN scheme.

NRW is a relevant statutory nature consultation body and also a decision maker in respect of various environmental and regulatory aspects of the M4 CaN scheme. As a public body, NRW takes the exercise of its responsibilities seriously. In its letter to WG of 4th May 2016, NRW raised numerous objection to the M4 CaN scheme. Some of those matters of objection have been capable of resolution prior to commencement of the Public Local Inquiry. NRW has been, and remains, fully committed to working constructively with WG and its consultants to seek to address the matters concerning its objections to the M4 CaN scheme, in addition to considerable ongoing work with WG in relation to non-contentious aspects of the scheme.

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TABLE: MEETINGS BETWEEN WELSH GOVERNMENT / CONSULTANTS AND NRW OFFICERS (APRIL 2015 TO MAY 2017)

Date Topic NRW Officers Present WG/JV Officers Present

09/04/2015 Initial meeting following appointment of Joint Venture Jessica Poole

Peter Ireland, Keith Jones, Jo Wilson, Hannah Corcorran

15/04/2015 Gwent Levels Water Level Management Jessica Poole, Matt Bajowski,

Peter Ireland, Hannah Corcorran, Mike Vaughan, Dyfan Walters, Keith Jones, Paul Snoek, Richard Graham

28/04/2015 Introductory meeting - Environmental Issues

Jessica Poole, Matt Bajowski, David Willey, Matt Llewhellin, Gary Purnell, Jenna Buss

Peter Ireland, Keith Jones, Amy Powell, Richard Graham, Adrian Green, Jo Wilson, David Leek, Kambiz Ayoubkhani, Mike Vaughan

12/05/2015 Monthly Liaison Jessica Poole

Peter Ireland, Richard Graham, Keith Jones, Hannah Corcorran

27/05/2015 Scale and Resourcing of NRW input Jessica Poole, Martyn Evans

Matt Jones, Martin Bates, Andy Falleyn



11/06/2015 Land Contamination and Water Quality

Jessica Poole, Matt Llewhellin, David Willey, Gary White

Richard Graham, Amy Powell, Adrian Green, Jason Toze, Peter Ireland, Kambiz Ayoubkhani, Hannah Corcorran

17/06/2015 Landscape Issues Jessica Poole, Olwen Maidment

Nick Rowson, Ellie McEwan

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22/06/2015 Reen Mitigation Strategy

Jessica Poole, Kate Rodgers, Matt Bajowski, Gary Purnell, Owain Shepherd

Kambiz Ayoubkhani, David Leak, Richard Graham, Peter Ireland

03/07/2015 Monthly Liaison Jessica Poole Peter Ireland


Peter Ireland, Keith Jones, Richard Graham, Hannah Corcorran

29/07/2015 Permitted Sites Jessica Poole, David Willey Amy Powell

10/08/2015 Gwent levels Water Quality - Water Treatment Areas

Jessica Poole, Kate Rodgers, Gary White,

Mike Finlay, Kyla Nunn, Mike Vaughan, Kambiz Ayoubkhani, Peter Ireland, Paul Snoek, Adrian Green, Richard Graham

11/08/2015 Monthly Liaison Jessica Poole Peter Ireland, Keith Jones, Hannah Corcorran

12/08/2015 Wales Coastal Path Jessica Poole, Sarah Tindal Eunice Stephens, Julia Tindale

17/08/2015 Reen Mitigation maintenance access Jessica Poole, Matt Bajowski

Huw Richards, Kambiz Ayoubkhani, Kyla Nunn

18/08/2015 Reen Mitigation Strategy Jessica Poole. Rebecca Loder, Kate Rodgers, Matt Bajowski


02/09/2015 NRW Permitting

Jessica Poole, Kat Route-Stephens, Cerys Hodson, Gary Purnell, Matt Bajowski

David Leak, Richard Graham, Nicola Simpson, Amy Powell

03/09/2015

Links to Living Levels partnership project - with Mark Underhill, RSPB Jessica Poole Peter Ireland, Keith Jones


Peter Ireland, Richard Graham, Hannah Corcorran, Jon Davies

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17/09/2015 Flood Risk Modelling and Hydrology

Jessica Poole, Gary Purnell, Nick Steele, Matt Bajowski

Mike Vaughan, Huw Richards, Dyfan Waters, Yiwen Zhao

30/09/2015 Protected Species progress update Jessica Poole, Jenna Buss

Peter Ireland, Keith Jones, Jo Wilson, Hannah Corcoran


Peter Ireland, Keith Jones, Richard Graham, Hannah Corcorran

16/10/2015 Tidal Flood Risk Gary Purnell, Jessica Poole Huw Richards, Paul Snoek

27/10/2015 New Dairy Farm/ River Ebbw access

Jessica Poole, Gwyn Thomas, Matt Bajowski Paul Snoek, Mike Finlay

11/11/2015 Land Contamination, Llanwern Lagoons

David Willey, Matt Llewhellin, Jessica Poole

Amy Powell, Andy Clifton, Richard Graham


10/12/2015 Flood Risk model output Nick Steele, Gary Purnell, Jessica Poole

Huw Richards, Mike Vaughan, Dyfan Waters, Richard Graham

14/12/2015 Water Quality - Gwent Levels Kate Rodgers, Jeff Edwards, Jeremy Tanner, Jessica Poole

Peter Ireland, Richard Graham, Sean Flynn, Nicola Simpson, Amy Powell, Neil Evans

11/01/2016 Monthly Liaison Jessica Poole Peter Ireland, Keith Jones

19/01/2016 Tidal Flood Risk Tim England, Gary Purnell, Jessica Poole

Martin Bates, Peter Ireland, Paul Snoek, Huw Richards

25/01/2016 Historic Landscape (with Cadw, NCC and MCC)

Jessica Poole, Olwen Maidment Mick Rawlins

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27/01/2016 Land Contamination, Llanwern Lagoons

Matt Llewhellin, David Willey, Jessica Poole

Andy Clifton, Amy Powell, Richard Graham, Jason Toze, Alison Pugh

24/02/2016 Dormice Jenna Buss, Liz Halliwell, Jessica Poole Keith Jones, Jo Wilson


Hannah Corcorran, Jon Davies, Peter Ireland, Keith Jones, Richard Graham

12/04/2016 Monthly Liaison Jessica Poole Peter Ireland, Hannah Corcorran, Keith Jones



21/06/2016 Protected Species Liz Halliwell, Rachel Smith, Jane Garner

Peter Ireland, Hannah Corcorran, Keith Jones, Jo Wilson

21/07.16 Land Contamination - Llanwern Lagoons

Matt Llewhellin, David Willey, Jessica Poole, Michelle Griffiths, Steve Morgan

Peter Ireland, Andy Clifton, Jason Toze, Richard Graham, Aled Phillips, Sin Vincent, George Flowers, Richard Spooner


06/09/2016 Drainage, Reen and SSSI Mitigation Strategy

Jessica Poole, Matt Bajowski, Kate Rodgers

Huw Richards, David Leak, Peter Ireland, Keith Jones, Richard Graham, Julia Tindale, Lucy Willis, Mike Vaughan, Jon Davies

08/09/2016 Protected Species Meeting

Jesscia Poole, Jane Garner, Rachel Smith, Liz Howe, Liz Halliwell

Richard Green, Jo Wilson, Keith Jones, Jon Davies

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13/09/2016 Wales Coastal Path, Landscape, Hsitoric Landscape

Jessica Poole, Sarah Tindale, Olwen Maidment

Peter Ireland, Julia Tindale, Nick Rowson


22/09/2016 Tidal Flood Risk Jenny Dickinson, Gary Purnell, Tim England, Jessica Poole

Peter Ireland, John Davies, Paul Canning, Huw Richards, Andrew Wareing, Lucy Willis, Mike Vaughan, Neil Evans

27/09/2016 Common Crane (telcon with RSPB) Jessica Poole Keith Jones, Martin Scott

11/10/2016 Monthly Liaison Jessica Poole Peter Ireland, Keith Jones, Julia Tindale

08/11/2016 Gwent Levels Water Quality

Jessica Poole, Sam Worrall, Steve Morgan, Tristan Hatton Ellis, Kate Rodgers

Richard Graham, Adrian Green, Peter Ireland, Jon Davies

08/11/2016 Monthly Liaison Jessica Poole Peter Ireland, Jon Davies, Keith Jones

09/11/2016 Dormice - Coed Mawr

Rachel Smith, Liz Halliwell, Rosalind Watkins, Claudia Robbins

Keith Jones, Peter Ireland, Jo Wilson, Jon Davies

10/11/2016 Register of Commitments Jessica Poole Peter Ireland

28/11/2016 Gwent Levels Construction Issues

Kate Rodgers, Sam Worrall, Jane Garner, Rachel Smith, Matt Bajowski, Gary Purnell, Jessica Poole

Martin Bates, Matt Jones, Richard Spooner, Peter Ireland, Jo Wilson, Jon Davies, Keith Jones

13/12/2016 Monthly Liaison Jessica Poole Keith Jones, Hannah Corcorran

20/12/2016 Water Quality - Gwent Levels Jessica Poole, Tristan Hatton Ellis, Sam Worrall Richard Graham

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14/02/2017 Monthly Liaison Jessica Poole Peter Ireland, Keith Jones

15/02/2017 Draft Ecology Statement of Common Ground

Jessica Poole, Kate Rodgers, Jane Garner, Liz Halliwell, Liz Howe, Rachel Smith, Richard Facey

Peter Ireland, Jo Wilson, Keith Jones

09/03/2017 Water Quality - Gwent Levels Tristan Hatton Ellis Richard Graham

09/03/2017 Dormice Jane Garner, Liz Halliwell, Rachel Smith Jon Davies

13/03/2017

Ecology and Nature Conservation SoCG - Protected Species

Jessica Poole, Liz Halliwell, Liz Howe, Jane Garner

Peter Ireland, Keith Jones, Jon Davies, Jo Wilson, Mike Barker

15/03/2017 Ecology and Nature Conservation SoCG - SSSIs Jessica Poole, Kate Rodgers

Keith Jones, Jon Davies, Jo Wilson, Peter Ireland

21/03/2017 Ecology and Nature Conservation SoCG Jessica Poole Keith Jones, Jon Davies

23/03/2017 Woodland House and bats Jessica Poole, Jane Garner Allan Pitt, Richard Green

10/04/2017 IDD Issues Jessica Poole, Mark Groves, Gary Purnell

Peter Ireland, Mike Vaughan, Huw Richards

03/05/2017 Ecology and Nature Conservation SoCG - SSSIs

Jessica Poole, Mark Groves, Kate Rodgers

Peter Ireland, Keith Jones, Jo Wilson

05/05/2017 Coed Mawr Site Visit

Liz Halliwell, Rachel Smith, Jane Garner, Rosalind Watkins, Claudia Robbins

Jon Davies, Jo Wilson Ian White (PTES)

08/05/2017 Monthly Liaison Jessica Poole, Jane Garner

Peter Ireland, Keith Jones, Jo Wilson, Mike Barker, Richard Graham

Tŷ Cambria 29 Heol Casnewydd Caerdydd CF24 0TP

Cambria House 29 Newport Road Cardiff CF24 0TP Croesewir gohebiaeth yn y Gymraeg a’r Saesneg Correspondence welcomed in Welsh and English

Mr James Price Welsh Government Cathays Park CARDIFF CF10 3NQ 15 May 2017 Dear James, M4 Corridor Around Newport Scheme Thank you for your letter of 11 May 2017. Our officers have been working closely together to ensure there can be as much common ground as possible between us and good progress has been made. However, notwithstanding your letter, we still have concerns regarding future funding in respect of tidal flood risk, reen and grazing marsh maintenance and ongoing management, and Coed Mawr habitat management. As previously stated, it is not for NRW to put forward solutions to this issue. However, it is notable that in the context of other major infrastructure projects in the UK where there are long-term consequences, a range of solutions has been adopted including the provision of legal undertakings or a bond. For example, HS2 Ltd has routinely offered enforceable undertakings through its Register of Undertakings and Assurances which is attached to the HS2 Bill. Entries 2, 50 and 59 (see attached annex) illustrate the sorts of legal enforceable commitments which can be and are offered in comparable circumstances. Similar commitments are routinely offered by the promoters of nationally significant infrastructure projects under the Planning Act 2008 (see by way of example a copy of Schedule 16, Part 3 of the Thames Tideway Tunnel DCO attached to this letter). I note that WG considers it cannot enter into commitments which bind future governments because to do so would be an unlawful fetter of a discretion. NRW does not agree with this statement. The commitment sought would not impact the future exercise of any discretion but instead would be an obligation which, like those contained in WG’s Register of Environmental Commitments, was intended to outlast this government and subsequent ones. Without a legal mechanism to offer such commitments it would not be possible to

Ein cyf/Our ref: NRW17-026

Ty Cambria / Cambria House 29 Heol Casnewydd / 29 Newport Road Caerdydd / Cardiff CF24 0TP / CF24 0TP

Ebost/Email: [email protected] [email protected] Ffôn/Phone: 0300 065 4444

mailto:[email protected]

mailto:[email protected]

www.naturalresourceswales.gov.uk www.cyfoethnaturiolcymru.gov.uk Page 2 of 3

plan for and make agreements in relation to projects intended to last longer than an electoral cycle. I note also that WG considers its Register of Environmental Commitments, together with the possibility of legal action arising out of any failure on its part to discharge its statutory duties, should provide NRW with the assurance which is sought. The provisions to which WG refers are not clear to NRW and I would be grateful if you could identify which particular Environmental Commitments and which statutory duties can be said to provide NRW with the future funding commitment it seeks. In any event reliance on judicial review of governmental inaction is not regarded as an acceptable method of securing mitigation measures and/or financial commitments which are rendered necessary by new highways infrastructure. In the context of future funding in respect of tidal risk, NRW has suggested a form of words and it would be helpful if that could be formulated into an obligation in the Register of Environmental Commitments and adapted to address the other areas of future funding sought by NRW. I will also ask my staff to seek a meeting with your M4 team to discuss the forward programme, beyond the Inquiry, with the aim of collectively agreeing how we might best resource NRW’s continuing engagement. Yours sincerely,

Emyr Roberts Prif Weithredwr, Cyfoeth Naturiol Cymru Chief Executive, Natural Resources Wales Enc: THAMES WATER UTILITIES LIMITED (THAMES TIDEWAY TUNNEL) ORDER 2014/2384

www.naturalresourceswales.gov.uk www.cyfoethnaturiolcymru.gov.uk Page 3 of 3

Annex

Undertaking/Assurance 2: The Promoter will require the nominated undertaker to reimburse property owners for the reasonable cost they incur in remedying material physical damage arising from ground settlement caused by the authorised works, provided:

the damage is caused by the nominated undertaker's works;

the owner gives not less than 28 days' notice in writing to the nominated undertaker of the proposal to carry out the repair work;

the owner takes reasonable steps to obtain three competitive quotes for the repairs beforehand where required by the nominated undertaker; and

any claim is made before the end of the period of two years from the date of opening for public traffic of the railway comprised in the authorised works in the vicinity of the building, or if later, the end of the period of three months from the day on which any monitoring specific to the building ceased.

Undertaking/Assurance 50: Where the railway and associated works has the potential to increase flood risk, the design reflects the approach required by the National Planning Policy Framework (NPPF) and the supporting Technical Guidance (such as the incorporation of flood risk mitigation measures). The design aim is for no increase in the risk of flooding for vulnerable receptors including residential property (defined as more/highly vulnerable and essential infrastructure in Table 2 of the NPPF) during the lifetime of the development, taking projected climate change impacts into account. If required, the design will mitigate loss of floodplain by creating replacement storage areas for the 1 in 100 year (1%) annual rainfall probability event, with an allowance for climate change. Undertaking/Assurance 59: In order to adapt to the potential increase in flood risk, the top of rail level associated with the Proposed Scheme will be set one metre above the estimated 1 in 1,000 year (0.1%) annual probability of flooding. Where other environmental or engineering constraints mean this is not possible, flood defences will be provided in order to protect the railway line from flooding to the estimated 1 in 1,000 year standard, with a minimum of 300mm freeboard above this level.

Status: Law In Force

Thames Water Utilities Limited (Thames Tideway Tunnel) Order 2014/2384

Schedule 16 PROVISIONS FOR PROTECTION OF SPECIFIED UNDERTAKERS

Part 3 THE ENVIRONMENT AGENCY

This version in force from: September 24, 2014 to present

(version 1 of 1)

4.— Structural integrity of flood defences

(1) Prior to the carrying out of any authorised project work which is likely to impact a flood defence, the undertaker shall provide at its own expense for the approval of the Agency, a detailed engineering report of any flood defence likely to be impacted upon by that authorised project work, such engineering report to include but not be limited to—

(a) details of the structural condition of any flood defence likely to be impacted;

(b) the estimated remaining life expectancy of any flood defence in the control or ownership of the undertaker likely to be impacted;

(c) the nature and extent of the predicted impacts on any flood defence;

(d) identification of the flood defences likely to be significantly impacted based on the following criteria—

(i) tunnelling or other construction activities comprised in the authorised project that may lead to a flood defence asset falling below the statutory defence level as agreed by the Agency;

(ii) tunnelling or other construction activities comprised in the authorised project that may lead to an effect on the overall structural integrity of the flood defence; and

(iii) any other criteria as the Agency may reasonably require;

(e) the need for any protective work or protective works required to be carried out prior to the construction of that authorised project work likely to impact a flood defence, so as to ensure the structural integrity of the flood defence likely to be impacted is maintained during construction of that authorised project work;

(f) baseline monitoring of flood defences likely to be significantly impacted unless otherwise agreed with the Agency; and

(g) and such other information as the Agency may reasonably require,

and the relevant authorised project work shall not commence until the engineering report or reports in respect of the flood defence or defences it is likely to impact have been provided to, and approved by, the Agency.

(2) The undertaker shall provide at its own expense in liaison with, and for the approval of, the Agency, a flood defence monitoring plan for any flood defence likely to be significantly impacted by the authorised project.

(3) The flood defence monitoring plan shall include but not be limited to—

(a) demonstration and justification of the spatial extent and coverage of the monitoring identified as a consequence of the baseline monitoring;

(b) details of the proposed monitoring techniques with consideration of effects of movement in all directions, including differential movements, increases in tie rod stresses and crack and movement joint monitoring;

(c) details of the proposed duration of monitoring and the monitoring frequencies required to establish if external factors are having an effect on readings;

(d) details of the proposed contents of a report on the construction and operational monitoring and proposed trigger levels for associated mitigation;

(e) trigger levels under the flood defence monitoring plan submitted pursuant to paragraph 4(2) above for associated mitigation;

(f) proposed duration and frequency of monitoring during operational phase of the authorised project; and

(g) such other information as the Agency may reasonably require,

(h) and no authorised project work likely to significantly impact a flood defence shall commence until the flood defence monitoring plan for that work has been provided and approved by the Agency.

(4) Monitoring shall be carried out in accordance with the flood defence monitoring plan as approved by the Agency or otherwise determined until—

(a) ground movements attributable to the authorised project have ceased or the rate of settlement is less than or equal to 2mm per year; or

(b) for a period of 1 year following the completion of construction,

whichever is the later.

(5) The undertaker shall provide at its own expense in liaison with, and for the approval of, the Agency, a flood defence movement and settlement mitigation plan for any flood defence likely to be significantly impacted by the authorised project.

(6) The flood defence movement and settlement mitigation plan shall include but not be limited to—

(a) information from relevant engineering reports;

(b) results of the monitoring carried out in accordance with the flood defence monitoring plan;

(c) timescales to enact short, medium and long term mitigation measures to

maintain the standard of flood defence and have due regard to protection of foreshore habitat;

(d) short term mitigation and remediation measures for emergency use, including an emergency response plan;

(e) medium term mitigation and remediation measures for use during construction works;

(f) long term mitigation and remediation measures based on ongoing monitoring, including post construction effects;

(g) hierarchy of mitigation and remediation measures according to the degree of settlement and movement, with full justification to why the chosen technique is appropriate;

(h) methodologies for removal of any structures or mitigation measures;

(i) demonstration that chosen mitigation and remediation techniques are sensitive to the foreshore habitat and hydraulic regime;

(j) demonstration that the mitigation would not preclude options for future raising of defences and associated modification,

and the mitigation shall thereafter be carried out in accordance with the flood defence movement and settlement mitigation plan as approved by the Agency or otherwise determined.

(7) The approval process in paragraph 5 shall apply to the submission of any plan under paragraphs 4(1), 4(2) and 4(5) as if such plan was submitted to the Agency under paragraph 5(1) and the “specified day” shall be the first business day on which submission is received by the Agency under paragraphs 4(1), 4(2) or 4(5), and paragraph 5(6)(a),(b) and (d) shall apply accordingly.

(8) If required by the Agency the undertaker shall construct all or part of any protective works so that they are in place prior to the carrying out of any authorised project work to which they relate.

Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland

Subject: Construction law Other related subjects: Planning; Utilities

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