The Environment Agency submitted a request for a ‘scoping opinion’ in respect of flood defence works at Clifton Ings Barrier Bank from the City of York Council in July 2018. This is available through the City of York Council planning portal using reference 18/01737/EIASP https://planningaccess.york.gov.uk/online-applications/search.do?action=simple&searchType=Application
The Friends of Rawcliffe Meadows have been considering their approach to this hefty submission and have responded by submitting comments to City of York as follows:
Friends of Rawcliffe Meadows is a group of local volunteers who have managed a large part of the land affected by these works since 1990. We wish to make the following comments on the EIA Scoping Request submitted by the Environment Agency.
We note that the Environment Agency has been considering ways of reducing slippage on the Clifton Ings barrier bank for at least four years. Only over the past year or so has this metamorphosed into proposals for the wholesale reconstruction and enlargement of the embankment. We infer from this that the Agency had not previous identified a pressing need to upgrade the level of flood protection. The level of flood risk to properties inland of the barrier bank has not been made clear.
Planning policy issues
The scope and content of the EIA must suffice to address all the tests and considerations set out in the National Planning Policy Framework (NPPF, July 2018). We are concerned that development of this project has been driven by overwhelmingly by the Environment Agency’s internal systems and culture and not by reference to government planning policy.
Paragraph 170a of the NPPF stipulates that sites of biodiversity value must be afforded a level of protection commensurate with their statutory status. As a Site of Special Scientific Interest (SSSI), Clifton Ings and Rawcliffe Meadows is of national importance. The onus is therefore on the applicant to demonstrate sufficient justification to cause irreversible damage to a site of national significance; and, equally, to demonstrate that alternative, less damaging options have been exhausted.
At this stage, Friends of Rawcliffe Meadows do not believe the applicant has given adequate weight to the national importance of the site. In particular, we believe that alternative options have not been given sufficient consideration. Given the clarity of government policy, it is not enough for the applicant to argue that alternative options would be more costly, or more hassle because they would need to negotiate with other land owners, or acquire additional land. Through the EIA process, the applicant will need to demonstrate that they have met the tests of the NPPF not merely they have assessed engineering options in line with the Agency’s internal procedures.
Paragraph 170d of the NPPF stipulates that developments must minimise impacts on biodiversity and provide net gains “including by establishing coherent ecological networks that are more resilient to current and future pressures”. It is therefore essential that, if damage to the SSSI is unavoidable, any mitigation and compensation measures will be permanent, will enhance the network of floodplain meadows and related habitats along the Ouse and will be managed in perpetuity to ensure their value is never diminished by other pressures (e.g. climate change, recreational pressure, water pollution, agricultural changes). The EIA must therefore demonstrate the applicant’s long-term commitment to ensuring that mitigation objectives are achieved, including the capacity to address future pressures which might compromise these objectives.
Paragraph 175a of the NPPF stipulates that, “if significant harm to biodiversity resulting from a development cannot be avoided (through locating on an alternative site with less harmful impacts), adequately mitigated, or, as a last resort, compensated for, then planning permission should be refused”. This places the onus on the applicant to demonstrate adequate mitigation/compensation. Therefore the EA must show that it can re-create habitat of equivalent value to that lost. This will be extremely challenging, as it is universally acknowledged that historic grasslands cannot readily be re-created.
In large part, this is because the above-ground vegetation is intimately associated with subsurface features such as soil stratigraphy, soil nutrient budgets and communities of soil biota such as fungi, bacteria and macrofauna. These features are inherently linked to the longevity of the habitat and its management history. At Rawcliffe Meadows, the southern meadow (which would be extensively damaged under the applicant’s preferred option), has been permanent grassland for around 400 years and has been managed as hay meadow for much of this time. This has created conditions specifically favourable to the development of Meadow Foxtail – Great Burnet meadow, the plant community for which the SSSI is designated. For example, soil Phosphorus reserves will have been depleted by centuries of hay cropping with no addition of artificial fertilisers; a well-structured, deep alluvial soil will have developed, providing the particular combination of drainage and water storage required by this community; and the soil will support intricate and complex biological systems unique to very old, unploughed and unfertilised meadows. Whether the applicant is able to re-create grassland of similar value will therefore be a critical test and will need to be demonstrated in detail and in depth through the EIA process.
Paragraph 175b states that “development on land within or outside a Site of Special Scientific Interest, and which is likely to have an adverse effect on it (either individually or in combination with other developments), should not normally be permitted. The only exception is where the benefits of the development in the location proposed clearly outweigh both its likely impact on the features of the site that make it of special scientific interest, and any broader impacts on the national network of Sites of Special Scientific Interest”. Therefore the applicant must demonstrate that all alternatives have been exhausted, that the need for the development outweighs the national significance of Clifton Ings and Rawcliffe Meadows SSSI, and that there will be no detriment to the national SSSI network.
Paragraph 175c states, “development resulting in the loss or deterioration of irreplaceable habitats (such as ancient woodland and ancient or veteran trees) should be refused, unless there are wholly exceptional reasons and a suitable compensation strategy exists”. We argue that Meadow Foxtail – Great Burnet grassland is as much an irreplaceable habitat as ancient woodland, since it is restricted to ancient or very old sites and depends on a combination of management history and undisturbed soil structure. The applicant proposes to create compensatory habitat on land to the north which has a history of much more intensive agricultural management.
Therefore an essential component of the EIA will be to examine whether the receptor site is capable of supporting compensatory habitat with similar characteristics to the areas of old floodplain meadow which will be destroyed or damaged; and also whether the applicant has the expertise, resources and long-term commitment to achieve this objective.
The protection of irreplaceable habitats required under para 175c would not necessarily apply to all of the grassland at Rawcliffe Meadows since some parts were under arable cultivation in the early 19th century – but there is compelling evidence that the southern half of the site (corresponding to the early 17th century enclosure of Ings End Close) has been meadow for around 400 years and is therefore, by definition, irreplaceable. Through the EIA process, the applicant must therefore either provide evidence to the contrary, show that they can meaningfully re-create the habitat within the foreseeable future or demonstrate “wholly exceptional reasons”.
Friends of Rawcliffe Meadows have considerable experience in establishing species-rich grassland on degraded plots over the past 27 years. While we do not doubt that it is technically feasible to create valuable, wildlife-rich grassland in such conditions, this requires great effort and dedication over many years. While some of our own re-created grassland superficially resembles MG4 meadow, we are under no illusions that this is a substitute for centuries-old examples of this vegetation. Even in our oldest plot (20 years old before it was destroyed by a sewage leak), colonisation by the long-lived, slow-growing perennial herbs which characterise this community was limited and patchy. All the scientific literature we have reviewed supports the viewpoint that re-creation of plant communities characteristic of ancient semi-natural grassland takes generations. It is therefore likely that a minimum 25 year aftercare period and a substantial financial bond would need to be secured via planning conditions to ensure compliance with NPPF Paragraph 175.
Part II of ODPM Circular 06/2005, Biodiversity and Geological Conservation – statutory obligations and their impact within the planning system remains current guidance for planning authorities in relation to SSSIs, as per footnote 56 of the latest iteration of the NPPF. This reiterates that the Wildlife & Countryside Act “imposes an important general duty on a range of authorities exercising functions which are likely to affect SSSIs. This general and overarching duty requires an authority to take reasonable steps…to further the conservation and enhancement of the features for which sites are of special interest” (Para 57).
Paragraph 61 of the Circular states that planning authorities must “apply strict tests when carrying out any functions within or affecting SSSIs, to ensure that they avoid or at least minimise adverse effects”. Thus “strict tests” must be applied in the determination of planning applications affecting SSSIs, and the applicant must demonstrate whether or not the proposed development meets these tests through the EIA process.
Paragraph 124 of the Circular states that, “The likelihood of disturbing a badger sett, or adversely affecting badgers’ foraging territory, or links between them, or significantly increasing the likelihood of road or rail casualties amongst badger populations, are capable of being material considerations in planning decisions”. Thus the planning authority needs to consider not only whether Badger setts will be disturbed but also whether the proposed development will reduce or fragment foraging territory or push Badgers into more hazardous locations. We understand that the applicant is already undertaking exclusion of Badgers on the site, so it will be incumbent on the planning authority to ensure that these wider impacts are properly assessed, and that the applicant has provided sufficient information to demonstrate an appropriate level of mitigation.
Ecological survey requirements
Given that the applicant wishes to start work in the near future, we are puzzled as to why the EIA scoping exercise has been left so late. The purpose of EIA scoping is to identify which surveys and investigations are needed to inform selection of options and provide competent authorities with sufficient information to understand environmental impacts. In this case the applicant has decided on their preferred option before submitting the request for scoping. Furthermore, the applicant’s time table effectively precludes undertaking further ecological surveys before work commences. This gives the unavoidable impression that the applicant is attempting to ‘steamroller’ the application through the planning process.
The Chartered Institute for Ecology & Environmental Management (CIEEM) has published guidelines for the ecological component of EIA. This guidance in turns reflects the requirements of the Environmental Impact Assessment (EIA) Directive 2014/52/EU. The CIEEM Guidelines stipulate that ecological impact assessment should follow a sequence of studies: Scoping → Baseline surveys → Identification of important features → Impact assessment → Avoidance, mitigation, compensation and enhancement → Implications for decision making. In this case, the sequence has effectively been reversed: an engineer-led preferred option has been identified which has triggered a review of necessary mitigation measures, with surveys undertaken to inform the planning application; ‘scoping’ has been a final, token formality.
While we recognise that the applicant has commissioned a number of ecological surveys, these focus predominantly on protected species. Further surveys are needed in line with the CIEEM Guidelines, e.g. to identify the presence, location and vulnerability of key habitats and species. Box 13 of the CIEEM Guidelines lists habitats/species of principal importance, Red Listed, Nationally Rare and Nationally Scarce species as requiring assessment in addition to protected species. The applicant needs to study this table and either present the necessary data where it is already available or propose a schedule of further survey work for spring/summer 2019.
All public bodies (including both the applicant and the planning authority) are subject to the ‘Biodiversity Duty’ set out in Section 40 of the Natural Environment & Rural Communities Act 2006, and must have regard to the lists of species and habitats of principal importance for the conservation of biodiversity published under Section 41 of the same Act. The ecology section of the EIA will need to identify Section 41 species and habitats which could be impacted by the proposed scheme, assess the effects of the proposals and, where appropriate, set out mitigation measures. While there are a few anachronistic references to ‘BAP [Biodiversity Action Plan] species’ in the PEIR, there does not appear to have been any attempt to identify Section 41 habitats and species at risk. Since this process could well identify the need for further ecological surveys, it should have been undertaken early on since an informed decision about the proposed development cannot be made without adequate information.
We would draw attention to the lack of information in the PEIR about Necklace Ground-beetle, a NERC Act Species of Principal Importance which is also categorised as Endangered in the British Red List. There is also a lack of information about impacts on the numerous birds which occur regularly at Rawcliffe Meadows and are Species of Principal Importance. These include Dunnock, Bullfinch, Linnet, Tree Sparrow, Yellowhammer, Corn Bunting and Reed Bunting. There is almost no reference to the arable habitat on the Cornfield Nature Reserve, which has been managed for farmland wildlife since 2000 and in some years supports regionally important numbers of threatened farmland birds. This arable habitat also supports several declining cornfield plants such as Corn Spurrey, Corn Mint and Corn Marigold.
Historic environment assessment
We would like to highlight a number of shortcomings with the section on historic environment in the PIER, which should be addressed through the EIA. We note that while Friends of Rawcliffe Meadows have been closely involved in studying the landscape history of the Ouse floodplain for many years, and have helped produce publications on the subject, we have never been consulted by the applicant on this subject.
With reference to historic mapping, section 4.6.1 of the PIER refers to early Ordnance Survey maps. However, several earlier maps are readily available and should be considered as they show the evolution of the local landscape.
The account of the agricultural history of the land between Clifton Ings and Shipton Road on page 41 of the PIER is misleading as only small areas remained arable cultivation in the early 19th century. The majority of the grassland on what is now Rawcliffe Meadows (at least to the south of the Chapel) appears to have been permanent grassland since the early to mid 17th century. This is significant because it has implications for the ‘replaceability’ of the grassland habitat.
The appraisal of physical effects (section 4.6.2 of the PIER) neglects to consider the impacts of ecological mitigation works, which could entail topsoil stripping from several hectares of Rawcliffe Ings.
It is claimed that there is “limited potential” for finding unknown buried remains. However, Friends of Rawcliffe Meadows have found various artefacts on the site, ranging from a Roman pot (deposited with the Portable Antiquities Scheme) to 18th century clay pipes.
Soils and ground conditions
Section 5.4 of the PIER refers to soils and ground conditions. We consider a proper understanding of effects on soils to be essential since soil structure is fundamental to the condition of the SSSI grassland and its capacity to produce a high-quality hay crop. We note that previous, small-scale repairs to the Barrier Bank have resulted in serious soil compaction and structural damage within the SSSI, one symptom being the proliferation of rushes in reinstated areas.
Although it is asserted that “There are no historical or active landfill sites within the proposed project”, this is presumably based on a cursory check of registered sites. In fact we are aware of at least one historic rubbish tip, presumably associated with the former Clifton Hospital. We are also aware of builders’ rubble being buried at the rear of the Barrier Bank in one location, and the presence of tipped rubble within the flood basin.
 This plant community is referred to in the National Vegetation Classification as MG4 grassland. Clifton Ings and Rawcliffe Meadows SSSI is designated as a nationally important example of MG4 grassland, alongside MG8 grassland. The latter community is associated with wetter conditions and occurs on Clifton Ings but not Rawcliffe Meadows.
 CIEEM (2016) Guidelines for Ecological Impact Assessment in the UK and Ireland: Terrestrial, Freshwater and Coastal. 2nd edition. Chartered Institute of Ecology and Environmental Management, Winchester