New Forest East



4 December 2002

Held at Ferry Terminal, 30 Berth, European Way, Eastern Docks, Southampton, before: Mr MICHAEL HURLEY (The Inspector) & Mr ANDREW PHILLIPSON (The Deputy Inspector)

THE INSPECTOR (Mr Michael Hurley): The next person on the list is Dr Julian Lewis MP…

Dr LEWIS: In my opening submission, on 29 November last year, I welcomed you as Inspectors to New Forest East. I am only sorry that this is not applicable in my closing submission today, because we are, of course, well outside the constituency that I represent and outside the area where any container port would be built. But, as the very large turnout yesterday showed, if the Inquiry could not come to New Forest East, the people of New Forest East were determined to come to the Inquiry.

I think it is important, in view of the relatively small numbers here today – as has inevitably been the case on most of the days of the Inquiry that have been held outside the constituency, here in Southampton – to take a short tour back to examine the strength of feeling that has been shown on either side of the argument.

Over 6,500 people objected to the Dibden Bay scheme and an on-going petition has generated so far over 13,000 signatures merely since the middle of September this year. Thanks to the courtesy and the efficiency of Val Lucas in the Inquiry Secretariat, my office has been furnished with a complete set of the photocopied representations that were made in favour of the Dibden Bay scheme as submitted to the then DETR.

This file of representations in favour of building the Port adds up to a total of merely 170 representations from organisations and individuals. Of these, just 43 came from individuals who are actually based in the constituency of New Forest East where the container port would be built if it were given permission to come into existence. This does not suggest a level of overriding public interest (at least in the area most directly affected by the building of this Port) in favour of the Port being built.

Out of the 170 representations, there were 122 which were from outside my constituency and a further 5 in the form of e-mails where no postal address was given.

Many of the representations supporting ABP came from firms or individuals either directly employed by the company or else indirectly connected by reason of commercial or professional links. Let me refer to just a couple of these.

One of them was representation 4553, which I believe was a perfectly proper representation from Laura Mark, who quite rightly declared her interest as Public Relations Manager at the Port for what was then the past 18 months – she wrote this letter in November 2000 – and she set out in some detail her reasons for supporting the scheme.

The same could not quite be said for Mr David d’Arcy Hughes who made representation 4545 on behalf of the firm of Bond Pearce, solicitors. It may be that he thought that it was well enough known that these were in fact the solicitors for ABP, and possibly that is why he did not take the trouble to mention that in his letter. It was a rather short letter, but it did at least make one revealing comment. It suggested that the building of Dibden Bay will

"enable Associated British Ports to make more effective use of the existing port operational areas".

I think that was perhaps a little bit of a Freudian slip, because it is of the essence of the case of many of us who object to the proposed developments that this is precisely what ABP wish to do: they wish to use the existing port operational areas for other purposes.

The other purposes, we contend, for which they wish to use those areas are the purposes of property development; and the purpose of the Dibden Bay scheme, primarily – which has been stuck to by its advocates in ABP no matter how much the surrounding landscape has changed – that purpose has consistently been to free up existing valuable land on the Southampton side of Southampton Water for commercial development by moving existing port operations elsewhere. I will come back to that later on in my presentation.

The final representations I would like to refer to specifically are ones from a family, the Facey family. Mr R Facey of 14 St John’s Glebe, Rownhams, Southampton, makes a modest case in favour of the Port. It amounts to one sentence:

"Dear Sir: May I take this opportunity to register my support for the proposed development of Dibden Bay."

That is representation 5381. There is then representation 4541, clearly from the same address, typed on the same computer, in identical words, from Mrs J Facey; and, finally – from a different address – a Mrs H M Facey, with a variation on the theme. Her letter says:

"Dear Sir: I write in support of the proposal by ABP to develop Dibden Bay for port-related activity."

There is some difference in the layout of this letter: that which was not in italics in the earlier letters is now in italics and that which was in italics in the earlier letters is now not in italics. But that is representation 4548. So we have three representations, counting towards this total of 170 altogether in favour of the Port, from the same family.

Now, I understand from the Electoral Register that Mr Facey, at the address I gave before, is actually Mr Raymond V. Facey. An article in the September 2002 edition of Ports – The Magazine of Associated British Ports Holdings plc, has a little picture of a gentleman called Ray Facey, Commercial Manager, Port of Southampton, and my office tells me that, according to inquiries they have made, his name is “Mr Raymond V. Facey”, which is the same name as the name on the Electoral Register for the person who so ingeniously managed to get three representations for the price of one.

If I am mistaken – if this is not the same individual – I apologise; but if it is, I think it suggests a degree of attempted manipulation. This is of marginal relevance but a degree of interest when we are concerned with questions of good faith at an Inquiry, because it is of the essence of the case that I put forward back in November 2001 that one cannot rely on ABP in making representations to this Inquiry, or generally in public about their intentions, that they intend to carry out that which they say they are going to carry out.

As for the support for this scheme shown by Southampton City Council, it surely is almost without precedent for one Local Authority to spend very large sums of Council Taxpayers' money on sponsoring an unwanted development on the territory of a completely different Local Authority. Perhaps we in New Forest East and within the area of New Forest District Council ought to start spending public money on a campaign for the Marchwood incinerator – which will no doubt  serve Southampton to a considerable degree – to be sited outside our area and in the area of Southampton City Council. That would be quite a good parallel to the way in which Southampton City Council have been behaving on this vital matter for the welfare of my constituency and my residents.

Referring to the residents, I would like to take this opportunity to pay public tribute to the magnificent work of Paul Vickers and the Residents Against Dibden Bay Port. ABP could not be blamed for feeling slightly sore at the fact that they have come up against someone not only with an interest in, and commitment to, preventing this development, but someone as knowledgeable about the industry as Mr Vickers. I count myself very lucky as a local MP to have had someone of that calibre able to make such a forceful presentation. But you will be well aware of the many other vital presentations that have been made by representative organisations in the area consistently throughout this Inquiry – not least by the one just so ably made by Councillor Graham Parkes immediately before mine.

Now, I wish to focus on just a few salient areas.

The first of these areas is the question of alternatives. Regulation 49(1) of the Habitat Directive states as follows – and the heading for section 49 is "Considerations of Overriding Public Interest" – 49(1) states:

"If they are satisfied that, there being no alternative solutions, the plan or project must be carried out for imperative reasons of overriding public interest, which subject to paragraph (2) may be of a social or economic nature, the competent authority may agree to the plan or project notwithstanding a negative assessment of the implications for the site."

And paragraph (2) states:

"Where the site concerned hosts a priority natural habitat type or a priority species, the reasons referred to in paragraph (1) must be either: (a) reasons relating to human health, public safety, or beneficial consequences of primary importance to the environment, or (b) other reasons which in the opinion of the European Commission are imperative reasons of overriding public interest."

Now, I suspect, Sir, you did not really need me to read those regulations out yet again; I suspect you have had them quoted to you time and time again throughout this Inquiry. But let me look at it, as it were, from the point of view of a non-expert – as someone whose profession is the trade in words in what I would like to think is sometimes their common sense rather than their strict legalistic formulation.

When one looks at those likely exceptions one asks: Is the “overriding public interest” concerned in this proposal relating to human health? No, I do not think even ABP would say that it is going to do a lot for human health to turn Dibden Bay into a container port. Is it relating to public safety? Bearing in mind all you have heard about the implications for road traffic involved in this scheme, and the very questionable way in which the huge amount of 24-hour-a-day traffic would have to be catered for, I do not think public safety screams out as an obvious reason to override the requirements of the regulations.

Are we talking of Dibden Bay as a container port creating beneficial consequences of primary importance to the environment? Well, they say, Sir, that beauty is in the eye of the beholder, and I am sure there are many people somewhere in the Universe who would regard a Dibden Bay container port as a beautiful, and indeed artistic, creation; but I do not think many of them will be found to testify to this Inquiry.

So what does that leave? What it leaves is clause (b), other reasons which in the opinion of the Commission are imperative reasons of overriding public interest. Now, even then that would be a matter of discretion not obligation for the Inspectors; but, really, what is ABP's case for focusing on that as their sole chance of being able to build this port? Because that is, let us be frank about it, their sole chance of being able to build this port. What they are saying is that there are no alternatives to building the port in Dibden Bay if Southampton is to be able to expand its container port capacity.

But that I do not believe to be the intention of this regulation. It is not meant to say that there are no local alternatives to doing this, it is meant to say there are no national alternatives. The only alternatives that ABP have been considering are other sites for Southampton Port in other parts of Southampton Water. This is nothing to do with the needs of the nation.

Now, I seem to recall, Sir, that we discussed right at the outset of the Inquiry the fact that you clearly are examining the case involving Dibden Bay, and you are not conducting here an inquiry into Bathside Bay in Harwich, or Shell Haven/London Gateway in Essex, or Thamesport; and now, of course, since the Inquiry began, there has been yet another very viable, very important suggestion, which is the possibility of Hunterston on the Clyde. It is n t for you to pronounce on the viability of those alternatives, but it is for you, I respectfully suggest, Sir, to consider the fact that those alternatives very probably do exist. And that is what is meant by alternatives in any common-sense reading of the regulations that I inflicted on you once again by way of quotation.

I said in my initial presentation in November last year that it was hard to imagine, from what we have heard from ABP, that there would be any set of circumstances – any long list of alternative sites, any proposed increase in container capacity anywhere around the rest of the country – that would then finally persuade ABP to put up their hands and say: "Okay, fair cop, guv. We admit it: we do not need to build Dibden Bay. Indeed, these other places will take up all the capacity and all the extra trade that is likely to be generated."

They may wish to take a perverse attitude; but I do not think it is for this Inquiry to take a perverse attitude.

The basis of their case seems to be a technique that we in the trade of politics call “shroud-waving”. Shroud-waving, Sir, as I am sure you are aware, means: "If you don't do things our way it is going to be an absolute disaster." ABP have been shroud-waving on the question of Dibden Bay right from the outset. Sometimes they wave entirely different shrouds, but as long as they have got a shroud to wave they do not mind which it is.

Right at the beginning, as I said back in November, their argument was a different one from what it has since become. Their argument was that, with a limited number of container firms operating in the industry, if Southampton did not expand, because of the economic savings to be gained by a container firm having only a single port of entry into the United Kingdom, not only would Southampton not get the extra trade failing expansion into Dibden Bay, but they would lose the existing trade because the limited number of container companies – some or all of them – would take away their existing trade and put it all into an alternative site, where all the trade could be carried out through a single port of entry.

As I said to you at that time all those months ago, I found that quite a convincing argument. I thought it sounded very reasonable to me and I was persuaded by it. At that time I genuinely thought, if I had been asked to put odds on the matter, that it was probably about 75 percent to 80 percent likely that ABP were going to be successful in arguing that there was no alternative to building this port for those reasons. However, developments proved this wrong.

First came the prospect of Shell Haven, a redundant oil refinery in Essex, being turned into a desired container port on a brownfield site. I told the Inquiry then the history of how ABP sought to ridicule the scheme and say it was impracticable – to say, for example, by way of objection, that the M25 would not be capable of coping with the traffic into and out of a container port. This I found straight away rather bizarre considering the claims that were being made for the ability of the A326 to cope with traffic into and out of any Dibden Bay Container Port.

But then, following Shell Haven, came talk of Bathside Bay, talk of the other expansions I have listed, and suddenly I found that the argument that had seemed so convincing at first from ABP was no longer being deployed. Suddenly their tune had altered completely and they were saying that, even if all these other container ports expanded or were built – even with all that extra capacity around the country – there would still be enough increase in container trade to make the Dibden Bay port viable in addition to all those other ports.

I thought to myself:

“Hang on, something is wrong here. What has happened to the argument about the small number of container companies not being willing to divide their trade up amongst more than one port of entry?”

As I say, this is relevant because in permitting ABP to do what it wants to do in relation to Dibden Bay, regard surely must be had to the reliability of ABP in terms of the commitments that it is giving to the public at large and to the Inquiry in particular.

Let me come back to shroud-waving. We are told that Southampton Port must expand or die. But is that really true in respect of the container trade? Would Southampton Port die as a major commercial entity if the container trade did not expand into Dibden Bay? I doubt it. When one considers ABP's other activities, they include car imports and exports. Will that be affected badly by a failure to expand the container trade? No. Will cruise liners be affected badly by a failure to expand the container trade? No. Will aggregates be affected badly by a failure to expand the container trade? No. Grain? No. Non-port activities such as car inspections, car component manufacture, bottling, a Post Office sorting office, car parking for cruise passengers? No, no, no, no, no – as a certain great lady once said.

Which of these other industries are going to go down, even if the SCT Terminal actually died – which would be the worst possible outcome if everything ABP says about Southampton Port came true? Which would go down? None of those activities. And I do not believe for one moment that the SCT Terminal would go down either. After all, ABP have been anxious enough to say throughout this Inquiry that the SCT Terminal, and indeed Southampton Port in general, have advantages for the container trade, and those advantages will remain for the limited Terminal, if that is all they have to work with.

You will have heard evidence from people far more expert than I that the SCT Terminal is not being used to anything like its full capacity, and it will be interesting to see, if this proposal is turned down, whether ABP will finally pull their finger out and start to rack up the capacity of the SCT Terminal to where it ought to be.

So ABP are trying to argue that it is still in the overriding national economic interest that Southampton should be a prime container terminal, even if the nation is being completely adequately served by alternative container ports. Their idea of alternatives is alternative sites, for a Southampton Port expansion, not alternatives to a Southampton Port expansion itself. I submit that this is a perverse reading on any basis of common-sense of the exceptions granted by Regulation 49 of the Habitat Directive, and I do not think that ABP's narrow and restricted view of "alternatives" would stand up in court.

I refer briefly to an analogy. Cliffe, on the north Kent coast, is in some ways like Dibden Bay in that it houses a protected area of mudflats and marshes vital to the bird population. Objectors who are trying to save Cliffe from having a huge airport being built there have argued that this site must not be destroyed, under the regulations, without all alternatives being considered. The Government argued that Gatwick should not be considered as an alternative site for the airport that is being talked about because of an agreement between West Sussex County Council and the British Airports Authority to have no extra runways at Gatwick until the year 2019. One might have thought that the High Court would have hesitated before overruling such a legal agreement, but this is exactly what has just happened.

The Court has taken a very firm view of the requirement by the Habitat Directive that all alternatives must be considered before a European protected site can be destroyed or degraded, even where there is a legally binding agreement in relation to one of those alternatives that it is not going to be developed further. This clearly shows that the provisions requiring there to be no alternative to a development means no alternative overall location, not just no alternative local site, such as in the Southampton area, for an expansion of an existing container port.

Moving on, since my first submission there have been a number of container port developments: at Felixstowe, permission has been granted for one berth, estimated cost £25 million; at Tilbury, one new berth has actually been built, cost £25 million; at Harwich, Bathside Bay, they are expecting to build four berths, but because they already have the road and rail links that are needed and much smaller environmental mitigation costs would have to be incurred, to build those first four berths would cost £300 million.

At Dibden Bay, if it happens, the cost for the first two berths – two berths not four – is £400 million. So that works out very substantially more expensive than the potential competition.

Now, a few other little points I would like to refer to: ABP, in cross-examination, have had to accept that their compensation scheme will not create a similar or equivalent feeding habitat for the bird population. ABP are trying also to buy a 10-year option to develop Dibden Bay for a port. They are not actually, as I understand it, seeking permission to develop a port and only a port, but to be able to carry out other activities pending the building of the port. That suggests a degree of uncertainty.

Despite all their protestations about how sure they are the container trade is going to expand and make it so absolutely essential that this container port is built – despite all that – it suggests to me that really what they are trying to do is to get a foot in the developmental door of Dibden Bay so that the site can effectively be ruined before regulations become tighter and tighter (as they already have done in past years) in future years.

I have in mind a parallel that comes back to me in architectural terms. I remember that there were two great Art Deco buildings on the periphery of London. One was the Hoover Building, which mercifully still exists today, and the other was the Firestone Building, which was a classic of its type. The developers who wished to develop that site managed to go in 24 hours before a listing restriction was placed on that building and smash up all the architecturally valuable parts of the Firestone Building so that there could be no hope of saving it for its aesthetic worth. I think that that is what is planned here. I think that the argument for developing a container port is being used to enable the despoliation of Dibden Bay in the meantime, so that if eventually the Container Port is not even built it will be too late to stop the land being developed for any other purpose.

On the other hand, if the Port is eventually built, then the possibility will arise, as I referred to in my opening submission – and as I know other submissions have emphasised to you time and again – for the closure of the SCT Terminal and the development of the land on which that Terminal stands for property. It may well be that building Dibden Bay is wholly uneconomic now, but if ABP are ever to have a chance of shifting the Southampton Container Terminal operation to Dibden Bay, they have to get permission now to get a foot in the door, because environmental protection is likely to be tougher later on.

During the course of the Inquiry I understand that Hampshire County Council asked ABP if they were willing to agree not to close the SCT operation at least for as long as the existing lease which SCT have from ABP would be running. I understand, Sir, that ABP refused. This suggests that they lack confidence in their own promise that they will not close down SCT and relocate to Dibden Bay in order to pave the way for hugely profitable property development over in Southampton.

Now, I am coming towards the closing sections of my submission, and I would just like to run through a variety of themes that I feel have come out in the course of the Inquiry.

Dibden Bay is clearly the most expensive of the developments which are being proposed around the country for new or expanded container ports. RADBP have given evidence which questions the viability of Dibden Bay as a container port. An independent stockbroker report by WestLB Panmure makes the same point. ABP's calculation of need is based on a presumed compound growth in container handling of 5.2% per annum, and it assumes that port efficiency will grow at only 1.5% per annum and that Dibden Bay will achieve a remarkable 30% transshipment activity level. Yet there is no evidence to demonstrate that 5.2% growth is likely or sustainable. The historic improvement in the port efficiency has actually been much greater than 1.5%, and indeed at this level annual inflation would drive up operating costs which would then make it unsustainable. And the existing container port achieves only 9% transshipment, so why should Dibden Bay achieve 30% transshipment?

In 1997, when the port proposal was first announced, ABP said that a shortfall in container handling capacity was imminent and that Dibden Bay had to be on stream in 2001 to save the nation. Is it not rather curious that this date keeps retreating? If the reason for that is the alternative capacity that is continuously being announced, is it not likely that this date could, should and will retreat into infinity? I understand that the South East and Anglia Port Authority Group (SEAPLAG) in a report on sea ports recommended that the final expansion at Felixstowe and the proposed development at Shell Haven should be promoted in preference to other options, and I believe that Southampton City Council, the great and ardent supporters of the Dibden Bay Container Port Project, are themselves part of the South East and Anglia Port Authority Group.

The Strategic Rail Authority has stated that there are no rail paths between Southampton and the West Coast Main Line and that £1 billion is needed to make these possible. Even if pathways are created, there is no presumption that they would go to Dibden Bay. There will be demand due to growth from SCT, growth in the car trade and in the military. ABP have no chance of meeting their stated intention to have 35% of the traffic go by rail.

Dibden Bay, out of all these proposals, remains the only one that directly destroys a protected site.

Southampton is also the only major port in North West Europe with an entrance channel that is dredged to only 12.6 metres. Captain Chestnutt has admitted, under cross-examination, that a dredge is likely, or otherwise the next generation of container ships, which will have of course a 15 metre draught, will not be able to enter Southampton on around 25% of the days in the year. At other major ports the channels are at a depth that 15 metre draught container ships will have an access window of most of the tidal cycle. At the moment, ships can get into Southampton on the high tide, but in future, on 79 out of 365 days in the year, even this will not be possible. A dredge will be inevitable, with further serious environmental consequences.

There is also a need to comment on the impact on the quality of life of the Waterside residents. The last known application for Dibden Bay to be developed by ABP was for housing in 1988. ABP constantly refer, by way of cover, to the existing presence of the Esso Refinery and the Military Port on the edge of the New Forest as acceptable reasons for having even more development. But one cannot compare either the circumstances or the planning regime that existed at that time with today, when environmental standards are so much higher. The comparison with the refinery and the nearby housing is particularly not valid. The first refinery was built in 1921 and the existing one in 1951. And the housing developments came later, so at least the purchasers knew what they were buying into. You cannot say the same for the residents of Hythe and Marchwood in respect of the Dibden Bay proposal.

Now, one has to conclude by asking what is ABP's motivation? I have indicated one theme consistently in my first presentation – and I have repeated in it in today’s presentation – that it is in part to free up the land where SCT Container Terminal is now for lucrative property development. But I have been particularly exercised by the fact that at the start of this Inquiry ABP submitted an application to amend the Harbour Revision Order. This application included a request for permission to operate any part of Dibden Bay as a car terminal operation "as long as the Container Port is under construction". Now, this could stretch to infinity, and it opens up the prospect not only of the SCT land being freed up, as I have repeatedly said, but also of freeing up huge additional areas, both in the Western Docks and in the Eastern Docks where at present thousands, if not tens of thousands, of cars are stored. It seems, in a sense, that Dibden Bay is to be the clearance area – or some of us might suggest the dumping ground – for all those activities which ABP finds itself stuck with on its much more commercially valuable land in Southampton Port area, and that it wishes it could remove so that it could use that land for something else.

I would like to mention in respect of ABP that, despite everything I have said, I do not blame them for trying to do the best they can for their shareholders. Indeed, if it were my job to do the best I could for their shareholders, I would be recommending that the company do exactly what they are trying to do – to sweep away all those unhappy encumbrances which are preventing extraordinarily valuable land in the Southampton Container Port area from being fully exploited to the maximum for commercially profitable, property-based purposes. But their priorities are not my priorities, as the elected representative for the residents of New Forest East, and above all, Sir, I respectfully submit they are certainly not the priorities either of the Secretary of State or for this Inquiry. Our priorities are to see whether there is an alternative, whether the project is necessary and whether it is viable.

There are alternatives, the project is not necessary, it is not viable and it really ought to be rejected out of hand.