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Sayers S (Scott)

From: Linda Abercrombie [[email protected]] on behalf of Martin Sales [[email protected]]

Sent: 01 June 2012 15:14To: Sayers S (Scott)Cc: Alexander Hallatt-BDB for Forth Ports; Forth Ports; Fife Council; Mrs Hamilton; SNH;

Suzanne McIntoshSubject: RICT ORDER [BBLAW-BiggartBaillie.FID446465]Attachments: RICT - FP Amendments - Applicant_s Further Response - Clean(4454580_1)

(4454599_1).PDF; RICT - FP Amendments - Applicant_s Further Response - Tracked(4454414_1)(4454605_1).PDF

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06/06/2012

Dear Scott With reference to the e‐mails and attachments sent to you and the principal parties by my colleague, Neil Amner, on Monday 28 May 2012, it has come to our attention that a penultimate draft of the Applicant’s Further Response was sent in error. Accordingly, we attach the final version of the same document, showing with tracked changes, the few relatively minor corrections made, together with a ‘clean’ copy of the document incorporating those corrections. Please convey our apologies to the Reporters for any inconvenience this may have caused. Regards, Dr Martin Sales | Partner - Accredited Specialist Planning Biggart Baillie LLP | No 2. Lochrin Square | 96 Fountainbridge | Edinburgh | EH3 9QA t: 0131 226 5541 | dd: 0131 474 2420| f: 0131 226 2278 e: [email protected] | w: www.biggartbaillie.co.uk Take The Environment Personally - Think Before You Print! www.biggartbaillie.co.uk

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06/06/2012

A/4454414/1 32870.14

RICT ORDER

APPLICANT’S FURTHER REPONSE

TO

FORTH PORTS PROPOSED AMENDMENTS

The nature and effect of amendments to RICT Order proposed by Forth Ports

Introduction

This Further Response provides an overview of the nature and likely effect (rather than a point by

point examination) and a statement of the Applicant’s position in respect of the amendments

proposed in the submission by Bircham Dyson Bell on behalf of Forth Ports dated 4 May 2012.

Summary

The amendments sought can be grouped and summarised as follows :

1. No or only restricted extension of the PBR port limits;

2. Conditionality to the extension of the PBR port limits;

3. Amendment of the HEO to add an “open port duty”;

4. Denial of power to dredge and insertion of “protective provisions” for Forth Ports’ benefit, in

essence supplementing the 1969 Act by adding fresh requirements for Forth Ports’ dredging

and works licensing;

5. Restriction of permitted development rights and imposition of development conditions;

6. Reinstatement of ES Commitments at odds with the mitigation measures schedule and CEMP

provisions;

7. Assumption of an environmental protection role for Forth Ports;

8. Imposition of pre-operation and use conditions;

9. Creation of “trumping” powers on harbour master functions; and

10. Imposition of a widely drawn indemnity in Forth Ports favour.

2

Detailed review

1. No or restricted extension of the PBR port limits

(Amendments 5, 6, 12, 13 and 30)

Forth Ports’ original objection dated 28 February 2011 (page 7 onwards) and subsequent

correspondence and Inquiry materials were framed very much with the stated position that Forth Ports

objected to any carve out from its jurisdiction. Various justifications were stated and maintained for

that position.

Nonetheless, Forth Ports only latterly put forward an alternative proposal in support of its Objection for

slightly extended port limits, although well short of the extent sought by the Applicant.

The Applicant’s Draft seeks to extend the Port Babcock Rosyth (“PBR”) port limits to take in the

Rosyth Protected Area (as marked on the Admiralty Chart) in so far as adjacent to PBR, the berthing

pockets adjoining PBR and the area for the access channel to the RICT.

The Forth Ports’ Amendments seek to delete the provisions in the Applicant’s Draft which would

provide for the extended PBR port limits. Forth Ports has, separately, provided for its fallback position

of a limited extension of little more than a 30 metre wide “skirt” on the river side of PBR’s existing

limits.

Forth Ports can therefore be seen as seeking to curtail the expansion of the Applicant’s jurisdiction

by three means:

- Initially, by objecting to any extension;

- Thereafter, seeking to limit the extension of the PBR port limits to the 30 metres referred

to immediately above; and

- Lastly, by demanding that limits should be imposed on both the powers and rights which

the Applicant will have within any extension of the existing port limits.

The final element manifests itself in the various other proposed amendments which are addressed

later. Not least amongst those amendments are those which seek to deny or otherwise put obstacles

in the way of the Applicant exercising dredging powers, including Forth Ports unwarranted demands

for protective provisions. Those matters are reviewed separately under heading 4 below. For reasons

already amplified upon in closing submissions, the Applicant records that dredging powers and

control issues and the extension of PBR port limits are inexorably linked in that the latter provides an

answer to many of the points arising in respect of the former.

The Applicant’s position is that Forth Ports has failed to establish why the Applicant should not be

granted the jurisdictional extension sought by the Applicant’s Draft and relative deposited plans.

3

The Applicant’s further position is that Forth Ports’ stated reasons and further explanations require to

be viewed as disingenuous in light of the wider agenda clearly being pursued by Forth Ports for its

own self-serving, commercial ends rather than for any genuine, objectively credible reason.

The notional 30 metre extension now offered by Forth Ports in lieu of the wider limits sought by the

Applicant is in any event largely outwith Forth Ports’ jurisdiction.

The Applicant’s position is that neither the proposed extension of the PBR port limits to the east of

the existing port limits (including around the South Arm), nor the areas immediately on the river side

of the existing PBR port limits nor the access channel to the Contractors Jetty are within Forth Ports ’

jurisdiction. That is because such areas comprise works on the bed of the Forth constructed by the

Secretary of State for Defence and so are explicitly excluded in terms of Schedule 1 to the Forth

Ports Authority Order Confirmation Act 1969 (“the 1969 Act”)(APP-T1).

At an Inquiry into objections made and maintained, Forth Ports has given no credible justification in

evidence not to allow the full extension of limits now sought by the Applicant .

In contrast, the Applicant has given justification for the extension of limits, as set out in the Applicant’s

closing submissions (paragraph 4.121 (page 194) onwards).

Forth Ports relies exclusively on the London Gateway port limits for this Amendment in terms of its

Further explanation; yet has not submitted any information on those limits to the Inquiry process (or

even with its Further Explanation) to assist with understanding the relevance of the London Gateway

approach and in particular the context of the setting within the river and the jurisdictional extent and

interfaces.

The Applicant submits that Forth Ports’ characterisation of the London Gateway jurisdictional

arrangements as being an appropriate precedent for RICT does not withstand scrutiny.

The Applicant notes from Volume 1 of the Inspector’s Report relative to the London Gateway Port

Harbour Empowerment Order 2008 (“LG Order”) (APP-T8), at paragraph 2.42 (page 13), that the

London Gateway (“LG”) capital dredging (and presumably maintenance dredging thereafter) includes

a 54 km long channel extending seaward from the LG berths out into the English Channel. The same

report (at paragraph 2.14) refers to the development encompassing 5,433 ha of the Thames Estuary

and (at paragraph 2.21) 32 Mm3 of dredged arisings.

Having been called upon to do so, Forth Ports’ agents have now provided the Applicant’s agents with

the plan which is attached to this Further Response for the Applicant.

The Applicant also refers to the following links from the Port of London Authority (“PLA”)’s website

being :

a map showing the setting of LG in the Thames relative to other commercial ports on

that river - http://www.pla.co.uk/handbook/terminal_map.cfm/terminal_pos/0; and

a listing of the commercial ports, wharfs and piers on Thames – 56 in total.

4

The Applicant would highlight the following matters which the Applicant submits are discernable from

the information referred to in the three immediately preceding paragraphs :

1. in terms of scale, LG is overwhelmingly greater than RICT;

2. LG sits towards the mouth of the Thames, whilst RICT is upstream;

3. Whilst only Grangemouth and Crombie are upstream of RICT, there are 52 terminals

upstream of LG;

4. It is not unreasonable to surmise that the Thames is a far busier river in terms of numbers of

ship movements and volume of goods moved than the Forth;

5. RICT involves relatively modest tidal works (namely, construction of the dolphins, works to the

Contractors’ Jetty and in so far as considered tidal works, the removal of the bund retaining

wall). The RICT berths do not extend into the Forth. LG in contrast involves building into the

river to an extent of approximately 25% to 30% of the previous width of the river. Accordingly,

the nature of the LG works is materially different from the RICT works;

6. The LG jurisdiction comprises approximately a third of the width of the river prior to the LG

works along the LG frontage;

7. RICT dredging is to form a short access spur which stops short of the main channel; LG

includes dredging in the main channel, and that for 54km;

8. LG’s limits of deviation for dredging encompass the full width of the main channel of the

Thames plus a 50% to 100% margin on either side. The RICT dredging limits do not encroach

on the Forth main channel at all;

9. LG’s limits of deviation for dredging are only partly within LG’s area of jurisdiction and are

mostly within PLA’s jurisdiction. The Applicant’s proposal is that the RICT dredging limits

should be wholly within the extended PBR port limits;

10. The RICT berthing pockets will be wholly within the existing PBR limits (a matter which has

not been questioned even by Forth Ports) whereas the LG berthing pockets straddle the

dividing line between LG and PLA jurisdictions.

The Applicant will return to the above analysis when responding to Amendment 32 (protective

provisions).

The Applicant submits that the LG Order is not a suitable precedent for the proposed Order as the LG

Order provides particular measures to address the circumstances of that port development that are

not generic to a container port development on a river estuary with an estuary statutory harbour and

pilotage authority but rather are peculiar to the particular circumstances of that port development

including the nature of its setting.

The Thames’ main channel is an existing historic navigation channel used by and available to all

ships entering and leaving the Thames. LG’s capital dredging is deepening that channel to cater for

the larger container ships which will call at the new port, work which would be undertaken by PLA if it

saw a need for such work in general terms.

It is therefore, in the Applicant’s submission, quite a different situation from the RICT where the capital

and maintenance dredging relates solely to a new channel for the exclusive use of the RICT, and

5

which does not in relation to use have any material effect on navigation along the main Forth shipping

channel to Grangemouth, or have any general benefit or disbenefit to other users of the Forth.

While the Applicant can appreciate why PLA ought to retain control of dredging within what is a

common user channel critical to the whole of Thames shipping, the Applicant does not accept that

Forth Ports has justified the basis upon which it should have control over dredging of the single user

RICT channel when the Applicant, rather than Forth Ports, would have responsibility for the safe

navigation of that channel.

By analogy, the LG berths are akin in configuration and setting to parking bays for on-street parking

alongside a main road; whereas the RICT berths are akin to being spaces at the end of a private

driveway off a minor road.

By use of that analogy, the Applicant can understand that there would be a need for PLA to retain

control not only over works in the main road (for which it would remain responsible to third parties for

managing) but that it would need to also need to be able to regulate the on-street parking bays too. In

contrast, there is no such justification for either form of control of a private driveway and thus it is

neither appropriate nor proportionate to extend controls from the LG Order to the RICT Order.

The Applicant addressed such matters through the evidence of Captain Keenor at the Inquiry.

In so far as there are alternatives to the LG Order for precedents for port development on a river

estuary with an estuary statutory harbour and pilotage authority, the Applicant refers to:

A. The port limits established by the North Killingholme Haven HEO 1994 which (in terms of

article 4 (1) of that Order) are “the jetty premises together with so much of the river as lies

within the area of water adjacent to those premises and which is bounded by an imaginary

line 100 metres from the works”; and

B. Forth Ports’ own document FP73, The Harwich Parkeston Bay HRO 2010, which provides (in

Schedule 2) for port limits consisting inter alia of boundaries “200 metres riverward of the

existing quay face”.

By comparison to the limits of other harbour authorities whose port sits within the jurisdiction of

another (typically estuary authority), the extension of limits sought by the Applicant is not excessive.

Not only has the Applicant set out and substantiated its reasons for seeking an extension of

jurisdiction into the river but it has, in light of concern expressed with its original proposal, modified the

extent of the extension sought (by removing the outermost triangle) to the limits now proposed in

terms of the Applicant’s Draft. The effect of that modification (in addition to reducing the extent of the

extension into the river) is to remove the navigational significance of the remaining marginal incursion

into the main river channel.

6

The Applicant has separately offered a solution (referred to under heading 3 of this Further

Response) to concerns raised about the absence of rights of navigation through the extended PBR

port limits.

In contrast, the extension which Forth Ports appear begrudgingly to concede is less than a third of

that of the smallest comparable scenario identified above and without any substantiation of the 30

metres proposed by Forth Ports being offered by it, other than by reference to the LG Order. Citing a

precedent is not sufficient in the absence of an explanation as to the relevance and appropriateness

of applying the precedent. The fact there is a different river estuary harbour authority is not by itself

sufficient when it is possible to point to other such situations where different approaches have been

taken to extension of jurisdiction into the river. Forth Ports simply ignores in its Further explanation

the differences that exist between the navigational considerations that apply on the Thames as

compared to the Forth.

The Applicant’s submits that the full extension sought in terms of the Applicant’s Draft should be

granted. Although greater in front of the RICT berthing pockets (to allow for the construction and

maintenance of the RICT access channel and dredging of that), the Applicant’s proposal generally

follows the Rosyth Protected Area boundary shown on the Admiralty Chart and (with the stated

exception) only extends between 100 and 150 metres into the river from the existing PBR port limits.

A separate issue arises in relation to Forth Ports’ use of its own plan, showing what it represents as

the Applicant’s proposed port limits as an area outlined in red. The Applicant does not accept that the

plan produced by Forth Ports entitled “Comparison of Proposed HRO Boundaries” accurately

represents the proposed port limits as described in Schedule 1 to the Applicant’s Draft and shown on

Sheet I Rev A. The blue line indicates the initial HRO boundary but points 19 to 23 are located in

different positions compared to the first drawing submitted by Forth Ports to the Inquiry in the

afternoon of Thursday 2 February 2012. On the more recent “Comparison” drawing, the red line

boundary shown on Forth Ports’ drawing does not accurately represent the modified port boundary as

shown on Sheet I Rev A. It is to be noted that the plan produced by Forth Ports does not bear to

indicate that it has been drawn to scale nor does it appear to make use of coordinates for any of the

proposed boundaries, including their own suggested alternative. No explanation has been provided

by Forth Ports for these discrepancies and the Reporters are invited to accept that the “Comparisons”

plan does not accurately show the area that would be included within “the outer harbour limits”.

The Applicant submits that Forth Ports has failed to establish why the Applicant should not be granted

the jurisdictional extension sought in terms of the Applicant’s Draft and relative deposited plans. This

proposed amendment is in the Applicant’s submission not proposed by Forth Ports in good faith. It is

yet a further example of attempts by Forth Ports to use any and all means to delay and obstruct the

development of Port Babcock Rosyth, frustrate a NPF2 project and gain an undue advantage over a

commercial rival.

In terms of the 1969 Act, neither the area of proposed extension of the PBR port limits to the east

(including around the South Arm) nor other areas immediately on the river side of the existing PBR

port limits nor the access channel to the Contractors’ Jetty are within Forth Ports’ jurisdiction. That is

7

because such areas comprise works on the bed of the Forth constructed by the Secretary of State for

Defence and so are explicitly excluded in terms of Schedule 1 to the 1969 Act.

The co-incidence of the footprint of those areas and the 30 metre “skirt” proposed by Forth Ports for a

minimal extension in the PBR port limits under Amendment 12 is in, the Applicant’s contention that

the primary motivations for Forth Ports’ whole approach to its objection to the Order, the Inquiry and

now its proposed amendments to the Order are not to yield any jurisdiction and otherwise frustrate its

competitor’s development of a rival container port.

2. Conditionality to the extension of the PBR port limits

(Amendment 11)

The layered position adopted by Forth Ports, referred to above, includes a request for a provision to

the effect that any extension of the PBR port limits will only be effective once the Applicant has

satisfied Scottish Ministers that the Applicant has “arranged for the execution of the works and is

ready to take responsibility as harbour authority for the whole of the port limits”.

There appear to be two limbs to that proposed new test, namely :

A. Certainty of execution of the RICT works; and

B. Readiness (aka competency) to be harbour authority for more than the existing dockyard port.

Such a provision would provide Forth Ports with a platform to at the very least threaten, if not actually

take, legal action to challenge any decision Scottish Ministers might take on that test being met.

This proposed amendment is in the Applicant’s submission not proposed by Forth Ports in good faith.

It is yet a further example of attempts by Forth Ports to use any and all means to delay and obstruct

the development of Port Babcock Rosyth, frustrate NPF2 and gain an undue advantage over a

commercial rival.

Forth Ports has failed to provide any reason why the extension of jurisdiction should not proceed on

the making of the Order. No evidence to support the Amendment now sought was lead at the Inquiry.

In so far as a reason might be surmised for this proposed amendment, article 11 (period for

completion of the works) of the Applicant’s Draft already provides for a limited “shelf life” for the works

powers sought by the Order. Whilst a provision of that nature is very common in recent harbour orders

with works powers, the Amendment sought by Forth Ports is, to the Applicant’s knowledge, wholly

unprecedented.

Forth Ports do not refer to any precedents for the Amendment, for there are none.

8

In the Applicant’s submission, Amendment 11 should not be made in the terms in which it is proposed.

The drafting of the Amendment is ambiguous. The meaning of “arranged” is open to a number of

possible interpretations. Accordingly, it is ambiguous as to what event should be construed as the

Applicant having “arranged for the execution of the works”. The concept of being “ready to take

responsibility” not only ignores the fact that the Applicant is already the statutory harbour authority for

PBR but seems to cut across the role of the MCA and in so doing creates a vires issue.

Forth Ports have, not for the first time, failed to acknowledge that the Applicant is (by virtue of the The

Port Babcock Rosyth Harbour Empowerment Order 2009 (“the HEO”)) already a statutory harbour

authority. Forth Ports’ repeated express and implicit questioning of the Applicant’s competency as a

harbour authority has been consistently shown throughout the Inquiry process to be unfounded. The

Applicant’s closing submissions address such matters in greater detail.

Forth Ports itself extended its own jurisdiction merely by the acquisition of the Port of Rosyth, by virtue

of the definition of “port premises” in terms of the 1969 Act, without any express sanction from

Ministers.

The Applicant has no objection in principle to the transfer of jurisdiction being delayed to an

appropriate point in time. However, the trigger proposed by Forth Ports is too vague and imprecise

for the reasons indicated above.

The Applicant proposes that a suitable trigger would be :

“such date to be specified by Ministers in writing to the Company and to Forth Ports Limited

and by notice in the Edinburgh Gazette, being not less than [42] days after the date of publication of

such notice. Ministers shall not give such notice prior to receipt from the Company of confirmation that

the works have commenced on the works site.”

Forth Ports’ positions in relation to Amendments 11 and 12 appear to the Applicant to be mutually

incompatible, in that this provision would be unnecessary if the Applicant’s proposal to extend the port

limits was not accepted. This is a consistent weakness of the Forth Ports’ submission as it does not

make clear what amendments are being suggested in respect of the different alternative scenarios

created through Forth Ports’ challenge to the extension of the Applicant’s jurisdiction into the Forth. It

is respectfully suggested that the Reporters might obtain clarification from Forth Ports as to which

proposed amendments the Objector contends should apply to which scenario (i.e the Applicant’s

proposed limits as opposed to Forth Ports’ alternative 30 metre skirt).

In this regard, it is not only unclear whether Forth Ports are looking for Amendment 11 to apply should

the extension of the PBR port limits to the full extent sought by the Applicant be granted, or whether

Amendment 11 ought not to apply if only a 30 metre extension in limits is made. It is also unclear

whether, if there are different rights or obligations upon the Applicant in different zones of the port

limits (e.g. inner 30 metres and “outer harbour limits” by virtue of Amendment 10 or the alternative

9

proposed to it – which are discussed under heading 3 below) the extension of limits should be

staggered.

The proposed extension of the PBR port limits to the east of the existing port limits, including around

the South Arm, is not predicated upon the RICT project but rather is desired to reflect the existing

operational requirements of the Applicant. The first sentence of Forth Ports “Further explanation” for

Amendment 12 is consistent with, and appears to the Applicant to support, the Applicant’s rationale.

The Applicant contends that Forth Ports has now conceded that the PBR limits should be extended by

at least 30 metres. The eastern extension of the PBR port limits in the immediate vicinity of the

dockyard basin direct entrance is, in any event, not disputed in respect of a 250 metre or so extension.

Accordingly, the Applicant submits that the PBR limits could be extended by the extent shown

coloured orange on the plan submitted by Forth Ports immediately on the Order having effect, even if

a fuller extension as sought by the Applicant’s Draft (i.e the “outer harbour limits” to adopt the Forth

Ports term) were to the delayed until a further trigger event, as suggested above, has occurred.

3. Amendment of the HEO to add an “open port duty”

(Amendments 9 and 10)

The Applicant’s intention is that so called public rights of navigation, by the application of section 33

of the Harbours, Docks and Piers Clauses Act 1847 (“the 1847 Act”), would not apply within the

RICT Order limits. That is the effect of the terms of the draft Order as applied for when read with the

terms of HEO.

Forth Ports proposes that in the event that the PBR limits are extended beyond the 30 metre “skirt”

comprised in Forth Ports’ fallback position, section 33 of the 1847 Act (“section 33”) should apply in

what Forth Ports terms “the outer harbour limits”.

The meaning and effect of section 33 has not been properly explained in Forth Ports’ narrative.

The Applicant’s position is that section 33 should not apply to the RICT berths or in the immediate

vicinity of the existing PBR port limits.

The Applicant is concerned that section 33 if applied to the outer parts of any extended PBR port

limits would create an entitlement to transshipment (i.e. transfer of cargo (e.g. oil) from one ship at

anchor in that part of the river to another adjacent ship), over which the Applicant would have no

controls.

The Applicant has no objection to rights of transit per se beyond the immediate vicinity of the existing

PBR port limits and offers an alternative provision below.

10

Forth Ports does not cite any precedents to substantiate its position. In particular, Forth Ports has

not sought to demonstrate that such a provision is both appropriate and proportionate in the

circumstances that will apply to the operation of the RICT. It has led no evidence in relation to the

Rosyth Small Boat Channel and the Applicant has dealt in closing submission with the other areas

within the Forth in respect of which it is suggested that an issue may arise in relation to section 33.

The generic references to elements of Captain Baker’s evidence in the Further Explanation are of

little if any assistance. The reliability of Captain Baker’s evidence is in any event addressed in

Chapter 4 of the Applicant’s Closing Submissions.

Separately, there is no basis set out by Forth Ports that suggests the proposition that the

incorporation of section 33 is to be regarded as “standard”.

The incorporation of section 33 in Scotland has not been universal and there is a growing body of

recent Scottish precedents where harbour orders do not incorporate the section.

The incorporation of the 1847 Act into the following recent harbour orders is under exception of inter

alia section 33:

- The Port of Cairnryan HEO 2007, at article 3(1)(APP-T12);

- The Caledonian Maritime Assets Limited (Largs) HRO 2008, at article 3(1)(APP-T6);

- The Loch Ryan Port (Harbour Empowerment) Order 2009, at article 3 (1)(APP-T10);

and

- The Port Babcock Rosyth (Harbour Empowerment) Order 2009, at article 3 (1)(CD-D1).

It is worth noting that (as a port within an estuary for which another party is the harbour authority,

which has many parallels to the RICT), the North Killingholme Haven HEO 1994(APP-T9)

incorporated the 1847 Act under exception of inter alia section 33.

Forth Ports refer to section 33 as a “right of navigation arising under the open port duty” – that,

however, is not how section 33 is expressed: namely, that (subject to the payment of harbour dues)

the port in question “shall be open to all persons for the shipping and unshipping of goods and

embarking and landing of passengers”.

It may well be that the effect of section 33 being incorporated is ordinarily to create a right of

navigation – but specifically to get to or from the relevant pier or quay of the port or harbour in

question to in order to then handle cargo or allow passengers on or off the vessel. That effect is,

however, dependent on the harbour or port being subject to the open port duty which should not arise

at PBR or the proposed RICT for the reasons which are explained below.

Forth Ports is seeking to amend the HEO by an amendment to the draft Order. In pre-application

dialogue with Scottish Government officials in advance of the application for the HEO, the Applicant’s

agents successfully argued that Section 33 of the 1847 Act was not to be incorporated due to the

11

enclosed nature of the dockyard port and the naval related work carried out there in addition to

commercial port activities. The absence of an “open port” duty, along with the inclusion of article 17 of

the HEO, was seen as material to allow naval and commercial activities to co-exist.

Forth Ports seem to have accepted that rationale for the RICT by only seeking to have section 33

applied in what it has referred to as the “outer harbour limits”.

The Reason (revised) stated for this Amendment 10 by Forth Ports when read together with the Forth

Ports proposed revisal to paragraph (1) of article 17 of the HEO seems to indicate that Forth Ports

intend the term “outer harbour limits” to refer to the area lying between a landward line drawn 30

metres into the river from the port limits under the HEO and the extension of the PBR limits sought by

the Applicant in terms of the Applicant’s Draft (i.e. between the orange shading and the red line as

shown on the limits map submitted by Forth Ports). If the Applicant is correct in its understanding, the

definition of “outer harbour limits” will need to be amended – as it currently does not include reference

to a landward boundary line for such limits.

The remainder of this Further Response proceeds on the basis that the immediately preceding

paragraph correctly identifies the area to which Forth Ports wishes section 33 to apply. The

Applicant’s position is reserved if and in so far as the Applicant is incorrect in its deduction of the area

to which Forth Ports are in fact seeking to refer.

Paragraph 4.9 in Chapter 4 of Douglas & Geen, and predecents such as article 42 of the London

Gateway Port HEO 2008 (APP-T8), provide credence for the position that even where section 33 is

incorporated for a specialist facility like a container terminal, it is inappropriate to let any unscheduled

vessel seek to call and so “occupy” the berths – i.e. that the harbour authority should have discretion

to control the allocation of berths. That Forth Ports seeks to amend article 17 of the HEO rather than

delete it indicates Forth Ports acceptance of the Applicant’s position in that regard.

It is curious therefore that Forth Ports have insisted on seeking to have Section 33 incorporated and

also to have article 17 of the HEO limited so as not to apply to the outer harbour limits. That is

because, given what section 33 actually provides for, it is self evident that the amendment which

Forth Ports is seeking would not have the effect which Forth Ports is purportedly looking to achieve.

If Forth Ports actually wishes a provision that is intended to provide for vessels not destined for Port

Babcock Rosyth to be allowed to transit the outer harbour limits, it should have requested such a

provision in those terms.

As it is, the effect of the various amendments proposed by Forth Ports would be that section 33 would

not apply to the berths at the RICT and that the Applicant could in any event control allocation of the

berths (and so the effect of section 33 to lead to a right of navigation would not arise) and yet in its

application to the “outer harbour limits” section 33 would, for example, entitle transhipment in a

manner that may obstruct access to or use of berths or quays at Port Babcock Rosyth or indeed

other transiting vessels.

12

The Applicant records that none of the Maritime and Coastguard Agency, Northern Lighthouse Board,

The Royal Yachting Association or Chamber of Shipping raised any concerns about section 33 not

being incorporated in either the HEO or the HRO.

Amendments of the nature suggested by Forth Ports at Amendment 10 are, in the Applicant’s

submission, neither necessary nor justified.

Forth Ports has, due to the short-comings in Captain Baker’s evidence and the fact that there is no

reference in evidence to support the point made at paragraph 2.1.38 of Forth Ports closing

submissions, failed to explain what legitimate interests of Forth Ports require to be protected; and

have not shown the proposed amendment to be either appropriate or proportionate in the context of

the RICT.

As explained under heading 2 above, in comparison to the limits of other harbour authorities whose

port sits within the jurisdiction of another (typically estuary) authority, the extension of limits sought by

the Applicant is not excessive.

Although greater in front of the RICT berthing pockets (to allow for the construction and maintenance

of the RICT access channel), the Applicant’s proposed new limits in the Applicant’s Draft generally

follows the Rosyth Protected Area boundary shown on the Admiralty Chart and (with the exception

noted above) only extend between 100 and 150 metres into the river from the existing PBR port limits


jurisdiction into the river but it has in light of concern expressed with its original proposal modified the

extension sought (by removing the outermost triangle) to the limits now proposed in terms of the

Applicant’s Draft. The effect of that modification (in addition to significantly reducing the extension into

the river) is to remove for all practical purposes incursion into the main river channel.

If the Reporters or the Scottish Ministers are nonetheless concerned with the issue of navigation by

transiting vessels, then in the Applicant’s submission incorporation of section 33 in the manner

suggested by Forth Ports is not appropriate.

Instead, a provision could be inserted as a new paragraph (6) in article 4 (Limits of port) in the

Applicant’s Draft to the effect that :

“The Company shall permit any vessel not bound for or originating at the port to navigate

through the outer harbour limits subject to payment of any applicable charges and

compliance with the terms of the Port Babcock Rosyth Orders 2009 to 201[X] and any

requirement lawfully promulgated by or on behalf of Company by virtue of powers

thereunder.”

The final limb of the above text is intended to include general / special directions, byelaws and the

like.

13

If such an amendment were to be made then, for consistency, the Applicant would accept that article

17 of the HEO should also be amended so as to apply only to the existing PBR port limits and an

inner zone (whether the first 30 metres or up to the Protected Area line to be determined by the

Scottish Ministers) of the river side extension of those port limits by the HRO (which for convenience

could perhaps be termed the “inner harbour limits”).

The above proposal is consistent with paragraph 4.120 (page 193) of the Applicant’s closing

submissions.

14

4. Dredging – powers, limits, licensing and protective provisions

(Amendments 3, 7, 8, 19, 20, 21, 22, 28, 29 and 32)

In parallel with seeking to prevent or limit any increase in the Applicant’s harbour authority jurisdiction

through the extension of PBR port limits, Forth Ports has sought to deny or otherwise throw obstacles

in the way of the Applicant exercising dredging powers. These matters are expressly linked by Forth

Ports in the first paragraph of its Further explanation of Amendment 20.

As the Applicant has made clear during the Inquiry process, the Applicant’s position is that Forth

Ports’ approach to a number of matters has been with a view to imposing unwarranted restrictions for

self-serving commercial reasons as the Applicant is seeking to develop a container terminal facility

which will operate in competition to Forth Ports own commercial operations.

In relation to dredging matters, Forth Ports endeavours have been focussed on placing the ability,

manner, timing and hence cost of dredging activities as subject to Forth Ports control.

To those ends, Forth Ports has sought the following :

a. Deletion of the power to dredge provided for in the Applicant’s Draft (at article 8), with

consequential amendments;

b. Inclusion of dredging authorised by the Order in “tidal works” needing Ministers approval;

c. Forth Ports’ licensing control over dredging activities; and

d. Protecive provisions, aimed primarily at dredging activities.

The Applicant’s position on each of these is dealt with below.

a. Power to dredge

Article 7 (1) of the HEO provides a power to dredge in generic terms. Articles 8 (1) and (2) of the

Applicant’s Draft provide for an express power to form a dredged access channel to the RICT. Forth

Ports have suggested the latter be deleted and reliance be placed on the former.

The Applicant’s position is that it is not uncommon for harbour orders authorising works to expressly

authorise dredging works even where the harbour authority in question already has generic dredging

powers.

For example, the Scrabster (Deep Inner Berth) HRO 2011 contains (in article 4) dredging powers for

specific dredging works which that order authorised – whilst the Scrabster (Forward Supply Base)

HRO 1998 and the Scrabster (Inner Harbour Development) HRO 2000 both provided Scrabster

Harbour Trust with generic dredging powers in article 6 of both those orders in terms that: “the Trust

may from time to time deepen, dredge, scour, cleanse, alter and improve the harbour for the purpose

15

of affording uninterrupted means of access to the harbour or any part of it or the accommodation of

vessels thereat.”

Forth Ports has not argued and has not established that any harm or prejudice will arise to any party

by the inclusion of express powers to carry out capital and maintenance dredging in respect of the

access channel for the RICT. In the Applicant’s submission such an express provision puts any

question of power to dredge beyond doubt. Such an approach is well precedented and and in a

situation in which the proposed development has been objected to by a number of Objectors, who

may subsequently seek to obstruct development of the RICT if the Order is made, clarity and the

avoidance of ambiguity as to the nature of the development authorised is justified.

The Applicant’s position in relation to dredging is that the appropriate control mechanism is the

Marine Licensing regime under the Marine (Scotland) Act 2010.

Forth Ports has sought to create a misdirection by reference to article 26 of the Marine Licensing

(Exempted Activities) (Scottish Inshore Region) Order 2011 (“the Exempted Activities Order”) and

by suggesting that such means that dredging authorised by the Order cannot be the subject of a

marine licencse.

The Applicant refers the reader to paragraphs 2.48 to 2.56, 8.17 to 8.22 and 10.52 to 10.59 of the

Applicant’s Closing Submissions.

Article 26 provides three conditions for exemption thereunder to apply, as follows :

“(3) Condition 1 is that the activity –

(a) Involves the dredged material being contained within a secure structure and

transported for deposit other than at the place of dredging; or

(b) Involves the use of plough dredging as part of a dredging operation in respect of

which any other dredging falls within sub-paragraph (a) above;

(4) Condition 2 is that the activity is authorised by or under, and carried out in accordance

with –

(a) any local Act; or

(b) any order under section 14 or 16 of the Harbours Act 1964.

(5) Condition 3 is that the activity is approved by the Scottish Ministers before it is carried

out.”

The applicability of Article 26 of the Exempted Activities Order is expressly addressed in paragraph

10.52 of the Applicant’s closing submissions, which should be treated as restated here.

In particular, for current purposes, it should be noted that Conditions 2 and 3 of the Exempted

Activities Order are separate and distinct. As argued in the Applicant’s Closing Submission,

16

authorisation by virtue of the HRO (i.e. the grant of power to dredge) is not the same as approval of

the actual works involved prior to such being carried out for marine licensing purposes.

The distinction drawn in the Applicant’s closing submissions is supported by the fact that approval of

the actual works will not be by Transport Scotland’s Ports & Harbours Branch but by MSLOT (Marine

Scotland Licensing Operations Team) as referred to in the final bullet point of the text of section 4.13

of the Scottish Government’s “A Guide to Marine Licensing in Scotland” quoted by Forth Ports in

respect of its desired control over tidal works and dredging detailed design under Amendment 30.

Contrary to any suggestion by Forth Ports, the grant of an express power to dredge for the RICT will

not lessen the environmental protection from environmental concerns to be provided by the Marine

Scotland licensing process.

It should separately be noted that, the Forth Ports’ position on the interpretation of article 6 of the

HEO would mean there is no difference in outcome on the applicability of article 26 of the Exempted

Activities Order. Whether authorised by the general power of the HEO or the specific power sought

in the Applicant’s Draft of the HRO, the dredging works will potentially satisfy Condition 2 of article

26.

In conclusion, article 8 of the Applicant’s Draft will put the Applicant’s authority to form and maintain

the access channel for the RICT beyond doubt. Such an approach is well precedented; and Forth

Ports have not demonstrated that as an objector there is any basis not to include such an express

power.

The Applicant would not oppose the insertion of an express provision to the effect that RICT

dredging works shall not be exempt from marine licensing; that such works shall be a “licensable

marine activity” within the meaning and provisions of the Marine (Scotland) Act 2010 and that the

Exempted Activities Order shall not apply

b.“tidal works” definition and approval

The Applicant supports Forth Ports’ proposed amendment of the definition of “tidal works”, save that

the Applicant’s position is that there requires to be an exclusion from this definition of dredging works

as such works are otherwise authorised and are not of the nature of works normally referred to as

tidal works in harbour orders.

There should therefore be inserted at the end of the text to be substituted : “and excluding any

operations authorised by article 8 (power to dredge) of the Rosyth International Container Terminal

(Harbour Revision) Order 20[ …]”. In the event that Ministers determine that article 8 is to be deleted,

“and excluding any operations authorised by article 7 (power to dredge) of this Order” should be

inserted instead.

17

The Applicant’s suggested approach follows the definition of “tidal work“ in the Port of Bristol (Deep

Sea Container Terminal) HRO 2010 and (in relation to maintenance dredging) in the London

Gateway Port HEO 2008.

Perhaps more significantly, the Forth Ports Authority Order Confirmation Act 1969 distinguishes

between tidal works and dredging with separate provisions for the licensing of tidal works (section

23) and dredging (section 24), and the distinction continued in the terms of section 26(1)(a)

compared with section 26(1)(b).

c. Licensing

Forth Ports demand that dredging works for the RICT be subject to a requirement to obtain a licence

from Forth Ports (which may be “on such terms and conditions as they [Forth Ports] think fit” in terms

of section 24 of the 1969 Act).

This is a further example, in the Applicant’s submission, of Forth Ports stubborn determination to

seek out for itself a degree of control over the RICT and its development which Forth Ports would not

otherwise enjoy.

No requirement to obtain a dredging licence from Forth Ports under the 1969 Act arises outwith

Forth Ports’ harbour authority jurisdiction as set out in the 1969 Act. Therefore Forth Ports cannot

competently demand the Applicant obtains such a licence for dredging within the current PBR port

limits, any areas within the “constructed” exception to Forth Ports’ jurisdiction in terms of Schedule 1

to the 1969 Act (as referred to at heading 1 above), or within any extension of the PBR port limits on

the making of the Order.

Section 26(1)(i) of the 1969 Act, provides that the prohibition (in Section 26(1) (b)) on dredging

without and in accordance with a licence from Forth Ports (under section 24) shall not apply to “the

carrying out of dredging in the port specifically authorised under any enactment”. Therefore, in so far

as the HEO or the Order provide power to dredge within Forth Ports jurisdiction, there is no

requirement to obtain a licence to do so from Forth Ports.

Therefore, any grant of licensing powers by virtue of the amendments sought by Forth Ports would be

an extension of the 1969 Act and a derogation of the rights granted to the Applicant by virtue of the

HEO.

Article 19 of the Applicant’s Draft was inserted with the intention of putting the question of whether or

not a works or dredging licence from Forth Ports would be necessary for the RICT beyond any doubt,

both in relation to tidal works and dredging.

18

That Forth Ports should seek to turn that clarification into an attempt to acquire a means (which if the

Amendment is granted would be backed by a criminal sanction in terms of the section 26 (2) of the

1969 Act) to take powers for itself is unwarranted.

The effect of article 19 of the Applicant’s Draft as amended by Forth Ports’ proposed Amendments 28

and 29 is unclear. On one reading the amended article will require licences to be obtained from Forth

Ports for dredging and tidal works even within the existing PBR limits if works are being carried out

under article 5. Forth Ports has not objectively justified that it should have the control it seeks.

The amendment does not add to certainty and so should not be made.

d. protective provisions

The Applicant acknowledges that protective provisions are not uncommon in harbour orders and other

statutory means of authorising infrastructure works. Protective provisions are, however, far from

universal or matter-of-course features of such primary or secondary legislation. The need for such

provisions must be established on a case by case basis, where a locus has been established by the

party being protected and the terms of the provisions are accepted as being appropriate and

proportionate.

Although Forth Ports cite the Crossrail and Channel Tunnel Rail Link legislation, those Acts are not

before the Inquiry and there is no basis in evidence to draw any inferences of relevance to RICT from

them.

Forth Ports relies most heavily upon the London Gateway Port Harbour Empowerment Order 2008

(“LG Order”) (APP-T8) in its proposal for protective provisions. Notwithstanding reference to other

Orders, an analysis of the provisions proposed is that almost exclusively they are based on those of

the LG Order.

In Section 1 of this Further Response, the Applicant submitted that Forth Ports characterisation of the

London Gateway (“LG”) jurisdictional arrangements as being an appropriate precedent for RICT does

not withstand scrutiny. The Applicant further submits that LG and the LG Order are similarly not

analogous to the RCIT RICT and the proposed Order for the purposes of establishing whether and if

so which and what terms of protective provisions should be imposed for Forth Ports’ benefit in respect

of the RICT.

The Applicant submits that accordingly, contrary to the tests Forth Ports has set itself, the LG Order

protective provisions are neither standard, nor appropriate, nor proportionate.

The Applicant repeats the following matters from Section 1:

1. in terms of scale, LG is overwhelmingly greater than RICT – LG is a development

encompassing 5,433 ha of the Thames Estuary, producing 32 Mm3 of dredged arisings

from 54km of capital dredging;

19



upstream of LG;

4. It is not unreasonable to surmise that the Thames is a far busier river in terms of numbers

of ship movements and volume of goods moved than the Forth;

5. RICT involves relatively modest tidal works (namely, construction of the dolphins, works

to the Contractors’ Jetty and in so far as considered tidal works, the removal of the bund

retaining wall). The RICT berths do not extend into the Forth. LG in contrast involves

building into the river to an extent of approximately 25% to 30% of the previous width of

the river. Accordingly, the nature of the LG works is materially different from the RICT

works;

6. The LG jurisdiction comprises approximately a third of the width of the river prior to the

LG works along the LG frontage;




Thames plus a 50% to 100% margin on either side. The RICT dredging limits do not

encroach on the Forth main channel at all;


mostly within the Port of London Authority (“PLA”)’s jurisdiction. The Applicant’s proposal

is that the RICT dredging limits should be wholly within the extended PBR port limits;

10. The RICT berthing pockets will be wholly within the existing PBR limits (a matter which

has not been questioned even by Forth Ports) whereas the LG berthing pockets straddle

the dividing line between LG and PLA jurisdictions.







ships entering and leaving the Thames. London Gateway’s capital dredging is deepening it to cater

for the larger container ships which will call at the new port, work which would be undertaken by PLA

if it saw a need for such work in general terms.






common user channel critical to the whole of Thames shipping, the Applicant is not convinced that

20

Forth Ports should have control over dredging of the single user RICT channel when the Applicant

rather than Forth Ports would have responsibility for the safe navigation of that channel.

By analogy, the LG berths are akin in configuration and setting to parking bays for on street parking





managing) and that it would need to also need to be able to regulate the on street parking bays too. In

contrast, there is no such justification for either form of control of a private driveway in its closing

submission.

It can therefore be appreciated why the PLA would legitimately seek and be granted protection in the

form of the various elements of the protective provisions – including prior approval of proposals and

an indemnity. Such “asset protection” mechanisms are not uncommon in other circumstances

comparable to LG, such as third party enhancements to the railway network, where Network Rail

insist on contractual protection of the nature under discussion as a pre-condition of consent to works.

To return to the analogy, those concerns simply do not arise within the boundaries of a private house

plot. Therefore, once again, we find ourselves returning to the issue of the extent to which the PBR

port limits are to be extended by the Order.

It has been common elsewhere in the UK for a harbour authority to licence 'works' including dredging

to be carried out by others within its area of jurisdiction. This power is in addition to the new

requirements under the Marine (Scotland) Act, but is primarily used to ensure safe navigation.

The Inspector’s Report relative to the LG Order, at paragraph 13.3.2 (page 129) of Volume 1 confirms

that the PLA is the port authority for the area in which LG would operate. Paragraph 13.3.44 indicates

that the LG Order was originally drafted without protective provisions whilst paragraph 13.3.46

indicates the rationale for PLA being protected. As noted above, however, the circumstances at LG

are materially different from those which arise at RICT. If the RICT channel is to be outwith the area of

Forth Ports’ jurisdiction then the Applicant cannot accept that Forth Ports has any basis for claiming

the rights to control dredging or works.

It should be kept in mind that the closer in to the existing PBR port limits the new limits are drawn,

the more the “constructed” argument regarding the extent to which Forth Ports does not have any

existing jurisdiction under the 1969 Act becomes more relevant – especially as it could be said that

for such areas, Forth Ports’ amendments seek not just to protect existing interests or create new

powers but are seeking to extend Forth Ports’ jurisdiction to areas to which it currently does not

extend.

21

In so far as Forth Ports state that it is protecting “its” river, the natural answer is that the PBR limits

should be extended so that the works and immediate effects are set within those limits; on “Babcock’s

watch”. In so far as Forth Ports express concern about effects in the rest of the river, the fact remains

that those effects are the statutory responsibility of Marine Scotland / SEPA from whom Forth Ports

could seek redress if needs be.

An approach which avoids casting Forth Ports in the role of an additional (and possibly contradictory)

environmental regulatory role could be said (to mirror the language of the test in section 14 (2) (b) of

the 1964 Act) to be in the interests of improvement, maintenance and management of the port in an

efficient and economical manner.

In principle, there is no justification for prior submission of dredging plans to Forth Ports, as it is not a

decision maker on such matters for the purposes of any relevant legislation in so far as the RICT

dredging limits come within extended PBR port limits or section 26(1)(i) applies.

It seems to the Applicant that Forth Ports is (other than in any anti-competitive sense of the phrase)

not seeking protective measures but rather it is in essence seeking to use the RICT Order to create

fresh powers to supplement the provisions of the 1969 Act on tidal works and dredging licensing.

In doing so, Forth Ports is seeking to amend the dredging powers of the HEO by now requiring Forth

Ports prior approval (before applying to Scottish Ministers where necessary) of any tidal work

construction or maintenance and of any capital or maintenance dredge.

The protective provisions of the LG Order need to be seen in context – of dredging in the estuary

authority’s main channel, which serves 52 shipping terminals upstream and for which the PLA

remains responsible and liable notwithstanding any provision of the LG Order.

The Applicant’s position is that dredging associated with RICT will be appropriately controlled by the

marine licensing regime and EIA regulations. The proposed protective provisions are viewed by the

Applicant as a sledge hammer to crack a nut.

In terms of the proposed paragraph 1(4) at Amendment 32, Forth Ports seek for themselves a wide

discretion to impose its own requirements in approving the Applicant’s design of the authorised works

provided the requirements are based on the protection of :

- Traffic in, or the flow or regime of, the river;

- Forth Ports’ use of its operational land or the river; or

- The performance of Forth Ports’ environmental protection functions.

All three of those limbs would appear to be open to abuse given the wide description of the activities

being protected. For instance, traffic in a navigational safety sense or priority for Grangemouth bound

vessels? In what way could Forth Ports operational land be affected such that protection would be

needed? What environmental protections functions? To the extent that the scope of any of those

22

limbs is imagined or otherwise fanciful, the nature of this provision falls to be regarded as anti-

competitive and open to abuse by Forth Ports.

This should be contrasted with the LG Order and the LG context where it is clear that there will be

interference with the main channel and significant tidal works. For RICT there will be minimal tidal

works (dolphins and Contractors’ Jetty) and a short dredged channel at the edge of the river (not

54km of the main channel).

The Applicant would be concerned that the proposed provisions would allow for a 42 day period for a

decision after all particulars of the proposed works requested by Forth Ports have been provided

subject to extension to complete consultation – all in all a potentially drawn out timeline.

Subject to the provisos below, the Applicant will not object to the inclusion of provisions in relation to:

- Obstructions in the river;

- Non-interference with Forth Ports’ moorings and buoys;

- Facilities for navigation; and

- Removal of temporary works

That is provided their inclusion is subject to revisal to clarify that such provisions shall only relate to

any implication for the subject matter of the same within Forth Ports jurisdiction orf acts or omissions

of the Applicant or those for whom it is legally responsible in relation to works or the operation of the

RICT.

Any such provisions’ inclusion should, logically, only be made if a reciprocal requirement is imposed

at on Forth Ports in respect of any act or omission of Forth Ports or those for whom it is legally

responsible within the PBR port limits.

The Applicant acknowledges the need to provide suitable lighting] for tidal works and for the provision

of suitable aids to navigation consequent to the RICT development and operation. Those are matters

which the Applicant will agree with the Northern Lighthouse Board for the PBR Limits in so far as

extended.

Subject to the drafting issues identified above being addressed, however, the Applicant would

nonetheless be willing to accept that in so far as the RICT dredging extends beyond the 10 metre

contour of the river Forth, there should be a requirement to consult with Forth Ports on the detailed

dredging plans beyond the 10 metre contour.

The Applicant’s willingness to laise with Forth Ports in relation to dredging beyond the 10 metre

contour line and to not object to a requirement to provide Scottish Ministers with copy marine

licensing applications and retlated provisions referred to above is without prejudice to the Applicant’s

in principle opposition to this provision in any wider application.

23

Similarly, given the Applicant’s reliance in closing submissions on the marine licensing regime, the

Applicant will not object to a requirement in the Order to copy to Scottish Ministers any marine licence

application (and supporting information) relative to the works to Ministers and keep Scottish Ministers

appraised of progress of the application, for the purposes of Scottish Ministers determining whether

any other matters require to be addresseds or conditions imposed which Scottish Ministers should

require for the purposes of their approval of such works.

Conclusion

The Applicant submits that the attempts by Forth Ports to limit the extension of the PBR port limits,

to have article 8 of the Applicant’s Draft deleted, to propose dredging licencing powers and to require

protective provisions are merely elements of a wider and desperate attempt to secure means to

obstruct the Applicant’s development of PBR and the RICT.

5. Restriction of permitted development rights and imposition of development conditions

(Amendments 16, 17, 18, 22, 31.1 and 31.2)

Forth Ports seeks to frustrate or otherwise delay the Applicant’s ability to proceed with the RICT even

once the Order authorising the works has been made; by a series of amendments not normally found

in harbour orders.

The measures in question comprise :

a. restrictions on the applicability of permitted development rights;

b. design or construction limitations;

c. amendments to ancillary works and subsidiary works powers;

d. caveat to article 7 (power to deviate);

e. definition of “tidal works” and the deletion of article 9 (2); and

f. a pre-construction “safeguarding” provision

a. Permitted development rights

Permitted development rights are referred to in item (2) of Forth Ports’ objection in the context of an

attack on proceeding by way of a harbour order and not seeking planning permission. That issue has

been the subject of robust debate in the interim.

Forth Ports has now proposed restrictions on the applicability of permitted development rights.

As noted in the Applicant’s closing submissions (at paragraph 2.38 on page 29), the Applicant is

content to adopt the Forth Ports proposed text and see it inserted into Schedule 2 to the Applicant’s

Draft subject to the addition noted below.

24

There is one discrepancy between the text proposed by Forth Ports in Amendment 31 (1) and the

text which the Applicant adopted in Appendix D to its closing submissions, namely the addition of “in

the opinion of the planning authority” between “may” and “have significant effect” in paragraph 1 (b).

That insertion provides a means of determining whether or not paragraph 1 (b) of the text proposed

by Forth Ports applies and so adds clarity and certainty to the drafting.

b. design or construction limitations

Forth Ports has sought to flag various design or construction limitations. Those include height

restrictions (both in a revisal to the article 5 description of those works which comprise buildings and

in Schedule 2) which seem unnecessary given that limitations on the number of storeys is already in

place. In a similar vein, article 5 already has limitations on the height of cranes etc.

The various other design or construction restrictions flagged by Forth Ports appear more to be a

shopping list compiled from points raised by other objectors or elements of the ES mitigation list or

draft CEMP. Given the development of the CEMP and associated drafting, such elements seem

unnecessary.

c. amendments to ancillary works and subsidiary works powers

Although presented as consequential matters, the effect of the proposed amendments to the

ancillary works power (article 5(2)) and subsidiary works (article 6), to refer to limits of deviation

authorised by article 7 will be unduly restrictive.

Whether or not that is the intended effect, is irrelevant as the proposed amendments are not

appropriate. Eeven a consequential amendment (from dredging powers not being granted) is

needed, as the limits of deviation in article 7(1) refer to deviation from lines and positions shown on

deposited plans; whereas by their nature ancillary and subsidiary works are not shown on such

plans.

Accordingly, the use of “works site” should be retained. If needs be an amendment to the plan

showing the work site should be produced to allow differentiation between the landward and river

elements of the works site.

d. caveat to article 7 (power to deviate)

Forth Ports have also sought to add in a caveat to article 18 (power of deviation) of the Applicant’s

Draft. Amendment 18 seeks to add in “so far as is consistent with the requirements of Schedule 2”.

As Schedule 2 in the Applicant’s Draft is materially different from that in the mark-up supplied by Forth

Ports, however, the meaning and effect of the proposed amendment is not clear.

25

If Forth Ports reference to Schedule 2 is to Schedule 2 of the Applicant’s Draft (i.e. mitigation

measures), Forth Ports should have explained precisely which mitigation measures it feared would be

imperiled by the application of the power to deviate. Forth Ports has not done so. Accordingly, the

proposed amendment should be disregarded for lack of explanation of purpose or effect. There is no

evidence to suggest that these powers of deviation could undermine any proposed mitigation

identified in Schedule 2 or the CEMP; nor was any such line of cross-examination pursued with any of

the Applicant’s environmental witnesses. The only exception was in relation to the depth of the capital

dredge, which has been addressed by the Applicant through modification as shown in the Applicant’s

Draft.

If Forth Ports reference to Schedule 2 is to that in Forth Ports’ current mark-up of the draft Order (i.e.

Forth Ports’ protective provisions), Forth Ports should have provided an explanation of which

provisions it feared would be overridden by the power to deviate, the materiality of such effect and

why Forth Ports deem themselves entitled to have such precedence. Schedule 2 is so wide ranging

that such a general reference to it by Forth Ports is meaningless.

In effect, by subjecting deviation rights to Forth Ports’ proposed protective provisions, Forth Ports is

seeking a degree of control, and precedence, which exceeds that normally retained by Ministers on

the question of deviation given that powers to deviate are a standard provision in harbour orders and

in other orders and legislation authorising infrastructure works.

Deviation provisions can be found in, to name but a few recent Scottish orders, Loch Ryan Port HEO

2009 (article 5), Scrabster (Deep Inner Berth) HRO 2011 (article 5)(APP-T11), CMAL (Port Ellen)

HRO 2011 (article 4) and CMAL (Kennacraig) HRO 2011 (article 4)(APP-T5).

Even in the London Gateway Port HEO 2008 (cited below by Forth Ports as precedent for the

protective provisions being sought by Forth Ports), the limits of deviation (article 14) are not caveated

in the manner being sought here by Forth Ports.

Similarly, neither the Harwich Parkeston Quay HRO 2010 (article 7)(FP-73) nor Port of Bristol (Deep

Sea Container Terminal) HRO 2010 (article 6)(APP-T4), being further examples of Orders with

protective provisions referred to by Forth Ports, have caveats of the type now sought by Forth Ports.

e. definition of “tidal works” and the deletion of article 9 (2)

The requested amendment to the definition of “tidal works” and the deletion of article 9 (2) of the

Applicant’s Draft seem designed to require, notwithstanding approval of the works under the RICT

Order, a separate, subsequent application for Scottish Ministers’ approval of dolphins and other tidal

works

As explained in relation to the power to dredge at paragraph 4 (a) above(and the Applicant’s

response to Amendment 20), no requirement to obtain a licence from Forth Ports under the 1969 Act

26

currently arises (whether for dredging or tidal works) outwith Forth Ports’ harbour authority

jurisdiction as set out in the 1969 Act.

Currently, Forth Ports cannot competently demand the Applicant obtains such a licence for works

within the current PBR port limits, any areas within the “constructed” exception to Forth Ports’

jurisdiction in terms of Schedule 1 to the 1969 Act (as referred to in paragraph section 1 above and

the Response to Amendment 11 ), or within any extension of the PBR port limits on the making of

the Order.

Forth Ports fails to mention Section 26(1)(i) of the 1969 Act, which provides that the prohibition (in

Section 26(1) (a)) on works without and in accordance with licence from Forth Ports (under section

23) shall not apply to “any such works… in the port specifically authorised under any enactment”.

Therefore, in terms of the 1969 Act (absent this Amendment sought by Forth Ports), works

authorised by the Order will not require a licence from Forth Ports whether or not the PBR port limits

are extended

Paragraph (1) of article 10 of the HEO, which is a standard approval by the Scottish Ministers

provision, applies generally to tidal works at PBR.

Paragraph (2) of article 10 the Applicant’s Draft seeks to exempt works authorised under the HRO

from the requirement to obtain approval from the Scottish Ministers. Forth Ports are seeking the

deletion of that exemption.

The exemption is logical given that the works in question will not only have been expressly

authorised by the Order but that prior to the making of the Order those works will have been the

subject not only of assessment for the purposes of the ES and RIAA but subject to examination at

the Inquiry. The Scottish Ministers’ approval will also have been informed by the Reporters’ report.

The works will also be the subject of the requirements of the Schedule of mitigation measures in the

Order and the terms of the CEMP.

It is therefore difficult to conceive what objective benefit subjecting tidal works authorised by the

Order to further ministerial sign-off would achieve. The exemption is thus aimed at removing an

unnecessary element of red tape.

Such an exemption is neither illogical nor unprecedented, as Forth Ports themselves acknowledge

by reference to the exemptions in the harbour orders for Kennacraig (article 8(3)) and Loch Ryan

(article 9(3)).

The Lerwick Harbour Revison Order 2010 (article 8(3))(APP-T7) and the CMA (Port Ellen) HRO

2011 (article 8(3)) are further examples of such an exception which Forth Ports do not mention.

Works commenced within 5 years of the making of the order at Bristol are exempt (article 10(1)).

27

The London Gateway order exempts maintenance dredging due to the drafting of the tidal works

definition in that order.

Nonetheless, notwithstanding the above rationale and precedents, if Scottish Ministers consider that

they should provide for further approval, the Applicant will have no objection to paragraph (2) of

article 10 being deleted. The Applicant accepts, consistent with the approval of dredging as set out in

paragraph 4(a) above with the Applicant’s responses to Amendments 20 and 21, that the detailed

design of the tidal works is to follow and that Scottish Ministers may wish that to be subject to

approval by them. For that consistency to be achieved, however, the insertion sought by the

Applicant at paragraph 4(b) above and in its response to Amendment 21 should be made.

f. pre-construction rail terminal “safeguarding” provision

Forth Ports are seeking the imposition of a requirement that an area of the site must be identified,

agreed with Fife Council / Scottish Ministers and set aside for use as a rail terminal prior to any of the

RICT works commencing.

The Applicant’s position is that “safeguarding” as Forth Ports call it is neither accepted nor

necessary. Reference is made to paragraphs 3.58 to 3.75 (pages 70 to 80) of the Applicant’s closing

submissions.

Forth Ports have neither demonstrated that such a pre-condition to construction is appropriate, nor

provided any precedent for it or explained how it could be said to be proportionate to any legitimate

interest which would require to be protected by such a provision.

The Applicant similarly rejects as unnecessary any requirement that a certain proportion of

containers moved in or out of the RICT should be by rail, for which Amendment 31.2(1) may be a

precursor. The Applicant’s response to Amendment 31.5(4) applies equally here.

The provision should be seen as an attempt by Forth Ports to delay construction of the RICT (and in

so doing to frustrate a NPF2 project) by introducing a requirement for a rail provision at the

commencement of operations, which on the evidence has been shown to be unnecessary.

Forth Ports is again being disingenuous with its approach to matters. It has not provided any

explanation of its locus to request such an amendment. If Forth Ports was genuinely interested in a

constructive dialogue in relation to the use of the railway line and actually wished to engage

proactively in promoting its use, it would at the very least have engaged with the Applicant on the

draft Branch Line Agreement. Thus far, after approximately 3 and half years and inspite of reminders

and the draft being re-sent to Forth Ports, it has pointedly not responded on the matter; as recorded

in paragraph 3.40 (page 61) of the Applicant’s closing submissions.

28

A rail terminal adjacent to the “work site” (as defined in the Applicant’s Draft) and within the existing

PBR port limits was identified in evidence at the Inquiry. Please refer to paragraphs 3.63 on page 63

of the Applicant’s closing submissions.

Paragraph 3.75 on page 79 of the Applicant’s closing submissions refers to Transport Scotland’s

letter of August 2011. That in turn refers to a need for a rail terminal within “the port”. Forth Ports

accepts at paragraph 2.2.19 (page 14) of its closing submissions that the reference to “the port”

within the Transport Scotland letter is to the existing port limits in terms of the HEO.

The Reporters will have noted from the Grangemouth site visit that the railhead there is an

equivalent distance from the quay side as the existing railhead adjacent to the RICT work site at

PBR is from the RICT quay side. The Applicant also makes reference to paragraph 3.63 (page 73)

of the Applicant’s closing submissions in this regard.

The Applicant submits that Amendment 31.2(1) should not be made.


provisions

(Amendments 4, 14, 23, 25, 31.1(2)-(12), 31.4 and 31.5(5)-(8))

Forth Ports is seeking to have article 17 of the RICT Order reinstated in its original form – such that

the commitments in the ES (and now other environmental documents) would be binding upon the

Applicant.

Article 17 of the draft Order as applied for sought to provide comfort that the environmental

undertakings collated in Chapter 15 of the Environmental Statement would be implemented.; Aarticle

18 and Schedule 2 of the Applicant’s Draft updated and replaced reference to those undertakings with

requirements to comply with the CEMP and additional specific mitigation measures.

The volume of materials (any of which update or indeed supersede others) produced in connection

with the proposed Order, and in particular for the Inquiry process, mean that the term “environmental

documents” as proposed Forth Ports is too widely drawn.

Forth Ports position here is disingenuous. The Applicant recognises that issues remain between it and

other parties. The Applicant, however, submits that both its position and that of the other parties to the

Inquiry and the statutory bodies involved have, through evidence and the Inquiry process more

generally been further developed. It will have been clear to all involved in the Inquiry that in a number

of respects matters have moved on from the position as stated in ES and RIAA. As a result, whilst

some of the commitments proposed in Chapter 15 of the ES have been developed, some are no

longer considered appropriate or otherwise applicable.

29

The CEMP and the schedule of mitigation measures together with the associated provisions in the

Applicant’s Draft have been developed from the terms of Chapter 15 of the ES in light of matters

raised in objections to the Order, the comments received from statutory consultees and evidence at

the Inquiry as well as materials prepared for the purposes of the Inquiry.

At the hearing session into the CEMP, the Applicant circulated a table (referred to colloquially at the

hearing as “the Fate Table”) detailing (1) whether or not each commitment in Chapter 15 had been

transposed into the then draft CEMP, (2) if it had been modified in the process and (3) a comments

column for explanation of exclusion or modification.

The Applicant acknowledges that the CEMP is a living document, however, it will readily be seen from

the drafts to date that the CEMP has been added to rather than watered down through its iterative

development. Given that draft 3 of the CEMP has been provided to the Reporters and will doubtless

be referred to in the report to be submitted to the Scottish Ministers, it is fanciful to suggest that the

CEMP could be watered down prior to the Scottish Ministers approval of the CEMP under article 17.

Article 17(6) of the Applicant’s Draft provides that, once approved by the Scottish Ministers, the

CEMP shall not be amended so as to reduce the standards of mitigation and protection contained in

the same.

Article 18 and Schedule 2 (mitigation measures) have been added to the Applicant’s Draft to provide

further comfort, in the form of an obligation upon the Applicant, that specified mitigation measures

will in any event be applied.

The Applicant therefore submits that there is not only no need for the reinstatement of the original

form of article 17 but to do so would be to create the possibility of conflicting obligations upon the

Applicant. That is because the CEMP is the product of an iterative process carried out in consultation

with statutory consultees with particular responsibilities, reflecting the EIA and the additional

information produced for the Inquiry process. The CEMP and Schedule of mitigation measures do

between them provide for protection and mitigation measures in a clear and current manner. In these

circumstances, Forth Ports’ proposed use of “environmental documents” and its definition do not

reflect the nature of the EIA process carried out for this project.

With respect to the definition of “environmental documents” proposed by Forth Ports, limb (a) of the

proposed definition is too vague – certainty requires that the documents in question be listed. In the

event that the Reporters are persuaded to recommend or that the Scottish Ministers otherwise

determine to give further consideration to this proposed amendment, the Applicant would respectfully

request that Forth Ports are asked to specify what documents they contend fall within this category

and the Applicant should be given a period of time to respond.

It is the position of the Applicant that Article 17 of the draft Order, as submitted with the application,

provided that the environmental commitments collated in Chapter 15 of the Environmental Statement

would be implemented. Through subsequent proposed modification to the draft Order, articles 17 and

30

18 of the Applicant’s Draft updated and replaced reference to the commitments collated in Chapter 15

of the Environmental Statement with requirements to comply with the CEMP and additional specific

mitigation measures set out in Schedule 2 of the Applicant’s Draft. The principal reason for referring to

the environmental information of the nature alluded to in limb (a) of the proposed definition would be to

seek to ensure compliance with proposed mitigation measures, however, all mitigation measures are

now to be found in the CEMP and Schedule 2 to the Applicant’s Draft.

The approach taken by the Applicant, in line with other Orders, has been to refer only to environmental

documents relied upon by the Order. Beyond Schedule 2 of the Applicant’s Draft, environmental

mitigation measures are dealt with through the CEMP.

Limb (b) of the proposed definition refers to an aspect of the marine licensing regime under section 21

(5) of the Marine (Scotland) Act 2010 and Regulation 10(4) of the Marine Works Environmental Impact

Assessment Regulations 2007. There is no plausible rationale for referring to environmental

information which may be required for a marine license to be anticipated in the Order.

The information requirements for such a license will be specified and compiled at a future date. They

relate to an application not yet made for a license to which conditions can be attached to require

compliance with any commitments given in the documents prepared for the application for that license.

Accordingly it is not appropriate to provide for the environmental information in support of that

application in the abstract.

The Applicant also records that the tidal works required for the RICT are relatively minor in nature –

namely, the construction of the dolphins and any works required for to the Contractors’ Jetty.

Para 1(1) of Amendment 32 and hence limb (b) of the above proposed definition are not necessary.

Limb (b) of the proposed definition appears to relate to paragraph 1 (1) of Amendment 32. If the

Reporters recommend or the Scottish Ministers otherwise determine that the element of Amendment

32 in question is not appropriate, this limb of the proposed definition will not be required. If the

provision in question is to be inserted, the Applicant would respectfully suggest that this limb of the

definition should not sit within this general definition and an alternative term is used.

The Applicant notes that no justification has been provided for the new paragraph (2) inserted in article

16 of the Forth Ports mark-up; accordingly it falls to be disregarded. It is not relevant if the restatement

of the original article 17 is not included. Additionally, a provision to similar effect is already provided as

article 17 (9) of the Applicant’s Draft.

The various other design or construction restrictions flagged by Forth Ports appear to be little more

than a compilation of points raised by other objectors or elements of Chapter 15 of the ES or draft

CEMP. The description of the works in article 5 (1) of the Applicant’s Draft contains suitable height

31

limits - see descriptions of Work No. 3, 6, 7, 9, 10, 11, 13, 14, 15, 16 and 21. The other matters

flagged are all covered in Draft 3 of the CEMP.

Article 17, in particular paragraphs (1), (6), (8) and (9), of the Applicant’s Draft provide comfort that the

CEMP will provide effective mitigation for the matters covered by it.

7. Environmental protection role for Forth Ports

(Amendments 24, 31.3, 32.1, 32.4 and 32.7)

One might be forgiven for forming the impression that Forth Ports are seeking to usurp the position of

Scottish Ministers and regulatory agencies, or to create a suite of measures to allow Forth Ports to

frustrate the RICT project at every turn.

Forth Ports harbour and conservancy responsibilities are for the provision of the safety of navigation

on the river. Section 48A of the 1964 Act does require a harbour authority in formulating or

considering any proposals in relation to its functions under any enactment to have regard to various

factors relating to conservation and access to countryside, flora, fauna etc.

That provision of itself does not, however, create any onerous environmental obligations or liabilities

for harbour authorities or require of or impose upon them an environmental protection regulatory

role.

But for itsthe anti-competitive approach to the RICT, it is curious therefore that Forth Ports is seeking

to set itself up as an environmental regulatory body alongside SEPA, Fife Council, SNH and Marine

Scotland.

This is consistent with the, mistaken, claim in the Forth Ports’ objection (item (3) on page 3) that it

ought to have been involved in EIA scoping.

Forth Ports have sought the following :

a. Statutory consultee status for the purposes of the Scottish Ministers’ approval of the CEMP

and amendments to it;

b. Protective provisions empowering Forth Ports to, by notice, require Babcock to undertake

remedial action in relation to sedimentation, scouring, currents and wave action;

c. Enforcement body status for mitigation of environmental impacts over and above those

anticipated by any environmental document. Under those provisions, the Applicant would

32

need Forth Ports’ agreement to mitigation measures. Forth Ports has separately written itself

a power to require measures it notifies to Babcock in such an eventuality; and

d. Environmental regulator status in relation to PBR generally. Forth Ports seek a requirement

that any environmental document provided to Scottish Ministers must also be sent to Forth

Ports. Equally, Forth Ports officers are to be allowed access to inspect and survey operations.

Forth Ports seek a provision to the effect that prior to, during and / or following any works or

dredging, Forth Ports may carry out such surveys of the river as it determines at the

Applicant’s expense. Budgets aside, this is a potential further source of delay and dispute

The Applicant submits that there is no justification for the amendments sought.

Forth Ports, as it has done consistently in its objection and during the Inquiry process, provides an

over inflated portrait of its role and responsibilities as the neighbouring harbour authority.

It is the Applicant’s position that Forth Ports in its conduct in relation the RICT proposal, including the

amendments it seeks to the Order, is motivated by commercial protectionism in relation to its existing

port at Grangemouth rather than any real objective concerns or sense of public duty.

In so far as Forth Ports purport to be seeking to protect “its” river, the natural answer is that the PBR

port limits should be extended in the manner provided for in terms of the Applicant’s Draft - so that the

RICT works and any immediate effects are set within those limits; and so “on Babcock’s watch”. In so

far as Forth Ports have any concern about effects in the rest of the river, the fact remains that SEPA

and Marine Scotland are the responsible regulatory bodies and not Forth Ports.





The Applicant has, in principle, no objection to consulting other bodies. Forth Ports’ track record of

engagement with the Applicant on matters associated with the Order application, however, has been

less than productive.

Forth Ports has not articulated what expertise or interest Forth Ports would have as a statutory

consultee for the Ministers’ approval of the CEMP or amendments to it. If Forth Ports is to become a

statutory consultee, such expertise or interest should be explicitly referred to.

Forth Ports has taken it upon itself to seek a contaminated land strategy provision be inserted in the

Order. This another example of Forth Ports putting forward a measure for which it appears to have

no locus and can be linked to other measures through which Forth Ports attempts to usurp the roles

of variously Fife Council, SEPA, Marine Scotland and the MCA.

33

Contaminated land matters are addressed generally in section 8 of Draft 3 of the CEMP, with section

8.23 defining what will constitute the Contaminated Land Management Plan. The Applicant has

already made provision for further certainty on contaminated land management issues by the

inclusion of paragraph 8 of Schedule 2 to the Applicant’s Draft. Taken together, the provisions in the

Applicant’s Draft and Draft 3 of the CEMP are more comprehensive than those sought by Forth Ports.

Amendment 31.3 is therefore unnecessary.

Having looked again at paragraph 8 of Schedule 2 to the Applicant’s Draft alongside Draft 3 of the

CEMP, the Applicant would have no objection to the former being supplemented by statements to the

effect that :

(a) References to “contamination” shall include non-radiological and/or radiological

contamination as the context permits or requires; and

(b) The Contaminated Land Management Plan referred to paragraph 8.1 shall (without

prejudice to the remaining terms of paragraph 8.1) include all matters covered by the

plan of the same name referred to in the CEMP.




It seems to the Applicant that Forth Ports is (other than in any anti-competitive sense use of the

phrase) not seeking protective measures but rather it is in essence seeking to use the RICT Order to

create fresh powers to supplement the provisions of the 1969 Act on tidal works and dredging

licensing.

In doing so, Forth Ports is seeking to amend the dredging powers of the HEO – requiring Forth Ports’

prior approval (before applying to Scottish Ministers where necessary) of any tidal work construction

or maintenance and of any capital or maintenance dredge.





marine licensing regime and EIA regulations applied as part of that regime. The proposed protective

provisions are viewed by the Applicant as a sledge hammer to crack a nut.

In terms of the proposed paragraph 1(4), Forth Ports seek for themselves a wide discretion, to impose

its own requirements in approving the Applicant’s design of the authorised works provided the

requirements are based on the protection of :

34














The Applicant would be concerned that the proposed provisions would allow for 42 day period for a


subject to extension to complete consultation – all in all, a potentially drawn out timeline.

Forth Ports provide that it will consult with SEPA, and that any environmental document provided to

Scottish Ministers must also be sent to Forth Ports. Equally, Forth Ports officers are to be allowed

access to inspect and survey operations.

If Forth Ports is to have a licensing role then it would be expected that the Applicant would need to

submit plans and other supporting information. Given the background, there could be a concern that

paragraph 1(4)(c) could be abused – what are the functions of Forth Ports in relation to environmental

protection? Do they include concern about the potential for smothering of eel grass in an SPA, for

example?

This is a further example of Forth Ports, on one view at least, seeking to cut across the role of Marine

Scotland in particular. The drafting proposed does not allow for that agency or other government

body’s role or views. What if Marine Scotland were content that nothing need be done, or wished

other (potentially contradictory or incompatible) action taken?






Applicant will not object to a requirement in the Order to copy to the Scottish Ministers any marine

licence application (and supporting information) relative to the works to the Scottish Ministers and

keep the Scottish Ministers appraised of progress of the application, for the purposes of the Scottish

35

Ministers determining whether any other matters require to be addresses addressed or conditions

imposed which the Scottish Ministers should require for the purposes of their approval of such works.

8. Operational and pre-operation conditions

(Amendments 31.5(1) to (4))

Forth Ports propose the following operational restrictions :

a. Use – limited to “an international container terminal” only.

No such a limitation was not suggested by Forth Ports (or any other objector) before Forth Ports

CEMP Submission was lodged in March 2012. It does not form part of any objection to the Order

and so, in an Inquiry into objections made and maintained, it is not in the Applicant’s submission a

restriction which can be validly considered as part of Forth Ports’ case.

Separately, it does not reflect the terms of the NPF2 designation, which is for “Additional Container

Freight Capacity on the Forth”. This facility is promoted as National Development 6 to provide a

facility that will encourage the movement of containerised freight to and from Scotland. In terms of

NPF2 it is envisaged that this could include handling coastal services from English Ports as well as

more international traffic (see paragraph 122 and pages 114 and 115 of NPF2).

It is however so unusual for a harbour order to contain such a use limitation that the Applicant is not

aware of a precedent for any such any limitation. It is notable that Forth Ports do not provide details

of any precedent orders in this regard.

Otherwise, subject to the vagaries of location relative to seaward and landward accessibility and

necessary infrastructure, it is one of the commercial dynamics of the port industry that there is

competition between ports with generic facilities and access to mobile plant for a range of cargoes to

be handled over quay sides.

When considered in that light, it can readily be seen that this proposed amendment is yet another

attempt by Forth Ports to impose an undue restriction on a rival port operator.

Forth Ports claimed justification for this amendment is that it is required in order to limit permitted

development rights; the same rights which Forth Ports enjoys for its port premises at various

locations along the Forth (including at Grangemouth) but without any kind of limitation of the type

now sought applying to Forth Ports’ ability to rely on such rights.

Forth Ports refers to Ms Sullivan’s evidence. As noted at paragraph’s 3.29 and 3.30 (pages 55 and

56) of the Applicant’s closing submissions, Ms Sullivan’s evidence under cross-examination at the

Inquiry was that it is current UK Government policy to encourage competition between ports and that

36

all of the current large ports on the East Coast are in the ownership of Forth Ports. The Applicant

also refers to the final two sentences of paragraph 3.68 (page 76) of the Applicant’s closing

submissions.

In any event, the phrasing of the use limitation would, if adopted, undoubtedly result in arguments

over what did or did not constitute use as an international container terminal – for example, would

shortsea feeder service of containerised goods to / from other UK ports be “international”?

Quite aside from Forth Ports motivations for proposing the amendment, its effect would be anti-

competitive for the reasons stated and run entirely counter to the terms of NPF2.

The Applicant submits that the Amendment should not be made.

b. Noise

Provision of attenuation barriers, operational noise limits and a monitoring scheme are flagged in

square brackets – none of these appear in the Forth Ports objection and appear merely to be a

compilation of points raised by other objectors. These are all addressed in Draft 3 of the CEMP.

c. Container stacking height restriction

This is likewise this is flagged but does not seem to have an origin traceable to the Forth Ports

objection. It also fails to recognise the 5 high / 15 metre limit specified in article 5 of the Applicant’s

Draft; in the description of Work No. 15.

d. Specified minimum % of container movements to be rail

Such a requirement was initially expressly sought by Fife Council and then following discussions with

officers withdrawn. Although it has re-emerged in the Council’s response to the CEMP, the Council’s

withdrawal from the Inquiry was unqualified and so it is no longer a live issue.

The argument that rail demand is and can only be market lead has been well aired.

The Applicant’s closing submissions at paragraph 3.35 (page 58) refer to evidence leading to the

conclusion that there is the potential to move containerised freight by rail from the RICT. Paragraph

3.52 (page 67) refers to the basis upon which development of rail use should depend on port

customers bringing forward demand. This a view shared by Transport Scotland.

37

At the Hearing session, Fife Council (who had originally sought such a provision) confirmed that it had

since withdrawn its demand for such a provision. Reference is made to the e-mail from Mr Crombie of

Fife Council to Mr Sayers of DPEA on 5th January 2012.

This Amendment is therefore another example of Forth Ports putting forward amendments with no

locus, no evidential basis or other justification, no precedent and no explanation of why the proposed

amendment is either appropriate or proportionate. The fact that Forth Ports cannot specify a

particular proportion serves to demonstrate the absence of an evidential basis for the imposition of

such a requirement. There is, therefore, no basis upon which to conclude such a requirement is

appropriate or proportionate. Forth Ports cannot contend that it is a standard requirement.

Pre-operation conditions

Forth Ports seeks two categories of pre-operation conditions, which are expressed in a way that if not

satisfied they prevent the RICT from being brought into use once constructed :

A. Road improvements – Forth Ports refer to road improvements but do not specify what such

should be.

Save for reference to a possible kerb re-alignment at the roundabout at Hilton Road, no

specific roads improvement measures have been sustained by any party to the Inquiry.

Reference is made to paragraphs 3.133 (page 108) and 5.98 (page 232) of the Applicant’s

closing submissions.

Reference is also made to the letter from Mr Crosbie of Fife Council to Mr Sayers of DPEA

dated 19 December 2011, in particular the section headed “Rosyth Strategic Link Road”, and

to the letter from Biggart Baillie LLP to Fife Council dated 14 December 2011 referred to

therein.

There is again no basis in evidence at the Inquiry for the Amendment sought and so the

Applicant submits that this amendment should not be made.

B. Rail gauge, paths and purpose designed terminal – stated by Forth Ports to be “to include

a requirement for intermodal access”. The requirements can be summarised as the Applicant

having “to demonstrate” (to whom is not specified) as follows :

A. W8 (9’6”) gauge clearance for UK wagons “between the port and the national rail

network” is “operational and available for use”. There Tthe Inquiry evidence is that such is

achievable with some maintenance work being undertaken. The use of “port” rather than

38

“work site” is helpful in that regard. The precise interpretation of the second quoted

phrase is unclear.

B. Daytime paths (0700 – 1900) are available for freight trains to enter and leave the port,

thereby “ensuring” that rail is “attractive to the market and cost effective”.

C. intermodal terminal “purpose designed” is “available” “within the port” .

There is no justification in the evidence before the Inquiry for any of the above elements.

The Applicant’s closing submission addresses the general issue of rail improvements at

paragraph 3.34 (page 58) and the views of Transport Scotland in that regard at paragraphs

3.36 to 3.38 (pages 59 to 60).

In relation to elements (a) and (b) of this Amendment, reference is made to paragraphs 3.55

to 3.57 (pages 69 to 70) of the Applicant’s closing submissions.

In relation to element (b), reference is also made to the paragraphs 3.42 and 3.43 (page

62/63) of the Applicant’s closing submissions on the basis of cost of rail freight services and

the unreliability of Mr Garratt’s evidence.

In relation to element (c), there is no basis in evidence for the need for any such “purpose

designed intermodal terminal” or what such would comprise. Reference is made to

paragraphs 3.58 to 3.75 (pages 70 to 80) of the Applicant’s closing submissions. The

Applicant’s response to Amendment 31.2(1) also applies.

The Applicant submits that these amendments should not be made.

9. “Trumping” powers on harbour master functions

(Amendment 32.12)

The protective provision proposed by Forth Ports include a provision on harbour authority interfaces.

The provision in question, however, not merely adopts but extends harbour authority interface

provisions seen in orders at some English ports where there are adjoining harbour authorities.

Subparagraph (1) is expressed as applying to “any function of the Company or any officer of the

Company …” that is not limited to the Applicant’s / its harbour master’s actions outwith the port limits

or in relation to transiting vessels or vessels departing PBR waters for the wider Forth etc.

39

Absent such limitations, the Applicant submits that the proposed provision over reaches what could

reasonably be accepted as necessary in light of the evidence at the Inquiry not least that of Captain

Keenor on interface issues.

Separately, the third element of sub-paragraph (1) (wrongly lettered (f)) is so wide that it could mean

anything. If specific legislation is intended to be included it should be listed or otherwise (f) deleted.

The Applicant would be willing to accept a restriction in the form of subparagraph (2).

Any restriction on the Applicant under the final form of sub-paragraphs (1) and (2) must be directly

reciprocated for Forth Ports and its harbour master or other officer of Forth Ports in respect of the

PBR port limits as extended by the Order.

The nod towards reciprocation in the current proposed text is unacceptable as whilst the Applicant is

subjected to the general dictat of Forth Ports, the latter need only “consult” in specific circumstances

of direct effect on RICT works or commercial port premises at PBR.

A measure of this nature was floated in discussions at Forth Ports offices on 19 May 2011. It is

unfortunate that Forth Ports’ agents took 50 weeks to put forward suggested text and that only after

the Inquiry closed.

The provision as proposed by Forth Ports will need to be revised to make it more even handed if it is

to be taken seriously. It should also in the Applicant’s view appear in the body of the Order rather than

a protective provisions schedule.

If the Reporters are minded to recommend the addition of protective provisions but accept the

concerns expressed by the Applicant on this or other elements of the provisions, the Applicant will

provide a tracked changes mark-up.

10. Indemnity

(Amendment 32.11)

The protective provisions proposal, includes provisions for (variously) surveys of the riverbed by

Forth Ports at the Applicant’s expense, dredging, relocation etc by Forth Ports of moorings, aids to

navigation etc due to RICT works (including dredging) all being at the Applicant’s cost. In so far as

the provisions in question are accepted, there is provision for cost recovery by Forth Ports in the

relevant clauses of the drafting as proposed.

The further and separate indemnity clause seems to the Applicant to be unnecessary due to the

specific cost recovery provisions elsewhere in the proposed provision.

40

No catastrophic event has been identified by Forth Ports in evidence or in the Further Explanation to

justify why a provision of this nature is necessary.

As noted above, London Gateway is on an entirely different scale, with the Port of London Authority

permitting London Gateway to carry out works in a main channel for which PLA remains liable

through-out and following the works. It is therefore not surprising that asset protection provisions

including an indemnity apply there.

The London Gateway circumstances are however simply not comparable to those of the RICT.

The proposed provision lacks safeguards with respect to the validity and the extent of claims, as well

as properly developed mitigation and control of claims provisions.

The indemnity is uncapped and represents a contingent liability with which the Applicant’s immediate

and ultimate parent companies will have issues from insurance and accounting perspectives.

The scope of the provision may be read as extending to the Applicant being required to indemnify

Forth Ports for any fall in harbour dues, at least for conservancy charges, resulting from vessels

calling at RICT rather than Grangemouth.

This provision is neither appropriate nor proportionate.

Biggart Baillie LLP

Agents for Port Babcock Rosyth Limited

28th

May 2012

A/4454580/132870.14

RICT ORDER

APPLICANT’S FURTHER REPONSE

TO

FORTH PORTS PROPOSED AMENDMENTS

The nature and effect of amendments to RICT Order proposed by Forth Ports

Introduction

This Further Response provides an overview of the nature and likely effect (rather than a point by

point examination) and a statement of the Applicant’s position in respect of the amendments

proposed in the submission by Bircham Dyson Bell on behalf of Forth Ports dated 4 May 2012.

Summary

The amendments sought can be grouped and summarised as follows :

1. No or only restricted extension of the PBR port limits;

2. Conditionality to the extension of the PBR port limits;

3. Amendment of the HEO to add an “open port duty”;

4. Denial of power to dredge and insertion of “protective provisions” for Forth Ports’ benefit, in

essence supplementing the 1969 Act by adding fresh requirements for Forth Ports’ dredging

and works licensing;

5. Restriction of permitted development rights and imposition of development conditions;


provisions;

7. Assumption of an environmental protection role for Forth Ports;

8. Imposition of pre-operation and use conditions;

9. Creation of “trumping” powers on harbour master functions; and

10. Imposition of a widely drawn indemnity in Forth Ports favour.

2

Detailed review

1. No or restricted extension of the PBR port limits

(Amendments 5, 6, 12, 13 and 30)

Forth Ports’ original objection dated 28 February 2011 (page 7 onwards) and subsequent

correspondence and Inquiry materials were framed very much with the stated position that Forth Ports

objected to any carve out from its jurisdiction. Various justifications were stated and maintained for

that position.

Nonetheless, Forth Ports only latterly put forward an alternative proposal in support of its Objection for

slightly extended port limits, although well short of the extent sought by the Applicant.

The Applicant’s Draft seeks to extend the Port Babcock Rosyth (“PBR”) port limits to take in the

Rosyth Protected Area (as marked on the Admiralty Chart) in so far as adjacent to PBR, the berthing

pockets adjoining PBR and the area for the access channel to the RICT.

The Forth Ports’ Amendments seek to delete the provisions in the Applicant’s Draft which would

provide for the extended PBR port limits. Forth Ports has, separately, provided for its fallback position

of a limited extension of little more than a 30 metre wide “skirt” on the river side of PBR’s existing

limits.

Forth Ports can therefore be seen as seeking to curtail the expansion of the Applicant’s jurisdiction

by three means:

- Initially, by objecting to any extension;

- Thereafter, seeking to limit the extension of the PBR port limits to the 30 metres referred

to immediately above; and

- Lastly, by demanding that limits should be imposed on both the powers and rights which

the Applicant will have within any extension of the existing port limits.

The final element manifests itself in the various other proposed amendments which are addressed

later. Not least amongst those amendments are those which seek to deny or otherwise put obstacles

in the way of the Applicant exercising dredging powers, including Forth Ports unwarranted demands

for protective provisions. Those matters are reviewed separately under heading 4 below. For reasons

already amplified upon in closing submissions, the Applicant records that dredging powers and

control issues and the extension of PBR port limits are inexorably linked in that the latter provides an

answer to many of the points arising in respect of the former.

The Applicant’s position is that Forth Ports has failed to establish why the Applicant should not be

granted the jurisdictional extension sought by the Applicant’s Draft and relative deposited plans.

3

The Applicant’s further position is that Forth Ports’ stated reasons and further explanations require to

be viewed as disingenuous in light of the wider agenda clearly being pursued by Forth Ports for its

own self-serving, commercial ends rather than for any genuine, objectively credible reason.

The notional 30 metre extension now offered by Forth Ports in lieu of the wider limits sought by the

Applicant is in any event largely outwith Forth Ports’ jurisdiction.

The Applicant’s position is that neither the proposed extension of the PBR port limits to the east of

the existing port limits (including around the South Arm), nor the areas immediately on the river side

of the existing PBR port limits nor the access channel to the Contractors Jetty are within Forth Ports ’

jurisdiction. That is because such areas comprise works on the bed of the Forth constructed by the

Secretary of State for Defence and so are explicitly excluded in terms of Schedule 1 to the Forth

Ports Authority Order Confirmation Act 1969 (“the 1969 Act”)(APP-T1).

At an Inquiry into objections made and maintained, Forth Ports has given no credible justification in

evidence not to allow the full extension of limits now sought by the Applicant .

In contrast, the Applicant has given justification for the extension of limits, as set out in the Applicant’s

closing submissions (paragraph 4.121 (page 194) onwards).

Forth Ports relies exclusively on the London Gateway port limits for this Amendment in terms of its

Further explanation; yet has not submitted any information on those limits to the Inquiry process (or

even with its Further Explanation) to assist with understanding the relevance of the London Gateway

approach and in particular the context of the setting within the river and the jurisdictional extent and

interfaces.

The Applicant submits that Forth Ports’ characterisation of the London Gateway jurisdictional

arrangements as being an appropriate precedent for RICT does not withstand scrutiny.

The Applicant notes from Volume 1 of the Inspector’s Report relative to the London Gateway Port

Harbour Empowerment Order 2008 (“LG Order”) (APP-T8), at paragraph 2.42 (page 13), that the

London Gateway (“LG”) capital dredging (and presumably maintenance dredging thereafter) includes

a 54 km long channel extending seaward from the LG berths out into the English Channel. The same

report (at paragraph 2.14) refers to the development encompassing 5,433 ha of the Thames Estuary

and (at paragraph 2.21) 32 Mm3 of dredged arisings.

Having been called upon to do so, Forth Ports’ agents have now provided the Applicant’s agents with

the plan which is attached to this Further Response for the Applicant.

The Applicant also refers to the following links from the Port of London Authority (“PLA”)’s website

being :

a map showing the setting of LG in the Thames relative to other commercial ports on

that river - http://www.pla.co.uk/handbook/terminal_map.cfm/terminal_pos/0; and

a listing of the commercial ports, wharfs and piers on Thames – 56 in total.

4

The Applicant would highlight the following matters which the Applicant submits are discernable from

the information referred to in the three immediately preceding paragraphs :

1. in terms of scale, LG is overwhelmingly greater than RICT;



upstream of LG;

4. It is not unreasonable to surmise that the Thames is a far busier river in terms of numbers of

ship movements and volume of goods moved than the Forth;

5. RICT involves relatively modest tidal works (namely, construction of the dolphins, works to the

Contractors’ Jetty and in so far as considered tidal works, the removal of the bund retaining

wall). The RICT berths do not extend into the Forth. LG in contrast involves building into the

river to an extent of approximately 25% to 30% of the previous width of the river. Accordingly,

the nature of the LG works is materially different from the RICT works;

6. The LG jurisdiction comprises approximately a third of the width of the river prior to the LG

works along the LG frontage;




Thames plus a 50% to 100% margin on either side. The RICT dredging limits do not encroach

on the Forth main channel at all;


mostly within PLA’s jurisdiction. The Applicant’s proposal is that the RICT dredging limits

should be wholly within the extended PBR port limits;

10. The RICT berthing pockets will be wholly within the existing PBR limits (a matter which has

not been questioned even by Forth Ports) whereas the LG berthing pockets straddle the

dividing line between LG and PLA jurisdictions.

The Applicant will return to the above analysis when responding to Amendment 32 (protective

provisions).







ships entering and leaving the Thames. LG’s capital dredging is deepening that channel to cater for

the larger container ships which will call at the new port, work which would be undertaken by PLA if it

saw a need for such work in general terms.



5




common user channel critical to the whole of Thames shipping, the Applicant does not accept that

Forth Ports has justified the basis upon which it should have control over dredging of the single user

RICT channel when the Applicant, rather than Forth Ports, would have responsibility for the safe

navigation of that channel.

By analogy, the LG berths are akin in configuration and setting to parking bays for on-street parking





managing) but that it would need also to be able to regulate the on-street parking bays too. In

contrast, there is no such justification for either form of control of a private driveway and thus it is

neither appropriate nor proportionate to extend controls from the LG Order to the RICT Order.

The Applicant addressed such matters through the evidence of Captain Keenor at the Inquiry.

In so far as there are alternatives to the LG Order for precedents for port development on a river

estuary with an estuary statutory harbour and pilotage authority, the Applicant refers to:

A. The port limits established by the North Killingholme Haven HEO 1994 which (in terms of

article 4 (1) of that Order) are “the jetty premises together with so much of the river as lies

within the area of water adjacent to those premises and which is bounded by an imaginary

line 100 metres from the works”; and

B. Forth Ports’ own document FP73, The Harwich Parkeston Bay HRO 2010, which provides (in

Schedule 2) for port limits consisting inter alia of boundaries “200 metres riverward of the

existing quay face”.

By comparison to the limits of other harbour authorities whose port sits within the jurisdiction of

another (typically estuary authority), the extension of limits sought by the Applicant is not excessive.


jurisdiction into the river but it has, in light of concern expressed with its original proposal, modified the

extent of the extension sought (by removing the outermost triangle) to the limits now proposed in

terms of the Applicant’s Draft. The effect of that modification (in addition to reducing the extent of the

extension into the river) is to remove the navigational significance of the remaining marginal incursion

into the main river channel.

6

The Applicant has separately offered a solution (referred to under heading 3 of this Further

Response) to concerns raised about the absence of rights of navigation through the extended PBR

port limits.

In contrast, the extension which Forth Ports appear begrudgingly to concede is less than a third of

that of the smallest comparable scenario identified above and without any substantiation of the 30

metres proposed by Forth Ports being offered by it, other than by reference to the LG Order. Citing a

precedent is not sufficient in the absence of an explanation as to the relevance and appropriateness

of applying the precedent. The fact there is a different river estuary harbour authority is not by itself

sufficient when it is possible to point to other such situations where different approaches have been

taken to extension of jurisdiction into the river. Forth Ports simply ignores in its Further explanation

the differences that exist between the navigational considerations that apply on the Thames as

compared to the Forth.

The Applicant submits that the full extension sought in terms of the Applicant’s Draft should be

granted. Although greater in front of the RICT berthing pockets (to allow for the construction and

maintenance of the RICT access channel and dredging of that), the Applicant’s proposal generally

follows the Rosyth Protected Area boundary shown on the Admiralty Chart and (with the stated

exception) only extends between 100 and 150 metres into the river from the existing PBR port limits.

A separate issue arises in relation to Forth Ports’ use of its own plan, showing what it represents as

the Applicant’s proposed port limits as an area outlined in red. The Applicant does not accept that the

plan produced by Forth Ports entitled “Comparison of Proposed HRO Boundaries” accurately

represents the proposed port limits as described in Schedule 1 to the Applicant’s Draft and shown on

Sheet I Rev A. The blue line indicates the initial HRO boundary but points 19 to 23 are located in

different positions compared to the first drawing submitted by Forth Ports to the Inquiry in the

afternoon of Thursday 2 February 2012. On the more recent “Comparison” drawing, the red line

boundary shown on Forth Ports’ drawing does not accurately represent the modified port boundary as

shown on Sheet I Rev A. It is to be noted that the plan produced by Forth Ports does not bear to

indicate that it has been drawn to scale nor does it appear to make use of coordinates for any of the

proposed boundaries, including their own suggested alternative. No explanation has been provided

by Forth Ports for these discrepancies and the Reporters are invited to accept that the “Comparison”

plan does not accurately show the area that would be included within “the outer harbour limits”.

The Applicant submits that Forth Ports has failed to establish why the Applicant should not be granted

the jurisdictional extension sought in terms of the Applicant’s Draft and relative deposited plans. This

proposed amendment is in the Applicant’s submission not proposed by Forth Ports in good faith. It is

yet a further example of attempts by Forth Ports to use any and all means to delay and obstruct the

development of Port Babcock Rosyth, frustrate a NPF2 project and gain an undue advantage over a

commercial rival.

In terms of the 1969 Act, neither the area of proposed extension of the PBR port limits to the east

(including around the South Arm) nor other areas immediately on the river side of the existing PBR

port limits nor the access channel to the Contractors’ Jetty are within Forth Ports’ jurisdiction. That is

7

because such areas comprise works on the bed of the Forth constructed by the Secretary of State for

Defence and so are explicitly excluded in terms of Schedule 1 to the 1969 Act.

The co-incidence of the footprint of those areas and the 30 metre “skirt” proposed by Forth Ports for a

minimal extension in the PBR port limits under Amendment 12 is in the Applicant’s contention that the

primary motivations for Forth Ports’ whole approach to its objection to the Order, the Inquiry and now

its proposed amendments to the Order are not to yield any jurisdiction and otherwise frustrate its

competitor’s development of a rival container port.

2. Conditionality to the extension of the PBR port limits

(Amendment 11)

The layered position adopted by Forth Ports, referred to above, includes a request for a provision to

the effect that any extension of the PBR port limits will only be effective once the Applicant has

satisfied Scottish Ministers that the Applicant has “arranged for the execution of the works and is

ready to take responsibility as harbour authority for the whole of the port limits”.

There appear to be two limbs to that proposed new test, namely :

A. Certainty of execution of the RICT works; and

B. Readiness (aka competency) to be harbour authority for more than the existing dockyard port.

Such a provision would provide Forth Ports with a platform to at the very least threaten, if not actually

take, legal action to challenge any decision Scottish Ministers might take on that test being met.

This proposed amendment is in the Applicant’s submission not proposed by Forth Ports in good faith.

It is yet a further example of attempts by Forth Ports to use any and all means to delay and obstruct

the development of Port Babcock Rosyth, frustrate NPF2 and gain an undue advantage over a

commercial rival.

Forth Ports has failed to provide any reason why the extension of jurisdiction should not proceed on

the making of the Order. No evidence to support the Amendment now sought was lead at the Inquiry.

In so far as a reason might be surmised for this proposed amendment, article 11 (period for

completion of the works) of the Applicant’s Draft already provides for a limited “shelf life” for the works

powers sought by the Order. Whilst a provision of that nature is very common in recent harbour orders

with works powers, the Amendment sought by Forth Ports is, to the Applicant’s knowledge, wholly

unprecedented.

Forth Ports do not refer to any precedents for the Amendment, for there are none.

8

In the Applicant’s submission, Amendment 11 should not be made in the terms in which it is proposed.

The drafting of the Amendment is ambiguous. The meaning of “arranged” is open to a number of

possible interpretations. Accordingly, it is ambiguous as to what event should be construed as the

Applicant having “arranged for the execution of the works”. The concept of being “ready to take

responsibility” not only ignores the fact that the Applicant is already the statutory harbour authority for

PBR but seems to cut across the role of the MCA and in so doing creates a vires issue.

Forth Ports have, not for the first time, failed to acknowledge that the Applicant is (by virtue of the The

Port Babcock Rosyth Harbour Empowerment Order 2009 (“the HEO”)) already a statutory harbour

authority. Forth Ports’ repeated express and implicit questioning of the Applicant’s competency as a

harbour authority has been consistently shown throughout the Inquiry process to be unfounded. The

Applicant’s closing submissions address such matters in greater detail.

Forth Ports itself extended its own jurisdiction merely by the acquisition of the Port of Rosyth, by virtue

of the definition of “port premises” in terms of the 1969 Act, without any express sanction from

Ministers.

The Applicant has no objection in principle to the transfer of jurisdiction being delayed to an

appropriate point in time. However, the trigger proposed by Forth Ports is too vague and imprecise

for the reasons indicated above.

The Applicant proposes that a suitable trigger would be :

“such date to be specified by Ministers in writing to the Company and to Forth Ports Limited

and by notice in the Edinburgh Gazette, being not less than [42] days after the date of publication of

such notice. Ministers shall not give such notice prior to receipt from the Company of confirmation that

the works have commenced on the works site.”

Forth Ports’ positions in relation to Amendments 11 and 12 appear to the Applicant to be mutually

incompatible, in that this provision would be unnecessary if the Applicant’s proposal to extend the port

limits was not accepted. This is a consistent weakness of the Forth Ports’ submission as it does not

make clear what amendments are being suggested in respect of the different alternative scenarios

created through Forth Ports’ challenge to the extension of the Applicant’s jurisdiction into the Forth. It

is respectfully suggested that the Reporters might obtain clarification from Forth Ports as to which

proposed amendments the Objector contends should apply to which scenario (i.e the Applicant’s

proposed limits as opposed to Forth Ports’ alternative 30 metre skirt).

In this regard, it is not only unclear whether Forth Ports are looking for Amendment 11 to apply should

the extension of the PBR port limits to the full extent sought by the Applicant be granted, or whether

Amendment 11 ought not to apply if only a 30 metre extension in limits is made. It is also unclear

whether, if there are different rights or obligations upon the Applicant in different zones of the port

limits (e.g. inner 30 metres and “outer harbour limits” by virtue of Amendment 10 or the alternative

9

proposed to it – which are discussed under heading 3 below) the extension of limits should be

staggered.

The proposed extension of the PBR port limits to the east of the existing port limits, including around

the South Arm, is not predicated upon the RICT project but rather is desired to reflect the existing

operational requirements of the Applicant. The first sentence of Forth Ports “Further explanation” for

Amendment 12 is consistent with, and appears to the Applicant to support, the Applicant’s rationale.

The Applicant contends that Forth Ports has now conceded that the PBR limits should be extended by

at least 30 metres. The eastern extension of the PBR port limits in the immediate vicinity of the

dockyard basin direct entrance is, in any event, not disputed in respect of a 250 metre or so extension.

Accordingly, the Applicant submits that the PBR limits could be extended by the extent shown

coloured orange on the plan submitted by Forth Ports immediately on the Order having effect, even if

a fuller extension as sought by the Applicant’s Draft (i.e the “outer harbour limits” to adopt the Forth

Ports term) were to the delayed until a further trigger event, as suggested above, has occurred.

3. Amendment of the HEO to add an “open port duty”

(Amendments 9 and 10)

The Applicant’s intention is that so called public rights of navigation, by the application of section 33

of the Harbours, Docks and Piers Clauses Act 1847 (“the 1847 Act”), would not apply within the

RICT Order limits. That is the effect of the terms of the draft Order as applied for when read with the

terms of HEO.

Forth Ports proposes that in the event that the PBR limits are extended beyond the 30 metre “skirt”

comprised in Forth Ports’ fallback position, section 33 of the 1847 Act (“section 33”) should apply in

what Forth Ports terms “the outer harbour limits”.

The meaning and effect of section 33 has not been properly explained in Forth Ports’ narrative.

The Applicant’s position is that section 33 should not apply to the RICT berths or in the immediate

vicinity of the existing PBR port limits.

The Applicant is concerned that section 33 if applied to the outer parts of any extended PBR port

limits would create an entitlement to transshipment (i.e. transfer of cargo (e.g. oil) from one ship at

anchor in that part of the river to another adjacent ship), over which the Applicant would have no

controls.

The Applicant has no objection to rights of transit per se beyond the immediate vicinity of the existing

PBR port limits and offers an alternative provision below.

10

Forth Ports does not cite any precedents to substantiate its position. In particular, Forth Ports has

not sought to demonstrate that such a provision is both appropriate and proportionate in the

circumstances that will apply to the operation of the RICT. It has led no evidence in relation to the

Rosyth Small Boat Channel and the Applicant has dealt in closing submission with the other areas

within the Forth in respect of which it is suggested that an issue may arise in relation to section 33.

The generic references to elements of Captain Baker’s evidence in the Further Explanation are of

little if any assistance. The reliability of Captain Baker’s evidence is in any event addressed in

Chapter 4 of the Applicant’s Closing Submissions.

Separately, there is no basis set out by Forth Ports that suggests the proposition that the

incorporation of section 33 is to be regarded as “standard”.

The incorporation of section 33 in Scotland has not been universal and there is a growing body of

recent Scottish precedents where harbour orders do not incorporate the section.

The incorporation of the 1847 Act into the following recent harbour orders is under exception of inter

alia section 33:

- The Port of Cairnryan HEO 2007, at article 3(1)(APP-T12);

- The Caledonian Maritime Assets Limited (Largs) HRO 2008, at article 3(1)(APP-T6);

- The Loch Ryan Port (Harbour Empowerment) Order 2009, at article 3 (1)(APP-T10);

and

- The Port Babcock Rosyth (Harbour Empowerment) Order 2009, at article 3 (1)(CD-D1).

It is worth noting that (as a port within an estuary for which another party is the harbour authority,

which has many parallels to the RICT), the North Killingholme Haven HEO 1994(APP-T9)

incorporated the 1847 Act under exception of inter alia section 33.

Forth Ports refer to section 33 as a “right of navigation arising under the open port duty” – that,

however, is not how section 33 is expressed: namely, that (subject to the payment of harbour dues)

the port in question “shall be open to all persons for the shipping and unshipping of goods and

embarking and landing of passengers”.

It may well be that the effect of section 33 being incorporated is ordinarily to create a right of

navigation – but specifically to get to or from the relevant pier or quay of the port or harbour in

question in order to then handle cargo or allow passengers on or off the vessel. That effect is,

however, dependent on the harbour or port being subject to the open port duty which should not arise

at PBR or the proposed RICT for the reasons which are explained below.

Forth Ports is seeking to amend the HEO by an amendment to the draft Order. In pre-application

dialogue with Scottish Government officials in advance of the application for the HEO, the Applicant’s

agents successfully argued that Section 33 of the 1847 Act was not to be incorporated due to the

11

enclosed nature of the dockyard port and the naval related work carried out there in addition to

commercial port activities. The absence of an “open port” duty, along with the inclusion of article 17 of

the HEO, was seen as material to allow naval and commercial activities to co-exist.

Forth Ports seem to have accepted that rationale for the RICT by only seeking to have section 33

applied in what it has referred to as the “outer harbour limits”.

The Reason (revised) stated for this Amendment 10 by Forth Ports when read together with the Forth

Ports proposed revisal to paragraph (1) of article 17 of the HEO seems to indicate that Forth Ports

intend the term “outer harbour limits” to refer to the area lying between a landward line drawn 30

metres into the river from the port limits under the HEO and the extension of the PBR limits sought by

the Applicant in terms of the Applicant’s Draft (i.e. between the orange shading and the red line as

shown on the limits map submitted by Forth Ports). If the Applicant is correct in its understanding, the

definition of “outer harbour limits” will need to be amended – as it currently does not include reference

to a landward boundary line for such limits.

The remainder of this Further Response proceeds on the basis that the immediately preceding

paragraph correctly identifies the area to which Forth Ports wishes section 33 to apply. The

Applicant’s position is reserved if and in so far as the Applicant is incorrect in its deduction of the area

to which Forth Ports are in fact seeking to refer.

Paragraph 4.9 in Chapter 4 of Douglas & Geen, and predecents such as article 42 of the London

Gateway Port HEO 2008 (APP-T8), provide credence for the position that even where section 33 is

incorporated for a specialist facility like a container terminal, it is inappropriate to let any unscheduled

vessel seek to call and so “occupy” the berths – i.e. that the harbour authority should have discretion

to control the allocation of berths. That Forth Ports seeks to amend article 17 of the HEO rather than

delete it indicates Forth Ports acceptance of the Applicant’s position in that regard.

It is curious therefore that Forth Ports have insisted on seeking to have Section 33 incorporated and

also to have article 17 of the HEO limited so as not to apply to the outer harbour limits. That is

because, given what section 33 actually provides for, it is self evident that the amendment which

Forth Ports is seeking would not have the effect which Forth Ports is purportedly looking to achieve.

If Forth Ports actually wishes a provision that is intended to provide for vessels not destined for Port

Babcock Rosyth to be allowed to transit the outer harbour limits, it should have requested such a

provision in those terms.

As it is, the effect of the various amendments proposed by Forth Ports would be that section 33 would

not apply to the berths at the RICT and that the Applicant could in any event control allocation of the

berths (and so the effect of section 33 to lead to a right of navigation would not arise) and yet in its

application to the “outer harbour limits” section 33 would, for example, entitle transhipment in a

manner that may obstruct access to or use of berths or quays at Port Babcock Rosyth or indeed

other transiting vessels.

12

The Applicant records that none of the Maritime and Coastguard Agency, Northern Lighthouse Board,

The Royal Yachting Association or Chamber of Shipping raised any concerns about section 33 not

being incorporated in either the HEO or the HRO.

Amendments of the nature suggested by Forth Ports at Amendment 10 are, in the Applicant’s

submission, neither necessary nor justified.

Forth Ports has, due to the short-comings in Captain Baker’s evidence and the fact that there is no

reference in evidence to support the point made at paragraph 2.1.38 of Forth Ports closing

submissions, failed to explain what legitimate interests of Forth Ports require to be protected; and

have not shown the proposed amendment to be either appropriate or proportionate in the context of

the RICT.

As explained under heading 2 above, in comparison to the limits of other harbour authorities whose

port sits within the jurisdiction of another (typically estuary) authority, the extension of limits sought by

the Applicant is not excessive.

Although greater in front of the RICT berthing pockets (to allow for the construction and maintenance

of the RICT access channel), the Applicant’s proposed new limits in the Applicant’s Draft generally

follows the Rosyth Protected Area boundary shown on the Admiralty Chart and (with the exception

noted above) only extend between 100 and 150 metres into the river from the existing PBR port limits


jurisdiction into the river but it has in light of concern expressed with its original proposal modified the

extension sought (by removing the outermost triangle) to the limits now proposed in terms of the

Applicant’s Draft. The effect of that modification (in addition to significantly reducing the extension into

the river) is to remove for all practical purposes incursion into the main river channel.

If the Reporters or the Scottish Ministers are nonetheless concerned with the issue of navigation by

transiting vessels, then in the Applicant’s submission incorporation of section 33 in the manner

suggested by Forth Ports is not appropriate.

Instead, a provision could be inserted as a new paragraph (6) in article 4 (Limits of port) in the

Applicant’s Draft to the effect that :

“The Company shall permit any vessel not bound for or originating at the port to navigate

through the outer harbour limits subject to compliance with the terms of the Port Babcock

Rosyth Orders 2009 to 201[X] and any requirement lawfully promulgated by or on behalf of

Company by virtue of powers thereunder.”

The final limb of the above text is intended to include general / special directions, byelaws and the

like.

13

If such an amendment were to be made then, for consistency, the Applicant would accept that article

17 of the HEO should also be amended so as to apply only to the existing PBR port limits and an

inner zone (whether the first 30 metres or up to the Protected Area line to be determined by the

Scottish Ministers) of the river side extension of those port limits by the HRO (which for convenience

could perhaps be termed the “inner harbour limits”).

The above proposal is consistent with paragraph 4.120 (page 193) of the Applicant’s closing

submissions.

14

4. Dredging – powers, limits, licensing and protective provisions

(Amendments 3, 7, 8, 19, 20, 21, 22, 28, 29 and 32)

In parallel with seeking to prevent or limit any increase in the Applicant’s harbour authority jurisdiction

through the extension of PBR port limits, Forth Ports has sought to deny or otherwise throw obstacles

in the way of the Applicant exercising dredging powers. These matters are expressly linked by Forth

Ports in the first paragraph of its Further explanation of Amendment 20.

As the Applicant has made clear during the Inquiry process, the Applicant’s position is that Forth

Ports’ approach to a number of matters has been with a view to imposing unwarranted restrictions for

self-serving commercial reasons as the Applicant is seeking to develop a container terminal facility

which will operate in competition to Forth Ports own commercial operations.

In relation to dredging matters, Forth Ports endeavours have been focussed on placing the ability,

manner, timing and hence cost of dredging activities as subject to Forth Ports control.

To those ends, Forth Ports has sought the following :

a. Deletion of the power to dredge provided for in the Applicant’s Draft (at article 8), with

consequential amendments;

b. Inclusion of dredging authorised by the Order in “tidal works” needing Ministers approval;

c. Forth Ports’ licensing control over dredging activities; and

d. Protecive provisions, aimed primarily at dredging activities.

The Applicant’s position on each of these is dealt with below.

a. Power to dredge

Article 7 (1) of the HEO provides a power to dredge in generic terms. Articles 8 (1) and (2) of the

Applicant’s Draft provide for an express power to form a dredged access channel to the RICT. Forth

Ports have suggested the latter be deleted and reliance be placed on the former.

The Applicant’s position is that it is not uncommon for harbour orders authorising works to expressly

authorise dredging works even where the harbour authority in question already has generic dredging

powers.

For example, the Scrabster (Deep Inner Berth) HRO 2011 contains (in article 4) dredging powers for

specific dredging works which that order authorised – whilst the Scrabster (Forward Supply Base)

HRO 1998 and the Scrabster (Inner Harbour Development) HRO 2000 both provided Scrabster

Harbour Trust with generic dredging powers in article 6 of both those orders in terms that: “the Trust

may from time to time deepen, dredge, scour, cleanse, alter and improve the harbour for the purpose

15

of affording uninterrupted means of access to the harbour or any part of it or the accommodation of

vessels thereat.”

Forth Ports has not argued and has not established that any harm or prejudice will arise to any party

by the inclusion of express powers to carry out capital and maintenance dredging in respect of the

access channel for the RICT. In the Applicant’s submission such an express provision puts any

question of power to dredge beyond doubt. Such an approach is well precedented and in a situation in

which the proposed development has been objected to by a number of Objectors, who may

subsequently seek to obstruct development of the RICT if the Order is made, clarity and the avoidance

of ambiguity as to the nature of the development authorised is justified.

The Applicant’s position in relation to dredging is that the appropriate control mechanism is the

Marine Licensing regime under the Marine (Scotland) Act 2010.

Forth Ports has sought to create a misdirection by reference to article 26 of the Marine Licensing

(Exempted Activities) (Scottish Inshore Region) Order 2011 (“the Exempted Activities Order”) and

by suggesting that dredging authorised by the Order cannot be the subject of a marine licence.

The Applicant refers the reader to paragraphs 2.48 to 2.56, 8.17 to 8.22 and 10.52 to 10.59 of the

Applicant’s Closing Submissions.

Article 26 provides three conditions for exemption thereunder to apply, as follows :

“(3) Condition 1 is that the activity –

(a) Involves the dredged material being contained within a secure structure and

transported for deposit other than at the place of dredging; or

(b) Involves the use of plough dredging as part of a dredging operation in respect of

which any other dredging falls within sub-paragraph (a) above;

(4) Condition 2 is that the activity is authorised by or under, and carried out in accordance

with –

(a) any local Act; or

(b) any order under section 14 or 16 of the Harbours Act 1964.

(5) Condition 3 is that the activity is approved by the Scottish Ministers before it is carried

out.”

The applicability of Article 26 of the Exempted Activities Order is expressly addressed in paragraph

10.52 of the Applicant’s closing submissions, which should be treated as restated here.

In particular, for current purposes, it should be noted that Conditions 2 and 3 of the Exempted

Activities Order are separate and distinct. As argued in the Applicant’s Closing Submission,

16

authorisation by virtue of the HRO (i.e. the grant of power to dredge) is not the same as approval of

the actual works involved prior to such being carried out for marine licensing purposes.

The distinction drawn in the Applicant’s closing submissions is supported by the fact that approval of

the actual works will not be by Transport Scotland’s Ports & Harbours Branch but by MSLOT (Marine

Scotland Licensing Operations Team) as referred to in the final bullet point of the text of section 4.13

of the Scottish Government’s “A Guide to Marine Licensing in Scotland” quoted by Forth Ports in

respect of its desired control over tidal works and dredging detailed design under Amendment 30.

Contrary to any suggestion by Forth Ports, the grant of an express power to dredge for the RICT will

not lessen the environmental protection to be provided by the Marine Scotland licensing process.

It should separately be noted that, the Forth Ports’ position on the interpretation of article 6 of the

HEO would mean there is no difference in outcome on the applicability of article 26 of the Exempted

Activities Order. Whether authorised by the general power of the HEO or the specific power sought

in the Applicant’s Draft of the HRO, the dredging works will potentially satisfy Condition 2 of article

26.

In conclusion, article 8 of the Applicant’s Draft will put the Applicant’s authority to form and maintain

the access channel for the RICT beyond doubt. Such an approach is well precedented; and Forth

Ports have not demonstrated that as an objector there is any basis not to include such an express

power.

The Applicant would not oppose the insertion of an express provision to the effect that RICT

dredging works shall not be exempt from marine licensing; that such works shall be a “licensable

marine activity” within the meaning and provisions of the Marine (Scotland) Act 2010 and that the

Exempted Activities Order shall not apply

b.“tidal works” definition and approval

The Applicant supports Forth Ports’ proposed amendment of the definition of “tidal works”, save that

the Applicant’s position is that there requires to be an exclusion from this definition of dredging works

as such works are otherwise authorised and are not of the nature of works normally referred to as

tidal works in harbour orders.

There should therefore be inserted at the end of the text to be substituted : “and excluding any

operations authorised by article 8 (power to dredge) of the Rosyth International Container Terminal

(Harbour Revision) Order 20[ …]”. In the event that Ministers determine that article 8 is to be deleted,

“and excluding any operations authorised by article 7 (power to dredge) of this Order” should be

inserted instead.

17

The Applicant’s suggested approach follows the definition of “tidal work“ in the Port of Bristol (Deep

Sea Container Terminal) HRO 2010 and (in relation to maintenance dredging) in the London

Gateway Port HEO 2008.

Perhaps more significantly, the Forth Ports Authority Order Confirmation Act 1969 distinguishes

between tidal works and dredging with separate provisions for the licensing of tidal works (section

23) and dredging (section 24), and the distinction continued in the terms of section 26(1)(a)

compared with section 26(1)(b).

c. Licensing

Forth Ports demand that dredging works for the RICT be subject to a requirement to obtain a licence

from Forth Ports (which may be “on such terms and conditions as they [Forth Ports] think fit” in terms

of section 24 of the 1969 Act).

This is a further example, in the Applicant’s submission, of Forth Ports stubborn determination to

seek out for itself a degree of control over the RICT and its development which Forth Ports would not

otherwise enjoy.

No requirement to obtain a dredging licence from Forth Ports under the 1969 Act arises outwith

Forth Ports’ harbour authority jurisdiction as set out in the 1969 Act. Therefore Forth Ports cannot

competently demand the Applicant obtains such a licence for dredging within the current PBR port

limits, any areas within the “constructed” exception to Forth Ports’ jurisdiction in terms of Schedule 1

to the 1969 Act (as referred to at heading 1 above), or within any extension of the PBR port limits on

the making of the Order.

Section 26(1)(i) of the 1969 Act, provides that the prohibition (in Section 26(1) (b)) on dredging

without and in accordance with a licence from Forth Ports (under section 24) shall not apply to “the

carrying out of dredging in the port specifically authorised under any enactment”. Therefore, in so far

as the HEO or the Order provide power to dredge within Forth Ports jurisdiction, there is no

requirement to obtain a licence to do so from Forth Ports.

Therefore, any grant of licensing powers by virtue of the amendments sought by Forth Ports would be

an extension of the 1969 Act and a derogation of the rights granted to the Applicant by virtue of the

HEO.

Article 19 of the Applicant’s Draft was inserted with the intention of putting the question of whether or

not a works or dredging licence from Forth Ports would be necessary for the RICT beyond any doubt,

both in relation to tidal works and dredging.

18

That Forth Ports should seek to turn that clarification into an attempt to acquire a means (which if the

Amendment is granted would be backed by a criminal sanction in terms of the section 26 (2) of the

1969 Act) to take powers for itself is unwarranted.

The effect of article 19 of the Applicant’s Draft as amended by Forth Ports’ proposed Amendments 28

and 29 is unclear. On one reading the amended article will require licences to be obtained from Forth

Ports for dredging and tidal works even within the existing PBR limits if works are being carried out

under article 5. Forth Ports has not objectively justified that it should have the control it seeks.

The amendment does not add to certainty and so should not be made.

d. protective provisions

The Applicant acknowledges that protective provisions are not uncommon in harbour orders and other

statutory means of authorising infrastructure works. Protective provisions are, however, far from

universal or matter-of-course features of such primary or secondary legislation. The need for such

provisions must be established on a case by case basis, where a locus has been established by the

party being protected and the terms of the provisions are accepted as being appropriate and

proportionate.

Although Forth Ports cite the Crossrail and Channel Tunnel Rail Link legislation, those Acts are not

before the Inquiry and there is no basis in evidence to draw any inferences of relevance to RICT from

them.

Forth Ports relies most heavily upon the London Gateway Port Harbour Empowerment Order 2008

(“LG Order”) (APP-T8) in its proposal for protective provisions. Notwithstanding reference to other

Orders, an analysis of the provisions proposed is that almost exclusively they are based on those of

the LG Order.

In Section 1 of this Further Response, the Applicant submitted that Forth Ports characterisation of the

London Gateway (“LG”) jurisdictional arrangements as being an appropriate precedent for RICT does

not withstand scrutiny. The Applicant further submits that LG and the LG Order are similarly not

analogous to the RICT and the proposed Order for the purposes of establishing whether and if so

which terms of protective provisions should be imposed for Forth Ports’ benefit in respect of the RICT.

The Applicant submits that accordingly, contrary to the tests Forth Ports has set itself, the LG Order

protective provisions are neither standard, nor appropriate, nor proportionate.

The Applicant repeats the following matters from Section 1:

1. in terms of scale, LG is overwhelmingly greater than RICT – LG is a development

encompassing 5,433 ha of the Thames Estuary, producing 32 Mm3 of dredged arisings

from 54km of capital dredging;


19


upstream of LG;

4. It is not unreasonable to surmise that the Thames is a far busier river in terms of numbers

of ship movements and volume of goods moved than the Forth;

5. RICT involves relatively modest tidal works (namely, construction of the dolphins, works

to the Contractors’ Jetty and in so far as considered tidal works, the removal of the bund

retaining wall). The RICT berths do not extend into the Forth. LG in contrast involves

building into the river to an extent of approximately 25% to 30% of the previous width of

the river. Accordingly, the nature of the LG works is materially different from the RICT

works;

6. The LG jurisdiction comprises approximately a third of the width of the river prior to the

LG works along the LG frontage;




Thames plus a 50% to 100% margin on either side. The RICT dredging limits do not

encroach on the Forth main channel at all;


mostly within the Port of London Authority (“PLA”)’s jurisdiction. The Applicant’s proposal

is that the RICT dredging limits should be wholly within the extended PBR port limits;

10. The RICT berthing pockets will be wholly within the existing PBR limits (a matter which

has not been questioned even by Forth Ports) whereas the LG berthing pockets straddle

the dividing line between LG and PLA jurisdictions.







ships entering and leaving the Thames. London Gateway’s capital dredging is deepening it to cater

for the larger container ships which will call at the new port, work which would be undertaken by PLA

if it saw a need for such work in general terms.






common user channel critical to the whole of Thames shipping, the Applicant is not convinced that

Forth Ports should have control over dredging of the single user RICT channel when the Applicant

rather than Forth Ports would have responsibility for the safe navigation of that channel.

20

By analogy, the LG berths are akin in configuration and setting to parking bays for on street parking





managing) and that it would need also to be able to regulate the on street parking bays too. In

contrast, there is no such justification for either form of control of a private driveway in its closing

submission.

It can therefore be appreciated why the PLA would legitimately seek and be granted protection in the

form of the various elements of the protective provisions – including prior approval of proposals and

an indemnity. Such “asset protection” mechanisms are not uncommon in other circumstances

comparable to LG, such as third party enhancements to the railway network, where Network Rail

insist on contractual protection of the nature under discussion as a pre-condition of consent to works.

To return to the analogy, those concerns simply do not arise within the boundaries of a private house

plot. Therefore, once again, we find ourselves returning to the issue of the extent to which the PBR

port limits are to be extended by the Order.

It has been common elsewhere in the UK for a harbour authority to licence 'works' including dredging

to be carried out by others within its area of jurisdiction. This power is in addition to the new

requirements under the Marine (Scotland) Act, but is primarily used to ensure safe navigation.

The Inspector’s Report relative to the LG Order, at paragraph 13.3.2 (page 129) of Volume 1 confirms

that the PLA is the port authority for the area in which LG would operate. Paragraph 13.3.44 indicates

that the LG Order was originally drafted without protective provisions whilst paragraph 13.3.46

indicates the rationale for PLA being protected. As noted above, however, the circumstances at LG

are materially different from those which arise at RICT. If the RICT channel is to be outwith the area of

Forth Ports’ jurisdiction then the Applicant cannot accept that Forth Ports has any basis for claiming

the rights to control dredging or works.

It should be kept in mind that the closer in to the existing PBR port limits the new limits are drawn,

the more the “constructed” argument regarding the extent to which Forth Ports does not have any

existing jurisdiction under the 1969 Act becomes more relevant – especially as it could be said that

for such areas, Forth Ports’ amendments seek not just to protect existing interests or create new

powers but are seeking to extend Forth Ports’ jurisdiction to areas to which it currently does not

extend.

In so far as Forth Ports state that it is protecting “its” river, the natural answer is that the PBR limits

should be extended so that the works and immediate effects are set within those limits; on “Babcock’s

watch”. In so far as Forth Ports express concern about effects in the rest of the river, the fact remains

21

that those effects are the statutory responsibility of Marine Scotland / SEPA from whom Forth Ports

could seek redress if needs be.








It seems to the Applicant that Forth Ports is (other than in any anti-competitive sense of the phrase)

not seeking protective measures but rather it is in essence seeking to use the RICT Order to create

fresh powers to supplement the provisions of the 1969 Act on tidal works and dredging licensing.

In doing so, Forth Ports is seeking to amend the dredging powers of the HEO by now requiring Forth

Ports prior approval (before applying to Scottish Ministers where necessary) of any tidal work

construction or maintenance and of any capital or maintenance dredge.





marine licensing regime and EIA regulations. The proposed protective provisions are viewed by the

Applicant as a sledge hammer to crack a nut.

In terms of the proposed paragraph 1(4) at Amendment 32, Forth Ports seek for themselves a wide

discretion to impose its own requirements in approving the Applicant’s design of the authorised works

provided the requirements are based on the protection of :










22





The Applicant would be concerned that the proposed provisions would allow for a 42 day period for a


subject to extension to complete consultation – all in all a potentially drawn out timeline.

Subject to the provisos below, the Applicant will not object to the inclusion of provisions in relation to:

- Obstructions in the river;

- Non-interference with Forth Ports’ moorings and buoys;

- Facilities for navigation; and

- Removal of temporary works

That is provided their inclusion is subject to revisal to clarify that such provisions shall only relate to

any implication for the subject matter of the same within Forth Ports jurisdiction or acts or omissions of

the Applicant or those for whom it is legally responsible in relation to works or the operation of the

RICT.

Any such provisions’ inclusion should, logically, only be made if a reciprocal requirement is imposed

on Forth Ports in respect of any act or omission of Forth Ports or those for whom it is legally

responsible within the PBR port limits.

The Applicant acknowledges the need to provide suitable lighting for tidal works and for the provision

of suitable aids to navigation consequent to the RICT development and operation. Those are matters

which the Applicant will agree with the Northern Lighthouse Board for the PBR Limits in so far as

extended.





The Applicant’s willingness to laise with Forth Ports in relation to dredging beyond the 10 metre

contour line and to not object to a requirement to provide Scottish Ministers with copy marine

licensing applications and related provisions referred to above is without prejudice to the Applicant’s

in principle opposition to this provision in any wider application.


Applicant will not object to a requirement in the Order to copy to Scottish Ministers any marine licence

application (and supporting information) relative to the works and keep Scottish Ministers appraised of

progress of the application, for the purposes of Scottish Ministers determining whether any other

23

matters require to be addressed or conditions imposed which Scottish Ministers should require for the

purposes of their approval of such works.

Conclusion

The Applicant submits that the attempts by Forth Ports to limit the extension of the PBR port limits,

to have article 8 of the Applicant’s Draft deleted, to propose dredging licencing powers and to require

protective provisions are merely elements of a wider and desperate attempt to secure means to

obstruct the Applicant’s development of PBR and the RICT.

5. Restriction of permitted development rights and imposition of development conditions

(Amendments 16, 17, 18, 22, 31.1 and 31.2)

Forth Ports seeks to frustrate or otherwise delay the Applicant’s ability to proceed with the RICT even

once the Order authorising the works has been made; by a series of amendments not normally found

in harbour orders.

The measures in question comprise :

a. restrictions on the applicability of permitted development rights;

b. design or construction limitations;

c. amendments to ancillary works and subsidiary works powers;

d. caveat to article 7 (power to deviate);

e. definition of “tidal works” and the deletion of article 9 (2); and

f. a pre-construction “safeguarding” provision

a. Permitted development rights

Permitted development rights are referred to in item (2) of Forth Ports’ objection in the context of an

attack on proceeding by way of a harbour order and not seeking planning permission. That issue has

been the subject of robust debate in the interim.

Forth Ports has now proposed restrictions on the applicability of permitted development rights.

As noted in the Applicant’s closing submissions (at paragraph 2.38 on page 29), the Applicant is

content to adopt the Forth Ports proposed text and see it inserted into Schedule 2 to the Applicant’s

Draft subject to the addition noted below.

There is one discrepancy between the text proposed by Forth Ports in Amendment 31 (1) and the

text which the Applicant adopted in Appendix D to its closing submissions, namely the addition of “ in

the opinion of the planning authority” between “may” and “have significant effect” in paragraph 1 (b).

24

That insertion provides a means of determining whether or not paragraph 1 (b) of the text proposed

by Forth Ports applies and so adds clarity and certainty to the drafting.

b. design or construction limitations

Forth Ports has sought to flag various design or construction limitations. Those include height

restrictions (both in a revisal to the article 5 description of those works which comprise buildings and

in Schedule 2) which seem unnecessary given that limitations on the number of storeys is already in

place. In a similar vein, article 5 already has limitations on the height of cranes etc.

The various other design or construction restrictions flagged by Forth Ports appear more to be a

shopping list compiled from points raised by other objectors or elements of the ES mitigation list or

draft CEMP. Given the development of the CEMP and associated drafting, such elements seem

unnecessary.

c. amendments to ancillary works and subsidiary works powers

Although presented as consequential matters, the effect of the proposed amendments to the

ancillary works power (article 5(2)) and subsidiary works (article 6), to refer to limits of deviation

authorised by article 7 will be unduly restrictive.

Whether or not that is the intended effect, is irrelevant as the proposed amendments are not

appropriate. Even a consequential amendment (from dredging powers not being granted) is needed,

as the limits of deviation in article 7(1) refer to deviation from lines and positions shown on deposited

plans; whereas by their nature ancillary and subsidiary works are not shown on such plans.

Accordingly, the use of “works site” should be retained. If needs be an amendment to the plan

showing the work site should be produced to allow differentiation between the landward and river

elements of the works site.

d. caveat to article 7 (power to deviate)

Forth Ports have also sought to add in a caveat to article 18 (power of deviation) of the Applicant’s

Draft. Amendment 18 seeks to add in “so far as is consistent with the requirements of Schedule 2”.

As Schedule 2 in the Applicant’s Draft is materially different from that in the mark-up supplied by Forth

Ports, however, the meaning and effect of the proposed amendment is not clear.

If Forth Ports reference to Schedule 2 is to Schedule 2 of the Applicant’s Draft (i.e. mitigation

measures), Forth Ports should have explained precisely which mitigation measures it feared would be

imperiled by the application of the power to deviate. Forth Ports has not done so. Accordingly, the

proposed amendment should be disregarded for lack of explanation of purpose or effect. There is no

evidence to suggest that these powers of deviation could undermine any proposed mitigation

25

identified in Schedule 2 or the CEMP; nor was any such line of cross-examination pursued with any of

the Applicant’s environmental witnesses. The only exception was in relation to the depth of the capital

dredge, which has been addressed by the Applicant through modification as shown in the Applicant’s

Draft.

If Forth Ports reference to Schedule 2 is to that in Forth Ports’ current mark-up of the draft Order (i.e.

Forth Ports’ protective provisions), Forth Ports should have provided an explanation of which

provisions it feared would be overridden by the power to deviate, the materiality of such effect and

why Forth Ports deem themselves entitled to have such precedence. Schedule 2 is so wide ranging

that such a general reference to it by Forth Ports is meaningless.

In effect, by subjecting deviation rights to Forth Ports’ proposed protective provisions, Forth Ports is

seeking a degree of control, and precedence, which exceeds that normally retained by Ministers on

the question of deviation given that powers to deviate are a standard provision in harbour orders and

in other orders and legislation authorising infrastructure works.

Deviation provisions can be found in, to name but a few recent Scottish orders, Loch Ryan Port HEO

2009 (article 5), Scrabster (Deep Inner Berth) HRO 2011 (article 5)(APP-T11), CMAL (Port Ellen)

HRO 2011 (article 4) and CMAL (Kennacraig) HRO 2011 (article 4)(APP-T5).

Even in the London Gateway Port HEO 2008 (cited by Forth Ports as precedent for the protective

provisions being sought by Forth Ports), the limits of deviation (article 14) are not caveated in the

manner being sought here by Forth Ports.

Similarly, neither the Harwich Parkeston Quay HRO 2010 (article 7)(FP-73) nor Port of Bristol (Deep

Sea Container Terminal) HRO 2010 (article 6)(APP-T4), being further examples of Orders with

protective provisions referred to by Forth Ports, have caveats of the type now sought by Forth Ports.

e. definition of “tidal works” and the deletion of article 9 (2)

The requested amendment to the definition of “tidal works” and the deletion of article 9 (2) of the

Applicant’s Draft seem designed to require, notwithstanding approval of the works under the RICT

Order, a separate, subsequent application for Scottish Ministers’ approval of dolphins and other tidal

works

As explained in relation to the power to dredge at paragraph 4 (a) above(and the Applicant’s

response to Amendment 20), no requirement to obtain a licence from Forth Ports under the 1969 Act

currently arises (whether for dredging or tidal works) outwith Forth Ports’ harbour authority

jurisdiction as set out in the 1969 Act.

Currently, Forth Ports cannot competently demand the Applicant obtains such a licence for works

within the current PBR port limits, any areas within the “constructed” exception to Forth Ports’

26

jurisdiction in terms of Schedule 1 to the 1969 Act (as referred to in section 1 above and the

Response to Amendment 11 ), or within any extension of the PBR port limits on the making of the

Order.

Forth Ports fails to mention Section 26(1)(i) of the 1969 Act, which provides that the prohibition (in

Section 26(1) (a)) on works without and in accordance with licence from Forth Ports (under section

23) shall not apply to “any such works… in the port specifically authorised under any enactment”.

Therefore, in terms of the 1969 Act (absent this Amendment sought by Forth Ports), works

authorised by the Order will not require a licence from Forth Ports whether or not the PBR port limits

are extended

Paragraph (1) of article 10 of the HEO, which is a standard approval by the Scottish Ministers

provision, applies generally to tidal works at PBR.

Paragraph (2) of article 10 the Applicant’s Draft seeks to exempt works authorised under the HRO

from the requirement to obtain approval from the Scottish Ministers. Forth Ports are seeking the

deletion of that exemption.

The exemption is logical given that the works in question will not only have been expressly

authorised by the Order but that prior to the making of the Order those works will have been the

subject not only of assessment for the purposes of the ES and RIAA but subject to examination at

the Inquiry. The Scottish Ministers’ approval will also have been informed by the Reporters’ report.

The works will also be the subject of the requirements of the Schedule of mitigation measures in the

Order and the terms of the CEMP.

It is therefore difficult to conceive what objective benefit subjecting tidal works authorised by the

Order to further ministerial sign-off would achieve. The exemption is thus aimed at removing an

unnecessary element of red tape.

Such an exemption is neither illogical nor unprecedented, as Forth Ports themselves acknowledge

by reference to the exemptions in the harbour orders for Kennacraig (article 8(3)) and Loch Ryan

(article 9(3)).

The Lerwick Harbour Revison Order 2010 (article 8(3))(APP-T7) and the CMA (Port Ellen) HRO

2011 (article 8(3)) are further examples of such an exception which Forth Ports do not mention.

Works commenced within 5 years of the making of the order at Bristol are exempt (article 10(1)).

The London Gateway order exempts maintenance dredging due to the drafting of the tidal works

definition in that order.

27

Nonetheless, notwithstanding the above rationale and precedents, if Scottish Ministers consider that

they should provide for further approval, the Applicant will have no objection to paragraph (2) of

article 10 being deleted. The Applicant accepts, consistent with the approval of dredging as set out in

paragraph 4(a) above with the Applicant’s responses to Amendments 20 and 21, that the detailed

design of the tidal works is to follow and that Scottish Ministers may wish that to be subject to

approval by them. For that consistency to be achieved, however, the insertion sought by the

Applicant at paragraph 4(b) above and in its response to Amendment 21 should be made.

f. pre-construction rail terminal “safeguarding” provision

Forth Ports are seeking the imposition of a requirement that an area of the site must be identified,

agreed with Fife Council / Scottish Ministers and set aside for use as a rail terminal prior to any of the

RICT works commencing.

The Applicant’s position is that “safeguarding” as Forth Ports call it is neither accepted nor

necessary. Reference is made to paragraphs 3.58 to 3.75 (pages 70 to 80) of the Applicant’s closing

submissions.

Forth Ports have neither demonstrated that such a pre-condition to construction is appropriate, nor

provided any precedent for it or explained how it could be said to be proportionate to any legitimate

interest which would require to be protected by such a provision.

The Applicant similarly rejects as unnecessary any requirement that a certain proportion of

containers moved in or out of the RICT should be by rail, for which Amendment 31.2(1) may be a

precursor. The Applicant’s response to Amendment 31.5(4) applies equally here.

The provision should be seen as an attempt by Forth Ports to delay construction of the RICT (and in

so doing to frustrate a NPF2 project) by introducing a requirement for a rail provision at the

commencement of operations, which on the evidence has been shown to be unnecessary.

Forth Ports is again being disingenuous with its approach to matters. It has not provided any

explanation of its locus to request such an amendment. If Forth Ports was genuinely interested in a

constructive dialogue in relation to the use of the railway line and actually wished to engage

proactively in promoting its use, it would at the very least have engaged with the Applicant on the

draft Branch Line Agreement. Thus far, after approximately 3 and half years and inspite of reminders

and the draft being re-sent to Forth Ports, it has pointedly not responded on the matter; as recorded

in paragraph 3.40 (page 61) of the Applicant’s closing submissions.

A rail terminal adjacent to the “work site” (as defined in the Applicant’s Draft) and within the existing

PBR port limits was identified in evidence at the Inquiry. Please refer to paragraphs 3.63 on page 63

of the Applicant’s closing submissions.

Paragraph 3.75 on page 79 of the Applicant’s closing submissions refers to Transport Scotland’s

letter of August 2011. That in turn refers to a need for a rail terminal within “the port”. Forth Ports

28

accepts at paragraph 2.2.19 (page 14) of its closing submissions that the reference to “the port”

within the Transport Scotland letter is to the existing port limits in terms of the HEO.

The Reporters will have noted from the Grangemouth site visit that the railhead there is an

equivalent distance from the quay side as the existing railhead adjacent to the RICT work site at

PBR is from the RICT quay side. The Applicant also makes reference to paragraph 3.63 (page 73)

of the Applicant’s closing submissions in this regard.

The Applicant submits that Amendment 31.2(1) should not be made.


provisions

(Amendments 4, 14, 23, 25, 31.1(2)-(12), 31.4 and 31.5(5)-(8))

Forth Ports is seeking to have article 17 of the RICT Order reinstated in its original form – such that

the commitments in the ES (and now other environmental documents) would be binding upon the

Applicant.

Article 17 of the draft Order as applied for sought to provide comfort that the environmental

undertakings collated in Chapter 15 of the Environmental Statement would be implemented. Article 18

and Schedule 2 of the Applicant’s Draft updated and replaced reference to those undertakings with

requirements to comply with the CEMP and additional specific mitigation measures.

The volume of materials (any of which update or indeed supersede others) produced in connection

with the proposed Order, and in particular for the Inquiry process, mean that the term “environmental

documents” as proposed Forth Ports is too widely drawn.

Forth Ports position here is disingenuous. The Applicant recognises that issues remain between it and

other parties. The Applicant, however, submits that both its position and that of the other parties to the

Inquiry and the statutory bodies involved have, through evidence and the Inquiry process more

generally been further developed. It will have been clear to all involved in the Inquiry that in a number

of respects matters have moved on from the position as stated in ES and RIAA. As a result, whilst

some of the commitments proposed in Chapter 15 of the ES have been developed, some are no

longer considered appropriate or otherwise applicable.

The CEMP and the schedule of mitigation measures together with the associated provisions in the

Applicant’s Draft have been developed from the terms of Chapter 15 of the ES in light of matters

raised in objections to the Order, the comments received from statutory consultees and evidence at

the Inquiry as well as materials prepared for the purposes of the Inquiry.

At the hearing session into the CEMP, the Applicant circulated a table (referred to colloquially at the

hearing as “the Fate Table”) detailing (1) whether or not each commitment in Chapter 15 had been

29

transposed into the then draft CEMP, (2) if it had been modified in the process and (3) a comments

column for explanation of exclusion or modification.

The Applicant acknowledges that the CEMP is a living document, however, it will readily be seen from

the drafts to date that the CEMP has been added to rather than watered down through its iterative

development. Given that draft 3 of the CEMP has been provided to the Reporters and will doubtless

be referred to in the report to be submitted to the Scottish Ministers, it is fanciful to suggest that the

CEMP could be watered down prior to the Scottish Ministers approval of the CEMP under article 17.

Article 17(6) of the Applicant’s Draft provides that, once approved by the Scottish Ministers, the

CEMP shall not be amended so as to reduce the standards of mitigation and protection contained in

the same.

Article 18 and Schedule 2 (mitigation measures) have been added to the Applicant’s Draft to provide

further comfort, in the form of an obligation upon the Applicant, that specified mitigation measures

will in any event be applied.

The Applicant therefore submits that there is not only no need for the reinstatement of the original

form of article 17 but to do so would be to create the possibility of conflicting obligations upon the

Applicant. That is because the CEMP is the product of an iterative process carried out in consultation

with statutory consultees with particular responsibilities, reflecting the EIA and the additional

information produced for the Inquiry process. The CEMP and Schedule of mitigation measures do

between them provide for protection and mitigation measures in a clear and current manner. In these

circumstances, Forth Ports’ proposed use of “environmental documents” and its definition do not

reflect the nature of the EIA process carried out for this project.

With respect to the definition of “environmental documents” proposed by Forth Ports, limb (a) of the

proposed definition is too vague – certainty requires that the documents in question be listed. In the

event that the Reporters are persuaded to recommend or that the Scottish Ministers otherwise

determine to give further consideration to this proposed amendment, the Applicant would respectfully

request that Forth Ports are asked to specify what documents they contend fall within this category

and the Applicant should be given a period of time to respond.

It is the position of the Applicant that Article 17 of the draft Order, as submitted with the application,

provided that the environmental commitments collated in Chapter 15 of the Environmental Statement

would be implemented. Through subsequent proposed modification to the draft Order, articles 17 and

18 of the Applicant’s Draft updated and replaced reference to the commitments collated in Chapter 15

of the Environmental Statement with requirements to comply with the CEMP and additional specific

mitigation measures set out in Schedule 2 of the Applicant’s Draft. The principal reason for referring to

the environmental information of the nature alluded to in limb (a) of the proposed definition would be to

seek to ensure compliance with proposed mitigation measures, however, all mitigation measures are

now to be found in the CEMP and Schedule 2 to the Applicant’s Draft.

30

The approach taken by the Applicant, in line with other Orders, has been to refer only to environmental

documents relied upon by the Order. Beyond Schedule 2 of the Applicant’s Draft, environmental

mitigation measures are dealt with through the CEMP.

Limb (b) of the proposed definition refers to an aspect of the marine licensing regime under section 21

(5) of the Marine (Scotland) Act 2010 and Regulation 10(4) of the Marine Works Environmental Impact

Assessment Regulations 2007. There is no plausible rationale for referring to environmental

information which may be required for a marine license to be anticipated in the Order.

The information requirements for such a license will be specified and compiled at a future date. They

relate to an application not yet made for a license to which conditions can be attached to require

compliance with any commitments given in the documents prepared for the application for that license.

Accordingly it is not appropriate to provide for the environmental information in support of that

application in the abstract.

The Applicant also records that the tidal works required for the RICT are relatively minor in nature –

namely, the construction of the dolphins and any works required for to the Contractors’ Jetty.

Para 1(1) of Amendment 32 and hence limb (b) of the above proposed definition are not necessary.

Limb (b) of the proposed definition appears to relate to paragraph 1 (1) of Amendment 32. If the

Reporters recommend or the Scottish Ministers otherwise determine that the element of Amendment

32 in question is not appropriate, this limb of the proposed definition will not be required. If the

provision in question is to be inserted, the Applicant would respectfully suggest that this limb of the

definition should not sit within this general definition and an alternative term is used.

The Applicant notes that no justification has been provided for the new paragraph (2) inserted in article

16 of the Forth Ports mark-up; accordingly it falls to be disregarded. It is not relevant if the restatement

of the original article 17 is not included. Additionally, a provision to similar effect is already provided as

article 17 (9) of the Applicant’s Draft.

The various other design or construction restrictions flagged by Forth Ports appear to be little more

than a compilation of points raised by other objectors or elements of Chapter 15 of the ES or draft

CEMP. The description of the works in article 5 (1) of the Applicant’s Draft contains suitable height

limits - see descriptions of Work No. 3, 6, 7, 9, 10, 11, 13, 14, 15, 16 and 21. The other matters

flagged are all covered in Draft 3 of the CEMP.

Article 17, in particular paragraphs (1), (6), (8) and (9), of the Applicant’s Draft provide comfort that the

CEMP will provide effective mitigation for the matters covered by it.

7. Environmental protection role for Forth Ports

31

(Amendments 24, 31.3, 32.1, 32.4 and 32.7)

One might be forgiven for forming the impression that Forth Ports are seeking to usurp the position of

Scottish Ministers and regulatory agencies, or to create a suite of measures to allow Forth Ports to

frustrate the RICT project at every turn.

Forth Ports harbour and conservancy responsibilities are for the provision of the safety of navigation

on the river. Section 48A of the 1964 Act does require a harbour authority in formulating or

considering any proposals in relation to its functions under any enactment to have regard to various

factors relating to conservation and access to countryside, flora, fauna etc.

That provision of itself does not, however, create any onerous environmental obligations or liabilities

for harbour authorities or require of or impose upon them an environmental protection regulatory

role.

But for its anti-competitive approach to the RICT, it is curious therefore that Forth Ports is seeking to

set itself up as an environmental regulatory body alongside SEPA, Fife Council, SNH and Marine

Scotland.

This is consistent with the, mistaken, claim in the Forth Ports’ objection (item (3) on page 3) that it

ought to have been involved in EIA scoping.

Forth Ports have sought the following :

a. Statutory consultee status for the purposes of the Scottish Ministers’ approval of the CEMP

and amendments to it;

b. Protective provisions empowering Forth Ports to, by notice, require Babcock to undertake

remedial action in relation to sedimentation, scouring, currents and wave action;

c. Enforcement body status for mitigation of environmental impacts over and above those

anticipated by any environmental document. Under those provisions, the Applicant would

need Forth Ports’ agreement to mitigation measures. Forth Ports has separately written itself

a power to require measures it notifies to Babcock in such an eventuality; and

d. Environmental regulator status in relation to PBR generally. Forth Ports seek a requirement

that any environmental document provided to Scottish Ministers must also be sent to Forth

Ports. Equally, Forth Ports officers are to be allowed access to inspect and survey operations.

Forth Ports seek a provision to the effect that prior to, during and / or following any works or

dredging, Forth Ports may carry out such surveys of the river as it determines at the

Applicant’s expense. Budgets aside, this is a potential further source of delay and dispute

32

The Applicant submits that there is no justification for the amendments sought.

Forth Ports, as it has done consistently in its objection and during the Inquiry process, provides an

over inflated portrait of its role and responsibilities as the neighbouring harbour authority.

It is the Applicant’s position that Forth Ports in its conduct in relation the RICT proposal, including the

amendments it seeks to the Order, is motivated by commercial protectionism in relation to its existing

port at Grangemouth rather than any real objective concerns or sense of public duty.

In so far as Forth Ports purport to be seeking to protect “its” river, the natural answer is that the PBR

port limits should be extended in the manner provided for in terms of the Applicant’s Draft - so that the

RICT works and any immediate effects are set within those limits; and so “on Babcock’s watch”. In so

far as Forth Ports have any concern about effects in the rest of the river, the fact remains that SEPA

and Marine Scotland are the responsible regulatory bodies and not Forth Ports.





The Applicant has, in principle, no objection to consulting other bodies. Forth Ports’ track record of

engagement with the Applicant on matters associated with the Order application, however, has been

less than productive.

Forth Ports has not articulated what expertise or interest Forth Ports would have as a statutory

consultee for the Ministers’ approval of the CEMP or amendments to it. If Forth Ports is to become a

statutory consultee, such expertise or interest should be explicitly referred to.

Forth Ports has taken it upon itself to seek a contaminated land strategy provision be inserted in the

Order. This another example of Forth Ports putting forward a measure for which it appears to have

no locus and can be linked to other measures through which Forth Ports attempts to usurp the roles

of variously Fife Council, SEPA, Marine Scotland and the MCA.

Contaminated land matters are addressed generally in section 8 of Draft 3 of the CEMP, with section

8.23 defining what will constitute the Contaminated Land Management Plan. The Applicant has

already made provision for further certainty on contaminated land management issues by the

inclusion of paragraph 8 of Schedule 2 to the Applicant’s Draft. Taken together, the provisions in the

Applicant’s Draft and Draft 3 of the CEMP are more comprehensive than those sought by Forth Ports.

Amendment 31.3 is therefore unnecessary.

33

Having looked again at paragraph 8 of Schedule 2 to the Applicant’s Draft alongside Draft 3 of the

CEMP, the Applicant would have no objection to the former being supplemented by statements to the

effect that :

(a) References to “contamination” shall include non-radiological and/or radiological

contamination as the context permits or requires; and

(b) The Contaminated Land Management Plan referred to paragraph 8.1 shall (without

prejudice to the remaining terms of paragraph 8.1) include all matters covered by the

plan of the same name referred to in the CEMP.




It seems to the Applicant that Forth Ports is (other than in any anti-competitive sense use of the

phrase) not seeking protective measures but rather it is in essence seeking to use the RICT Order to

create fresh powers to supplement the provisions of the 1969 Act on tidal works and dredging

licensing.

In doing so, Forth Ports is seeking to amend the dredging powers of the HEO – requiring Forth Ports’

prior approval (before applying to Scottish Ministers where necessary) of any tidal work construction

or maintenance and of any capital or maintenance dredge.





marine licensing regime and EIA regulations applied as part of that regime. The proposed protective

provisions are viewed by the Applicant as a sledge hammer to crack a nut.

In terms of the proposed paragraph 1(4), Forth Ports seek for themselves a wide discretion, to impose

its own requirements in approving the Applicant’s design of the authorised works provided the

requirements are based on the protection of :








34







The Applicant would be concerned that the proposed provisions would allow for 42 day period for a


subject to extension to complete consultation – all in all, a potentially drawn out timeline.

Forth Ports provide that it will consult with SEPA, and that any environmental document provided to

Scottish Ministers must also be sent to Forth Ports. Equally, Forth Ports officers are to be allowed

access to inspect and survey operations.

If Forth Ports is to have a licensing role then it would be expected that the Applicant would need to

submit plans and other supporting information. Given the background, there could be a concern that

paragraph 1(4)(c) could be abused – what are the functions of Forth Ports in relation to environmental

protection? Do they include concern about the potential for smothering of eel grass in an SPA, for

example?

This is a further example of Forth Ports, on one view at least, seeking to cut across the role of Marine

Scotland in particular. The drafting proposed does not allow for that agency or other government

body’s role or views. What if Marine Scotland were content that nothing need be done, or wished

other (potentially contradictory or incompatible) action taken?






Applicant will not object to a requirement in the Order to copy to the Scottish Ministers any marine

licence application (and supporting information) relative to the works and keep the Scottish Ministers

appraised of progress of the application, for the purposes of the Scottish Ministers determining

whether any other matters require to be addressed or conditions imposed which the Scottish Ministers

should require for the purposes of their approval of such works.

8. Operational and pre-operation conditions

(Amendments 31.5(1) to (4))

35

Forth Ports propose the following operational restrictions :

a. Use – limited to “an international container terminal” only.

No such a limitation was suggested by Forth Ports (or any other objector) before Forth Ports CEMP

Submission was lodged in March 2012. It does not form part of any objection to the Order and so, in

an Inquiry into objections made and maintained, it is not in the Applicant’s submission a restriction

which can be validly considered as part of Forth Ports’ case.

Separately, it does not reflect the terms of the NPF2 designation, which is for “Additional Container

Freight Capacity on the Forth”. This facility is promoted as National Development 6 to provide a

facility that will encourage the movement of containerised freight to and from Scotland. In terms of

NPF2 it is envisaged that this could include handling coastal services from English Ports as well as

more international traffic (see paragraph 122 and pages 114 and 115 of NPF2).

It is however so unusual for a harbour order to contain such a use limitation that the Applicant is not

aware of a precedent for any such limitation. It is notable that Forth Ports do not provide details of

any precedent orders in this regard.

Otherwise, subject to the vagaries of location relative to seaward and landward accessibility and

necessary infrastructure, it is one of the commercial dynamics of the port industry that there is

competition between ports with generic facilities and access to mobile plant for a range of cargoes to

be handled over quay sides.

When considered in that light, it can readily be seen that this proposed amendment is yet another

attempt by Forth Ports to impose an undue restriction on a rival port operator.

Forth Ports claimed justification for this amendment is that it is required in order to limit permitted

development rights; the same rights which Forth Ports enjoys for its port premises at various

locations along the Forth (including at Grangemouth) but without any kind of limitation of the type

now sought applying to Forth Ports’ ability to rely on such rights.

Forth Ports refers to Ms Sullivan’s evidence. As noted at paragraph’s 3.29 and 3.30 (pages 55 and

56) of the Applicant’s closing submissions, Ms Sullivan’s evidence under cross-examination at the

Inquiry was that it is current UK Government policy to encourage competition between ports and that

all of the current large ports on the East Coast are in the ownership of Forth Ports. The Applicant

also refers to the final two sentences of paragraph 3.68 (page 76) of the Applicant’s closing

submissions.

In any event, the phrasing of the use limitation would, if adopted, undoubtedly result in arguments

over what did or did not constitute use as an international container terminal – for example, would

shortsea feeder service of containerised goods to / from other UK ports be “international”?

36

Quite aside from Forth Ports motivations for proposing the amendment, its effect would be anti-

competitive for the reasons stated and run entirely counter to the terms of NPF2.

The Applicant submits that the Amendment should not be made.

b. Noise

Provision of attenuation barriers, operational noise limits and a monitoring scheme are flagged in

square brackets – none of these appear in the Forth Ports objection and appear merely to be a

compilation of points raised by other objectors. These are all addressed in Draft 3 of the CEMP.

c. Container stacking height restriction

This is likewise flagged but does not seem to have an origin traceable to the Forth Ports objection. It

also fails to recognise the 5 high / 15 metre limit specified in article 5 of the Applicant’s Draft; in the

description of Work No. 15.

d. Specified minimum % of container movements to be rail

Such a requirement was initially expressly sought by Fife Council and then following discussions with

officers withdrawn. Although it has re-emerged in the Council’s response to the CEMP, the Council’s

withdrawal from the Inquiry was unqualified and so it is no longer a live issue.

The argument that rail demand is and can only be market lead has been well aired.

The Applicant’s closing submissions at paragraph 3.35 (page 58) refer to evidence leading to the

conclusion that there is the potential to move containerised freight by rail from the RICT. Paragraph

3.52 (page 67) refers to the basis upon which development of rail use should depend on port

customers bringing forward demand. This a view shared by Transport Scotland.

At the Hearing session, Fife Council (who had originally sought such a provision) confirmed that it had

since withdrawn its demand for such a provision. Reference is made to the e-mail from Mr Crombie of

Fife Council to Mr Sayers of DPEA on 5th January 2012.

This Amendment is therefore another example of Forth Ports putting forward amendments with no

locus, no evidential basis or other justification, no precedent and no explanation of why the proposed

amendment is either appropriate or proportionate. The fact that Forth Ports cannot specify a

particular proportion serves to demonstrate the absence of an evidential basis for the imposition of

such a requirement. There is, therefore, no basis upon which to conclude such a requirement is

appropriate or proportionate. Forth Ports cannot contend that it is a standard requirement.

37

Pre-operation conditions

Forth Ports seeks two categories of pre-operation conditions, which are expressed in a way that if not

satisfied they prevent the RICT from being brought into use once constructed :

A. Road improvements – Forth Ports refer to road improvements but do not specify what such

should be.

Save for reference to a possible kerb re-alignment at the roundabout at Hilton Road, no

specific roads improvement measures have been sustained by any party to the Inquiry.

Reference is made to paragraphs 3.133 (page 108) and 5.98 (page 232) of the Applicant’s

closing submissions.

Reference is also made to the letter from Mr Crosbie of Fife Council to Mr Sayers of DPEA

dated 19 December 2011, in particular the section headed “Rosyth Strategic Link Road”, and

to the letter from Biggart Baillie LLP to Fife Council dated 14 December 2011 referred to

therein.

There is again no basis in evidence at the Inquiry for the Amendment sought and so the

Applicant submits that this amendment should not be made.

B. Rail gauge, paths and purpose designed terminal – stated by Forth Ports to be “to include

a requirement for intermodal access”. The requirements can be summarised as the Applicant

having “to demonstrate” (to whom is not specified) as follows :

A. W8 (9’6”) gauge clearance for UK wagons “between the port and the national rail

network” is “operational and available for use”. The Inquiry evidence is that such is

achievable with some maintenance work being undertaken. The use of “port” rather than

“work site” is helpful in that regard. The precise interpretation of the second quoted

phrase is unclear.

B. Daytime paths (0700 – 1900) are available for freight trains to enter and leave the port,

thereby “ensuring” that rail is “attractive to the market and cost effective”.

C. intermodal terminal “purpose designed” is “available” “within the port” .

There is no justification in the evidence before the Inquiry for any of the above elements.

38

The Applicant’s closing submission addresses the general issue of rail improvements at

paragraph 3.34 (page 58) and the views of Transport Scotland in that regard at paragraphs

3.36 to 3.38 (pages 59 to 60).

In relation to elements (a) and (b) of this Amendment, reference is made to paragraphs 3.55

to 3.57 (pages 69 to 70) of the Applicant’s closing submissions.

In relation to element (b), reference is also made to the paragraphs 3.42 and 3.43 (page

62/63) of the Applicant’s closing submissions on the basis of cost of rail freight services and

the unreliability of Mr Garratt’s evidence.

In relation to element (c), there is no basis in evidence for the need for any such “purpose

designed intermodal terminal” or what such would comprise. Reference is made to

paragraphs 3.58 to 3.75 (pages 70 to 80) of the Applicant’s closing submissions. The

Applicant’s response to Amendment 31.2(1) also applies.

The Applicant submits that these amendments should not be made.

9. “Trumping” powers on harbour master functions

(Amendment 32.12)

The protective provision proposed by Forth Ports include a provision on harbour authority interfaces.

The provision in question, however, not merely adopts but extends harbour authority interface

provisions seen in orders at some English ports where there are adjoining harbour authorities.

Subparagraph (1) is expressed as applying to “any function of the Company or any officer of the

Company …” that is not limited to the Applicant’s / its harbour master’s actions outwith the port limits

or in relation to transiting vessels or vessels departing PBR waters for the wider Forth etc.

Absent such limitations, the Applicant submits that the proposed provision over reaches what could

reasonably be accepted as necessary in light of the evidence at the Inquiry not least that of Captain

Keenor on interface issues.

Separately, the third element of sub-paragraph (1) (wrongly lettered (f)) is so wide that it could mean

anything. If specific legislation is intended to be included it should be listed or otherwise (f) deleted.

The Applicant would be willing to accept a restriction in the form of subparagraph (2).

Any restriction on the Applicant under the final form of sub-paragraphs (1) and (2) must be directly

reciprocated for Forth Ports and its harbour master or other officer of Forth Ports in respect of the

PBR port limits as extended by the Order.

39

The nod towards reciprocation in the current proposed text is unacceptable as whilst the Applicant is

subjected to the general dictat of Forth Ports, the latter need only “consult” in specific circumstances

of direct effect on RICT works or commercial port premises at PBR.

A measure of this nature was floated in discussions at Forth Ports offices on 19 May 2011. It is

unfortunate that Forth Ports’ agents took 50 weeks to put forward suggested text and that only after

the Inquiry closed.

The provision as proposed by Forth Ports will need to be revised to make it more even handed if it is

to be taken seriously. It should also in the Applicant’s view appear in the body of the Order rather than

a protective provisions schedule.

If the Reporters are minded to recommend the addition of protective provisions but accept the

concerns expressed by the Applicant on this or other elements of the provisions, the Applicant will

provide a tracked changes mark-up.

10. Indemnity

(Amendment 32.11)

The protective provisions proposal, includes provisions for (variously) surveys of the riverbed by

Forth Ports at the Applicant’s expense, dredging, relocation etc by Forth Ports of moorings, aids to

navigation etc due to RICT works (including dredging) all being at the Applicant’s cost. In so far as

the provisions in question are accepted, there is provision for cost recovery by Forth Ports in the

relevant clauses of the drafting as proposed.

The further and separate indemnity clause seems to the Applicant to be unnecessary due to the

specific cost recovery provisions elsewhere in the proposed provision.

No catastrophic event has been identified by Forth Ports in evidence or in the Further Explanation to

justify why a provision of this nature is necessary.

As noted above, London Gateway is on an entirely different scale, with the Port of London Authority

permitting London Gateway to carry out works in a main channel for which PLA remains liable

through-out and following the works. It is therefore not surprising that asset protection provisions

including an indemnity apply there.

The London Gateway circumstances are however simply not comparable to those of the RICT.

The proposed provision lacks safeguards with respect to the validity and the extent of claims, as well

as properly developed mitigation and control of claims provisions.

40

The indemnity is uncapped and represents a contingent liability with which the Applicant’s immediate

and ultimate parent companies will have issues from insurance and accounting perspectives.

The scope of the provision may be read as extending to the Applicant being required to indemnify

Forth Ports for any fall in harbour dues, at least for conservancy charges, resulting from vessels

calling at RICT rather than Grangemouth.

This provision is neither appropriate nor proportionate.

Biggart Baillie LLP

Agents for Port Babcock Rosyth Limited

28th

May 2012

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