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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 05
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P1504/05
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OPINION OF LORD REED
in the petition of
SHETLAND
ISLANDS COUNCIL
Petitioners;
for
Judicial Review of
a decision by LERWICK PORT AUTHORITY
Respondents:
________________
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Petitioners: Anderson, QC; Williamson:
Shepherd & Wedderburn, W.S.
Respondents: Dunlop, QC; C Kelly:
Digby Brown
12 January 2007
Introduction
[1] One of the finest
natural harbours of the British Isles lies in the Sound of Bressay in Shetland,
between Mainland, the largest of the Shetland Islands, and Bressay, a smaller
island to the east. The harbour has
provided a safe anchorage for centuries, and is the reason for the development
of Lerwick, the principal settlement of Shetland, on the Mainland side of the
harbour.
[2] Lerwick
is a fishing port, a centre of marine support for the offshore oil and gas
industry, a ferry port with services to other ports in the United
Kingdom, the Faroes, Norway
and Iceland,
and a port for general cargo. It is also
popular with cruise ships and yachts [7/39].
With two entrances, from the north and the south, the harbour is open to
shipping in all weathers and operates around the clock [7/36]. The Sound of Bressay is therefore described in
one of the petitioners' documents as "a key shipping corridor" [10/4, p 44]. Over 2000 jobs are said to be dependent on
the harbour [7/39]. A car and passenger
ferry operates between Lerwick and Bressay, which had a population of 377 at
the last census [10/4].
[3] In
the present proceedings Shetland Islands Council (the petitioners), who are the
local authority, seek judicial review of a decision by Lerwick Port Authority
(the respondents) to revise their dredging proposals for the navigation channel
in the Lerwick North
Harbour. The petitioners wish to construct a bridge
between Mainland and Bressay. They claim
to have had a bridge designed on the basis of information obtained from the
respondents as to their proposals for the future dredging of the navigation
channel between the islands. They have
applied for statutory consents in respect of that design. They intend to promote private legislation
which, if enacted, would authorise them to implement that design. They are concerned that the respondents have
revised their proposals, and that the revised proposals, if implemented, will
necessitate the re-designing of the bridge, causing the petitioners delay and
expense. They challenge the respondents'
decision to revise their dredging proposals as being in breach of a legitimate
expectation. The legitimate expectation
in question is substantive rather than procedural: the petitioners maintain that, by reason of
their expectation, the respondents are not entitled to adopt or implement their
revised proposals. The application for
judicial review also challenges the respondents' decision on grounds of
personal bar and unreasonableness, and in addition challenges the respondents'
proposals in respect of the disposal of the dredged materials as being in
breach of the Lerwick Harbour Order Confirmation Act 1974 ("the 1974
Order"). The application also complains of
a failure to carry out an environmental assessment in respect of the dredging
proposals. That complaint is directed
against the Scottish Ministers (as having failed to require that such an
assessment be carried out) as well as the respondents.
[4] At
the commencement of the first hearing, however, the court was invited on behalf
of the petitioners to dismiss the petition so far as directed against the
Scottish Ministers. During the course of
the first hearing, the court was also informed that the complaint concerning
the alleged failure to carry out an environmental assessment was not being
insisted in; nor was the case based on
personal bar; nor was the case based on
an alleged failure to comply with the 1974 Order. The challenge to the reasonableness of the
respondents' proposals was also qualified in the course of the hearing, as
explained below, so as to be predicated on the proposals being, in the first
place, contrary to the petitioners' legitimate expectation.
[5] In
these circumstances, the petitioners seek two orders, which can be summarised
as follows: first, reduction of the
respondents' decision to revise their dredging proposals; and secondly, interdict against the
respondents from dredging the North Harbour in implementation of their revised
dredging proposals, insofar as such dredging would take place outside the
limits of the dredged channel originally proposed, as indicated on a drawing
provided to the petitioners on 9 January 2004 by the respondents'
consultant civil engineers, Arch Henderson & Partners ("Arch Henderson"),
until a final decision in respect of the petitioners' bridge proposal has been
taken under the Roads (Scotland) Act 1984 ("the 1984 Act").
[6] At
the conclusion of the first hearing, parties lodged a joint minute [19] in terms
of which they agreed, in effect, that the matter to be determined at the first
hearing was the petitioners' contention that they have a legitimate expectation
that the respondents will not depart from their original dredging
proposals. Counsel explained that the
parties were agreed that the existence of a legitimate expectation (by which,
it was agreed, they meant a substantive legitimate expectation) included, in
this case, not only a representation on which it was reasonable to rely, but
also detrimental reliance. The question
whether the respondents' decision to proceed with revised proposals, despite any
legitimate expectation and any detrimental reliance, was unreasonable and ultra vires, or whether the public
interest might justify the respondents' failing to fulfil any expectation which
they might have created, was to be left over to a second hearing, if
necessary. The reason for splitting the
issues in that way is explained below:
in short, it is because the parties were agreed that the question
whether the petitioners had acted in reliance upon a legitimate expectation
should be determined at the present stage, on the basis of the material
presently before the court, whereas issues of fact had been raised by the
petitioners during the hearing, relating to the reasonableness of the respondents'
revised proposals, which were not yet focused in the pleadings, and which might
require the leading of evidence in some form.
[7] The
parties also agreed in the joint minute that, in approaching the matters to be
determined at the first hearing, the court should proceed on the basis of the
pleadings and submissions of parties, two joint minutes (agreeing certain
matters of fact) which had been lodged during the hearing [15 and 17A], and the
documents referred to in counsel's submissions.
It was also agreed that the documents were what they bore to be and were
an accurate record of any statements which they recorded. It was further agreed that the court should
repel the petitioners' pleas relating to personal bar, to the 1974 Order, and
to EC law. So far as the two remaining
pleas were concerned, it was agreed that the court should determine the
petitioners' plea in respect of legitimate expectation. It was accepted by counsel for the
petitioners in the course of the argument that, if that plea were repelled, the
petition should be refused. If the plea
were sustained, the court should deal at a second hearing with the plea of
unreasonableness.
[8] Finally,
by way of introduction, I note that this is the second of three related
applications for judicial review. As
explained below, in 2005 the court granted an application by the present
respondents for judicial review of the Scottish Ministers' decision not to
"call in", under planning legislation, the present petitioners' notice of
intention to develop the bridge. That decision
was quashed by the court. Having
reconsidered the matter, the Scottish Ministers took the same decision in 2006. An application by the present respondents for
judicial review of that decision has not yet been heard.
The factual background
[9] Lerwick
Harbour (by which I mean the area
of water falling within the jurisdiction of the respondents) lies in a north-west/south-east
orientation, with Mainland to the west, and Bressay to the east. The northern entrance to the harbour from the
open sea is a channel between the two islands, about half a mile in
length. The northern end of that
entrance lies between Greenhead, on the Mainland side, and Turra Taing, on the Bressay
side. The southern end of that entrance
lies between Point of Scotland (or Scattland), on the Mainland side, and
Heogan, on the Bressay side. To the
south of Point of Scotland, the channel opens up into a bay, known as the North
Harbour. At the southern end of the North Harbour
the water narrows, at a promontory on the Mainland side known as North Ness. To the south of North Ness,
the water opens up again into another bay, known as the South
Harbour. At the southern end of the South
Harbour lies the south entrance,
with the open sea beyond. It was agreed
by counsel that the seabed is vested in the Crown.
[10] As a natural harbour with both a north and south entrance, Lerwick
Harbour has proved to be an ideal
port. It has undergone development since
at least the seventeenth century, and particularly in the last 100 years. Historically, activity was focused on the
Mainland side of the South Harbour,
and it was there that the town of Lerwick
developed. From the original
"lodberries" at the south end of the harbour, expansion during the heyday of
the herring industry required the development of piers and wharves northwards,
past North Ness and into the North Harbour. The advent of roll on/roll off ferries, and
increased fishing activity, required expansion further north in the 1970s. During the same period, oil services bases were
established in the North Harbour
and the Greenhead area. In the late
1990s, deepwater quays, a turning basin and a dredged navigation channel were
created to cater for larger oil and fishing vessels. In 2002 a new ferry terminal was completed at
Holmsgarth, to the south of Point of Scotland, to accommodate a larger
generation of passenger and freight vessels [6/2]. Docks and piers now line the coast for
approximately three kilometres to the north of the town, as far north as
Greenhead. They include the Shetland
Catch fish factory at Gremista Pier, to the south of Point of Scotland. What I have described as the northern
entrance to the harbour, between Greenhead and Point of Scotland, has itself
become a significant commercial and industrial area. The Bressay side of the harbour remains
undeveloped and comprises rough grazing land with scattered crofts [10/4; 7/34].
[11] In 1997 the petitioners decided to investigate the possibility
of replacing the Lerwick to Bressay ferry with a fixed link [7/10]. In December 1998 they instructed Halcrow
Crouch ("Halcrow"), consulting engineers, to undertake a feasibility
study. Halcrow were to investigate
locations at Greenhead, Point of Scotland and North Ness,
and to identify a number of options at these sites, including different forms
of bridge and tunnel. Their brief did
not require them to consult interested parties or to address the implications
for navigation. During a site visit,
Halcrow had a meeting with the respondents and were provided with information
about "their intentions with regard to future dredging operations" [6/1, para
2.2.1]. Halcrow appear to have submitted
the feasibility study in April 1999 [6/1].
[12] Halcrow noted that, at Point of Scotland, the navigation
channel was approximately 95 metres wide and was close to the centre of the
waterway. The water was relatively
shallow, shelving from the shoreline on both sides to 5 metres below chart
datum (‑5m CD) at the edge of the navigation channel. The navigation channel was dredged to -6m CD,
but the respondents had stated that it was their intention to dredge the
channel to -7.5m CD at some date in the future.
[13] In relation to navigational clearance, Halcrow noted that,
although the navigational channel at all the sites under consideration was
around 100m wide, a greater clear width would be required at Point of Scotland
if a bridge were to be located there:
"A potential problem with the
Point of Scotland crossing raised by the Harbour Trust [i.e. the respondents]
was that vessels entering the harbour through the north channel have to swing
sharply at this location to avoid the middle ground [an area of shallow water
to the south of the channel] and berth at the Gremista Quay or other harbour
berths. This manoeuvring therefore has a
bearing on the clear width of channel required between supports and the Harbour
Trust have requested that a clear width of 150m be provided" [para 3.5].
Halcrow observed that it might be
worthwhile to undertake ship simulation studies for a design vessel (i.e. a
vessel selected as suitable for the purpose of designing the bridge), to
determine the minimum clear width required [para 4.1.2]. Halcrow also noted that their instructions
required them to assume a vertical clearance from high water level to the soffit
of any bridge of 40m [para 3.5].
[14] In relation to the figure of 150m, I was informed by counsel
for the respondents that the respondents had no recollection of that figure
being mentioned, although a figure of 160m had been discussed. Since all the other documents refer to a
figure of 160m, as explained below, it may be that the figure of 150m was a
mistake. Whether the figure was 150m or
160m is not in any event important.
[15] Halcrow considered a number of options for bridges or tunnels
at the three locations in question.
Drawings for box girder bridges at Point of Scotland were provided for
three possible main spans: 125m, 160m
and 260m. It is apparent from the
drawing of the bridge with the 160m main span that the measurement of 160m was
not the clear width of channel between the central piers, but was measured
between the centres of the piers. Since
the report envisaged that the piers would be supported on reinforced concrete
caissons with abutments (which would sit on the seabed and would extend upwards
to a level above high water springs) [paras 4.1.2 and 5.2], the clear width
would be significantly less than 160m.
[16] The report concluded that Point of Scotland was the preferred location
and that a fixed bridge was the preferred option. The report stated:
"The choice of bridge option will
ultimately depend on the navigation clearances agreed with the relevant
authorities."
[17] In the light of the report, the petitioners decided that
further studies should be undertaken, including an assessment of the views of interested
bodies. On 22 October 1999 the petitioners wrote to the
respondents, explaining that they were carrying out such an assessment to
assist in deciding whether or not to proceed with the project, and inviting the
respondents to provide their views on the effects of the proposed bridge [7/40]. The respondents were informed that the
vertical clearance would almost certainly be 40m, and that the main span would
be at least 125m between pier centres [7/41].
The respondents' Chief Executive, Mr Wishart, replied on 4 November
that the respondents had already indicated a strong preference for the proposed
bridge to have a main span of at least 160m but that he would revert to the
petitioners once the matter had been considered by the respondents' board [7/42]. [18] Mr Wishart
wrote again to the petitioners on 17 November
1999:
"This matter was again considered
by Lerwick Port Authority Board Members at their meeting yesterday and they
asked me to inform you of their observations at this time.
...
·
The proposed air draught of 40m minimum in the
main span above Mean High Water Springs is acceptable.
·
The main span of the bridge should have at least
160m clearance. This is in the interests
of marine safety to avoid as far as possible risk to shipping with ensuing
injury or loss of life, damage to vessels and serious environmental damage to
our clean environment.
It is pointed
out that from time to time large vessels or disabled vessels enter the harbour
from the north. To do so they are
accompanied by tugs - one at either end.
To turn or manoeuvre a 'dead ship', it is necessary for the tugs to
swing away from the direction of the forward movement and to do so obviously
manoeuvring space is required.
It is also
pointed out that in order to protect the Port Authority's right to dredge the
north channel to a deeper level, it will be necessary to have at least 160m
clear width so as not to disturb the integrity of the supporting piers" [7/44].
In the light of
subsequent events, it is important to note that the respondents requested "at
least 160m clearance": the minimum
distance of 160m would therefore be measured between the inner faces of the
bridge structure, rather than being measured between the centres of the piers.
[19] The next relevant document is a report on the
petitioners' feasibility study [10/2], which was submitted by the petitioners'
roads engineer to their Resources Committee on 1 February 2001.
[20] The report stated that it was intended to
conclude the feasibility study. It noted
that the first part of the study had been a technical appraisal of the various
options. That had concluded that the
best option would be a bridge between Heogan and Point of Scotland, which could
be built for about £15m. The second part
of the study had been an appraisal of social and economic issues. The report noted that there was provision in
the current capital programme of £15m to build the bridge between 2003/04 and
2006/7. It concluded that the proposal
had been thoroughly studied. It
recommended that the Resources Committee should recommend that the council
approve in principle that a bridge be built, and that a steering group be
established to take the project forward.
The report contained no mention of the points which the respondents had
made in their letter of 17 November
1999. There was no reference
in the report to any possible implications for the respondents.
[21] I was informed by counsel for the
petitioners, in their submissions, that the Resources Committee accepted the
recommendations in the report. A
steering group (the Bridge Project Team) was established, headed by the
petitioners' Mr Craigie. A budget
of £15.559m was allocated to the project [7/6].
[22] On 21 October
2002 Mr Craigie wrote to Mr Wishart, stating:
"I feel the
[respondents'] Board would be better informed if they had the opportunity to
discuss how each of the various parameters impacts on the viability of the
bridge. For example, reducing the span
to 125m and the air draft to 30m could reduce costs by up to £3m. A further reduction in span would further
reduce costs. ... I believe a presentation
[by the petitioners] to the Board followed by an open discussion would resolve
this. We need to do this prior to
11 November [when the respondents' board was next due to meet], bearing in
mind that time is very much against us if we are to secure EU funding" [7/45].
In relation to
the last sentence, is appears that Shetland had ceased to be designated as an Objective 1
area for the purposes of grant aid under the European Regional Development Fund
at the end of 1999, but that a transitional
fund had been established on which the petitioners could draw [6/1, para
10.2.1]. In order to secure EU funding,
the project had to be completed by the end of 2006 [7/6].
[23] Mr Wishart replied to Mr Craigie
the same day:
"When I
mentioned to you that the Board plans to discuss the matter of the bridge
parameters and review this I believe it will be, if anything, to increase the
parameters not to reduce them. We have
already had vessels with an air draft of 37.5 metres using the north entrance
and as one trawler skipper said, 'It's narrow enough already'. The Port
of Lerwick employs around 1,200 people
directly and its history of continual development is not expected to suddenly
stop. It is impossible to conceive
therefore that a stranglehold will be put on one of the biggest collective
employers in Shetland for the sake of a Council budget set some five years ago. Lerwick Port Authority is very supportive of
the bridge project but it is imperative that a very long term view is taken of
this development and that the bridge is designed and built with a broad vision
of the long term future" [7/46].
[24] The respondents then commissioned a study
from Arch Henderson on the impact of the proposed Bressay
Bridge option on future port
development and operations. Arch Henderson
reported in January 2003 [6/2].
[25] The report began by giving an overview of
the harbour. It noted that plans were
currently being made to accommodate predicted growth in the pelagic fish
processing industry and the offshore decommissioning industry. The related developments were planned for the
North Harbour. It was also noted that the total tonnage of
vessels using Lerwick Harbour
had increased. The report stated:
"The remainder
of this report by Arch Henderson & Partners provides relevant cost
development information and navigational data that will need to be considered
and addressed by parties involved in the planning, design, funding and construction
of the proposed Bressay Bridge in order that a minimal impact on future port
development and harbour operations is achieved."
[26] In relation to the layout of the North
Harbour, the report noted that there was a dredged navigation channel (-9m CD),
dating from 1998, through the northern part of the north entrance, at Turra
Taing, with a dredged turning basin to its south, beside the deep water quay
development at Greenhead. In the
southern part of the north entrance there was the dredged navigation channel previously
mentioned (-6m CD), dating from 1990, which passed between Point of Scotland and
Heogan into the North Harbour, where it then bent in the direction of the
Shetland Catch factory at Gremista Pier.
The Shetland Catch factory had undergone recent development, including
the construction of a deep water quay and the largest pelagic fish cold store
in Europe. The
proposed bridge would cross directly above the -6m CD navigation channel.
[27] The report noted that respondents had in
2002 commissioned a report into suitable sites for further expansion by
Shetland Catch. The conclusion had been
that Gremista Quay was the only suitable area.
The current proposal was for a large reclamation area (i.e. an area
currently under water, which would be in-filled and reclaimed) and an
additional 390m of berthing with a draft depth of -9m CD, suitable for the new
generation of pelagic trawlers, refrigerated vessels and general shipping. That proposal was illustrated on a drawing,
prepared by Arch Henderson, appended to the report. The drawing shows a wider and deeper
navigation channel (-9m CD) at Point of Scotland. As illustrated, the channel would lie in a
different orientation from the existing channel, lying broadly north/south,
rather than north-west/south-east. It
would lead into a turning basin (-9m CD) serving the new deep water quay and
the Shetland Catch development at Gremista.
In relation to the drawing, the report stated:
"The proposed
future navigation channel requirements shown ... have been established based on
this anticipated development [i.e. the current proposal for the development of
the Gremista Quay area] together with other future port design criteria and
available vessel data. The following
section of this report discusses further the proposed future layout
requirements of the navigation channel, other design parameters and how these
must be assessed and developed into any future bridge proposals."
[28] In relation to the future design of the North
Harbour access channels, the report
noted that there was no standard method for channel design: each design was site specific. There were however published guidelines,
including those published in 1995 by the Permanent International Association of
Navigation Congress (PIANC). The factors
considered were the design ship characteristics (including size,
manoeuvrability and trends in vessel development), environmental and physical
conditions (including wind data, tidal information and currents), and
navigational, operational and human factors (such as ship handlers'
performance, skill and knowledge).
[29] In relation to vessel data, information
available in December 2002 suggested that the most critical data related to
proposed new build pelagic trawlers, with a draft of over 8m, and the new
passenger ferry Norrona, with an air
draft of 42.8m. I was informed in
counsel's submissions that the Norrona was
a regular visitor to Lerwick, but could at present enter and leave the harbour
only by the south entrance, as her draught was too great for the north entrance,
and she was too long from bow to stern to make the turn to the south of Point
of Scotland. In relation to navigational
aspects, the existing navigation channel through Point of Scotland was
recognised by some vessel operators as a restricted channel. The dredging of the outer access channel at
Turra Taing had increased tidal flow, causing some vessels to drift to the west
side of the Point of Scotland navigation channel. It was recognised that during any further
development of the channel the dredged width would need to be increased and its
orientation moved to a north/south axis, in order to cater for larger vessels
and improve navigation and manoeuvrability.
[30] The report continued:
"Based on
predicted future vessel size and draft then the navigation channel width will
need to be increased to 100m with the overall dredged channel 120m wide and -9m
CD depth. The anticipated distance
between bridge pier foundation supports corresponds to a minimum 160m but this
dimension can only be finalised and agreed once site investigation information
confirms final side slope stability characteristics of dredged channel. From the vessel data table above and after
consideration of the Significant Wave Height and tidal surge likely then the
required air draft under any part of the bridge structure needs to be a minimum
clearance of 50m above Mean High Water Springs of +2.2m CD" [para 5.0].
In relation to
the need for the dredged channel to be wider than the navigational channel, the
report explained:
"The maximum
channel width is a function of largest ship beam and length; maximum drift angle to current and wind; and an allowance for yawing due to wind
effects."
[31] The suggested arrangement was illustrated
by a drawing appended to the report (Appendix D). The drawing shows a dredged channel 120m in
width. To either side of the dredged
channel there is a side slope, sloping down from the undredged part of the
seabed to the base of the dredged channel.
No dimension is stated on the drawing for the side slope: as the passage quoted above explained, that dimension
would depend on the stability characteristics of the slope, which could only be
determined by site investigation. To the
side of each side slope the drawing shows a berm, between the top of the slope
and the edge of the bridge structure: in
other words, an area of the seabed which has been left clear in order to reduce
the pressure exerted by the bridge on the slope, so as to prevent the slope
from collapsing (the idea is illustrated by the original meaning of "berm", to
denote the space left by castle architects between the moat and the base of the
castle wall). The berm is described on
the drawing as a "minimum 10m berm": a
minimum, presumably, because the appropriate dimension would have to be
determined after site investigation. The
drawing has a scale, and it is possible to measure the distance between the
inner edges of the foundations of the bridge piers, i.e. the clear width. That measurement is 160m: 120m for the dredged channel, plus the minimum
10m for each berm, plus an allowance of 10m for each side slope. As the passage quoted made clear, however,
that measurement was a minimum, which assumed that the site investigation would
permit the minimum berm, and that the slope characteristics would be such that
each side slope would be 10m. In that
regard, the report noted that previous dredging at Point of Scotland had
involved drilling and blasting, which could open up fractures and faults, with
localised weakening of the strength of the rock. The report also observed that the difficulty
of blasting adjacent to any bridge foundation, and the much higher cost of
alternative dredging techniques, were matters to consider over the lifetime of
any bridge structure.
[32] The report concluded:
"2.0 The proposed bridge crossing at Point of Scattland
is at a location of proposed future development of the North
Harbour area. This report demonstrates that future
development of the port at this location will require a minimum navigation
channel of 100m, dredged channel width of 120m and depth of -9mCD with a
minimum air draft to any structure of 50m above Mean High Water Springs
(+2.2mCD). A 12 degree clockwise
rotation of the access channel is also proposed as part of future developments.
3.0 Dredging operations to create the above
future navigational requirements could create significant conflict with any
in-situ bridge structure and it will therefore be a requirement to consider
dredging of the effected area of navigation channel as part of any civils
contract for constructing the proposed bridge structure. The anticipated distance between bridge pier
foundation supports corresponds to minimum 160m but this dimension can only be
finalised and agreed once future site investigation information confirms side
slope stability characteristics of dredge channel."
[33] The respondents provided the petitioners with a copy of the
report. The petitioners in turn sought a
response from Halcrow. Halcrow's
response [7/47] did not consider the question of the span of the bridge, but
was concerned almost entirely with the question of the vertical clearance. In that regard, Halcrow said that a clearance
of 50m would add about £5m to construction costs. They suggested that taller vessels currently
using the port, such as the Norrona
and Royal Navy destroyers, could instead be restricted to the south
entrance. Mr Craigie forwarded
Halcrow's response to the petitioners on 20 January 2003, observing that the project would
not be financially viable with a 50m clearance.
He also stated:
"I fully recognise that the Port
Authority has not adopted a position regarding the report and the contents of
the report represent the views and the opinions of your Consultants at this
stage" [7/47].
[34] On 27 January
2003 the parties met. It was
noted that the Arch Henderson report had concluded that the requirements for
the bridge should be a "50m air draft" and a "160m distance between columns",
and that the "preliminary bridge design" had been developed on the basis of a
40m air draft and a 160m main span. It
was noted that "in order to secure substantial European funding this project must
be complete by the end of 2006" [7/6].
[35] During 2003 the respondents obtained estimates from Arch
Henderson for the dredging works which had been proposed in their report
[6/3]. It is a matter of agreement
between the parties that during 2003 the only dredging proposals which the
respondents were considering carrying out as their next dredging campaign were
those contained in that report, and that this was made known to the petitioners
[17A].
[36] In order to proceed with the bridge proposal, the petitioners
required a variety of statutory permission and orders. Under planning legislation they were
required not only to apply for planning
permission but also (as they were both the planning authority and the proposed
developer) to publish a notice of intention to develop, and, in the event of
representations being made, to notify the Scottish Ministers, in accordance
with regulation 4 of the Town and Country Planning (Development by Planning
Authorities) (Scotland) Regulations 1981 (SI 1981 No 829) as amended. Under roads legislation they required to
promote a roads scheme. Other consents
and orders were also required. During
2003 the petitioners decided to proceed with the planning application in advance
of the roads scheme [7/7].
[37] On 18 December
2003 Mr Spall of the petitioners wrote to Mr Wishart,
stating that the project team had reviewed the general arrangement of the
proposed bridge in line with the information provided by Arch Henderson and
other data available to them. A
technical problem had emerged: the
various information sources were not in accord regarding the exact position of
the existing navigation channel. Mr Spall
observed that it was important that the petitioners' and the respondents'
technical advisers were in agreement regarding the fundamental data, and said
that it was intended to arrange face-to-face meetings to reconcile the information
available. Mr Spall continued:
"In terms of the design there are
a number of options available to adjust pier positions etc but in order to
avoid unnecessary costs and abortive work, detailed discussions at a technical
level will first be held to establish which options can be developed further."
[38] Mr Spall went on in the letter to discuss the notice of
intention to develop ("NID") which the petitioners had to give in relation to
the application for planning permission to construct the bridge and the
associated road works, as explained above. In that regard, Mr Spall wrote:
"As you are aware, there is
pressure to process the Notice of Intention to Develop in order to meet the
project deadline. Clearly, there was
insufficient time to complete these detailed discussions before the NID advert
had to be placed in the paper on Wednesday 17 December. However, the NID is structured in such a way
that the final detail surrounding the outstanding issues can be incorporated in
the final design. This approach is in
keeping with the discussion we had last week when I indicated that the Council
would have to go forward with a proposal that is deliverable within the
budgetary constraints and then take on board, as far as possible, amendments to
deal with concerns or objections expressed.
...
I am keen to ensure that open and
frank dialogue continues on the issue of the bridge, therefore this letter is
sent to advise you of our intentions while giving reassurance that your very
real concerns will be fully addressed as the formal consultation proceeds"
[7/7].
[39] Although the letter stated that "we have advertised the NID",
the notice was not in fact issued and advertised until 24 December 2003 [6/4; 6/5]. It
gave notice that the petitioners intended to construct a bridge 717m in length
between Point of Scotland and Heogan, with new connecting roads and junctions linking
it to the existing road network, in accordance with plans submitted with the
notice. It also gave notice that an
environmental statement had been prepared.
The notice was accompanied by an application by the petitioners for detailed
planning permission in accordance with the accompanying plans and drawings
[40] In considering the application for planning permission, it is
necessary to bear in mind that (as was common ground between the parties) the bridge
structure above the Sound of Bressay, including the piers supporting the
central span of the bridge, falls outside the scope of planning legislation (Argyll and Bute District Council v Secretary of State for Scotland 1976 SC
248). At the same time, as counsel for
the petitioners explained, the design of the bridge structure as a whole
depends on the location of the central piers:
for engineering reasons (including regulations governing the gradients
of roads and bridges, and the curvature of roads), a change in the location of
the central piers (other than a minor adjustment) would affect the remainder of
the bridge structure and the alignment of the roads connecting the bridge to
the main roads network. The planning
application (and the subsequent compulsory purchase notice) depended on a view
being taken as to where the central piers were to be located, even though the
piers did not themselves fall within the scope of the planning application (or
of the compulsory purchase notice).
[41] The drawings and plans which accompanied the planning
application and the notice were prepared by Halcrow, and were variously
labelled "Preliminary", "Issued for Information" and "Issued for Discussion". They showed the location and spacing of the
piers. One plan (TB-BRES-100 Rev F),
dated 22 October 2003
and labelled "Issued for Information", showed the relationship between the
bridge and a 120m dredged channel [10/3(ii)].
It showed a distance of 160m between the centres of the main piers. The distance between the centre of each pier
and the edge of the dredged channel was shown as 20m. The clear width - the distance between the
inner edges of the main pier structures - was not stated on the plan, but would
appear to have been 134m. The vertical
clearance was shown as 40m. The pier
foundations were annotated: "Provision
for ship impact to be confirmed." In
relation to that matter, another drawing (TB/BRES/SK 101 Rev A), labelled
"Issued for Discussion", showed the foundations as being protected within "rock
islands" [10/3(iii)]. The dimensions of
the rock islands were not stated.
[42] The bridge shown on the first Halcrow drawing (TB-BRES-100 Rev F)
thus departed in two important respects from the recommendations made by Arch
Henderson. First, the central span was
considerably narrower than the 160m minimum clear width which Arch Henderson
had indicated would be necessary. Secondly,
the vertical clearance was 40m, rather than the 50m minimum recommended by Arch
Henderson. The second drawing
(TB/BRES/SK 101 Rev A) was similarly incompatible with the information as to
the clear width requirement provided by the respondents and their consultants.
[43] The environmental statement [10/4] stated (at para. 2.1):
"The bridge ... will have a minimum
air draft of 40m above Mean High Water Springs (MHWS) under the central span,
which will be 160m wide."
A footnote added:
"The width of the main span is
under review in consultation with Lerwick Port Authority".
A later passage (at para 2.3.2)
stated:
"The proposed design is
illustrated in Figure 2.2 ... The central
span will be 160m wide".
A footnote added:
"The final details of the bridge
are under development in consultation with the Port Authority. The central span may be wider in the final
scheme."
Figure 2.2 showed a central span of
160m as measured between pier centres.
The clear width was significantly less, and depended on the width of the
pier structures, which were annotated "Provision for ship impact to be confirmed". The dimension between each edge of the dredged
channel and the nearest pier centre was shown as 20m. In relation to the rock islands, the
environmental statement stated:
"The cofferdams [i.e. sheet piled
structures constructed around the intended working area, to keep the sea out] for
the main piers will be incorporated in the permanent works to act as ship
protection [p IV]" [ p 10].
[44] As Mr Spall had requested in his letter of 18 December 2003, a meeting of
the parties' technical advisers was arranged.
It took place during the afternoon of 9 January 2004 at the offices of Arch Henderson, and
was attended by Mr Manson and (for part of the meeting) by Mr Sandison,
both of Arch Henderson, and by Mr Allan of the petitioners. Mr Manson was a senior engineering
technician. Mr Sandison was an
associate. It appears, from the
information I was given by counsel, that it emerged at the meeting that the
parties (or their advisors) were using different computer systems for the
presentation of data, with the consequence that neither party could overlay the
other party's data on to its own system.
That problem was resolved at the meeting. A drawing was produced at the meeting,
showing the agreed position of the existing navigation channel, and also
showing the position of the proposed new channel. Later that afternoon, following the meeting, Mr Manson
sent an e-mail [6/7] to the petitioners' Mr Craigie:
"Further to the meeting in our
office this afternoon between John Manson and Andy Sandison (Arch Henderson)
and Kenn Allan (SIC) we can confirm that all parties are in agreement as to the
location of the existing dredged channel.
This is shown on the enclosed AutoCad drawing.
The location has been agreed,
with the grid shown matching that shown on the Halcrow drawing of the bridge we
received yesterday. Both surveys are in
the same format and can be directly overlayed.
We have also shown the line of
the proposed new dredged channel which Lerwick Port Authority wish to carry
out.
Therefore this drawing of the
channel will supersede all previous lines shown on Arch Henderson drawings and
Halcrow drawings.
Please confirm receipt of this
drawing, and the action to incorporate it on all existing and future bridge
drawings."
[45] The attached drawing showed the location of the existing
dredged channel. It also showed what was
described as a "120m wide proposed channel", bounded on either side by lines
labelled "edge of proposed dredged channel".
Beyond each of the lines, there was another line labelled "top of
sideslopes to proposed dredged channel".
A docquet on the drawing stated:
"The above data relating to the
existing channel position has been agreed as correct at a meeting between John
Manson (Arch Henderson) representing Lerwick Port Authority, and Kenn Allan
representing Shetland Islands Council on 9 January
2004. The information for
the channel positions was taken from the original setting out drawing for the
1990 harbour dredging contract ...
Proposed new 120m wide channel
(position of top of slopes (10m from main channel edge) running from SOP1 to
SOP3 [positions on the drawing] added 09/01/2004.
All existing and future Bressay
Bridge drawing to be updated to
show this information as the current lines for both the existing channel and
proposed channel."
[46] The petitioners did not respond to the e-mail or acknowledge
receipt of the drawing [6/19, para 6.6.4].
It is a matter of agreement between the parties that the e-mail was
copied to Ms Laurenson, the Deputy Chief Executive of the respondents, that she
printed a hard copy of it the same day, and that she cannot recollect whether
the drawing was attached. It is also a
matter of agreement that she would not in any event have been able to open the
attachment [15].
[47] On 13 January
2004 the respondents submitted objections to the planning
application [6/8]:
"4. The objectors and their engineering advisers, in so far as
they can determine the position from the Planning Application and supporting
drawings or plans, believe the proposed development is likely to obstruct or
impede the performance of their functions as Harbour Authority in terms of the
Lerwick Harbour Acts and Orders 1877 to 2003 and various other general Acts
and/or to interfere with the reasonable requirements of navigation over the
waters, namely Lerwick Harbour. However,
due to lack of salient design and construction information the objectors and
engineering advisers are not able to advise fully on these aspects.
Matters of concern include the
absence in the Application and supporting drawings or plans of precise details
of the location and dimensions of the bridge, including supporting pillars, in
relation to the navigation channel. No
design data and maintenance information in respect of the proposed bridge is
given. In addition, the width of its
central span, as proposed, would be insufficient to permit safe maintenance and
future development of the navigation channel.
No details are given of the Hydrological study and Hydrodynamic
modelling study referred to in the Environmental Impact Assessment and the
effect of the proposed development on the harbour and vessels using same during
both the construction and post construction periods.
In respect of dredging it may not
be possible to dredge at all post-construction or if dredging is possible the
costs are likely to increase substantially.
In any event no information is provided as to how pier foundations are
to be constructed or the protection of same from future dredging of the
channel".
Concern was also expressed that the
rock islands would restrict the width of the channel and therefore increase the
speed of the water flowing through it, rendering the channel less safe for
navigation, and reducing the size of the vessels able to use it.
[48] On 19 January
2004 the respondents submitted objections to the environmental
statement [6/8]:
"A. (i) The indicated width
of the bridge span over the navigational channel is insufficient and in
particular insufficient to accommodate its future development. The minimum width needs to be 160 metres
measured between the inner edges of foundations adjacent to said channel. This objection presupposes pre-dredging of
the navigational channel by the applicant.
If this is not intended to take place then the minimum 160 metre width
referred to will almost certainly need to be increased in order to accommodate
potential future development.
(ii) Information on drawings, which is both conflicting and
inadequate, has been provided regarding cofferdams in their use as ship protection
or part of the temporary causeways becoming permanent as man made rock
islands. The position is, therefore,
unacceptably uncertain and their impact cannot be assessed.
...
(iv) Insofar as the ES comments on the effect of the temporary
causeways/islands, the studies are absent and no detailed information on this
topic is given. No consideration has
been given to the effects of the bridge on navigation of vessels except in
relation to air draft. This gives rise
to serious actual and potential concerns regarding likely difficulties, details
of which are contained in the annexed initial comments and concerns, with
diagram annexed, by Captain Archer T L Kemp, Harbourmaster of Lerwick Harbour,
which comments and concerns form part of these objections.
...
(vi) There is a failure to appreciate that not only is the
navigational channel used by vessels entering from the north but also it is in
regular use by internal harbour traffic including, for example, vessels
entering from the south, reefer vessels loading cargo at the Greenhead base and
Gremista, inshore and pelagic fishermen, pleasure craft, pilot cutters, Lerwick
Port Authority work boats and the like.
The suggestion that
vessels can go round Bressay [i.e. so as to enter the harbour by the south
entrance] if the channel is blocked or restricted is unreasonable and
unsatisfactory and does not conduce to the efficient running of Lerwick Harbour
...
(vii) If a large vessel such as the Norrona, which recently grounded in
Torshavn harbour [in the Faroes], were to ground in the North Ness channel, the
objectors would be faced with the prospect of harbour traffic, e.g. the
NorthLink ferries which berth at Holmsgarth requiring to use the north channel
until the North Ness channel was cleared.
No assessment has been made of the impact of the bridge in such an
event."
Captain
Kemp's observations, which were incorporated into the objections, emphasised
the difficulty of navigating the existing channel, as a result particularly of
tidal flows, and expressed concern that the further restriction of the channel
would exacerbate that problem.
[49] On 17 March
2004 a meeting was held between the respondents' and the
petitioners' officials. The minute
records [7/8]:
"MC
[Mr Craigie of the petitioners] said that from previous discussion and
correspondence with LPA [the respondents] it was known ... that there were
elements of the draft proposals which they felt were unacceptable.
...
AW
[Mr Wishart of the respondents] said that the potential for future
dredging had to be carefully protected.
The draft requirements of vessels likely to be using the port were
constantly being increased. The design
of the bridge should not therefore inhibit dredging in the vicinity of the
middle piers ...
AW
referred to correspondence from 1998 and 1999 setting out LPA's position on
bridge dimensions. Two letters from LPA
were demonstrated which clearly indicated requirements including a 160 metre
clear width requirement. AW said that
another option was to increase the centre span to, for example, 180
metres. This would move the piers clear
of the navigable channel. MC said that
this was still a possibility but that it would involve extra cost. The report to Council will present such options,
with attendant costs."
Mr Wishart
was asked to explain his suggestion of a central span of 180m:
"AW
explained that this was based on an official navigable channel width of 100
metres. 10 metres on each side of this
had to be added as an allowance for 'navigational buoy excursion' plus another
10 metres each side to account for the construction of a stable dredged slope
and a further 10 metres berm (ledge at edge of slope) to the inner side of pier
base. 20 metres is assumed as the
diameter of the central pier foundation structures. He felt that 180 metres between centres would
be required to ensure that the pier bases were far enough from the edge of the
dredged channel. This would allay LPA
concerns regarding future dredging."
As
counsel for the petitioners acknowledged in argument, Mr Wishart's suggestion
of a span of 180m, measured between pier centres, was effectively the same as
the earlier request for 160m clear width, if the diameter of the pier
structures was assumed to be 20m. The
only new matter was Mr Wishart's explanation that the 120m channel
included an allowance of 20m for navigational buoy excursion. In relation to that matter, it was explained
in submissions during the first hearing that the navigation buoys are anchored
by chains, which are more or less taut depending on the state of the tide. To the extent that the chain is slack, the
buoy can drift.
[50] Mr Sandison of Arch Henderson said at
the meeting that the respondents now intended to dredge the channel to a depth
of -10m CD. He also expressed concern
that the proposed design of the pier foundations was inadequate and did not
comply with the relevant guidelines regarding ship collision. Mr Wishart said that this concern also
would be abated if the main span, measured between pier centres, was extended
to 180m. Mr Craigie responded "that
this option would be costed and presented to the Council along with the
others".
[51] Mr Wishart also raised again the issue
of the increasing draught of vessels using the port:
"The
current pelagic fleet can draw as much as 8.5 metres. The Icelandic vessels which may use the port
in the future draw up to 10 metres. The
freedom to dredge in this area in future was therefore a major concern."
It
was noted that the bridge foundation would need to be reconsidered if the
dredge depth were increased to -10m CD.
Concern was also expressed about the effect of the bridge construction
on the current flowing through the channel, and thus on navigation.
[52] General observations made by Mr Wishart
were also noted:
"He
explained in some detail the highly competitive nature of ports and their
businesses, particularly Oil and Fishing.
Any impediment or restriction to free and safe vessel movement would be
picked on by a competitor as a good reason for existing and potential customers
to avoid Lerwick. MC acknowledged this ...
AW
said that LPA had a duty to protect the interest of the harbour and could
therefore not compromise on navigational issues. He felt that SIC have the ability to resolve
the issues by increasing the funding for the project."
[53] On 13
April 2004 Mr Sandison of Arch Henderson wrote to the petitioners'
planning department, stating that they had been commissioned by the respondents
to procure contract drawings and tender documents for proposed dredging and
land reclamation works, which were anticipated to commence in March 2005 [6/9]. The letter continued:
"As
part of this procurement, we are currently carrying out consultation with
businesses in the area that may be affected by the works together with
submission of all marine consent application to various statutory bodies.
We
attach general drawing for the proposed works for your records ... while the
works do not form part of local authority planning legislation, we would
welcome any comments you may have regarding the proposed works."
A
general drawing of the proposed works was enclosed. In the area of the proposed bridge, the
drawing indicated that the channel was to be dredged to -10m CD. The width of the dredged channel was not
stated, but could be measured from the drawing as 120m.
[54] A further meeting between the petitioners'
project team and the respondents' officials took place on 21 April 2004. A note of the meeting [7/9] records:
"7. All agreed it was
unlikely LPA would withdraw its objections to the NID ...
8. SIC project team's
design is very much a 'work in progress'.
They are looking at various engineering solutions, including a totally
different method of construction, to try and meet objectors concerns but remain
within SIC budget.
9. Discussed how long
they were going to try and engineer issues away - not much time left with
ERDF application due in September.
...
12. SIC project team say
that the NID being passed to the Scottish Executive is only relevant in the
context of the onshore parts of the project.
An application under the Roads Act and the Works Licence Application
will deal with the navigation issues.
...
15. SIC project team still
appear not to want to bend at all, keep mentioning reducing the width of the
dredged channel - LPA keep saying this is not negotiable ...
16. LPA repeated its
fundamental requirement for 160m clear span width between pier bases, unchanged
from 1998. This may mean 180m between
pier centres.
...
19. LPA expressed lack of
confidence in the Hydrodynamic modelling done by Halcrow. Requested an independent model.
20. Michael Craigie
reluctant to commit to this, however team did say that enhanced modelling would
be necessary as the final design progressed, perhaps there would even be a
different design of bridge to be modelled."
[55] On 4 May
2004 a report was submitted by the project team to the petitioners'
Infrastructure Committee [7/10;
10/9]. It stated:
"5.6 The Team will consider
the potential costs and benefits of increasing the span of the bridge to at least
180m. The LPA and other objectors raised
concerns about the proposed span of 160m primarily because of navigational
issues.
5.7 As an alternative to
increasing the span, the Team will explore, in consultation with the LPA, the
potential to reduce the width of the proposed dredged channel from 120m to the
minimum 100m through the use of navigational aids.
...
5.12 If the Council is to be
in a position to secure ERDF funding for the construction of the Bressay
Bridge, there are specific elements
of the project that must continue to be progressed. These are:
...
·
Completion of further options appraisal;
·
Development of the detailed design of the final
option;
...
·
Development of the final cost model. This must be concluded before the Council
makes a final commitment to build the bridge;
...
6.2 These costs [i.e. the
estimated cost of the bridge] can only be identified when all the objections have
been addressed and the details of the project finalised. Indicative additional costs for addressing
some specific objections such as moving the bridge location to the north or
increasing the span of the current option, are included in Appendix 1 for
information."
The appendix
referred to [7/11] was a report by Halcrow and other consultants instructed by
the petitioners, dated May 2004. It
stated:
"11.6.1 The Team will further explore options to increase the main
span of the bridge to at least 180m in order to address the LPA's concerns
regarding future dredging in the North Channel and all
objectors concerns about the perceived navigational hazard of the current 160m
design.
11.6.2 As an alternative to
increasing the span, the Team will explore, in consultation with the LPA, the
potential to reduce the width of the proposed dredged channel from 120m to the
minimum 100m".
[56] The notice of intention to develop, with
the planning application and the environmental statement, was submitted by the
petitioners to the Scottish Ministers on 13 May 2004, together with the objections made by
the respondents and others, in accordance with regulation 6 of the 1981
Regulations [10/33].
[57] On 17 May 2004 Mr Sandison, the
respondents' administration manager, sent an e-mail to Mr Nicolson of the
petitioners [6/10].
"Our recent
telephone conversations when you advised that you would like to arrange a brief
meeting to discuss the following main issues refers:
...
2. LPA dredging operations.
3. New channel alignment.
I am afraid
that the date and time you have suggested is not suitable for us owing to
various personnel being on leave and other workload/commitments.
In order to
assist you in the meantime, I detail below a brief response regarding each of
the above issues that may assist you in the meantime.
...
2. Our dredging
proposals have not fundamentally changed from the information prepared by Arch
Henderson LLP and provided to you previously.
3. Our new channel
alignment has not changed from the information prepared by Arch Henderson LLP
and provided to you previously.
I
hope that this information is of use to you in the meantime ..."
[58] On 3 June
2004 the petitioners applied to the respondents for a works licence
under the 1974 Order. The application
was not produced during the present hearing, but appears to have been in
respect of a bridge "with a main span of 160m providing an air draft of 40m
minimum over the proposed 120m wide dredged channel" [7/14]. Following advertisement of the application, objections
were received from five companies operating in the port [10/11].
[59] On 22 June
2004 the Scottish Ministers decided that they did not require the
petitioners to make an application to them for planning permission in respect
of the development described in the notice of intention to develop. Planning permission was then deemed to have
been granted by the Scottish Ministers, by virtue of regulation 6(3) of the
1981 Regulations. The respondents
applied for judicial review of the Scottish Ministers' decision. A first hearing was fixed for 20 and 21 January 2005.
[60] On 28 June
2004 the petitioners informed the respondents that the additional
cost of increasing the central span from 160m to 180m (measured between pier
centres) would be in the region of £750,000, excluding the cost of road
realignment [7/12].
[61] On 29 June
2004 the petitioners made a roads scheme in respect of the proposed
bridge under section 75(3) of the 1984 Act [10/5]. The scheme was published on 2 July 2004. The scheme stated that the petitioners were
"hereby
authorised to construct, along the route described in Schedule 1 hereto, as
part of a public road, a bridge ... in accordance with Schedule 2 to the Scheme
..."
Schedule
1 specifies the route of the public road, as shown in Plan 1. Plan 1, dated 31 May 2004, shows the central piers positioned
asymmetrically relative to the proposed 120m dredged channel. No dimensions are stated, other than for the
width of the proposed channel. The route
shown in Plan 1, and the location of the central piers shown there, appear to
be the same as in the plans in respect of which planning permission had been
granted [10/3, plans (i) and (iv)], as was to be expected.
[62] Schedule
2 is headed:
"Specification of bridge over Bressay Sound showing
the position, clearance for passage of vessels and dimensions of the proposed
bridge."
Under
the heading, "Position", it states that the position of the proposed bridge is
shown on Plan 1. Schedule 2 continues:
"Clearances for the passage of vessels
Ten
piers shall support the final bridge construction. The central span of the proposed bridge
between piers five and six, measures one hundred and sixty metres or thereby
and crosses over the existing 90 metre or thereby channel. The said 90 metre or thereby channel is shown
edged in green on Plan 1....
The
central span of the proposed bridge accommodates a height clearance of 40
metres above Mean High Water Springs over a 120 metre or thereby width.
The
120 metre or thereby width and the 40 metre clearance are shown in ... Plan 2 ..."
It
is to be noted that, although the proposed 120 metre dredged channel is shown
on Plan 1, the passage quoted from Schedule 2 does not refer to that
channel, but to "a 120 metre or thereby width" shown on Plan 2. Schedule 2 also states that "the dimensions
of the proposed bridge are shown on the said Plan 2".
[63] Plan 2, dated 3 February 2004, is (as counsel for the petitioners
accepted) one of the Halcrow drawings which accompanied the planning
application (drawing TB-BRES-100 Rev F), with some of the details omitted. The design of the bridge appears to be
identical to that shown in the earlier drawing:
the dimensions and gradients stated in the two drawings are the
same. Plan 2 shows the central piers
positioned symmetrically relative to an area of the seabed 120m wide, where the
words "navigational clearance" appear. The
120m width shown in Plan 2 cannot be the proposed 120m channel shown on Plan 1,
since the piers are not positioned symmetrically relative to that channel. Plan 2 shows a vertical clearance of 40m
across the 120m width. There would not
however be a 40m clearance across the whole of the proposed 120m channel shown
on Plan 1, if the design of the bridge were as shown in Plan 2, since the main
span of the bridge is not centred over the channel, as it is over the 120m
width. Plan 2 also shows a dimension of
160m between pier centres, and a dimension of 20m between each pier centre and
the edge of the "120m width". The
dimension of the pier structures is not stated.
The note which appeared on drawing TB-BRES-100 Rev F relative to the
foundations ("Provision for ship impact to be confirmed"), to allow for
cofferdams, rock islands or other forms of protection from impact, has been
omitted.
[64] Schedule 2 continues:
"Proposed dredged channel
Plan
1 ... shows the edges of a 120 metre wide channel ... that Lerwick Port Authority
has proposed to dredge in the future. It
is shown in this Scheme to indicate that should the channel be dredged to 120
metres the proposed bridge would be able to accommodate that width of channel
as well as the existing 90 metre channel."
For
the reasons I have explained, a bridge constructed as shown in Plan 2, and
located as shown in Plan 1, would not allow a 40m vertical clearance across the
width of the channel.
[65] When this matter was raised during the
present hearing, counsel for the petitioners said that it was accepted that
Plan 2 was inaccurate. It had not been
intended to show the exact relationship between the navigational "envelope"
(i.e. the 40m clearance across a 120m width) and the centre span, but rather to
illustrate the principle that a suitable navigational envelope could be
provided. A further drawing [6/32],
prepared for the purposes of the hearing, was produced to demonstrate how the
envelope would be provided. This drawing
shows the central piers located as in Plan 1, with the central span positioned
asymmetrically relative to the proposed 120m channel. Pier 6 (the eastern central pier) is shown as
being taller than pier 5 (the western central pier), so as to move the 120m
envelope closer to pier 6, bringing it into alignment with the 120m
channel. Counsel explained that the
difference in height between piers 5 and 6, and the consequent alignment of the
road, were also shown on one of the drawings accompanying the planning
application (Drawing No. TB-BRES-R-05) [10/3(i)]. The distance between the centres of the piers
is 160m, with each pier having foundations surrounded by impact protection
consisting of concrete and granular fill, with a diameter of 26m. The clear width between the piers is
therefore 134m, which is 26m less than the minimum the respondents' officials had
said would be required. The space
between the edge of the 120m channel and the nearest rock island is shown as 3.25m
on the east side, and 10.75m on the west side.
The respondents' officials had requested a minimum of 20m on each side.
[66] In relation to this drawing, counsel said
that the works licence application and the application under the Coast
Protection Act 1949 ("the 1949 Act") defined the positions of the central piers
in terms of latitude and longitude to an accuracy of 0.01 of a minute, which
was equivalent to ± 4.7m. In response to
counsel for the respondents' observation that a margin of 3.25m between the
pier and the edge of the channel was incompatible with a tolerance of ± 4.7m -
in other words, that the pier might in the event be located in the channel -
and that the margin was less than the minimum stipulated in the relevant
guidelines, counsel for the petitioners responded that these were not matters
for the court. It was accepted that the
piers would have to be located with a higher degree of accuracy than was
envisaged in the works licence application or the application made under the 1949
Act. Whether the design was achievable
was not a matter for the court.
[67] On 29
July 2004 the respondents instructed Eagle, Lyon
and Pope ("ELP"), port and marine consultants, to carry out an assessment of
the navigational impact of the proposed bridge [7/36, para 1.2.1].
[68] On 13 August
2004 the respondents submitted objections to the roads scheme [6/21; 10/36].
These were generally in similar terms to the respondents' objections to
the planning application and the environmental statement, and also stated:
4. ... Due to these
concerns, LPA has commissioned Eagle, Lyon and Pope to
investigate and report on all safety issues relating to navigation through the
channel both during and post construction.
...
6. The indicated width
of the bridge span over the navigational channel is insufficient and in
particular insufficient to accommodate its future development. The width will need to be increased in order
to accommodate potential future development and in particular the proposed
alteration and widening of the existing navigational channel by LPA to a width
of not less than 120 metres to meet the needs of increasingly large vessels.
In this regard we
annex a drawing by LPA's engineering advisers Arch Henderson LLP. Lerwick, namely drawing number 202576-30
dated August 2004 which clearly demonstrates the conflict between Lerwick Port
Authority's proposed new dredged channel and Shetland Islands Council's
proposed position of piers 5 and 6 which support the central span of the
proposed bridge.
...
14. The air draft of the
bridge namely 40 metres is insufficient to accommodate the air draft of vessels
... with air drafts in excess of 40m presently using Lerwick
Harbour."
The
Arch Henderson drawing referred to [7/13] was prepared on the basis that the
main span would be centred over the proposed 120m channel, as shown in Plan 2
of the road scheme. Even so, the drawing
shows piers 5 and 6 as encroaching into the areas of the side slopes; and there is no space for a berm on either
side.
[69] During August 2004 the parties received a
report on the economic impact of a bridge to Bressay which they had jointly
commissioned from DTZ Pieda Consulting [7/39].
It concluded that, in a best case scenario, the bridge would generate an
additional two jobs. It noted that the
average tonnage of vessels at Lerwick
Harbour had almost doubled over the
previous five years:
"[T]he
information available on vessel size supports an overall trend of vessel growth
with some evidence that oil related and ro-ro vessels are undergoing more
significant expansion."
The report also
noted:
"Both [the
petitioners and the respondents] have already clearly stressed that further
examination of technical are