BHP Planners secure Ghost Ships Planning
8th May 2008
The Secretary of State ruled last week on one of the North East’s longest running planning disputes, finally giving the go-ahead to proposals to dismantle ‘ghost’ ships at Hartlepool. For former council planning chief and now planning consultant with BHP Develop, STEVE BARKER, it’s been the lengthiest case he has worked on in 20 years. Here he explains the planning issues that made it so complex
Few planning applications in the North East in recent years have generated so much interest, caused so much division and raised so many emotive issues as the application to dismantle ships at Graythorp Yard in Hartlepool.
Finally, approval has been granted, the public inquiry inspector and Secretary of State agreeing that the planning case for the scheme had been proven.
Getting the Graythorpe facility up and running has been a ten year battle for Peter Stephenson’s company Able UK and a case in which I was involved initially while at Hartlepool Borough Council and more recently as planning consultant with BHP Develop (the new name for Blackett Hart & Pratt’s planning team), which helped to represent Able UK.
The origins of the case go back to the mid-1990s when Able UK bought the site to establish a decommissioning centre for off-shore plant and equipment.
The facility had been mothballed after last being used for manufacturing oil rigs for the Forties oil field off Shetland.
Able UK bought the site at the same time as a public debate was raging around the future of the Shell-owned Brent Spa oil platform, which was coming to the end of its life.
The industry standard at the time was to find a deep trench under the sea and sink these structures. Times were changing, however, and there was a public outcry led by Greenpeace and Friends of the Earth against this method of disposal which forced a rethink in the industry.
Mr Stephenson identified an opportunity to provide an alternative method of decommissioning.
Brent Spa ended up being cut up to create a new dockside facility at a fjord in Norway. Teesside was second choice to carry out the decommissioning. In order to prepare the way Able UK obtained planning permission in 1998 from the then Teesside Development Corporation (TDC) for the decommissioning of redundant marine structures.
The company also obtained a waste management licence from the Environment Agency, a pre-requisite of which is that planning permission must already be in place.
At the time, I was a case officer at Hartlepool Borough Council, a consultee in the application, and involved in the debate over what constituted a “marine structure”, a definition that would prove crucial to Able UK’s plans.
As we understood it “marine structure” was shorthand for a lot of bits of off-shore plant and equipment including, at the time, ships.
Believing all the necessary permissions were in place, Able UK identified further opportunities in President Bill Clinton’s directive that the United States should decommission its ships properly and responsibly and not in the Third World. It pre-empted a similar decision by the British government.
Able UK entered into a contract with the US government to enable a number of ships from the James River fleet to be decommissioned in phases at Graythorp.
A final check was made with the Environment Agency to confirm all the necessary consents were in place. Confirmation was given, and two ships began their trans-Atlantic voyage in 2003.
A campaign was then started, inspired in part by general anti-American feeling, by people who felt that the US should take care of its own decommissioning. The campaigners challenged the interpretation of the position taken by the TDC as planning authority and the Environment Agency.
The case went before Lord Justice Sullivan who was asked to rule on the definition of a marine structure. He interpreted it in the narrowest sense and, crucially to Able UK, as excluding ships.
It was the first blow to the company because it meant the planning permission secured in 1998 no longer applied to ship decommissioning. Inevitably, this had a knock-on effect for the waste management licence.
On a wider scale, the entire decision-making process of the Environment Agency and the planning authority was brought into question.
It resulted in Able UK putting together a suite of revised licence and planning applications.Most of the public angst focused on the decommissioning of the ships but the proposals also covered a lot of other ground and would have provided facilities for fabricating wind turbine blades as well as importing cargo over refurbished dockside quays.
Graythorp is adjacent to a Site of Special Scientific Interest (SSSI), the top tier of environmental protection in the UK. In addition, it lies opposite a Special Protection Area (SPA), a European designation of nature conservation which comes with a very heavy burden of proof that a site’s flora and fauna is protected, in this case rare birds that feed off the inter-tidal mud flats.
A more minor, since they are not a protected species, but nonetheless emotive issue was that of seals that haul out on the mud at low tide.
It all meant that the application had to be accompanied by a comprehensive and wide ranging environmental statement.
The planning authority wrote to all the consultees asking each for their individual input, which resulted in a huge shopping list of issues.
Able UK had to commission various independent specialist companies, many from overseas, to carry out environmental assessments and to consider the impact of the facility both on its own and when combined with PD Ports, a deep water facility on the south side of the Tees.
All the information gathered and evidence submitted was then the subject of several rounds of public consultation during which the proposal was refined and refreshed over two and a half years to ensure every issue raised was dealt with.
It even passed a European Habitat Assessment, a separate European directive which tests at a very high level whether a scheme could impact on an SPA. The test must be carried out by a “competent authority” such as Natural England. Passing this rigorous test gave the scheme a clean bill of health in planning and environmental terms.
By October 2006 the position was reached where every statutory consultee either supported the application or had made no formal objection to it.
However, the proposals continued to be the subject of a polarized public debate. On the one hand were people who supported its potential for job creation and huge economic benefits for the area; on the other, a number of local pressure groups were formed specifically to oppose the development.
Essentially it was a locally led challenge with the likes of Greenpeace not actively opposing the application.
Local splinter groups also formed, culminating in a very bitter planning committee meeting at Hartlepool in October 2006.
Although approval could attract work from all over the world to Hartlepool, there was a significant anti-American element to the debate fuelled by the US’s role in Iraq.
The advice of the council’s planning officers, and the expert consultees, was to approve the application. However, councillors refused it on several grounds resulting in Able UK going to appeal.
By now I was a planning consultant with BHP. We pulled together a team of experts including Peter Wilbraham, one of the most eminent planning solicitors in the country and honorary legal secretary to the Royal Town & Country Planning Institute.
Because of the high profile nature of the case, it was never in doubt that the appeal would be heard at a public inquiry.
A number of decisions were to be made: on the ‘main’ planning application to allow ship decommissioning; two parallel applications for two coffer dams (temporary engineering structures) to be built so a dry dock could be created; and hazardous substance consent to store certain potentially harmful substances on site during the de-commissioning process.
Various milestones were reached on the submissions made to the council as we outlined the proposals, and the council reciprocated.
Able UK appointed eminent barrister Martin Kingston from Birmingham; the council instructed its own legal team and also appointed a barrister.
The inquiry was scheduled by the Planning Inspectorate for September 2007.
A pre-inquiry meeting was held at Hartlepool Historic Quay in July that year to establish the flow of information, to ensure no time or money was wasted and to allow the inspector to set an agenda. It was a stormy meeting, with one opposition group putting forward a vote of no confidence in the inspector.
Some of the lobby groups involved in the process conducted their campaigns in a very professional and sincere manner; others treated the process with contempt and disrespect. Interestingly, some of this latter group did not stay the course.
The council looked very seriously at how it was going to defend its members’ reasons for refusal and instructed its own specialist witnesses and expert advisors.
It resulted in members being told that the reasons they gave for refusal were not capable of being defended effectively.
At the Rule 6 stage in the run-up to the inquiry, where parties must provide a list of documents they plan to produce and an outline of their argument, the council informed us that it did not intend to present any evidence to support its case.
For Able UK it was great news. A lot of people thought that was the end of the saga. But the absence of objection is not the same as positive determination. Significantly, as already outlined, the Environment Agency could not grant a waste management licence on that basis – the applicant had to have planning permission.
Which is why we continued on towards the public inquiry. We considered whether we might be able to avoid the costs and delay of the inquiry by submitting an identical application to that originally refused by the council on the basis that, having at long last decided not to object to the proposals, the council could take the seemingly small step to approve another application.
We submitted an identical application but also continued to plan for the up coming inquiry. All the original work was re-submitted together with an updated environmental statement seeking identical permission.
There was a sufficient window for the council to determine the resubmitted application prior to the inquiry starting and, in theory, for members to approve it in time. If only.
Members considered the revised application the week before the inquiry was due to open. The meeting grabbed the headlines for the wrong reasons after the police were called to deal with a particularly belligerent and disruptive objector.
A vociferous objection lobby of local pressure groups told the councillors they had information that was relevant to their decision.
Going against the advice of their barrister and officers, the members decided to defer.
It left the applicant in limbo days before the inquiry, towards which we had to proceed.
The inquiry was held over a total of four weeks, although there was a week break in the middle. The council was represented throughout though its barrister offered no evidence.
During the week off, Hartlepool councillors found a slot to reconsider the resubmitted application. They had no different information than was before them previously.
Although the members took the very difficult decision to approve the application, they imposed an operating regime which Able UK considered to be beyond what was reasonable.
One of the conditions was that the company would have to pay for an environmental manager working 24/7 to be appointed by the council and therefore effectively be a council employee.
Able UK already had an environmental manager in post and a specialist clerk of works. The site was operating to the ISO 14001 international environmental management standard, which incorporates a separate requirement for at least an annual audit. The process of achieving this accreditation is vigorous – you cannot buy it and you cannot hang on to it unless you maintain standards. Able felt this was sufficient to meet any concerns.
However, the company needed planning permission, so it agreed to the council’s conditions while reserving the right to put its concerns to the inspector and to propose a different approach, which it did on the final day of the inquiry.
The company challenged a number of the council’s assertions and offered alternative monitoring arrangements backed up by legal undertakings.
The whole inquiry became focused on the ship decommissioning issue; the application and the facility is capable of so much more and its success has wide implications for the regions economy.
For instance, the lead contractor building the new Tyne Tunnel wanted to use Graythorp’s facilities for building some of the tunnel sections, while proposals to build large fabrication halls at the site could make the area one of the few in the country to manufacture wind turbines.
The economic benefits to the region are potentially enormous so the Secretary of State’s decision was awaited with interest from many quarters.
Now, finally we have resolution. Though given Graythorp’s history, this is unlikely to be the end.
Timetable
1995 - Peter Stephenson’s company Able UK purchases Graythorp Yard to establish a decommissioning centre for off-shore plant and equipment.
1998 – Able UK secures planning permission from Teesside Development Corporation for the decommissioning of redundant marine structures and subsequently a waste management licence from the Environment Agency.
July 2003 – Able UK signs a contract with the US Maritime Administration to dismantle 13 former US navy ships at Graythorp.
October 2003 – the first obsolete US ships set sail for Hartlepool.
November 2003 – Environment Minister Elliot Morley says the ships must return to the US; four days later Environment Secretary Margaret Beckett says the first two ships can be stored temporarily at Graythorp.
December 2003 – High Court judge Mr Justice Sullivan says a waste management licence issued to Able is “legally flawed” and rules that the definition of “marine structure” does not include ships.
March 2004 – Elliot Morley says the four US ships in Hartlepool should be dismantled.
2005 - Able UK submits its first revised planning application for decommissioning ships followed by public consultation and extensive environmental impact investigations.
October 2006 – Hartlepool planning officers recommend approval but members refuse the application at an acrimonious committee meeting.
June 2007 – a date for the public inquiry is set for the appeal but later Hartlepool Borough Council states it will offer no evidence to defend its refusal of planning permission.
July 2007 – at a pre-inquiry meeting held at Hartlepool Historic Quay one opposition group puts forward a vote of no confidence in the inquiry inspector.
September 2007 – Hartlepool planning committee holds a special meeting to determine the resubmitted application. The police are called to restore calm and members decide to defer their decision.
September 2007 – a public inquiry is held at which Hartlepool Council offers no evidence to defend its refusal of planning permission.
October 2007 – Hartlepool Council finally grants planning permission.
April 2008 – Campaigners seek a judicial review in the High Court over the council’s decision to grant planning permission. Consultation begins on Able’s application for a waste management licence.
May 2008 – The Secretary of State rules in favour of Able UK, based on the public inquiry inspector’s report, and grants the company costs against Hartlepool Council.
Author: Steve Barker, Head of Town Planning South (SteveB@bhpdevelop.co.uk)
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