meeting date: 6 february 2009 from: corporate director ...councilportal.cumbria.gov.uk/data/county...

COUNTY COUNCIL LOCAL COMMITTEE FOR COPELAND

Meeting date: 6 February 2009

From: Corporate Director Environment Directorate

Paper No

19

ESKMEALS COASTAL EROSION INFORMATION REPORT

REVISION 1

1.0 EXECUTIVE SUMMARY

1.1 This report is an amended version of the Eskmeals Coastal Erosion Information Report presented to Local Committee on 19 December 2008 which contains advice on the legal duties and powers of the Highway Authority in relation to the protection of highways from coastal erosion.

1.2 This report refers the Copeland Local Committee to the previous Committee Report of 14 April 2003 from the Director of Community Economy and Environment (See Appendix A0).

1.3 This report advises the Committee of a request from MoD on behalf of their contractors Qinetic for Cumbria County Council as Highway Authority to carry out works to protect the unclassified public highway at Marshside from the effects of coastal erosion.

1.4 The Coastal Protection Authority is Copeland Borough council which in 1998 produced a Shoreline Management Plan (SMP. The proposal of the SMP for the Coastal Defence of Management unit 7 which covers the area from Eskmeals Dunes to Selker Point and includes Marshside is to ‘let nature take its course’.

1.5 Copeland Borough Council are of the opinion that Cumbria County Council has a ‘duty’ as Highway Authority to protect the highway from coastal erosion.

2.0 STRATEGIC PLANNING AND EQUALITY IMPLICATIONS

2.1 There could be implications for

LTP Policies T7 Road Transport in Furness and West Cumbria with particular emphasis on improving rail links and encouraging the movement of goods by rail.

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Making Cumbria more prosperous through supporting existing jobs at Eskmeals.

2.2 There has not been an Equality Impact Assessment.

3.0 RECOMMENDATION

3.1 Although Cumbria County Council as Highway Authority does NOT have a duty to undertake measures to protect the highways from the effects of coastal erosion, the Copeland Local Committee is recommended to request the Cabinet to write to both the Coast Protection Authority (Copeland Borough Council) and the Minister of Defence (who owns Eskmeals) for “lions share” contributions for Cumbria County Council to undertake emergency measures (to be agreed), to protect the highway to give the Coast Protection Authority time to design and construct adequate coast protections works for the permanent protection of the highway.

3.2 In addition the Committee is recommended to request Cabinet to write to the Environment Agency and the Coast Protection Authority requesting them, in view of the high importance given by the MoD to the continued and uninterrupted operation of the Eskmeals site to design and construct and maintain such coast protection works as may be necessary to provide permanent protection to the public highway.

3.3 Should the Environment Agency and the Coast Protection Authority decide not to provide the necessary coast protection works, the Committee is recommended to request Cabinet to lodge a complaint with the Secretary of State that the Coast Protection Authority has failed to take sufficient measures for the protection of the land which supports the highway between Stubb Place and Eskmeals which will lead to the washing away of the highway.

3.4 That the conclusions of the Bullen Report (See Appendix A6 Items 1.1, 1.3, 1.47 and Appendix 7 items 4.3, 4.5 , 4.6, 4.7 and 4.8) be quoted in support of the complaint to the Secretary of State.

3.5 That in the meantime the Committee instruct the Area Engineer to arrange weekly inspections of the road to be funded from the “lump sum for reactive” inspections.

3.6 That in the event of delays in the implementation of the above recommendations and depending on the recommendations of the weekly inspections the Committee authorise the Area Engineer to carry out emergency repairs or measures to protect the public using the road.

3.7 That these repairs or measures be funded from the Highways Revenue Budget, the de-trunked de-ringfenced Revenue Budget and should it be necessary the APM Budget.

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3.8 That the Committee request the MoD to relay the railway link from the Gun Range to the Millom-Carlisle line at Monk Moors (see location plan Appendix A9). This would support the County Council Policy of Modal Shift and remove such vehicles as that shown in Appendix A2 form the narrow rural roads of Cumbria to rail, and provide an alternative route into the Gun Range free from coastal erosion problems.

3.9 That Defra be requested to re-examine its assessment of economic losses (See item 6.5) to take into account the extremely high importance placed on the operations of Eskmeals by MoD.

4.0 BACKGROUND

4.1 The statute law relating to the protection of the coast of Great Britain against erosion and encroachment by the sea is in the Coast Protection Act 1949.

4.2 The Council of each maritime district is the Coast Protection Authority of its district unless the Secretary of State has seen fit for the protection of land in any area to make an order providing for the constitution of a Coast Protection Board to be the Coast Protection Authority for that area.

4.3 So far as it is known no Coast Protection Boards have been set up in Cumbria.

4.4 A Coast Protection Authority has powers but not a duty (ie it cannot be compelled to use its powers) to carry out such coast protection works as may appear to it to be expedient or necessary for the protection of land in their area.

4.5 Coast protection measures are to protect the land against erosion and encroachment by the sea (Defra).

4.6 The Environment Agency is an operating authority responsible for sea defences and works on main rivers which has permissive powers ie it cannot be compelled to use them.

4.7 If a complaint is made to the Secretary of State that a Coast Protection Authority has failed to take sufficient measures for the protection of any land in its area or he is of the opinion that an investigation should be made into the need for any such measures. He may cause a local enquiry to be held into the matter.

4.8 In November 1998 Bullen Consultants commissioned by CBC produced ‘St Bees Head to Ernse Point, Isle of Walney Shoreline Management Plan Volume 1 – Core Report.

In the Plan the coastline is split into management units. Management unit 7 from Eskmeals Dunes to Selker Point covers the section Stubb Place to ‘Eskmeals Gun Range’.

4.9 Item 3.5.7 of the SMP which deals with Management Unit 7 Eskmeals Dunes to Selker Point states ‘The Strategic Coastal Defences Policy should reduce the risk of flooding and coastal erosion to acceptable levels thereby: protect human life, property and allay undue anxiety arising from such risks’.

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4.10 On 27 February 2002 in a letter to Capita Senior Roads Engineer, the Head of Contracts and Project Management CBC stated “As you can see the preferred status coastal defence option for this length of coastline is to let nature take its course”.

Further in the same letter he also states “It is my understanding that in meetings with the then CBC Flood and Coastal Defence Engineer it is the view of Copeland Borough Council that the County Council is responsible for the protection of the Public Highway”.

4.11 No evidence has yet been produced to support this opinion.

4.12 In May 2002 Bullen Consultants were commissioned by Copeland Borough Council to investigate coastal erosion at Eskmeals, the impact of any proposed schemes and assess up to two suitable costed schemes compared with a ‘do nothing option’. The report entitled ‘Bootle Erosion Study’ which was jointly funded by DEFRA, CBC and CCC was produced in January 2003 and provided the following options:-

Do nothing £ 60,000.00

Rock Armour £726,000.00

Concrete Sea Wall £533,500.00

Relocate highway short route £335,880.00

Relocate highway long route £588,000.00

These costs are 2002 costs and should be increased by about 10% per annum compounded to arrive at a figure for 2009 costs.

4.13 The MoD establishment, known locally as ‘The Gun Range’ was set up in 1894 initially to test a percentage of shells produced by the armaments industry.

The establishment is new contracted out to Qinetiq and its duties have diversified into testing and research.

It currently employs 84 staff compared with the 102 employed in 2002.

4.14 Following severe storms in 2002 during which the road was blocked by tide borne debris (see photo), the MoD expressed concerns about the viability of the Gun Range should the road be washed away.

4.15 Following closure of its rail link to the main line c 1996 by MoD on ‘cost grounds’ its only vehicular link is now via the unclassified road through Bootle to the A595.

4.16 As a result of these concerns a report was presented to Committee by the Area Engineer on 14 April 2003, (See Appendix A0). As recommended in the report a scheme for the relocation of the road was included in the ‘Priority Transport Improvement Scheme List’. The scheme has not yet achieved a sufficiently high rating on the PTIS list to attract funding.

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4.17 In the autumn of 2006 MoD and Qinetic contacted Head of Highways demanding that CCC protect the highway at Marshside against coastal erosion. He instructed the Area Engineer to investigate.

4.18 The Area Engineer produced a brief to Capita Symonds to investigate and cost a number of options. Due to lack of funds this brief was shelved.

4.19 As the County Council was instructed at this time to clear out the old granite kerbs which had over the years been stored for use in regeneration projects but had never been used, the Area Engineer suggested that these kerbs, about 200-300 tonnes be dumped on the shore at Eskmeals as rock armour or broken up and used as fill for gabions, as a stop gap measure to allow for a road relocation scheme to be designed and constructed.

4.20 Neither of these proposals was acceptable to CBC.

4.21 Following further discussions between MoD and Head of Highways a site meeting was held on 22 September 2008 between CBC Coastal Defence and Drainage Engineer, the Area Engineer, Service Manager and Senior Engineer from Cumbria Highways. Two options were discussed for the protection of the highway:-

Option 1 was an interlocking sheet pile wall 1 to 2m form the edge of the highway.

Option 2 was rock armour on the foreshore as close to the highway as possible.

Capita Symonds has been instructed to provide costs for completing the scheme in one operation and also in 50m sections.

4.22 The preferred option was the sheet piling which being in the roadside waste was solely for the protection of the highway and would under Section 17 of the Coast Protection Act not require the consent of the Coast Protection Authority.

4.23 It was envisaged that if the work was done in sections over a period of years it could be funded from the de-ringfenced de-trunked maintenance budget.

5.0 OPTIONS

5.1 The Committee can agree to recommendations 3.1 to 3.9

5.2 The Committee can reject all or any of the recommendations.

5.3 The Committee could decide to use its powers under Section 62 or Section 102 and take measures to protect the highway against coastal erosion using either sheet piling or rock armour. Either method could be done as a single operation or in short lengths say 50m over a period of years until the work is completed. See item 4.21 and below.

5.4 The Committee can agree the sheet piling scheme in one operation and petition Cabinet for funding – costs are likely to be in the region of £400,000 to £500,000.

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5.5 The Committee can adopt the rock armour option in sections or as a single operation with funding arrangements as suggested in 3.1, 3.7 and 4.23. Should this option be adopted it would be classed as coastal defence works and would need the agreement of the Coastal Protection Authority, Lake District National Park Authority, and the various environmental protection and wildlife authorities.

5.6 The Committee can agree to relocate the road inland based on Option 2 the long option, Appendix A8 at an estimated cost of £1,000,000, and petition Cabinet for funding. A purchase of land would be required.

While this option would obviate the need to consider protecting the road from the sea for the next 50 years or more it would eventually remove the present highway ‘buffer’ protecting Marshside Cottages and Stubb Place.

5.7 The Committee can agree to relocate the road on Option 1 the short route, Appendix A8. This would be on the seaward side of the properties and so would still offer protection from the sea. It would however be susceptible to coastal erosion along its full length in a few years.

Approx cost £600,000. There would be increased maintenance costs due to its proximity to the sea and the risk of inundation. Land would also need to be acquired.

5.8 The Committee could ‘do nothing’ and ‘let nature take its course’. This would lead to erosion of the road by the sea requiring continual repairs which would need to be funded from an already inadequate revenue budget.

6.0 RESOURCE AND VALUE FOR MONEY IMPLICATIONS

6.1 As the Highway Authority (CCC) does not have a duty to protect the road from coastal erosion and as according to Defra the cost of protecting the existing road would be significantly greater than the present value of the economic losses under the “do nothing” option, it would seem that, should the County Council decide to carry out coast protection works to protect the short section of highway (approx 200 metres) as its own expense, it would not be getting value for money.

6.2 Money spent by Cumbria County Council on protection of the road at Eskmeals could be spent elsewhere in Copeland or Cumbria where it would generate a much higher “value for money”.

6.3 Should the Committee decide to construct a coastal protection works at Eskmeals it would incur annual maintenance costs which could be quite high. This would reduce the budget available for maintenance on other roads for which the County Council does have a duty of repair.

6.4 The financial implications could be reduced if bids for partner funding were to be successful.

6.5 Defra have stated that the cost of protecting the existing road would be significantly greater than the present value of economic losses under the do nothing option. This would not meet Defra’s threshold criteria for funding

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7.0 LEGAL IMPLICATIONS

7.1 Advice from Legal Services is that:-

7.2 The duty to maintain the highways under the Highways Act 1980 is extinguished if the land on which the highway is founded disappears due to some dangerous act of nature such as erosion. This is the same whether the erosion occurs gradually or by one or more catastrophic events.

7.3 Powers and duties to take steps to devise schemes and supervise programmes etc., to prevent sea erosion lie primarily with other statutory bodies such as the Environment Agency and maritime District Councils.

7.4 The public highway only comprises the surface” top two spits “and though there are powers and duties in the Highways Act 1980 regarding the repair of the highway, this duty becomes extinguished if the land on which the highway was founded disappeared due to some dangerous action of nature such as erosion. A submission that there is no duty at law to protect the highway against erosion was accepted in a High Court Judge’s findings in a case in 2000 (Gloucester County Council v Ramblers Association and the Secretary of State).

7.5 The Committee can do protective works if it so decides, for example, under a power contained in section 102 of the Highways Act (see below). This would be a “one off” exercise and would not commit the Authority to similar further action. In the 2000 case, it was accepted that it was not unreasonable for the highway authority to fail to exercise that power.

7.6 The construction of an alternative inland road would require dedication/acquisition of new land for the highway and also an application for permission to take Greenfield land for the purpose.

7.7 It is lawful and open to the Local Committee to elect for the “do nothing option” on the basis that it has no duty to act opposite natural erosion.

7.8 Section 41 of the Highways Act 1980 imposes a duty on a Highway Authority to maintain a highway maintainable at public expense. It does not impose a duty to protect the subsoil of a highway from coastal erosion.

7.9 Under Section 62 of the 1980 Act , a Highway Authority has a range of general powers of improvement of the highway (but not any duty), including a power to “provide barriers or other works for the purpose of affording to a highway protection against hazards”

7.10 Section 102 of the Highways Act 1980 gives a specific power (but not any duty) to provide barriers or other works to protect a highway against the hazards of nature. ( BD )

8.0 CONCLUSION

8.1 If as the Coastal Protection Authority have decided “nature is allowed to take its course and nothing is done to protect the adopted highway at Marshside, it will in the course of time be washed away.

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8.2 Coastal erosion between Eskmeals Dunes and Selker Point has been determined as being 1-2m per annum. At its closest point the coastline has been eroded to within 2m of the seaward edge of the carriageway.

8.3 Cumbria County Council has powers under the Highways Act 1980 to protect the road.

8.4 As explained above the Highway Authority has no duty to protect a road against coastal erosion.

8.5 Since it closed the rail link the unclassified road is the only means of vehicular access to Eskmeals Gun Range and is therefore essential to the operation of this establishment.

8.6 The MoD could reopen the railway line which it closed about 15 years ago and thus have a second means of access.

8.7 A scheme for the relocation of the adopted road exists in the Priority Transport Scheme List.

8.8 Should the Copeland Local Committee decide to use its powers under the 1980 Highways Act to undertake protection works or remedial works it would incur considerable costs.

John Dell Area Engineer Copeland 19 January 2009 APPENDICES Appendix A0 Committee Report 14 April 2003 & Record of Executive

Decision A1 Photograph View from south A2 Photograph Night time delivery A3 Photograph View from south A4 Photograph showing extent of erosion A5 Photograph view from south A6 Executive Summary Bootle Erosion Study A7 Analysis of Condition etc Bootle Erosion Study A8 Extract from Drawing A9 Location Plan A10 Letter from Head of Highways A11 letter from Area Engineer A12 Fax from Copeland Borough Council A13 Notes of meeting 10 January 2000 A14 Meeting notes 9 May 2002 IMPLICATIONS Electoral Division(s): Seascale & Whicham

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Executive Decision Yes

Key Decision No

If a Key Decision, is the proposal published in the current Forward Plan? N/A

Is the decision exempt from call-in on grounds of urgency? Yes

No If exempt from call-in, has the agreement of the Chair of the relevant Overview and Scrutiny Committee been sought or obtained?

No Has this matter been considered by Overview and Scrutiny?

If so, give details below.

No Has an environmental or sustainability impact assessment been undertaken?

No Has an equality impact assessment been undertaken?

N.B. If an executive decision is made, then a decision cannot be implemented until the

expiry of the eighth working day after the date of the meeting – unless the decision is urgent and exempt from call-in and the Head of Member Services and Scrutiny has obtained the necessary approvals.

PREVIOUS RELEVANT COUNCIL OR EXECUTIVE DECISIONS [including Local Committees] Copeland Local committee 14 April 2003 and Committee Decision See Appendix A0 Copeland Local Committee 19 December 2008 CONSIDERATION BY OVERVIEW AND SCRUTINY If a matter has been considered by Overview and Scrutiny, this section should give details of meeting dates and any Scrutiny recommendations. If not, state “Not considered by Overview and Scrutiny”. BACKGROUND PAPERS St Bees to Earnse Point Isle of Walney Shoreline Management Plan Vol 1 1998 Bootle Erosion Study June 2003 Bullen Consultants Coast Protection Act 1949 Committee Report Copeland Local Committee 14 April 2003 Committee Report Copeland Local Committee 19 December 2008 Various Correspondence 2000 to 2008 Contact: John Dell, (01946) 852504, [email protected]

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mailto:[email protected]

Appendix A0 Committee Report 14 April 2003 & Record of Executive Decision

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A1 Photograph View from south

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A2 Photograph Night time delivery

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A3 Photograph View from south

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A4 Photograph showing extent of erosion

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A5 Photograph view from south

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A6 Executive Summary Bootle Erosion Study

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A7 Analysis of Condition etc Bootle Erosion Study

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A8 Extract from Drawing

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A9 Location Plan

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A10 Letter from Head of Highways

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A11 letter from Area Engineer

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A12 Fax from Copeland Borough Council

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A13 Notes of meeting 10 January 2000

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A14 Meeting notes 9 May 2002

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meeting date: 6 february 2009 from: corporate director ...councilportal.cumbria.gov.uk/data/county...

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