Around 75% of Allerdale and Copeland (the area at risk from a geological disposal facility (GDF) is found within the Lake District National Park (LDNP).
LDNP is the UK’s most legally protected landscape due to a combination of planning law (given its National Park status) and environmental protection (because of the plethora of protected designations, including European Special Areas of Conservation and Sites of Special Scientific Interest) and also National Trust ownership, see below.
Planning and environmental protection will, in practice, make it impossible to consider any part of the LDNP as a repository site (above or below ground) without exhausting a national search for all alternative sites.
Even the Nirex process in the 80s and 90s (which involved a national search but ultimately, irrationally, chose a site near Sellafield) had excluded, at an early stage, all National Parks and environmentally sensitive sites.
Such exclusion was the one aspect of Nirex’s site selection process which was endorsed by the Inspector in the Nirex judgment!
Why? Well, given the legal protection afforded to these sites, it is not just morally and ethically reprehensible but also plain stupid to consider them. Moreover, choosing any area for a geological disposal facility (GDF) in LDNP would undoubtedly provoke national and international outcry and, possibly, civil disobedience.
It should also be borne in mind that 25% of the National Park is owned by the National Trust, whose property is inalienable, i.e. it cannot be compulsorily acquired. The National Trust owns the site at Ennerdale Fell containing the Ennerdale Granite, which was mentioned as a potentially suitable rock volume in Managing Radioactive Waste Safely (“MRWS”) “Mark 1”.
If any process is started again in West Cumbria by either Copeland or Allerdale local authorities (and it should not be for MANY other reasons), then we believe it legally incumbent on them to exclude from the process the LDNP, the Solway Area of Outstanding Natural Beauty and all other environmentally sensitive areas, such as SACs, SPAs, Ramsars and SSSIs.
And, if this is not possible, then the process simply cannot proceed at all for this reason alone.
The Background Law
The purposes of National Park designation (which were laid down in the National
Parks and Access to the Countryside Act 1949 and amended by the Environment
Act 1995) are to:
• Conserve and enhance the natural beauty, wildlife and cultural heritage (of the National Parks); and
• Promote opportunities for the understanding and enjoyment of the special qualities (of the National Parks) by the public.
In pursuing their statutory purposes, National Park Authorities have a duty to seek to foster the economic and social well-being of local communities.
We note that tourism in Cumbria (thriving, no doubt, because of the National Park) generates around £2.2bn per annum and directly employs 57.000 people.
Section 62 of the Environment Act 1995 (which is now found in section 11(A) of the National Parks and Access to the Countryside Act 1949) also requires all relevant authorities and public bodies, such as DECC, the NDA and district and county councils, to take National Park purposes into account when they make decisions or carry out activities which might affect a National Park (“the Duty”).
In 2012, the Chairman of the LDNP Authority wrote to DECC drawing attention to the statutory purposes of the National Park.
We believe that the decisions of Allerdale and Copeland to vote to proceed to Stage 4 of MRWS breached and contravened Section 11(A) and were thus probably unlawful, as the Duty was not discharged.
Exactly the same considerations obtain with regard to the Solway Area of Outstanding Natural Beauty (AONB), the relevant legislation here being Section 85 of the Countryside and Rights of Way Act 2000.
(i) Exhaustion of alternative sites
Even the “official” MRWS report stated:
“If there is any intent to impinge on the National Park, above or below ground, then the Lake District National Park Authority would, amongst other things, require consideration of alternative sites to be exhausted in order to satisfy planning policies and legislative frameworks.”
This reflects the planning law in that any attempt to site a GDF under the LDNP, or so close to it as to affect it, would currently fail from a planning-law perspective given that there are suitable alternative sites outside of the National Park/Cumbria which have not been properly investigated (let alone exhausted) and which are not in National Parks.
We know that there are vast areas of suitable geology in England which are not in a National Park or other environmentally sensitive regions and which meet the international guidelines for a repository.
(ii) Surface facilities
The official MRWS report also stated:
“Our formal consultation in PSE3 has reaffirmed that the public (local residents, parish councils and others both in and outside the Park) hold the Lake District National Park in the highest regard. We appreciate the Lake District National Park Authority’s view that surface facilities could not be successfully located within the National Park without resulting in significant harm to the special qualities of the National Park.”
Unless this position changes (even if one disregarded (i) above entirely), it will be impossible to proceed even to a testing phase if the geology being tested is located under the LDNP.
This is because, on any common sense interpretation (and certainly according to evidence such as the Entec report commissioned by the NDA), such testing would inevitably, undeniably and inextricably involve prohibited “surface facilities” being constructed within the National Park if a proposed repository site were to be placed underneath it.
Such surface facilities would include, amongst other things, access roads, drilling rigs, boreholes to a depth of around a kilometre, vast numbers of shallow holes for the seismic survey, spoil mounds and other surface infrastructure connected with large scale industrial drilling. All of these activities and facilities would be necessary to obtain a sufficiently detailed understanding of the sub-surface.
The necessary involvement of surface facilities of some sort, even if they were just access facilities, air shafts and the like, would also preclude constructing any site under the LDNP.
In short, the LDNP is a “no go” area for GDF purposes, and to pretend otherwise would be delusional.