Smith CF (Charlie)

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Ben

Smith CF (Charlie)12 June 20061219Ben LeyshonDavidMudiehighlandgovuk Steve NorthRE Ardersier Development HROs

I have had no approach from Whiteness

I think it would be useful to put matters in the wider context of the purposes for which an HRO can bemade Also as I am sure I mentioned when we spoke previously the onus is very much on the harbourauthority to take its own legal advice to determine whether an HRO is required It could be that there isexisting legislation in place relating to Ardisier that precludes the need for an HRO

In relation to the provisions of section 14 of the Harbours Act 1964 an HRO must be for the purpose ofsecuring the improvement maintenance and management ofthe harbour in an efficient and economicalmanner or facilitating the efficient and economic transport of goods and passengers by sea and for achievingany or all of the objects specified in Schedule 2 of the 1964 Act

The above is by way of a preamble to saying that an HRO must be related to the operational purposes of theharbour I think lawyers would take the view that it would be outwith the scope of the legislation to seek topromote an HRO where the primary or sole purpose is marine environment management

That said if an approach to the Executive for an HRO is made presumably on the basis of seekingauthorisation for proposed works as you know as part of the application process we would consult withSNH and the other environmental bodies seeking their views on whether there are issues to be addressed Ifan ES had not already been produced the Executive could instruct the applicant to produce one or if the ESis considered to be deficient instruct the applicant to produce any additional information required

In answer to your question provisions relating to environmental matters could if there is no other practicalmeans of achieving this be written in to an HRO However I would emphasis that this is not normalpractice and we do not see an HRO as a mechanism for detailed marine environment management Ourexperience has been that a written agreement between the harbour authority and the environmental bodywhich sets out the issues to be addressed and method of management has met requirements and workedwell The Executive would view such an agreement as binding on the harbour authority and as a statutorybody the harbour authority would be expected to comply

Charlie

-----Original Message-----From Ben Leyshon [maiItoBenLeyshonsnhgovuk]Sent 08 June 2006 1304To Smith CF (Charlie)Cc DavidMudiehighlandgovuk Steve NorthSubject Ardersier Development HROs

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Dear Charlie

You may remember that we spoke at the beginning of May about a possible HRO application for WhitenessHead You will recall that I mentioned that the proposed development (which includes a 500 berth marina)was going through the planning process but that the applicant (Whiteness Property Company Ltd) would beapproaching your department soon to apply for a HRO Further details ofthe proposal can be seen athttpwwwabdnacuklzoologylighthouseteachingwhitenessshtmlThis link also provides a copy ofSNHs response to the original outline planning application which describes our main areas of concern

I am writing to you in this instance to clarify if a HRO would be able to address the range of concerns thatSNH have raised in relation to the Moray Firth Special Area of Conservation (bottlenose dolphins) andEuropean Protected Species (bottlenose dolphins and harbour porpoise) interests We are particularly keento explore how far a HRO and subsequent HO might go as a regulatory mechanism to ensure that thedevelopment will not adversely effect these species

For example would it be possible to include the following measures as part of a HRO (or to a managementplan linked to a HRO)

1 The need to develop a marine chart identifying areas where boats mayormay not go and how vessels might behave in these areas

2 The need for the Harbour Authority to employ a marine ranger to monitorcompliance with the chart and an agreed code of conduct

3 The need for the results of monitoring to inform and affect subsequentmanagement of marina users

4 The need to restrict access by small craft to sensitive shorelinesimmediately adjacent to the development site

5 The need to implement monitor review and adhere to best practice asfar as the marina is concerned (ie as defined in SEPAs PPG 14 Marinas and Craft)

I appreciate that you have not had any significant involvement with this case to date but any advice you canoffer in relation to the above questions and an indication as to whether or not a HRO could in theory coverthese issues would be most appreciated

Please feel free to call if you would like to discuss this further before responding

Ben

Ben LeyshonArea Officer InvernessScottish Natural HeritageFodderty WayDingwall Business ParkDingwallIV15 9XBTel 01349 865333Fax 01349 865609e-mail benleyshonsnhgovuk

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wwwsnhorguk

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Smith CF (Charlie)

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Fiona

Smith CF (Charlie)13 October 20061051Fiona Rice Mallon D (David)Ben leyshon Sandy Maclennan Davidlawsnhgovuk Steve NorthRE Harbour Revision Orders and Natura - ArdersierlWhiteness Head Marinadevelopment

Before too many people read too much into my email exchange with Ben Leyshon back in June I think itmight be useful at this stage just to reiterate some of the points I made and to expand on one particularaspect

The Executive has had no approach from the sponsors of the project or anyone acting on their behalfseeking to apply for a Harbour Revision Order (HRO) It is for the sponsors of the project to take their ownlegal advice to determine which consents and authorities are required It may be that there is local harbourlegislation in place that would preclude the need for an HRO (I assume that where you say The applicationhas not yet been determined that this is a reference to a planning application)

An application for a HRO under section 14 of the Harbours Act 1964 must be for the purpose of securingthe improvement maintenance and management of a harbour in an efficient and economical manner Orfacilitating the efficient and economic transport of goods and passengers by sea and for achieving any or allof the objects specified in Schedule 2 of the 1964 Act In other words an HRO must be directly related tothe operational activities of the harbour In this case in the absence of any approach from the sponsors Iassume that if an HRO is required it would be to convey the legal power to undertake marine workspresumably related to the proposed marina and anciIIary works

The purpose of an HRO is not to provide a mechanism for detailed marine environment management albeitthere is scope to include in an HRO if one is required provisions relating to environmental matters I wouldemphasise that the provisions including any environmental related provisions or conditions set out in anyapplication for an HRO would have to be compliant with the terms of the 1964 Act We would take OSSE(lawyers) advice on what would be compliant Also the terms of any HRO would only apply within the areaof jurisdiction of the harbour authority

The above is by way of sounding a cautionary note that it would be wrong to assume that an HRO would bea means of addressing all of the environmental issues in relation to the proposed development set out theemail exchanges of the past couple of days It would be advisable to pursue the extend to which planningconsent if required for the development could provide a means dealing with environmental concerns andto look to any other consent or regulatory mechanisms available

Charlie

-----Original Message-----From Fiona Rice [mailtoFionaRicesnhgovuk]Sent 11 October 2006 1223To Mallon D (David)Cc Smith CF (Charlie) Ben Leyshon Sandy MacLennan Steve NorthSubject Harbour Revision Orders and Natura - ArdersierWhiteness Head Marina development

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David (cc Charlie Sandy and BenSteve)The proposed development at ArdersierWhiteness Head for amongst other things a 500 berth marina hasraised a number of issues regarding impacts from the proposal on adjacent Natura sites from a proceduralperspective but also in terms of the practicality of the proposed mitigation (Charlie for information as Iknow Ben has been in discussion with you on this) I would welcome your thoughts on the queries detailedbelow

I suspect you may already be familiar with this case but in case not and in brief the proposal is for theredevelopment of the former fabrication yard at Ardersier into a mixed retail residential and leisurecomplex including a marina and boat yard The application has not yet been determined SNH has anumber of outstanding concerns to the proposal as it lies within or immediately adjacent to the Moray FirthSAC and the Inner Moray Firth SPA and it has not yet been determined that the proposal will not adverselyaffect the qualifying interests of these sites One of these key concerns relates to the disturbance to thedolphin interest ofthe SAC by boats and other marine craft and the application of Article 63Regulation 48

However there may be an opportunity to avoid adverse impact on the Moray Firth SAC interests iedolphins if robust enough mitigation which is enforceable is put in place The regulatory mechanisms forthis seem to rest within the Harbour Revision Order While it is not normal to place conditions on an Orderthere is the opportunity to address any environmental concerns through a written agreement between theHarbour Authority and the environmental body which sets out the issues to be addressed and the method ofmanagement I understand that the Executive would view such an agreement as binding on the harbourauthority and as a statutory body the harbour authority would be expected to comply I am not awarehowever whether it would be possible to address any breaches of theterms of such an agreement or if it is enforceable Assuming that the terms ofsuch an agreement will ensure the development will not adversely affect the integrity of the Natura site isthis a robust enough regulatory mechanism to comply with the Natura RegulationsHabitats Directive

The terms of such an agreement will need to be extremely sound to ensure no adverse impacts on thedolphins and would include

1 The need to develop a marine chart identifying areas where boats mayor may not go and how vesselsmight behave in these areas

2 The need for the Harbour Authority (Whiteness Marina Property Company Ltd) to employ a marineranger to monitor compliance with the chart and an agreed code of conduct

3 The need for the results of monitoring to inform and affect subsequent management of marina users

4 The need to restrict access by small craft to ensure that they avoid sensitive shorelines immediatelyadjacent to the development site

5 The need to implement monitor review and adhere to best practice as far as the marina is concerned (ieas defined in SEPAs PPG 14 Marinas and Craft)

It has not yet been estabhshed whether the Harbour Revision Order will be able to host a written agreementwhich will have to cover an extensive area to meet these concerns and I understand this is being consideredby The Highland Council Id be grateful for your thoughts as to whether you consider that thesemechanisms will provide the degree of certainty necessary to comply with the Natura RegulationsHabitatsDirective

Please give me a call if any of the above requires clarification and I look forward to your thoughts on theabove Many thanks

Fiona Rice

2

Fiona RicePlanning AdviserGreat Glen HouseLeachkin RoadInvernessIV3 8NW

Tel 01463 725207

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Mallon D (David)

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Fiona RicePlanning AdviserGreat Glen HouseLeachkin RoadInvernessIV3 8NW

Tel 01463 725207

This email and any files transmitted with it are confidential and intended solely for the use of the individualor entity to whom they are addressed If you have received this email in error please notifY the systemmanager or the sender

Please note that for business purposes outgoing and incoming emails from and to SNH may be monitoredbut are not recorded

This footnote also confirms that this email message has been swept by MIMEsweeper for the presence ofcomputer viruses

PLEASE NOTE THE ABOVE MESSAGE WAS RECEIVED FROM THE INTERNET On entering theGSI this email was scanned for viruses by the Government Secure Intranet (GSi) virus scanning servicesupplied exclusively by Cable amp Wireless in partnership with MessageLabs In case of problems please callyour organisational IT Helpdesk The MessageLabs Anti Virus Service is the first managed service toachieve the CSIA Claims Tested Mark (CCTM Certificate Number 2006040007) the UK Governmentquality mark initiative for information security products and services For more information about thisplease visit wwwcctmarkgovuk

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Fiona Rice

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Smith CF (Charlie)

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Whiteness

Ben Leyshon [BenLeyshonsnhgovuk]09 November 2006 1141Smith CF (Charlie)David Law Fiona Rice George Hogg Tim DawsonFwd Whiteness

This email has been received from an external party andhas been swept for the presence of computer virusesDear Charlie

Following our telephone conversation yesterday I would be grateful if you could consider the attached letterfrom Stewart Fulton of the Whiteness Property Company Limited In particular could you

) 1 look at the section relating to the Harbour Revision Order and confirmthat what is being proposed is in principle consistent with your understanding about what a HRO canachieve I appreciate that you have not seen the detail of the case and so any comments you make will bemade with this caveat

2 comment on the fact that Jo Durkan() and his team are involved inadvising on the drawing up of the HRO and the fact that this provides re-assurance that the job will be welldone

An e-mailedresponsewouldbemuchappreciatedbyfirstthingon131106 so that we can respond to TheHighland Council on the outline planning application within their deadline

Thanks for your assistance on this matter and please call if you wish to discuss

Ben

Ben LeyshonA Officer InvernessScoltish Natural HeritageFodderty WayDingwall Business ParkDingwallIV159XBTel 01349 865333Fax 01349865609e-mail ben1eyshonsnhgovukwwwsnhorguk

This email and any files transmitted with it are confidential and intended solely for the use of the individualor entity to whom they are addressed If you have received this email in error please notify the systemmanager or the sender

1

Please note that for business purposes outgoing and incoming emails from and to SNH may be monitoredbut are not recorded

This footnote also confirms that this email message has been swept by MIMEsweeper for the presence ofcomputer viruses

PLEASE NOTE THE ABOVE MESSAGE WAS RECEIVED FROM THE INTERNET On entering theGSI this email was scanned for viruses by the Government Secure Intranet (GSi) virus scanning servicesupplied exclusively by Cable amp Wireless in partnership with MessageLabs In case of problems please callyour organisational IT Helpdesk The MessageLabs Anti Virus Service is the first managed service toachieve the CSIA Claims Tested Mark (CCTM Certificate Number 2006040007) the UK Governmentquality mark initiative for information security products and services For more information about thisplease visit wwwcctmarkgovuk

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2

9 November 2006

Ben LeyshonScottish Natural HeritageFodderty WayDingwallROSS-SHIREIV159XB

Dear Ben

WHITENESS

Following what we thought was a very helpful meeting on Tuesday I promised towrite to you listing the main components ofthe package of measures we propose toput in place to ensure the integrity of the Moray Firth SAC is not adversely affectedby development at Whiteness

The following describes the nature rather than the fine detail of each of the pieces ofthe jigsaw and how they fit together to provide a comprehensive mechanism forregulating marine activity both in the waters that will be under the jurisdiction of theWhiteness Harbour Authority and further afield

Throughout I suggest how best we feel the measures proposed can be enshrined inrobust and legally enforceable agreements that will stand the test of time and cannotbe set aside or altered without unanimity of purpose amongst the signatories

Whiteness Marina Harbour Revision OrderThe purpose of the Whiteness Marina Harbour Revision Order is to replace theexisting McDermotts Harbour Order which provides for an industrial harbour tailoredto North Sea oil activity and is not transferable

The Whiteness Property Company will shortly lodge its draft Harbour Revision Orderwith Scottish Ministers which if approved will overtake the current Harbour Orderand replace it with a new Harbour Order tailored to cater for pleasure and leisurecraft

The Order is a statutory instrument and its provisions include powers enabling theHarbour Authority to make Bye-laws and Directions for the purpose of navigationsafety and the protection of the environment

As you know the 1994 Habitats Regulations are meant to be read in conjunction withthe Harbours Act however for the avoidance of all doubt we have gone beyond thatand explicitly included protection of the marine environment in the wording of ourDraft Order

The powers available to the Harbour Authority can be exercised both within thedefined Harbour area which as you know is significant and for certain purposes inthe approaches thereto

As we understand it the Order cannot prescribe how the Harbour Authority shoulduse its powers but as it will be under our control a public declaration of how itintends to use its powers for the furtherance ofthe objectives of the SAC would be aformality as would signing a Section 75 Agreement supporting a package ofappropriate measures related to the Harbour area

As promised I have taken legal advice which confirms that the Whiteness PropertyMarina Company in which the Harbour Authority powers will be vested will be awholly owned subsidiary ofthe Whiteness Property Company and will be able toenter into binding agreements which anticipate its becoming the Harbour Authoritysubject to the normal proviso that nothing in the agreements impinges on its ability todischarge its statutory duties

Marina Mooring LeasesAll boat owners using the Whiteness Marina will be required to sign a MooringLease setting out the terms and conditions of the contract and the codes of behaviourthat are required of them These will clearly set out what is and is not acceptable andany breach of the rules will result in a fine in the first instance and forfeiture of themooring for major or repeated offences

This is the real cutting edge of the sanctions available to the Company and we aremore than happy to discuss the detailed lease terms with SNH and to sign anagreement ensuring that the licences will remain central to the level of control that theCompany means to exert to protect the SAC interests Importantly the leasingconditions will apply throughout the Firth and not just to the Harbour area

Sea RangerFundamental to the success of the leasing arrangements will be the appointment of aSea Ranger to patrol the Firth covering both the Whiteness water and further afieldIn addition to the duties of surveillance and monitoring the Ranger will introduce allnew lease signatories to the importance of the Moray Firth SAC to underline the needfor the rules that have to be followed

The appointment of the Sea Ranger and the provision of a suitable vessel will be theresponsibility of the Whiteness Property Company and its successors in title who willbe free to defray costs through sponsorship and grants if applicable

Marine Advisory ChartA key part of the overall package will be the production of a new style of MarineChart for the area carrying information covering the Harbour Authority Bye-laws andDirections the Mooring Lease conditions and instructions advice on preferred sailingareas avoiding cetacean activity prudence in relation to the MOD Danger Area noteson the Dolphin Space Programme and so on

This will be prepared in collaboration with SNH and a variety of other partiesincluding we hope the Inverness Harbour Trust and the Cromarty Firth PortsAuthority

Apart from being instructive and operationally effective we believe that the newChart will send an important and purposeful message to the outside world that theMoray Firth is a place where environmentally-friendly sailing is the order of the dayand that the protection of its internationally recognnised natural heritage resources is agoal shared by all interests

The Company belief in the value of the Chart is absolute and it will be happy to signan agreement that sees it bearing the cost of bringing it to life in practice

Research Monitoring FeedbackAnd ResponseWe have agreed since the outset that research and monitoring on a number of frontsmust be part of the package and are willing to playa full part in helping to design andfund appropriate programmes

That commitment and its natural concomitant being agreements for the results to beassayed and the lessons learned used to revise management practices are key parts ofthe jigsaw and again we will be content to sign an agreement setting out what isexpected of us in these theatres of operation

Likewise on the specific issue of boat numbers we would be content to see provisionfor incremental growth at a rate consistent with the results of research andmonitoring enshrined in a written agreement

Section 75 AgreementsIt is our opinion that in the main the safest way of ensuring that these proposedarrangements are legal and durable is to proceed by way of a Section 75 Agreementwhose signatories could include the Whiteness Property Company the WhitenessProperty Marina Company The Highland Council and SNH and we would becontent to go down that route

As part of that exercise we would be willing to invite our planning advisor to helpprepare an earlydraft Section 75 Agreement reflecting the interests of all parties fordiscussion if that would be helpful

Finally whilst I have tried to capture the essence of our discussion by all means letme know if there is anything you think I have overlooked or could usefully amplifyto help us forward

Kindest regards

Stewart Fulton

Cc David Mudie Alex Stewart

Smith CF (Charlie)

FromSentToCcSubject

Ben

Smith CF (Charlie)10 November 20061410Ben LeyshonDavid Law Fiona Rice George Hogg Tim DawsonRE Whiteness

The letter from Stewart Fulton attached to your email clearly indicates a positive approach by the WhitenessProperty Company and seeks to provide comprehensive assurance that environmental interests and concernsare recognised and will be addressed The terms of the letter indicate that provision will be made to includeprotection of the marine environment in the proposed Harbour Revision Order (HRO) and in principle this isfine however as you are aware I cannot offer any definitive comment until I have seen a draft The extentto which an HRO is an appropriate mechanism to address specific environmental concerns can only bedetermined once the draft Order is available and we would take OSSE (lawyers) advice on this I also notethat the company is prepared to enter into various agreements with SNH and other interests to provide thebinding agreements sought and again this is a positive approach and should be pursued

I have recently been contacted by Joe Durkin ofRees amp Freres Parliamentary Agents informing me that heis acting on behalf of the company and will draft the HRO Joe Durkin has extensive experience of draftingHROs for the Scottish ports sector and the company has engaged the best legal advice available to do thiskind of work

Regards

Charlie

SCOTTISH EXECUTIVE

Enterprise Transport amp Lifelong Learning DepartmentAviation Ports amp International Division

Ben LeyshonArea OfficerScottish Natural HeritageFodderty WayDingwall Business ParkDingwallIV59XB

Dear Ben

Victoria QuayEdinburgh EH6 6QQ

Telephone 0131-244 0845Fax 0131-2440871laquoemailraquocharliescotlandgsigoy ukhttpwwwscotlandgoY uk

Your refOur ref

1 December 2006

PROPOSED WHITENESS MARINA HARBOUR REVISION ORDER

Whiteness Marina Company Ltd has notified its intention to apply to the Scottish Ministers for aHarbour Revision Order under section 14 of the Harbours Act 1964 The purpose of the Order is toauthorise the company to construct and maintain a marina at Whiteness Head Ardersier and toconvey powers to maintain and operate the marina as a statutory harbour authority and to define thelimits of jurisdiction of the marina I enclose a copy of the draft Order and related plans andsections You will have received a copy of the Environmental Statement from Rees amp Freresparliamentary agents acting on behalf of the applicant

Where Scottish Ministers are notified of a proposed application they are required in terms ofparagraph 4 of Schedule 3 to the 1964 Act to decide whether the application relates to a projectwhich falls within Annex 1 or Annex 11 to Council Directive 85337EEC on the assessment ofcertain public and private projects on the environment as amended by by Council Directive9711EC Having determined that the characteristics of the proposed project fall within Annex 11and that an environmental assessment is required I should be grateful for any comments on theEnvironn1ental Statement and draft Order

To avoid delay in the processing of this application a reply to this letter by Wednesday 10 Januaryould be much appreciated I am also consulting with the Scottish Environmental Protection

Agency the Royal Society for the Protection of Birds and the local planning authority

Yours sincerely

C F SMITH

INVESTOR IN PEOPLE

The powers available to the Harbour Authority can be exercised both within thedefined Harbour area which as you know is significant and for certain purposes inthe approaches thereto

As we understand it the Order cannot prescribe how the Harbour Authority shoulduse its powers but as it will be under our control a public declaration of how itintends to use its powers for the furtherance ofthe objectives of the SAC would be aformality as would signing a Section 75 Agreement supporting a package ofappropriate measures related to the Harbour area

As promised I have taken legal advice which confirms that the Whiteness PropertyMarina Company in which the Harbour Authority powers will be vested will be awholly owned subsidiary ofthe Whiteness Property Company and will be able toenter into binding agreements which anticipate its becoming the Harbour Authoritysubject to the normal proviso that nothing in the agreements impinges on its ability todischarge its statutory duties

Marina Mooring LeasesAll boat owners using the Whiteness Marina will be required to sign a MooringLease setting out the terms and conditions of the contract and the codes of behaviourthat are required of them These will clearly set out what is and is not acceptable andany breach of the rules will result in a fine in the first instance and forfeiture of themooring for major or repeated offences

This is the real cutting edge of the sanctions available to the Company and we aremore than happy to discuss the detailed lease terms with SNH and to sign anagreement ensuring that the licences will remain central to the level of control that theCompany means to exert to protect the SAC interests Importantly the leasingconditions will apply throughout the Firth and not just to the Harbour area

Sea RangerFundamental to the success of the leasing arrangements will be the appointment of aSea Ranger to patrol the Firth covering both the Whiteness water and further afieldIn addition to the duties of surveillance and monitoring the Ranger will introduce allnew lease signatories to the importance of the Moray Firth SAC to underline the needfor the rules that have to be followed

The appointment of the Sea Ranger and the provision of a suitable vessel will be theresponsibility of the Whiteness Property Company and its successors in title who willbe free to defray costs through sponsorship and grants if applicable

Marine Advisory ChartA key part of the overall package will be the production of a new style of MarineChart for the area carrying information covering the Harbour Authority Bye-laws andDirections the Mooring Lease conditions and instructions advice on preferred sailingareas avoiding cetacean activity prudence in relation to the MOD Danger Area noteson the Dolphin Space Programme and so on

This will be prepared in collaboration with SNH and a variety of other partiesincluding we hope the Inverness Harbour Trust and the Cromarty Firth PortsAuthority

Apart from being instructive and operationally effective we believe that the newChart will send an important and purposeful message to the outside world that theMoray Firth is a place where environmentally-friendly sailing is the order of the dayand that the protection of its internationally recognnised natural heritage resources is agoal shared by all interests

The Company belief in the value of the Chart is absolute and it will be happy to signan agreement that sees it bearing the cost of bringing it to life in practice

Research Monitoring FeedbackAnd ResponseWe have agreed since the outset that research and monitoring on a number of frontsmust be part of the package and are willing to playa full part in helping to design andfund appropriate programmes

That commitment and its natural concomitant being agreements for the results to beassayed and the lessons learned used to revise management practices are key parts ofthe jigsaw and again we will be content to sign an agreement setting out what isexpected of us in these theatres of operation

Likewise on the specific issue of boat numbers we would be content to see provisionfor incremental growth at a rate consistent with the results of research andmonitoring enshrined in a written agreement

Section 75 AgreementsIt is our opinion that in the main the safest way of ensuring that these proposedarrangements are legal and durable is to proceed by way of a Section 75 Agreementwhose signatories could include the Whiteness Property Company the WhitenessProperty Marina Company The Highland Council and SNH and we would becontent to go down that route

As part of that exercise we would be willing to invite our planning advisor to helpprepare an earlydraft Section 75 Agreement reflecting the interests of all parties fordiscussion if that would be helpful

Finally whilst I have tried to capture the essence of our discussion by all means letme know if there is anything you think I have overlooked or could usefully amplifyto help us forward

Kindest regards

Stewart Fulton

Cc David Mudie Alex Stewart

Smith CF (Charlie)

FromSentToCcSubject

Ben

Smith CF (Charlie)10 November 20061410Ben LeyshonDavid Law Fiona Rice George Hogg Tim DawsonRE Whiteness

The letter from Stewart Fulton attached to your email clearly indicates a positive approach by the WhitenessProperty Company and seeks to provide comprehensive assurance that environmental interests and concernsare recognised and will be addressed The terms of the letter indicate that provision will be made to includeprotection of the marine environment in the proposed Harbour Revision Order (HRO) and in principle this isfine however as you are aware I cannot offer any definitive comment until I have seen a draft The extentto which an HRO is an appropriate mechanism to address specific environmental concerns can only bedetermined once the draft Order is available and we would take OSSE (lawyers) advice on this I also notethat the company is prepared to enter into various agreements with SNH and other interests to provide thebinding agreements sought and again this is a positive approach and should be pursued

I have recently been contacted by Joe Durkin ofRees amp Freres Parliamentary Agents informing me that heis acting on behalf of the company and will draft the HRO Joe Durkin has extensive experience of draftingHROs for the Scottish ports sector and the company has engaged the best legal advice available to do thiskind of work

Regards

Charlie

SCOTTISH EXECUTIVE

Enterprise Transport amp Lifelong Learning DepartmentAviation Ports amp International Division

Ben LeyshonArea OfficerScottish Natural HeritageFodderty WayDingwall Business ParkDingwallIV59XB

Dear Ben

Victoria QuayEdinburgh EH6 6QQ

Telephone 0131-244 0845Fax 0131-2440871laquoemailraquocharliescotlandgsigoy ukhttpwwwscotlandgoY uk

Your refOur ref

1 December 2006

PROPOSED WHITENESS MARINA HARBOUR REVISION ORDER

Whiteness Marina Company Ltd has notified its intention to apply to the Scottish Ministers for aHarbour Revision Order under section 14 of the Harbours Act 1964 The purpose of the Order is toauthorise the company to construct and maintain a marina at Whiteness Head Ardersier and toconvey powers to maintain and operate the marina as a statutory harbour authority and to define thelimits of jurisdiction of the marina I enclose a copy of the draft Order and related plans andsections You will have received a copy of the Environmental Statement from Rees amp Freresparliamentary agents acting on behalf of the applicant

Where Scottish Ministers are notified of a proposed application they are required in terms ofparagraph 4 of Schedule 3 to the 1964 Act to decide whether the application relates to a projectwhich falls within Annex 1 or Annex 11 to Council Directive 85337EEC on the assessment ofcertain public and private projects on the environment as amended by by Council Directive9711EC Having determined that the characteristics of the proposed project fall within Annex 11and that an environmental assessment is required I should be grateful for any comments on theEnvironn1ental Statement and draft Order

To avoid delay in the processing of this application a reply to this letter by Wednesday 10 Januaryould be much appreciated I am also consulting with the Scottish Environmental Protection

Agency the Royal Society for the Protection of Birds and the local planning authority

Yours sincerely

C F SMITH

INVESTOR IN PEOPLE

This will be prepared in collaboration with SNH and a variety of other partiesincluding we hope the Inverness Harbour Trust and the Cromarty Firth PortsAuthority

Apart from being instructive and operationally effective we believe that the newChart will send an important and purposeful message to the outside world that theMoray Firth is a place where environmentally-friendly sailing is the order of the dayand that the protection of its internationally recognnised natural heritage resources is agoal shared by all interests

The Company belief in the value of the Chart is absolute and it will be happy to signan agreement that sees it bearing the cost of bringing it to life in practice

Research Monitoring FeedbackAnd ResponseWe have agreed since the outset that research and monitoring on a number of frontsmust be part of the package and are willing to playa full part in helping to design andfund appropriate programmes

That commitment and its natural concomitant being agreements for the results to beassayed and the lessons learned used to revise management practices are key parts ofthe jigsaw and again we will be content to sign an agreement setting out what isexpected of us in these theatres of operation

Likewise on the specific issue of boat numbers we would be content to see provisionfor incremental growth at a rate consistent with the results of research andmonitoring enshrined in a written agreement

Section 75 AgreementsIt is our opinion that in the main the safest way of ensuring that these proposedarrangements are legal and durable is to proceed by way of a Section 75 Agreementwhose signatories could include the Whiteness Property Company the WhitenessProperty Marina Company The Highland Council and SNH and we would becontent to go down that route

As part of that exercise we would be willing to invite our planning advisor to helpprepare an earlydraft Section 75 Agreement reflecting the interests of all parties fordiscussion if that would be helpful

Finally whilst I have tried to capture the essence of our discussion by all means letme know if there is anything you think I have overlooked or could usefully amplifyto help us forward

Kindest regards

Stewart Fulton

Cc David Mudie Alex Stewart

Smith CF (Charlie)

FromSentToCcSubject

Ben

Smith CF (Charlie)10 November 20061410Ben LeyshonDavid Law Fiona Rice George Hogg Tim DawsonRE Whiteness

The letter from Stewart Fulton attached to your email clearly indicates a positive approach by the WhitenessProperty Company and seeks to provide comprehensive assurance that environmental interests and concernsare recognised and will be addressed The terms of the letter indicate that provision will be made to includeprotection of the marine environment in the proposed Harbour Revision Order (HRO) and in principle this isfine however as you are aware I cannot offer any definitive comment until I have seen a draft The extentto which an HRO is an appropriate mechanism to address specific environmental concerns can only bedetermined once the draft Order is available and we would take OSSE (lawyers) advice on this I also notethat the company is prepared to enter into various agreements with SNH and other interests to provide thebinding agreements sought and again this is a positive approach and should be pursued

I have recently been contacted by Joe Durkin ofRees amp Freres Parliamentary Agents informing me that heis acting on behalf of the company and will draft the HRO Joe Durkin has extensive experience of draftingHROs for the Scottish ports sector and the company has engaged the best legal advice available to do thiskind of work

Regards

Charlie

SCOTTISH EXECUTIVE

Enterprise Transport amp Lifelong Learning DepartmentAviation Ports amp International Division

Ben LeyshonArea OfficerScottish Natural HeritageFodderty WayDingwall Business ParkDingwallIV59XB

Dear Ben

Victoria QuayEdinburgh EH6 6QQ

Telephone 0131-244 0845Fax 0131-2440871laquoemailraquocharliescotlandgsigoy ukhttpwwwscotlandgoY uk

Your refOur ref

1 December 2006

PROPOSED WHITENESS MARINA HARBOUR REVISION ORDER

Whiteness Marina Company Ltd has notified its intention to apply to the Scottish Ministers for aHarbour Revision Order under section 14 of the Harbours Act 1964 The purpose of the Order is toauthorise the company to construct and maintain a marina at Whiteness Head Ardersier and toconvey powers to maintain and operate the marina as a statutory harbour authority and to define thelimits of jurisdiction of the marina I enclose a copy of the draft Order and related plans andsections You will have received a copy of the Environmental Statement from Rees amp Freresparliamentary agents acting on behalf of the applicant

Where Scottish Ministers are notified of a proposed application they are required in terms ofparagraph 4 of Schedule 3 to the 1964 Act to decide whether the application relates to a projectwhich falls within Annex 1 or Annex 11 to Council Directive 85337EEC on the assessment ofcertain public and private projects on the environment as amended by by Council Directive9711EC Having determined that the characteristics of the proposed project fall within Annex 11and that an environmental assessment is required I should be grateful for any comments on theEnvironn1ental Statement and draft Order

To avoid delay in the processing of this application a reply to this letter by Wednesday 10 Januaryould be much appreciated I am also consulting with the Scottish Environmental Protection

Agency the Royal Society for the Protection of Birds and the local planning authority

Yours sincerely

C F SMITH

INVESTOR IN PEOPLE

Smith CF (Charlie)

FromSentToCcSubject

Ben

Smith CF (Charlie)10 November 20061410Ben LeyshonDavid Law Fiona Rice George Hogg Tim DawsonRE Whiteness

The letter from Stewart Fulton attached to your email clearly indicates a positive approach by the WhitenessProperty Company and seeks to provide comprehensive assurance that environmental interests and concernsare recognised and will be addressed The terms of the letter indicate that provision will be made to includeprotection of the marine environment in the proposed Harbour Revision Order (HRO) and in principle this isfine however as you are aware I cannot offer any definitive comment until I have seen a draft The extentto which an HRO is an appropriate mechanism to address specific environmental concerns can only bedetermined once the draft Order is available and we would take OSSE (lawyers) advice on this I also notethat the company is prepared to enter into various agreements with SNH and other interests to provide thebinding agreements sought and again this is a positive approach and should be pursued

I have recently been contacted by Joe Durkin ofRees amp Freres Parliamentary Agents informing me that heis acting on behalf of the company and will draft the HRO Joe Durkin has extensive experience of draftingHROs for the Scottish ports sector and the company has engaged the best legal advice available to do thiskind of work

Regards

Charlie

SCOTTISH EXECUTIVE

Enterprise Transport amp Lifelong Learning DepartmentAviation Ports amp International Division

Ben LeyshonArea OfficerScottish Natural HeritageFodderty WayDingwall Business ParkDingwallIV59XB

Dear Ben

Victoria QuayEdinburgh EH6 6QQ

Telephone 0131-244 0845Fax 0131-2440871laquoemailraquocharliescotlandgsigoy ukhttpwwwscotlandgoY uk

Your refOur ref

1 December 2006

PROPOSED WHITENESS MARINA HARBOUR REVISION ORDER

Whiteness Marina Company Ltd has notified its intention to apply to the Scottish Ministers for aHarbour Revision Order under section 14 of the Harbours Act 1964 The purpose of the Order is toauthorise the company to construct and maintain a marina at Whiteness Head Ardersier and toconvey powers to maintain and operate the marina as a statutory harbour authority and to define thelimits of jurisdiction of the marina I enclose a copy of the draft Order and related plans andsections You will have received a copy of the Environmental Statement from Rees amp Freresparliamentary agents acting on behalf of the applicant

Where Scottish Ministers are notified of a proposed application they are required in terms ofparagraph 4 of Schedule 3 to the 1964 Act to decide whether the application relates to a projectwhich falls within Annex 1 or Annex 11 to Council Directive 85337EEC on the assessment ofcertain public and private projects on the environment as amended by by Council Directive9711EC Having determined that the characteristics of the proposed project fall within Annex 11and that an environmental assessment is required I should be grateful for any comments on theEnvironn1ental Statement and draft Order

To avoid delay in the processing of this application a reply to this letter by Wednesday 10 Januaryould be much appreciated I am also consulting with the Scottish Environmental Protection

Agency the Royal Society for the Protection of Birds and the local planning authority

Yours sincerely

C F SMITH

INVESTOR IN PEOPLE

SCOTTISH EXECUTIVE

Enterprise Transport amp Lifelong Learning DepartmentAviation Ports amp International Division

Ben LeyshonArea OfficerScottish Natural HeritageFodderty WayDingwall Business ParkDingwallIV59XB

Dear Ben

Victoria QuayEdinburgh EH6 6QQ

Telephone 0131-244 0845Fax 0131-2440871laquoemailraquocharliescotlandgsigoy ukhttpwwwscotlandgoY uk

Your refOur ref

1 December 2006

PROPOSED WHITENESS MARINA HARBOUR REVISION ORDER

Whiteness Marina Company Ltd has notified its intention to apply to the Scottish Ministers for aHarbour Revision Order under section 14 of the Harbours Act 1964 The purpose of the Order is toauthorise the company to construct and maintain a marina at Whiteness Head Ardersier and toconvey powers to maintain and operate the marina as a statutory harbour authority and to define thelimits of jurisdiction of the marina I enclose a copy of the draft Order and related plans andsections You will have received a copy of the Environmental Statement from Rees amp Freresparliamentary agents acting on behalf of the applicant

Where Scottish Ministers are notified of a proposed application they are required in terms ofparagraph 4 of Schedule 3 to the 1964 Act to decide whether the application relates to a projectwhich falls within Annex 1 or Annex 11 to Council Directive 85337EEC on the assessment ofcertain public and private projects on the environment as amended by by Council Directive9711EC Having determined that the characteristics of the proposed project fall within Annex 11and that an environmental assessment is required I should be grateful for any comments on theEnvironn1ental Statement and draft Order

To avoid delay in the processing of this application a reply to this letter by Wednesday 10 Januaryould be much appreciated I am also consulting with the Scottish Environmental Protection

Agency the Royal Society for the Protection of Birds and the local planning authority

Yours sincerely

C F SMITH

INVESTOR IN PEOPLE

SCOTTISH EXECUTIVE

Enterprise Transport amp Lifelong Learning DepartmentAviation Ports amp International Division

David MudieThe Highland CouncilPlanning amp Development DepartmentGlenurquhart RoadInvernessIV3 5NX

Dear Mr Mudie

Victoria QuayEdinburgh EH6 6QQ

Telephone 0131-244 0845fax 0131-2440871laquoemailbullbullcharliescotlandgsigov ukhttpwww scotlandgovuk

Your refOur ref

1 December 2006

PROPOSED WIDTENESS MARINA HARBOUR REVISION ORDER

Whiteness Marina Company Ltd has notified its intention to apply to the Scottish Ministers for aHarbour Revision Order under section 14 of the Harbours Act 1964 The purpose of the Order is toauthorise the company to construct and maintain a marina at Whiteness Head Ardersier and toconvey powers to maintain and operate the marina as a statutory harbour authority and to define thelimits of jurisdiction of the marina I enclose a copy of the draft Order and related plans andsections You will have received a copy of the Environmental Statement from Rees amp Freresparliamentary agents acting on behalf of the applicant

Where Scottish Ministers are notified of a proposed application they are required in terms ofparagraph 4 of Schedule 3 to the 1964 Act to decide whether the application relates to a projectwhich falls within Annex I or Annex 11 to Council Directive 85337EEC on the assessment ofcertain public and private projects on the environment as amended by by Council Directive9711EC Having determined that the characteristics of the proposed project fall within Annex 11and that an environmental assessment is required I should be grateful for any comments on theEnvironmental Statement

To avoid delay in the processing of the application a reply to this letter by Wednesday 10 Januaryauld be much appreciated I am also consulting with Scottish Natural Heritage the Scottish

Environmental Protection Agency and the Royal Society for the Protection of Birds

Yours sincerely

C F SMITH

INVESTOR IN PEOPLE

Willis D (Derek)

FromSentToSubject

~I~

planspdf (263KB)

Ben

Willis D (Derek)11 January 2007 1738Ben LeyshonRE WHITENESS MARINA HRO

I enclose a copy of what I think are the relevant plans and apologise for not passing them on sooner Mostof the points you have raised are ones that we need legal advice on and I am awaiting the information Illget back to you ASAP and appreciate that you are constrained in providing a final response until then

Derek

-----Original Message-----From Ben Leyshon [mailtoBenLeyshonsnhgovuk]Sent 11 January 2007 1714To Willis D (Derek)Subject RE WHITENESS MARINA HRO

This email has been received from an external party andhas been swept for the presence of computer virusesDear Derek

Many thanks for your e-mail and I look forward to receiving the further information requested in due courseI am conscious though that it will now be difficult to meet the extended deadline of 17107 as we haventyet received the additional information and the relevant staff dealing with this response will not be availablein the time that remains Ideally we would need at least one week from receipt of the information tosubmitting the final response so would it be possible to set a new deadline once the information comesthrough

Best wishes

Ben

raquogt ltDerekWillisscotlandgsigovukgt 28122006 100436 raquogtBen

Ill be back in touch on these points in due course Content to extend the deadline to the suggested date

DEREK WILLISScottish Executive - Transport GroupAviation Ports and International DivisionPorts and Harbours BranchArea 2-G (N) Victoria Quay

1

Edinburgh EH6 6QQTel 0131 2447878Fax 0131 2440871Email derekwillisscotlandgsigov uk

-----Original Message-----From Ben Leyshon [mailtoBenLeyshonsnhgovuk]Sent 27 December 2006 1646To Smith CF (Charlie) Willis D (Derek) Walker M (Marlene)Subject WHITENESS MARINA HRO

This email has been received from an external party andhas been swept for the presence of computer virusesDear MarleneDerek

I sent Charlie Smith the e-mail below and received the following message I am out of the office untilMonday 5 February In my absence contact either Marlene Walker (Ext 47488) or Derek Willis (Ext47878) (

Are you able to assist in Charlies absence

Ben

Dear Charlie

Many thanks for sending through a copy of the proposed Whiteness Marina HRO I have been going throughthe paperwork today and have a number of questions - see below Please could you have a look at thevarious points and provide clarification

1 Part 1 article 2 Interpretation

Marina and marina limits are referred to and further definition is provided in article 17 Article 17 refersto a map of the marina limits on sheet 5 of the deposited plans Although the co-ordinates in article 17define the area it would nonetheless be helpful to see the area mapped and sheet 5 was not attached to thecopy of the HRO that we received Please could you send one through

Following on from point 1 above we are not clear what the limits of deviation are Again article 2 refers tothe limits being shown on the deposited plans but these were not attached to the copy of the HRO that wereceived Please could you send through a copy of the plans showing the deviation limits

2 Part 1 article 4 Power to construct works

The works described in this article (work numbers 1 and 2) have the potential to disturb species of Europeanimportance and as such they should be carried out in accordance with mitigation measures to avoid adverseimpacts Some of these measures are described in the report entitled An assessment of the potential impactof construction of the proposed Whiteness marina on populations of bottlenose dolphins and harbour

2

porpoises in the Moray Firth that was submitted as part of the HRO application Our understanding is thatthe detail of these works and the mitigation measures to avoid adverse impacts will be addressed separatelythrough the Food and Environment Protection Act 1985 Please could you confirm that this is the case

3 Part 1 article 6 Subsidiary works

This paragraph is currently quite vague and it may include activities that are damaging to features ofEuropean importance Following on from point 2 above could you confirm that the Food and EnvironmentProtection Act 1985 will cover the subsidiary works referred to

4 Part 1 article 7 Power to dredge

Following on from points 2 and 3 above we presume that the powers to dredge would fall under the Foodand Environment Protection Act 1985 and that applications to deposit material under this legislation will berequired prior to any disposal operations commencing Please could you confirm that this is the case

(You may be interested to know that as part of our response to the outline planning application for this casewe objected to the potential impact of the development on the spit landform unless the applicant submits adetailed dredging plan for agreement by The Highland Council in consultation with SNH)

6 Part 2 article 17 Limits of marina

See comments under point I above

7 Part 2 article 21 Confirmation of byelaws

Are you able to advise if the Harbour Authority will be able to put byelaws and general directions in placeprior to the first mooring being taken up Our concern is that there may be representations to a byelaw beingproposed to safeguard the conservation of the fauna avifauna and flora in the marina (see article 20 (2)(s)) and that such a byelaw may be subsequently refused to the detriment of the special natural heritagefeatures present

8 Part 2 article 22 General directions to vessels

We are pleased to see that the wording or for the conservation of fauna avifauna and flora has beeninserted here Could you confirm whether it is intended that the Special directions to vessels mentioned inarticle 24 would also be made for the conservation of fauna avifauna and flora

9 Part 3 article 32 Disapplication of Regulation 60 of theConservation(Natural habitats ampc) Regulations 1994

I am currently seeking further guidance on this aspect ftom our planning advisor but it is our understandingthat no works consented by the HRO are exempt from the 1994 Habitats Regulations In respect of thosedevelopments that are regulated by the planning system the HRO may contain the provision that anyapproved works do not have to be subject to prior approval of the planning authority However suchdevelopments would need to have been clearly prescribed and identified and any which are likely to have asignificant effect on the European interests would need to be subject to appropriate assessmentdemonstrating no adverse effect We would be interested in the Scottish Executives view on the wording ofarticle 32

I am now out of the office until 8 January 2007 and as there are a number of questions to be answered Iwondered if it might be possible to have an extension to the deadline for SNHs response Would it bepossible to extend the deadline by one week (ie to 17 January 2007) in order to assimilate any feedback youprovide and prepare our formal response

3

I look forward to hearing from you in due course

Best wishes

BenCc Stewart Fulton - Whiteness Property Company Limited

Ben LeyshonArea Officer InvernessScottish Natural HeritageFodderty WayDingwall Business ParkDingwallIV159XBTel 01349865333Fax 01349865609e-mail benleyshonsnhgovukwwwsnhorguk

This email and any files transmitted with it are confidential and intended solely for the use of the individualor entity to whom they are addressed If you have received this email in error please notify the systemmanager or the sender

Please note that for business purposes outgoing and incoming emails from and to SNH may be monitoredbut are not recorded

This footnote also confirms that this email message has been swept by MIMEsweeper for the presence ofcomputer viruses

PLEASE NOTE THE ABOVE MESSAGE WAS RECEIVED FROM THE INTERNET On entering theGSI this email was scanned for viruses by the Government Secure Intranet (GSi) virus scanning servicesupplied exclusively by Cable amp Wireless in partnership with MessageLabs In case of problems please callyour organisational IT Helpdesk The MessageLabs Anti Virus Service is the first managed service toachieve the CSIA Claims Tested Mark (CCTM Certificate Number 2006040007) the UK Governmentquality mark initiative for information security products and services For more information about thisplease visit wwwcctmarkgovuk

4

(

I look forward to hearing from you in due course

Best wishes

BenCc Stewart Fulton - Whiteness Property Company Limited

Ben LeyshonArea Officer InvernessScottish Natural HeritageFodderty WayDingwall Business ParkDingwallIV159XBTel 01349865333Fax 01349865609e-mail benleyshonsnhgovukwwwsnhorguk

This email and any files transmitted with it are confidential and intended solely for the use of the individualor entity to whom they are addressed If you have received this email in error please notify the systemmanager or the sender

Please note that for business purposes outgoing and incoming emails from and to SNH may be monitoredbut are not recorded

This footnote also confirms that this email message has been swept by MIMEsweeper for the presence ofcomputer viruses

PLEASE NOTE THE ABOVE MESSAGE WAS RECEIVED FROM THE INTERNET On entering theGSI this email was scanned for viruses by the Government Secure Intranet (GSi) virus scanning servicesupplied exclusively by Cable amp Wireless in partnership with MessageLabs In case of problems please callyour organisational IT Helpdesk The MessageLabs Anti Virus Service is the first managed service toachieve the CSIA Claims Tested Mark (CCTM Certificate Number 2006040007) the UK Governmentquality mark initiative for information security products and services For more information about thisplease visit wwwcctmarkgovuk

4

(

This e-mail (and any files or other attachments transmitted with it) is intended solely for the attention of theaddressee(s) Unauthorised use disclosure storage copying or distribution of any part of this e-mail is notpermitted If you are not the intended recipient please destroy the email remove any copies from yoursystem and inform the sender immediately by return

Communications with the Scottish Executive may be monitored or recorded in order to secure the effectiveoperation of the system and for other lawful purposes The views or opinions contained within this e-mailmay not necessarily reflect those of the Scottish Executive

The original of this email Was scanned for viruses by Government Secure Intranet (GSi) virus scanningservice supplied exclusively by Cable amp Wireless in partnership with MessageLabs On leaving the GSI thisemail was certified virus free The MessageLabs Anti Virus Service is the first managed service to achievethe CSIA Claims Tested Mark (CCTM Certificate Number 2006040007) the UK Government qualitymark initiative for information security products and services For more information about this please visitwwwcctmarkgovuk

PLEASE NOTE THE ABOVE MESSAGE WAS RECEIVED FROM THE INTERNET On entering theGSI this email was scanned for viruses by the Government Secure Intranet (GSi) virus scanning servicesupplied exclusively by Cable amp Wireless in partnership with MessageLabs In case of problems please callyour organisational IT Helpdesk The MessageLabs Anti Virus Service is the first managed service toachieve the CSIA Claims Tested Mark (CCTM Certificate Number 2006040007) the UK Governmentquality mark initiative for information security products and services For more information about thisplease visit wwwcctmarkgovuk

5

The 0HighlandWCouncilComhairle naGaidheaItachd

l -~pound--

7-t I

pvSERVING The Highland CommunUy

Mr Charlie SmithEnterprise Transport and Lifelong Learning DepartmentAviation Ports and International DivisionThe Scottish ExecutiveVictoria QuayEdinburghEH66QQ

Dear Mr Smith

e-mail

Direct dial

Our Ref

Your Ref

Date

davidlIludiehigh1andgovuk

(01463) 702255

050 12940UTIN DMCC

16 January 2007

PROPOSED WHITENESS MARINA HARBOUR REVISION ORDER

Thank you for your letter dated 01 December 2006 in which you request comment on the EnvironmentalStatement submitted in support of the above I apologise for the delay in getting a response to you I can offerthe following advice

The Environmental Statement submitted in support of the HRO application appears to be identical to thatsubmitted in support of the application for planning permission for the residentialleisure development atWhiteness This included a new marina

Following a period of public consultation my recommendation on the planning application to the PlanningDevelopment Europe and Tourism Committee on 28 November 2006 was that it be granted subject toconditions The Committee agreed with this recommendation As the development is a departure trom thedevelopment plan it must be submitted to the Scottish Ministers for them to decide whether to call theapplication in for determination or to leave it with the Council for determination It is my intention to do thiswithin the next few weeks

I have no specific comments to make on the content of the Environmental Statement However for yourinformation I can confIrm that discussion between the Council the applicant and Scottish Natural Heritage(SNH) has led the Council to conclude that a strict marina management scheme and land access managementplan along the lines identified within the ES is required to protect the Natura interests within and adjacent tothe site It is proposed that this be secured through a legal agreement attached to the grant of plarmingpermlsslOn

I trust that this response has been of some use to you Should you have any further queries please do nothesitate to contact me further

Yours sincerely

DAVID MUDIETeam Leader - Development Control

Director of Planning amp Development John D Rennilson MA MSc MRTPI MRICS MCMI GIenurquhart Road Inverness IV3 5NXTel (01463) 702250 Fax (01463) 702298

Smith CF (Charlie)

FromSentToCcSubject

Ben Leyshon [BenLeyshonsnhgovuk]21 March 20071020Willis D (Derek)Smith CF (Charlie)Whiteness Property Company Limited - HRO consultation

External - SE -

Copy of the plbull This email has been received from an external party andhas been swept for the presence of computer virusesDear Derek

Any update on this following my e-mail below

Ben

Dear Derek

Following ourearlier e-mail correspondence on the above I wonder if you could let me when the furtherinformation we requested is likely to come in

I am conscious that SNH has not responded to the HRO consultation and we are not in a position to do sountil the additional information is provided

Many thanks

Ben

Ben LeyshonArea Officer InvernessScottish Natural HeritageFodderty WayDingwall Business ParkDingwallIV159XBTel 01349865333Fax 01349865609e-mail benIeyshonsnhgov ukwwwsnhorguk

This email and any files transmitted with it are confidential and intended solely for the use of the individualor entity to whom they are addressed If you have received this email in error please notifY the systemmanager or the sender

Please note that for business purposes outgoing and incoming emails from and to SNH may be monitoredbut are not recorded

1

This footnote also confirms that this email message has been swept by MIMEsweeper for the presence ofcomputer viruses

This message has been scanned for viruses by BlackSpider MailControl- wwwblackspidercom

PLEASE NOTE THE ABOVE MESSAGE WAS RECEIVED FROM THE INTERNET On entering theGSI this email was scanned for viruses by the Government Secure Intranet (GSi) virus scanning servicesupplied exclusively by Cable amp Wireless in partnership with MessageLabs In case of problems please callyour organisational IT Helpdesk The MessageLabs Anti Virus Service is the first managed service toachieve the CSIA Claims Tested Mark (CCTM Certificate Number 2006040007) the UK Governmentquality mark initiative for information security products and services For more information about thisplease visit wwwcctmarkgovuk

2

SCOTTISH EXECUTIVE

Enterprise Transport and Lifelong Learning DepartmentAviation Ports and International Division

Ben LeyshonArea OfficerScottish Natural HeritageFodderty WayDingwall Business ParkDingwallIV150XB

Dear Ben

Victoria QuayEdinburgh EH6 6QQ

Telephone 0131 -2440845Fax 0131-2440871laquoemailraquoharliesmithscotlandgsigovukhttpwwwscotIandgovuk

Your refOur ref

21 March 2007

PROPOSED WHITENESS MARINA HARBOUR REVISION ORDER

My apologies that other pressures have prevented me from responding sooner to your emails aboutthe above draft Order

In looking again at the terms of my letter of 1 December I note that I have inadvertently asked forcomments on the draft Order The fundamental purpose of my letter was to seek the views of SNHon the information provided in the Environmental Statement and consequently whether anyadditional information is required or other issues need to be addressed The normal process is thatpoints of detail on the drafting of the Order can be picked up after the formal application is made

That said on the points you raise numbered 1 and 2 I understand that Joe Durkin of Rees amp Frereshas sent you copies of the relevant plans and sections

On points 3 and 4 our understanding is that these matters will be addressed through the terms of theFood and Environmental Protection Act 1985

There appears to be no question numbered 5 and 6 refers back to 1

On question 7 I am not in a position to provide a definitive answer As you know once the formalapplication reaches the public notice stage there will be the opportunity for interested parties toobject or make representations If objections are received that cannot subsequently be resolved apublic inquiry to consider such issues is almost inevitable The intention of course is that the Orderwill address as far at it properly can under the terms of the Harbours Act 1964 matters of concernrelating to the conservation of the fauna avifauna and flora in the marina

In relation to question 8 if SNH consider that there are aspects here that need to be addressed interms of the Environmental Statement the extent that this may need to feed through into the terms ofthe Order will be picked up at the formal application stage

On question 9 again the extent to which the concerns of SNH need to be reflected in the terms of thedraft Order can be dealt with when the formal application is received

I should be grateful for SNH comments on the terms of the Environmental Statement

Yours sincerely

C F SMITH

ISO[4UotpIV ~~INVESTOR IN PEOPLE

Smith CF (Charlie)

FromSentToCc

Subject

Ben Leyshon [BenLeyshonsnhgovuk]27 March 2007 1838Smith CF (Charlie)DavidMudiehighlandgovuk stuartbennrspborguk David Law Fergus MacNeillFiona Rice George Hogg Steve North Tim Dawson stewartwhitenesscoukWHITENESS MARINA HRO

SE - letter to Letter of 31 Letter of 16 Feb Letter of 15Charlie Smith - Jctober 2007doc 20062doc (1 ovember 20062d

This email has been received from an external party andhas been swept for the presence of computer virusesDear Charlie

Following our telephone conversation reothe above on 23 March and your letter of21 March I am nowpleased to attached SNHs response to the draft HRO (see SE- Letter to Charlie Smith ) Other relevant letters are also attached A hard copy of the letter will be withyour shortly

SNH looks forward to being formally consulted on the HRO in due course If in the meantime you have anyquestions on tbe attachments then please do not hesitate to call

Ben

Ben LeyshonArea Officer InvernessScottish Natural HeritageFodderty WayDingwall Business ParkDingwallIV159XBTel 01349 865333Fax 01349 865609e-mail benleyshonsnhgovukwwwsnhorguk

This email and any files transmitted with it are confidential and intended solely for the use ofthe individualor entity to whom they are addressed If you have received this email in error please notifY the systemmanager or the sender

Please note that for business purposes outgoing and incoming emails from and to SNH may be monitoredbut are not recorded

This footnote also confirms that this email message has been swept by MIMEsweeper for the presence ofcomputer viruses

1

Smith CF (Charlie)

FromSentToCc

Subject

Ben Leyshon [BenLeyshonsnhgovuk]27 March 2007 1838Smith CF (Charlie)DavidMudiehighlandgovuk stuartbennrspborguk David Law Fergus MacNeillFiona Rice George Hogg Steve North Tim Dawson stewartwhitenesscoukWHITENESS MARINA HRO

SE - letter to Letter of 31 Letter of 16 Feb Letter of 15Charlie Smith - Jctober 2007doc 20062doc (1 ovember 20062d

This email has been received from an external party andhas been swept for the presence of computer virusesDear Charlie

Following our telephone conversation reothe above on 23 March and your letter of21 March I am nowpleased to attached SNHs response to the draft HRO (see SE- Letter to Charlie Smith ) Other relevant letters are also attached A hard copy of the letter will be withyour shortly

SNH looks forward to being formally consulted on the HRO in due course If in the meantime you have anyquestions on tbe attachments then please do not hesitate to call

Ben

Ben LeyshonArea Officer InvernessScottish Natural HeritageFodderty WayDingwall Business ParkDingwallIV159XBTel 01349 865333Fax 01349 865609e-mail benleyshonsnhgovukwwwsnhorguk

This email and any files transmitted with it are confidential and intended solely for the use ofthe individualor entity to whom they are addressed If you have received this email in error please notifY the systemmanager or the sender

Please note that for business purposes outgoing and incoming emails from and to SNH may be monitoredbut are not recorded

This footnote also confirms that this email message has been swept by MIMEsweeper for the presence ofcomputer viruses

1

This message has been scanned for viruses by BlackSpider MailControl- wwwblackspidercom

PLEASE NOTE THE ABOVE MESSAGE WAS RECEIVED FROM THE INTERNET On entering theGSI this email was scanned for viruses by the Government Secure Intranet (GSi) virus scanning servicesupplied exclusively by Cable amp Wireless in partnership with MessageLabs In case of problems please callyour organisational IT Helpdesk The MessageLabs Anti Virus Service is the first managed service toachieve the CSIA Claims Tested Mark (CCTM Certificate Number 2006040007) the UK Governmentquality mark iiritiative for information security products and services For more information about thisplease visit wwwcctmarkgovuk

2

Scottish ExecutiveEnterprise Transport and LifelongLearning DepartmentVictoria QuayEdinburghEH66QQ

For the attention of Charlie Smith

Dear Mr Smith

Our ref GNSDCHIIIVABPHRO

27 March 2007

PROPOSED WHITENESS MARINA HARBOUR REVISION ORDER

I am writing with respect to your letter dated 1 December 2006 and your subsequentletter dated 21 March 2007 regarding the proposed Whiteness Marina HarbourRevision Order (HRO) From this correspondence and from a telephone conversationbetween you and I on 23 March 2007 my understanding is that you would like ourcomments on a) the adequacy of the information provided in the EnvironmentalStatement (ES) accompanying the HRO and b) any other issues we wish to raise inrelation to our interests

1 Background

As you know SNH has been in contact with the applicant (Whiteness PropertyCompany Limited) and The Highland Council (THC) about this proposal for the last18 months or so and we have commented in detail on the ES in three letters to THCCopies of these letters are attached and I have highlighted the relevant sections asthey relate to the proposed Whiteness HRO

The letter of 16 February 2006 provides a description of the proposal the naturalheritage interests likely to be affected and a statement of our position at that time

The letter of 31 October 2007 provides a further analysis of the proposal in the lightof supplementary information provided by the applicant It describes our currentposition in relation to the Whiteness Head SSSI and Inner Moray Firth Ramsarshingle interest

The letter of 15 November 2006 provides our latest position in relation to the MorayFirth SAC (bottlenose dolphin) and European Protected Species (bottlenose dolphinand harbour porpoise) interests

1

2 Summary of SNH position

a) SNH considers that the ES (and the supplementary details provided) does givesufficient information in order for us to be able to adequately assess the proposalin relation to the natural heritage interests

b) SNH object to the proposal in relation to impacts from boats using the marina onthe Moray Firth SAC (bottlenose dolphin) and European Protected Species(bottlenose dolphin and harbour porpoise) unless measures are put in place toovercome our concerns The attached letters provide more information regarding

what form these measures might take but it is worth highlighting that we seeprovisions within the HRO (especially the general bylaws and general directions)as being critical to avoid adverse impacts on the integrity of the Moray Firth SACbottlenose dolphin interest and the favourable conservation status of bottlenosedolphin and harbour porpoise

c) SNH object to the proposal in relation to the Inner Moray Firth Ramsar andWhiteness Head SSSI (shingle interests) unless measures are put in place tosafeguard the spit landform from dredging and other works associated with theproposal

3 Other comments

I appreciate that you are not seeking comments from SNH on the wording of the draftHRO per se but I would nonetheless like to re-iterate a number of the comments Imade to you in my e-mail dated 27 December 2006 The key points that have not yetbeen addressed are provided in Annex 1 to this letter It would be helpful if theycould be addressed as far as possible in the re-drafting of the HRO as this will help tostrengthen its ability to meet the requirements of The Conservation (Natural Habitatsampc) Amendment (Scotland) Regulations 2004 If the HRO cannot address thesepoints then alternative mechanisms will need to be found

4 Concluding remarks

I hope that this letter together with the various attachments provide you with theinfqrmation you need to progress the HRO to the next stage

I look forward to hearing from you again as part of the formal consultation on theHRO If in the meantime you have any questions then please do not hesitate tocontact me

Yours sincerely

BEN LEYSHONArea officer -InvernessbenlevshonsnhQouk

2

2 Summary of SNH position

a) SNH considers that the ES (and the supplementary details provided) does givesufficient information in order for us to be able to adequately assess the proposalin relation to the natural heritage interests

b) SNH object to the proposal in relation to impacts from boats using the marina onthe Moray Firth SAC (bottlenose dolphin) and European Protected Species(bottlenose dolphin and harbour porpoise) unless measures are put in place toovercome our concerns The attached letters provide more information regarding

what form these measures might take but it is worth highlighting that we seeprovisions within the HRO (especially the general bylaws and general directions)as being critical to avoid adverse impacts on the integrity of the Moray Firth SACbottlenose dolphin interest and the favourable conservation status of bottlenosedolphin and harbour porpoise

c) SNH object to the proposal in relation to the Inner Moray Firth Ramsar andWhiteness Head SSSI (shingle interests) unless measures are put in place tosafeguard the spit landform from dredging and other works associated with theproposal

3 Other comments

I appreciate that you are not seeking comments from SNH on the wording of the draftHRO per se but I would nonetheless like to re-iterate a number of the comments Imade to you in my e-mail dated 27 December 2006 The key points that have not yetbeen addressed are provided in Annex 1 to this letter It would be helpful if theycould be addressed as far as possible in the re-drafting of the HRO as this will help tostrengthen its ability to meet the requirements of The Conservation (Natural Habitatsampc) Amendment (Scotland) Regulations 2004 If the HRO cannot address thesepoints then alternative mechanisms will need to be found

4 Concluding remarks

I hope that this letter together with the various attachments provide you with theinfqrmation you need to progress the HRO to the next stage

I look forward to hearing from you again as part of the formal consultation on theHRO If in the meantime you have any questions then please do not hesitate tocontact me

Yours sincerely

BEN LEYSHONArea officer -InvernessbenlevshonsnhQouk

2

ANNEX 1

SNHs COMMENTS ON THE DRAFT HARBOUR REVISION ORDER

Part 1 article 4 Power to construct works

The works described in this article (work numbers 1 and 2) have the potential todisturb species of European importance and as such they should be carried out inaccordance with mitigation measures to avoid adverse impacts Somemiddot of thesemeasures are described in the report entitled An assessment of the potential impactof construction of the proposed Whiteness marina on populations of bottlenosedolphins and harbour porpoises in the Moray Firth that was submitted as part of theHRO application In your letter of 21 March 2007 you confirmed that the detail ofthese works and the mitigation measures to avoid adverse impacts will be addressedseparately through the Food and Environment Protection Act 1985

Part 1 article 7 Power to dredge

Contrary to the statement in my e-mail to you dated 27 December 2006 we nowconsider that dredging operations will not in fact be covered by the powers under theFood and Environment Protection Act 1985 It is our understanding that this Actcovers the disposal of rather than the dredging of material Dredging operations inthe channel behind the spit may result in adverse impacts on the shingle featureYou may be interested to know that as part of our response to the outline planningapplication for this case we objected to the potential impact of the development onthe spit landform unless the applicant submits a detailed dredging plan for agreementby The Highland Council in consultation with SNH

Part 2 article 21 Confirmation of byelaws

It would be helpful to get a steer from your legal advisers as to whether the HarbourAuthority will be able to put byelaws and general directions in place prior to the firstmooring being taken up Our concern is that there may be representations to abyelaw being proposed to safeguard the conservation of the fauna avifauna andflora in the marina (see article 20 (2) (sraquo and that such a byelaw may besubsequently refused to the detriment of the special natural heritage featurespresent It would be helpful to get clarification on this aspect prior to the formalconsultation stage

Part 2 article 22 General directions to vessels

We are pleased to see that the wording or for the conservation of fauna avifaunaand flora has been inserted here It would be helpful if you could clarify before theformal HRO consultation whether it is intended that the Special directions tovessels mentioned in article 24 would also be made for the conservation offauna avifauna and flora

3

Part 3 article 32 Disapplication of Regulation 60 of theConservation (Natural habitats ampc) Regulations 1994

It is our understanding that no works consented by the HRO are exempt from the1994 Habitats Regulations In respect of those developments that are regulated bythe planning system the HRO may contain the provision that any approved works donot have to be subject to prior approval of the planning authority However suchdevelopments would need to have been clearly prescribed and identified and anywhich are likely to have a significant effect on the European interests wouldneed to be subject to appropriate assessment demonstrating no adverseeffect We would be interested in the Scottish Executives view on thewording of article 32 prior to the formal HRO consultation

4

The Highland CouncilPlanning amp DevelopmentGlenurquhart RoadINVERNESSIV3 5NX

For the attention of David Mudie

Dear Mr Mudie

Our ref CNSDCHIIIVABPOPPYour ref 05012940UTIN DMCC

31 October 2006

TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997ENVIRONMENTAL IMPACT ASSESSMENT (SCOTLAND) REGULATIONS 1999OUTLINE PLANNING APPLICATION FOR RESIDENTIAL AND LEISUREDEVELOPMENT INCLUDING HOUSING MARINA BOAT YARD VISITORSCENTRE NATURE CONSERVATION ZONES AND HOTEL WITH SUPPORTINGCOMMUNITY FACILITIES AND SEWAGE TREATMENT PLANT AT THE FORMERFABRICATION YARD WHITENESS ARDERSIERMORAY FIRTH SPECIAL AREA OF CONSERVATION (SAC)INNER MORAY FIRTH SPECIAL PROTECTION AREA (SPA)INNER MORAY FIRTH RAMSAR SITE

WHITENESS HEAD SITE OF SPECIAL SCIENTIFIC INTEREST (5551)

Thank you for inviting comments from SNH on the addendum to the EnvironmentalStatement (ES) submitted in support of the above proposal

1 BACKGROUND

SNH responded to the initial outline planning application and accompanying ES on16 February 2006 This letter provided a description of the proposal the naturalheritage interests likely to be affected and a statement of our position at the time

In line with this earlier letter we would like to emphasise our support for largedevelopments such as this one being located on brown field sites We recognise thestatements that the applicant has made regarding safeguarding the environmentalquality of the area and a number of these statements have translated into practicalmeasures - such as good buildinglandscape design and habitat and wildlifeenhancement proposals We also acknowledge the willingness of the applicant toconsider new and innovative mitigation measures to address some of the impactsthat are likely to occur

Although the proposal lies on a brown field site and offers a number of environmentalbenefits it is also important to note that it is immediately adjacent to areas that are ofnational and international importance for their natural heritage interests The previoususe of the site for oil related activity was relatively constrained within the existingdevelopment footprint this proposal differs in that it will result in a very significant

1

increase in the potential for people to access the sensitive designated areasimmediately adjacent to the site It is in this context that SNH has appraised theapplication

2 SNH RESPONSE OF 16 FEBRUARY 2006

In our letter of 16 February 2006 we objected to the proposal for the followingreasons

a) Insufficient information to ascertain that there will be no adverse effect on theintegrity of the Moray Firth SAC and the Inner Moray Firth SPA and Ramsar site

b) The potential effect on European Protected Species namely dolphins andporpoises

c) A likely adverse effect on the saltmarsh shingle and wintering bird interests of theWhiteness Head SSSI

In addition our letter made a number of recommendations to address accessmanagement at the site and to mitigate the impact of the proposal on otter greatcrested newts bats seals local biodiversity action plan species non-natives (LeAustralian swamp stonecrop Crassula helmsii in the lagoon area) and landscapeand visual amenity Our letter of 16 February provided detail on all of these aspectsand therefore this letter does not repeat the earlier comments made We do howeverrecommend that in order to acquire a full understanding of SNHs position this lettershould be read in conjunction with our letter of 16 February 2006

3 SNH CURRENT POSITION

31 SNH objects to the proposed development in relation to the Inner Moray FirthSPA and Ramsar site unless it is made subject to conditions or legal agreementsto ensure that prior to the development commencing

a) a robust and enforceable mechanism is put in place to manage access bypeople to important bird areas at sensitive times of the year

b) mitigation measures to manage disturbance from people and from theconstruction phase of the work are put in place across the developmentfootprint and adjacent designated areas

c) a monitoring scheme to confirm that the mitigation measures are workingeffectively is put in place

32 SNH objects to the proposed development in relation to the Moray Firth SAC -bottlenose dolphin interest on the grounds that a 500-berth marina will have anadverse impact on the integrity of the dolphin population

33 SNH objects to the proposed development in relation to the Moray Firth SAC -sub tidal sandbank interest unless it is made subject to conditions or legalagreements to ensure that prior to the development commencing measures are

put in place to avoid adverse effects on the sandbanks from pollutants arisingfrom the marina

2

34 SNH obiects to the proposed development in relation to European ProtectedSpecies on the grounds that a 500-berth marina will have an adverse impact onthe favourable conservation status of dolphin and porpoise populations

Further details about the nature of our concerns and where relevant the conditionsthat we consider are appropriate to overcome them are given in Annex A (attached tothis letter) It is worth highlighting however that a number of these conditions will bevery difficult to address sufficiently robustly and the applicant will need todemonstrate innovative and creative approaches in order to meet these challenges

Throughout the consultation process we have had ongoing liaison with THC and theapplicant and we would be happy to continue this process and discuss any of thepoints raised in this letter if that would be helpful If in the meantime you need anyfurther information or advice in relation to this proposal then please contact BenLeyshon (benlevshonsnhQovuk) at this office in the first instance I would begrateful if you could let us know of your Councils decision in due course or of anyfurther changes to the proposal that would be relevant to our interests

Finally because this proposal affects the Moray Firth SAC and the Inner Moray FirthSPA and Ramsar site you are respectfully reminded of the requirement to notify theScottish Ministers if your Council is minded to approve planning consent againstSNHs advice in this case

Yours sincerely

GEORGE HOGGArea Manager - East Highlandemail QeorQehoQQsnhQovuk

3

Part 3 article 32 Disapplication of Regulation 60 of theConservation (Natural habitats ampc) Regulations 1994

It is our understanding that no works consented by the HRO are exempt from the1994 Habitats Regulations In respect of those developments that are regulated bythe planning system the HRO may contain the provision that any approved works donot have to be subject to prior approval of the planning authority However suchdevelopments would need to have been clearly prescribed and identified and anywhich are likely to have a significant effect on the European interests wouldneed to be subject to appropriate assessment demonstrating no adverseeffect We would be interested in the Scottish Executives view on thewording of article 32 prior to the formal HRO consultation

4

The Highland CouncilPlanning amp DevelopmentGlenurquhart RoadINVERNESSIV3 5NX

For the attention of David Mudie

Dear Mr Mudie

Our ref CNSDCHIIIVABPOPPYour ref 05012940UTIN DMCC

31 October 2006

TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997ENVIRONMENTAL IMPACT ASSESSMENT (SCOTLAND) REGULATIONS 1999OUTLINE PLANNING APPLICATION FOR RESIDENTIAL AND LEISUREDEVELOPMENT INCLUDING HOUSING MARINA BOAT YARD VISITORSCENTRE NATURE CONSERVATION ZONES AND HOTEL WITH SUPPORTINGCOMMUNITY FACILITIES AND SEWAGE TREATMENT PLANT AT THE FORMERFABRICATION YARD WHITENESS ARDERSIERMORAY FIRTH SPECIAL AREA OF CONSERVATION (SAC)INNER MORAY FIRTH SPECIAL PROTECTION AREA (SPA)INNER MORAY FIRTH RAMSAR SITE

WHITENESS HEAD SITE OF SPECIAL SCIENTIFIC INTEREST (5551)

Thank you for inviting comments from SNH on the addendum to the EnvironmentalStatement (ES) submitted in support of the above proposal

1 BACKGROUND

SNH responded to the initial outline planning application and accompanying ES on16 February 2006 This letter provided a description of the proposal the naturalheritage interests likely to be affected and a statement of our position at the time

In line with this earlier letter we would like to emphasise our support for largedevelopments such as this one being located on brown field sites We recognise thestatements that the applicant has made regarding safeguarding the environmentalquality of the area and a number of these statements have translated into practicalmeasures - such as good buildinglandscape design and habitat and wildlifeenhancement proposals We also acknowledge the willingness of the applicant toconsider new and innovative mitigation measures to address some of the impactsthat are likely to occur

Although the proposal lies on a brown field site and offers a number of environmentalbenefits it is also important to note that it is immediately adjacent to areas that are ofnational and international importance for their natural heritage interests The previoususe of the site for oil related activity was relatively constrained within the existingdevelopment footprint this proposal differs in that it will result in a very significant

1

increase in the potential for people to access the sensitive designated areasimmediately adjacent to the site It is in this context that SNH has appraised theapplication

2 SNH RESPONSE OF 16 FEBRUARY 2006

In our letter of 16 February 2006 we objected to the proposal for the followingreasons

a) Insufficient information to ascertain that there will be no adverse effect on theintegrity of the Moray Firth SAC and the Inner Moray Firth SPA and Ramsar site

b) The potential effect on European Protected Species namely dolphins andporpoises

c) A likely adverse effect on the saltmarsh shingle and wintering bird interests of theWhiteness Head SSSI

In addition our letter made a number of recommendations to address accessmanagement at the site and to mitigate the impact of the proposal on otter greatcrested newts bats seals local biodiversity action plan species non-natives (LeAustralian swamp stonecrop Crassula helmsii in the lagoon area) and landscapeand visual amenity Our letter of 16 February provided detail on all of these aspectsand therefore this letter does not repeat the earlier comments made We do howeverrecommend that in order to acquire a full understanding of SNHs position this lettershould be read in conjunction with our letter of 16 February 2006

3 SNH CURRENT POSITION

31 SNH objects to the proposed development in relation to the Inner Moray FirthSPA and Ramsar site unless it is made subject to conditions or legal agreementsto ensure that prior to the development commencing

a) a robust and enforceable mechanism is put in place to manage access bypeople to important bird areas at sensitive times of the year

b) mitigation measures to manage disturbance from people and from theconstruction phase of the work are put in place across the developmentfootprint and adjacent designated areas

c) a monitoring scheme to confirm that the mitigation measures are workingeffectively is put in place

32 SNH objects to the proposed development in relation to the Moray Firth SAC -bottlenose dolphin interest on the grounds that a 500-berth marina will have anadverse impact on the integrity of the dolphin population

33 SNH objects to the proposed development in relation to the Moray Firth SAC -sub tidal sandbank interest unless it is made subject to conditions or legalagreements to ensure that prior to the development commencing measures are

put in place to avoid adverse effects on the sandbanks from pollutants arisingfrom the marina

2

34 SNH obiects to the proposed development in relation to European ProtectedSpecies on the grounds that a 500-berth marina will have an adverse impact onthe favourable conservation status of dolphin and porpoise populations

Further details about the nature of our concerns and where relevant the conditionsthat we consider are appropriate to overcome them are given in Annex A (attached tothis letter) It is worth highlighting however that a number of these conditions will bevery difficult to address sufficiently robustly and the applicant will need todemonstrate innovative and creative approaches in order to meet these challenges

Throughout the consultation process we have had ongoing liaison with THC and theapplicant and we would be happy to continue this process and discuss any of thepoints raised in this letter if that would be helpful If in the meantime you need anyfurther information or advice in relation to this proposal then please contact BenLeyshon (benlevshonsnhQovuk) at this office in the first instance I would begrateful if you could let us know of your Councils decision in due course or of anyfurther changes to the proposal that would be relevant to our interests

Finally because this proposal affects the Moray Firth SAC and the Inner Moray FirthSPA and Ramsar site you are respectfully reminded of the requirement to notify theScottish Ministers if your Council is minded to approve planning consent againstSNHs advice in this case

Yours sincerely

GEORGE HOGGArea Manager - East Highlandemail QeorQehoQQsnhQovuk

3

The Highland CouncilPlanning amp DevelopmentGlenurquhart RoadINVERNESSIV3 5NX

For the attention of David Mudie

Dear Mr Mudie

Our ref CNSDCHIIIVABPOPPYour ref 05012940UTIN DMCC

31 October 2006

TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997ENVIRONMENTAL IMPACT ASSESSMENT (SCOTLAND) REGULATIONS 1999OUTLINE PLANNING APPLICATION FOR RESIDENTIAL AND LEISUREDEVELOPMENT INCLUDING HOUSING MARINA BOAT YARD VISITORSCENTRE NATURE CONSERVATION ZONES AND HOTEL WITH SUPPORTINGCOMMUNITY FACILITIES AND SEWAGE TREATMENT PLANT AT THE FORMERFABRICATION YARD WHITENESS ARDERSIERMORAY FIRTH SPECIAL AREA OF CONSERVATION (SAC)INNER MORAY FIRTH SPECIAL PROTECTION AREA (SPA)INNER MORAY FIRTH RAMSAR SITE

WHITENESS HEAD SITE OF SPECIAL SCIENTIFIC INTEREST (5551)

Thank you for inviting comments from SNH on the addendum to the EnvironmentalStatement (ES) submitted in support of the above proposal

1 BACKGROUND

SNH responded to the initial outline planning application and accompanying ES on16 February 2006 This letter provided a description of the proposal the naturalheritage interests likely to be affected and a statement of our position at the time

In line with this earlier letter we would like to emphasise our support for largedevelopments such as this one being located on brown field sites We recognise thestatements that the applicant has made regarding safeguarding the environmentalquality of the area and a number of these statements have translated into practicalmeasures - such as good buildinglandscape design and habitat and wildlifeenhancement proposals We also acknowledge the willingness of the applicant toconsider new and innovative mitigation measures to address some of the impactsthat are likely to occur

Although the proposal lies on a brown field site and offers a number of environmentalbenefits it is also important to note that it is immediately adjacent to areas that are ofnational and international importance for their natural heritage interests The previoususe of the site for oil related activity was relatively constrained within the existingdevelopment footprint this proposal differs in that it will result in a very significant

1

increase in the potential for people to access the sensitive designated areasimmediately adjacent to the site It is in this context that SNH has appraised theapplication

2 SNH RESPONSE OF 16 FEBRUARY 2006

In our letter of 16 February 2006 we objected to the proposal for the followingreasons

a) Insufficient information to ascertain that there will be no adverse effect on theintegrity of the Moray Firth SAC and the Inner Moray Firth SPA and Ramsar site

b) The potential effect on European Protected Species namely dolphins andporpoises

c) A likely adverse effect on the saltmarsh shingle and wintering bird interests of theWhiteness Head SSSI

In addition our letter made a number of recommendations to address accessmanagement at the site and to mitigate the impact of the proposal on otter greatcrested newts bats seals local biodiversity action plan species non-natives (LeAustralian swamp stonecrop Crassula helmsii in the lagoon area) and landscapeand visual amenity Our letter of 16 February provided detail on all of these aspectsand therefore this letter does not repeat the earlier comments made We do howeverrecommend that in order to acquire a full understanding of SNHs position this lettershould be read in conjunction with our letter of 16 February 2006

3 SNH CURRENT POSITION

31 SNH objects to the proposed development in relation to the Inner Moray FirthSPA and Ramsar site unless it is made subject to conditions or legal agreementsto ensure that prior to the development commencing

a) a robust and enforceable mechanism is put in place to manage access bypeople to important bird areas at sensitive times of the year

b) mitigation measures to manage disturbance from people and from theconstruction phase of the work are put in place across the developmentfootprint and adjacent designated areas

c) a monitoring scheme to confirm that the mitigation measures are workingeffectively is put in place

32 SNH objects to the proposed development in relation to the Moray Firth SAC -bottlenose dolphin interest on the grounds that a 500-berth marina will have anadverse impact on the integrity of the dolphin population

33 SNH objects to the proposed development in relation to the Moray Firth SAC -sub tidal sandbank interest unless it is made subject to conditions or legalagreements to ensure that prior to the development commencing measures are

put in place to avoid adverse effects on the sandbanks from pollutants arisingfrom the marina

2

34 SNH obiects to the proposed development in relation to European ProtectedSpecies on the grounds that a 500-berth marina will have an adverse impact onthe favourable conservation status of dolphin and porpoise populations

Further details about the nature of our concerns and where relevant the conditionsthat we consider are appropriate to overcome them are given in Annex A (attached tothis letter) It is worth highlighting however that a number of these conditions will bevery difficult to address sufficiently robustly and the applicant will need todemonstrate innovative and creative approaches in order to meet these challenges

Throughout the consultation process we have had ongoing liaison with THC and theapplicant and we would be happy to continue this process and discuss any of thepoints raised in this letter if that would be helpful If in the meantime you need anyfurther information or advice in relation to this proposal then please contact BenLeyshon (benlevshonsnhQovuk) at this office in the first instance I would begrateful if you could let us know of your Councils decision in due course or of anyfurther changes to the proposal that would be relevant to our interests

Finally because this proposal affects the Moray Firth SAC and the Inner Moray FirthSPA and Ramsar site you are respectfully reminded of the requirement to notify theScottish Ministers if your Council is minded to approve planning consent againstSNHs advice in this case

Yours sincerely

GEORGE HOGGArea Manager - East Highlandemail QeorQehoQQsnhQovuk

3

increase in the potential for people to access the sensitive designated areasimmediately adjacent to the site It is in this context that SNH has appraised theapplication

2 SNH RESPONSE OF 16 FEBRUARY 2006

In our letter of 16 February 2006 we objected to the proposal for the followingreasons

a) Insufficient information to ascertain that there will be no adverse effect on theintegrity of the Moray Firth SAC and the Inner Moray Firth SPA and Ramsar site

b) The potential effect on European Protected Species namely dolphins andporpoises

c) A likely adverse effect on the saltmarsh shingle and wintering bird interests of theWhiteness Head SSSI

In addition our letter made a number of recommendations to address accessmanagement at the site and to mitigate the impact of the proposal on otter greatcrested newts bats seals local biodiversity action plan species non-natives (LeAustralian swamp stonecrop Crassula helmsii in the lagoon area) and landscapeand visual amenity Our letter of 16 February provided detail on all of these aspectsand therefore this letter does not repeat the earlier comments made We do howeverrecommend that in order to acquire a full understanding of SNHs position this lettershould be read in conjunction with our letter of 16 February 2006

3 SNH CURRENT POSITION

31 SNH objects to the proposed development in relation to the Inner Moray FirthSPA and Ramsar site unless it is made subject to conditions or legal agreementsto ensure that prior to the development commencing

a) a robust and enforceable mechanism is put in place to manage access bypeople to important bird areas at sensitive times of the year

b) mitigation measures to manage disturbance from people and from theconstruction phase of the work are put in place across the developmentfootprint and adjacent designated areas

c) a monitoring scheme to confirm that the mitigation measures are workingeffectively is put in place

32 SNH objects to the proposed development in relation to the Moray Firth SAC -bottlenose dolphin interest on the grounds that a 500-berth marina will have anadverse impact on the integrity of the dolphin population

33 SNH objects to the proposed development in relation to the Moray Firth SAC -sub tidal sandbank interest unless it is made subject to conditions or legalagreements to ensure that prior to the development commencing measures are

put in place to avoid adverse effects on the sandbanks from pollutants arisingfrom the marina

2

34 SNH obiects to the proposed development in relation to European ProtectedSpecies on the grounds that a 500-berth marina will have an adverse impact onthe favourable conservation status of dolphin and porpoise populations

Further details about the nature of our concerns and where relevant the conditionsthat we consider are appropriate to overcome them are given in Annex A (attached tothis letter) It is worth highlighting however that a number of these conditions will bevery difficult to address sufficiently robustly and the applicant will need todemonstrate innovative and creative approaches in order to meet these challenges

Throughout the consultation process we have had ongoing liaison with THC and theapplicant and we would be happy to continue this process and discuss any of thepoints raised in this letter if that would be helpful If in the meantime you need anyfurther information or advice in relation to this proposal then please contact BenLeyshon (benlevshonsnhQovuk) at this office in the first instance I would begrateful if you could let us know of your Councils decision in due course or of anyfurther changes to the proposal that would be relevant to our interests

Finally because this proposal affects the Moray Firth SAC and the Inner Moray FirthSPA and Ramsar site you are respectfully reminded of the requirement to notify theScottish Ministers if your Council is minded to approve planning consent againstSNHs advice in this case

Yours sincerely

GEORGE HOGGArea Manager - East Highlandemail QeorQehoQQsnhQovuk

3

34 SNH obiects to the proposed development in relation to European ProtectedSpecies on the grounds that a 500-berth marina will have an adverse impact onthe favourable conservation status of dolphin and porpoise populations

Further details about the nature of our concerns and where relevant the conditionsthat we consider are appropriate to overcome them are given in Annex A (attached tothis letter) It is worth highlighting however that a number of these conditions will bevery difficult to address sufficiently robustly and the applicant will need todemonstrate innovative and creative approaches in order to meet these challenges

Throughout the consultation process we have had ongoing liaison with THC and theapplicant and we would be happy to continue this process and discuss any of thepoints raised in this letter if that would be helpful If in the meantime you need anyfurther information or advice in relation to this proposal then please contact BenLeyshon (benlevshonsnhQovuk) at this office in the first instance I would begrateful if you could let us know of your Councils decision in due course or of anyfurther changes to the proposal that would be relevant to our interests

Finally because this proposal affects the Moray Firth SAC and the Inner Moray FirthSPA and Ramsar site you are respectfully reminded of the requirement to notify theScottish Ministers if your Council is minded to approve planning consent againstSNHs advice in this case

Yours sincerely

GEORGE HOGGArea Manager - East Highlandemail QeorQehoQQsnhQovuk

3

ANNEX A

1 INNER MORAY FIRTH SPA I RAMSAR SITE BIRDS

11 Summary of impacts

SNH considers that this development could have potentially serious adverse effectson the qualifying species of the Moray Firth ~PA and Ramsar site The principalimpacts of the proposed development on the qualifying species are likely to be

a) Disturbance from construction and recreation (land based) to the breeding ternsand the wintering wader species while feeding on the mud flats mussel beds andsand banks exposed at low tide

b) Disturbance from construction and recreation (land based) to high tide roosts ofthe same species (principally on and around Whiteness spit)

c) Recreational disturbance (from boats and other water craft) to the breeding ternsand the wintering waders roosting at high tide and offshore and disturbance to thewintering waterfowl

The qualifying species affected are bar-tailed godwit (roosting and feeding birds)curlew (roosting and feeding birds) oystercatcher (roosting and feeding birds)redshank (roosting and feeding birds) wigeon (loafing and feeding birds) teal(loafing and feeding) scaup (offshore feeding amp resting areas eg Riff Bank)goldeneye (offshore feeding and resting areas eg Riff Bank) red-breasted

merganser (although numbers are low) and common tern (during the breedingseason - the potential for increased disturbance to the spit at Whiteness Head couldlead to the loss of tern as a breeding species altogether However SNH recognisethe positive work that the applicant has committed to in relation to fox managementas well as habitat creation for this species Unconstrained disturbance could negatethe benefit of all this work)

These likely impacts arise from loss of feeding habitat (through avoidance anddisturbance) and increased energy expenditure especially at high tide from beingdisturbed off key roost sites In the extreme roosts may be deserted altogether ifdisturbance is sufficient and chronic and this could have long-term consequences forthe species populations and hence the integrity of the SPAlRamsar

Furthermore the context for disturbance to these species is important as siteselsewhere in the Moray and Cromarty Firths are also under pressure not least fromincreased recreational pressure This means that the potential for birds to findadditional undisturbed habitats is diminished in the context of the overall picturewithin the Moray Firth

It is also clear that despite not being part of the qualifying assemblage for the InnerMoray Firth SPAlRamsar site both long-tailed duck and possibly common scoteroccur in nationally important numbers at the Riff Bank Indeed the Moray Firth maybe among the most important sites for long-tailed duck in the UK with numbers offWhiteness being particularly high and therefore important It is also important to note

4

that both long-tailed duck and common scoter are qualifying species of the Morayand Nairn SPA and birds from this SPA are likely to be using the Riff BankSignificant disturbance to long-tailed duck and common scoter can be avoided ifadequate measures are put in place to safeguard the relevant qualifying species ofthe Inner Moray Firth SPA (Le scaup and goldeneye)

12 Supplementary information provided

The applicant has provided supplementary information on the SPA and Ramsarinterests in the form of the commissioned British Trust for Ornithology (BTO) reportadditional bird data provided by Roy Dennis a draft access management plan and aletter outlining how by-laws could be implemented through the Whiteness HarbourRevision Order (HRO)

The BTO report underscores the importance of Whiteness as a constituent part of theInner Moray Firth SPA and the increasing importance of the Inner Moray Firth SPAto the SPA suite for the species for which it holds internationally or nationallyimportant numbers The draft access management plan provides a comprehensivesuite of voluntary mitigation measures to manage visitor pressure to the sensitiveintertidal spit saltmarsh and dune areas If by laws were to be implemented underthe HRO then these would provide a more formal legislative approach to manageaccess to key areas at sensitive times of the year

13 SNH position

We consider that we now have sufficient information in order to be able to adequatelyassess the proposal Based on the information provided we consider that theproposal is likely to have a siQnificant effect on the QualifyinQ interests of the SPAand Ramsar site Furthermore we consider that without mitiQation these effects arelikely to adversely affect the inteQrity of the SPA and Ramsar site

The mitigation measures proposed in the draft access management plan will go along way to reducing the impacts of recreational disturbance However thesemeasures are predominately based on individuals agreeing to adhere to best practiceand voluntarily avoiding disturbance to sensitive wildlife and habitats We considerthat for most users the voluntary measures will suffice however we are concernedthat significant adverse effects could occur even if a small numbers of peopledisregard the best practice approaches proposed We are also uncertain about thespecific mechanisms that will be put in place to ensure that the proposed mitigationmeasures are implemented and enforced in the short medium and longer terms Theapplicant has referred to the establishment of a Trust to oversee these measures inthe medium to longer terms but from the information provided we do not know whatthe composition of the Trust will be or what powers and responsibilities it will haveAs a result we are not in a position to feel confident that a Trust will be sufficientlyrobust to safeguard the special natural features present Based on the measuresdescribed in the draft access manaQement plan we would therefore maintain ourobiection in relation to impacts on the SPA and Ramsar site because we consider

5

that the applicant has failed to demonstrate that the proposal will not adverselv affectthe inteQritv of these sites

Since the draft access management plan was submitted we received a letter from theapplicant on 7 August 2006 This proposed putting in place by-laws to manageaccess to bird areas sensitive to disturbance at certain times of the year It ispossible that by-laws through this mechanism would provide a back stop measureto control access should the voluntary approaches fail

SNH would therefore consider removinQ its obiection in relation to impacts on theSPA and Ramsar site if conditions could be put in place that address the followinQissues

a) All the proposed voluntary mitigation measures identified in the draft accessmanagement plan should be implemented

b) A robust [legal] mechanism (or mechanisms) should be identified that managesaccess to key bird areas at sensitive times of the year from both land and waterbased users This should cover all known important bird areas within theWhiteness Head component of the SPA even those outwith the ownership of theapplicant Where necessary multi-party agreements with adjacent land ownersshould be drawn up to ensure that the mitigation measures can be adequatelyapplied across the Whiteness Head component of the SPA The mechanism(s)should be in place prior to any work commencing on the ground or any detailedplanning application being submitted (whichever comes first) Clear details mustbe provided about how the mechanism(s) will be monitored and policed and howcontraventions will be acted upon Details about how the mechanism(s) will beapplied in the short medium and longer terms should be clearly identified andbinding on the applicant This should ensure that the mechanism(s) can be

secured in perpetuity and that its implementation and enforcement is independentand objective The use of by-laws applied through a HRO may provide amechanism but the ability of this approach to deliver the requirements describedabove must be clearly demonstrated by the applicant Initial enquiries by SNHwith the Scottish Executive about the use of Harbour Orders to implement bylawsto safeguard environmental interests have not been encouraging However SNHconsiders that other bylaw making powers under the Civic Government(Scotland) Act 1981 section 121 could provide satisfactory safeguards if i) THCwere prepared to apply them and ii) if they are used in conjunction with otherreserve powers 1

c) The applicant should ensure that the current level of bird monitoring is maintainedor increased Monitoring and regular appraisal should aim to demonstrate thatthe mitigation measures are achieving their goal of reducing disturbance toacceptable levels The monitoring programme should also be able to detect anyunforeseen problems at an early stage which would then feedback tomanagement of the site to address those problems In order to reliably monitor

1 Nature Conservation Orders (Nature Conservation Act 2004 section 23) Section41 notices (Nature Conservation Act 2004 section 41) and Section 29 notices (LandReform (Scotland) Act 2003 section 29)

6

the situation during both the construction phase and post-development it wouldbe desirable to extend the monitoring season from August through to May Thiswould involve obtaining professional coverage for the period of the year notcovered by the existing WeBs winter counts The applicant should also

undertake monitoring of the behavioural responses of water birds to disturbanceand quantifying the success of mitigation measures taken to minimise negativeimpacts Details about how the monitoring will be applied in the short mediumand longer terms should be clearly identified and binding on the applicant

d) Disturbance from construction activity was identified as a potential issue in theBTO report The applicant should therefore ensure that potentially disturbingoperations in the vicinity of sensitive bird areas should be undertaken at times ofthe year when the qualifying bird species are absent

We consider that the applicant should come forward with details on conditions b) tod) above for agreement by THC (as competent authority) in consultation with SNH tis also important to note that although we will consider removing our objection inrelation to condition b) if an appropriate mechanism is identified we do notunderestimate the difficultv in meeting this condition Should such a mechanism notbe identified to the satisfaction of The Highland Council in consultation with SNH thenwe will maintain our obiection in relation to the SPA and Ramsar site

Supplementary information has been provided on expected boat numbers andmovements from the proposed marina what a marine chart might involve and howboats using the marina are expected to behave Boat usage across a wider area hasbeen acknowledged and therefore the issue of cumulative impact has largely beenaddressed Two reports prepared by Dr Jonathan David have described the likelynoise generated by boat traffic and onshore construction and the effects that this~~ht have on dol hins and or oises lm~It~ Jgg~lsect~Lgt ~

7

24 Noise associated with onshore construction

We have received further information on the likely impact of noise generated duringthe construction phase of the work together with potential mitigation measures

8

25 Pollution arising from the wastewater disposal

No further information on the proposed level of wastewater treatment has beenprovided

The mitigation measures proposed will go a long way to reducing impacts ofdisturbance However as mentioned above these measures are aimed at managingboat behaviour rather than boat numbers We are concerned that even if all boatsbehave according to best practice the presence of a significant number of additionalboats in a core area of the SAC will adversel affect the dol hins

Based on the mitioation measures described we would thereforemaintain our obiection in relation to impacts on the dolphins because we considerthat the applicant has failed to demonstrate that the proposal will not adversely affectthe inteoritv of the Morav Firth SAC

In relation to points a) and b) above the notion of reducing the number of boats usingthe marina and gradually increasing them over time (linked to a robust monitoringprogramme) has already been discussed with the applicant and they are content in

9

principle with this approach However they have indicated that they would consideran jnitial number of 150 boats as being appropriate with numbers building to 300 overa period of time Although we understand the business case for having a marina of aminimum size we are not in a position to agree to a specific number of boats at thisstage in terms of either an initial starting point or a final number of vessels Furtherspecialist advice would need to be sought by the applicant as to a suitable number ofboats to start with The number of boats in the marina should not be increased unlessthe results of monitoring (or other relevant sources of information) clearlydemonstrate that such an increase would not have an adverse effect on the integrityof the SAC

262 Construction noise

We consider that we now have sufficient information in order to be able to adequatelyassess the proposal in relation to construction noise Based on the informationprovided we consider that the proposal is likely to have a sionificant effect on thebottlenose dolphin interest of the Moray Firth SAC These effects relate to noisegenerated during the construction phases of the work disturbing dolphins that may bepresent in the adjacent waters However if the mitigation measures described in theJonathan David report2 submitted as part of the application and the measuresdescribed in points a) and b) below are covered by conditions or legal agreements toany consent granted then this significant effect can be avoided

a) Pile driving and suction dredging operations should be limited to the wintermonths (Le between October and March) when the dolphins are less likely to bepresent

b) The exclusion zone for dolphins during noisy operations should be increasedfrom 500 metres to within sight of the construction zone

These conditionslegal agreements must be confirmed by THC as competentauthority or through the submission of a revised application

263 Wastewater treatment

On a number of occasions in the past we requested clarification from the applicantabout the level of wastewater treatment We have not received confirmation aboutthe proposed level of treatment

SNH will obiect to a future application by the applicant to SEPA under the WaterEnvironment (Controlled Activities)(Scotland) Reoulations 2005 in relation to thepotential impact on the dolphins unless that authorisation is made subiect to thefollowino conditions

2 Jonathan David 2006 An assessment of the potential impact of construction ofthe proposed Whiteness marina on populations of bottlenose dolphins (Tursiopstruncatus) and harbour porpoises (Phocoena phocoena)

10

a) An assessment should be made as to whether the discharge is likely to bemade within or adjacent to areas frequently used by dolphins

b) If the proposed discharge will be made into waters considered to be within oradjacent to areas frequently used by dolphins modelling work should beundertaken to identify the likely dispersion of the discharge within a 24-hourperiod

c) If the discharge disperses into areas known to be frequently used by dolphinsthen the treatment level should be set so as to ensure that mandatoryrecreational water standards will be met at the 95th percentile

d) If chemical treatment would be required to meet the recreational waterstandard then an assessment must also be made as to the likely potentialimpact on the dolphins

e) The applicant should agree the wastewater discharge with S-EPA inconsultation with SNH

3 MORAY FIRTH SAC SUBMERGED SANDBANKS

On a number of occasions in the past we recommended that the applicant provide anassessment of the pollutants likely to arise from the operation of the marina shouldbe carried out and that a description of the arrangements put in place to managethese pollutants should be provided Although the applicant has not provided anassessment of the pollutants likely to arise from the marina they have providedguidance regarding best practice for boat wash down cleaning and maintenanceUnfortunately the source of this guidance was not referenced however we believethat it has been taken from the Environmental Code of Practice prepared by theBritish Marine Industries Federation

SNH obiects to the proposed development in relation to the potential impact on thesubmerqed sandbank feature unless it is made subiect to the followinq condition

a) The marina should be managed strictly in accordance with SEPAs PollutionPrevention Guideline 14 Marinas and Craft SeewwwsepaorQukpdfquidanceppqppq14pdf for further information

b) Harbour Leasing conditions should be put in place and monitored to ensurethat there is no discharge of wastewater from vessels into the marina area

11

that both long-tailed duck and common scoter are qualifying species of the Morayand Nairn SPA and birds from this SPA are likely to be using the Riff BankSignificant disturbance to long-tailed duck and common scoter can be avoided ifadequate measures are put in place to safeguard the relevant qualifying species ofthe Inner Moray Firth SPA (Le scaup and goldeneye)

12 Supplementary information provided

The applicant has provided supplementary information on the SPA and Ramsarinterests in the form of the commissioned British Trust for Ornithology (BTO) reportadditional bird data provided by Roy Dennis a draft access management plan and aletter outlining how by-laws could be implemented through the Whiteness HarbourRevision Order (HRO)

The BTO report underscores the importance of Whiteness as a constituent part of theInner Moray Firth SPA and the increasing importance of the Inner Moray Firth SPAto the SPA suite for the species for which it holds internationally or nationallyimportant numbers The draft access management plan provides a comprehensivesuite of voluntary mitigation measures to manage visitor pressure to the sensitiveintertidal spit saltmarsh and dune areas If by laws were to be implemented underthe HRO then these would provide a more formal legislative approach to manageaccess to key areas at sensitive times of the year

13 SNH position

We consider that we now have sufficient information in order to be able to adequatelyassess the proposal Based on the information provided we consider that theproposal is likely to have a siQnificant effect on the QualifyinQ interests of the SPAand Ramsar site Furthermore we consider that without mitiQation these effects arelikely to adversely affect the inteQrity of the SPA and Ramsar site

The mitigation measures proposed in the draft access management plan will go along way to reducing the impacts of recreational disturbance However thesemeasures are predominately based on individuals agreeing to adhere to best practiceand voluntarily avoiding disturbance to sensitive wildlife and habitats We considerthat for most users the voluntary measures will suffice however we are concernedthat significant adverse effects could occur even if a small numbers of peopledisregard the best practice approaches proposed We are also uncertain about thespecific mechanisms that will be put in place to ensure that the proposed mitigationmeasures are implemented and enforced in the short medium and longer terms Theapplicant has referred to the establishment of a Trust to oversee these measures inthe medium to longer terms but from the information provided we do not know whatthe composition of the Trust will be or what powers and responsibilities it will haveAs a result we are not in a position to feel confident that a Trust will be sufficientlyrobust to safeguard the special natural features present Based on the measuresdescribed in the draft access manaQement plan we would therefore maintain ourobiection in relation to impacts on the SPA and Ramsar site because we consider

5

that the applicant has failed to demonstrate that the proposal will not adverselv affectthe inteQritv of these sites

Since the draft access management plan was submitted we received a letter from theapplicant on 7 August 2006 This proposed putting in place by-laws to manageaccess to bird areas sensitive to disturbance at certain times of the year It ispossible that by-laws through this mechanism would provide a back stop measureto control access should the voluntary approaches fail

SNH would therefore consider removinQ its obiection in relation to impacts on theSPA and Ramsar site if conditions could be put in place that address the followinQissues

a) All the proposed voluntary mitigation measures identified in the draft accessmanagement plan should be implemented

b) A robust [legal] mechanism (or mechanisms) should be identified that managesaccess to key bird areas at sensitive times of the year from both land and waterbased users This should cover all known important bird areas within theWhiteness Head component of the SPA even those outwith the ownership of theapplicant Where necessary multi-party agreements with adjacent land ownersshould be drawn up to ensure that the mitigation measures can be adequatelyapplied across the Whiteness Head component of the SPA The mechanism(s)should be in place prior to any work commencing on the ground or any detailedplanning application being submitted (whichever comes first) Clear details mustbe provided about how the mechanism(s) will be monitored and policed and howcontraventions will be acted upon Details about how the mechanism(s) will beapplied in the short medium and longer terms should be clearly identified andbinding on the applicant This should ensure that the mechanism(s) can be

secured in perpetuity and that its implementation and enforcement is independentand objective The use of by-laws applied through a HRO may provide amechanism but the ability of this approach to deliver the requirements describedabove must be clearly demonstrated by the applicant Initial enquiries by SNHwith the Scottish Executive about the use of Harbour Orders to implement bylawsto safeguard environmental interests have not been encouraging However SNHconsiders that other bylaw making powers under the Civic Government(Scotland) Act 1981 section 121 could provide satisfactory safeguards if i) THCwere prepared to apply them and ii) if they are used in conjunction with otherreserve powers 1

c) The applicant should ensure that the current level of bird monitoring is maintainedor increased Monitoring and regular appraisal should aim to demonstrate thatthe mitigation measures are achieving their goal of reducing disturbance toacceptable levels The monitoring programme should also be able to detect anyunforeseen problems at an early stage which would then feedback tomanagement of the site to address those problems In order to reliably monitor

1 Nature Conservation Orders (Nature Conservation Act 2004 section 23) Section41 notices (Nature Conservation Act 2004 section 41) and Section 29 notices (LandReform (Scotland) Act 2003 section 29)

6

the situation during both the construction phase and post-development it wouldbe desirable to extend the monitoring season from August through to May Thiswould involve obtaining professional coverage for the period of the year notcovered by the existing WeBs winter counts The applicant should also

undertake monitoring of the behavioural responses of water birds to disturbanceand quantifying the success of mitigation measures taken to minimise negativeimpacts Details about how the monitoring will be applied in the short mediumand longer terms should be clearly identified and binding on the applicant

d) Disturbance from construction activity was identified as a potential issue in theBTO report The applicant should therefore ensure that potentially disturbingoperations in the vicinity of sensitive bird areas should be undertaken at times ofthe year when the qualifying bird species are absent

We consider that the applicant should come forward with details on conditions b) tod) above for agreement by THC (as competent authority) in consultation with SNH tis also important to note that although we will consider removing our objection inrelation to condition b) if an appropriate mechanism is identified we do notunderestimate the difficultv in meeting this condition Should such a mechanism notbe identified to the satisfaction of The Highland Council in consultation with SNH thenwe will maintain our obiection in relation to the SPA and Ramsar site

Supplementary information has been provided on expected boat numbers andmovements from the proposed marina what a marine chart might involve and howboats using the marina are expected to behave Boat usage across a wider area hasbeen acknowledged and therefore the issue of cumulative impact has largely beenaddressed Two reports prepared by Dr Jonathan David have described the likelynoise generated by boat traffic and onshore construction and the effects that this~~ht have on dol hins and or oises lm~It~ Jgg~lsect~Lgt ~

7

24 Noise associated with onshore construction

We have received further information on the likely impact of noise generated duringthe construction phase of the work together with potential mitigation measures

8

25 Pollution arising from the wastewater disposal

No further information on the proposed level of wastewater treatment has beenprovided

The mitigation measures proposed will go a long way to reducing impacts ofdisturbance However as mentioned above these measures are aimed at managingboat behaviour rather than boat numbers We are concerned that even if all boatsbehave according to best practice the presence of a significant number of additionalboats in a core area of the SAC will adversel affect the dol hins

Based on the mitioation measures described we would thereforemaintain our obiection in relation to impacts on the dolphins because we considerthat the applicant has failed to demonstrate that the proposal will not adversely affectthe inteoritv of the Morav Firth SAC

In relation to points a) and b) above the notion of reducing the number of boats usingthe marina and gradually increasing them over time (linked to a robust monitoringprogramme) has already been discussed with the applicant and they are content in

9

principle with this approach However they have indicated that they would consideran jnitial number of 150 boats as being appropriate with numbers building to 300 overa period of time Although we understand the business case for having a marina of aminimum size we are not in a position to agree to a specific number of boats at thisstage in terms of either an initial starting point or a final number of vessels Furtherspecialist advice would need to be sought by the applicant as to a suitable number ofboats to start with The number of boats in the marina should not be increased unlessthe results of monitoring (or other relevant sources of information) clearlydemonstrate that such an increase would not have an adverse effect on the integrityof the SAC

262 Construction noise

We consider that we now have sufficient information in order to be able to adequatelyassess the proposal in relation to construction noise Based on the informationprovided we consider that the proposal is likely to have a sionificant effect on thebottlenose dolphin interest of the Moray Firth SAC These effects relate to noisegenerated during the construction phases of the work disturbing dolphins that may bepresent in the adjacent waters However if the mitigation measures described in theJonathan David report2 submitted as part of the application and the measuresdescribed in points a) and b) below are covered by conditions or legal agreements toany consent granted then this significant effect can be avoided

a) Pile driving and suction dredging operations should be limited to the wintermonths (Le between October and March) when the dolphins are less likely to bepresent

b) The exclusion zone for dolphins during noisy operations should be increasedfrom 500 metres to within sight of the construction zone

These conditionslegal agreements must be confirmed by THC as competentauthority or through the submission of a revised application

263 Wastewater treatment

On a number of occasions in the past we requested clarification from the applicantabout the level of wastewater treatment We have not received confirmation aboutthe proposed level of treatment

SNH will obiect to a future application by the applicant to SEPA under the WaterEnvironment (Controlled Activities)(Scotland) Reoulations 2005 in relation to thepotential impact on the dolphins unless that authorisation is made subiect to thefollowino conditions

2 Jonathan David 2006 An assessment of the potential impact of construction ofthe proposed Whiteness marina on populations of bottlenose dolphins (Tursiopstruncatus) and harbour porpoises (Phocoena phocoena)

10

a) An assessment should be made as to whether the discharge is likely to bemade within or adjacent to areas frequently used by dolphins

b) If the proposed discharge will be made into waters considered to be within oradjacent to areas frequently used by dolphins modelling work should beundertaken to identify the likely dispersion of the discharge within a 24-hourperiod

c) If the discharge disperses into areas known to be frequently used by dolphinsthen the treatment level should be set so as to ensure that mandatoryrecreational water standards will be met at the 95th percentile

d) If chemical treatment would be required to meet the recreational waterstandard then an assessment must also be made as to the likely potentialimpact on the dolphins

e) The applicant should agree the wastewater discharge with S-EPA inconsultation with SNH

3 MORAY FIRTH SAC SUBMERGED SANDBANKS

On a number of occasions in the past we recommended that the applicant provide anassessment of the pollutants likely to arise from the operation of the marina shouldbe carried out and that a description of the arrangements put in place to managethese pollutants should be provided Although the applicant has not provided anassessment of the pollutants likely to arise from the marina they have providedguidance regarding best practice for boat wash down cleaning and maintenanceUnfortunately the source of this guidance was not referenced however we believethat it has been taken from the Environmental Code of Practice prepared by theBritish Marine Industries Federation

SNH obiects to the proposed development in relation to the potential impact on thesubmerqed sandbank feature unless it is made subiect to the followinq condition

a) The marina should be managed strictly in accordance with SEPAs PollutionPrevention Guideline 14 Marinas and Craft SeewwwsepaorQukpdfquidanceppqppq14pdf for further information

b) Harbour Leasing conditions should be put in place and monitored to ensurethat there is no discharge of wastewater from vessels into the marina area

11

that the applicant has failed to demonstrate that the proposal will not adverselv affectthe inteQritv of these sites

Since the draft access management plan was submitted we received a letter from theapplicant on 7 August 2006 This proposed putting in place by-laws to manageaccess to bird areas sensitive to disturbance at certain times of the year It ispossible that by-laws through this mechanism would provide a back stop measureto control access should the voluntary approaches fail

SNH would therefore consider removinQ its obiection in relation to impacts on theSPA and Ramsar site if conditions could be put in place that address the followinQissues

a) All the proposed voluntary mitigation measures identified in the draft accessmanagement plan should be implemented

b) A robust [legal] mechanism (or mechanisms) should be identified that managesaccess to key bird areas at sensitive times of the year from both land and waterbased users This should cover all known important bird areas within theWhiteness Head component of the SPA even those outwith the ownership of theapplicant Where necessary multi-party agreements with adjacent land ownersshould be drawn up to ensure that the mitigation measures can be adequatelyapplied across the Whiteness Head component of the SPA The mechanism(s)should be in place prior to any work commencing on the ground or any detailedplanning application being submitted (whichever comes first) Clear details mustbe provided about how the mechanism(s) will be monitored and policed and howcontraventions will be acted upon Details about how the mechanism(s) will beapplied in the short medium and longer terms should be clearly identified andbinding on the applicant This should ensure that the mechanism(s) can be

secured in perpetuity and that its implementation and enforcement is independentand objective The use of by-laws applied through a HRO may provide amechanism but the ability of this approach to deliver the requirements describedabove must be clearly demonstrated by the applicant Initial enquiries by SNHwith the Scottish Executive about the use of Harbour Orders to implement bylawsto safeguard environmental interests have not been encouraging However SNHconsiders that other bylaw making powers under the Civic Government(Scotland) Act 1981 section 121 could provide satisfactory safeguards if i) THCwere prepared to apply them and ii) if they are used in conjunction with otherreserve powers 1

c) The applicant should ensure that the current level of bird monitoring is maintainedor increased Monitoring and regular appraisal should aim to demonstrate thatthe mitigation measures are achieving their goal of reducing disturbance toacceptable levels The monitoring programme should also be able to detect anyunforeseen problems at an early stage which would then feedback tomanagement of the site to address those problems In order to reliably monitor

1 Nature Conservation Orders (Nature Conservation Act 2004 section 23) Section41 notices (Nature Conservation Act 2004 section 41) and Section 29 notices (LandReform (Scotland) Act 2003 section 29)

6

the situation during both the construction phase and post-development it wouldbe desirable to extend the monitoring season from August through to May Thiswould involve obtaining professional coverage for the period of the year notcovered by the existing WeBs winter counts The applicant should also

undertake monitoring of the behavioural responses of water birds to disturbanceand quantifying the success of mitigation measures taken to minimise negativeimpacts Details about how the monitoring will be applied in the short mediumand longer terms should be clearly identified and binding on the applicant

d) Disturbance from construction activity was identified as a potential issue in theBTO report The applicant should therefore ensure that potentially disturbingoperations in the vicinity of sensitive bird areas should be undertaken at times ofthe year when the qualifying bird species are absent

We consider that the applicant should come forward with details on conditions b) tod) above for agreement by THC (as competent authority) in consultation with SNH tis also important to note that although we will consider removing our objection inrelation to condition b) if an appropriate mechanism is identified we do notunderestimate the difficultv in meeting this condition Should such a mechanism notbe identified to the satisfaction of The Highland Council in consultation with SNH thenwe will maintain our obiection in relation to the SPA and Ramsar site

Supplementary information has been provided on expected boat numbers andmovements from the proposed marina what a marine chart might involve and howboats using the marina are expected to behave Boat usage across a wider area hasbeen acknowledged and therefore the issue of cumulative impact has largely beenaddressed Two reports prepared by Dr Jonathan David have described the likelynoise generated by boat traffic and onshore construction and the effects that this~~ht have on dol hins and or oises lm~It~ Jgg~lsect~Lgt ~

7

24 Noise associated with onshore construction

We have received further information on the likely impact of noise generated duringthe construction phase of the work together with potential mitigation measures

8

25 Pollution arising from the wastewater disposal

No further information on the proposed level of wastewater treatment has beenprovided

The mitigation measures proposed will go a long way to reducing impacts ofdisturbance However as mentioned above these measures are aimed at managingboat behaviour rather than boat numbers We are concerned that even if all boatsbehave according to best practice the presence of a significant number of additionalboats in a core area of the SAC will adversel affect the dol hins

Based on the mitioation measures described we would thereforemaintain our obiection in relation to impacts on the dolphins because we considerthat the applicant has failed to demonstrate that the proposal will not adversely affectthe inteoritv of the Morav Firth SAC

In relation to points a) and b) above the notion of reducing the number of boats usingthe marina and gradually increasing them over time (linked to a robust monitoringprogramme) has already been discussed with the applicant and they are content in

9

principle with this approach However they have indicated that they would consideran jnitial number of 150 boats as being appropriate with numbers building to 300 overa period of time Although we understand the business case for having a marina of aminimum size we are not in a position to agree to a specific number of boats at thisstage in terms of either an initial starting point or a final number of vessels Furtherspecialist advice would need to be sought by the applicant as to a suitable number ofboats to start with The number of boats in the marina should not be increased unlessthe results of monitoring (or other relevant sources of information) clearlydemonstrate that such an increase would not have an adverse effect on the integrityof the SAC

262 Construction noise

We consider that we now have sufficient information in order to be able to adequatelyassess the proposal in relation to construction noise Based on the informationprovided we consider that the proposal is likely to have a sionificant effect on thebottlenose dolphin interest of the Moray Firth SAC These effects relate to noisegenerated during the construction phases of the work disturbing dolphins that may bepresent in the adjacent waters However if the mitigation measures described in theJonathan David report2 submitted as part of the application and the measuresdescribed in points a) and b) below are covered by conditions or legal agreements toany consent granted then this significant effect can be avoided

a) Pile driving and suction dredging operations should be limited to the wintermonths (Le between October and March) when the dolphins are less likely to bepresent

b) The exclusion zone for dolphins during noisy operations should be increasedfrom 500 metres to within sight of the construction zone

These conditionslegal agreements must be confirmed by THC as competentauthority or through the submission of a revised application

263 Wastewater treatment

On a number of occasions in the past we requested clarification from the applicantabout the level of wastewater treatment We have not received confirmation aboutthe proposed level of treatment

SNH will obiect to a future application by the applicant to SEPA under the WaterEnvironment (Controlled Activities)(Scotland) Reoulations 2005 in relation to thepotential impact on the dolphins unless that authorisation is made subiect to thefollowino conditions

2 Jonathan David 2006 An assessment of the potential impact of construction ofthe proposed Whiteness marina on populations of bottlenose dolphins (Tursiopstruncatus) and harbour porpoises (Phocoena phocoena)

10

a) An assessment should be made as to whether the discharge is likely to bemade within or adjacent to areas frequently used by dolphins

b) If the proposed discharge will be made into waters considered to be within oradjacent to areas frequently used by dolphins modelling work should beundertaken to identify the likely dispersion of the discharge within a 24-hourperiod

c) If the discharge disperses into areas known to be frequently used by dolphinsthen the treatment level should be set so as to ensure that mandatoryrecreational water standards will be met at the 95th percentile

d) If chemical treatment would be required to meet the recreational waterstandard then an assessment must also be made as to the likely potentialimpact on the dolphins

e) The applicant should agree the wastewater discharge with S-EPA inconsultation with SNH

3 MORAY FIRTH SAC SUBMERGED SANDBANKS

On a number of occasions in the past we recommended that the applicant provide anassessment of the pollutants likely to arise from the operation of the marina shouldbe carried out and that a description of the arrangements put in place to managethese pollutants should be provided Although the applicant has not provided anassessment of the pollutants likely to arise from the marina they have providedguidance regarding best practice for boat wash down cleaning and maintenanceUnfortunately the source of this guidance was not referenced however we believethat it has been taken from the Environmental Code of Practice prepared by theBritish Marine Industries Federation

SNH obiects to the proposed development in relation to the potential impact on thesubmerqed sandbank feature unless it is made subiect to the followinq condition

a) The marina should be managed strictly in accordance with SEPAs PollutionPrevention Guideline 14 Marinas and Craft SeewwwsepaorQukpdfquidanceppqppq14pdf for further information

b) Harbour Leasing conditions should be put in place and monitored to ensurethat there is no discharge of wastewater from vessels into the marina area

11

the situation during both the construction phase and post-development it wouldbe desirable to extend the monitoring season from August through to May Thiswould involve obtaining professional coverage for the period of the year notcovered by the existing WeBs winter counts The applicant should also

undertake monitoring of the behavioural responses of water birds to disturbanceand quantifying the success of mitigation measures taken to minimise negativeimpacts Details about how the monitoring will be applied in the short mediumand longer terms should be clearly identified and binding on the applicant

d) Disturbance from construction activity was identified as a potential issue in theBTO report The applicant should therefore ensure that potentially disturbingoperations in the vicinity of sensitive bird areas should be undertaken at times ofthe year when the qualifying bird species are absent

We consider that the applicant should come forward with details on conditions b) tod) above for agreement by THC (as competent authority) in consultation with SNH tis also important to note that although we will consider removing our objection inrelation to condition b) if an appropriate mechanism is identified we do notunderestimate the difficultv in meeting this condition Should such a mechanism notbe identified to the satisfaction of The Highland Council in consultation with SNH thenwe will maintain our obiection in relation to the SPA and Ramsar site

Supplementary information has been provided on expected boat numbers andmovements from the proposed marina what a marine chart might involve and howboats using the marina are expected to behave Boat usage across a wider area hasbeen acknowledged and therefore the issue of cumulative impact has largely beenaddressed Two reports prepared by Dr Jonathan David have described the likelynoise generated by boat traffic and onshore construction and the effects that this~~ht have on dol hins and or oises lm~It~ Jgg~lsect~Lgt ~

7

24 Noise associated with onshore construction

We have received further information on the likely impact of noise generated duringthe construction phase of the work together with potential mitigation measures

8

25 Pollution arising from the wastewater disposal

No further information on the proposed level of wastewater treatment has beenprovided

The mitigation measures proposed will go a long way to reducing impacts ofdisturbance However as mentioned above these measures are aimed at managingboat behaviour rather than boat numbers We are concerned that even if all boatsbehave according to best practice the presence of a significant number of additionalboats in a core area of the SAC will adversel affect the dol hins

Based on the mitioation measures described we would thereforemaintain our obiection in relation to impacts on the dolphins because we considerthat the applicant has failed to demonstrate that the proposal will not adversely affectthe inteoritv of the Morav Firth SAC

In relation to points a) and b) above the notion of reducing the number of boats usingthe marina and gradually increasing them over time (linked to a robust monitoringprogramme) has already been discussed with the applicant and they are content in

9

principle with this approach However they have indicated that they would consideran jnitial number of 150 boats as being appropriate with numbers building to 300 overa period of time Although we understand the business case for having a marina of aminimum size we are not in a position to agree to a specific number of boats at thisstage in terms of either an initial starting point or a final number of vessels Furtherspecialist advice would need to be sought by the applicant as to a suitable number ofboats to start with The number of boats in the marina should not be increased unlessthe results of monitoring (or other relevant sources of information) clearlydemonstrate that such an increase would not have an adverse effect on the integrityof the SAC

262 Construction noise

We consider that we now have sufficient information in order to be able to adequatelyassess the proposal in relation to construction noise Based on the informationprovided we consider that the proposal is likely to have a sionificant effect on thebottlenose dolphin interest of the Moray Firth SAC These effects relate to noisegenerated during the construction phases of the work disturbing dolphins that may bepresent in the adjacent waters However if the mitigation measures described in theJonathan David report2 submitted as part of the application and the measuresdescribed in points a) and b) below are covered by conditions or legal agreements toany consent granted then this significant effect can be avoided

a) Pile driving and suction dredging operations should be limited to the wintermonths (Le between October and March) when the dolphins are less likely to bepresent

b) The exclusion zone for dolphins during noisy operations should be increasedfrom 500 metres to within sight of the construction zone

These conditionslegal agreements must be confirmed by THC as competentauthority or through the submission of a revised application

263 Wastewater treatment

On a number of occasions in the past we requested clarification from the applicantabout the level of wastewater treatment We have not received confirmation aboutthe proposed level of treatment

SNH will obiect to a future application by the applicant to SEPA under the WaterEnvironment (Controlled Activities)(Scotland) Reoulations 2005 in relation to thepotential impact on the dolphins unless that authorisation is made subiect to thefollowino conditions

2 Jonathan David 2006 An assessment of the potential impact of construction ofthe proposed Whiteness marina on populations of bottlenose dolphins (Tursiopstruncatus) and harbour porpoises (Phocoena phocoena)

10

a) An assessment should be made as to whether the discharge is likely to bemade within or adjacent to areas frequently used by dolphins

b) If the proposed discharge will be made into waters considered to be within oradjacent to areas frequently used by dolphins modelling work should beundertaken to identify the likely dispersion of the discharge within a 24-hourperiod

c) If the discharge disperses into areas known to be frequently used by dolphinsthen the treatment level should be set so as to ensure that mandatoryrecreational water standards will be met at the 95th percentile

d) If chemical treatment would be required to meet the recreational waterstandard then an assessment must also be made as to the likely potentialimpact on the dolphins

e) The applicant should agree the wastewater discharge with S-EPA inconsultation with SNH

3 MORAY FIRTH SAC SUBMERGED SANDBANKS

On a number of occasions in the past we recommended that the applicant provide anassessment of the pollutants likely to arise from the operation of the marina shouldbe carried out and that a description of the arrangements put in place to managethese pollutants should be provided Although the applicant has not provided anassessment of the pollutants likely to arise from the marina they have providedguidance regarding best practice for boat wash down cleaning and maintenanceUnfortunately the source of this guidance was not referenced however we believethat it has been taken from the Environmental Code of Practice prepared by theBritish Marine Industries Federation

SNH obiects to the proposed development in relation to the potential impact on thesubmerqed sandbank feature unless it is made subiect to the followinq condition

a) The marina should be managed strictly in accordance with SEPAs PollutionPrevention Guideline 14 Marinas and Craft SeewwwsepaorQukpdfquidanceppqppq14pdf for further information

b) Harbour Leasing conditions should be put in place and monitored to ensurethat there is no discharge of wastewater from vessels into the marina area

11

24 Noise associated with onshore construction

We have received further information on the likely impact of noise generated duringthe construction phase of the work together with potential mitigation measures

8

25 Pollution arising from the wastewater disposal

No further information on the proposed level of wastewater treatment has beenprovided

The mitigation measures proposed will go a long way to reducing impacts ofdisturbance However as mentioned above these measures are aimed at managingboat behaviour rather than boat numbers We are concerned that even if all boatsbehave according to best practice the presence of a significant number of additionalboats in a core area of the SAC will adversel affect the dol hins

Based on the mitioation measures described we would thereforemaintain our obiection in relation to impacts on the dolphins because we considerthat the applicant has failed to demonstrate that the proposal will not adversely affectthe inteoritv of the Morav Firth SAC

In relation to points a) and b) above the notion of reducing the number of boats usingthe marina and gradually increasing them over time (linked to a robust monitoringprogramme) has already been discussed with the applicant and they are content in

9

principle with this approach However they have indicated that they would consideran jnitial number of 150 boats as being appropriate with numbers building to 300 overa period of time Although we understand the business case for having a marina of aminimum size we are not in a position to agree to a specific number of boats at thisstage in terms of either an initial starting point or a final number of vessels Furtherspecialist advice would need to be sought by the applicant as to a suitable number ofboats to start with The number of boats in the marina should not be increased unlessthe results of monitoring (or other relevant sources of information) clearlydemonstrate that such an increase would not have an adverse effect on the integrityof the SAC

262 Construction noise

We consider that we now have sufficient information in order to be able to adequatelyassess the proposal in relation to construction noise Based on the informationprovided we consider that the proposal is likely to have a sionificant effect on thebottlenose dolphin interest of the Moray Firth SAC These effects relate to noisegenerated during the construction phases of the work disturbing dolphins that may bepresent in the adjacent waters However if the mitigation measures described in theJonathan David report2 submitted as part of the application and the measuresdescribed in points a) and b) below are covered by conditions or legal agreements toany consent granted then this significant effect can be avoided

a) Pile driving and suction dredging operations should be limited to the wintermonths (Le between October and March) when the dolphins are less likely to bepresent

b) The exclusion zone for dolphins during noisy operations should be increasedfrom 500 metres to within sight of the construction zone

These conditionslegal agreements must be confirmed by THC as competentauthority or through the submission of a revised application

263 Wastewater treatment

On a number of occasions in the past we requested clarification from the applicantabout the level of wastewater treatment We have not received confirmation aboutthe proposed level of treatment

SNH will obiect to a future application by the applicant to SEPA under the WaterEnvironment (Controlled Activities)(Scotland) Reoulations 2005 in relation to thepotential impact on the dolphins unless that authorisation is made subiect to thefollowino conditions

2 Jonathan David 2006 An assessment of the potential impact of construction ofthe proposed Whiteness marina on populations of bottlenose dolphins (Tursiopstruncatus) and harbour porpoises (Phocoena phocoena)

10

a) An assessment should be made as to whether the discharge is likely to bemade within or adjacent to areas frequently used by dolphins

b) If the proposed discharge will be made into waters considered to be within oradjacent to areas frequently used by dolphins modelling work should beundertaken to identify the likely dispersion of the discharge within a 24-hourperiod

c) If the discharge disperses into areas known to be frequently used by dolphinsthen the treatment level should be set so as to ensure that mandatoryrecreational water standards will be met at the 95th percentile

d) If chemical treatment would be required to meet the recreational waterstandard then an assessment must also be made as to the likely potentialimpact on the dolphins

e) The applicant should agree the wastewater discharge with S-EPA inconsultation with SNH

3 MORAY FIRTH SAC SUBMERGED SANDBANKS

On a number of occasions in the past we recommended that the applicant provide anassessment of the pollutants likely to arise from the operation of the marina shouldbe carried out and that a description of the arrangements put in place to managethese pollutants should be provided Although the applicant has not provided anassessment of the pollutants likely to arise from the marina they have providedguidance regarding best practice for boat wash down cleaning and maintenanceUnfortunately the source of this guidance was not referenced however we believethat it has been taken from the Environmental Code of Practice prepared by theBritish Marine Industries Federation

SNH obiects to the proposed development in relation to the potential impact on thesubmerqed sandbank feature unless it is made subiect to the followinq condition

a) The marina should be managed strictly in accordance with SEPAs PollutionPrevention Guideline 14 Marinas and Craft SeewwwsepaorQukpdfquidanceppqppq14pdf for further information

b) Harbour Leasing conditions should be put in place and monitored to ensurethat there is no discharge of wastewater from vessels into the marina area

11

25 Pollution arising from the wastewater disposal

No further information on the proposed level of wastewater treatment has beenprovided

The mitigation measures proposed will go a long way to reducing impacts ofdisturbance However as mentioned above these measures are aimed at managingboat behaviour rather than boat numbers We are concerned that even if all boatsbehave according to best practice the presence of a significant number of additionalboats in a core area of the SAC will adversel affect the dol hins

Based on the mitioation measures described we would thereforemaintain our obiection in relation to impacts on the dolphins because we considerthat the applicant has failed to demonstrate that the proposal will not adversely affectthe inteoritv of the Morav Firth SAC

In relation to points a) and b) above the notion of reducing the number of boats usingthe marina and gradually increasing them over time (linked to a robust monitoringprogramme) has already been discussed with the applicant and they are content in

9

principle with this approach However they have indicated that they would consideran jnitial number of 150 boats as being appropriate with numbers building to 300 overa period of time Although we understand the business case for having a marina of aminimum size we are not in a position to agree to a specific number of boats at thisstage in terms of either an initial starting point or a final number of vessels Furtherspecialist advice would need to be sought by the applicant as to a suitable number ofboats to start with The number of boats in the marina should not be increased unlessthe results of monitoring (or other relevant sources of information) clearlydemonstrate that such an increase would not have an adverse effect on the integrityof the SAC

262 Construction noise

We consider that we now have sufficient information in order to be able to adequatelyassess the proposal in relation to construction noise Based on the informationprovided we consider that the proposal is likely to have a sionificant effect on thebottlenose dolphin interest of the Moray Firth SAC These effects relate to noisegenerated during the construction phases of the work disturbing dolphins that may bepresent in the adjacent waters However if the mitigation measures described in theJonathan David report2 submitted as part of the application and the measuresdescribed in points a) and b) below are covered by conditions or legal agreements toany consent granted then this significant effect can be avoided

a) Pile driving and suction dredging operations should be limited to the wintermonths (Le between October and March) when the dolphins are less likely to bepresent

b) The exclusion zone for dolphins during noisy operations should be increasedfrom 500 metres to within sight of the construction zone

These conditionslegal agreements must be confirmed by THC as competentauthority or through the submission of a revised application

263 Wastewater treatment

On a number of occasions in the past we requested clarification from the applicantabout the level of wastewater treatment We have not received confirmation aboutthe proposed level of treatment

SNH will obiect to a future application by the applicant to SEPA under the WaterEnvironment (Controlled Activities)(Scotland) Reoulations 2005 in relation to thepotential impact on the dolphins unless that authorisation is made subiect to thefollowino conditions

2 Jonathan David 2006 An assessment of the potential impact of construction ofthe proposed Whiteness marina on populations of bottlenose dolphins (Tursiopstruncatus) and harbour porpoises (Phocoena phocoena)

10

a) An assessment should be made as to whether the discharge is likely to bemade within or adjacent to areas frequently used by dolphins

b) If the proposed discharge will be made into waters considered to be within oradjacent to areas frequently used by dolphins modelling work should beundertaken to identify the likely dispersion of the discharge within a 24-hourperiod

c) If the discharge disperses into areas known to be frequently used by dolphinsthen the treatment level should be set so as to ensure that mandatoryrecreational water standards will be met at the 95th percentile

d) If chemical treatment would be required to meet the recreational waterstandard then an assessment must also be made as to the likely potentialimpact on the dolphins

e) The applicant should agree the wastewater discharge with S-EPA inconsultation with SNH

3 MORAY FIRTH SAC SUBMERGED SANDBANKS

On a number of occasions in the past we recommended that the applicant provide anassessment of the pollutants likely to arise from the operation of the marina shouldbe carried out and that a description of the arrangements put in place to managethese pollutants should be provided Although the applicant has not provided anassessment of the pollutants likely to arise from the marina they have providedguidance regarding best practice for boat wash down cleaning and maintenanceUnfortunately the source of this guidance was not referenced however we believethat it has been taken from the Environmental Code of Practice prepared by theBritish Marine Industries Federation

SNH obiects to the proposed development in relation to the potential impact on thesubmerqed sandbank feature unless it is made subiect to the followinq condition

a) The marina should be managed strictly in accordance with SEPAs PollutionPrevention Guideline 14 Marinas and Craft SeewwwsepaorQukpdfquidanceppqppq14pdf for further information

b) Harbour Leasing conditions should be put in place and monitored to ensurethat there is no discharge of wastewater from vessels into the marina area

11

principle with this approach However they have indicated that they would consideran jnitial number of 150 boats as being appropriate with numbers building to 300 overa period of time Although we understand the business case for having a marina of aminimum size we are not in a position to agree to a specific number of boats at thisstage in terms of either an initial starting point or a final number of vessels Furtherspecialist advice would need to be sought by the applicant as to a suitable number ofboats to start with The number of boats in the marina should not be increased unlessthe results of monitoring (or other relevant sources of information) clearlydemonstrate that such an increase would not have an adverse effect on the integrityof the SAC

262 Construction noise

We consider that we now have sufficient information in order to be able to adequatelyassess the proposal in relation to construction noise Based on the informationprovided we consider that the proposal is likely to have a sionificant effect on thebottlenose dolphin interest of the Moray Firth SAC These effects relate to noisegenerated during the construction phases of the work disturbing dolphins that may bepresent in the adjacent waters However if the mitigation measures described in theJonathan David report2 submitted as part of the application and the measuresdescribed in points a) and b) below are covered by conditions or legal agreements toany consent granted then this significant effect can be avoided

a) Pile driving and suction dredging operations should be limited to the wintermonths (Le between October and March) when the dolphins are less likely to bepresent

b) The exclusion zone for dolphins during noisy operations should be increasedfrom 500 metres to within sight of the construction zone

These conditionslegal agreements must be confirmed by THC as competentauthority or through the submission of a revised application

263 Wastewater treatment

On a number of occasions in the past we requested clarification from the applicantabout the level of wastewater treatment We have not received confirmation aboutthe proposed level of treatment

SNH will obiect to a future application by the applicant to SEPA under the WaterEnvironment (Controlled Activities)(Scotland) Reoulations 2005 in relation to thepotential impact on the dolphins unless that authorisation is made subiect to thefollowino conditions

2 Jonathan David 2006 An assessment of the potential impact of construction ofthe proposed Whiteness marina on populations of bottlenose dolphins (Tursiopstruncatus) and harbour porpoises (Phocoena phocoena)

10

a) An assessment should be made as to whether the discharge is likely to bemade within or adjacent to areas frequently used by dolphins

b) If the proposed discharge will be made into waters considered to be within oradjacent to areas frequently used by dolphins modelling work should beundertaken to identify the likely dispersion of the discharge within a 24-hourperiod

c) If the discharge disperses into areas known to be frequently used by dolphinsthen the treatment level should be set so as to ensure that mandatoryrecreational water standards will be met at the 95th percentile

d) If chemical treatment would be required to meet the recreational waterstandard then an assessment must also be made as to the likely potentialimpact on the dolphins

e) The applicant should agree the wastewater discharge with S-EPA inconsultation with SNH

3 MORAY FIRTH SAC SUBMERGED SANDBANKS

On a number of occasions in the past we recommended that the applicant provide anassessment of the pollutants likely to arise from the operation of the marina shouldbe carried out and that a description of the arrangements put in place to managethese pollutants should be provided Although the applicant has not provided anassessment of the pollutants likely to arise from the marina they have providedguidance regarding best practice for boat wash down cleaning and maintenanceUnfortunately the source of this guidance was not referenced however we believethat it has been taken from the Environmental Code of Practice prepared by theBritish Marine Industries Federation

SNH obiects to the proposed development in relation to the potential impact on thesubmerqed sandbank feature unless it is made subiect to the followinq condition

a) The marina should be managed strictly in accordance with SEPAs PollutionPrevention Guideline 14 Marinas and Craft SeewwwsepaorQukpdfquidanceppqppq14pdf for further information

b) Harbour Leasing conditions should be put in place and monitored to ensurethat there is no discharge of wastewater from vessels into the marina area

11

a) An assessment should be made as to whether the discharge is likely to bemade within or adjacent to areas frequently used by dolphins

b) If the proposed discharge will be made into waters considered to be within oradjacent to areas frequently used by dolphins modelling work should beundertaken to identify the likely dispersion of the discharge within a 24-hourperiod

c) If the discharge disperses into areas known to be frequently used by dolphinsthen the treatment level should be set so as to ensure that mandatoryrecreational water standards will be met at the 95th percentile

d) If chemical treatment would be required to meet the recreational waterstandard then an assessment must also be made as to the likely potentialimpact on the dolphins

e) The applicant should agree the wastewater discharge with S-EPA inconsultation with SNH

3 MORAY FIRTH SAC SUBMERGED SANDBANKS

On a number of occasions in the past we recommended that the applicant provide anassessment of the pollutants likely to arise from the operation of the marina shouldbe carried out and that a description of the arrangements put in place to managethese pollutants should be provided Although the applicant has not provided anassessment of the pollutants likely to arise from the marina they have providedguidance regarding best practice for boat wash down cleaning and maintenanceUnfortunately the source of this guidance was not referenced however we believethat it has been taken from the Environmental Code of Practice prepared by theBritish Marine Industries Federation

SNH obiects to the proposed development in relation to the potential impact on thesubmerqed sandbank feature unless it is made subiect to the followinq condition

a) The marina should be managed strictly in accordance with SEPAs PollutionPrevention Guideline 14 Marinas and Craft SeewwwsepaorQukpdfquidanceppqppq14pdf for further information

b) Harbour Leasing conditions should be put in place and monitored to ensurethat there is no discharge of wastewater from vessels into the marina area

11

5 INNER MORAY FIRTH RAMSAR SITE I WHITENESS HEAD SSSI

On a number of occasions in the past we highlighted to the applicant the potential fordamage and disturbance to the saltmarsh and shingle interests of the Ramsar siteand SSSI as a result of increased visitor pressure and works associated withdredging operations active management of the spit and installation of the sewageoutfall pipe More recently correspondence regarding the Flood Risk Assessmentrefers to the possibility of new roads being constructed to address future floodingissues

51 Visitor pressure

We consider that a key element in determining the acceptability of increased visitorpressure on the saltmarsh and shingle interests would be through the development ofan effective Access Management Plan (AMP) SNH obiects to the potential impact ofincreased visitor pressure on the saltmarsh and shingle features of the Morav FirthRamsar site and SSSI unless it is made subiect to the following conditions

a) Prior to the occupation of the first dwelling effective and detailed measuresshould be put in place that ensure there are no adverse affects on theintegrity of the saltmarsh and shingle interests of the Moray Firth RamsarsiteSSSI These measures should be agreed with THC in consultation withSNH

b) The footbridge to the spit should be removed from the proposal

12

52IfSLf~gma1DsillmiaililfiEBigampRjt~ installation of new roads andinstallation of the sewage outfall pipe

a planto manage vehicular access to the sensitive designated features and a methodstatement describing how the proposed sewage pipeline will be laid across thesaltmarsh channel and shingle spit (including options for trenching)

The applicant has provided us with some but not all of this information We havereceived the indicative short-term management proposed for the spit I channel areaAn outline method statement for the i eline route across the saltmarsh has beensu plied However -cif

The method statement for the outfall pipe does notrefer to the spit and trenching options have not been considered

c) Options for installing the outfall pipe should be submitted for consideration by

The Highland Council in consultation with SNH One option should considerthe use of directional drilling as a means to install the pipe The option that isleast damaging to the SSSI should be adopted unless there are good reasonsfor not doing so

d) For the chosen option of installation details of the design location andposition of the proposed pipeline both over the spit and as it passes out tosea should be provided for agreement by The Highland Council inconsultation with SNH This should include a map defining the route of thepipeline together with information on mitigation measures to safeguard thedesignated interests The methodology needs to reflect the internal structureof the saltmarsh

e) Details of any new emergency roads to be constructed within the SSSI aspart of the perceived flood risk together with mitigation measures to reduceimpacts to acceptable levels should be provided for agreement by TheHighland Council in consultation with SNH

13

The Highland CouncilPlanning amp DevelopmentGlenurquhart RoadINVERNESSIV3 5NX

For the attention of David Mudie

Dear Mr Mudie

Our ref CNSDCHIIIVABPOPPYour ref 05012940UTIN DMCC

16 February 2006

TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997ENVIRONMENTAL IMPACT ASSESSMENT (SCOTLAND) REGULATIONS 1999OUTLINE PLANNING APPLICATION FOR RESIDENTIAL AND LEISUREDEVELOPMENT INCLUDING HOUSING MARINA BOAT YARD VISITORSCENTRE NATURE CONSERVATION ZONES AND HOTEL WITH SUPPORTINGCOMMUNITY FACILITIES AND SEWAGE TREATMENT PLANT AT THE FORMERFABRICATION YARD WHITENESS ARDERSIERMORAY FIRTH SPECIAL AREA OF CONSERVATION (SAC)INNER MORAY FIRTH SPECIAL PROTECTION AREA (SPA)INNER MORAY FIRTH RAMSAR SITEWHITENESS HEAD SITE OF SPECIAL SCIENTIFIC INTEREST (SSSI)

Thank you for inviting comments from Scottish Natural Heritage on the aboveapplication for outline planning permission

We welcome the use of brown fields sites for major development proposals such asthis and we acknowledge the work that the developer has done to address widersustainability issues and opportunities We are also pleased to note the intention ofthe developer to maximise positive environmental benefits from the development aswell as the recognition that the natural heritage is a major potential marketing tool atthis site

We do however have some serious concerns about weaknesses in theEnvironmental Statement (ES) particularly in relation to the assessment of adverseaffects on the designated natural heritage interests adjacent to the site and thesuggested approaches to access management These concerns are summarised insection 2 below and our assessment given in more detail in Annex A

1 BACKGROUND

The proposal is located on and surrounding the site of the former Ardersierfabrication yard and lies on the south shore of the Moray Firth approximately 7 kmwest of Nairn The proposals include plans for 1950 houses with associatedwoodland and wetland landscaping as well as marina berths for up to 500 boats

1

The proposals incorporate mitigation for the adjacent designated sites of WhitenessHead and the Moray Firth as well as some additional habitat management andenhancement

2 POSITION

21 Scottish Natural Heritage objects to the proposal on the followinggrounds

bull The development could have potentially serious adverse impacts on importantnatural heritage interests At this stage there is insufficient information toascertain that there will be no adverse effect on the integrity of the Moray FirthSAC and the Inner Moray Firth SPA and Ramsar sites

bull On the basis of the information available it is likely that the proposal will havean adverse effect on the integrity of the Moray Firth SAC We will reconsiderthis view once the applicant has provided further information

bull The development could potentially affect European Protected Speciesnamely dolphins and porpoises We have insufficient information to advise theCouncil as to whether the development will or will not be detrimental to themaintenance of the populations of these species at a favourable conservationstatus

bull The development is likely to adversely affect the geomorphologicalsaltmarsh shingle and wintering bird interests of the Whiteness Head SSSI

22 In addition the mitigation associated with the proposed development mayaffect public access to and enjoyment of the natural heritage in such amanner that is not compliant with the Land Reform Act 2003 and theassociated Scottish Outdoor Access Code We make a number ofrecommendations how to address access management at the site

23 We make a number of recommendations to mitigate the impact of theproposal on otter great crested newts bats local biodiversity action planspecies and landscape and visual amenity

24middot We are concerned about disturbance to the designated wildlife and habitatinterests adjacent to the development area from increased visitor pressure and wehighlight that in order for the proposal to be acceptable to SNH then clear andenforceable mitigation measures to safeguard these interests should be identifiedand implemented

As this proposal affects a number of European sites you are respectfully reminded ofthe requirement to notify the Scottish Ministers if your Council is minded to approveplanning consent against SNHs advice in this case

2

If you need any further information or advice from SNH in relation to this proposalthen please contact Ben Leyshon (benLevshonsnhQovuk) at this office in the firstinstance

Yours sincerely

GEORGE HOGGArea Manager - East Highlandemail QeoraehoQsnhQovuk

3

52IfSLf~gma1DsillmiaililfiEBigampRjt~ installation of new roads andinstallation of the sewage outfall pipe

a planto manage vehicular access to the sensitive designated features and a methodstatement describing how the proposed sewage pipeline will be laid across thesaltmarsh channel and shingle spit (including options for trenching)

The applicant has provided us with some but not all of this information We havereceived the indicative short-term management proposed for the spit I channel areaAn outline method statement for the i eline route across the saltmarsh has beensu plied However -cif

The method statement for the outfall pipe does notrefer to the spit and trenching options have not been considered

c) Options for installing the outfall pipe should be submitted for consideration by

The Highland Council in consultation with SNH One option should considerthe use of directional drilling as a means to install the pipe The option that isleast damaging to the SSSI should be adopted unless there are good reasonsfor not doing so

d) For the chosen option of installation details of the design location andposition of the proposed pipeline both over the spit and as it passes out tosea should be provided for agreement by The Highland Council inconsultation with SNH This should include a map defining the route of thepipeline together with information on mitigation measures to safeguard thedesignated interests The methodology needs to reflect the internal structureof the saltmarsh

e) Details of any new emergency roads to be constructed within the SSSI aspart of the perceived flood risk together with mitigation measures to reduceimpacts to acceptable levels should be provided for agreement by TheHighland Council in consultation with SNH

13

The Highland CouncilPlanning amp DevelopmentGlenurquhart RoadINVERNESSIV3 5NX

For the attention of David Mudie

Dear Mr Mudie

Our ref CNSDCHIIIVABPOPPYour ref 05012940UTIN DMCC

16 February 2006

TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997ENVIRONMENTAL IMPACT ASSESSMENT (SCOTLAND) REGULATIONS 1999OUTLINE PLANNING APPLICATION FOR RESIDENTIAL AND LEISUREDEVELOPMENT INCLUDING HOUSING MARINA BOAT YARD VISITORSCENTRE NATURE CONSERVATION ZONES AND HOTEL WITH SUPPORTINGCOMMUNITY FACILITIES AND SEWAGE TREATMENT PLANT AT THE FORMERFABRICATION YARD WHITENESS ARDERSIERMORAY FIRTH SPECIAL AREA OF CONSERVATION (SAC)INNER MORAY FIRTH SPECIAL PROTECTION AREA (SPA)INNER MORAY FIRTH RAMSAR SITEWHITENESS HEAD SITE OF SPECIAL SCIENTIFIC INTEREST (SSSI)

Thank you for inviting comments from Scottish Natural Heritage on the aboveapplication for outline planning permission

We welcome the use of brown fields sites for major development proposals such asthis and we acknowledge the work that the developer has done to address widersustainability issues and opportunities We are also pleased to note the intention ofthe developer to maximise positive environmental benefits from the development aswell as the recognition that the natural heritage is a major potential marketing tool atthis site

We do however have some serious concerns about weaknesses in theEnvironmental Statement (ES) particularly in relation to the assessment of adverseaffects on the designated natural heritage interests adjacent to the site and thesuggested approaches to access management These concerns are summarised insection 2 below and our assessment given in more detail in Annex A

1 BACKGROUND

The proposal is located on and surrounding the site of the former Ardersierfabrication yard and lies on the south shore of the Moray Firth approximately 7 kmwest of Nairn The proposals include plans for 1950 houses with associatedwoodland and wetland landscaping as well as marina berths for up to 500 boats

1

The proposals incorporate mitigation for the adjacent designated sites of WhitenessHead and the Moray Firth as well as some additional habitat management andenhancement

2 POSITION

21 Scottish Natural Heritage objects to the proposal on the followinggrounds

bull The development could have potentially serious adverse impacts on importantnatural heritage interests At this stage there is insufficient information toascertain that there will be no adverse effect on the integrity of the Moray FirthSAC and the Inner Moray Firth SPA and Ramsar sites

bull On the basis of the information available it is likely that the proposal will havean adverse effect on the integrity of the Moray Firth SAC We will reconsiderthis view once the applicant has provided further information

bull The development could potentially affect European Protected Speciesnamely dolphins and porpoises We have insufficient information to advise theCouncil as to whether the development will or will not be detrimental to themaintenance of the populations of these species at a favourable conservationstatus

bull The development is likely to adversely affect the geomorphologicalsaltmarsh shingle and wintering bird interests of the Whiteness Head SSSI

22 In addition the mitigation associated with the proposed development mayaffect public access to and enjoyment of the natural heritage in such amanner that is not compliant with the Land Reform Act 2003 and theassociated Scottish Outdoor Access Code We make a number ofrecommendations how to address access management at the site

23 We make a number of recommendations to mitigate the impact of theproposal on otter great crested newts bats local biodiversity action planspecies and landscape and visual amenity

24middot We are concerned about disturbance to the designated wildlife and habitatinterests adjacent to the development area from increased visitor pressure and wehighlight that in order for the proposal to be acceptable to SNH then clear andenforceable mitigation measures to safeguard these interests should be identifiedand implemented

As this proposal affects a number of European sites you are respectfully reminded ofthe requirement to notify the Scottish Ministers if your Council is minded to approveplanning consent against SNHs advice in this case

2

If you need any further information or advice from SNH in relation to this proposalthen please contact Ben Leyshon (benLevshonsnhQovuk) at this office in the firstinstance

Yours sincerely

GEORGE HOGGArea Manager - East Highlandemail QeoraehoQsnhQovuk

3

The Highland CouncilPlanning amp DevelopmentGlenurquhart RoadINVERNESSIV3 5NX

For the attention of David Mudie

Dear Mr Mudie

Our ref CNSDCHIIIVABPOPPYour ref 05012940UTIN DMCC

16 February 2006

TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997ENVIRONMENTAL IMPACT ASSESSMENT (SCOTLAND) REGULATIONS 1999OUTLINE PLANNING APPLICATION FOR RESIDENTIAL AND LEISUREDEVELOPMENT INCLUDING HOUSING MARINA BOAT YARD VISITORSCENTRE NATURE CONSERVATION ZONES AND HOTEL WITH SUPPORTINGCOMMUNITY FACILITIES AND SEWAGE TREATMENT PLANT AT THE FORMERFABRICATION YARD WHITENESS ARDERSIERMORAY FIRTH SPECIAL AREA OF CONSERVATION (SAC)INNER MORAY FIRTH SPECIAL PROTECTION AREA (SPA)INNER MORAY FIRTH RAMSAR SITEWHITENESS HEAD SITE OF SPECIAL SCIENTIFIC INTEREST (SSSI)

Thank you for inviting comments from Scottish Natural Heritage on the aboveapplication for outline planning permission

We welcome the use of brown fields sites for major development proposals such asthis and we acknowledge the work that the developer has done to address widersustainability issues and opportunities We are also pleased to note the intention ofthe developer to maximise positive environmental benefits from the development aswell as the recognition that the natural heritage is a major potential marketing tool atthis site

We do however have some serious concerns about weaknesses in theEnvironmental Statement (ES) particularly in relation to the assessment of adverseaffects on the designated natural heritage interests adjacent to the site and thesuggested approaches to access management These concerns are summarised insection 2 below and our assessment given in more detail in Annex A

1 BACKGROUND

The proposal is located on and surrounding the site of the former Ardersierfabrication yard and lies on the south shore of the Moray Firth approximately 7 kmwest of Nairn The proposals include plans for 1950 houses with associatedwoodland and wetland landscaping as well as marina berths for up to 500 boats

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The proposals incorporate mitigation for the adjacent designated sites of WhitenessHead and the Moray Firth as well as some additional habitat management andenhancement

2 POSITION

21 Scottish Natural Heritage objects to the proposal on the followinggrounds

bull The development could have potentially serious adverse impacts on importantnatural heritage interests At this stage there is insufficient information toascertain that there will be no adverse effect on the integrity of the Moray FirthSAC and the Inner Moray Firth SPA and Ramsar sites

bull On the basis of the information available it is likely that the proposal will havean adverse effect on the integrity of the Moray Firth SAC We will reconsiderthis view once the applicant has provided further information

bull The development could potentially affect European Protected Speciesnamely dolphins and porpoises We have insufficient information to advise theCouncil as to whether the development will or will not be detrimental to themaintenance of the populations of these species at a favourable conservationstatus

bull The development is likely to adversely affect the geomorphologicalsaltmarsh shingle and wintering bird interests of the Whiteness Head SSSI

22 In addition the mitigation associated with the proposed development mayaffect public access to and enjoyment of the natural heritage in such amanner that is not compliant with the Land Reform Act 2003 and theassociated Scottish Outdoor Access Code We make a number ofrecommendations how to address access management at the site

23 We make a number of recommendations to mitigate the impact of theproposal on otter great crested newts bats local biodiversity action planspecies and landscape and visual amenity

24middot We are concerned about disturbance to the designated wildlife and habitatinterests adjacent to the development area from increased visitor pressure and wehighlight that in order for the proposal to be acceptable to SNH then clear andenforceable mitigation measures to safeguard these interests should be identifiedand implemented

As this proposal affects a number of European sites you are respectfully reminded ofthe requirement to notify the Scottish Ministers if your Council is minded to approveplanning consent against SNHs advice in this case

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If you need any further information or advice from SNH in relation to this proposalthen please contact Ben Leyshon (benLevshonsnhQovuk) at this office in the firstinstance

Yours sincerely

GEORGE HOGGArea Manager - East Highlandemail QeoraehoQsnhQovuk

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The proposals incorporate mitigation for the adjacent designated sites of WhitenessHead and the Moray Firth as well as some additional habitat management andenhancement

2 POSITION

21 Scottish Natural Heritage objects to the proposal on the followinggrounds

bull The development could have potentially serious adverse impacts on importantnatural heritage interests At this stage there is insufficient information toascertain that there will be no adverse effect on the integrity of the Moray FirthSAC and the Inner Moray Firth SPA and Ramsar sites

bull On the basis of the information available it is likely that the proposal will havean adverse effect on the integrity of the Moray Firth SAC We will reconsiderthis view once the applicant has provided further information

bull The development could potentially affect European Protected Speciesnamely dolphins and porpoises We have insufficient information to advise theCouncil as to whether the development will or will not be detrimental to themaintenance of the populations of these species at a favourable conservationstatus

bull The development is likely to adversely affect the geomorphologicalsaltmarsh shingle and wintering bird interests of the Whiteness Head SSSI

22 In addition the mitigation associated with the proposed development mayaffect public access to and enjoyment of the natural heritage in such amanner that is not compliant with the Land Reform Act 2003 and theassociated Scottish Outdoor Access Code We make a number ofrecommendations how to address access management at the site

23 We make a number of recommendations to mitigate the impact of theproposal on otter great crested newts bats local biodiversity action planspecies and landscape and visual amenity

24middot We are concerned about disturbance to the designated wildlife and habitatinterests adjacent to the development area from increased visitor pressure and wehighlight that in order for the proposal to be acceptable to SNH then clear andenforceable mitigation measures to safeguard these interests should be identifiedand implemented

As this proposal affects a number of European sites you are respectfully reminded ofthe requirement to notify the Scottish Ministers if your Council is minded to approveplanning consent against SNHs advice in this case

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If you need any further information or advice from SNH in relation to this proposalthen please contact Ben Leyshon (benLevshonsnhQovuk) at this office in the firstinstance

Yours sincerely

GEORGE HOGGArea Manager - East Highlandemail QeoraehoQsnhQovuk

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If you need any further information or advice from SNH in relation to this proposalthen please contact Ben Leyshon (benLevshonsnhQovuk) at this office in the firstinstance

Yours sincerely

GEORGE HOGGArea Manager - East Highlandemail QeoraehoQsnhQovuk

3

ANNEX A

1 NATURAL HERITAGE INTERESTS

bull The Dornoch Firth and Morrich More SAC common sealsbull ~Qlfllmm~tm~IEI~tQWi~ otter bats and great

crested newtsbull The Inner Moray Firth Area of Great Landscape Valuebull The Inverness and Nairn Local Biodiversity Action Planbull Public recreation and access within the parameters of the Scottish Outdoor

Access Code (SOAC)

11 EUROPEAN SITES

This area is of special nature conservation importance classified because of itsoutstanding breeding bird and waterfowl assemblages The qualifying features arebreeding populations of common tern and osprey wintering populations of bar-tailedgodwit cormorant curlew goldeneye goosander greylag goose oystercatcher red-breasted merganser redshank scaup teal and wigeon The Inner Moray Firth areais one of very few sites in Britain to support significant numbers of these rare birdsThe Ramsar qualifying habitat features are mudflats sandflats saltmarsh dune andshingle

This site is designated for its bottlenose dolphins and its submerged sandbanks bothof which qualify for protection through the requirements of the EU Habitats DirectiveThe site is considered to be one of the best areas in the UK for these interests onaccount of their extent and condition and their contribution to the range of variationfound within this habitat in the UK

113 Dornoch Firth and Morrich More SAC

This site is designated for a range of European interests including common sealCommon seals are known to range widely throughout the Moray Firth and animalsthat regularly use the Dornoch Firth and Morrich More SAC are likely to use intertidalareas close to the Whiteness Head as a haul out sites

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f~~ are present throughout the year within the inner Moray Firth and althoughthey range widely they appear to favour particular areas with the near-shore watersaround the entrance to the Cromarty Firth Chanonry Point and Fort George andNorth and South Kessock being of particular importance Current research estimatesthat there are around 130 bottlenose dolphins living in the Moray Firth and due to itssmall size and relative isolation the population is vulnerable to both natural andhuman influences

aiamp-~are widespread around the UK coast and this species is commonlysighted in the Moray Firth including in the area around the proposed development

It is possible that otters are using the site It is likely that any otters present wouldmove along ditch systems and in between these the lagoon and the foreshore

We note that bats use a number of the buildings apparently for roosting malepipistrelles It is also possible that some of these buildings are providing refuges forhibernating bats during the winter

It is possible that great crested newts occupy the lagoon which contains fresh water

-~jijieJ~iii~Clr-- ~Ii-lt~JJlP~~jfi~~~WJi~smag~~sect]$I is notified for its 9gQ1tDJUtWm[gi~IlQ~9~Jt~its mudflat sanddune salt marsh and shingle habitats The plant communities typically associatedwith these habitats are also protected and of particular note are the lichen specieson the shingle spit The survey carried out as part of this Environmental ImpactAssessment identified 127 lichen taxa being recorded from the site including 15nationally scarce and 2 nationally rare species Vegetated shingle is not a particularlyabundant habitat in Scotland especially large areas of vegetated shingle and thissite has national value as a habitat for shingle lichens

The SSSI is also notified for its wintering populations of bar-tailed godwit and knotFor all of these features the site was designated on account of their condition andextentnumber and to ensure that representative examples were safeguarded acrosstheir GB range

14 LOCAL INTERESTS

A number of species listed within the UK or Inverness and Nairn Local BiodiversityAction Plan (LBAP) are known to occur within or close to the development footprintfor example the small blue and dingy skipper butterflies

The Moray Coast path traverses the coast westwards from Nairn and is occasionallyused by local people to gain access to the spit

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The character of the natural landscape is very strong and distinct the site is only asmall component of this landscape that is recognised for its breadth and extensivecharacter These qualities combined with the strength of character of thesurrounding landscape have resulted in the designation of the area as an Area ofGreat Landscape Value

211 Inner Moray Firth SPA I Ramsar site

We consider that the development has the potential to affect both the qualifying birdspecies and the habitats for which the SPA and Ramsar sites have been designatedImpacts on birds range from interrupted roosting or feeding to reduced survival orbreeding success Disturbance effects can arise through increased levels of stressincreased energy expenditure (through poorer feeding rates or increased flightactivity) reduced feeding success brought on by increased competition betweenbirds and greater exposure to predators These effects may occur singly or togetherin various combinations Effects are rarely easy to predict but post hoc empiricalevidence from other locations demonstrates that sensitive bird species are inevitablylost if levels of disturbance increase on important sites Impacts to the saltmarsh andshingle interests could arise from damage and disturbance to sensitive features as aresult of increased visitor pressure

In SNHs view the application package does not provide sufficient field surveyinformation on the wintering bird interest and the relative importance of nearby areasfor key activities such as feeding and roosting This is essential in order to assess thelikely impacts of the development on qualifying bird species On 19 October 2005SNH requested that Wetland Bird Survey (WeBS) counts would be doubled up in theperiod leading up to the submission of the planning application A bird surveyprotocol was subsequently agreed with the environmental consultant working for theapplicant - a copy of this protocol is attached at Annex B Data gathered as a resultof this agreed survey work has not been provided to SNH In addition theassessment of impacts in the ES lacks quantitative information about the likelyimpact of increased visitor pressure on the qualifying bird or habitat interests and theconclusions about likely impact that are provided in the ES are unsubstantiated

Our advice is that there is insufficient information to determine whether theproposal is likely to have a significant effect on the qualifying interests of thesites In order for this to be determined we recommend that the following additionalinformation be provided

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bull The distribution of high tide roosts and low tide feeding numbers (which areoften higher than roosting numbers) should be mapped using existing datawhere this is available and supplemented with new data where necessaryThe single winters WeBS data supplied with the planning application shouldbe supplemented with WeBS data from the previous 5 years

bull An analysis of the expected level of land and sea based recreational activityinto sensitive bird areas should be described and an assessment made aboutthe likely impacts of this on qualifying habitats and bird species

Mitigation measures to reduce potential impacts should be proposed Thepotential for creating and enhancing breeding and roosting habitat for birdswithin and adjacent to the site should also be explored

We consider that a key element in determining the acceptability of the proposal onthe qualifying habitats and species will be through the development of an effectiveAccess Management Plan Our comments on what this Plan should include aredescribed in section 25 below

Once this information has been provided SNH will be in a position to give furtherconsideration to this aspect of the proposal Until we are receipt of this additionalinformation then SNH object to this element of the proposal

Submerged sandbanks

As far as the submerged sandbank interest of the SAC is concerned our advice isthat there are likely to be significant effects in relation to the potential for pollutantsfrom the maintenance of the marina (eg through the use of anti-fouling paints andother biocides and detergents) entering the Firth At the scoping stage SNHrequested information about how the marina would be managed in order to mitigatecontaminants entering the Firth however we could not find any information on this inthe ES

Our advice is that there is insufficient information to determine whether theproposal is likely to have a significant effect on the sandbanks In order for thisto be determined we recommend that the following additional information beprovided

bull An assessment of the pollutants likely to arise from the operation of themarina and a description of the arrangements that will be put in place tomanage these pollutants

Once this information has been provided SNH will be in a position to give furtherconsideration to this aspect of the proposal Until we are receipt of this additionalinformation then SNH object to this element of the proposal

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Sewage discharges containother contaminants that can affect the health of the dolphins

We requested detailed information on the likely impacts of the proposal on thedolphins however some of the information we asked for was not provided in the ESTherefore our advice is that there is insufficient information to determinewhether the proposal is likely to have a significant effect on the dolphins Inorder for this to be determined we recommend that the following additionalinformation be provided

Onshore noise durinQ construction

bull Details about the level of noise generated during the construction phase ofwork and how this will be conveyed to the adjacent underwater environmentIf noise levels are significant then mitigation measures to reduce noise toacceptable levels should be identified (A considerable amount of work on theimpacts of coastal engineering projects on sensitive marine wildlifepopulations has been carried out in other areas methods to mitigate noisefrom these sources are also well established In the first instance werecommend that the applicant contact the Inverness Harbour Trust who haverecently undergone a similar exercise in relation to harbour reclamation worksat Ness Mouth)

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Wastewater treatment

bull There is reference in the ES that wastewater will be treated to Bathing WaterStandards although this is not explicit SNH welcomes the intention to apply aBathing Water Standard although given that the dolphins are present in thewaters off Whiteness Head year round we would expect that the BathingWater standard would also cover a 12-month period ie a Recreational WaterStandard We would therefore like clarification of the proposed level oftreatment to be provided We also note that SEPA have concerns about fouldrainage at the site and we share these concerns - see our comments undersection 26 below

Once this information has been provided SNH will be in a position to give furtherconsideration to this aspect of the proposal Until we are receipt of this additionalinformation then SNH object to this element of the proposal

It is important to note that on the basis of the information currently availableSNH considers that boat traffic associated with the marina element of theproposal is likely to have an adverse affect on the integrity of the Moray FirthSAC We consider that in order for the applicant to be able to demonstrate that themarina will not adversely affect the integrity of the dolphin population thenconsiderable thought will need to be given by the applicant to effective mitigation andregulatory mechanisms This is likely to involve new and innovative ways of workingin the wider inner Moray Firth area by for example the applicant linking with otherauthorities to provide a more co-ordinated approach to managing recreational boattraffic We have already discussed ways to develop such an approach with thede~eloper and we would be happy to provide a further input if this would be helpful

213 Dornoch Firth and Morrich More SAC

SNHs advice is that this proposal is unlikely to have a significant effect on thecommon seal interest of the Dornoch Firth and Morrich More SAC and in ourview an appropriate assessment is therefore not required

Common seals from the Dornoch Firth and Morrich More SAC may haul out atWhiteness Head and there is the potential for seals to be disturbed by people takingaccess to the shore and from marina users This area is used as a haul out sitebecause it is relatively close to feeding grounds further out in the Moray FirthDisplacement of these animals to other haul out sites for example in the Beauly orCromarty Firths will mean further travelling distances to the feeding areas and thiswould have an energetic cost We therefore recommend that seal disturbance

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issues should be fully recognised in the Access Management Plan andmeasures to mitigate impacts should be clearly identified

SNHs concerns in relation to the dolphins are described in section 212 above Ifthese concerns are addressed then the legislative provisions under the EPSlegislation will also be fulfilled If these concerns are not addressed then theproposed development is likely to result in one or more actions that arecontrary to the species protection elements of the Conservation (NaturalHabitats ampc) Regulations 1994 and The Conservation (Natural Habitats ampc)Amendment (Scotland) Regulations 2004

SNH asked for information on occurrence of porpoise in the waters close toWhiteness Head to be provided as part of the application However we note that verylittle information has been provided on this within the ES Porpoises will bevulnerable to the same range of issues as described in section 212 above fordolphins However the distribution and abundance of porpoises will be different tothat of the dolphins and porpoises may also show different behavioural responses inrelation to boat traffic In order to adequately safeguard porpoises SNH recommendthat the mitigation and regulatory mechanisms developed for the dolphins (anddescribed in section 212 of this letter) should also fully take into account theporpoise interest This is likely to involve the need to gather data on the distributionand abundance of porpoise in the area Some of this data will already have beencollected and some new data may need to be gathered possibly as part of the datacollection exercise being undertaken for the dolphins

223 Otters

At a meeting between SNH and the developers on 19 October 2005 we advised thatan otter survey should be carried out both within the development footprint but also inan area of extending 200m beyond the boundary The ES included survey data forthe footprint but information on the surrounding area was not provided We thereforere-iterate our advice and recommend that the existing otter survey be extendedto include a 200m area beyond the site boundary

We also recommend that the proposed Code of Construction Practice fullytakes otter into account so that if otters are encountered at any point duringthe construction process clear steps to avoid damage or disturbance arefollowed SNH can advice further on this aspect

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Once this information has been provided then SNH will be able to give furtherconsideration to this aspect of the proposal

224 Bats

A number of bat roosts will be destroyed in the process of demolishing the existingbuildings Such works would be contrary to the species protection elements of theConservation (Natural Habitats ampc) Regulations 1994 and The Conservation (NaturalHabitats ampc) Amendment (Scotland) Regulations 2004 and therefore cannot proceedunless a licence is obtained from Scottish Executive SNH therefore advise that anapplication for a licence be obtained from Wildlife and Habitats Unit ScottishExecutive Environment and Rural Affairs Department Area 1-H Victoria QuayEdinburgh EH6 600 A licence must be acquired from the Scottish Executivebefore planning consent is granted

SNH consider that there is considerable scope to create additional bat maternityroosts in the buildings associated with this development and this combined with thesensitive installation of bat boxes at suitable locations throughout the site would helpto mitigate the loss of bat roosts during the demolition phase

225 Great crested newts

The lagoon area provides a suitable habitat for great crested newts To enable SNHto advise The Highland Council on impacts we recommend that a survey of greatcrested newts be undertaken in the spring and prior to any works commencingin or close to the lagoon area SNH can provide information on appropriatemethodology and advise if a licence will be required

Once the results of the survey are available we will be able to advise about theimplications of the proposal on the maintenance of this species at a FavourableConservation Status within its natural range

It is worth noting that even if great crested newts are not present at the moment theremay be opportunities to translocate newts from other areas to the lagoon This wouldhave a conservation benefit for the species Please note that such a translocationexercise would need to be carried out under licence from ourselves

As with the impacts on the European site it is likely that the saltmarsh andshingle habitats and their associated flora and the wintering populations ofbar-tailed godwit and knot will be compromised as a result of the proposeddevelopment Once the additional information detailed in section 211 above hasbeen submitted then SNH will be in a position to give further consideration to thisproposal

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At this stage there is insufficientinformation for us to assess these impacts fully but the natural heritage interestsaffected are of such importance as to justify a precautionary approach SNHtherefore objects to this element of the proposal This objection will bereviewed once the following information detailed below is submitted

An Access Management Plan clearly describing how the shingle spit will besafeguarded from damage or disturbance arising from increased visitorpressure

bull A description of the short medium and long term management proposed forthe spit (including details of any intervention to natural processes shorereplenishment) and channel area (including details on the proposedfrequency location depth and pattern of dredging)

bull A method statement describing how the proposed sewage pipeline will be laidacross the saltmarsh channel and shingle spit Alternatives that are lessdamaging than trenching should be explored for example the use ofdirectional drilling techniques

24 ACCESS

Many of the impacts described in this Annex relate to disturbance or damage causedby increased access by residents and visitors to the sensitive wildlife and habitatsimmediately adjacent to the development footprint The ES acknowledges this andsuggests that an Access Management Plan will mitigate these impacts to acceptablelevels However the Access Management Plan has not yet been produced andwhether such a Plan will be sufficient to adequately mitigate impacts on theEuropean national (and local) natural heritage interests still has to be determinedMechanisms to ensure that any measures identified in the Visitor Management Planwill be effectively applied are also lacking in the ES Also it is important to note thatat present some of the visitor management measures presented in the ES are in ourview not compliant with Part 1 of the Land Reform (Scotland) Act 2003 and theScottish Outdoor Access Code

Although we have referred to the need to develop the Access Management Plan atvarious points in this Annex for the reasons described above SNH objects to thevisitor management measures described in the ES We will review ourobjection once

bull An Access Management Plan has been submitted for the agreement ofThe Highland Council in consultation with SNH The Plan must addressNatura and SSSI issues and be compliant with Part 1 of the Land Reform

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(Scotland) Act 2003 the Scottish Outdoor Access Code and the DisabilityDiscrimination Act 1995

bull Management mechanisms that ensure that the Access ManagementPlan (and the monitoring of it) will be adhered to should be clearlyidentified This should include details about who will be responsible for thedelivery and implementation of the Plan

In order to provide a steer we consider that the Access Management Plan shouldinclude information on the following

bull All existing paths tracks Rights of Way and any areas expected to beoutwith or excluded from statutory access rights under Part 1 of the landReform (Scotland) Act 2003 (once current land uses are removed) should beidentified

bull All paths and tracks proposed for construction as part of the development foruse by walkers riders cyclists all abilities users etc including all associatedaccess infrastructure should be identified

bull Any diversions of paths - temporary or permanent - proposed for thepurposes of the development should be identified

The Plan should go on to

bull Identify the likely level of public access resulting from the developmentincluding the type of access (land and water based) timing numberslocation type of activity (including dog walkers) seasonality etc This shouldinclude access by both residents and visitors to the site As the moment theES does not clearly acknowledge the number of people likely to visit the newdevelopment from the surrounding area SNH considers that at certain timesof the year (for example Bank Holiday weekends) visitor numbers are likely tobe significant

bull Identify the natural heritage features which could will be affected by publicaccess

bull Identify whether access of the expected leveltype of access will significantlyimpact on the natural heritage features

bull Consider if the impact will be significant and if it is then the range of tools tobe employed to manage this access should be detailed and examplesprovided

bull Detail the proposals to minimise disturbance of the natural heritage of the siteas a result of public access

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bull Detail the planned monitoring of public access and the natural heritagefeatures and describe how the Access Management Plan will be reviewed inthe light of this monitoring

bull Develop an action plan which would be ready to deploy if the monitoringdemonstrates that the visitor management tools are not sufficient to protectthe natural heritage

We would also like to emphasise that the footbridge to the spit from the maindevelopment is a particular cause for concern Whilst we recognise the benefits thatthe footbridge will have for creating a link with the existing Moray coast path weconsider that it will also open the sensitive spit area to increased visitor pressureBreeding terns lichens and the shingle feature itself are all vulnerable to humandisturbance Some of SNHs concerns in relation to access impacts would bealleviated if the footbridge were removed from the proposed development

25OTHER NATURAL HERITAGE INTERESTS

251 Landscape and visual amenity

The ES and accompanying documentation provide a clear and well thought outapproach to the landscape and visual impacts of the proposal It is clear thatconsiderable thought has gone into sensitive and innovative design of thedevelopment and we are pleased to see that emphasis has been given to the need tocreate green space and natural features within the built up areas The proposalshave a very strong overall landscape structure with the identity of individualneighbourhoods being defined by landscape character A landscape strategyoutlined within the Design Statement in part 4 Placemaking shows how theproposals seek to reinforce existing character integrate with adjacent character orcreate new landscape character areas The landscape strategy contains manyexcellent ideas for example the wetland scrapes within forest clearings

We do not raise any concerns about the landscape and visual impact of the proposalhowever given the scale of this development together with its prominence from keyviewpoints from the Black Isle and beyond we recommend that a detailedLandscape Management Plan should be made condition of any planningconsent granted

SNH advice that the following aspects could be included within the Plan

bull Early tree planting within the neighbourhood in order that trees can becomeestablished and therefore soften the appearance of the new developmentThis would also create a better quality landscape in the early years of thedevelopment as plantings would consist of trees roughly the same age andheight The creation of wetland scapes should also be undertaken as earlyas possible as such features take time to establish

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bull The hotel would be the tallest building on site Drawings in the DesignStatement suggest that this would be a landmark building and a focal pointwithin the landscape A landmark building need not be exaggerated orelaborate SNH recommend that due to the prominent location of this buildingit should be a simple design that could still achieve a bold statement

The Seafront Neighbourhood would be the most visually prominent part of thedevelopment within views from the Black Isle Nairn Esplanade and the coastal pathto the east Plots would be the densest and the heights of buildings the greatestwithin the development Public spaces would consist of civic squares and walkwayswith vegetation density being possibly the lowest within the development SNHrecommends that the seafront neighbourhood is the subject of a specificdevelopmentdesign brief to ensure that high standards of design are used tointegrate this part of the development into the coastal landscape Thedevelopmentdesign brief should include details of the following

bull Housing design including details of materials and finishes to be usedbull Public realm design including details of materials and finishes to be usedbull Details of outbuildings and ancilliary facilities (eg garages sheds and

greenhouses )bull Landscape and open space including civic squares and performance spacesbull Boundary enclosuresbull Car parkingbull Lighting

252 Local Biodiversity Action Plans

At the pre-application stage SNH advised that information on species and habitatslisted in the Inverness and Nairn Biodiversity Action Plan and species that haveSpecies Action Plans should be detailed in the ES As far as we can ascertain suchinformation does not appear to be included However there is a clear commitment bythe applicant to safeguard and enhance biodiversity on the site and the applicantstates that a Biodiversity Action Plan specifically for Whiteness Head will bedeveloped SNH support this approach and advise that the Inverness and NairnLBAP should be a starting point for developing a Whiteness Head Biodiversity Plan

26 POLLUTION AND WASTE MANAGEMENT

We support reference in the ES to the preparation and implementation of a Code ofConstruction Practice We recommend that this should be a condition of any planningconsent issued The Code of Construction Practice should specifically addresssensitive natural heritage receptors especially those that have protected status forexample the need to take otter into account if they should be encountered duringconstruction operations Also the Code of Construction Practice should fullyrec~gnise the presence of Crassula helmsit-1 and take steps to ensure that it is notspread within and beyond the site

I Cra$sula helmsii is a prolific non-native water weed present in the lagoon area at Whiteness Head

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We note that SEPA have objected to the proposal on a number of grounds includingthe provision for foul drainage SEPA states that further work is required in orderfor SEPA to be assured that the proposals are environmentally acceptable SNHshares these concerns and we will need to be assured by SEPA thatwastewater provision at the site will not adversely affect the designatedfeatures of interest If this assurance cannot be given then SNH will object towastewater provision as part of this application and to any future applicationmade under the Controlled Activities Regulations 2006

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Annex B

Whiteness - wader and wildfowl counts - Winter season 20052006

FOliowing our discussions with SNH yesterday 19th September I have spoken todaywith the Webs count co-ordinator for the Moray Firth Dave Butterfield at the RSPBOffice in Inverness He tells me that the four official count dates for the whole firthare 16th October 4th December 15th January and 1ih February I have agreed withhim that I will carry out those counts at Whiteness in place of the previous countersas part of the over all Firth monitoring programme

In order to provide sufficient detail for the EA as agreed with SNH we require to carryout a more detailed survey with extra count dates which require to cover the low tidedistribution of birds and locations of high tide roosts as well as the total numbers foreach species

I recommend that I carry out the following counts - approximate dates (in very badweather conditions additional counts may be delayed by a day) which will cover thetidal span from low to high tide or vice versa depending on timing of high tide

Date

22 September2 October16 OCTOBER30 October7 November21 November4 DECEMBER19 pecember

1352

High Tide Time

1604 hours12481221103415271525

1433

High tide height

45 metres4548424341

4744

The 2006 main counts are 15th JANUARY and 12th FEBRUARY and the furthermonthly count dates are 12 March 9 April 14 May 11 June 16 July 13 August and17 September

Depending on the examination of data collected September to December it isprobable we will need additional count dates between these days for this first winterseason The counts will also cover seaducks outside the Harbour and on the RiffBank but this is only attainable by telescope in good weather The vantage point isthe high dune

The output for the 8 main counts to end of year will beSpecies totals on each dateLocation of roostsDistribution maps for species on tidal areas at low and mid tideDisturbance distances (probably done on other casual dates)Please let me know what you think

Roy Dennis 20 Sep 2006

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The Highland CouncilPlanning amp DevelopmentGlenurquhart RoadINVERNESSIV3 5NX

For the attention of David Mudie

Dear Mr Mudie

Our ref CNSDCHIIIVABPOPPYour ref 05012940UTIN DMCC

15 November 2006

TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997ENVIRONMENTAL IMPACT ASSESSMENT (SCOTLAND) REGULATIONS 1999OUTLINE PLANNING APPLICATION FOR RESIDENTIAL AND LEISUREDEVELOPMENT INCLUDING HOUSING MARINA BOAT YARD VISITORSCENTRE NATURE CONSERVATION ZONES AND HOTEL WITH SUPPORTINGCOMMUNITY FACILITIES AND SEWAGE TREATMENT PLANT AT THE FORMERFABRICATION YARD WHITENESS ARDERSIERMORAY FIRTH SPECIAL AREA OF CONSERVATION (SAC)INNER MORAY FIRTH SPECIAL PROTECTION AREA (SPA)INNER MORAY FIRTH RAMSAR SITEWHITENESS HEAD SITE OF SPECIAL SCIENTIFIC INTEREST (SSSI)

I am writing with respect to the letter dated 9 November 2006 from Stewart Fulton ofthe Whiteness Property Company Limited regarding the above proposal Foravoidance of doubt a copy of this letter is attached

The letter was written as a result of SNHs formal response to the outline planningapplication dated 31 October 2006 which inter alia objected to the proposedde(elopment in relation to the Moray Firth SAC (bottlenose dolphin interest) on thegrounds that a 500-berth marina will have an adverse impact on the integrity of thedolphin population The SNH response also objected in relation to EuropeanProtected Species on the grounds that the marina will have an adverse impact on thefavourable conservation status of dolphin and porpoise populations

The letter from Stewart Fulton also followed a meeting between The HighlandCouncil Whiteness Property Company Limited and Scottish Natural Heritage on 7November 2006 to discuss the marine mitigation measures already proposed by theapplicant and how these could be underpinned by robust legal mechanisms

SNH POSITION

1

middot a) a Section 75 Planning Agreement that binds the Whiteness PropertyCompany Limited and the Harbour Authority to mitigation measures that willeffectively avoid any adverse impact on a) the integrity of the Moray Firth SACbottlenose dolphin interest and b) the favourable conservation status ofbottlenose dolphin and harbour porpoise The Section 75 Agreement mustinclude provisions to put in place marina mooring leases a sea ranger amarine chart a research programme and a monitoring scheme to confirm thatthe mitigation measures are working effectively Furthermore the Agreementshould restrict the number of boats allowed to use the marina to a levelagreed by The Highland Council in consultation with SNH Boat numbersmust not be allowed to increase unless monitoring demonstrates that such anincrease would not have an adverse impact on the integrity of the SAC TheSection 75 Planning Agreement must be agreed with The Highland Counciland SNH

b)

Although our position has changed in relation to the Moray Firth SAC and EuropeanProtected Species our position in relation to all other aspects of the natural heritageremain as described in our letter to The Highland Council dated 31 October 2006

If you have any questions on the content of this letter then please contact BenLeyshon (benlevshonsnhQovuk) at this office in the first instance I would begrateful if you could let us know of your Councils decision in due course or of anyfurther changes to the proposal that would be relevant to our interests

As stated in our letter of 31 October 2006 you are respectfully reminded of therequirement to notify the Scottish Ministers if your Council is minded to approveplanning consent against SNHs advice in this case

Yours sincerely

GEORGE HOGGArea Manager - East Highlandemail QeorQehoQQsnhQovuk

2

f~~ are present throughout the year within the inner Moray Firth and althoughthey range widely they appear to favour particular areas with the near-shore watersaround the entrance to the Cromarty Firth Chanonry Point and Fort George andNorth and South Kessock being of particular importance Current research estimatesthat there are around 130 bottlenose dolphins living in the Moray Firth and due to itssmall size and relative isolation the population is vulnerable to both natural andhuman influences

aiamp-~are widespread around the UK coast and this species is commonlysighted in the Moray Firth including in the area around the proposed development

It is possible that otters are using the site It is likely that any otters present wouldmove along ditch systems and in between these the lagoon and the foreshore

We note that bats use a number of the buildings apparently for roosting malepipistrelles It is also possible that some of these buildings are providing refuges forhibernating bats during the winter

It is possible that great crested newts occupy the lagoon which contains fresh water

-~jijieJ~iii~Clr-- ~Ii-lt~JJlP~~jfi~~~WJi~smag~~sect]$I is notified for its 9gQ1tDJUtWm[gi~IlQ~9~Jt~its mudflat sanddune salt marsh and shingle habitats The plant communities typically associatedwith these habitats are also protected and of particular note are the lichen specieson the shingle spit The survey carried out as part of this Environmental ImpactAssessment identified 127 lichen taxa being recorded from the site including 15nationally scarce and 2 nationally rare species Vegetated shingle is not a particularlyabundant habitat in Scotland especially large areas of vegetated shingle and thissite has national value as a habitat for shingle lichens

The SSSI is also notified for its wintering populations of bar-tailed godwit and knotFor all of these features the site was designated on account of their condition andextentnumber and to ensure that representative examples were safeguarded acrosstheir GB range

14 LOCAL INTERESTS

A number of species listed within the UK or Inverness and Nairn Local BiodiversityAction Plan (LBAP) are known to occur within or close to the development footprintfor example the small blue and dingy skipper butterflies

The Moray Coast path traverses the coast westwards from Nairn and is occasionallyused by local people to gain access to the spit

5

The character of the natural landscape is very strong and distinct the site is only asmall component of this landscape that is recognised for its breadth and extensivecharacter These qualities combined with the strength of character of thesurrounding landscape have resulted in the designation of the area as an Area ofGreat Landscape Value

211 Inner Moray Firth SPA I Ramsar site

We consider that the development has the potential to affect both the qualifying birdspecies and the habitats for which the SPA and Ramsar sites have been designatedImpacts on birds range from interrupted roosting or feeding to reduced survival orbreeding success Disturbance effects can arise through increased levels of stressincreased energy expenditure (through poorer feeding rates or increased flightactivity) reduced feeding success brought on by increased competition betweenbirds and greater exposure to predators These effects may occur singly or togetherin various combinations Effects are rarely easy to predict but post hoc empiricalevidence from other locations demonstrates that sensitive bird species are inevitablylost if levels of disturbance increase on important sites Impacts to the saltmarsh andshingle interests could arise from damage and disturbance to sensitive features as aresult of increased visitor pressure

In SNHs view the application package does not provide sufficient field surveyinformation on the wintering bird interest and the relative importance of nearby areasfor key activities such as feeding and roosting This is essential in order to assess thelikely impacts of the development on qualifying bird species On 19 October 2005SNH requested that Wetland Bird Survey (WeBS) counts would be doubled up in theperiod leading up to the submission of the planning application A bird surveyprotocol was subsequently agreed with the environmental consultant working for theapplicant - a copy of this protocol is attached at Annex B Data gathered as a resultof this agreed survey work has not been provided to SNH In addition theassessment of impacts in the ES lacks quantitative information about the likelyimpact of increased visitor pressure on the qualifying bird or habitat interests and theconclusions about likely impact that are provided in the ES are unsubstantiated

Our advice is that there is insufficient information to determine whether theproposal is likely to have a significant effect on the qualifying interests of thesites In order for this to be determined we recommend that the following additionalinformation be provided

6

bull The distribution of high tide roosts and low tide feeding numbers (which areoften higher than roosting numbers) should be mapped using existing datawhere this is available and supplemented with new data where necessaryThe single winters WeBS data supplied with the planning application shouldbe supplemented with WeBS data from the previous 5 years

bull An analysis of the expected level of land and sea based recreational activityinto sensitive bird areas should be described and an assessment made aboutthe likely impacts of this on qualifying habitats and bird species

Mitigation measures to reduce potential impacts should be proposed Thepotential for creating and enhancing breeding and roosting habitat for birdswithin and adjacent to the site should also be explored

We consider that a key element in determining the acceptability of the proposal onthe qualifying habitats and species will be through the development of an effectiveAccess Management Plan Our comments on what this Plan should include aredescribed in section 25 below

Once this information has been provided SNH will be in a position to give furtherconsideration to this aspect of the proposal Until we are receipt of this additionalinformation then SNH object to this element of the proposal

Submerged sandbanks

As far as the submerged sandbank interest of the SAC is concerned our advice isthat there are likely to be significant effects in relation to the potential for pollutantsfrom the maintenance of the marina (eg through the use of anti-fouling paints andother biocides and detergents) entering the Firth At the scoping stage SNHrequested information about how the marina would be managed in order to mitigatecontaminants entering the Firth however we could not find any information on this inthe ES

Our advice is that there is insufficient information to determine whether theproposal is likely to have a significant effect on the sandbanks In order for thisto be determined we recommend that the following additional information beprovided

bull An assessment of the pollutants likely to arise from the operation of themarina and a description of the arrangements that will be put in place tomanage these pollutants

Once this information has been provided SNH will be in a position to give furtherconsideration to this aspect of the proposal Until we are receipt of this additionalinformation then SNH object to this element of the proposal

7

Sewage discharges containother contaminants that can affect the health of the dolphins

We requested detailed information on the likely impacts of the proposal on thedolphins however some of the information we asked for was not provided in the ESTherefore our advice is that there is insufficient information to determinewhether the proposal is likely to have a significant effect on the dolphins Inorder for this to be determined we recommend that the following additionalinformation be provided

Onshore noise durinQ construction

bull Details about the level of noise generated during the construction phase ofwork and how this will be conveyed to the adjacent underwater environmentIf noise levels are significant then mitigation measures to reduce noise toacceptable levels should be identified (A considerable amount of work on theimpacts of coastal engineering projects on sensitive marine wildlifepopulations has been carried out in other areas methods to mitigate noisefrom these sources are also well established In the first instance werecommend that the applicant contact the Inverness Harbour Trust who haverecently undergone a similar exercise in relation to harbour reclamation worksat Ness Mouth)

8

Wastewater treatment

bull There is reference in the ES that wastewater will be treated to Bathing WaterStandards although this is not explicit SNH welcomes the intention to apply aBathing Water Standard although given that the dolphins are present in thewaters off Whiteness Head year round we would expect that the BathingWater standard would also cover a 12-month period ie a Recreational WaterStandard We would therefore like clarification of the proposed level oftreatment to be provided We also note that SEPA have concerns about fouldrainage at the site and we share these concerns - see our comments undersection 26 below

Once this information has been provided SNH will be in a position to give furtherconsideration to this aspect of the proposal Until we are receipt of this additionalinformation then SNH object to this element of the proposal

It is important to note that on the basis of the information currently availableSNH considers that boat traffic associated with the marina element of theproposal is likely to have an adverse affect on the integrity of the Moray FirthSAC We consider that in order for the applicant to be able to demonstrate that themarina will not adversely affect the integrity of the dolphin population thenconsiderable thought will need to be given by the applicant to effective mitigation andregulatory mechanisms This is likely to involve new and innovative ways of workingin the wider inner Moray Firth area by for example the applicant linking with otherauthorities to provide a more co-ordinated approach to managing recreational boattraffic We have already discussed ways to develop such an approach with thede~eloper and we would be happy to provide a further input if this would be helpful

213 Dornoch Firth and Morrich More SAC

SNHs advice is that this proposal is unlikely to have a significant effect on thecommon seal interest of the Dornoch Firth and Morrich More SAC and in ourview an appropriate assessment is therefore not required

Common seals from the Dornoch Firth and Morrich More SAC may haul out atWhiteness Head and there is the potential for seals to be disturbed by people takingaccess to the shore and from marina users This area is used as a haul out sitebecause it is relatively close to feeding grounds further out in the Moray FirthDisplacement of these animals to other haul out sites for example in the Beauly orCromarty Firths will mean further travelling distances to the feeding areas and thiswould have an energetic cost We therefore recommend that seal disturbance

9

issues should be fully recognised in the Access Management Plan andmeasures to mitigate impacts should be clearly identified

SNHs concerns in relation to the dolphins are described in section 212 above Ifthese concerns are addressed then the legislative provisions under the EPSlegislation will also be fulfilled If these concerns are not addressed then theproposed development is likely to result in one or more actions that arecontrary to the species protection elements of the Conservation (NaturalHabitats ampc) Regulations 1994 and The Conservation (Natural Habitats ampc)Amendment (Scotland) Regulations 2004

SNH asked for information on occurrence of porpoise in the waters close toWhiteness Head to be provided as part of the application However we note that verylittle information has been provided on this within the ES Porpoises will bevulnerable to the same range of issues as described in section 212 above fordolphins However the distribution and abundance of porpoises will be different tothat of the dolphins and porpoises may also show different behavioural responses inrelation to boat traffic In order to adequately safeguard porpoises SNH recommendthat the mitigation and regulatory mechanisms developed for the dolphins (anddescribed in section 212 of this letter) should also fully take into account theporpoise interest This is likely to involve the need to gather data on the distributionand abundance of porpoise in the area Some of this data will already have beencollected and some new data may need to be gathered possibly as part of the datacollection exercise being undertaken for the dolphins

223 Otters

At a meeting between SNH and the developers on 19 October 2005 we advised thatan otter survey should be carried out both within the development footprint but also inan area of extending 200m beyond the boundary The ES included survey data forthe footprint but information on the surrounding area was not provided We thereforere-iterate our advice and recommend that the existing otter survey be extendedto include a 200m area beyond the site boundary

We also recommend that the proposed Code of Construction Practice fullytakes otter into account so that if otters are encountered at any point duringthe construction process clear steps to avoid damage or disturbance arefollowed SNH can advice further on this aspect

10

Once this information has been provided then SNH will be able to give furtherconsideration to this aspect of the proposal

224 Bats

A number of bat roosts will be destroyed in the process of demolishing the existingbuildings Such works would be contrary to the species protection elements of theConservation (Natural Habitats ampc) Regulations 1994 and The Conservation (NaturalHabitats ampc) Amendment (Scotland) Regulations 2004 and therefore cannot proceedunless a licence is obtained from Scottish Executive SNH therefore advise that anapplication for a licence be obtained from Wildlife and Habitats Unit ScottishExecutive Environment and Rural Affairs Department Area 1-H Victoria QuayEdinburgh EH6 600 A licence must be acquired from the Scottish Executivebefore planning consent is granted

SNH consider that there is considerable scope to create additional bat maternityroosts in the buildings associated with this development and this combined with thesensitive installation of bat boxes at suitable locations throughout the site would helpto mitigate the loss of bat roosts during the demolition phase

225 Great crested newts

The lagoon area provides a suitable habitat for great crested newts To enable SNHto advise The Highland Council on impacts we recommend that a survey of greatcrested newts be undertaken in the spring and prior to any works commencingin or close to the lagoon area SNH can provide information on appropriatemethodology and advise if a licence will be required

Once the results of the survey are available we will be able to advise about theimplications of the proposal on the maintenance of this species at a FavourableConservation Status within its natural range

It is worth noting that even if great crested newts are not present at the moment theremay be opportunities to translocate newts from other areas to the lagoon This wouldhave a conservation benefit for the species Please note that such a translocationexercise would need to be carried out under licence from ourselves

As with the impacts on the European site it is likely that the saltmarsh andshingle habitats and their associated flora and the wintering populations ofbar-tailed godwit and knot will be compromised as a result of the proposeddevelopment Once the additional information detailed in section 211 above hasbeen submitted then SNH will be in a position to give further consideration to thisproposal

11

At this stage there is insufficientinformation for us to assess these impacts fully but the natural heritage interestsaffected are of such importance as to justify a precautionary approach SNHtherefore objects to this element of the proposal This objection will bereviewed once the following information detailed below is submitted

An Access Management Plan clearly describing how the shingle spit will besafeguarded from damage or disturbance arising from increased visitorpressure

bull A description of the short medium and long term management proposed forthe spit (including details of any intervention to natural processes shorereplenishment) and channel area (including details on the proposedfrequency location depth and pattern of dredging)

bull A method statement describing how the proposed sewage pipeline will be laidacross the saltmarsh channel and shingle spit Alternatives that are lessdamaging than trenching should be explored for example the use ofdirectional drilling techniques

24 ACCESS

Many of the impacts described in this Annex relate to disturbance or damage causedby increased access by residents and visitors to the sensitive wildlife and habitatsimmediately adjacent to the development footprint The ES acknowledges this andsuggests that an Access Management Plan will mitigate these impacts to acceptablelevels However the Access Management Plan has not yet been produced andwhether such a Plan will be sufficient to adequately mitigate impacts on theEuropean national (and local) natural heritage interests still has to be determinedMechanisms to ensure that any measures identified in the Visitor Management Planwill be effectively applied are also lacking in the ES Also it is important to note thatat present some of the visitor management measures presented in the ES are in ourview not compliant with Part 1 of the Land Reform (Scotland) Act 2003 and theScottish Outdoor Access Code

Although we have referred to the need to develop the Access Management Plan atvarious points in this Annex for the reasons described above SNH objects to thevisitor management measures described in the ES We will review ourobjection once

bull An Access Management Plan has been submitted for the agreement ofThe Highland Council in consultation with SNH The Plan must addressNatura and SSSI issues and be compliant with Part 1 of the Land Reform

12

(Scotland) Act 2003 the Scottish Outdoor Access Code and the DisabilityDiscrimination Act 1995

bull Management mechanisms that ensure that the Access ManagementPlan (and the monitoring of it) will be adhered to should be clearlyidentified This should include details about who will be responsible for thedelivery and implementation of the Plan

In order to provide a steer we consider that the Access Management Plan shouldinclude information on the following

bull All existing paths tracks Rights of Way and any areas expected to beoutwith or excluded from statutory access rights under Part 1 of the landReform (Scotland) Act 2003 (once current land uses are removed) should beidentified

bull All paths and tracks proposed for construction as part of the development foruse by walkers riders cyclists all abilities users etc including all associatedaccess infrastructure should be identified

bull Any diversions of paths - temporary or permanent - proposed for thepurposes of the development should be identified

The Plan should go on to

bull Identify the likely level of public access resulting from the developmentincluding the type of access (land and water based) timing numberslocation type of activity (including dog walkers) seasonality etc This shouldinclude access by both residents and visitors to the site As the moment theES does not clearly acknowledge the number of people likely to visit the newdevelopment from the surrounding area SNH considers that at certain timesof the year (for example Bank Holiday weekends) visitor numbers are likely tobe significant

bull Identify the natural heritage features which could will be affected by publicaccess

bull Identify whether access of the expected leveltype of access will significantlyimpact on the natural heritage features

bull Consider if the impact will be significant and if it is then the range of tools tobe employed to manage this access should be detailed and examplesprovided

bull Detail the proposals to minimise disturbance of the natural heritage of the siteas a result of public access

13

bull Detail the planned monitoring of public access and the natural heritagefeatures and describe how the Access Management Plan will be reviewed inthe light of this monitoring

bull Develop an action plan which would be ready to deploy if the monitoringdemonstrates that the visitor management tools are not sufficient to protectthe natural heritage

We would also like to emphasise that the footbridge to the spit from the maindevelopment is a particular cause for concern Whilst we recognise the benefits thatthe footbridge will have for creating a link with the existing Moray coast path weconsider that it will also open the sensitive spit area to increased visitor pressureBreeding terns lichens and the shingle feature itself are all vulnerable to humandisturbance Some of SNHs concerns in relation to access impacts would bealleviated if the footbridge were removed from the proposed development

25OTHER NATURAL HERITAGE INTERESTS

251 Landscape and visual amenity

The ES and accompanying documentation provide a clear and well thought outapproach to the landscape and visual impacts of the proposal It is clear thatconsiderable thought has gone into sensitive and innovative design of thedevelopment and we are pleased to see that emphasis has been given to the need tocreate green space and natural features within the built up areas The proposalshave a very strong overall landscape structure with the identity of individualneighbourhoods being defined by landscape character A landscape strategyoutlined within the Design Statement in part 4 Placemaking shows how theproposals seek to reinforce existing character integrate with adjacent character orcreate new landscape character areas The landscape strategy contains manyexcellent ideas for example the wetland scrapes within forest clearings

We do not raise any concerns about the landscape and visual impact of the proposalhowever given the scale of this development together with its prominence from keyviewpoints from the Black Isle and beyond we recommend that a detailedLandscape Management Plan should be made condition of any planningconsent granted

SNH advice that the following aspects could be included within the Plan

bull Early tree planting within the neighbourhood in order that trees can becomeestablished and therefore soften the appearance of the new developmentThis would also create a better quality landscape in the early years of thedevelopment as plantings would consist of trees roughly the same age andheight The creation of wetland scapes should also be undertaken as earlyas possible as such features take time to establish

14

bull The hotel would be the tallest building on site Drawings in the DesignStatement suggest that this would be a landmark building and a focal pointwithin the landscape A landmark building need not be exaggerated orelaborate SNH recommend that due to the prominent location of this buildingit should be a simple design that could still achieve a bold statement

The Seafront Neighbourhood would be the most visually prominent part of thedevelopment within views from the Black Isle Nairn Esplanade and the coastal pathto the east Plots would be the densest and the heights of buildings the greatestwithin the development Public spaces would consist of civic squares and walkwayswith vegetation density being possibly the lowest within the development SNHrecommends that the seafront neighbourhood is the subject of a specificdevelopmentdesign brief to ensure that high standards of design are used tointegrate this part of the development into the coastal landscape Thedevelopmentdesign brief should include details of the following

bull Housing design including details of materials and finishes to be usedbull Public realm design including details of materials and finishes to be usedbull Details of outbuildings and ancilliary facilities (eg garages sheds and

greenhouses )bull Landscape and open space including civic squares and performance spacesbull Boundary enclosuresbull Car parkingbull Lighting

252 Local Biodiversity Action Plans

At the pre-application stage SNH advised that information on species and habitatslisted in the Inverness and Nairn Biodiversity Action Plan and species that haveSpecies Action Plans should be detailed in the ES As far as we can ascertain suchinformation does not appear to be included However there is a clear commitment bythe applicant to safeguard and enhance biodiversity on the site and the applicantstates that a Biodiversity Action Plan specifically for Whiteness Head will bedeveloped SNH support this approach and advise that the Inverness and NairnLBAP should be a starting point for developing a Whiteness Head Biodiversity Plan

26 POLLUTION AND WASTE MANAGEMENT

We support reference in the ES to the preparation and implementation of a Code ofConstruction Practice We recommend that this should be a condition of any planningconsent issued The Code of Construction Practice should specifically addresssensitive natural heritage receptors especially those that have protected status forexample the need to take otter into account if they should be encountered duringconstruction operations Also the Code of Construction Practice should fullyrec~gnise the presence of Crassula helmsit-1 and take steps to ensure that it is notspread within and beyond the site

I Cra$sula helmsii is a prolific non-native water weed present in the lagoon area at Whiteness Head

15

We note that SEPA have objected to the proposal on a number of grounds includingthe provision for foul drainage SEPA states that further work is required in orderfor SEPA to be assured that the proposals are environmentally acceptable SNHshares these concerns and we will need to be assured by SEPA thatwastewater provision at the site will not adversely affect the designatedfeatures of interest If this assurance cannot be given then SNH will object towastewater provision as part of this application and to any future applicationmade under the Controlled Activities Regulations 2006

16

Annex B

Whiteness - wader and wildfowl counts - Winter season 20052006

FOliowing our discussions with SNH yesterday 19th September I have spoken todaywith the Webs count co-ordinator for the Moray Firth Dave Butterfield at the RSPBOffice in Inverness He tells me that the four official count dates for the whole firthare 16th October 4th December 15th January and 1ih February I have agreed withhim that I will carry out those counts at Whiteness in place of the previous countersas part of the over all Firth monitoring programme

In order to provide sufficient detail for the EA as agreed with SNH we require to carryout a more detailed survey with extra count dates which require to cover the low tidedistribution of birds and locations of high tide roosts as well as the total numbers foreach species

I recommend that I carry out the following counts - approximate dates (in very badweather conditions additional counts may be delayed by a day) which will cover thetidal span from low to high tide or vice versa depending on timing of high tide

Date

22 September2 October16 OCTOBER30 October7 November21 November4 DECEMBER19 pecember

1352

High Tide Time

1604 hours12481221103415271525

1433

High tide height

45 metres4548424341

4744

The 2006 main counts are 15th JANUARY and 12th FEBRUARY and the furthermonthly count dates are 12 March 9 April 14 May 11 June 16 July 13 August and17 September

Depending on the examination of data collected September to December it isprobable we will need additional count dates between these days for this first winterseason The counts will also cover seaducks outside the Harbour and on the RiffBank but this is only attainable by telescope in good weather The vantage point isthe high dune

The output for the 8 main counts to end of year will beSpecies totals on each dateLocation of roostsDistribution maps for species on tidal areas at low and mid tideDisturbance distances (probably done on other casual dates)Please let me know what you think

Roy Dennis 20 Sep 2006

17

The Highland CouncilPlanning amp DevelopmentGlenurquhart RoadINVERNESSIV3 5NX

For the attention of David Mudie

Dear Mr Mudie

Our ref CNSDCHIIIVABPOPPYour ref 05012940UTIN DMCC

15 November 2006

TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997ENVIRONMENTAL IMPACT ASSESSMENT (SCOTLAND) REGULATIONS 1999OUTLINE PLANNING APPLICATION FOR RESIDENTIAL AND LEISUREDEVELOPMENT INCLUDING HOUSING MARINA BOAT YARD VISITORSCENTRE NATURE CONSERVATION ZONES AND HOTEL WITH SUPPORTINGCOMMUNITY FACILITIES AND SEWAGE TREATMENT PLANT AT THE FORMERFABRICATION YARD WHITENESS ARDERSIERMORAY FIRTH SPECIAL AREA OF CONSERVATION (SAC)INNER MORAY FIRTH SPECIAL PROTECTION AREA (SPA)INNER MORAY FIRTH RAMSAR SITEWHITENESS HEAD SITE OF SPECIAL SCIENTIFIC INTEREST (SSSI)

I am writing with respect to the letter dated 9 November 2006 from Stewart Fulton ofthe Whiteness Property Company Limited regarding the above proposal Foravoidance of doubt a copy of this letter is attached

The letter was written as a result of SNHs formal response to the outline planningapplication dated 31 October 2006 which inter alia objected to the proposedde(elopment in relation to the Moray Firth SAC (bottlenose dolphin interest) on thegrounds that a 500-berth marina will have an adverse impact on the integrity of thedolphin population The SNH response also objected in relation to EuropeanProtected Species on the grounds that the marina will have an adverse impact on thefavourable conservation status of dolphin and porpoise populations

The letter from Stewart Fulton also followed a meeting between The HighlandCouncil Whiteness Property Company Limited and Scottish Natural Heritage on 7November 2006 to discuss the marine mitigation measures already proposed by theapplicant and how these could be underpinned by robust legal mechanisms

SNH POSITION

1

middot a) a Section 75 Planning Agreement that binds the Whiteness PropertyCompany Limited and the Harbour Authority to mitigation measures that willeffectively avoid any adverse impact on a) the integrity of the Moray Firth SACbottlenose dolphin interest and b) the favourable conservation status ofbottlenose dolphin and harbour porpoise The Section 75 Agreement mustinclude provisions to put in place marina mooring leases a sea ranger amarine chart a research programme and a monitoring scheme to confirm thatthe mitigation measures are working effectively Furthermore the Agreementshould restrict the number of boats allowed to use the marina to a levelagreed by The Highland Council in consultation with SNH Boat numbersmust not be allowed to increase unless monitoring demonstrates that such anincrease would not have an adverse impact on the integrity of the SAC TheSection 75 Planning Agreement must be agreed with The Highland Counciland SNH

b)

Although our position has changed in relation to the Moray Firth SAC and EuropeanProtected Species our position in relation to all other aspects of the natural heritageremain as described in our letter to The Highland Council dated 31 October 2006

If you have any questions on the content of this letter then please contact BenLeyshon (benlevshonsnhQovuk) at this office in the first instance I would begrateful if you could let us know of your Councils decision in due course or of anyfurther changes to the proposal that would be relevant to our interests

As stated in our letter of 31 October 2006 you are respectfully reminded of therequirement to notify the Scottish Ministers if your Council is minded to approveplanning consent against SNHs advice in this case

Yours sincerely

GEORGE HOGGArea Manager - East Highlandemail QeorQehoQQsnhQovuk

2

The character of the natural landscape is very strong and distinct the site is only asmall component of this landscape that is recognised for its breadth and extensivecharacter These qualities combined with the strength of character of thesurrounding landscape have resulted in the designation of the area as an Area ofGreat Landscape Value

211 Inner Moray Firth SPA I Ramsar site

We consider that the development has the potential to affect both the qualifying birdspecies and the habitats for which the SPA and Ramsar sites have been designatedImpacts on birds range from interrupted roosting or feeding to reduced survival orbreeding success Disturbance effects can arise through increased levels of stressincreased energy expenditure (through poorer feeding rates or increased flightactivity) reduced feeding success brought on by increased competition betweenbirds and greater exposure to predators These effects may occur singly or togetherin various combinations Effects are rarely easy to predict but post hoc empiricalevidence from other locations demonstrates that sensitive bird species are inevitablylost if levels of disturbance increase on important sites Impacts to the saltmarsh andshingle interests could arise from damage and disturbance to sensitive features as aresult of increased visitor pressure

In SNHs view the application package does not provide sufficient field surveyinformation on the wintering bird interest and the relative importance of nearby areasfor key activities such as feeding and roosting This is essential in order to assess thelikely impacts of the development on qualifying bird species On 19 October 2005SNH requested that Wetland Bird Survey (WeBS) counts would be doubled up in theperiod leading up to the submission of the planning application A bird surveyprotocol was subsequently agreed with the environmental consultant working for theapplicant - a copy of this protocol is attached at Annex B Data gathered as a resultof this agreed survey work has not been provided to SNH In addition theassessment of impacts in the ES lacks quantitative information about the likelyimpact of increased visitor pressure on the qualifying bird or habitat interests and theconclusions about likely impact that are provided in the ES are unsubstantiated

Our advice is that there is insufficient information to determine whether theproposal is likely to have a significant effect on the qualifying interests of thesites In order for this to be determined we recommend that the following additionalinformation be provided

6

bull The distribution of high tide roosts and low tide feeding numbers (which areoften higher than roosting numbers) should be mapped using existing datawhere this is available and supplemented with new data where necessaryThe single winters WeBS data supplied with the planning application shouldbe supplemented with WeBS data from the previous 5 years

bull An analysis of the expected level of land and sea based recreational activityinto sensitive bird areas should be described and an assessment made aboutthe likely impacts of this on qualifying habitats and bird species

Mitigation measures to reduce potential impacts should be proposed Thepotential for creating and enhancing breeding and roosting habitat for birdswithin and adjacent to the site should also be explored

We consider that a key element in determining the acceptability of the proposal onthe qualifying habitats and species will be through the development of an effectiveAccess Management Plan Our comments on what this Plan should include aredescribed in section 25 below

Once this information has been provided SNH will be in a position to give furtherconsideration to this aspect of the proposal Until we are receipt of this additionalinformation then SNH object to this element of the proposal

Submerged sandbanks

As far as the submerged sandbank interest of the SAC is concerned our advice isthat there are likely to be significant effects in relation to the potential for pollutantsfrom the maintenance of the marina (eg through the use of anti-fouling paints andother biocides and detergents) entering the Firth At the scoping stage SNHrequested information about how the marina would be managed in order to mitigatecontaminants entering the Firth however we could not find any information on this inthe ES

Our advice is that there is insufficient information to determine whether theproposal is likely to have a significant effect on the sandbanks In order for thisto be determined we recommend that the following additional information beprovided

bull An assessment of the pollutants likely to arise from the operation of themarina and a description of the arrangements that will be put in place tomanage these pollutants

Once this information has been provided SNH will be in a position to give furtherconsideration to this aspect of the proposal Until we are receipt of this additionalinformation then SNH object to this element of the proposal

7

Sewage discharges containother contaminants that can affect the health of the dolphins

We requested detailed information on the likely impacts of the proposal on thedolphins however some of the information we asked for was not provided in the ESTherefore our advice is that there is insufficient information to determinewhether the proposal is likely to have a significant effect on the dolphins Inorder for this to be determined we recommend that the following additionalinformation be provided

Onshore noise durinQ construction

bull Details about the level of noise generated during the construction phase ofwork and how this will be conveyed to the adjacent underwater environmentIf noise levels are significant then mitigation measures to reduce noise toacceptable levels should be identified (A considerable amount of work on theimpacts of coastal engineering projects on sensitive marine wildlifepopulations has been carried out in other areas methods to mitigate noisefrom these sources are also well established In the first instance werecommend that the applicant contact the Inverness Harbour Trust who haverecently undergone a similar exercise in relation to harbour reclamation worksat Ness Mouth)

8

Wastewater treatment

bull There is reference in the ES that wastewater will be treated to Bathing WaterStandards although this is not explicit SNH welcomes the intention to apply aBathing Water Standard although given that the dolphins are present in thewaters off Whiteness Head year round we would expect that the BathingWater standard would also cover a 12-month period ie a Recreational WaterStandard We would therefore like clarification of the proposed level oftreatment to be provided We also note that SEPA have concerns about fouldrainage at the site and we share these concerns - see our comments undersection 26 below

Once this information has been provided SNH will be in a position to give furtherconsideration to this aspect of the proposal Until we are receipt of this additionalinformation then SNH object to this element of the proposal

It is important to note that on the basis of the information currently availableSNH considers that boat traffic associated with the marina element of theproposal is likely to have an adverse affect on the integrity of the Moray FirthSAC We consider that in order for the applicant to be able to demonstrate that themarina will not adversely affect the integrity of the dolphin population thenconsiderable thought will need to be given by the applicant to effective mitigation andregulatory mechanisms This is likely to involve new and innovative ways of workingin the wider inner Moray Firth area by for example the applicant linking with otherauthorities to provide a more co-ordinated approach to managing recreational boattraffic We have already discussed ways to develop such an approach with thede~eloper and we would be happy to provide a further input if this would be helpful

213 Dornoch Firth and Morrich More SAC

SNHs advice is that this proposal is unlikely to have a significant effect on thecommon seal interest of the Dornoch Firth and Morrich More SAC and in ourview an appropriate assessment is therefore not required

Common seals from the Dornoch Firth and Morrich More SAC may haul out atWhiteness Head and there is the potential for seals to be disturbed by people takingaccess to the shore and from marina users This area is used as a haul out sitebecause it is relatively close to feeding grounds further out in the Moray FirthDisplacement of these animals to other haul out sites for example in the Beauly orCromarty Firths will mean further travelling distances to the feeding areas and thiswould have an energetic cost We therefore recommend that seal disturbance

9

issues should be fully recognised in the Access Management Plan andmeasures to mitigate impacts should be clearly identified

SNHs concerns in relation to the dolphins are described in section 212 above Ifthese concerns are addressed then the legislative provisions under the EPSlegislation will also be fulfilled If these concerns are not addressed then theproposed development is likely to result in one or more actions that arecontrary to the species protection elements of the Conservation (NaturalHabitats ampc) Regulations 1994 and The Conservation (Natural Habitats ampc)Amendment (Scotland) Regulations 2004

SNH asked for information on occurrence of porpoise in the waters close toWhiteness Head to be provided as part of the application However we note that verylittle information has been provided on this within the ES Porpoises will bevulnerable to the same range of issues as described in section 212 above fordolphins However the distribution and abundance of porpoises will be different tothat of the dolphins and porpoises may also show different behavioural responses inrelation to boat traffic In order to adequately safeguard porpoises SNH recommendthat the mitigation and regulatory mechanisms developed for the dolphins (anddescribed in section 212 of this letter) should also fully take into account theporpoise interest This is likely to involve the need to gather data on the distributionand abundance of porpoise in the area Some of this data will already have beencollected and some new data may need to be gathered possibly as part of the datacollection exercise being undertaken for the dolphins

223 Otters

At a meeting between SNH and the developers on 19 October 2005 we advised thatan otter survey should be carried out both within the development footprint but also inan area of extending 200m beyond the boundary The ES included survey data forthe footprint but information on the surrounding area was not provided We thereforere-iterate our advice and recommend that the existing otter survey be extendedto include a 200m area beyond the site boundary

We also recommend that the proposed Code of Construction Practice fullytakes otter into account so that if otters are encountered at any point duringthe construction process clear steps to avoid damage or disturbance arefollowed SNH can advice further on this aspect

10

Once this information has been provided then SNH will be able to give furtherconsideration to this aspect of the proposal

224 Bats

A number of bat roosts will be destroyed in the process of demolishing the existingbuildings Such works would be contrary to the species protection elements of theConservation (Natural Habitats ampc) Regulations 1994 and The Conservation (NaturalHabitats ampc) Amendment (Scotland) Regulations 2004 and therefore cannot proceedunless a licence is obtained from Scottish Executive SNH therefore advise that anapplication for a licence be obtained from Wildlife and Habitats Unit ScottishExecutive Environment and Rural Affairs Department Area 1-H Victoria QuayEdinburgh EH6 600 A licence must be acquired from the Scottish Executivebefore planning consent is granted

SNH consider that there is considerable scope to create additional bat maternityroosts in the buildings associated with this development and this combined with thesensitive installation of bat boxes at suitable locations throughout the site would helpto mitigate the loss of bat roosts during the demolition phase

225 Great crested newts

The lagoon area provides a suitable habitat for great crested newts To enable SNHto advise The Highland Council on impacts we recommend that a survey of greatcrested newts be undertaken in the spring and prior to any works commencingin or close to the lagoon area SNH can provide information on appropriatemethodology and advise if a licence will be required

Once the results of the survey are available we will be able to advise about theimplications of the proposal on the maintenance of this species at a FavourableConservation Status within its natural range

It is worth noting that even if great crested newts are not present at the moment theremay be opportunities to translocate newts from other areas to the lagoon This wouldhave a conservation benefit for the species Please note that such a translocationexercise would need to be carried out under licence from ourselves

As with the impacts on the European site it is likely that the saltmarsh andshingle habitats and their associated flora and the wintering populations ofbar-tailed godwit and knot will be compromised as a result of the proposeddevelopment Once the additional information detailed in section 211 above hasbeen submitted then SNH will be in a position to give further consideration to thisproposal

11

At this stage there is insufficientinformation for us to assess these impacts fully but the natural heritage interestsaffected are of such importance as to justify a precautionary approach SNHtherefore objects to this element of the proposal This objection will bereviewed once the following information detailed below is submitted

An Access Management Plan clearly describing how the shingle spit will besafeguarded from damage or disturbance arising from increased visitorpressure

bull A description of the short medium and long term management proposed forthe spit (including details of any intervention to natural processes shorereplenishment) and channel area (including details on the proposedfrequency location depth and pattern of dredging)

bull A method statement describing how the proposed sewage pipeline will be laidacross the saltmarsh channel and shingle spit Alternatives that are lessdamaging than trenching should be explored for example the use ofdirectional drilling techniques

24 ACCESS

Many of the impacts described in this Annex relate to disturbance or damage causedby increased access by residents and visitors to the sensitive wildlife and habitatsimmediately adjacent to the development footprint The ES acknowledges this andsuggests that an Access Management Plan will mitigate these impacts to acceptablelevels However the Access Management Plan has not yet been produced andwhether such a Plan will be sufficient to adequately mitigate impacts on theEuropean national (and local) natural heritage interests still has to be determinedMechanisms to ensure that any measures identified in the Visitor Management Planwill be effectively applied are also lacking in the ES Also it is important to note thatat present some of the visitor management measures presented in the ES are in ourview not compliant with Part 1 of the Land Reform (Scotland) Act 2003 and theScottish Outdoor Access Code

Although we have referred to the need to develop the Access Management Plan atvarious points in this Annex for the reasons described above SNH objects to thevisitor management measures described in the ES We will review ourobjection once

bull An Access Management Plan has been submitted for the agreement ofThe Highland Council in consultation with SNH The Plan must addressNatura and SSSI issues and be compliant with Part 1 of the Land Reform

12

(Scotland) Act 2003 the Scottish Outdoor Access Code and the DisabilityDiscrimination Act 1995

bull Management mechanisms that ensure that the Access ManagementPlan (and the monitoring of it) will be adhered to should be clearlyidentified This should include details about who will be responsible for thedelivery and implementation of the Plan

In order to provide a steer we consider that the Access Management Plan shouldinclude information on the following

bull All existing paths tracks Rights of Way and any areas expected to beoutwith or excluded from statutory access rights under Part 1 of the landReform (Scotland) Act 2003 (once current land uses are removed) should beidentified

bull All paths and tracks proposed for construction as part of the development foruse by walkers riders cyclists all abilities users etc including all associatedaccess infrastructure should be identified

bull Any diversions of paths - temporary or permanent - proposed for thepurposes of the development should be identified

The Plan should go on to

bull Identify the likely level of public access resulting from the developmentincluding the type of access (land and water based) timing numberslocation type of activity (including dog walkers) seasonality etc This shouldinclude access by both residents and visitors to the site As the moment theES does not clearly acknowledge the number of people likely to visit the newdevelopment from the surrounding area SNH considers that at certain timesof the year (for example Bank Holiday weekends) visitor numbers are likely tobe significant

bull Identify the natural heritage features which could will be affected by publicaccess

bull Identify whether access of the expected leveltype of access will significantlyimpact on the natural heritage features

bull Consider if the impact will be significant and if it is then the range of tools tobe employed to manage this access should be detailed and examplesprovided

bull Detail the proposals to minimise disturbance of the natural heritage of the siteas a result of public access

13

bull Detail the planned monitoring of public access and the natural heritagefeatures and describe how the Access Management Plan will be reviewed inthe light of this monitoring

bull Develop an action plan which would be ready to deploy if the monitoringdemonstrates that the visitor management tools are not sufficient to protectthe natural heritage

We would also like to emphasise that the footbridge to the spit from the maindevelopment is a particular cause for concern Whilst we recognise the benefits thatthe footbridge will have for creating a link with the existing Moray coast path weconsider that it will also open the sensitive spit area to increased visitor pressureBreeding terns lichens and the shingle feature itself are all vulnerable to humandisturbance Some of SNHs concerns in relation to access impacts would bealleviated if the footbridge were removed from the proposed development

25OTHER NATURAL HERITAGE INTERESTS

251 Landscape and visual amenity

The ES and accompanying documentation provide a clear and well thought outapproach to the landscape and visual impacts of the proposal It is clear thatconsiderable thought has gone into sensitive and innovative design of thedevelopment and we are pleased to see that emphasis has been given to the need tocreate green space and natural features within the built up areas The proposalshave a very strong overall landscape structure with the identity of individualneighbourhoods being defined by landscape character A landscape strategyoutlined within the Design Statement in part 4 Placemaking shows how theproposals seek to reinforce existing character integrate with adjacent character orcreate new landscape character areas The landscape strategy contains manyexcellent ideas for example the wetland scrapes within forest clearings

We do not raise any concerns about the landscape and visual impact of the proposalhowever given the scale of this development together with its prominence from keyviewpoints from the Black Isle and beyond we recommend that a detailedLandscape Management Plan should be made condition of any planningconsent granted

SNH advice that the following aspects could be included within the Plan

bull Early tree planting within the neighbourhood in order that trees can becomeestablished and therefore soften the appearance of the new developmentThis would also create a better quality landscape in the early years of thedevelopment as plantings would consist of trees roughly the same age andheight The creation of wetland scapes should also be undertaken as earlyas possible as such features take time to establish

14

bull The hotel would be the tallest building on site Drawings in the DesignStatement suggest that this would be a landmark building and a focal pointwithin the landscape A landmark building need not be exaggerated orelaborate SNH recommend that due to the prominent location of this buildingit should be a simple design that could still achieve a bold statement

The Seafront Neighbourhood would be the most visually prominent part of thedevelopment within views from the Black Isle Nairn Esplanade and the coastal pathto the east Plots would be the densest and the heights of buildings the greatestwithin the development Public spaces would consist of civic squares and walkwayswith vegetation density being possibly the lowest within the development SNHrecommends that the seafront neighbourhood is the subject of a specificdevelopmentdesign brief to ensure that high standards of design are used tointegrate this part of the development into the coastal landscape Thedevelopmentdesign brief should include details of the following

bull Housing design including details of materials and finishes to be usedbull Public realm design including details of materials and finishes to be usedbull Details of outbuildings and ancilliary facilities (eg garages sheds and

greenhouses )bull Landscape and open space including civic squares and performance spacesbull Boundary enclosuresbull Car parkingbull Lighting

252 Local Biodiversity Action Plans

At the pre-application stage SNH advised that information on species and habitatslisted in the Inverness and Nairn Biodiversity Action Plan and species that haveSpecies Action Plans should be detailed in the ES As far as we can ascertain suchinformation does not appear to be included However there is a clear commitment bythe applicant to safeguard and enhance biodiversity on the site and the applicantstates that a Biodiversity Action Plan specifically for Whiteness Head will bedeveloped SNH support this approach and advise that the Inverness and NairnLBAP should be a starting point for developing a Whiteness Head Biodiversity Plan

26 POLLUTION AND WASTE MANAGEMENT

We support reference in the ES to the preparation and implementation of a Code ofConstruction Practice We recommend that this should be a condition of any planningconsent issued The Code of Construction Practice should specifically addresssensitive natural heritage receptors especially those that have protected status forexample the need to take otter into account if they should be encountered duringconstruction operations Also the Code of Construction Practice should fullyrec~gnise the presence of Crassula helmsit-1 and take steps to ensure that it is notspread within and beyond the site

I Cra$sula helmsii is a prolific non-native water weed present in the lagoon area at Whiteness Head

15

We note that SEPA have objected to the proposal on a number of grounds includingthe provision for foul drainage SEPA states that further work is required in orderfor SEPA to be assured that the proposals are environmentally acceptable SNHshares these concerns and we will need to be assured by SEPA thatwastewater provision at the site will not adversely affect the designatedfeatures of interest If this assurance cannot be given then SNH will object towastewater provision as part of this application and to any future applicationmade under the Controlled Activities Regulations 2006

16

Annex B

Whiteness - wader and wildfowl counts - Winter season 20052006

FOliowing our discussions with SNH yesterday 19th September I have spoken todaywith the Webs count co-ordinator for the Moray Firth Dave Butterfield at the RSPBOffice in Inverness He tells me that the four official count dates for the whole firthare 16th October 4th December 15th January and 1ih February I have agreed withhim that I will carry out those counts at Whiteness in place of the previous countersas part of the over all Firth monitoring programme

In order to provide sufficient detail for the EA as agreed with SNH we require to carryout a more detailed survey with extra count dates which require to cover the low tidedistribution of birds and locations of high tide roosts as well as the total numbers foreach species

I recommend that I carry out the following counts - approximate dates (in very badweather conditions additional counts may be delayed by a day) which will cover thetidal span from low to high tide or vice versa depending on timing of high tide

Date

22 September2 October16 OCTOBER30 October7 November21 November4 DECEMBER19 pecember

1352

High Tide Time

1604 hours12481221103415271525

1433

High tide height

45 metres4548424341

4744

The 2006 main counts are 15th JANUARY and 12th FEBRUARY and the furthermonthly count dates are 12 March 9 April 14 May 11 June 16 July 13 August and17 September

Depending on the examination of data collected September to December it isprobable we will need additional count dates between these days for this first winterseason The counts will also cover seaducks outside the Harbour and on the RiffBank but this is only attainable by telescope in good weather The vantage point isthe high dune

The output for the 8 main counts to end of year will beSpecies totals on each dateLocation of roostsDistribution maps for species on tidal areas at low and mid tideDisturbance distances (probably done on other casual dates)Please let me know what you think

Roy Dennis 20 Sep 2006

17

The Highland CouncilPlanning amp DevelopmentGlenurquhart RoadINVERNESSIV3 5NX

For the attention of David Mudie

Dear Mr Mudie

Our ref CNSDCHIIIVABPOPPYour ref 05012940UTIN DMCC

15 November 2006

TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997ENVIRONMENTAL IMPACT ASSESSMENT (SCOTLAND) REGULATIONS 1999OUTLINE PLANNING APPLICATION FOR RESIDENTIAL AND LEISUREDEVELOPMENT INCLUDING HOUSING MARINA BOAT YARD VISITORSCENTRE NATURE CONSERVATION ZONES AND HOTEL WITH SUPPORTINGCOMMUNITY FACILITIES AND SEWAGE TREATMENT PLANT AT THE FORMERFABRICATION YARD WHITENESS ARDERSIERMORAY FIRTH SPECIAL AREA OF CONSERVATION (SAC)INNER MORAY FIRTH SPECIAL PROTECTION AREA (SPA)INNER MORAY FIRTH RAMSAR SITEWHITENESS HEAD SITE OF SPECIAL SCIENTIFIC INTEREST (SSSI)

I am writing with respect to the letter dated 9 November 2006 from Stewart Fulton ofthe Whiteness Property Company Limited regarding the above proposal Foravoidance of doubt a copy of this letter is attached

The letter was written as a result of SNHs formal response to the outline planningapplication dated 31 October 2006 which inter alia objected to the proposedde(elopment in relation to the Moray Firth SAC (bottlenose dolphin interest) on thegrounds that a 500-berth marina will have an adverse impact on the integrity of thedolphin population The SNH response also objected in relation to EuropeanProtected Species on the grounds that the marina will have an adverse impact on thefavourable conservation status of dolphin and porpoise populations

The letter from Stewart Fulton also followed a meeting between The HighlandCouncil Whiteness Property Company Limited and Scottish Natural Heritage on 7November 2006 to discuss the marine mitigation measures already proposed by theapplicant and how these could be underpinned by robust legal mechanisms

SNH POSITION

1

middot a) a Section 75 Planning Agreement that binds the Whiteness PropertyCompany Limited and the Harbour Authority to mitigation measures that willeffectively avoid any adverse impact on a) the integrity of the Moray Firth SACbottlenose dolphin interest and b) the favourable conservation status ofbottlenose dolphin and harbour porpoise The Section 75 Agreement mustinclude provisions to put in place marina mooring leases a sea ranger amarine chart a research programme and a monitoring scheme to confirm thatthe mitigation measures are working effectively Furthermore the Agreementshould restrict the number of boats allowed to use the marina to a levelagreed by The Highland Council in consultation with SNH Boat numbersmust not be allowed to increase unless monitoring demonstrates that such anincrease would not have an adverse impact on the integrity of the SAC TheSection 75 Planning Agreement must be agreed with The Highland Counciland SNH

b)

Although our position has changed in relation to the Moray Firth SAC and EuropeanProtected Species our position in relation to all other aspects of the natural heritageremain as described in our letter to The Highland Council dated 31 October 2006

If you have any questions on the content of this letter then please contact BenLeyshon (benlevshonsnhQovuk) at this office in the first instance I would begrateful if you could let us know of your Councils decision in due course or of anyfurther changes to the proposal that would be relevant to our interests

As stated in our letter of 31 October 2006 you are respectfully reminded of therequirement to notify the Scottish Ministers if your Council is minded to approveplanning consent against SNHs advice in this case

Yours sincerely

GEORGE HOGGArea Manager - East Highlandemail QeorQehoQQsnhQovuk

2

bull The distribution of high tide roosts and low tide feeding numbers (which areoften higher than roosting numbers) should be mapped using existing datawhere this is available and supplemented with new data where necessaryThe single winters WeBS data supplied with the planning application shouldbe supplemented with WeBS data from the previous 5 years

bull An analysis of the expected level of land and sea based recreational activityinto sensitive bird areas should be described and an assessment made aboutthe likely impacts of this on qualifying habitats and bird species

Mitigation measures to reduce potential impacts should be proposed Thepotential for creating and enhancing breeding and roosting habitat for birdswithin and adjacent to the site should also be explored

We consider that a key element in determining the acceptability of the proposal onthe qualifying habitats and species will be through the development of an effectiveAccess Management Plan Our comments on what this Plan should include aredescribed in section 25 below

Once this information has been provided SNH will be in a position to give furtherconsideration to this aspect of the proposal Until we are receipt of this additionalinformation then SNH object to this element of the proposal

Submerged sandbanks

As far as the submerged sandbank interest of the SAC is concerned our advice isthat there are likely to be significant effects in relation to the potential for pollutantsfrom the maintenance of the marina (eg through the use of anti-fouling paints andother biocides and detergents) entering the Firth At the scoping stage SNHrequested information about how the marina would be managed in order to mitigatecontaminants entering the Firth however we could not find any information on this inthe ES

Our advice is that there is insufficient information to determine whether theproposal is likely to have a significant effect on the sandbanks In order for thisto be determined we recommend that the following additional information beprovided

bull An assessment of the pollutants likely to arise from the operation of themarina and a description of the arrangements that will be put in place tomanage these pollutants

Once this information has been provided SNH will be in a position to give furtherconsideration to this aspect of the proposal Until we are receipt of this additionalinformation then SNH object to this element of the proposal

7

Sewage discharges containother contaminants that can affect the health of the dolphins

We requested detailed information on the likely impacts of the proposal on thedolphins however some of the information we asked for was not provided in the ESTherefore our advice is that there is insufficient information to determinewhether the proposal is likely to have a significant effect on the dolphins Inorder for this to be determined we recommend that the following additionalinformation be provided

Onshore noise durinQ construction

bull Details about the level of noise generated during the construction phase ofwork and how this will be conveyed to the adjacent underwater environmentIf noise levels are significant then mitigation measures to reduce noise toacceptable levels should be identified (A considerable amount of work on theimpacts of coastal engineering projects on sensitive marine wildlifepopulations has been carried out in other areas methods to mitigate noisefrom these sources are also well established In the first instance werecommend that the applicant contact the Inverness Harbour Trust who haverecently undergone a similar exercise in relation to harbour reclamation worksat Ness Mouth)

8

Wastewater treatment

bull There is reference in the ES that wastewater will be treated to Bathing WaterStandards although this is not explicit SNH welcomes the intention to apply aBathing Water Standard although given that the dolphins are present in thewaters off Whiteness Head year round we would expect that the BathingWater standard would also cover a 12-month period ie a Recreational WaterStandard We would therefore like clarification of the proposed level oftreatment to be provided We also note that SEPA have concerns about fouldrainage at the site and we share these concerns - see our comments undersection 26 below

Once this information has been provided SNH will be in a position to give furtherconsideration to this aspect of the proposal Until we are receipt of this additionalinformation then SNH object to this element of the proposal

It is important to note that on the basis of the information currently availableSNH considers that boat traffic associated with the marina element of theproposal is likely to have an adverse affect on the integrity of the Moray FirthSAC We consider that in order for the applicant to be able to demonstrate that themarina will not adversely affect the integrity of the dolphin population thenconsiderable thought will need to be given by the applicant to effective mitigation andregulatory mechanisms This is likely to involve new and innovative ways of workingin the wider inner Moray Firth area by for example the applicant linking with otherauthorities to provide a more co-ordinated approach to managing recreational boattraffic We have already discussed ways to develop such an approach with thede~eloper and we would be happy to provide a further input if this would be helpful

213 Dornoch Firth and Morrich More SAC

SNHs advice is that this proposal is unlikely to have a significant effect on thecommon seal interest of the Dornoch Firth and Morrich More SAC and in ourview an appropriate assessment is therefore not required

Common seals from the Dornoch Firth and Morrich More SAC may haul out atWhiteness Head and there is the potential for seals to be disturbed by people takingaccess to the shore and from marina users This area is used as a haul out sitebecause it is relatively close to feeding grounds further out in the Moray FirthDisplacement of these animals to other haul out sites for example in the Beauly orCromarty Firths will mean further travelling distances to the feeding areas and thiswould have an energetic cost We therefore recommend that seal disturbance

9

issues should be fully recognised in the Access Management Plan andmeasures to mitigate impacts should be clearly identified

SNHs concerns in relation to the dolphins are described in section 212 above Ifthese concerns are addressed then the legislative provisions under the EPSlegislation will also be fulfilled If these concerns are not addressed then theproposed development is likely to result in one or more actions that arecontrary to the species protection elements of the Conservation (NaturalHabitats ampc) Regulations 1994 and The Conservation (Natural Habitats ampc)Amendment (Scotland) Regulations 2004

SNH asked for information on occurrence of porpoise in the waters close toWhiteness Head to be provided as part of the application However we note that verylittle information has been provided on this within the ES Porpoises will bevulnerable to the same range of issues as described in section 212 above fordolphins However the distribution and abundance of porpoises will be different tothat of the dolphins and porpoises may also show different behavioural responses inrelation to boat traffic In order to adequately safeguard porpoises SNH recommendthat the mitigation and regulatory mechanisms developed for the dolphins (anddescribed in section 212 of this letter) should also fully take into account theporpoise interest This is likely to involve the need to gather data on the distributionand abundance of porpoise in the area Some of this data will already have beencollected and some new data may need to be gathered possibly as part of the datacollection exercise being undertaken for the dolphins

223 Otters

At a meeting between SNH and the developers on 19 October 2005 we advised thatan otter survey should be carried out both within the development footprint but also inan area of extending 200m beyond the boundary The ES included survey data forthe footprint but information on the surrounding area was not provided We thereforere-iterate our advice and recommend that the existing otter survey be extendedto include a 200m area beyond the site boundary

We also recommend that the proposed Code of Construction Practice fullytakes otter into account so that if otters are encountered at any point duringthe construction process clear steps to avoid damage or disturbance arefollowed SNH can advice further on this aspect

10

Once this information has been provided then SNH will be able to give furtherconsideration to this aspect of the proposal

224 Bats

A number of bat roosts will be destroyed in the process of demolishing the existingbuildings Such works would be contrary to the species protection elements of theConservation (Natural Habitats ampc) Regulations 1994 and The Conservation (NaturalHabitats ampc) Amendment (Scotland) Regulations 2004 and therefore cannot proceedunless a licence is obtained from Scottish Executive SNH therefore advise that anapplication for a licence be obtained from Wildlife and Habitats Unit ScottishExecutive Environment and Rural Affairs Department Area 1-H Victoria QuayEdinburgh EH6 600 A licence must be acquired from the Scottish Executivebefore planning consent is granted

SNH consider that there is considerable scope to create additional bat maternityroosts in the buildings associated with this development and this combined with thesensitive installation of bat boxes at suitable locations throughout the site would helpto mitigate the loss of bat roosts during the demolition phase

225 Great crested newts

The lagoon area provides a suitable habitat for great crested newts To enable SNHto advise The Highland Council on impacts we recommend that a survey of greatcrested newts be undertaken in the spring and prior to any works commencingin or close to the lagoon area SNH can provide information on appropriatemethodology and advise if a licence will be required

Once the results of the survey are available we will be able to advise about theimplications of the proposal on the maintenance of this species at a FavourableConservation Status within its natural range

It is worth noting that even if great crested newts are not present at the moment theremay be opportunities to translocate newts from other areas to the lagoon This wouldhave a conservation benefit for the species Please note that such a translocationexercise would need to be carried out under licence from ourselves

As with the impacts on the European site it is likely that the saltmarsh andshingle habitats and their associated flora and the wintering populations ofbar-tailed godwit and knot will be compromised as a result of the proposeddevelopment Once the additional information detailed in section 211 above hasbeen submitted then SNH will be in a position to give further consideration to thisproposal

11

At this stage there is insufficientinformation for us to assess these impacts fully but the natural heritage interestsaffected are of such importance as to justify a precautionary approach SNHtherefore objects to this element of the proposal This objection will bereviewed once the following information detailed below is submitted

An Access Management Plan clearly describing how the shingle spit will besafeguarded from damage or disturbance arising from increased visitorpressure

bull A description of the short medium and long term management proposed forthe spit (including details of any intervention to natural processes shorereplenishment) and channel area (including details on the proposedfrequency location depth and pattern of dredging)

bull A method statement describing how the proposed sewage pipeline will be laidacross the saltmarsh channel and shingle spit Alternatives that are lessdamaging than trenching should be explored for example the use ofdirectional drilling techniques

24 ACCESS

Many of the impacts described in this Annex relate to disturbance or damage causedby increased access by residents and visitors to the sensitive wildlife and habitatsimmediately adjacent to the development footprint The ES acknowledges this andsuggests that an Access Management Plan will mitigate these impacts to acceptablelevels However the Access Management Plan has not yet been produced andwhether such a Plan will be sufficient to adequately mitigate impacts on theEuropean national (and local) natural heritage interests still has to be determinedMechanisms to ensure that any measures identified in the Visitor Management Planwill be effectively applied are also lacking in the ES Also it is important to note thatat present some of the visitor management measures presented in the ES are in ourview not compliant with Part 1 of the Land Reform (Scotland) Act 2003 and theScottish Outdoor Access Code

Although we have referred to the need to develop the Access Management Plan atvarious points in this Annex for the reasons described above SNH objects to thevisitor management measures described in the ES We will review ourobjection once

bull An Access Management Plan has been submitted for the agreement ofThe Highland Council in consultation with SNH The Plan must addressNatura and SSSI issues and be compliant with Part 1 of the Land Reform

12

(Scotland) Act 2003 the Scottish Outdoor Access Code and the DisabilityDiscrimination Act 1995

bull Management mechanisms that ensure that the Access ManagementPlan (and the monitoring of it) will be adhered to should be clearlyidentified This should include details about who will be responsible for thedelivery and implementation of the Plan

In order to provide a steer we consider that the Access Management Plan shouldinclude information on the following

bull All existing paths tracks Rights of Way and any areas expected to beoutwith or excluded from statutory access rights under Part 1 of the landReform (Scotland) Act 2003 (once current land uses are removed) should beidentified

bull All paths and tracks proposed for construction as part of the development foruse by walkers riders cyclists all abilities users etc including all associatedaccess infrastructure should be identified

bull Any diversions of paths - temporary or permanent - proposed for thepurposes of the development should be identified

The Plan should go on to

bull Identify the likely level of public access resulting from the developmentincluding the type of access (land and water based) timing numberslocation type of activity (including dog walkers) seasonality etc This shouldinclude access by both residents and visitors to the site As the moment theES does not clearly acknowledge the number of people likely to visit the newdevelopment from the surrounding area SNH considers that at certain timesof the year (for example Bank Holiday weekends) visitor numbers are likely tobe significant

bull Identify the natural heritage features which could will be affected by publicaccess

bull Identify whether access of the expected leveltype of access will significantlyimpact on the natural heritage features

bull Consider if the impact will be significant and if it is then the range of tools tobe employed to manage this access should be detailed and examplesprovided

bull Detail the proposals to minimise disturbance of the natural heritage of the siteas a result of public access

13

bull Detail the planned monitoring of public access and the natural heritagefeatures and describe how the Access Management Plan will be reviewed inthe light of this monitoring

bull Develop an action plan which would be ready to deploy if the monitoringdemonstrates that the visitor management tools are not sufficient to protectthe natural heritage

We would also like to emphasise that the footbridge to the spit from the maindevelopment is a particular cause for concern Whilst we recognise the benefits thatthe footbridge will have for creating a link with the existing Moray coast path weconsider that it will also open the sensitive spit area to increased visitor pressureBreeding terns lichens and the shingle feature itself are all vulnerable to humandisturbance Some of SNHs concerns in relation to access impacts would bealleviated if the footbridge were removed from the proposed development

25OTHER NATURAL HERITAGE INTERESTS

251 Landscape and visual amenity

The ES and accompanying documentation provide a clear and well thought outapproach to the landscape and visual impacts of the proposal It is clear thatconsiderable thought has gone into sensitive and innovative design of thedevelopment and we are pleased to see that emphasis has been given to the need tocreate green space and natural features within the built up areas The proposalshave a very strong overall landscape structure with the identity of individualneighbourhoods being defined by landscape character A landscape strategyoutlined within the Design Statement in part 4 Placemaking shows how theproposals seek to reinforce existing character integrate with adjacent character orcreate new landscape character areas The landscape strategy contains manyexcellent ideas for example the wetland scrapes within forest clearings

We do not raise any concerns about the landscape and visual impact of the proposalhowever given the scale of this development together with its prominence from keyviewpoints from the Black Isle and beyond we recommend that a detailedLandscape Management Plan should be made condition of any planningconsent granted

SNH advice that the following aspects could be included within the Plan

bull Early tree planting within the neighbourhood in order that trees can becomeestablished and therefore soften the appearance of the new developmentThis would also create a better quality landscape in the early years of thedevelopment as plantings would consist of trees roughly the same age andheight The creation of wetland scapes should also be undertaken as earlyas possible as such features take time to establish

14

bull The hotel would be the tallest building on site Drawings in the DesignStatement suggest that this would be a landmark building and a focal pointwithin the landscape A landmark building need not be exaggerated orelaborate SNH recommend that due to the prominent location of this buildingit should be a simple design that could still achieve a bold statement

The Seafront Neighbourhood would be the most visually prominent part of thedevelopment within views from the Black Isle Nairn Esplanade and the coastal pathto the east Plots would be the densest and the heights of buildings the greatestwithin the development Public spaces would consist of civic squares and walkwayswith vegetation density being possibly the lowest within the development SNHrecommends that the seafront neighbourhood is the subject of a specificdevelopmentdesign brief to ensure that high standards of design are used tointegrate this part of the development into the coastal landscape Thedevelopmentdesign brief should include details of the following

bull Housing design including details of materials and finishes to be usedbull Public realm design including details of materials and finishes to be usedbull Details of outbuildings and ancilliary facilities (eg garages sheds and

greenhouses )bull Landscape and open space including civic squares and performance spacesbull Boundary enclosuresbull Car parkingbull Lighting

252 Local Biodiversity Action Plans

At the pre-application stage SNH advised that information on species and habitatslisted in the Inverness and Nairn Biodiversity Action Plan and species that haveSpecies Action Plans should be detailed in the ES As far as we can ascertain suchinformation does not appear to be included However there is a clear commitment bythe applicant to safeguard and enhance biodiversity on the site and the applicantstates that a Biodiversity Action Plan specifically for Whiteness Head will bedeveloped SNH support this approach and advise that the Inverness and NairnLBAP should be a starting point for developing a Whiteness Head Biodiversity Plan

26 POLLUTION AND WASTE MANAGEMENT

We support reference in the ES to the preparation and implementation of a Code ofConstruction Practice We recommend that this should be a condition of any planningconsent issued The Code of Construction Practice should specifically addresssensitive natural heritage receptors especially those that have protected status forexample the need to take otter into account if they should be encountered duringconstruction operations Also the Code of Construction Practice should fullyrec~gnise the presence of Crassula helmsit-1 and take steps to ensure that it is notspread within and beyond the site

I Cra$sula helmsii is a prolific non-native water weed present in the lagoon area at Whiteness Head

15

We note that SEPA have objected to the proposal on a number of grounds includingthe provision for foul drainage SEPA states that further work is required in orderfor SEPA to be assured that the proposals are environmentally acceptable SNHshares these concerns and we will need to be assured by SEPA thatwastewater provision at the site will not adversely affect the designatedfeatures of interest If this assurance cannot be given then SNH will object towastewater provision as part of this application and to any future applicationmade under the Controlled Activities Regulations 2006

16

Annex B

Whiteness - wader and wildfowl counts - Winter season 20052006

FOliowing our discussions with SNH yesterday 19th September I have spoken todaywith the Webs count co-ordinator for the Moray Firth Dave Butterfield at the RSPBOffice in Inverness He tells me that the four official count dates for the whole firthare 16th October 4th December 15th January and 1ih February I have agreed withhim that I will carry out those counts at Whiteness in place of the previous countersas part of the over all Firth monitoring programme

In order to provide sufficient detail for the EA as agreed with SNH we require to carryout a more detailed survey with extra count dates which require to cover the low tidedistribution of birds and locations of high tide roosts as well as the total numbers foreach species

I recommend that I carry out the following counts - approximate dates (in very badweather conditions additional counts may be delayed by a day) which will cover thetidal span from low to high tide or vice versa depending on timing of high tide

Date

22 September2 October16 OCTOBER30 October7 November21 November4 DECEMBER19 pecember

1352

High Tide Time

1604 hours12481221103415271525

1433

High tide height

45 metres4548424341

4744

The 2006 main counts are 15th JANUARY and 12th FEBRUARY and the furthermonthly count dates are 12 March 9 April 14 May 11 June 16 July 13 August and17 September

Depending on the examination of data collected September to December it isprobable we will need additional count dates between these days for this first winterseason The counts will also cover seaducks outside the Harbour and on the RiffBank but this is only attainable by telescope in good weather The vantage point isthe high dune

The output for the 8 main counts to end of year will beSpecies totals on each dateLocation of roostsDistribution maps for species on tidal areas at low and mid tideDisturbance distances (probably done on other casual dates)Please let me know what you think

Roy Dennis 20 Sep 2006

17

The Highland CouncilPlanning amp DevelopmentGlenurquhart RoadINVERNESSIV3 5NX

For the attention of David Mudie

Dear Mr Mudie

Our ref CNSDCHIIIVABPOPPYour ref 05012940UTIN DMCC

15 November 2006

TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997ENVIRONMENTAL IMPACT ASSESSMENT (SCOTLAND) REGULATIONS 1999OUTLINE PLANNING APPLICATION FOR RESIDENTIAL AND LEISUREDEVELOPMENT INCLUDING HOUSING MARINA BOAT YARD VISITORSCENTRE NATURE CONSERVATION ZONES AND HOTEL WITH SUPPORTINGCOMMUNITY FACILITIES AND SEWAGE TREATMENT PLANT AT THE FORMERFABRICATION YARD WHITENESS ARDERSIERMORAY FIRTH SPECIAL AREA OF CONSERVATION (SAC)INNER MORAY FIRTH SPECIAL PROTECTION AREA (SPA)INNER MORAY FIRTH RAMSAR SITEWHITENESS HEAD SITE OF SPECIAL SCIENTIFIC INTEREST (SSSI)

I am writing with respect to the letter dated 9 November 2006 from Stewart Fulton ofthe Whiteness Property Company Limited regarding the above proposal Foravoidance of doubt a copy of this letter is attached

The letter was written as a result of SNHs formal response to the outline planningapplication dated 31 October 2006 which inter alia objected to the proposedde(elopment in relation to the Moray Firth SAC (bottlenose dolphin interest) on thegrounds that a 500-berth marina will have an adverse impact on the integrity of thedolphin population The SNH response also objected in relation to EuropeanProtected Species on the grounds that the marina will have an adverse impact on thefavourable conservation status of dolphin and porpoise populations

The letter from Stewart Fulton also followed a meeting between The HighlandCouncil Whiteness Property Company Limited and Scottish Natural Heritage on 7November 2006 to discuss the marine mitigation measures already proposed by theapplicant and how these could be underpinned by robust legal mechanisms

SNH POSITION

1

middot a) a Section 75 Planning Agreement that binds the Whiteness PropertyCompany Limited and the Harbour Authority to mitigation measures that willeffectively avoid any adverse impact on a) the integrity of the Moray Firth SACbottlenose dolphin interest and b) the favourable conservation status ofbottlenose dolphin and harbour porpoise The Section 75 Agreement mustinclude provisions to put in place marina mooring leases a sea ranger amarine chart a research programme and a monitoring scheme to confirm thatthe mitigation measures are working effectively Furthermore the Agreementshould restrict the number of boats allowed to use the marina to a levelagreed by The Highland Council in consultation with SNH Boat numbersmust not be allowed to increase unless monitoring demonstrates that such anincrease would not have an adverse impact on the integrity of the SAC TheSection 75 Planning Agreement must be agreed with The Highland Counciland SNH

b)

Although our position has changed in relation to the Moray Firth SAC and EuropeanProtected Species our position in relation to all other aspects of the natural heritageremain as described in our letter to The Highland Council dated 31 October 2006

If you have any questions on the content of this letter then please contact BenLeyshon (benlevshonsnhQovuk) at this office in the first instance I would begrateful if you could let us know of your Councils decision in due course or of anyfurther changes to the proposal that would be relevant to our interests

As stated in our letter of 31 October 2006 you are respectfully reminded of therequirement to notify the Scottish Ministers if your Council is minded to approveplanning consent against SNHs advice in this case

Yours sincerely

GEORGE HOGGArea Manager - East Highlandemail QeorQehoQQsnhQovuk

2

Sewage discharges containother contaminants that can affect the health of the dolphins

We requested detailed information on the likely impacts of the proposal on thedolphins however some of the information we asked for was not provided in the ESTherefore our advice is that there is insufficient information to determinewhether the proposal is likely to have a significant effect on the dolphins Inorder for this to be determined we recommend that the following additionalinformation be provided

Onshore noise durinQ construction

bull Details about the level of noise generated during the construction phase ofwork and how this will be conveyed to the adjacent underwater environmentIf noise levels are significant then mitigation measures to reduce noise toacceptable levels should be identified (A considerable amount of work on theimpacts of coastal engineering projects on sensitive marine wildlifepopulations has been carried out in other areas methods to mitigate noisefrom these sources are also well established In the first instance werecommend that the applicant contact the Inverness Harbour Trust who haverecently undergone a similar exercise in relation to harbour reclamation worksat Ness Mouth)

8

Wastewater treatment

bull There is reference in the ES that wastewater will be treated to Bathing WaterStandards although this is not explicit SNH welcomes the intention to apply aBathing Water Standard although given that the dolphins are present in thewaters off Whiteness Head year round we would expect that the BathingWater standard would also cover a 12-month period ie a Recreational WaterStandard We would therefore like clarification of the proposed level oftreatment to be provided We also note that SEPA have concerns about fouldrainage at the site and we share these concerns - see our comments undersection 26 below

Once this information has been provided SNH will be in a position to give furtherconsideration to this aspect of the proposal Until we are receipt of this additionalinformation then SNH object to this element of the proposal

It is important to note that on the basis of the information currently availableSNH considers that boat traffic associated with the marina element of theproposal is likely to have an adverse affect on the integrity of the Moray FirthSAC We consider that in order for the applicant to be able to demonstrate that themarina will not adversely affect the integrity of the dolphin population thenconsiderable thought will need to be given by the applicant to effective mitigation andregulatory mechanisms This is likely to involve new and innovative ways of workingin the wider inner Moray Firth area by for example the applicant linking with otherauthorities to provide a more co-ordinated approach to managing recreational boattraffic We have already discussed ways to develop such an approach with thede~eloper and we would be happy to provide a further input if this would be helpful

213 Dornoch Firth and Morrich More SAC

SNHs advice is that this proposal is unlikely to have a significant effect on thecommon seal interest of the Dornoch Firth and Morrich More SAC and in ourview an appropriate assessment is therefore not required

Common seals from the Dornoch Firth and Morrich More SAC may haul out atWhiteness Head and there is the potential for seals to be disturbed by people takingaccess to the shore and from marina users This area is used as a haul out sitebecause it is relatively close to feeding grounds further out in the Moray FirthDisplacement of these animals to other haul out sites for example in the Beauly orCromarty Firths will mean further travelling distances to the feeding areas and thiswould have an energetic cost We therefore recommend that seal disturbance

9

issues should be fully recognised in the Access Management Plan andmeasures to mitigate impacts should be clearly identified

SNHs concerns in relation to the dolphins are described in section 212 above Ifthese concerns are addressed then the legislative provisions under the EPSlegislation will also be fulfilled If these concerns are not addressed then theproposed development is likely to result in one or more actions that arecontrary to the species protection elements of the Conservation (NaturalHabitats ampc) Regulations 1994 and The Conservation (Natural Habitats ampc)Amendment (Scotland) Regulations 2004

SNH asked for information on occurrence of porpoise in the waters close toWhiteness Head to be provided as part of the application However we note that verylittle information has been provided on this within the ES Porpoises will bevulnerable to the same range of issues as described in section 212 above fordolphins However the distribution and abundance of porpoises will be different tothat of the dolphins and porpoises may also show different behavioural responses inrelation to boat traffic In order to adequately safeguard porpoises SNH recommendthat the mitigation and regulatory mechanisms developed for the dolphins (anddescribed in section 212 of this letter) should also fully take into account theporpoise interest This is likely to involve the need to gather data on the distributionand abundance of porpoise in the area Some of this data will already have beencollected and some new data may need to be gathered possibly as part of the datacollection exercise being undertaken for the dolphins

223 Otters

At a meeting between SNH and the developers on 19 October 2005 we advised thatan otter survey should be carried out both within the development footprint but also inan area of extending 200m beyond the boundary The ES included survey data forthe footprint but information on the surrounding area was not provided We thereforere-iterate our advice and recommend that the existing otter survey be extendedto include a 200m area beyond the site boundary

We also recommend that the proposed Code of Construction Practice fullytakes otter into account so that if otters are encountered at any point duringthe construction process clear steps to avoid damage or disturbance arefollowed SNH can advice further on this aspect

10

Once this information has been provided then SNH will be able to give furtherconsideration to this aspect of the proposal

224 Bats

A number of bat roosts will be destroyed in the process of demolishing the existingbuildings Such works would be contrary to the species protection elements of theConservation (Natural Habitats ampc) Regulations 1994 and The Conservation (NaturalHabitats ampc) Amendment (Scotland) Regulations 2004 and therefore cannot proceedunless a licence is obtained from Scottish Executive SNH therefore advise that anapplication for a licence be obtained from Wildlife and Habitats Unit ScottishExecutive Environment and Rural Affairs Department Area 1-H Victoria QuayEdinburgh EH6 600 A licence must be acquired from the Scottish Executivebefore planning consent is granted

SNH consider that there is considerable scope to create additional bat maternityroosts in the buildings associated with this development and this combined with thesensitive installation of bat boxes at suitable locations throughout the site would helpto mitigate the loss of bat roosts during the demolition phase

225 Great crested newts

The lagoon area provides a suitable habitat for great crested newts To enable SNHto advise The Highland Council on impacts we recommend that a survey of greatcrested newts be undertaken in the spring and prior to any works commencingin or close to the lagoon area SNH can provide information on appropriatemethodology and advise if a licence will be required

Once the results of the survey are available we will be able to advise about theimplications of the proposal on the maintenance of this species at a FavourableConservation Status within its natural range

It is worth noting that even if great crested newts are not present at the moment theremay be opportunities to translocate newts from other areas to the lagoon This wouldhave a conservation benefit for the species Please note that such a translocationexercise would need to be carried out under licence from ourselves

As with the impacts on the European site it is likely that the saltmarsh andshingle habitats and their associated flora and the wintering populations ofbar-tailed godwit and knot will be compromised as a result of the proposeddevelopment Once the additional information detailed in section 211 above hasbeen submitted then SNH will be in a position to give further consideration to thisproposal

11

At this stage there is insufficientinformation for us to assess these impacts fully but the natural heritage interestsaffected are of such importance as to justify a precautionary approach SNHtherefore objects to this element of the proposal This objection will bereviewed once the following information detailed below is submitted

An Access Management Plan clearly describing how the shingle spit will besafeguarded from damage or disturbance arising from increased visitorpressure

bull A description of the short medium and long term management proposed forthe spit (including details of any intervention to natural processes shorereplenishment) and channel area (including details on the proposedfrequency location depth and pattern of dredging)

bull A method statement describing how the proposed sewage pipeline will be laidacross the saltmarsh channel and shingle spit Alternatives that are lessdamaging than trenching should be explored for example the use ofdirectional drilling techniques

24 ACCESS

Many of the impacts described in this Annex relate to disturbance or damage causedby increased access by residents and visitors to the sensitive wildlife and habitatsimmediately adjacent to the development footprint The ES acknowledges this andsuggests that an Access Management Plan will mitigate these impacts to acceptablelevels However the Access Management Plan has not yet been produced andwhether such a Plan will be sufficient to adequately mitigate impacts on theEuropean national (and local) natural heritage interests still has to be determinedMechanisms to ensure that any measures identified in the Visitor Management Planwill be effectively applied are also lacking in the ES Also it is important to note thatat present some of the visitor management measures presented in the ES are in ourview not compliant with Part 1 of the Land Reform (Scotland) Act 2003 and theScottish Outdoor Access Code

Although we have referred to the need to develop the Access Management Plan atvarious points in this Annex for the reasons described above SNH objects to thevisitor management measures described in the ES We will review ourobjection once

bull An Access Management Plan has been submitted for the agreement ofThe Highland Council in consultation with SNH The Plan must addressNatura and SSSI issues and be compliant with Part 1 of the Land Reform

12

(Scotland) Act 2003 the Scottish Outdoor Access Code and the DisabilityDiscrimination Act 1995

bull Management mechanisms that ensure that the Access ManagementPlan (and the monitoring of it) will be adhered to should be clearlyidentified This should include details about who will be responsible for thedelivery and implementation of the Plan

In order to provide a steer we consider that the Access Management Plan shouldinclude information on the following

bull All existing paths tracks Rights of Way and any areas expected to beoutwith or excluded from statutory access rights under Part 1 of the landReform (Scotland) Act 2003 (once current land uses are removed) should beidentified

bull All paths and tracks proposed for construction as part of the development foruse by walkers riders cyclists all abilities users etc including all associatedaccess infrastructure should be identified

bull Any diversions of paths - temporary or permanent - proposed for thepurposes of the development should be identified

The Plan should go on to

bull Identify the likely level of public access resulting from the developmentincluding the type of access (land and water based) timing numberslocation type of activity (including dog walkers) seasonality etc This shouldinclude access by both residents and visitors to the site As the moment theES does not clearly acknowledge the number of people likely to visit the newdevelopment from the surrounding area SNH considers that at certain timesof the year (for example Bank Holiday weekends) visitor numbers are likely tobe significant

bull Identify the natural heritage features which could will be affected by publicaccess

bull Identify whether access of the expected leveltype of access will significantlyimpact on the natural heritage features

bull Consider if the impact will be significant and if it is then the range of tools tobe employed to manage this access should be detailed and examplesprovided

bull Detail the proposals to minimise disturbance of the natural heritage of the siteas a result of public access

13

bull Detail the planned monitoring of public access and the natural heritagefeatures and describe how the Access Management Plan will be reviewed inthe light of this monitoring

bull Develop an action plan which would be ready to deploy if the monitoringdemonstrates that the visitor management tools are not sufficient to protectthe natural heritage

We would also like to emphasise that the footbridge to the spit from the maindevelopment is a particular cause for concern Whilst we recognise the benefits thatthe footbridge will have for creating a link with the existing Moray coast path weconsider that it will also open the sensitive spit area to increased visitor pressureBreeding terns lichens and the shingle feature itself are all vulnerable to humandisturbance Some of SNHs concerns in relation to access impacts would bealleviated if the footbridge were removed from the proposed development

25OTHER NATURAL HERITAGE INTERESTS

251 Landscape and visual amenity

The ES and accompanying documentation provide a clear and well thought outapproach to the landscape and visual impacts of the proposal It is clear thatconsiderable thought has gone into sensitive and innovative design of thedevelopment and we are pleased to see that emphasis has been given to the need tocreate green space and natural features within the built up areas The proposalshave a very strong overall landscape structure with the identity of individualneighbourhoods being defined by landscape character A landscape strategyoutlined within the Design Statement in part 4 Placemaking shows how theproposals seek to reinforce existing character integrate with adjacent character orcreate new landscape character areas The landscape strategy contains manyexcellent ideas for example the wetland scrapes within forest clearings

We do not raise any concerns about the landscape and visual impact of the proposalhowever given the scale of this development together with its prominence from keyviewpoints from the Black Isle and beyond we recommend that a detailedLandscape Management Plan should be made condition of any planningconsent granted

SNH advice that the following aspects could be included within the Plan

bull Early tree planting within the neighbourhood in order that trees can becomeestablished and therefore soften the appearance of the new developmentThis would also create a better quality landscape in the early years of thedevelopment as plantings would consist of trees roughly the same age andheight The creation of wetland scapes should also be undertaken as earlyas possible as such features take time to establish

14

bull The hotel would be the tallest building on site Drawings in the DesignStatement suggest that this would be a landmark building and a focal pointwithin the landscape A landmark building need not be exaggerated orelaborate SNH recommend that due to the prominent location of this buildingit should be a simple design that could still achieve a bold statement

The Seafront Neighbourhood would be the most visually prominent part of thedevelopment within views from the Black Isle Nairn Esplanade and the coastal pathto the east Plots would be the densest and the heights of buildings the greatestwithin the development Public spaces would consist of civic squares and walkwayswith vegetation density being possibly the lowest within the development SNHrecommends that the seafront neighbourhood is the subject of a specificdevelopmentdesign brief to ensure that high standards of design are used tointegrate this part of the development into the coastal landscape Thedevelopmentdesign brief should include details of the following

bull Housing design including details of materials and finishes to be usedbull Public realm design including details of materials and finishes to be usedbull Details of outbuildings and ancilliary facilities (eg garages sheds and

greenhouses )bull Landscape and open space including civic squares and performance spacesbull Boundary enclosuresbull Car parkingbull Lighting

252 Local Biodiversity Action Plans

At the pre-application stage SNH advised that information on species and habitatslisted in the Inverness and Nairn Biodiversity Action Plan and species that haveSpecies Action Plans should be detailed in the ES As far as we can ascertain suchinformation does not appear to be included However there is a clear commitment bythe applicant to safeguard and enhance biodiversity on the site and the applicantstates that a Biodiversity Action Plan specifically for Whiteness Head will bedeveloped SNH support this approach and advise that the Inverness and NairnLBAP should be a starting point for developing a Whiteness Head Biodiversity Plan

26 POLLUTION AND WASTE MANAGEMENT

We support reference in the ES to the preparation and implementation of a Code ofConstruction Practice We recommend that this should be a condition of any planningconsent issued The Code of Construction Practice should specifically addresssensitive natural heritage receptors especially those that have protected status forexample the need to take otter into account if they should be encountered duringconstruction operations Also the Code of Construction Practice should fullyrec~gnise the presence of Crassula helmsit-1 and take steps to ensure that it is notspread within and beyond the site

I Cra$sula helmsii is a prolific non-native water weed present in the lagoon area at Whiteness Head

15

We note that SEPA have objected to the proposal on a number of grounds includingthe provision for foul drainage SEPA states that further work is required in orderfor SEPA to be assured that the proposals are environmentally acceptable SNHshares these concerns and we will need to be assured by SEPA thatwastewater provision at the site will not adversely affect the designatedfeatures of interest If this assurance cannot be given then SNH will object towastewater provision as part of this application and to any future applicationmade under the Controlled Activities Regulations 2006

16

Annex B

Whiteness - wader and wildfowl counts - Winter season 20052006

FOliowing our discussions with SNH yesterday 19th September I have spoken todaywith the Webs count co-ordinator for the Moray Firth Dave Butterfield at the RSPBOffice in Inverness He tells me that the four official count dates for the whole firthare 16th October 4th December 15th January and 1ih February I have agreed withhim that I will carry out those counts at Whiteness in place of the previous countersas part of the over all Firth monitoring programme

In order to provide sufficient detail for the EA as agreed with SNH we require to carryout a more detailed survey with extra count dates which require to cover the low tidedistribution of birds and locations of high tide roosts as well as the total numbers foreach species

I recommend that I carry out the following counts - approximate dates (in very badweather conditions additional counts may be delayed by a day) which will cover thetidal span from low to high tide or vice versa depending on timing of high tide

Date

22 September2 October16 OCTOBER30 October7 November21 November4 DECEMBER19 pecember

1352

High Tide Time

1604 hours12481221103415271525

1433

High tide height

45 metres4548424341

4744

The 2006 main counts are 15th JANUARY and 12th FEBRUARY and the furthermonthly count dates are 12 March 9 April 14 May 11 June 16 July 13 August and17 September

Depending on the examination of data collected September to December it isprobable we will need additional count dates between these days for this first winterseason The counts will also cover seaducks outside the Harbour and on the RiffBank but this is only attainable by telescope in good weather The vantage point isthe high dune

The output for the 8 main counts to end of year will beSpecies totals on each dateLocation of roostsDistribution maps for species on tidal areas at low and mid tideDisturbance distances (probably done on other casual dates)Please let me know what you think

Roy Dennis 20 Sep 2006

17

The Highland CouncilPlanning amp DevelopmentGlenurquhart RoadINVERNESSIV3 5NX

For the attention of David Mudie

Dear Mr Mudie

Our ref CNSDCHIIIVABPOPPYour ref 05012940UTIN DMCC

15 November 2006

TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997ENVIRONMENTAL IMPACT ASSESSMENT (SCOTLAND) REGULATIONS 1999OUTLINE PLANNING APPLICATION FOR RESIDENTIAL AND LEISUREDEVELOPMENT INCLUDING HOUSING MARINA BOAT YARD VISITORSCENTRE NATURE CONSERVATION ZONES AND HOTEL WITH SUPPORTINGCOMMUNITY FACILITIES AND SEWAGE TREATMENT PLANT AT THE FORMERFABRICATION YARD WHITENESS ARDERSIERMORAY FIRTH SPECIAL AREA OF CONSERVATION (SAC)INNER MORAY FIRTH SPECIAL PROTECTION AREA (SPA)INNER MORAY FIRTH RAMSAR SITEWHITENESS HEAD SITE OF SPECIAL SCIENTIFIC INTEREST (SSSI)

I am writing with respect to the letter dated 9 November 2006 from Stewart Fulton ofthe Whiteness Property Company Limited regarding the above proposal Foravoidance of doubt a copy of this letter is attached

The letter was written as a result of SNHs formal response to the outline planningapplication dated 31 October 2006 which inter alia objected to the proposedde(elopment in relation to the Moray Firth SAC (bottlenose dolphin interest) on thegrounds that a 500-berth marina will have an adverse impact on the integrity of thedolphin population The SNH response also objected in relation to EuropeanProtected Species on the grounds that the marina will have an adverse impact on thefavourable conservation status of dolphin and porpoise populations

The letter from Stewart Fulton also followed a meeting between The HighlandCouncil Whiteness Property Company Limited and Scottish Natural Heritage on 7November 2006 to discuss the marine mitigation measures already proposed by theapplicant and how these could be underpinned by robust legal mechanisms

SNH POSITION

1

middot a) a Section 75 Planning Agreement that binds the Whiteness PropertyCompany Limited and the Harbour Authority to mitigation measures that willeffectively avoid any adverse impact on a) the integrity of the Moray Firth SACbottlenose dolphin interest and b) the favourable conservation status ofbottlenose dolphin and harbour porpoise The Section 75 Agreement mustinclude provisions to put in place marina mooring leases a sea ranger amarine chart a research programme and a monitoring scheme to confirm thatthe mitigation measures are working effectively Furthermore the Agreementshould restrict the number of boats allowed to use the marina to a levelagreed by The Highland Council in consultation with SNH Boat numbersmust not be allowed to increase unless monitoring demonstrates that such anincrease would not have an adverse impact on the integrity of the SAC TheSection 75 Planning Agreement must be agreed with The Highland Counciland SNH

b)

Although our position has changed in relation to the Moray Firth SAC and EuropeanProtected Species our position in relation to all other aspects of the natural heritageremain as described in our letter to The Highland Council dated 31 October 2006

If you have any questions on the content of this letter then please contact BenLeyshon (benlevshonsnhQovuk) at this office in the first instance I would begrateful if you could let us know of your Councils decision in due course or of anyfurther changes to the proposal that would be relevant to our interests

As stated in our letter of 31 October 2006 you are respectfully reminded of therequirement to notify the Scottish Ministers if your Council is minded to approveplanning consent against SNHs advice in this case

Yours sincerely

GEORGE HOGGArea Manager - East Highlandemail QeorQehoQQsnhQovuk

2

Wastewater treatment

bull There is reference in the ES that wastewater will be treated to Bathing WaterStandards although this is not explicit SNH welcomes the intention to apply aBathing Water Standard although given that the dolphins are present in thewaters off Whiteness Head year round we would expect that the BathingWater standard would also cover a 12-month period ie a Recreational WaterStandard We would therefore like clarification of the proposed level oftreatment to be provided We also note that SEPA have concerns about fouldrainage at the site and we share these concerns - see our comments undersection 26 below

Once this information has been provided SNH will be in a position to give furtherconsideration to this aspect of the proposal Until we are receipt of this additionalinformation then SNH object to this element of the proposal

It is important to note that on the basis of the information currently availableSNH considers that boat traffic associated with the marina element of theproposal is likely to have an adverse affect on the integrity of the Moray FirthSAC We consider that in order for the applicant to be able to demonstrate that themarina will not adversely affect the integrity of the dolphin population thenconsiderable thought will need to be given by the applicant to effective mitigation andregulatory mechanisms This is likely to involve new and innovative ways of workingin the wider inner Moray Firth area by for example the applicant linking with otherauthorities to provide a more co-ordinated approach to managing recreational boattraffic We have already discussed ways to develop such an approach with thede~eloper and we would be happy to provide a further input if this would be helpful

213 Dornoch Firth and Morrich More SAC

SNHs advice is that this proposal is unlikely to have a significant effect on thecommon seal interest of the Dornoch Firth and Morrich More SAC and in ourview an appropriate assessment is therefore not required

Common seals from the Dornoch Firth and Morrich More SAC may haul out atWhiteness Head and there is the potential for seals to be disturbed by people takingaccess to the shore and from marina users This area is used as a haul out sitebecause it is relatively close to feeding grounds further out in the Moray FirthDisplacement of these animals to other haul out sites for example in the Beauly orCromarty Firths will mean further travelling distances to the feeding areas and thiswould have an energetic cost We therefore recommend that seal disturbance

9

issues should be fully recognised in the Access Management Plan andmeasures to mitigate impacts should be clearly identified

SNHs concerns in relation to the dolphins are described in section 212 above Ifthese concerns are addressed then the legislative provisions under the EPSlegislation will also be fulfilled If these concerns are not addressed then theproposed development is likely to result in one or more actions that arecontrary to the species protection elements of the Conservation (NaturalHabitats ampc) Regulations 1994 and The Conservation (Natural Habitats ampc)Amendment (Scotland) Regulations 2004

SNH asked for information on occurrence of porpoise in the waters close toWhiteness Head to be provided as part of the application However we note that verylittle information has been provided on this within the ES Porpoises will bevulnerable to the same range of issues as described in section 212 above fordolphins However the distribution and abundance of porpoises will be different tothat of the dolphins and porpoises may also show different behavioural responses inrelation to boat traffic In order to adequately safeguard porpoises SNH recommendthat the mitigation and regulatory mechanisms developed for the dolphins (anddescribed in section 212 of this letter) should also fully take into account theporpoise interest This is likely to involve the need to gather data on the distributionand abundance of porpoise in the area Some of this data will already have beencollected and some new data may need to be gathered possibly as part of the datacollection exercise being undertaken for the dolphins

223 Otters

At a meeting between SNH and the developers on 19 October 2005 we advised thatan otter survey should be carried out both within the development footprint but also inan area of extending 200m beyond the boundary The ES included survey data forthe footprint but information on the surrounding area was not provided We thereforere-iterate our advice and recommend that the existing otter survey be extendedto include a 200m area beyond the site boundary

We also recommend that the proposed Code of Construction Practice fullytakes otter into account so that if otters are encountered at any point duringthe construction process clear steps to avoid damage or disturbance arefollowed SNH can advice further on this aspect

10

Once this information has been provided then SNH will be able to give furtherconsideration to this aspect of the proposal

224 Bats

A number of bat roosts will be destroyed in the process of demolishing the existingbuildings Such works would be contrary to the species protection elements of theConservation (Natural Habitats ampc) Regulations 1994 and The Conservation (NaturalHabitats ampc) Amendment (Scotland) Regulations 2004 and therefore cannot proceedunless a licence is obtained from Scottish Executive SNH therefore advise that anapplication for a licence be obtained from Wildlife and Habitats Unit ScottishExecutive Environment and Rural Affairs Department Area 1-H Victoria QuayEdinburgh EH6 600 A licence must be acquired from the Scottish Executivebefore planning consent is granted

SNH consider that there is considerable scope to create additional bat maternityroosts in the buildings associated with this development and this combined with thesensitive installation of bat boxes at suitable locations throughout the site would helpto mitigate the loss of bat roosts during the demolition phase

225 Great crested newts

The lagoon area provides a suitable habitat for great crested newts To enable SNHto advise The Highland Council on impacts we recommend that a survey of greatcrested newts be undertaken in the spring and prior to any works commencingin or close to the lagoon area SNH can provide information on appropriatemethodology and advise if a licence will be required

Once the results of the survey are available we will be able to advise about theimplications of the proposal on the maintenance of this species at a FavourableConservation Status within its natural range

It is worth noting that even if great crested newts are not present at the moment theremay be opportunities to translocate newts from other areas to the lagoon This wouldhave a conservation benefit for the species Please note that such a translocationexercise would need to be carried out under licence from ourselves

As with the impacts on the European site it is likely that the saltmarsh andshingle habitats and their associated flora and the wintering populations ofbar-tailed godwit and knot will be compromised as a result of the proposeddevelopment Once the additional information detailed in section 211 above hasbeen submitted then SNH will be in a position to give further consideration to thisproposal

11

At this stage there is insufficientinformation for us to assess these impacts fully but the natural heritage interestsaffected are of such importance as to justify a precautionary approach SNHtherefore objects to this element of the proposal This objection will bereviewed once the following information detailed below is submitted

An Access Management Plan clearly describing how the shingle spit will besafeguarded from damage or disturbance arising from increased visitorpressure

bull A description of the short medium and long term management proposed forthe spit (including details of any intervention to natural processes shorereplenishment) and channel area (including details on the proposedfrequency location depth and pattern of dredging)

bull A method statement describing how the proposed sewage pipeline will be laidacross the saltmarsh channel and shingle spit Alternatives that are lessdamaging than trenching should be explored for example the use ofdirectional drilling techniques

24 ACCESS

Many of the impacts described in this Annex relate to disturbance or damage causedby increased access by residents and visitors to the sensitive wildlife and habitatsimmediately adjacent to the development footprint The ES acknowledges this andsuggests that an Access Management Plan will mitigate these impacts to acceptablelevels However the Access Management Plan has not yet been produced andwhether such a Plan will be sufficient to adequately mitigate impacts on theEuropean national (and local) natural heritage interests still has to be determinedMechanisms to ensure that any measures identified in the Visitor Management Planwill be effectively applied are also lacking in the ES Also it is important to note thatat present some of the visitor management measures presented in the ES are in ourview not compliant with Part 1 of the Land Reform (Scotland) Act 2003 and theScottish Outdoor Access Code

Although we have referred to the need to develop the Access Management Plan atvarious points in this Annex for the reasons described above SNH objects to thevisitor management measures described in the ES We will review ourobjection once

bull An Access Management Plan has been submitted for the agreement ofThe Highland Council in consultation with SNH The Plan must addressNatura and SSSI issues and be compliant with Part 1 of the Land Reform

12

(Scotland) Act 2003 the Scottish Outdoor Access Code and the DisabilityDiscrimination Act 1995

bull Management mechanisms that ensure that the Access ManagementPlan (and the monitoring of it) will be adhered to should be clearlyidentified This should include details about who will be responsible for thedelivery and implementation of the Plan

In order to provide a steer we consider that the Access Management Plan shouldinclude information on the following

bull All existing paths tracks Rights of Way and any areas expected to beoutwith or excluded from statutory access rights under Part 1 of the landReform (Scotland) Act 2003 (once current land uses are removed) should beidentified

bull All paths and tracks proposed for construction as part of the development foruse by walkers riders cyclists all abilities users etc including all associatedaccess infrastructure should be identified

bull Any diversions of paths - temporary or permanent - proposed for thepurposes of the development should be identified

The Plan should go on to

bull Identify the likely level of public access resulting from the developmentincluding the type of access (land and water based) timing numberslocation type of activity (including dog walkers) seasonality etc This shouldinclude access by both residents and visitors to the site As the moment theES does not clearly acknowledge the number of people likely to visit the newdevelopment from the surrounding area SNH considers that at certain timesof the year (for example Bank Holiday weekends) visitor numbers are likely tobe significant

bull Identify the natural heritage features which could will be affected by publicaccess

bull Identify whether access of the expected leveltype of access will significantlyimpact on the natural heritage features

bull Consider if the impact will be significant and if it is then the range of tools tobe employed to manage this access should be detailed and examplesprovided

bull Detail the proposals to minimise disturbance of the natural heritage of the siteas a result of public access

13

bull Detail the planned monitoring of public access and the natural heritagefeatures and describe how the Access Management Plan will be reviewed inthe light of this monitoring

bull Develop an action plan which would be ready to deploy if the monitoringdemonstrates that the visitor management tools are not sufficient to protectthe natural heritage

We would also like to emphasise that the footbridge to the spit from the maindevelopment is a particular cause for concern Whilst we recognise the benefits thatthe footbridge will have for creating a link with the existing Moray coast path weconsider that it will also open the sensitive spit area to increased visitor pressureBreeding terns lichens and the shingle feature itself are all vulnerable to humandisturbance Some of SNHs concerns in relation to access impacts would bealleviated if the footbridge were removed from the proposed development

25OTHER NATURAL HERITAGE INTERESTS

251 Landscape and visual amenity

The ES and accompanying documentation provide a clear and well thought outapproach to the landscape and visual impacts of the proposal It is clear thatconsiderable thought has gone into sensitive and innovative design of thedevelopment and we are pleased to see that emphasis has been given to the need tocreate green space and natural features within the built up areas The proposalshave a very strong overall landscape structure with the identity of individualneighbourhoods being defined by landscape character A landscape strategyoutlined within the Design Statement in part 4 Placemaking shows how theproposals seek to reinforce existing character integrate with adjacent character orcreate new landscape character areas The landscape strategy contains manyexcellent ideas for example the wetland scrapes within forest clearings

We do not raise any concerns about the landscape and visual impact of the proposalhowever given the scale of this development together with its prominence from keyviewpoints from the Black Isle and beyond we recommend that a detailedLandscape Management Plan should be made condition of any planningconsent granted

SNH advice that the following aspects could be included within the Plan

bull Early tree planting within the neighbourhood in order that trees can becomeestablished and therefore soften the appearance of the new developmentThis would also create a better quality landscape in the early years of thedevelopment as plantings would consist of trees roughly the same age andheight The creation of wetland scapes should also be undertaken as earlyas possible as such features take time to establish

14

bull The hotel would be the tallest building on site Drawings in the DesignStatement suggest that this would be a landmark building and a focal pointwithin the landscape A landmark building need not be exaggerated orelaborate SNH recommend that due to the prominent location of this buildingit should be a simple design that could still achieve a bold statement

The Seafront Neighbourhood would be the most visually prominent part of thedevelopment within views from the Black Isle Nairn Esplanade and the coastal pathto the east Plots would be the densest and the heights of buildings the greatestwithin the development Public spaces would consist of civic squares and walkwayswith vegetation density being possibly the lowest within the development SNHrecommends that the seafront neighbourhood is the subject of a specificdevelopmentdesign brief to ensure that high standards of design are used tointegrate this part of the development into the coastal landscape Thedevelopmentdesign brief should include details of the following

bull Housing design including details of materials and finishes to be usedbull Public realm design including details of materials and finishes to be usedbull Details of outbuildings and ancilliary facilities (eg garages sheds and

greenhouses )bull Landscape and open space including civic squares and performance spacesbull Boundary enclosuresbull Car parkingbull Lighting

252 Local Biodiversity Action Plans

At the pre-application stage SNH advised that information on species and habitatslisted in the Inverness and Nairn Biodiversity Action Plan and species that haveSpecies Action Plans should be detailed in the ES As far as we can ascertain suchinformation does not appear to be included However there is a clear commitment bythe applicant to safeguard and enhance biodiversity on the site and the applicantstates that a Biodiversity Action Plan specifically for Whiteness Head will bedeveloped SNH support this approach and advise that the Inverness and NairnLBAP should be a starting point for developing a Whiteness Head Biodiversity Plan

26 POLLUTION AND WASTE MANAGEMENT

We support reference in the ES to the preparation and implementation of a Code ofConstruction Practice We recommend that this should be a condition of any planningconsent issued The Code of Construction Practice should specifically addresssensitive natural heritage receptors especially those that have protected status forexample the need to take otter into account if they should be encountered duringconstruction operations Also the Code of Construction Practice should fullyrec~gnise the presence of Crassula helmsit-1 and take steps to ensure that it is notspread within and beyond the site

I Cra$sula helmsii is a prolific non-native water weed present in the lagoon area at Whiteness Head

15

We note that SEPA have objected to the proposal on a number of grounds includingthe provision for foul drainage SEPA states that further work is required in orderfor SEPA to be assured that the proposals are environmentally acceptable SNHshares these concerns and we will need to be assured by SEPA thatwastewater provision at the site will not adversely affect the designatedfeatures of interest If this assurance cannot be given then SNH will object towastewater provision as part of this application and to any future applicationmade under the Controlled Activities Regulations 2006

16

Annex B

Whiteness - wader and wildfowl counts - Winter season 20052006

FOliowing our discussions with SNH yesterday 19th September I have spoken todaywith the Webs count co-ordinator for the Moray Firth Dave Butterfield at the RSPBOffice in Inverness He tells me that the four official count dates for the whole firthare 16th October 4th December 15th January and 1ih February I have agreed withhim that I will carry out those counts at Whiteness in place of the previous countersas part of the over all Firth monitoring programme

In order to provide sufficient detail for the EA as agreed with SNH we require to carryout a more detailed survey with extra count dates which require to cover the low tidedistribution of birds and locations of high tide roosts as well as the total numbers foreach species

I recommend that I carry out the following counts - approximate dates (in very badweather conditions additional counts may be delayed by a day) which will cover thetidal span from low to high tide or vice versa depending on timing of high tide

Date

22 September2 October16 OCTOBER30 October7 November21 November4 DECEMBER19 pecember

1352

High Tide Time

1604 hours12481221103415271525

1433

High tide height

45 metres4548424341

4744

The 2006 main counts are 15th JANUARY and 12th FEBRUARY and the furthermonthly count dates are 12 March 9 April 14 May 11 June 16 July 13 August and17 September

Depending on the examination of data collected September to December it isprobable we will need additional count dates between these days for this first winterseason The counts will also cover seaducks outside the Harbour and on the RiffBank but this is only attainable by telescope in good weather The vantage point isthe high dune

The output for the 8 main counts to end of year will beSpecies totals on each dateLocation of roostsDistribution maps for species on tidal areas at low and mid tideDisturbance distances (probably done on other casual dates)Please let me know what you think

Roy Dennis 20 Sep 2006

17

The Highland CouncilPlanning amp DevelopmentGlenurquhart RoadINVERNESSIV3 5NX

For the attention of David Mudie

Dear Mr Mudie

Our ref CNSDCHIIIVABPOPPYour ref 05012940UTIN DMCC

15 November 2006

TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997ENVIRONMENTAL IMPACT ASSESSMENT (SCOTLAND) REGULATIONS 1999OUTLINE PLANNING APPLICATION FOR RESIDENTIAL AND LEISUREDEVELOPMENT INCLUDING HOUSING MARINA BOAT YARD VISITORSCENTRE NATURE CONSERVATION ZONES AND HOTEL WITH SUPPORTINGCOMMUNITY FACILITIES AND SEWAGE TREATMENT PLANT AT THE FORMERFABRICATION YARD WHITENESS ARDERSIERMORAY FIRTH SPECIAL AREA OF CONSERVATION (SAC)INNER MORAY FIRTH SPECIAL PROTECTION AREA (SPA)INNER MORAY FIRTH RAMSAR SITEWHITENESS HEAD SITE OF SPECIAL SCIENTIFIC INTEREST (SSSI)

I am writing with respect to the letter dated 9 November 2006 from Stewart Fulton ofthe Whiteness Property Company Limited regarding the above proposal Foravoidance of doubt a copy of this letter is attached

The letter was written as a result of SNHs formal response to the outline planningapplication dated 31 October 2006 which inter alia objected to the proposedde(elopment in relation to the Moray Firth SAC (bottlenose dolphin interest) on thegrounds that a 500-berth marina will have an adverse impact on the integrity of thedolphin population The SNH response also objected in relation to EuropeanProtected Species on the grounds that the marina will have an adverse impact on thefavourable conservation status of dolphin and porpoise populations

The letter from Stewart Fulton also followed a meeting between The HighlandCouncil Whiteness Property Company Limited and Scottish Natural Heritage on 7November 2006 to discuss the marine mitigation measures already proposed by theapplicant and how these could be underpinned by robust legal mechanisms

SNH POSITION

1

middot a) a Section 75 Planning Agreement that binds the Whiteness PropertyCompany Limited and the Harbour Authority to mitigation measures that willeffectively avoid any adverse impact on a) the integrity of the Moray Firth SACbottlenose dolphin interest and b) the favourable conservation status ofbottlenose dolphin and harbour porpoise The Section 75 Agreement mustinclude provisions to put in place marina mooring leases a sea ranger amarine chart a research programme and a monitoring scheme to confirm thatthe mitigation measures are working effectively Furthermore the Agreementshould restrict the number of boats allowed to use the marina to a levelagreed by The Highland Council in consultation with SNH Boat numbersmust not be allowed to increase unless monitoring demonstrates that such anincrease would not have an adverse impact on the integrity of the SAC TheSection 75 Planning Agreement must be agreed with The Highland Counciland SNH

b)

Although our position has changed in relation to the Moray Firth SAC and EuropeanProtected Species our position in relation to all other aspects of the natural heritageremain as described in our letter to The Highland Council dated 31 October 2006

If you have any questions on the content of this letter then please contact BenLeyshon (benlevshonsnhQovuk) at this office in the first instance I would begrateful if you could let us know of your Councils decision in due course or of anyfurther changes to the proposal that would be relevant to our interests

As stated in our letter of 31 October 2006 you are respectfully reminded of therequirement to notify the Scottish Ministers if your Council is minded to approveplanning consent against SNHs advice in this case

Yours sincerely

GEORGE HOGGArea Manager - East Highlandemail QeorQehoQQsnhQovuk

2

issues should be fully recognised in the Access Management Plan andmeasures to mitigate impacts should be clearly identified

SNHs concerns in relation to the dolphins are described in section 212 above Ifthese concerns are addressed then the legislative provisions under the EPSlegislation will also be fulfilled If these concerns are not addressed then theproposed development is likely to result in one or more actions that arecontrary to the species protection elements of the Conservation (NaturalHabitats ampc) Regulations 1994 and The Conservation (Natural Habitats ampc)Amendment (Scotland) Regulations 2004

SNH asked for information on occurrence of porpoise in the waters close toWhiteness Head to be provided as part of the application However we note that verylittle information has been provided on this within the ES Porpoises will bevulnerable to the same range of issues as described in section 212 above fordolphins However the distribution and abundance of porpoises will be different tothat of the dolphins and porpoises may also show different behavioural responses inrelation to boat traffic In order to adequately safeguard porpoises SNH recommendthat the mitigation and regulatory mechanisms developed for the dolphins (anddescribed in section 212 of this letter) should also fully take into account theporpoise interest This is likely to involve the need to gather data on the distributionand abundance of porpoise in the area Some of this data will already have beencollected and some new data may need to be gathered possibly as part of the datacollection exercise being undertaken for the dolphins

223 Otters

At a meeting between SNH and the developers on 19 October 2005 we advised thatan otter survey should be carried out both within the development footprint but also inan area of extending 200m beyond the boundary The ES included survey data forthe footprint but information on the surrounding area was not provided We thereforere-iterate our advice and recommend that the existing otter survey be extendedto include a 200m area beyond the site boundary

We also recommend that the proposed Code of Construction Practice fullytakes otter into account so that if otters are encountered at any point duringthe construction process clear steps to avoid damage or disturbance arefollowed SNH can advice further on this aspect

10

Once this information has been provided then SNH will be able to give furtherconsideration to this aspect of the proposal

224 Bats

A number of bat roosts will be destroyed in the process of demolishing the existingbuildings Such works would be contrary to the species protection elements of theConservation (Natural Habitats ampc) Regulations 1994 and The Conservation (NaturalHabitats ampc) Amendment (Scotland) Regulations 2004 and therefore cannot proceedunless a licence is obtained from Scottish Executive SNH therefore advise that anapplication for a licence be obtained from Wildlife and Habitats Unit ScottishExecutive Environment and Rural Affairs Department Area 1-H Victoria QuayEdinburgh EH6 600 A licence must be acquired from the Scottish Executivebefore planning consent is granted

SNH consider that there is considerable scope to create additional bat maternityroosts in the buildings associated with this development and this combined with thesensitive installation of bat boxes at suitable locations throughout the site would helpto mitigate the loss of bat roosts during the demolition phase

225 Great crested newts

The lagoon area provides a suitable habitat for great crested newts To enable SNHto advise The Highland Council on impacts we recommend that a survey of greatcrested newts be undertaken in the spring and prior to any works commencingin or close to the lagoon area SNH can provide information on appropriatemethodology and advise if a licence will be required

Once the results of the survey are available we will be able to advise about theimplications of the proposal on the maintenance of this species at a FavourableConservation Status within its natural range

It is worth noting that even if great crested newts are not present at the moment theremay be opportunities to translocate newts from other areas to the lagoon This wouldhave a conservation benefit for the species Please note that such a translocationexercise would need to be carried out under licence from ourselves

As with the impacts on the European site it is likely that the saltmarsh andshingle habitats and their associated flora and the wintering populations ofbar-tailed godwit and knot will be compromised as a result of the proposeddevelopment Once the additional information detailed in section 211 above hasbeen submitted then SNH will be in a position to give further consideration to thisproposal

11

At this stage there is insufficientinformation for us to assess these impacts fully but the natural heritage interestsaffected are of such importance as to justify a precautionary approach SNHtherefore objects to this element of the proposal This objection will bereviewed once the following information detailed below is submitted

An Access Management Plan clearly describing how the shingle spit will besafeguarded from damage or disturbance arising from increased visitorpressure

bull A description of the short medium and long term management proposed forthe spit (including details of any intervention to natural processes shorereplenishment) and channel area (including details on the proposedfrequency location depth and pattern of dredging)

bull A method statement describing how the proposed sewage pipeline will be laidacross the saltmarsh channel and shingle spit Alternatives that are lessdamaging than trenching should be explored for example the use ofdirectional drilling techniques

24 ACCESS

Many of the impacts described in this Annex relate to disturbance or damage causedby increased access by residents and visitors to the sensitive wildlife and habitatsimmediately adjacent to the development footprint The ES acknowledges this andsuggests that an Access Management Plan will mitigate these impacts to acceptablelevels However the Access Management Plan has not yet been produced andwhether such a Plan will be sufficient to adequately mitigate impacts on theEuropean national (and local) natural heritage interests still has to be determinedMechanisms to ensure that any measures identified in the Visitor Management Planwill be effectively applied are also lacking in the ES Also it is important to note thatat present some of the visitor management measures presented in the ES are in ourview not compliant with Part 1 of the Land Reform (Scotland) Act 2003 and theScottish Outdoor Access Code

Although we have referred to the need to develop the Access Management Plan atvarious points in this Annex for the reasons described above SNH objects to thevisitor management measures described in the ES We will review ourobjection once

bull An Access Management Plan has been submitted for the agreement ofThe Highland Council in consultation with SNH The Plan must addressNatura and SSSI issues and be compliant with Part 1 of the Land Reform

12

(Scotland) Act 2003 the Scottish Outdoor Access Code and the DisabilityDiscrimination Act 1995

bull Management mechanisms that ensure that the Access ManagementPlan (and the monitoring of it) will be adhered to should be clearlyidentified This should include details about who will be responsible for thedelivery and implementation of the Plan

In order to provide a steer we consider that the Access Management Plan shouldinclude information on the following

bull All existing paths tracks Rights of Way and any areas expected to beoutwith or excluded from statutory access rights under Part 1 of the landReform (Scotland) Act 2003 (once current land uses are removed) should beidentified

bull All paths and tracks proposed for construction as part of the development foruse by walkers riders cyclists all abilities users etc including all associatedaccess infrastructure should be identified

bull Any diversions of paths - temporary or permanent - proposed for thepurposes of the development should be identified

The Plan should go on to

bull Identify the likely level of public access resulting from the developmentincluding the type of access (land and water based) timing numberslocation type of activity (including dog walkers) seasonality etc This shouldinclude access by both residents and visitors to the site As the moment theES does not clearly acknowledge the number of people likely to visit the newdevelopment from the surrounding area SNH considers that at certain timesof the year (for example Bank Holiday weekends) visitor numbers are likely tobe significant

bull Identify the natural heritage features which could will be affected by publicaccess

bull Identify whether access of the expected leveltype of access will significantlyimpact on the natural heritage features

bull Consider if the impact will be significant and if it is then the range of tools tobe employed to manage this access should be detailed and examplesprovided

bull Detail the proposals to minimise disturbance of the natural heritage of the siteas a result of public access

13

bull Detail the planned monitoring of public access and the natural heritagefeatures and describe how the Access Management Plan will be reviewed inthe light of this monitoring

bull Develop an action plan which would be ready to deploy if the monitoringdemonstrates that the visitor management tools are not sufficient to protectthe natural heritage

We would also like to emphasise that the footbridge to the spit from the maindevelopment is a particular cause for concern Whilst we recognise the benefits thatthe footbridge will have for creating a link with the existing Moray coast path weconsider that it will also open the sensitive spit area to increased visitor pressureBreeding terns lichens and the shingle feature itself are all vulnerable to humandisturbance Some of SNHs concerns in relation to access impacts would bealleviated if the footbridge were removed from the proposed development

25OTHER NATURAL HERITAGE INTERESTS

251 Landscape and visual amenity

The ES and accompanying documentation provide a clear and well thought outapproach to the landscape and visual impacts of the proposal It is clear thatconsiderable thought has gone into sensitive and innovative design of thedevelopment and we are pleased to see that emphasis has been given to the need tocreate green space and natural features within the built up areas The proposalshave a very strong overall landscape structure with the identity of individualneighbourhoods being defined by landscape character A landscape strategyoutlined within the Design Statement in part 4 Placemaking shows how theproposals seek to reinforce existing character integrate with adjacent character orcreate new landscape character areas The landscape strategy contains manyexcellent ideas for example the wetland scrapes within forest clearings

We do not raise any concerns about the landscape and visual impact of the proposalhowever given the scale of this development together with its prominence from keyviewpoints from the Black Isle and beyond we recommend that a detailedLandscape Management Plan should be made condition of any planningconsent granted

SNH advice that the following aspects could be included within the Plan

bull Early tree planting within the neighbourhood in order that trees can becomeestablished and therefore soften the appearance of the new developmentThis would also create a better quality landscape in the early years of thedevelopment as plantings would consist of trees roughly the same age andheight The creation of wetland scapes should also be undertaken as earlyas possible as such features take time to establish

14

bull The hotel would be the tallest building on site Drawings in the DesignStatement suggest that this would be a landmark building and a focal pointwithin the landscape A landmark building need not be exaggerated orelaborate SNH recommend that due to the prominent location of this buildingit should be a simple design that could still achieve a bold statement

The Seafront Neighbourhood would be the most visually prominent part of thedevelopment within views from the Black Isle Nairn Esplanade and the coastal pathto the east Plots would be the densest and the heights of buildings the greatestwithin the development Public spaces would consist of civic squares and walkwayswith vegetation density being possibly the lowest within the development SNHrecommends that the seafront neighbourhood is the subject of a specificdevelopmentdesign brief to ensure that high standards of design are used tointegrate this part of the development into the coastal landscape Thedevelopmentdesign brief should include details of the following

bull Housing design including details of materials and finishes to be usedbull Public realm design including details of materials and finishes to be usedbull Details of outbuildings and ancilliary facilities (eg garages sheds and

greenhouses )bull Landscape and open space including civic squares and performance spacesbull Boundary enclosuresbull Car parkingbull Lighting

252 Local Biodiversity Action Plans

At the pre-application stage SNH advised that information on species and habitatslisted in the Inverness and Nairn Biodiversity Action Plan and species that haveSpecies Action Plans should be detailed in the ES As far as we can ascertain suchinformation does not appear to be included However there is a clear commitment bythe applicant to safeguard and enhance biodiversity on the site and the applicantstates that a Biodiversity Action Plan specifically for Whiteness Head will bedeveloped SNH support this approach and advise that the Inverness and NairnLBAP should be a starting point for developing a Whiteness Head Biodiversity Plan

26 POLLUTION AND WASTE MANAGEMENT

We support reference in the ES to the preparation and implementation of a Code ofConstruction Practice We recommend that this should be a condition of any planningconsent issued The Code of Construction Practice should specifically addresssensitive natural heritage receptors especially those that have protected status forexample the need to take otter into account if they should be encountered duringconstruction operations Also the Code of Construction Practice should fullyrec~gnise the presence of Crassula helmsit-1 and take steps to ensure that it is notspread within and beyond the site

I Cra$sula helmsii is a prolific non-native water weed present in the lagoon area at Whiteness Head

15

We note that SEPA have objected to the proposal on a number of grounds includingthe provision for foul drainage SEPA states that further work is required in orderfor SEPA to be assured that the proposals are environmentally acceptable SNHshares these concerns and we will need to be assured by SEPA thatwastewater provision at the site will not adversely affect the designatedfeatures of interest If this assurance cannot be given then SNH will object towastewater provision as part of this application and to any future applicationmade under the Controlled Activities Regulations 2006

16

Annex B

Whiteness - wader and wildfowl counts - Winter season 20052006

FOliowing our discussions with SNH yesterday 19th September I have spoken todaywith the Webs count co-ordinator for the Moray Firth Dave Butterfield at the RSPBOffice in Inverness He tells me that the four official count dates for the whole firthare 16th October 4th December 15th January and 1ih February I have agreed withhim that I will carry out those counts at Whiteness in place of the previous countersas part of the over all Firth monitoring programme

In order to provide sufficient detail for the EA as agreed with SNH we require to carryout a more detailed survey with extra count dates which require to cover the low tidedistribution of birds and locations of high tide roosts as well as the total numbers foreach species

I recommend that I carry out the following counts - approximate dates (in very badweather conditions additional counts may be delayed by a day) which will cover thetidal span from low to high tide or vice versa depending on timing of high tide

Date

22 September2 October16 OCTOBER30 October7 November21 November4 DECEMBER19 pecember

1352

High Tide Time

1604 hours12481221103415271525

1433

High tide height

45 metres4548424341

4744

The 2006 main counts are 15th JANUARY and 12th FEBRUARY and the furthermonthly count dates are 12 March 9 April 14 May 11 June 16 July 13 August and17 September

Depending on the examination of data collected September to December it isprobable we will need additional count dates between these days for this first winterseason The counts will also cover seaducks outside the Harbour and on the RiffBank but this is only attainable by telescope in good weather The vantage point isthe high dune

The output for the 8 main counts to end of year will beSpecies totals on each dateLocation of roostsDistribution maps for species on tidal areas at low and mid tideDisturbance distances (probably done on other casual dates)Please let me know what you think

Roy Dennis 20 Sep 2006

17

The Highland CouncilPlanning amp DevelopmentGlenurquhart RoadINVERNESSIV3 5NX

For the attention of David Mudie

Dear Mr Mudie

Our ref CNSDCHIIIVABPOPPYour ref 05012940UTIN DMCC

15 November 2006

TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997ENVIRONMENTAL IMPACT ASSESSMENT (SCOTLAND) REGULATIONS 1999OUTLINE PLANNING APPLICATION FOR RESIDENTIAL AND LEISUREDEVELOPMENT INCLUDING HOUSING MARINA BOAT YARD VISITORSCENTRE NATURE CONSERVATION ZONES AND HOTEL WITH SUPPORTINGCOMMUNITY FACILITIES AND SEWAGE TREATMENT PLANT AT THE FORMERFABRICATION YARD WHITENESS ARDERSIERMORAY FIRTH SPECIAL AREA OF CONSERVATION (SAC)INNER MORAY FIRTH SPECIAL PROTECTION AREA (SPA)INNER MORAY FIRTH RAMSAR SITEWHITENESS HEAD SITE OF SPECIAL SCIENTIFIC INTEREST (SSSI)

I am writing with respect to the letter dated 9 November 2006 from Stewart Fulton ofthe Whiteness Property Company Limited regarding the above proposal Foravoidance of doubt a copy of this letter is attached

The letter was written as a result of SNHs formal response to the outline planningapplication dated 31 October 2006 which inter alia objected to the proposedde(elopment in relation to the Moray Firth SAC (bottlenose dolphin interest) on thegrounds that a 500-berth marina will have an adverse impact on the integrity of thedolphin population The SNH response also objected in relation to EuropeanProtected Species on the grounds that the marina will have an adverse impact on thefavourable conservation status of dolphin and porpoise populations

The letter from Stewart Fulton also followed a meeting between The HighlandCouncil Whiteness Property Company Limited and Scottish Natural Heritage on 7November 2006 to discuss the marine mitigation measures already proposed by theapplicant and how these could be underpinned by robust legal mechanisms

SNH POSITION

1

middot a) a Section 75 Planning Agreement that binds the Whiteness PropertyCompany Limited and the Harbour Authority to mitigation measures that willeffectively avoid any adverse impact on a) the integrity of the Moray Firth SACbottlenose dolphin interest and b) the favourable conservation status ofbottlenose dolphin and harbour porpoise The Section 75 Agreement mustinclude provisions to put in place marina mooring leases a sea ranger amarine chart a research programme and a monitoring scheme to confirm thatthe mitigation measures are working effectively Furthermore the Agreementshould restrict the number of boats allowed to use the marina to a levelagreed by The Highland Council in consultation with SNH Boat numbersmust not be allowed to increase unless monitoring demonstrates that such anincrease would not have an adverse impact on the integrity of the SAC TheSection 75 Planning Agreement must be agreed with The Highland Counciland SNH

b)

Although our position has changed in relation to the Moray Firth SAC and EuropeanProtected Species our position in relation to all other aspects of the natural heritageremain as described in our letter to The Highland Council dated 31 October 2006

If you have any questions on the content of this letter then please contact BenLeyshon (benlevshonsnhQovuk) at this office in the first instance I would begrateful if you could let us know of your Councils decision in due course or of anyfurther changes to the proposal that would be relevant to our interests

As stated in our letter of 31 October 2006 you are respectfully reminded of therequirement to notify the Scottish Ministers if your Council is minded to approveplanning consent against SNHs advice in this case

Yours sincerely

GEORGE HOGGArea Manager - East Highlandemail QeorQehoQQsnhQovuk

2

Once this information has been provided then SNH will be able to give furtherconsideration to this aspect of the proposal

224 Bats

A number of bat roosts will be destroyed in the process of demolishing the existingbuildings Such works would be contrary to the species protection elements of theConservation (Natural Habitats ampc) Regulations 1994 and The Conservation (NaturalHabitats ampc) Amendment (Scotland) Regulations 2004 and therefore cannot proceedunless a licence is obtained from Scottish Executive SNH therefore advise that anapplication for a licence be obtained from Wildlife and Habitats Unit ScottishExecutive Environment and Rural Affairs Department Area 1-H Victoria QuayEdinburgh EH6 600 A licence must be acquired from the Scottish Executivebefore planning consent is granted

SNH consider that there is considerable scope to create additional bat maternityroosts in the buildings associated with this development and this combined with thesensitive installation of bat boxes at suitable locations throughout the site would helpto mitigate the loss of bat roosts during the demolition phase

225 Great crested newts

The lagoon area provides a suitable habitat for great crested newts To enable SNHto advise The Highland Council on impacts we recommend that a survey of greatcrested newts be undertaken in the spring and prior to any works commencingin or close to the lagoon area SNH can provide information on appropriatemethodology and advise if a licence will be required

Once the results of the survey are available we will be able to advise about theimplications of the proposal on the maintenance of this species at a FavourableConservation Status within its natural range

It is worth noting that even if great crested newts are not present at the moment theremay be opportunities to translocate newts from other areas to the lagoon This wouldhave a conservation benefit for the species Please note that such a translocationexercise would need to be carried out under licence from ourselves

As with the impacts on the European site it is likely that the saltmarsh andshingle habitats and their associated flora and the wintering populations ofbar-tailed godwit and knot will be compromised as a result of the proposeddevelopment Once the additional information detailed in section 211 above hasbeen submitted then SNH will be in a position to give further consideration to thisproposal

11

At this stage there is insufficientinformation for us to assess these impacts fully but the natural heritage interestsaffected are of such importance as to justify a precautionary approach SNHtherefore objects to this element of the proposal This objection will bereviewed once the following information detailed below is submitted

An Access Management Plan clearly describing how the shingle spit will besafeguarded from damage or disturbance arising from increased visitorpressure

bull A description of the short medium and long term management proposed forthe spit (including details of any intervention to natural processes shorereplenishment) and channel area (including details on the proposedfrequency location depth and pattern of dredging)

bull A method statement describing how the proposed sewage pipeline will be laidacross the saltmarsh channel and shingle spit Alternatives that are lessdamaging than trenching should be explored for example the use ofdirectional drilling techniques

24 ACCESS

Many of the impacts described in this Annex relate to disturbance or damage causedby increased access by residents and visitors to the sensitive wildlife and habitatsimmediately adjacent to the development footprint The ES acknowledges this andsuggests that an Access Management Plan will mitigate these impacts to acceptablelevels However the Access Management Plan has not yet been produced andwhether such a Plan will be sufficient to adequately mitigate impacts on theEuropean national (and local) natural heritage interests still has to be determinedMechanisms to ensure that any measures identified in the Visitor Management Planwill be effectively applied are also lacking in the ES Also it is important to note thatat present some of the visitor management measures presented in the ES are in ourview not compliant with Part 1 of the Land Reform (Scotland) Act 2003 and theScottish Outdoor Access Code

Although we have referred to the need to develop the Access Management Plan atvarious points in this Annex for the reasons described above SNH objects to thevisitor management measures described in the ES We will review ourobjection once

bull An Access Management Plan has been submitted for the agreement ofThe Highland Council in consultation with SNH The Plan must addressNatura and SSSI issues and be compliant with Part 1 of the Land Reform

12

(Scotland) Act 2003 the Scottish Outdoor Access Code and the DisabilityDiscrimination Act 1995

bull Management mechanisms that ensure that the Access ManagementPlan (and the monitoring of it) will be adhered to should be clearlyidentified This should include details about who will be responsible for thedelivery and implementation of the Plan

In order to provide a steer we consider that the Access Management Plan shouldinclude information on the following

bull All existing paths tracks Rights of Way and any areas expected to beoutwith or excluded from statutory access rights under Part 1 of the landReform (Scotland) Act 2003 (once current land uses are removed) should beidentified

bull All paths and tracks proposed for construction as part of the development foruse by walkers riders cyclists all abilities users etc including all associatedaccess infrastructure should be identified

bull Any diversions of paths - temporary or permanent - proposed for thepurposes of the development should be identified

The Plan should go on to

bull Identify the likely level of public access resulting from the developmentincluding the type of access (land and water based) timing numberslocation type of activity (including dog walkers) seasonality etc This shouldinclude access by both residents and visitors to the site As the moment theES does not clearly acknowledge the number of people likely to visit the newdevelopment from the surrounding area SNH considers that at certain timesof the year (for example Bank Holiday weekends) visitor numbers are likely tobe significant

bull Identify the natural heritage features which could will be affected by publicaccess

bull Identify whether access of the expected leveltype of access will significantlyimpact on the natural heritage features

bull Consider if the impact will be significant and if it is then the range of tools tobe employed to manage this access should be detailed and examplesprovided

bull Detail the proposals to minimise disturbance of the natural heritage of the siteas a result of public access

13

bull Detail the planned monitoring of public access and the natural heritagefeatures and describe how the Access Management Plan will be reviewed inthe light of this monitoring

bull Develop an action plan which would be ready to deploy if the monitoringdemonstrates that the visitor management tools are not sufficient to protectthe natural heritage

We would also like to emphasise that the footbridge to the spit from the maindevelopment is a particular cause for concern Whilst we recognise the benefits thatthe footbridge will have for creating a link with the existing Moray coast path weconsider that it will also open the sensitive spit area to increased visitor pressureBreeding terns lichens and the shingle feature itself are all vulnerable to humandisturbance Some of SNHs concerns in relation to access impacts would bealleviated if the footbridge were removed from the proposed development

25OTHER NATURAL HERITAGE INTERESTS

251 Landscape and visual amenity

The ES and accompanying documentation provide a clear and well thought outapproach to the landscape and visual impacts of the proposal It is clear thatconsiderable thought has gone into sensitive and innovative design of thedevelopment and we are pleased to see that emphasis has been given to the need tocreate green space and natural features within the built up areas The proposalshave a very strong overall landscape structure with the identity of individualneighbourhoods being defined by landscape character A landscape strategyoutlined within the Design Statement in part 4 Placemaking shows how theproposals seek to reinforce existing character integrate with adjacent character orcreate new landscape character areas The landscape strategy contains manyexcellent ideas for example the wetland scrapes within forest clearings

We do not raise any concerns about the landscape and visual impact of the proposalhowever given the scale of this development together with its prominence from keyviewpoints from the Black Isle and beyond we recommend that a detailedLandscape Management Plan should be made condition of any planningconsent granted

SNH advice that the following aspects could be included within the Plan

bull Early tree planting within the neighbourhood in order that trees can becomeestablished and therefore soften the appearance of the new developmentThis would also create a better quality landscape in the early years of thedevelopment as plantings would consist of trees roughly the same age andheight The creation of wetland scapes should also be undertaken as earlyas possible as such features take time to establish

14

bull The hotel would be the tallest building on site Drawings in the DesignStatement suggest that this would be a landmark building and a focal pointwithin the landscape A landmark building need not be exaggerated orelaborate SNH recommend that due to the prominent location of this buildingit should be a simple design that could still achieve a bold statement

The Seafront Neighbourhood would be the most visually prominent part of thedevelopment within views from the Black Isle Nairn Esplanade and the coastal pathto the east Plots would be the densest and the heights of buildings the greatestwithin the development Public spaces would consist of civic squares and walkwayswith vegetation density being possibly the lowest within the development SNHrecommends that the seafront neighbourhood is the subject of a specificdevelopmentdesign brief to ensure that high standards of design are used tointegrate this part of the development into the coastal landscape Thedevelopmentdesign brief should include details of the following

bull Housing design including details of materials and finishes to be usedbull Public realm design including details of materials and finishes to be usedbull Details of outbuildings and ancilliary facilities (eg garages sheds and

greenhouses )bull Landscape and open space including civic squares and performance spacesbull Boundary enclosuresbull Car parkingbull Lighting

252 Local Biodiversity Action Plans

At the pre-application stage SNH advised that information on species and habitatslisted in the Inverness and Nairn Biodiversity Action Plan and species that haveSpecies Action Plans should be detailed in the ES As far as we can ascertain suchinformation does not appear to be included However there is a clear commitment bythe applicant to safeguard and enhance biodiversity on the site and the applicantstates that a Biodiversity Action Plan specifically for Whiteness Head will bedeveloped SNH support this approach and advise that the Inverness and NairnLBAP should be a starting point for developing a Whiteness Head Biodiversity Plan

26 POLLUTION AND WASTE MANAGEMENT

We support reference in the ES to the preparation and implementation of a Code ofConstruction Practice We recommend that this should be a condition of any planningconsent issued The Code of Construction Practice should specifically addresssensitive natural heritage receptors especially those that have protected status forexample the need to take otter into account if they should be encountered duringconstruction operations Also the Code of Construction Practice should fullyrec~gnise the presence of Crassula helmsit-1 and take steps to ensure that it is notspread within and beyond the site

I Cra$sula helmsii is a prolific non-native water weed present in the lagoon area at Whiteness Head

15

We note that SEPA have objected to the proposal on a number of grounds includingthe provision for foul drainage SEPA states that further work is required in orderfor SEPA to be assured that the proposals are environmentally acceptable SNHshares these concerns and we will need to be assured by SEPA thatwastewater provision at the site will not adversely affect the designatedfeatures of interest If this assurance cannot be given then SNH will object towastewater provision as part of this application and to any future applicationmade under the Controlled Activities Regulations 2006

16

Annex B

Whiteness - wader and wildfowl counts - Winter season 20052006

FOliowing our discussions with SNH yesterday 19th September I have spoken todaywith the Webs count co-ordinator for the Moray Firth Dave Butterfield at the RSPBOffice in Inverness He tells me that the four official count dates for the whole firthare 16th October 4th December 15th January and 1ih February I have agreed withhim that I will carry out those counts at Whiteness in place of the previous countersas part of the over all Firth monitoring programme

In order to provide sufficient detail for the EA as agreed with SNH we require to carryout a more detailed survey with extra count dates which require to cover the low tidedistribution of birds and locations of high tide roosts as well as the total numbers foreach species

I recommend that I carry out the following counts - approximate dates (in very badweather conditions additional counts may be delayed by a day) which will cover thetidal span from low to high tide or vice versa depending on timing of high tide

Date

22 September2 October16 OCTOBER30 October7 November21 November4 DECEMBER19 pecember

1352

High Tide Time

1604 hours12481221103415271525

1433

High tide height

45 metres4548424341

4744

The 2006 main counts are 15th JANUARY and 12th FEBRUARY and the furthermonthly count dates are 12 March 9 April 14 May 11 June 16 July 13 August and17 September

Depending on the examination of data collected September to December it isprobable we will need additional count dates between these days for this first winterseason The counts will also cover seaducks outside the Harbour and on the RiffBank but this is only attainable by telescope in good weather The vantage point isthe high dune

The output for the 8 main counts to end of year will beSpecies totals on each dateLocation of roostsDistribution maps for species on tidal areas at low and mid tideDisturbance distances (probably done on other casual dates)Please let me know what you think

Roy Dennis 20 Sep 2006

17

The Highland CouncilPlanning amp DevelopmentGlenurquhart RoadINVERNESSIV3 5NX

For the attention of David Mudie

Dear Mr Mudie

Our ref CNSDCHIIIVABPOPPYour ref 05012940UTIN DMCC

15 November 2006

TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997ENVIRONMENTAL IMPACT ASSESSMENT (SCOTLAND) REGULATIONS 1999OUTLINE PLANNING APPLICATION FOR RESIDENTIAL AND LEISUREDEVELOPMENT INCLUDING HOUSING MARINA BOAT YARD VISITORSCENTRE NATURE CONSERVATION ZONES AND HOTEL WITH SUPPORTINGCOMMUNITY FACILITIES AND SEWAGE TREATMENT PLANT AT THE FORMERFABRICATION YARD WHITENESS ARDERSIERMORAY FIRTH SPECIAL AREA OF CONSERVATION (SAC)INNER MORAY FIRTH SPECIAL PROTECTION AREA (SPA)INNER MORAY FIRTH RAMSAR SITEWHITENESS HEAD SITE OF SPECIAL SCIENTIFIC INTEREST (SSSI)

I am writing with respect to the letter dated 9 November 2006 from Stewart Fulton ofthe Whiteness Property Company Limited regarding the above proposal Foravoidance of doubt a copy of this letter is attached

The letter was written as a result of SNHs formal response to the outline planningapplication dated 31 October 2006 which inter alia objected to the proposedde(elopment in relation to the Moray Firth SAC (bottlenose dolphin interest) on thegrounds that a 500-berth marina will have an adverse impact on the integrity of thedolphin population The SNH response also objected in relation to EuropeanProtected Species on the grounds that the marina will have an adverse impact on thefavourable conservation status of dolphin and porpoise populations

The letter from Stewart Fulton also followed a meeting between The HighlandCouncil Whiteness Property Company Limited and Scottish Natural Heritage on 7November 2006 to discuss the marine mitigation measures already proposed by theapplicant and how these could be underpinned by robust legal mechanisms

SNH POSITION

1

middot a) a Section 75 Planning Agreement that binds the Whiteness PropertyCompany Limited and the Harbour Authority to mitigation measures that willeffectively avoid any adverse impact on a) the integrity of the Moray Firth SACbottlenose dolphin interest and b) the favourable conservation status ofbottlenose dolphin and harbour porpoise The Section 75 Agreement mustinclude provisions to put in place marina mooring leases a sea ranger amarine chart a research programme and a monitoring scheme to confirm thatthe mitigation measures are working effectively Furthermore the Agreementshould restrict the number of boats allowed to use the marina to a levelagreed by The Highland Council in consultation with SNH Boat numbersmust not be allowed to increase unless monitoring demonstrates that such anincrease would not have an adverse impact on the integrity of the SAC TheSection 75 Planning Agreement must be agreed with The Highland Counciland SNH

b)

Although our position has changed in relation to the Moray Firth SAC and EuropeanProtected Species our position in relation to all other aspects of the natural heritageremain as described in our letter to The Highland Council dated 31 October 2006

If you have any questions on the content of this letter then please contact BenLeyshon (benlevshonsnhQovuk) at this office in the first instance I would begrateful if you could let us know of your Councils decision in due course or of anyfurther changes to the proposal that would be relevant to our interests

As stated in our letter of 31 October 2006 you are respectfully reminded of therequirement to notify the Scottish Ministers if your Council is minded to approveplanning consent against SNHs advice in this case

Yours sincerely

GEORGE HOGGArea Manager - East Highlandemail QeorQehoQQsnhQovuk

2

At this stage there is insufficientinformation for us to assess these impacts fully but the natural heritage interestsaffected are of such importance as to justify a precautionary approach SNHtherefore objects to this element of the proposal This objection will bereviewed once the following information detailed below is submitted

An Access Management Plan clearly describing how the shingle spit will besafeguarded from damage or disturbance arising from increased visitorpressure

bull A description of the short medium and long term management proposed forthe spit (including details of any intervention to natural processes shorereplenishment) and channel area (including details on the proposedfrequency location depth and pattern of dredging)

bull A method statement describing how the proposed sewage pipeline will be laidacross the saltmarsh channel and shingle spit Alternatives that are lessdamaging than trenching should be explored for example the use ofdirectional drilling techniques

24 ACCESS

Many of the impacts described in this Annex relate to disturbance or damage causedby increased access by residents and visitors to the sensitive wildlife and habitatsimmediately adjacent to the development footprint The ES acknowledges this andsuggests that an Access Management Plan will mitigate these impacts to acceptablelevels However the Access Management Plan has not yet been produced andwhether such a Plan will be sufficient to adequately mitigate impacts on theEuropean national (and local) natural heritage interests still has to be determinedMechanisms to ensure that any measures identified in the Visitor Management Planwill be effectively applied are also lacking in the ES Also it is important to note thatat present some of the visitor management measures presented in the ES are in ourview not compliant with Part 1 of the Land Reform (Scotland) Act 2003 and theScottish Outdoor Access Code

Although we have referred to the need to develop the Access Management Plan atvarious points in this Annex for the reasons described above SNH objects to thevisitor management measures described in the ES We will review ourobjection once

bull An Access Management Plan has been submitted for the agreement ofThe Highland Council in consultation with SNH The Plan must addressNatura and SSSI issues and be compliant with Part 1 of the Land Reform

12

(Scotland) Act 2003 the Scottish Outdoor Access Code and the DisabilityDiscrimination Act 1995

bull Management mechanisms that ensure that the Access ManagementPlan (and the monitoring of it) will be adhered to should be clearlyidentified This should include details about who will be responsible for thedelivery and implementation of the Plan

In order to provide a steer we consider that the Access Management Plan shouldinclude information on the following

bull All existing paths tracks Rights of Way and any areas expected to beoutwith or excluded from statutory access rights under Part 1 of the landReform (Scotland) Act 2003 (once current land uses are removed) should beidentified

bull All paths and tracks proposed for construction as part of the development foruse by walkers riders cyclists all abilities users etc including all associatedaccess infrastructure should be identified

bull Any diversions of paths - temporary or permanent - proposed for thepurposes of the development should be identified

The Plan should go on to

bull Identify the likely level of public access resulting from the developmentincluding the type of access (land and water based) timing numberslocation type of activity (including dog walkers) seasonality etc This shouldinclude access by both residents and visitors to the site As the moment theES does not clearly acknowledge the number of people likely to visit the newdevelopment from the surrounding area SNH considers that at certain timesof the year (for example Bank Holiday weekends) visitor numbers are likely tobe significant

bull Identify the natural heritage features which could will be affected by publicaccess

bull Identify whether access of the expected leveltype of access will significantlyimpact on the natural heritage features

bull Consider if the impact will be significant and if it is then the range of tools tobe employed to manage this access should be detailed and examplesprovided

bull Detail the proposals to minimise disturbance of the natural heritage of the siteas a result of public access

13

bull Detail the planned monitoring of public access and the natural heritagefeatures and describe how the Access Management Plan will be reviewed inthe light of this monitoring

bull Develop an action plan which would be ready to deploy if the monitoringdemonstrates that the visitor management tools are not sufficient to protectthe natural heritage

We would also like to emphasise that the footbridge to the spit from the maindevelopment is a particular cause for concern Whilst we recognise the benefits thatthe footbridge will have for creating a link with the existing Moray coast path weconsider that it will also open the sensitive spit area to increased visitor pressureBreeding terns lichens and the shingle feature itself are all vulnerable to humandisturbance Some of SNHs concerns in relation to access impacts would bealleviated if the footbridge were removed from the proposed development

25OTHER NATURAL HERITAGE INTERESTS

251 Landscape and visual amenity

The ES and accompanying documentation provide a clear and well thought outapproach to the landscape and visual impacts of the proposal It is clear thatconsiderable thought has gone into sensitive and innovative design of thedevelopment and we are pleased to see that emphasis has been given to the need tocreate green space and natural features within the built up areas The proposalshave a very strong overall landscape structure with the identity of individualneighbourhoods being defined by landscape character A landscape strategyoutlined within the Design Statement in part 4 Placemaking shows how theproposals seek to reinforce existing character integrate with adjacent character orcreate new landscape character areas The landscape strategy contains manyexcellent ideas for example the wetland scrapes within forest clearings

We do not raise any concerns about the landscape and visual impact of the proposalhowever given the scale of this development together with its prominence from keyviewpoints from the Black Isle and beyond we recommend that a detailedLandscape Management Plan should be made condition of any planningconsent granted

SNH advice that the following aspects could be included within the Plan

bull Early tree planting within the neighbourhood in order that trees can becomeestablished and therefore soften the appearance of the new developmentThis would also create a better quality landscape in the early years of thedevelopment as plantings would consist of trees roughly the same age andheight The creation of wetland scapes should also be undertaken as earlyas possible as such features take time to establish

14

bull The hotel would be the tallest building on site Drawings in the DesignStatement suggest that this would be a landmark building and a focal pointwithin the landscape A landmark building need not be exaggerated orelaborate SNH recommend that due to the prominent location of this buildingit should be a simple design that could still achieve a bold statement

The Seafront Neighbourhood would be the most visually prominent part of thedevelopment within views from the Black Isle Nairn Esplanade and the coastal pathto the east Plots would be the densest and the heights of buildings the greatestwithin the development Public spaces would consist of civic squares and walkwayswith vegetation density being possibly the lowest within the development SNHrecommends that the seafront neighbourhood is the subject of a specificdevelopmentdesign brief to ensure that high standards of design are used tointegrate this part of the development into the coastal landscape Thedevelopmentdesign brief should include details of the following

bull Housing design including details of materials and finishes to be usedbull Public realm design including details of materials and finishes to be usedbull Details of outbuildings and ancilliary facilities (eg garages sheds and

greenhouses )bull Landscape and open space including civic squares and performance spacesbull Boundary enclosuresbull Car parkingbull Lighting

252 Local Biodiversity Action Plans

At the pre-application stage SNH advised that information on species and habitatslisted in the Inverness and Nairn Biodiversity Action Plan and species that haveSpecies Action Plans should be detailed in the ES As far as we can ascertain suchinformation does not appear to be included However there is a clear commitment bythe applicant to safeguard and enhance biodiversity on the site and the applicantstates that a Biodiversity Action Plan specifically for Whiteness Head will bedeveloped SNH support this approach and advise that the Inverness and NairnLBAP should be a starting point for developing a Whiteness Head Biodiversity Plan

26 POLLUTION AND WASTE MANAGEMENT

We support reference in the ES to the preparation and implementation of a Code ofConstruction Practice We recommend that this should be a condition of any planningconsent issued The Code of Construction Practice should specifically addresssensitive natural heritage receptors especially those that have protected status forexample the need to take otter into account if they should be encountered duringconstruction operations Also the Code of Construction Practice should fullyrec~gnise the presence of Crassula helmsit-1 and take steps to ensure that it is notspread within and beyond the site

I Cra$sula helmsii is a prolific non-native water weed present in the lagoon area at Whiteness Head

15

We note that SEPA have objected to the proposal on a number of grounds includingthe provision for foul drainage SEPA states that further work is required in orderfor SEPA to be assured that the proposals are environmentally acceptable SNHshares these concerns and we will need to be assured by SEPA thatwastewater provision at the site will not adversely affect the designatedfeatures of interest If this assurance cannot be given then SNH will object towastewater provision as part of this application and to any future applicationmade under the Controlled Activities Regulations 2006

16

Annex B

Whiteness - wader and wildfowl counts - Winter season 20052006

FOliowing our discussions with SNH yesterday 19th September I have spoken todaywith the Webs count co-ordinator for the Moray Firth Dave Butterfield at the RSPBOffice in Inverness He tells me that the four official count dates for the whole firthare 16th October 4th December 15th January and 1ih February I have agreed withhim that I will carry out those counts at Whiteness in place of the previous countersas part of the over all Firth monitoring programme

In order to provide sufficient detail for the EA as agreed with SNH we require to carryout a more detailed survey with extra count dates which require to cover the low tidedistribution of birds and locations of high tide roosts as well as the total numbers foreach species

I recommend that I carry out the following counts - approximate dates (in very badweather conditions additional counts may be delayed by a day) which will cover thetidal span from low to high tide or vice versa depending on timing of high tide

Date

22 September2 October16 OCTOBER30 October7 November21 November4 DECEMBER19 pecember

1352

High Tide Time

1604 hours12481221103415271525

1433

High tide height

45 metres4548424341

4744

The 2006 main counts are 15th JANUARY and 12th FEBRUARY and the furthermonthly count dates are 12 March 9 April 14 May 11 June 16 July 13 August and17 September

Depending on the examination of data collected September to December it isprobable we will need additional count dates between these days for this first winterseason The counts will also cover seaducks outside the Harbour and on the RiffBank but this is only attainable by telescope in good weather The vantage point isthe high dune

The output for the 8 main counts to end of year will beSpecies totals on each dateLocation of roostsDistribution maps for species on tidal areas at low and mid tideDisturbance distances (probably done on other casual dates)Please let me know what you think

Roy Dennis 20 Sep 2006

17

The Highland CouncilPlanning amp DevelopmentGlenurquhart RoadINVERNESSIV3 5NX

For the attention of David Mudie

Dear Mr Mudie

Our ref CNSDCHIIIVABPOPPYour ref 05012940UTIN DMCC

15 November 2006

TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997ENVIRONMENTAL IMPACT ASSESSMENT (SCOTLAND) REGULATIONS 1999OUTLINE PLANNING APPLICATION FOR RESIDENTIAL AND LEISUREDEVELOPMENT INCLUDING HOUSING MARINA BOAT YARD VISITORSCENTRE NATURE CONSERVATION ZONES AND HOTEL WITH SUPPORTINGCOMMUNITY FACILITIES AND SEWAGE TREATMENT PLANT AT THE FORMERFABRICATION YARD WHITENESS ARDERSIERMORAY FIRTH SPECIAL AREA OF CONSERVATION (SAC)INNER MORAY FIRTH SPECIAL PROTECTION AREA (SPA)INNER MORAY FIRTH RAMSAR SITEWHITENESS HEAD SITE OF SPECIAL SCIENTIFIC INTEREST (SSSI)

I am writing with respect to the letter dated 9 November 2006 from Stewart Fulton ofthe Whiteness Property Company Limited regarding the above proposal Foravoidance of doubt a copy of this letter is attached

The letter was written as a result of SNHs formal response to the outline planningapplication dated 31 October 2006 which inter alia objected to the proposedde(elopment in relation to the Moray Firth SAC (bottlenose dolphin interest) on thegrounds that a 500-berth marina will have an adverse impact on the integrity of thedolphin population The SNH response also objected in relation to EuropeanProtected Species on the grounds that the marina will have an adverse impact on thefavourable conservation status of dolphin and porpoise populations

The letter from Stewart Fulton also followed a meeting between The HighlandCouncil Whiteness Property Company Limited and Scottish Natural Heritage on 7November 2006 to discuss the marine mitigation measures already proposed by theapplicant and how these could be underpinned by robust legal mechanisms

SNH POSITION

1

middot a) a Section 75 Planning Agreement that binds the Whiteness PropertyCompany Limited and the Harbour Authority to mitigation measures that willeffectively avoid any adverse impact on a) the integrity of the Moray Firth SACbottlenose dolphin interest and b) the favourable conservation status ofbottlenose dolphin and harbour porpoise The Section 75 Agreement mustinclude provisions to put in place marina mooring leases a sea ranger amarine chart a research programme and a monitoring scheme to confirm thatthe mitigation measures are working effectively Furthermore the Agreementshould restrict the number of boats allowed to use the marina to a levelagreed by The Highland Council in consultation with SNH Boat numbersmust not be allowed to increase unless monitoring demonstrates that such anincrease would not have an adverse impact on the integrity of the SAC TheSection 75 Planning Agreement must be agreed with The Highland Counciland SNH

b)

Although our position has changed in relation to the Moray Firth SAC and EuropeanProtected Species our position in relation to all other aspects of the natural heritageremain as described in our letter to The Highland Council dated 31 October 2006

If you have any questions on the content of this letter then please contact BenLeyshon (benlevshonsnhQovuk) at this office in the first instance I would begrateful if you could let us know of your Councils decision in due course or of anyfurther changes to the proposal that would be relevant to our interests

As stated in our letter of 31 October 2006 you are respectfully reminded of therequirement to notify the Scottish Ministers if your Council is minded to approveplanning consent against SNHs advice in this case

Yours sincerely

GEORGE HOGGArea Manager - East Highlandemail QeorQehoQQsnhQovuk

2

(Scotland) Act 2003 the Scottish Outdoor Access Code and the DisabilityDiscrimination Act 1995

bull Management mechanisms that ensure that the Access ManagementPlan (and the monitoring of it) will be adhered to should be clearlyidentified This should include details about who will be responsible for thedelivery and implementation of the Plan

In order to provide a steer we consider that the Access Management Plan shouldinclude information on the following

bull All existing paths tracks Rights of Way and any areas expected to beoutwith or excluded from statutory access rights under Part 1 of the landReform (Scotland) Act 2003 (once current land uses are removed) should beidentified

bull All paths and tracks proposed for construction as part of the development foruse by walkers riders cyclists all abilities users etc including all associatedaccess infrastructure should be identified

bull Any diversions of paths - temporary or permanent - proposed for thepurposes of the development should be identified

The Plan should go on to

bull Identify the likely level of public access resulting from the developmentincluding the type of access (land and water based) timing numberslocation type of activity (including dog walkers) seasonality etc This shouldinclude access by both residents and visitors to the site As the moment theES does not clearly acknowledge the number of people likely to visit the newdevelopment from the surrounding area SNH considers that at certain timesof the year (for example Bank Holiday weekends) visitor numbers are likely tobe significant

bull Identify the natural heritage features which could will be affected by publicaccess

bull Identify whether access of the expected leveltype of access will significantlyimpact on the natural heritage features

bull Consider if the impact will be significant and if it is then the range of tools tobe employed to manage this access should be detailed and examplesprovided

bull Detail the proposals to minimise disturbance of the natural heritage of the siteas a result of public access

13

bull Detail the planned monitoring of public access and the natural heritagefeatures and describe how the Access Management Plan will be reviewed inthe light of this monitoring

bull Develop an action plan which would be ready to deploy if the monitoringdemonstrates that the visitor management tools are not sufficient to protectthe natural heritage

We would also like to emphasise that the footbridge to the spit from the maindevelopment is a particular cause for concern Whilst we recognise the benefits thatthe footbridge will have for creating a link with the existing Moray coast path weconsider that it will also open the sensitive spit area to increased visitor pressureBreeding terns lichens and the shingle feature itself are all vulnerable to humandisturbance Some of SNHs concerns in relation to access impacts would bealleviated if the footbridge were removed from the proposed development

25OTHER NATURAL HERITAGE INTERESTS

251 Landscape and visual amenity

The ES and accompanying documentation provide a clear and well thought outapproach to the landscape and visual impacts of the proposal It is clear thatconsiderable thought has gone into sensitive and innovative design of thedevelopment and we are pleased to see that emphasis has been given to the need tocreate green space and natural features within the built up areas The proposalshave a very strong overall landscape structure with the identity of individualneighbourhoods being defined by landscape character A landscape strategyoutlined within the Design Statement in part 4 Placemaking shows how theproposals seek to reinforce existing character integrate with adjacent character orcreate new landscape character areas The landscape strategy contains manyexcellent ideas for example the wetland scrapes within forest clearings

We do not raise any concerns about the landscape and visual impact of the proposalhowever given the scale of this development together with its prominence from keyviewpoints from the Black Isle and beyond we recommend that a detailedLandscape Management Plan should be made condition of any planningconsent granted

SNH advice that the following aspects could be included within the Plan

bull Early tree planting within the neighbourhood in order that trees can becomeestablished and therefore soften the appearance of the new developmentThis would also create a better quality landscape in the early years of thedevelopment as plantings would consist of trees roughly the same age andheight The creation of wetland scapes should also be undertaken as earlyas possible as such features take time to establish

14

bull The hotel would be the tallest building on site Drawings in the DesignStatement suggest that this would be a landmark building and a focal pointwithin the landscape A landmark building need not be exaggerated orelaborate SNH recommend that due to the prominent location of this buildingit should be a simple design that could still achieve a bold statement

The Seafront Neighbourhood would be the most visually prominent part of thedevelopment within views from the Black Isle Nairn Esplanade and the coastal pathto the east Plots would be the densest and the heights of buildings the greatestwithin the development Public spaces would consist of civic squares and walkwayswith vegetation density being possibly the lowest within the development SNHrecommends that the seafront neighbourhood is the subject of a specificdevelopmentdesign brief to ensure that high standards of design are used tointegrate this part of the development into the coastal landscape Thedevelopmentdesign brief should include details of the following

bull Housing design including details of materials and finishes to be usedbull Public realm design including details of materials and finishes to be usedbull Details of outbuildings and ancilliary facilities (eg garages sheds and

greenhouses )bull Landscape and open space including civic squares and performance spacesbull Boundary enclosuresbull Car parkingbull Lighting

252 Local Biodiversity Action Plans

At the pre-application stage SNH advised that information on species and habitatslisted in the Inverness and Nairn Biodiversity Action Plan and species that haveSpecies Action Plans should be detailed in the ES As far as we can ascertain suchinformation does not appear to be included However there is a clear commitment bythe applicant to safeguard and enhance biodiversity on the site and the applicantstates that a Biodiversity Action Plan specifically for Whiteness Head will bedeveloped SNH support this approach and advise that the Inverness and NairnLBAP should be a starting point for developing a Whiteness Head Biodiversity Plan

26 POLLUTION AND WASTE MANAGEMENT

We support reference in the ES to the preparation and implementation of a Code ofConstruction Practice We recommend that this should be a condition of any planningconsent issued The Code of Construction Practice should specifically addresssensitive natural heritage receptors especially those that have protected status forexample the need to take otter into account if they should be encountered duringconstruction operations Also the Code of Construction Practice should fullyrec~gnise the presence of Crassula helmsit-1 and take steps to ensure that it is notspread within and beyond the site

I Cra$sula helmsii is a prolific non-native water weed present in the lagoon area at Whiteness Head

15

We note that SEPA have objected to the proposal on a number of grounds includingthe provision for foul drainage SEPA states that further work is required in orderfor SEPA to be assured that the proposals are environmentally acceptable SNHshares these concerns and we will need to be assured by SEPA thatwastewater provision at the site will not adversely affect the designatedfeatures of interest If this assurance cannot be given then SNH will object towastewater provision as part of this application and to any future applicationmade under the Controlled Activities Regulations 2006

16

Annex B

Whiteness - wader and wildfowl counts - Winter season 20052006

FOliowing our discussions with SNH yesterday 19th September I have spoken todaywith the Webs count co-ordinator for the Moray Firth Dave Butterfield at the RSPBOffice in Inverness He tells me that the four official count dates for the whole firthare 16th October 4th December 15th January and 1ih February I have agreed withhim that I will carry out those counts at Whiteness in place of the previous countersas part of the over all Firth monitoring programme

In order to provide sufficient detail for the EA as agreed with SNH we require to carryout a more detailed survey with extra count dates which require to cover the low tidedistribution of birds and locations of high tide roosts as well as the total numbers foreach species

I recommend that I carry out the following counts - approximate dates (in very badweather conditions additional counts may be delayed by a day) which will cover thetidal span from low to high tide or vice versa depending on timing of high tide

Date

22 September2 October16 OCTOBER30 October7 November21 November4 DECEMBER19 pecember

1352

High Tide Time

1604 hours12481221103415271525

1433

High tide height

45 metres4548424341

4744

The 2006 main counts are 15th JANUARY and 12th FEBRUARY and the furthermonthly count dates are 12 March 9 April 14 May 11 June 16 July 13 August and17 September

Depending on the examination of data collected September to December it isprobable we will need additional count dates between these days for this first winterseason The counts will also cover seaducks outside the Harbour and on the RiffBank but this is only attainable by telescope in good weather The vantage point isthe high dune

The output for the 8 main counts to end of year will beSpecies totals on each dateLocation of roostsDistribution maps for species on tidal areas at low and mid tideDisturbance distances (probably done on other casual dates)Please let me know what you think

Roy Dennis 20 Sep 2006

17

The Highland CouncilPlanning amp DevelopmentGlenurquhart RoadINVERNESSIV3 5NX

For the attention of David Mudie

Dear Mr Mudie

Our ref CNSDCHIIIVABPOPPYour ref 05012940UTIN DMCC

15 November 2006

TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997ENVIRONMENTAL IMPACT ASSESSMENT (SCOTLAND) REGULATIONS 1999OUTLINE PLANNING APPLICATION FOR RESIDENTIAL AND LEISUREDEVELOPMENT INCLUDING HOUSING MARINA BOAT YARD VISITORSCENTRE NATURE CONSERVATION ZONES AND HOTEL WITH SUPPORTINGCOMMUNITY FACILITIES AND SEWAGE TREATMENT PLANT AT THE FORMERFABRICATION YARD WHITENESS ARDERSIERMORAY FIRTH SPECIAL AREA OF CONSERVATION (SAC)INNER MORAY FIRTH SPECIAL PROTECTION AREA (SPA)INNER MORAY FIRTH RAMSAR SITEWHITENESS HEAD SITE OF SPECIAL SCIENTIFIC INTEREST (SSSI)

I am writing with respect to the letter dated 9 November 2006 from Stewart Fulton ofthe Whiteness Property Company Limited regarding the above proposal Foravoidance of doubt a copy of this letter is attached

The letter was written as a result of SNHs formal response to the outline planningapplication dated 31 October 2006 which inter alia objected to the proposedde(elopment in relation to the Moray Firth SAC (bottlenose dolphin interest) on thegrounds that a 500-berth marina will have an adverse impact on the integrity of thedolphin population The SNH response also objected in relation to EuropeanProtected Species on the grounds that the marina will have an adverse impact on thefavourable conservation status of dolphin and porpoise populations

The letter from Stewart Fulton also followed a meeting between The HighlandCouncil Whiteness Property Company Limited and Scottish Natural Heritage on 7November 2006 to discuss the marine mitigation measures already proposed by theapplicant and how these could be underpinned by robust legal mechanisms

SNH POSITION

1

middot a) a Section 75 Planning Agreement that binds the Whiteness PropertyCompany Limited and the Harbour Authority to mitigation measures that willeffectively avoid any adverse impact on a) the integrity of the Moray Firth SACbottlenose dolphin interest and b) the favourable conservation status ofbottlenose dolphin and harbour porpoise The Section 75 Agreement mustinclude provisions to put in place marina mooring leases a sea ranger amarine chart a research programme and a monitoring scheme to confirm thatthe mitigation measures are working effectively Furthermore the Agreementshould restrict the number of boats allowed to use the marina to a levelagreed by The Highland Council in consultation with SNH Boat numbersmust not be allowed to increase unless monitoring demonstrates that such anincrease would not have an adverse impact on the integrity of the SAC TheSection 75 Planning Agreement must be agreed with The Highland Counciland SNH

b)

Although our position has changed in relation to the Moray Firth SAC and EuropeanProtected Species our position in relation to all other aspects of the natural heritageremain as described in our letter to The Highland Council dated 31 October 2006

If you have any questions on the content of this letter then please contact BenLeyshon (benlevshonsnhQovuk) at this office in the first instance I would begrateful if you could let us know of your Councils decision in due course or of anyfurther changes to the proposal that would be relevant to our interests

As stated in our letter of 31 October 2006 you are respectfully reminded of therequirement to notify the Scottish Ministers if your Council is minded to approveplanning consent against SNHs advice in this case

Yours sincerely

GEORGE HOGGArea Manager - East Highlandemail QeorQehoQQsnhQovuk

2

bull Detail the planned monitoring of public access and the natural heritagefeatures and describe how the Access Management Plan will be reviewed inthe light of this monitoring

bull Develop an action plan which would be ready to deploy if the monitoringdemonstrates that the visitor management tools are not sufficient to protectthe natural heritage

We would also like to emphasise that the footbridge to the spit from the maindevelopment is a particular cause for concern Whilst we recognise the benefits thatthe footbridge will have for creating a link with the existing Moray coast path weconsider that it will also open the sensitive spit area to increased visitor pressureBreeding terns lichens and the shingle feature itself are all vulnerable to humandisturbance Some of SNHs concerns in relation to access impacts would bealleviated if the footbridge were removed from the proposed development

25OTHER NATURAL HERITAGE INTERESTS

251 Landscape and visual amenity

The ES and accompanying documentation provide a clear and well thought outapproach to the landscape and visual impacts of the proposal It is clear thatconsiderable thought has gone into sensitive and innovative design of thedevelopment and we are pleased to see that emphasis has been given to the need tocreate green space and natural features within the built up areas The proposalshave a very strong overall landscape structure with the identity of individualneighbourhoods being defined by landscape character A landscape strategyoutlined within the Design Statement in part 4 Placemaking shows how theproposals seek to reinforce existing character integrate with adjacent character orcreate new landscape character areas The landscape strategy contains manyexcellent ideas for example the wetland scrapes within forest clearings

We do not raise any concerns about the landscape and visual impact of the proposalhowever given the scale of this development together with its prominence from keyviewpoints from the Black Isle and beyond we recommend that a detailedLandscape Management Plan should be made condition of any planningconsent granted

SNH advice that the following aspects could be included within the Plan

bull Early tree planting within the neighbourhood in order that trees can becomeestablished and therefore soften the appearance of the new developmentThis would also create a better quality landscape in the early years of thedevelopment as plantings would consist of trees roughly the same age andheight The creation of wetland scapes should also be undertaken as earlyas possible as such features take time to establish

14

bull The hotel would be the tallest building on site Drawings in the DesignStatement suggest that this would be a landmark building and a focal pointwithin the landscape A landmark building need not be exaggerated orelaborate SNH recommend that due to the prominent location of this buildingit should be a simple design that could still achieve a bold statement

The Seafront Neighbourhood would be the most visually prominent part of thedevelopment within views from the Black Isle Nairn Esplanade and the coastal pathto the east Plots would be the densest and the heights of buildings the greatestwithin the development Public spaces would consist of civic squares and walkwayswith vegetation density being possibly the lowest within the development SNHrecommends that the seafront neighbourhood is the subject of a specificdevelopmentdesign brief to ensure that high standards of design are used tointegrate this part of the development into the coastal landscape Thedevelopmentdesign brief should include details of the following

bull Housing design including details of materials and finishes to be usedbull Public realm design including details of materials and finishes to be usedbull Details of outbuildings and ancilliary facilities (eg garages sheds and

greenhouses )bull Landscape and open space including civic squares and performance spacesbull Boundary enclosuresbull Car parkingbull Lighting

252 Local Biodiversity Action Plans

At the pre-application stage SNH advised that information on species and habitatslisted in the Inverness and Nairn Biodiversity Action Plan and species that haveSpecies Action Plans should be detailed in the ES As far as we can ascertain suchinformation does not appear to be included However there is a clear commitment bythe applicant to safeguard and enhance biodiversity on the site and the applicantstates that a Biodiversity Action Plan specifically for Whiteness Head will bedeveloped SNH support this approach and advise that the Inverness and NairnLBAP should be a starting point for developing a Whiteness Head Biodiversity Plan

26 POLLUTION AND WASTE MANAGEMENT

We support reference in the ES to the preparation and implementation of a Code ofConstruction Practice We recommend that this should be a condition of any planningconsent issued The Code of Construction Practice should specifically addresssensitive natural heritage receptors especially those that have protected status forexample the need to take otter into account if they should be encountered duringconstruction operations Also the Code of Construction Practice should fullyrec~gnise the presence of Crassula helmsit-1 and take steps to ensure that it is notspread within and beyond the site

I Cra$sula helmsii is a prolific non-native water weed present in the lagoon area at Whiteness Head

15

We note that SEPA have objected to the proposal on a number of grounds includingthe provision for foul drainage SEPA states that further work is required in orderfor SEPA to be assured that the proposals are environmentally acceptable SNHshares these concerns and we will need to be assured by SEPA thatwastewater provision at the site will not adversely affect the designatedfeatures of interest If this assurance cannot be given then SNH will object towastewater provision as part of this application and to any future applicationmade under the Controlled Activities Regulations 2006

16

Annex B

Whiteness - wader and wildfowl counts - Winter season 20052006

FOliowing our discussions with SNH yesterday 19th September I have spoken todaywith the Webs count co-ordinator for the Moray Firth Dave Butterfield at the RSPBOffice in Inverness He tells me that the four official count dates for the whole firthare 16th October 4th December 15th January and 1ih February I have agreed withhim that I will carry out those counts at Whiteness in place of the previous countersas part of the over all Firth monitoring programme

In order to provide sufficient detail for the EA as agreed with SNH we require to carryout a more detailed survey with extra count dates which require to cover the low tidedistribution of birds and locations of high tide roosts as well as the total numbers foreach species

I recommend that I carry out the following counts - approximate dates (in very badweather conditions additional counts may be delayed by a day) which will cover thetidal span from low to high tide or vice versa depending on timing of high tide

Date

22 September2 October16 OCTOBER30 October7 November21 November4 DECEMBER19 pecember

1352

High Tide Time

1604 hours12481221103415271525

1433

High tide height

45 metres4548424341

4744

The 2006 main counts are 15th JANUARY and 12th FEBRUARY and the furthermonthly count dates are 12 March 9 April 14 May 11 June 16 July 13 August and17 September

Depending on the examination of data collected September to December it isprobable we will need additional count dates between these days for this first winterseason The counts will also cover seaducks outside the Harbour and on the RiffBank but this is only attainable by telescope in good weather The vantage point isthe high dune

The output for the 8 main counts to end of year will beSpecies totals on each dateLocation of roostsDistribution maps for species on tidal areas at low and mid tideDisturbance distances (probably done on other casual dates)Please let me know what you think

Roy Dennis 20 Sep 2006

17

The Highland CouncilPlanning amp DevelopmentGlenurquhart RoadINVERNESSIV3 5NX

For the attention of David Mudie

Dear Mr Mudie

Our ref CNSDCHIIIVABPOPPYour ref 05012940UTIN DMCC

15 November 2006

TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997ENVIRONMENTAL IMPACT ASSESSMENT (SCOTLAND) REGULATIONS 1999OUTLINE PLANNING APPLICATION FOR RESIDENTIAL AND LEISUREDEVELOPMENT INCLUDING HOUSING MARINA BOAT YARD VISITORSCENTRE NATURE CONSERVATION ZONES AND HOTEL WITH SUPPORTINGCOMMUNITY FACILITIES AND SEWAGE TREATMENT PLANT AT THE FORMERFABRICATION YARD WHITENESS ARDERSIERMORAY FIRTH SPECIAL AREA OF CONSERVATION (SAC)INNER MORAY FIRTH SPECIAL PROTECTION AREA (SPA)INNER MORAY FIRTH RAMSAR SITEWHITENESS HEAD SITE OF SPECIAL SCIENTIFIC INTEREST (SSSI)

I am writing with respect to the letter dated 9 November 2006 from Stewart Fulton ofthe Whiteness Property Company Limited regarding the above proposal Foravoidance of doubt a copy of this letter is attached

The letter was written as a result of SNHs formal response to the outline planningapplication dated 31 October 2006 which inter alia objected to the proposedde(elopment in relation to the Moray Firth SAC (bottlenose dolphin interest) on thegrounds that a 500-berth marina will have an adverse impact on the integrity of thedolphin population The SNH response also objected in relation to EuropeanProtected Species on the grounds that the marina will have an adverse impact on thefavourable conservation status of dolphin and porpoise populations

The letter from Stewart Fulton also followed a meeting between The HighlandCouncil Whiteness Property Company Limited and Scottish Natural Heritage on 7November 2006 to discuss the marine mitigation measures already proposed by theapplicant and how these could be underpinned by robust legal mechanisms

SNH POSITION

1

middot a) a Section 75 Planning Agreement that binds the Whiteness PropertyCompany Limited and the Harbour Authority to mitigation measures that willeffectively avoid any adverse impact on a) the integrity of the Moray Firth SACbottlenose dolphin interest and b) the favourable conservation status ofbottlenose dolphin and harbour porpoise The Section 75 Agreement mustinclude provisions to put in place marina mooring leases a sea ranger amarine chart a research programme and a monitoring scheme to confirm thatthe mitigation measures are working effectively Furthermore the Agreementshould restrict the number of boats allowed to use the marina to a levelagreed by The Highland Council in consultation with SNH Boat numbersmust not be allowed to increase unless monitoring demonstrates that such anincrease would not have an adverse impact on the integrity of the SAC TheSection 75 Planning Agreement must be agreed with The Highland Counciland SNH

b)

Although our position has changed in relation to the Moray Firth SAC and EuropeanProtected Species our position in relation to all other aspects of the natural heritageremain as described in our letter to The Highland Council dated 31 October 2006

If you have any questions on the content of this letter then please contact BenLeyshon (benlevshonsnhQovuk) at this office in the first instance I would begrateful if you could let us know of your Councils decision in due course or of anyfurther changes to the proposal that would be relevant to our interests

As stated in our letter of 31 October 2006 you are respectfully reminded of therequirement to notify the Scottish Ministers if your Council is minded to approveplanning consent against SNHs advice in this case

Yours sincerely

GEORGE HOGGArea Manager - East Highlandemail QeorQehoQQsnhQovuk

2

bull The hotel would be the tallest building on site Drawings in the DesignStatement suggest that this would be a landmark building and a focal pointwithin the landscape A landmark building need not be exaggerated orelaborate SNH recommend that due to the prominent location of this buildingit should be a simple design that could still achieve a bold statement

The Seafront Neighbourhood would be the most visually prominent part of thedevelopment within views from the Black Isle Nairn Esplanade and the coastal pathto the east Plots would be the densest and the heights of buildings the greatestwithin the development Public spaces would consist of civic squares and walkwayswith vegetation density being possibly the lowest within the development SNHrecommends that the seafront neighbourhood is the subject of a specificdevelopmentdesign brief to ensure that high standards of design are used tointegrate this part of the development into the coastal landscape Thedevelopmentdesign brief should include details of the following

bull Housing design including details of materials and finishes to be usedbull Public realm design including details of materials and finishes to be usedbull Details of outbuildings and ancilliary facilities (eg garages sheds and

greenhouses )bull Landscape and open space including civic squares and performance spacesbull Boundary enclosuresbull Car parkingbull Lighting

252 Local Biodiversity Action Plans

At the pre-application stage SNH advised that information on species and habitatslisted in the Inverness and Nairn Biodiversity Action Plan and species that haveSpecies Action Plans should be detailed in the ES As far as we can ascertain suchinformation does not appear to be included However there is a clear commitment bythe applicant to safeguard and enhance biodiversity on the site and the applicantstates that a Biodiversity Action Plan specifically for Whiteness Head will bedeveloped SNH support this approach and advise that the Inverness and NairnLBAP should be a starting point for developing a Whiteness Head Biodiversity Plan

26 POLLUTION AND WASTE MANAGEMENT

We support reference in the ES to the preparation and implementation of a Code ofConstruction Practice We recommend that this should be a condition of any planningconsent issued The Code of Construction Practice should specifically addresssensitive natural heritage receptors especially those that have protected status forexample the need to take otter into account if they should be encountered duringconstruction operations Also the Code of Construction Practice should fullyrec~gnise the presence of Crassula helmsit-1 and take steps to ensure that it is notspread within and beyond the site

I Cra$sula helmsii is a prolific non-native water weed present in the lagoon area at Whiteness Head

15

We note that SEPA have objected to the proposal on a number of grounds includingthe provision for foul drainage SEPA states that further work is required in orderfor SEPA to be assured that the proposals are environmentally acceptable SNHshares these concerns and we will need to be assured by SEPA thatwastewater provision at the site will not adversely affect the designatedfeatures of interest If this assurance cannot be given then SNH will object towastewater provision as part of this application and to any future applicationmade under the Controlled Activities Regulations 2006

16

Annex B

Whiteness - wader and wildfowl counts - Winter season 20052006

FOliowing our discussions with SNH yesterday 19th September I have spoken todaywith the Webs count co-ordinator for the Moray Firth Dave Butterfield at the RSPBOffice in Inverness He tells me that the four official count dates for the whole firthare 16th October 4th December 15th January and 1ih February I have agreed withhim that I will carry out those counts at Whiteness in place of the previous countersas part of the over all Firth monitoring programme

In order to provide sufficient detail for the EA as agreed with SNH we require to carryout a more detailed survey with extra count dates which require to cover the low tidedistribution of birds and locations of high tide roosts as well as the total numbers foreach species

I recommend that I carry out the following counts - approximate dates (in very badweather conditions additional counts may be delayed by a day) which will cover thetidal span from low to high tide or vice versa depending on timing of high tide

Date

22 September2 October16 OCTOBER30 October7 November21 November4 DECEMBER19 pecember

1352

High Tide Time

1604 hours12481221103415271525

1433

High tide height

45 metres4548424341

4744

The 2006 main counts are 15th JANUARY and 12th FEBRUARY and the furthermonthly count dates are 12 March 9 April 14 May 11 June 16 July 13 August and17 September

Depending on the examination of data collected September to December it isprobable we will need additional count dates between these days for this first winterseason The counts will also cover seaducks outside the Harbour and on the RiffBank but this is only attainable by telescope in good weather The vantage point isthe high dune

The output for the 8 main counts to end of year will beSpecies totals on each dateLocation of roostsDistribution maps for species on tidal areas at low and mid tideDisturbance distances (probably done on other casual dates)Please let me know what you think

Roy Dennis 20 Sep 2006

17

The Highland CouncilPlanning amp DevelopmentGlenurquhart RoadINVERNESSIV3 5NX

For the attention of David Mudie

Dear Mr Mudie

Our ref CNSDCHIIIVABPOPPYour ref 05012940UTIN DMCC

15 November 2006

TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997ENVIRONMENTAL IMPACT ASSESSMENT (SCOTLAND) REGULATIONS 1999OUTLINE PLANNING APPLICATION FOR RESIDENTIAL AND LEISUREDEVELOPMENT INCLUDING HOUSING MARINA BOAT YARD VISITORSCENTRE NATURE CONSERVATION ZONES AND HOTEL WITH SUPPORTINGCOMMUNITY FACILITIES AND SEWAGE TREATMENT PLANT AT THE FORMERFABRICATION YARD WHITENESS ARDERSIERMORAY FIRTH SPECIAL AREA OF CONSERVATION (SAC)INNER MORAY FIRTH SPECIAL PROTECTION AREA (SPA)INNER MORAY FIRTH RAMSAR SITEWHITENESS HEAD SITE OF SPECIAL SCIENTIFIC INTEREST (SSSI)

I am writing with respect to the letter dated 9 November 2006 from Stewart Fulton ofthe Whiteness Property Company Limited regarding the above proposal Foravoidance of doubt a copy of this letter is attached

The letter was written as a result of SNHs formal response to the outline planningapplication dated 31 October 2006 which inter alia objected to the proposedde(elopment in relation to the Moray Firth SAC (bottlenose dolphin interest) on thegrounds that a 500-berth marina will have an adverse impact on the integrity of thedolphin population The SNH response also objected in relation to EuropeanProtected Species on the grounds that the marina will have an adverse impact on thefavourable conservation status of dolphin and porpoise populations

The letter from Stewart Fulton also followed a meeting between The HighlandCouncil Whiteness Property Company Limited and Scottish Natural Heritage on 7November 2006 to discuss the marine mitigation measures already proposed by theapplicant and how these could be underpinned by robust legal mechanisms

SNH POSITION

1

middot a) a Section 75 Planning Agreement that binds the Whiteness PropertyCompany Limited and the Harbour Authority to mitigation measures that willeffectively avoid any adverse impact on a) the integrity of the Moray Firth SACbottlenose dolphin interest and b) the favourable conservation status ofbottlenose dolphin and harbour porpoise The Section 75 Agreement mustinclude provisions to put in place marina mooring leases a sea ranger amarine chart a research programme and a monitoring scheme to confirm thatthe mitigation measures are working effectively Furthermore the Agreementshould restrict the number of boats allowed to use the marina to a levelagreed by The Highland Council in consultation with SNH Boat numbersmust not be allowed to increase unless monitoring demonstrates that such anincrease would not have an adverse impact on the integrity of the SAC TheSection 75 Planning Agreement must be agreed with The Highland Counciland SNH

b)

Although our position has changed in relation to the Moray Firth SAC and EuropeanProtected Species our position in relation to all other aspects of the natural heritageremain as described in our letter to The Highland Council dated 31 October 2006

If you have any questions on the content of this letter then please contact BenLeyshon (benlevshonsnhQovuk) at this office in the first instance I would begrateful if you could let us know of your Councils decision in due course or of anyfurther changes to the proposal that would be relevant to our interests

As stated in our letter of 31 October 2006 you are respectfully reminded of therequirement to notify the Scottish Ministers if your Council is minded to approveplanning consent against SNHs advice in this case

Yours sincerely

GEORGE HOGGArea Manager - East Highlandemail QeorQehoQQsnhQovuk

2

We note that SEPA have objected to the proposal on a number of grounds includingthe provision for foul drainage SEPA states that further work is required in orderfor SEPA to be assured that the proposals are environmentally acceptable SNHshares these concerns and we will need to be assured by SEPA thatwastewater provision at the site will not adversely affect the designatedfeatures of interest If this assurance cannot be given then SNH will object towastewater provision as part of this application and to any future applicationmade under the Controlled Activities Regulations 2006

16

Annex B

Whiteness - wader and wildfowl counts - Winter season 20052006

FOliowing our discussions with SNH yesterday 19th September I have spoken todaywith the Webs count co-ordinator for the Moray Firth Dave Butterfield at the RSPBOffice in Inverness He tells me that the four official count dates for the whole firthare 16th October 4th December 15th January and 1ih February I have agreed withhim that I will carry out those counts at Whiteness in place of the previous countersas part of the over all Firth monitoring programme

In order to provide sufficient detail for the EA as agreed with SNH we require to carryout a more detailed survey with extra count dates which require to cover the low tidedistribution of birds and locations of high tide roosts as well as the total numbers foreach species

I recommend that I carry out the following counts - approximate dates (in very badweather conditions additional counts may be delayed by a day) which will cover thetidal span from low to high tide or vice versa depending on timing of high tide

Date

22 September2 October16 OCTOBER30 October7 November21 November4 DECEMBER19 pecember

1352

High Tide Time

1604 hours12481221103415271525

1433

High tide height

45 metres4548424341

4744

The 2006 main counts are 15th JANUARY and 12th FEBRUARY and the furthermonthly count dates are 12 March 9 April 14 May 11 June 16 July 13 August and17 September

Depending on the examination of data collected September to December it isprobable we will need additional count dates between these days for this first winterseason The counts will also cover seaducks outside the Harbour and on the RiffBank but this is only attainable by telescope in good weather The vantage point isthe high dune

The output for the 8 main counts to end of year will beSpecies totals on each dateLocation of roostsDistribution maps for species on tidal areas at low and mid tideDisturbance distances (probably done on other casual dates)Please let me know what you think

Roy Dennis 20 Sep 2006

17

The Highland CouncilPlanning amp DevelopmentGlenurquhart RoadINVERNESSIV3 5NX

For the attention of David Mudie

Dear Mr Mudie

Our ref CNSDCHIIIVABPOPPYour ref 05012940UTIN DMCC

15 November 2006

TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997ENVIRONMENTAL IMPACT ASSESSMENT (SCOTLAND) REGULATIONS 1999OUTLINE PLANNING APPLICATION FOR RESIDENTIAL AND LEISUREDEVELOPMENT INCLUDING HOUSING MARINA BOAT YARD VISITORSCENTRE NATURE CONSERVATION ZONES AND HOTEL WITH SUPPORTINGCOMMUNITY FACILITIES AND SEWAGE TREATMENT PLANT AT THE FORMERFABRICATION YARD WHITENESS ARDERSIERMORAY FIRTH SPECIAL AREA OF CONSERVATION (SAC)INNER MORAY FIRTH SPECIAL PROTECTION AREA (SPA)INNER MORAY FIRTH RAMSAR SITEWHITENESS HEAD SITE OF SPECIAL SCIENTIFIC INTEREST (SSSI)

I am writing with respect to the letter dated 9 November 2006 from Stewart Fulton ofthe Whiteness Property Company Limited regarding the above proposal Foravoidance of doubt a copy of this letter is attached

The letter was written as a result of SNHs formal response to the outline planningapplication dated 31 October 2006 which inter alia objected to the proposedde(elopment in relation to the Moray Firth SAC (bottlenose dolphin interest) on thegrounds that a 500-berth marina will have an adverse impact on the integrity of thedolphin population The SNH response also objected in relation to EuropeanProtected Species on the grounds that the marina will have an adverse impact on thefavourable conservation status of dolphin and porpoise populations

The letter from Stewart Fulton also followed a meeting between The HighlandCouncil Whiteness Property Company Limited and Scottish Natural Heritage on 7November 2006 to discuss the marine mitigation measures already proposed by theapplicant and how these could be underpinned by robust legal mechanisms

SNH POSITION

1

middot a) a Section 75 Planning Agreement that binds the Whiteness PropertyCompany Limited and the Harbour Authority to mitigation measures that willeffectively avoid any adverse impact on a) the integrity of the Moray Firth SACbottlenose dolphin interest and b) the favourable conservation status ofbottlenose dolphin and harbour porpoise The Section 75 Agreement mustinclude provisions to put in place marina mooring leases a sea ranger amarine chart a research programme and a monitoring scheme to confirm thatthe mitigation measures are working effectively Furthermore the Agreementshould restrict the number of boats allowed to use the marina to a levelagreed by The Highland Council in consultation with SNH Boat numbersmust not be allowed to increase unless monitoring demonstrates that such anincrease would not have an adverse impact on the integrity of the SAC TheSection 75 Planning Agreement must be agreed with The Highland Counciland SNH

b)

Although our position has changed in relation to the Moray Firth SAC and EuropeanProtected Species our position in relation to all other aspects of the natural heritageremain as described in our letter to The Highland Council dated 31 October 2006

If you have any questions on the content of this letter then please contact BenLeyshon (benlevshonsnhQovuk) at this office in the first instance I would begrateful if you could let us know of your Councils decision in due course or of anyfurther changes to the proposal that would be relevant to our interests

As stated in our letter of 31 October 2006 you are respectfully reminded of therequirement to notify the Scottish Ministers if your Council is minded to approveplanning consent against SNHs advice in this case

Yours sincerely

GEORGE HOGGArea Manager - East Highlandemail QeorQehoQQsnhQovuk

2

Annex B

Whiteness - wader and wildfowl counts - Winter season 20052006

FOliowing our discussions with SNH yesterday 19th September I have spoken todaywith the Webs count co-ordinator for the Moray Firth Dave Butterfield at the RSPBOffice in Inverness He tells me that the four official count dates for the whole firthare 16th October 4th December 15th January and 1ih February I have agreed withhim that I will carry out those counts at Whiteness in place of the previous countersas part of the over all Firth monitoring programme

In order to provide sufficient detail for the EA as agreed with SNH we require to carryout a more detailed survey with extra count dates which require to cover the low tidedistribution of birds and locations of high tide roosts as well as the total numbers foreach species

I recommend that I carry out the following counts - approximate dates (in very badweather conditions additional counts may be delayed by a day) which will cover thetidal span from low to high tide or vice versa depending on timing of high tide

Date

22 September2 October16 OCTOBER30 October7 November21 November4 DECEMBER19 pecember

1352

High Tide Time

1604 hours12481221103415271525

1433

High tide height

45 metres4548424341

4744

The 2006 main counts are 15th JANUARY and 12th FEBRUARY and the furthermonthly count dates are 12 March 9 April 14 May 11 June 16 July 13 August and17 September

Depending on the examination of data collected September to December it isprobable we will need additional count dates between these days for this first winterseason The counts will also cover seaducks outside the Harbour and on the RiffBank but this is only attainable by telescope in good weather The vantage point isthe high dune

The output for the 8 main counts to end of year will beSpecies totals on each dateLocation of roostsDistribution maps for species on tidal areas at low and mid tideDisturbance distances (probably done on other casual dates)Please let me know what you think

Roy Dennis 20 Sep 2006

17

The Highland CouncilPlanning amp DevelopmentGlenurquhart RoadINVERNESSIV3 5NX

For the attention of David Mudie

Dear Mr Mudie

Our ref CNSDCHIIIVABPOPPYour ref 05012940UTIN DMCC

15 November 2006

TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997ENVIRONMENTAL IMPACT ASSESSMENT (SCOTLAND) REGULATIONS 1999OUTLINE PLANNING APPLICATION FOR RESIDENTIAL AND LEISUREDEVELOPMENT INCLUDING HOUSING MARINA BOAT YARD VISITORSCENTRE NATURE CONSERVATION ZONES AND HOTEL WITH SUPPORTINGCOMMUNITY FACILITIES AND SEWAGE TREATMENT PLANT AT THE FORMERFABRICATION YARD WHITENESS ARDERSIERMORAY FIRTH SPECIAL AREA OF CONSERVATION (SAC)INNER MORAY FIRTH SPECIAL PROTECTION AREA (SPA)INNER MORAY FIRTH RAMSAR SITEWHITENESS HEAD SITE OF SPECIAL SCIENTIFIC INTEREST (SSSI)

I am writing with respect to the letter dated 9 November 2006 from Stewart Fulton ofthe Whiteness Property Company Limited regarding the above proposal Foravoidance of doubt a copy of this letter is attached

The letter was written as a result of SNHs formal response to the outline planningapplication dated 31 October 2006 which inter alia objected to the proposedde(elopment in relation to the Moray Firth SAC (bottlenose dolphin interest) on thegrounds that a 500-berth marina will have an adverse impact on the integrity of thedolphin population The SNH response also objected in relation to EuropeanProtected Species on the grounds that the marina will have an adverse impact on thefavourable conservation status of dolphin and porpoise populations

The letter from Stewart Fulton also followed a meeting between The HighlandCouncil Whiteness Property Company Limited and Scottish Natural Heritage on 7November 2006 to discuss the marine mitigation measures already proposed by theapplicant and how these could be underpinned by robust legal mechanisms

SNH POSITION

1

middot a) a Section 75 Planning Agreement that binds the Whiteness PropertyCompany Limited and the Harbour Authority to mitigation measures that willeffectively avoid any adverse impact on a) the integrity of the Moray Firth SACbottlenose dolphin interest and b) the favourable conservation status ofbottlenose dolphin and harbour porpoise The Section 75 Agreement mustinclude provisions to put in place marina mooring leases a sea ranger amarine chart a research programme and a monitoring scheme to confirm thatthe mitigation measures are working effectively Furthermore the Agreementshould restrict the number of boats allowed to use the marina to a levelagreed by The Highland Council in consultation with SNH Boat numbersmust not be allowed to increase unless monitoring demonstrates that such anincrease would not have an adverse impact on the integrity of the SAC TheSection 75 Planning Agreement must be agreed with The Highland Counciland SNH

b)

Although our position has changed in relation to the Moray Firth SAC and EuropeanProtected Species our position in relation to all other aspects of the natural heritageremain as described in our letter to The Highland Council dated 31 October 2006

If you have any questions on the content of this letter then please contact BenLeyshon (benlevshonsnhQovuk) at this office in the first instance I would begrateful if you could let us know of your Councils decision in due course or of anyfurther changes to the proposal that would be relevant to our interests

As stated in our letter of 31 October 2006 you are respectfully reminded of therequirement to notify the Scottish Ministers if your Council is minded to approveplanning consent against SNHs advice in this case

Yours sincerely

GEORGE HOGGArea Manager - East Highlandemail QeorQehoQQsnhQovuk

2

The Highland CouncilPlanning amp DevelopmentGlenurquhart RoadINVERNESSIV3 5NX

For the attention of David Mudie

Dear Mr Mudie

Our ref CNSDCHIIIVABPOPPYour ref 05012940UTIN DMCC

15 November 2006

TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997ENVIRONMENTAL IMPACT ASSESSMENT (SCOTLAND) REGULATIONS 1999OUTLINE PLANNING APPLICATION FOR RESIDENTIAL AND LEISUREDEVELOPMENT INCLUDING HOUSING MARINA BOAT YARD VISITORSCENTRE NATURE CONSERVATION ZONES AND HOTEL WITH SUPPORTINGCOMMUNITY FACILITIES AND SEWAGE TREATMENT PLANT AT THE FORMERFABRICATION YARD WHITENESS ARDERSIERMORAY FIRTH SPECIAL AREA OF CONSERVATION (SAC)INNER MORAY FIRTH SPECIAL PROTECTION AREA (SPA)INNER MORAY FIRTH RAMSAR SITEWHITENESS HEAD SITE OF SPECIAL SCIENTIFIC INTEREST (SSSI)

I am writing with respect to the letter dated 9 November 2006 from Stewart Fulton ofthe Whiteness Property Company Limited regarding the above proposal Foravoidance of doubt a copy of this letter is attached

The letter was written as a result of SNHs formal response to the outline planningapplication dated 31 October 2006 which inter alia objected to the proposedde(elopment in relation to the Moray Firth SAC (bottlenose dolphin interest) on thegrounds that a 500-berth marina will have an adverse impact on the integrity of thedolphin population The SNH response also objected in relation to EuropeanProtected Species on the grounds that the marina will have an adverse impact on thefavourable conservation status of dolphin and porpoise populations

The letter from Stewart Fulton also followed a meeting between The HighlandCouncil Whiteness Property Company Limited and Scottish Natural Heritage on 7November 2006 to discuss the marine mitigation measures already proposed by theapplicant and how these could be underpinned by robust legal mechanisms

SNH POSITION

1

middot a) a Section 75 Planning Agreement that binds the Whiteness PropertyCompany Limited and the Harbour Authority to mitigation measures that willeffectively avoid any adverse impact on a) the integrity of the Moray Firth SACbottlenose dolphin interest and b) the favourable conservation status ofbottlenose dolphin and harbour porpoise The Section 75 Agreement mustinclude provisions to put in place marina mooring leases a sea ranger amarine chart a research programme and a monitoring scheme to confirm thatthe mitigation measures are working effectively Furthermore the Agreementshould restrict the number of boats allowed to use the marina to a levelagreed by The Highland Council in consultation with SNH Boat numbersmust not be allowed to increase unless monitoring demonstrates that such anincrease would not have an adverse impact on the integrity of the SAC TheSection 75 Planning Agreement must be agreed with The Highland Counciland SNH

b)

Although our position has changed in relation to the Moray Firth SAC and EuropeanProtected Species our position in relation to all other aspects of the natural heritageremain as described in our letter to The Highland Council dated 31 October 2006

If you have any questions on the content of this letter then please contact BenLeyshon (benlevshonsnhQovuk) at this office in the first instance I would begrateful if you could let us know of your Councils decision in due course or of anyfurther changes to the proposal that would be relevant to our interests

As stated in our letter of 31 October 2006 you are respectfully reminded of therequirement to notify the Scottish Ministers if your Council is minded to approveplanning consent against SNHs advice in this case

Yours sincerely

GEORGE HOGGArea Manager - East Highlandemail QeorQehoQQsnhQovuk

2

middot a) a Section 75 Planning Agreement that binds the Whiteness PropertyCompany Limited and the Harbour Authority to mitigation measures that willeffectively avoid any adverse impact on a) the integrity of the Moray Firth SACbottlenose dolphin interest and b) the favourable conservation status ofbottlenose dolphin and harbour porpoise The Section 75 Agreement mustinclude provisions to put in place marina mooring leases a sea ranger amarine chart a research programme and a monitoring scheme to confirm thatthe mitigation measures are working effectively Furthermore the Agreementshould restrict the number of boats allowed to use the marina to a levelagreed by The Highland Council in consultation with SNH Boat numbersmust not be allowed to increase unless monitoring demonstrates that such anincrease would not have an adverse impact on the integrity of the SAC TheSection 75 Planning Agreement must be agreed with The Highland Counciland SNH

b)

Although our position has changed in relation to the Moray Firth SAC and EuropeanProtected Species our position in relation to all other aspects of the natural heritageremain as described in our letter to The Highland Council dated 31 October 2006

If you have any questions on the content of this letter then please contact BenLeyshon (benlevshonsnhQovuk) at this office in the first instance I would begrateful if you could let us know of your Councils decision in due course or of anyfurther changes to the proposal that would be relevant to our interests

As stated in our letter of 31 October 2006 you are respectfully reminded of therequirement to notify the Scottish Ministers if your Council is minded to approveplanning consent against SNHs advice in this case

Yours sincerely

GEORGE HOGGArea Manager - East Highlandemail QeorQehoQQsnhQovuk

2