NYCC – Norton level crossing

NEWS: Email, dated 18 May 2019, from Cllr. Simon Thackray (Ryedale District Council) to Cllr. Don Mackenzie, Executive Member for Transport on North Yorkshire County Council (NYCC). This email also consitutes my response to the NYCC consultation on the proposed 7.5 tonne HGV restriction on Norton level crossing.

18 May 2019

Dear Cllr. Don Mackenzie,

Firstly, I would like to introduce myself to you as the newly elected member for the Sinnington ward of Ryedale District Council.

Re ‘NYCC consultation into the proposed HGV weight restriction on Norton Level Crossing’:

I am writing to you as Executive Member for Transport of North Yorkshire County Council (NYCC) to express my concerns regarding the way in which NYCC is consulting the public about the experimental 7.5 tonne HGV restriction over Norton level crossing (a complementary measure of the 2012 Brambling Fields junction upgrade scheme, and Action AP2a of the Malton Air Quality Action Plan 2012) and your comments in the Gazette and Herald this week urging the public to participate.

The consultation states,”We would like to hear your views on whether or not you consider the experimental order should be made permanent?” but, bizarrely, does not provide members of the public with any technical data or evidence on which to base their response. NYCC has failed to inform the public of the most important facts.

NYCC is encouraging members of the public to comment on an 18 month ‘experimental’ HGV restriction, without providing them with any of the outcomes of that experiment. Importantly, NYCC has failed to provide any evidence of the impact of the HGV restriction on air quality, which is the primary purpose of the restriction! (Notwithstanding the fact that the 18 month experiment still has several months to run…).

I have taken a keen personal interest in the air quality issues in Malton and Norton over the past five years and tracked the progress of the Malton Air Quality Action Plan 2012 and its impact on the concentration of Nitrogen Dioxide in the Malton AQMA. I was/am a vocal supporter of the 7.5 tonne HGV restriction over Norton level crossing, now in force, and have spoken at numerous meetings of both North Yorkshire County Council and Ryedale District Council calling for the restriction to be introduced.

As you know, the restriction finally came into force (on paper at least) in February 2018 but due to the lack of signage at the time, and absence of adequate policing, the restriction-proper took many more weeks to splutter into gear. Meanwhile, the lack of policing remains a concern, with many HGV vehicles (drivers) still flouting the law.

Nevertheless, the early signs of the impact of the restriction (when assessing the available NO2 monitoring data from March to end December 2018), as outlined by Mr Gary Housden, Head of Planning at RDC, suggests a significant improvement in the air quality on Castlegate, Malton, which is good news!

Additionally, I have collated and studied the air quality data for the entire Malton AQMA since 2014 (the past five years) and, whilst I am cautious not to jump to conclusions, the HGV restriction appears to have already had a significant positive impact on the concentration of Nitrogen Dioxide in Castlegate and several other roads in the Malton AQMA. This improvement was to be expected because it is a well established fact that HGV vehicles are responsible for a large percentage of the NO2 in the breathable air.

Nitrogen Dioxide is carcinogenic – there is NO safe concentration of NO2 – and the onus and legal obligation falls on the council(s) to reduce the concentration of NO2 in the Malton AQMA to within the legally binding limit. This appears to have occurred which is good news for the health of the people of Malton and Norton and visitors alike.

Having (potentially) slain the ‘NO2 dragon’, there is a residual ‘sting in the tail’:

Directive 2008/50/EC states:

(9) “Air quality status should be maintained where it is good, or improved.”

(Article 2 – Definitions – For the purpose of this directive: 5. ‘limit value’ shall mean a level fixed on the basis of scientific knowledge, with the aim of avoiding, preventing or reducing harmful effects on human health and/or the environment as a whole, to be attained within a given period and not to be exceeded once attained;)

The Institute of Environmental Sciences – Air quality and planning law (2013) repeats the wording of the Air Quality Directive 2008 in respect of legally binding limit values:

“These are not to be exceeded once attained.”

i.e. There is no going back.

Having secured compliance with the limit values for NO2, it is illegal to allow the air quality in Malton and Norton to deteriorate, and this fact has huge implications (both financially and legally) for both councils, and any plans that may exist to allocate housing development land in Malton and/or Norton (including land contained in the sites allocation document under review), due to the extra traffic movements that these developments will generate. Butcher Corner is already over-capacity and therefore to permit HGV vehicles to re-enter the Malton AQMA via the Norton level crossing would be to risk the level of NO2 rising again and thereby risk seriously harming the health of the public.

Furthermore, senior officers of NYCC and RDC were aware, in 2012, that the HGV restriction over Norton level crossing would cause problems.

Both councils knew, from the outset, that the HGV restriction (Action AP2a of the MAQAP 2012) would, as sure as night follows day, cause HGV vehicles to re-route onto unsuitable town centre roads and put pedestrians, especially young children, at risk of harm. However, despite possessing full knowledge of the danger, this defect was edited into the genome of the Brambling Fields junction upgrade scheme and passed over. It was an easy problem to overlook and ignore whilst it was only words on paper.

The Julian Rudd prediction, made at the meeting of the Ryedale District Council Air Quality Steering Group on 16 January 2012, that HGVs would re-route onto unsuitable roads in Malton, is now a reality, and the consequences of relying on the HGV restriction alone to achieve air quality improvements has proved to be shortsighted in the extreme. The world has woken up to the dangers of air pollution and the law is now far more robust.

Julian Rudd, former Head of Housing and Economic Development of RDC, said:

”The improvements in Brambling Fields doesn’t sort out the access issues at Musley Bank or Broughton Road.”

“If HDVs [HGVs] are directed from the town centre there may need to be a restriction on HDVs [HGVs] on Highfield Road/Pasture Lane.”

Mr Rudd, together with other officers of NYCC and RDC, including Mr Richard Marr of NYCC, knew, back in 2012, that the dual problems caused by HGV traffic would not be solved by the Brambling Fields junction alone, and I suggest that both councils should now work together to construct new four-way access roundabouts onto the A64 at Musley Bank and Broughton Road, Malton, in order to remove HGV traffic from the Malton AQMA and from unsuitable town centre roads.

I believe two new roundabouts are required, and that that is the only available option left to the councils in order to maintain compliance with air quality law, and to restore pedestrian safety, in particular to protect small children from harm.

(“Wow! That will be expensive!”, I hear you cry!) See below:

In Para 76 of his High Court judgement dated 21 February 2018 (Case No. CO/4922/2017), Mr Justice Garnham repeated his statement from his 2016 judgement about the implications of cost in respect of the measures that may or may not be required to achieve compliance with air quality law:

“I reject any suggestion that the state can have any regard to cost in fixing the target date for compliance or in determining the route by which compliance can be achieved where one route produces results quicker than another. In those respects the determining consideration has to be the efficacy of the measure in question and not their cost.”

It is obviously up to both councils to decide how they will maintain compliance with air quality law, and, at the same time, resolve the problem of HGV traffic re-routing onto unsuitable roads. There are clearly overlapping considerations here in terms of pedestrian safety as well as (not in place of) air quality. It is no longer acceptable to put off the evil day. That day has arrived.

On Thursday 2nd May the case of 13 year old schoolgirl Ella Kissi-Debrah, who died from an asthma attack thought to be linked to illegal levels of air pollution near her south London home, was heard in the High Court.

The Guardian reports:

“Ruling with two other judges that the conclusions of the original inquest in 2014 should be quashed, Mark Lucraft QC said: “In our judgment, the discovery of new evidence makes it necessary in the interests of justice that a fresh inquest be held.”
He said the family’s lawyers had argued the new evidence demonstrated there was an “arguable failure” by the state to comply with its duties under the European convention on human rights, which protects the right to life.

If air pollution is now cited as a contributory cause of death, it could open the door to more cases against the authorities for failing to clean up the UK’s air.”

I am sure you will agree with me that the tragic case of Ella Kissi-Debrah is a timely reminder to NYCC and RDC of its legal obligation and duty of care to the public in respect of maintaining and/or improving air quality.

I look forward to discussing the above matters with you in the near future.

I will, of course, respond to the NYCC consultation and include the content of this email.

Yours sincerely,

Simon

Copied to:
Cllr. Michael Cleary, Chairman, Ryedale District Council
Cllr. Janet Frank, Deputy Chairman, Ryedale District Council
Cllr. Keane Duncan, Leader, Ryedale District Council, Member, North Yorkshire County Council
Stacey Burlet, Chief Executive, Ryedale District Council
Anthony Winship, Solicitor, Ryedale District Council
Cllr. Stephen Arnold, Deputy Leader, Ryedale District Council
Cllr. Caroline Goodrick, Chairman, Planning Committee, Ryedale District Council, Member, North Yorkshire County Council
Cllr. John Windress, Deputy Chairman, Planning Committee, Ryedale District Council
Mr. Gary Housden, Head of Panning, Ryedale District Council
Mrs. Jill Thompson, Senior Planning Officer, Ryedale District Council
NB: Read a transcript of the discussion between Mrs Thompson and the government appointed Planning Inspector Mrs Caroline Mulloy, at the public hearing session.
Mr. Robert Robinson, Environmental Health Officer, Ryedale District Council
Richard Flinton, Chief Executive, North Yorkshire County Council
Cllr. Carl Les, Leader, North Yorkshire County Council
David Bowe, Corporate Director Business and Environmental Services, North Yorkshire County Council
Richard Marr, Highways Manager, North Yorkshire County Council

Tony Galloway, Deputy Chief Executive, Ryedale District Council
Anton Hodge, Chief Finance Officer (s151), Ryedale District Council
Beckie Bennett, Head of Environment, Streetscene and Facilities, Ryedale District Council
Cllr. Gareth Dadd, North Yorkshire County Council
Cllr. Patrick Mulligan, North Yorkshire County Council
Cllr. David Chance, North Yorkshire County Council
Cllr. Michael Harrison, North Yorkshire County Council
Cllr. Janet Sanderson, North Yorkshire County Council
Cllr. Greg White, North Yorkshire County Council
Cllr. Andrew Lee, North Yorkshire County Council
Cllr. Caroline Dickinson, North Yorkshire County Council

Kevin Hollinrake MP, member of Parliament for Thirsk and Malton

Cllr. David Cussons, Ryedale District Council
Cllr. Ray King, Ryedale District Council
Cllr. John Raper, Ryedale District Council
Cllr. Eric Hope, Ryedale District Council
Cllr. James Bailey, Ryedale District Council
Cllr. John Clark, Ryedale District Council
Cllr. Carrie-Anne Brackstone, Ryedale District Council
Cllr. Claire Docwra, Ryedale District Council
Cllr. Susan Graham, Ryedale District Council
Cllr. John Mackenzie, Ryedale District Council
Cllr. Tracie Middleton, Ryedale District Council
Cllr. William Oxley, Ryedale District Council
Cllr. Dinah Keal, Ryedale District Council
Cllr. Joy Andrews, Ryedale District Council
Cllr. Steve Mason, Ryedale District Council
Cllr. Mike Potter, Ryedale District Council
Cllr. John Clark, Ryedale District Council
Cllr. Lindsay Burr, Ryedale District Council
Cllr. Paul Andrews, Ryedale District Council
Cllr. Clive Wass, Ryedale District Council
Cllr. Tony Riby, Ryedale District Council
Cllr. Angela Raine, Ryedale District Council
Cllr. Tony Riby, Ryedale District Council
Cllr. C. N. Delaney, Ryedale District Council
Cllr. N. Garbutt Moore, Ryedale District Council
Malton Town Council
Norton Town Council
Ed Jowitt, Malton Town Councillor
Ian Conlan, Malton resident
Jason Aldrich, Malton resident
Dr. Liz Garthwaite, Malton resident
Paul Tate-Smith, Tate-Smith Limite

Jules Bellerby, BBC Radio York
Jonathan Cowap, BBC Radio York
Cathy Killick, BBC Look North
Carla Fowler, BBC Look North

Others…