Shafted

By the end of September 2019, the contractor had removed enough floodwater to inspect a collapsing refuge and adjacent bulge in the stone lining close to No.2 Shaft, 399 yards from the tunnel’s south entrance. However, nature intervened before remedial work could be undertaken. Six days of relentless torrential rain across the district, coupled with the shutting-down of AmcoGiffen’s pumping operation due to fears it could cause the beck to overtop, resulted in the floodwater quickly returning to its peak level. The contractor’s workforce retreated, taking machinery and equipment with them.

National Highways alleged that the influx had been caused by the landowner deliberately diverting water from a different beck into the tunnel. When bad things happen, the company instinctively blames others, rather than owning its failures. But the Environment Agency found no evidence to support NH’s claim. The flood had, in fact, been fed via five ventilation shafts and through the lining - as had been the case for 140+ years - driven by huge amounts of groundwater which had been recharged by the rainfall.

NH and the DfT had previously considered what they might do if the temporary pumping provision was defeated. The influx was used to justify a course of action that provoked considerable anger and controversy as it jeopardised the greenway proposal. Indeed, it was perceived by some as a deliberate act of harm whereby NH was ‘getting its own back’ for the difficulties caused by forfeiture of the lease.

The Department sought counsel’s opinion on options for an alternative approach to stabilising No.2 Shaft, with the decision being taken to infill it using hundreds of tonnes of stone tipped 324 feet from the surface. A letter was sent to Bradford Council’s Chief Executive on 21 October 2019, notifying them that the work had begun under Class Q permitted development rights.

What's required?

Class Q facilitates “development by the Crown relating to an emergency”, with ‘emergency’ defined as “an event or situation which threatens [present tense] serious damage to…human welfare…[or] the environment…”, whilst ‘human welfare’ is only considered to be in jeopardy if potential death, injury, homelessness, damage to property or disruption to vital systems might result. Within six months of work starting (this period was increased to 12 months in December 2020), “any use of that land for a purpose of Class Q ceases and any buildings, plant, machinery, structures and erections permitted by Class Q is removed” and “the land is restored to its condition before the development took place, or to such other state as may be agreed in writing between the local planning authority and the developer”.

In other words, Class Q only applies legitimately if an emergency has been identified and the associated works are temporary by default. Neither was the case at Queensbury.

The collapsing refuge and bulge had been known about for years and a remediation scheme was designed prior to November 2012, but never implemented. There was no evidence that the defects had worsened to any extant, contrary to the contents of a ridiculous email sent by a member of the contractor’s management team. Furthermore, the lining of No.2 Shaft was built in two separate parts, with an exposed 12-foot section of bedrock between them. Even if the tunnel lining had completely failed and there was insufficient friction to hold up the 185-foot column of brickwork above it, there was no meaningful risk of disturbance at ground level as the remaining 127-foot portion was independently supported by a rock shelf.

National Highways pushed out a media statement describing how “Emergency planning powers have been brought in to ensure urgent safety work can be carried out at Queensbury Tunnel in West Yorkshire. Tunnel owners, the Department for Transport, are using the powers for work to infill one of the air shafts because of the increasingly deteriorating condition of a section of the structure and fears it could collapse”. The “fears”, however, had no reasonable foundation.

A Planning Contravention Notice was issued by Bradford Council, whilst multiple emails and letters were exchanged with the Department for Transport and its lawyers. But it was all to no avail. The infilling was completed and remains today as unauthorised development, the Council having provided no written consent for retention beyond April 2020, the time by which it should have been removed.