251204pre-action_protocol_letter_-_grs_to_mmo
Differences
This shows you the differences between two versions of the page.
| Both sides previous revisionPrevious revisionNext revision | Previous revision | ||
| 251204pre-action_protocol_letter_-_grs_to_mmo [2026/04/04 15:06] – nefcadmin | 251204pre-action_protocol_letter_-_grs_to_mmo [2026/04/30 06:21] (current) – old revision restored (2026/04/29 09:58) nefcadmin | ||
|---|---|---|---|
| Line 14: | Line 14: | ||
| **__JUDICIAL REVIEW PRE-ACTION PROTOCOL LETTER__** | **__JUDICIAL REVIEW PRE-ACTION PROTOCOL LETTER__** | ||
| + | |||
| Dear Sir or Madam, | Dear Sir or Madam, | ||
| Line 21: | Line 22: | ||
| This is a pre-action letter under the Judicial Review Pre-Action Protocol in support of an application for permission to apply for judicial review of the Marine Management Organisation’s (“**MMO**”) decision to grant a licence (L/ | This is a pre-action letter under the Judicial Review Pre-Action Protocol in support of an application for permission to apply for judicial review of the Marine Management Organisation’s (“**MMO**”) decision to grant a licence (L/ | ||
| - | **The Claimant** | + | ===== The Claimant |
| 1 The proposed claimant is Dr Simon Gibbon (“**the Claimant**”). | 1 The proposed claimant is Dr Simon Gibbon (“**the Claimant**”). | ||
| - | **The Defendant** | + | ===== The Defendant |
| 2 The proposed defendant is the MMO (“**the Defendant**”). | 2 The proposed defendant is the MMO (“**the Defendant**”). | ||
| - | **Interested Party** | + | ===== Interested Party ===== |
| 3 The interested party is the PD Teesport Limited (“**the Interested Party**”), | 3 The interested party is the PD Teesport Limited (“**the Interested Party**”), | ||
| + | |||
| 4 Pursuant to section 16 of the Tees and Hartlepool Port Authority Act 1966 and paragraph 7 of the Teesport Harbour Revision Order 2008, the Interested Party has the power to dredge the bed and foreshore of the waters of the Harbour or in or near any approach to the Harbour. In formulating or considering any proposals for such dredging, the Interested Party is required under section 48A of the Harbours Act 1964 to have regard to (among other things) the conservation of flora and fauna. | 4 Pursuant to section 16 of the Tees and Hartlepool Port Authority Act 1966 and paragraph 7 of the Teesport Harbour Revision Order 2008, the Interested Party has the power to dredge the bed and foreshore of the waters of the Harbour or in or near any approach to the Harbour. In formulating or considering any proposals for such dredging, the Interested Party is required under section 48A of the Harbours Act 1964 to have regard to (among other things) the conservation of flora and fauna. | ||
| 5 The Interested Party does not have statutory authority to dispose of any dredged material at sea. To do that, the Interested Party requires a marine licence from the MMO. | 5 The Interested Party does not have statutory authority to dispose of any dredged material at sea. To do that, the Interested Party requires a marine licence from the MMO. | ||
| - | **The decision under challenge** | + | ===== The decision under challenge |
| 6 The decision under challenge is the decision of the Defendant of 5 November 2025 to grant a licence under Part 4 of the Marine and Coastal Access Act 2009 to the Interested Party to undertake the disposal of dredged material to Tees Bay A (TY160) (“**the Decision**”). | 6 The decision under challenge is the decision of the Defendant of 5 November 2025 to grant a licence under Part 4 of the Marine and Coastal Access Act 2009 to the Interested Party to undertake the disposal of dredged material to Tees Bay A (TY160) (“**the Decision**”). | ||
| - | **The legal and policy framework** | + | ===== The legal and policy framework |
| //The Defendant’s duties under the Marine and Coastal Access Act 2009// | //The Defendant’s duties under the Marine and Coastal Access Act 2009// | ||
| Line 70: | Line 72: | ||
| - Policy NE-WQ-1, which requires proposals that cause deterioration of water quality to demonstrate that they will, in order of preference: i) avoid, ii) minimise, and iii) mitigate deterioration of water quality in the marine environment. | - Policy NE-WQ-1, which requires proposals that cause deterioration of water quality to demonstrate that they will, in order of preference: i) avoid, ii) minimise, and iii) mitigate deterioration of water quality in the marine environment. | ||
| - | //Other statutory duties of the MMO// | + | ===== Other statutory duties of the MMO ===== |
| 14 Regulation 22 of the Waste (England and Wales) Regulations 2011 (‘**the 2011 Regulations**’) requires the MMO, acting on behalf of the Secretary of State, to discharge his functions under Part 4 of the 2009 Act for the purpose of ensuring that the waste hierarchy in article 4 of the Waste Framework Directive is applied to the generation of waste. Those functions include the power to determine an application and issue a marine licence under sections 69 and 71 of the 2009 Act. | 14 Regulation 22 of the Waste (England and Wales) Regulations 2011 (‘**the 2011 Regulations**’) requires the MMO, acting on behalf of the Secretary of State, to discharge his functions under Part 4 of the 2009 Act for the purpose of ensuring that the waste hierarchy in article 4 of the Waste Framework Directive is applied to the generation of waste. Those functions include the power to determine an application and issue a marine licence under sections 69 and 71 of the 2009 Act. | ||
| Line 80: | Line 82: | ||
| 17 Regulation 63 of the Conservation of Habitats and Species Regulations 2017 (‘**the Habitats Regulations**’) requires the MMO, as competent authority, before deciding to give any consent for a plan or project which is likely to have a significant effect on a European site to make an appropriate assessment of the implications of the plan or project and only to grant such consent if adverse effects on the integrity of the site can be ruled out on a precautionary basis (or if the criteria for a derogation is met). | 17 Regulation 63 of the Conservation of Habitats and Species Regulations 2017 (‘**the Habitats Regulations**’) requires the MMO, as competent authority, before deciding to give any consent for a plan or project which is likely to have a significant effect on a European site to make an appropriate assessment of the implications of the plan or project and only to grant such consent if adverse effects on the integrity of the site can be ruled out on a precautionary basis (or if the criteria for a derogation is met). | ||
| - | //MMO and OSPAR guidance on dredge sampling// | + | ===== MMO and OSPAR guidance on dredge sampling |
| 18 The MMO has issued guidance for the sampling required by those seeking marine licences for dredging and disposal activity in its document entitled “Marine licensing: Sediment Analysis”. It states: | 18 The MMO has issued guidance for the sampling required by those seeking marine licences for dredging and disposal activity in its document entitled “Marine licensing: Sediment Analysis”. It states: | ||
| Line 94: | Line 96: | ||
| 20 Section 5 of the Guidelines concerns ‘dredged material sampling’. | 20 Section 5 of the Guidelines concerns ‘dredged material sampling’. | ||
| - | //5. Dredged material sampling// | + | > //5. Dredged material sampling// |
| - | //5.1 Dredged material will require sampling and analysis (cf. Technical Annex I) to provide sufficient information for permitting purposes. Local conditions will dictate what information is relevant to a particular operation.// | + | >//5.1 Dredged material will require sampling and analysis (cf. Technical Annex I) to provide sufficient information for permitting purposes. Local conditions will dictate what information is relevant to a particular operation.// |
| - | //5.2 The location and depth of sampling should represent the horizontal and vertical extent of the area, and the quantity of material to be dredged. In many maintenance dredging campaigns, grab sampling will be sufficient. Sampling from dredged material within disposal vessels or barges is not advisable for permitting purposes.// | + | > //5.2 The location and depth of sampling should represent the horizontal and vertical extent of the area, and the quantity of material to be dredged. In many maintenance dredging campaigns, grab sampling will be sufficient. Sampling from dredged material within disposal vessels or barges is not advisable for permitting purposes.// |
| - | //5.3 Samples should provide a good spatial (surface) and vertical (depth) representation of the material to be dredged and should take account of the exchange characteristics of the area, i.e., more samples may be required in a low energy enclosed and semi-enclosed areas, and less in high energy environments such as open areas. The minimum number of separate sampling stations recommended to obtain representative results, assuming a reasonably uniform sediment distribution in the area to be dredged is as follows. The number of sample stations can also be determined on the basis of the size of the area to be dredged:// | + | > //5.3 Samples should provide a good spatial (surface) and vertical (depth) representation of the material to be dredged and should take account of the exchange characteristics of the area, i.e., more samples may be required in a low energy enclosed and semi-enclosed areas, and less in high energy environments such as open areas. The minimum number of separate sampling stations recommended to obtain representative results, assuming a reasonably uniform sediment distribution in the area to be dredged is as follows. The number of sample stations can also be determined on the basis of the size of the area to be dredged:// |
| |**Dredged Area (m2)** | |**Dredged Area (m2)** | ||
| Line 108: | Line 110: | ||
| |>100 000 | |>100 000 | ||
| - | //Where projected depth of dredging is significant, | + | > //Where projected depth of dredging is significant, |
| |//**Amount dredged (m< | |//**Amount dredged (m< | ||
| Line 117: | Line 119: | ||
| |//> | |//> | ||
| - | // | + | > // |
| - | //5.4 Normally, the samples from each sampling station and different depths in the sediment should be analysed separately. However, if previous analyses have shown that the sediment is clearly homogenous with respect to sediment texture and known contamination it is possible to analyse composite samples. OSPAR recommends no more than three adjacent sampling stations at a time be composited, and providing there are no distinctly different observable attributes (same colour, consistency, | + | > //5.4 Normally, the samples from each sampling station and different depths in the sediment should be analysed separately. However, if previous analyses have shown that the sediment is clearly homogenous with respect to sediment texture and known contamination it is possible to analyse composite samples. OSPAR recommends no more than three adjacent sampling stations at a time be composited, and providing there are no distinctly different observable attributes (same colour, consistency, |
| - | **The facts** | + | ===== The facts ===== |
| 21 The Tees Bay A site is located approximately 3 nautical miles offshore from the mouth of the Tees River. It lies within one nautical mile of the seaward boundary of the Teesmouth and Cleveland Coast SPA and Ramsar site, which overlaps with the Teesmouth and Cleveland Coast Site of Special Scientific Interest (SSSI). Both the SPA and the SSSI are in unfavourable condition, with significant parts of the SSSI in a condition of continual decline. | 21 The Tees Bay A site is located approximately 3 nautical miles offshore from the mouth of the Tees River. It lies within one nautical mile of the seaward boundary of the Teesmouth and Cleveland Coast SPA and Ramsar site, which overlaps with the Teesmouth and Cleveland Coast Site of Special Scientific Interest (SSSI). Both the SPA and the SSSI are in unfavourable condition, with significant parts of the SSSI in a condition of continual decline. | ||
| Line 128: | Line 130: | ||
| 23 The level of Pollutants across the benthic environment of the Harbour varies considerably, | 23 The level of Pollutants across the benthic environment of the Harbour varies considerably, | ||
| + | |||
| 24 The Interested Party’s current maintenance dredge disposal licence L/ | 24 The Interested Party’s current maintenance dredge disposal licence L/ | ||
| + | |||
| 25 The Baseline Report included (among other things): | 25 The Baseline Report included (among other things): | ||
| - An acknowledgement that certain sites within the Harbour were excluded from the existing licence for disposal on account of contamination: | - An acknowledgement that certain sites within the Harbour were excluded from the existing licence for disposal on account of contamination: | ||
| Line 137: | Line 141: | ||
| - An analysis of the impact of disposal on the achievement of good ecological status for water bodies regulated under the 2017 Regulations. | - An analysis of the impact of disposal on the achievement of good ecological status for water bodies regulated under the 2017 Regulations. | ||
| - An assessment of the likely impact of the proposed activity on the Teesmouth and Cleveland Coast SPA and Ramsar site. The assessment ruled out adverse impacts of the disposal of dredged material because “// | - An assessment of the likely impact of the proposed activity on the Teesmouth and Cleveland Coast SPA and Ramsar site. The assessment ruled out adverse impacts of the disposal of dredged material because “// | ||
| - | - The approach of the Baseline Report was to assume that maintenance dredging and the disposal of dredged material formed part of the baseline against which effects should be assessed. The apparent result was that the assessment did not compare the proposed activity against a “do nothing” activity, as is the standard approach to environmental impact assessment. Instead, it compared the impacts of the proposed activity against the impacts of the existing activity and assumed, without any substantial analysis, that the existing activity was acceptable by virtue of long-term occurrence and without regard to evidence of environmental harm, including evidence relating to the high mortality of seal pups. | ||
| - | - Statutory consultees made representations on the application. Natural England advised that the application was likely to have significant effects on Teesmouth and Cleveland Coast SPA and Ramsar sites and recommended that, if an appropriate assessment was carried out, it should include sediment sampling and analysis, with prohibition of disposal at sea of dredge arisings which are unsuitable for that purpose. | ||
| - | - The Proposed Claimant made representations as the lead author for NEMRG objecting to the application on the ground (among others) that it was not being assessed on a precautionary basis and, in particular, on the basis that the sediment quality analyses was insufficient and treated the samples as being homogeneous and coming from a river with predictable sediment quality. | ||
| - | **Proposed grounds | + | 26 The approach |
| - | //Ground 1: irrational | + | 27 Statutory consultees made representations on the application. Natural England advised that the application was likely to have significant effects on Teesmouth and Cleveland Coast SPA and Ramsar sites and recommended that, if an appropriate assessment was carried out, it should include sediment |
| - | - The Defendant accepts that the benthic environment of the Harbour is variably contaminated and shows little to no homogeneity. The Defendant also accepts that parts of the Harbour contain levels of Pollutants that are not safe for disposal at sea. The evidence shows that the SPA/Ramsar site and SSSI are both in unfavourable condition and the addition of pollutants is unlikely to support their recovery. There is also evidence that harbour seals are already adversely affected by the Pollutants. | + | 28 The Proposed Claimant made representations as the lead author for NEMRG objecting to the application on the ground (among others) that it was not being assessed on a precautionary basis and, in particular, on the basis that the sediment quality analyses was insufficient and treated the samples as being homogeneous and coming from a river with predictable sediment quality. |
| - | | + | |
| - | | + | ===== Proposed grounds of challenge ===== |
| - | | + | |
| - | | + | ==== Ground 1: irrational application of sampling guidance ==== |
| + | |||
| + | 29 The Defendant accepts that the benthic environment of the Harbour is variably contaminated and shows little to no homogeneity. The Defendant also accepts that parts of the Harbour contain levels of Pollutants that are not safe for disposal at sea. The evidence shows that the SPA/Ramsar site and SSSI are both in unfavourable condition and the addition of pollutants is unlikely to support their recovery. There is also evidence that harbour seals are already adversely affected by the Pollutants. | ||
| + | |||
| + | 30 That means that careful representative sampling of the dredged area is critical to minimise the possibility of harmful contamination of the marine waters of the marine strategy area, the water bodies regulated by the 2017 Regulations, | ||
| + | |||
| + | 31 The Defendant purports to apply the OSPAR Guidelines to ensure adequate sampling. In its letter to the Interested Party of 30 July 2024, the Defendant advised the Interested Party to take 31 samples from within the footprint of the proposed dredge area. It considered that //“whilst this could be considered slightly under the guidelines set by OSPAR, which recommends 30 sites for dredges up to 2,000,000 m3 with an additional ten sites per million m3, the MMO is content that these provide adequate spatial coverage across the dredge locations as each Chart Sector contains one or more sampling points, with additional points in non-sectored maintained areas.”// | ||
| + | |||
| + | 32 In fact, the requirement for 31 samples to be taken was not // | ||
| + | |||
| + | 33 Paragraph 5.3 of the OSPAR Guidelines requires samples to “// | ||
| |**Dredged Area (m2)** | |**Dredged Area (m2)** | ||
| Line 157: | Line 168: | ||
| |>100 000 | |>100 000 | ||
| - | - The entire area of the Harbour which the Interested Party has statutory authority to dredge is 16, | + | 34 The entire area of the Harbour which the Interested Party has statutory authority to dredge is 16, |
| - | | + | |
| + | 35 Paragraph 5.3 of the OSPAR Guidelines then states: “//Where projected depth of dredging is significant, | ||
| |//**Amount dredged (m< | |//**Amount dredged (m< | ||
| Line 167: | Line 179: | ||
| |//> | |//> | ||
| - | - As such, the volumetric table is not to be used as __an alternative to__ the spatial table but to ensure that, where there is significant depth of dredging, the spatial table does not under-assess the number of samples required. | + | 36 As such, the volumetric table is not to be used as __an alternative to__ the spatial table but to ensure that, where there is significant depth of dredging, the spatial table does not under-assess the number of samples required. |
| - | | + | |
| - | | + | 37 As a result, the Defendant was mistaken to think that the requested 31 samples was “slightly under” what was required by the OSPAR Guidelines because it wrongly applied the volumetric table without regard to the spatial table at all. In requiring the Interested Party to provide only 31 samples, and in accepting those samples as broadly consistent with the Defendant’s own policy to apply the OSPAR Guidelines, the Defendant misapplied its own guidance. |
| + | |||
| + | 38 That had the effect of depriving the Defendant of sufficient evidence driven by sound science on which to assess the impacts of the proposal on the marine environment, | ||
| + | |||
| + | ==== Ground 2: Failure to consider impact on water quality in the marine strategy area ==== | ||
| + | |||
| + | 39 The Applicant’s assessment of the impact of proposed activity on water quality was exclusively focused on the impact on water quality in water bodies regulated under the 2017 Regulations: | ||
| + | |||
| + | 40 There is no evidence that the Defendant considered the impact of the proposal on water quality in the marine strategy area; indeed, the Defendant’s assessment of the compliance of the proposal with North East Marine Plan Policy NE-WQ-1 is limited to impacts on the Tees Coastal waterbody, in relation to which the Defendant did //“not consider there to be any pathway for impacts from the disposal”.// | ||
| + | |||
| + | 41 The UK Marine Strategy Part One (2019) indicates that, in relation to the “contaminant” descriptor (D8), good environmental status was not achieved in the North Sea primarily on account of highly persistent legacy chemicals such as PCBs in biota and marine sediments mainly in coastal waters and often close to polluted sources. It noted that PCBs had been detected in significant concentrations in orcas in UK seas. | ||
| + | |||
| + | 42 The Applicant’s failure to address the impact on water quality in the marine waters of the marine strategy area and to focus exclusively on impacts on water bodies regulated by the 2010 Regulations, | ||
| + | |||
| + | - First, the Defendant failed to have regard to its duty under regulation 4 of the 2010 Regulations and failed to comply with that duty by exercising, on behalf of the Secretary of State, its functions so as to secure compliance with the requirements of the Marine Strategy Framework Directive, including the requirement in Article 1 to take the necessary measures to achieve or maintain good environmental status of marine waters within the marine strategy area. | ||
| - | //Ground 2: Failure | + | - Second, the Defendant misdirected itself in relation |
| - | - The Applicant’s assessment of the impact of proposed activity on water quality was exclusively focused on the impact on water quality in water bodies regulated under the 2017 Regulations: | + | 43 Alternatively, |
| - | - There is no evidence that the Defendant considered the impact of the proposal on water quality in the marine strategy area; indeed, the Defendant’s assessment of the compliance of the proposal with North East Marine Plan Policy NE-WQ-1 is limited to impacts on the Tees Coastal waterbody, in relation to which the Defendant did //“not consider there to be any pathway for impacts from the disposal”.// | + | |
| - | - The UK Marine Strategy Part One (2019) indicates that, in relation to the “contaminant” descriptor (D8), good environmental status was not achieved in the North Sea primarily on account of highly persistent legacy chemicals such as PCBs in biota and marine sediments mainly in coastal waters and often close to polluted sources. It noted that PCBs had been detected in significant concentrations in orcas in UK seas. | + | |
| - | - The Applicant’s failure to address the impact on water quality in the marine waters of the marine strategy area and to focus exclusively on impacts on water bodies regulated by the 2010 Regulations, | + | |
| - | - First, the Defendant failed to have regard to its duty under regulation 4 of the 2010 Regulations and failed to comply with that duty by exercising, on behalf of the Secretary of State, its functions so as to secure compliance with the requirements of the Marine Strategy Framework Directive, including the requirement in Article 1 to take the necessary measures to achieve or maintain good environmental status of marine waters within the marine strategy area. | + | |
| - | - Second, the Defendant misdirected itself in relation to policy NE-WQ-1 of the North East Marine Plan because it wrongly considered that policy only to be relevant to the impact on water bodies regulated by the 2011 Regulations. Accordingly, | + | |
| - | - Alternatively, | + | |
| - was based upon an inadequate sampling exercise (see ground 1); and/or | - was based upon an inadequate sampling exercise (see ground 1); and/or | ||
| - was based on a false comparison of existing water quality (where disposal of contaminated dredged material is taking place under licence due to expire on 31 December 2025) with future water quality (where disposal of dredged material will take place under the proposed licence). Instead, consistent with standard practice for environmental assessment for activities that require a licence or consent, the comparison should have been between the ‘do nothing scenario’ (no disposal) and the ‘project scenario’ (disposal under licence). The Defendant unlawfully failed to carry out that assessment and therefore failed lawfully to: | - was based on a false comparison of existing water quality (where disposal of contaminated dredged material is taking place under licence due to expire on 31 December 2025) with future water quality (where disposal of dredged material will take place under the proposed licence). Instead, consistent with standard practice for environmental assessment for activities that require a licence or consent, the comparison should have been between the ‘do nothing scenario’ (no disposal) and the ‘project scenario’ (disposal under licence). The Defendant unlawfully failed to carry out that assessment and therefore failed lawfully to: | ||
| Line 186: | Line 206: | ||
| - apply policy NE-WQ-1. | - apply policy NE-WQ-1. | ||
| - | //Ground 3: Failure to comply with the waste hierarchy// | + | ==== Ground 3: Failure to comply with the waste hierarchy |
| - | - There is no evidence in the application to demonstrate that the Interested Party conducted any serious consideration of alternatives to disposal at sea. That is surprising because the Interested Party explicitly acknowledged the legal duty to do so at section 3.6 of the Baseline Report. The content of paragraph 3.6 does not arguably demonstrate that the disposal of waste at sea is a last resort. Indeed, it comes nowhere near the threshold of demonstrating that the Interested Party has explored all alternatives to disposal at sea and has reasonably rejected those alternatives. Consequently, | + | 44 There is no evidence in the application to demonstrate that the Interested Party conducted any serious consideration of alternatives to disposal at sea. That is surprising because the Interested Party explicitly acknowledged the legal duty to do so at section 3.6 of the Baseline Report. The content of paragraph 3.6 does not arguably demonstrate that the disposal of waste at sea is a last resort. Indeed, it comes nowhere near the threshold of demonstrating that the Interested Party has explored all alternatives to disposal at sea and has reasonably rejected those alternatives. Consequently, |
| - a breach of its legal duty under regulation 22 of the 2011 Regulations; | - a breach of its legal duty under regulation 22 of the 2011 Regulations; | ||
| - inconsistent with the policy requirement of NE-DD-3; and | - inconsistent with the policy requirement of NE-DD-3; and | ||
| - inconsistent with the requirement of MPS para 3.6.8. | - inconsistent with the requirement of MPS para 3.6.8. | ||
| - | //Ground 4: failure to carry out a lawful appropriate assessment// | + | ==== Ground 4: failure to carry out a lawful appropriate assessment |
| - | - Pursuant to regulation 63 of the Habitats Regulations, | + | 45 Pursuant to regulation 63 of the Habitats Regulations, |
| - | | + | |
| - | | + | 46 In this case, there is no evidence that the MMO, as competent authority, carried out any appropriate assessment at all. |
| + | |||
| + | 47 Further, although the Interested Party acknowledged the proximity of the SPA, it failed to assess the possible impacts of PAHs, PCBs, PDBEs, and heavy metal contaminants on the integrity of the SPA, despite its knowledge that: | ||
| - concentrations of these Pollutants in the dredged material to be disposed of at Tees Bay A is frequently in excess of recommended levels; and | - concentrations of these Pollutants in the dredged material to be disposed of at Tees Bay A is frequently in excess of recommended levels; and | ||
| - the SPA is already under pressure from other cumulative pressures, including nutrient pollution, and from PAHs, PCBs, PDBEs, and heavy metal contaminants stirred up from the dredging process itself. | - the SPA is already under pressure from other cumulative pressures, including nutrient pollution, and from PAHs, PCBs, PDBEs, and heavy metal contaminants stirred up from the dredging process itself. | ||
| - | - The reason no such assessment was carried out is because the Baseline Report i) concluded that there was //“no pathway for effect”// from Tees Bay A to the SPA; and ii) assessed impacts by comparing the proposed activity with the existing activity and concluding that because there was no proposed change there would be no adverse impact. Both reasons for failing to carry out a proper assessment were flawed. | + | |
| - | | + | 48 The reason no such assessment was carried out is because the Baseline Report i) concluded that there was //“no pathway for effect”// from Tees Bay A to the SPA; and ii) assessed impacts by comparing the proposed activity with the existing activity and concluding that because there was no proposed change there would be no adverse impact. Both reasons for failing to carry out a proper assessment were flawed. |
| + | |||
| + | 49 As for the conclusion that there was no pathway for effect from Tees Bay A to the SPA, the Interested Party’s own plume modelling shows that the plume of sediment from the disposal point at Tees A drifts into, or extremely close to, the SPA. Either way, the precautionary approach required by the Habitats Regulations required the assessment of the impact of the Pollutants on the integrity of the SPA on account of the following factors: | ||
| - the fact that the modelled plume entered or came very close to the SPA; | - the fact that the modelled plume entered or came very close to the SPA; | ||
| - the uncertainty inherent in such modelling, and the obvious risk that a change in currents or wind patterns could result in the plume reaching far inside the SPA; | - the uncertainty inherent in such modelling, and the obvious risk that a change in currents or wind patterns could result in the plume reaching far inside the SPA; | ||
| - the knowledge that the dredged material disposed at Tees Bay A contained contaminants that are potentially harmful to the qualifying features of the SPA; | - the knowledge that the dredged material disposed at Tees Bay A contained contaminants that are potentially harmful to the qualifying features of the SPA; | ||
| - the cumulative pressures already impacting the integrity of the SPA, including pollution caused by the dredging (rather than disposal) process itself. | - the cumulative pressures already impacting the integrity of the SPA, including pollution caused by the dredging (rather than disposal) process itself. | ||
| - | - As for the approach to assessing impacts, the precautionary approach required by the Habitats Directive requires an appropriate assessment to compare the impacts of a proposed activity that might have significant effects on protected habitats with the “do nothing” scenario and not to assume (as the Interested Party and Defendant did) that the continuation of long-term polluting activities will have no adverse effects on the integrity of protected sites. Indeed, Article 2(2) of the Habitats Directive specifically requires Member States to take action to __restore__ protected habitats to a favourable conservation status. By virtue of regulation 9(1) of the Habitats Regulations, | ||
| - | - As a result, the decision to approve the application without an appropriate assessment, alternatively without an adequate appropriate assessment, was a breach of regulation 63 of the Habitats Regulations. | ||
| - | **The orders sought** | + | 50 As for the approach to assessing impacts, the precautionary approach required by the Habitats Directive requires an appropriate assessment to compare the impacts of a proposed activity that might have significant effects on protected habitats with the “do nothing” scenario and not to assume (as the Interested Party and Defendant did) that the continuation of long-term polluting activities will have no adverse effects on the integrity of protected sites. Indeed, Article 2(2) of the Habitats Directive specifically requires Member States to take action to __restore__ protected habitats to a favourable conservation status. By virtue of regulation 9(1) of the Habitats Regulations, |
| + | 51 As a result, the decision to approve the application without an appropriate assessment, alternatively without an adequate appropriate assessment, was a breach of regulation 63 of the Habitats Regulations. | ||
| - | - The following orders will be sought from the Court: | + | ===== The orders sought ===== |
| + | |||
| + | 52 The following orders will be sought from the Court: | ||
| - a declaration of unlawfulness; | - a declaration of unlawfulness; | ||
| - a suspended quashing order; | - a suspended quashing order; | ||
| - an order under CPR 46.26; and | - an order under CPR 46.26; and | ||
| - costs. | - costs. | ||
| - | - The Claimant does not wish to interfere with necessary dredging activities and does not seek a quashing order that would have this effect. Instead, the Claimant will invite the Court to issue a quashing order, suspended for a period of nine months, to enable: | + | |
| - | - the Interested Party to: i) carry out further sampling in accordance with the OSPAR Guidelines; | + | 53 The Claimant does not wish to interfere with necessary dredging activities and does not seek a quashing order that would have this effect. Instead, the Claimant will invite the Court to issue a quashing order, suspended for a period of nine months, to enable: |
| + | |||
| + | - the Interested Party to: | ||
| + | - carry out further sampling in accordance with the OSPAR Guidelines; | ||
| + | - lawfully apply the waste hierarchy and demonstrate genuine considerations of alternatives to disposal at sea; | ||
| + | - prepare a lawful habitats regulations assessment; and | ||
| + | - make a revised application. | ||
| - The Defendant to: consider and lawfully determine the revised application, | - The Defendant to: consider and lawfully determine the revised application, | ||
| - | **What the Defendant is asked to do** | + | ===== What the Defendant is asked to do ===== |
| - | - The Defendant is asked to: | + | 54 The Defendant is asked to: |
| - Agree that the Decision was unlawful; | - Agree that the Decision was unlawful; | ||
| - Consent to judgment and agree to a suspended quashing order as set out above; and | - Consent to judgment and agree to a suspended quashing order as set out above; and | ||
| - Pay our client’s costs. | - Pay our client’s costs. | ||
| - | - If the Defendant does not agree, please explain why not. | + | 55 If the Defendant does not agree, please explain why not. |
| - | **What the Interested Party is asked to do** | + | ===== What the Interested Party is asked to do ===== |
| - | - The Interested Party is asked to consent to the suspended quashing order as set out above. | + | 56 The Interested Party is asked to consent to the suspended quashing order as set out above. |
| - | **Alternative Dispute Resolution** | + | ===== Alternative Dispute Resolution |
| - | - Our client would be open to ADR but is mindful of the need to meet time limits for filing the claim. Should the Defendant and Interested Party prove willing to engage in ADR, the Claimant proposes that the claim is filed with an application for a stay. | + | 57 Our client would be open to ADR but is mindful of the need to meet time limits for filing the claim. Should the Defendant and Interested Party prove willing to engage in ADR, the Claimant proposes that the claim is filed with an application for a stay. |
| - | **Further information requested** | + | ===== Further information requested |
| - | - Pursuant to its duty of candour, the Defendant is asked to provide the following: | + | 58 Pursuant to its duty of candour, the Defendant is asked to provide the following: |
| - A map setting out the locations and the full extent of those locations that are excluded from the licence (para.5.2.3 of the licence). | - A map setting out the locations and the full extent of those locations that are excluded from the licence (para.5.2.3 of the licence). | ||
| Line 251: | Line 282: | ||
| - Disclosure of the full documentation behind the sampling plans developed for both MLA/ | - Disclosure of the full documentation behind the sampling plans developed for both MLA/ | ||
| - | - For the avoidance of doubt, should you decline to disclose this information pursuant to your duty of candour, we also request this information under the Environmental Information Regulations 2004. | + | 59 For the avoidance of doubt, should you decline to disclose this information pursuant to your duty of candour, we also request this information under the Environmental Information Regulations 2004. |
| - | + | ||
| - | **Aarhus Convention claim** | + | |
| - | - The Claimant considers this to be an Aarhus Convention claim within CPR r.46.24(2) and so claims the costs protection which arises. The Defendant is invited to agree. If the Defendant disagrees then please explain why pursuant to the Judicial Review Pre-Action Protocol. | + | ===== Aarhus Convention claim ===== |
| - | **Legal advisers dealing with this claim** | + | 60 The Claimant considers |
| - | - Goodenough Ring Solicitors, Temple Chambers, 3-7 Temple Avenue, London EC4Y 0HP attention Alice Goodenough at < | + | ===== Legal advisers dealing with this claim ===== |
| - | **Address for reply and service of court documents** | + | 61 Goodenough Ring Solicitors, Temple Chambers, 3-7 Temple Avenue, London EC4Y 0HP attention Alice Goodenough at < |
| - | - The address | + | ===== Address |
| - | > | + | 62 The address for reply and service of court documents is as above. We also accept service by email. We would prefer not to be sent hard copies of documents unless they are specifically requested. |
| - | - The Defendant and Interested Party are also requested to confirm whether they will accept electronic service of any claim that is issued. If so, please confirm the email address(es) to which service should be effected and whether there are any limitations on their acceptance of electronic service such as file size. | + | 63 The Defendant and Interested Party are also requested to confirm whether they will accept electronic service of any claim that is issued. If so, please confirm the email address(es) to which service should be effected and whether there are any limitations on their acceptance of electronic service such as file size. |
| **Period for reply** | **Period for reply** | ||
| - | - Please confirm safe receipt. **__Please reply substantively by noon on 18 December 2025.__** | + | 64 Please confirm safe receipt. **__Please reply substantively by noon on 18 December 2025.__** |
| Yours faithfully, | Yours faithfully, | ||
251204pre-action_protocol_letter_-_grs_to_mmo.1775315173.txt.gz · Last modified: by nefcadmin