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251204pre-action_protocol_letter_-_grs_to_mmo

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251204pre-action_protocol_letter_-_grs_to_mmo [2026/04/04 15:17] – nefcadmin251204pre-action_protocol_letter_-_grs_to_mmo [2026/04/30 06:21] (current) – old revision restored (2026/04/29 09:58) nefcadmin
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 **__JUDICIAL REVIEW PRE-ACTION PROTOCOL LETTER__** **__JUDICIAL REVIEW PRE-ACTION PROTOCOL LETTER__**
 +
  
 Dear Sir or Madam, Dear Sir or Madam,
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 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/2025/00366/1), under Part 4 of the Marine and Coastal Access Act 2009, to PD Teesport Ltd to undertake disposal of dredged material to Tees Bay A (TY160) (Ref. MLA/2025/00263). 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/2025/00366/1), under Part 4 of the Marine and Coastal Access Act 2009, to PD Teesport Ltd to undertake disposal of dredged material to Tees Bay A (TY160) (Ref. MLA/2025/00263).
  
-**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**”), the statutory harbour authority for the Port of Tees and Hartlepool which includes a 12-mile stretch of the River Tees, the Port of Hartlepool and part of the North Sea (‘**the Harbour**’). 3 The interested party is the PD Teesport Limited (“**the Interested Party**”), the statutory harbour authority for the Port of Tees and Hartlepool which includes a 12-mile stretch of the River Tees, the Port of Hartlepool and part of the North Sea (‘**the Harbour**’).
 +
 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//
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     - 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.
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 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:
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 > //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, odour) in different sub samples. Care should be taken to ensure that the results allow derivation of valid mean contaminant values.”// > //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, odour) in different sub samples. Care should be taken to ensure that the results allow derivation of valid mean contaminant values.”//
  
-**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.
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 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. 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**+===== Proposed grounds of challenge =====
  
-//Ground 1: irrational application of sampling guidance//+==== 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. 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.
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 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, and rendered the Decision unlawful. 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, and rendered the Decision unlawful.
  
-//Ground 2: Failure to consider impact on water quality in the marine strategy area//+==== 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: see section 6.2 of the Baseline Report. The Applicant failed to address at all the impact of the proposed activity on water quality in the marine waters of 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: see section 6.2 of the Baseline Report. The Applicant failed to address at all the impact of the proposed activity on water quality in the marine waters of the marine strategy area.
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       - 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 ====
  
 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, the Defendant’s approval of the application was unlawful because it was: 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, the Defendant’s approval of the application was unlawful because it was:
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     - 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 ====
  
 45 Pursuant to regulation 63 of the Habitats Regulations, consent for the proposed activity could only be granted if adverse effects on the integrity of the Teesmouth and Cleveland Coast SPA and Ramsar site could be excluded, with no reasonable scientific doubt: see //__Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij__// (C-127/02) [2005] Env. L.R. 14 (“//__Waddenzee__//”) at [59]. This requires the application of the precautionary principle. 45 Pursuant to regulation 63 of the Habitats Regulations, consent for the proposed activity could only be granted if adverse effects on the integrity of the Teesmouth and Cleveland Coast SPA and Ramsar site could be excluded, with no reasonable scientific doubt: see //__Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij__// (C-127/02) [2005] Env. L.R. 14 (“//__Waddenzee__//”) at [59]. This requires the application of the precautionary principle.
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 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. 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 orders sought**+===== The orders sought =====
  
 52 The following orders will be sought from the Court: 52 The following orders will be sought from the Court:
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 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: 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: i) carry out further sampling in accordance with the OSPAR Guidelines; ii) lawfully apply the waste hierarchy and demonstrate genuine considerations of alternatives to disposal at sea; iii) prepare a lawful habitats regulations assessment; and iv) make a revised application.+ 
 +    - 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, avoiding the errors of law identified above.     - The Defendant to: consider and lawfully determine the revised application, avoiding the errors of law identified above.
  
-**What the Defendant is asked to do**+===== What the Defendant is asked to do =====
  
 54 The Defendant is asked to: 54 The Defendant is asked to:
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 55 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 =====
  
 56 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 =====
  
 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. 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 =====
  
 58 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:
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 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. 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**+===== Aarhus Convention claim =====
  
 60 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. 60 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.
  
-**Legal advisers dealing with this claim**+===== Legal advisers dealing with this claim =====
  
 61 Goodenough Ring Solicitors, Temple Chambers, 3-7 Temple Avenue, London EC4Y 0HP attention Alice Goodenough at <agoodenough@grsolicitors.co.uk> and Toby Fisher, Matrix Chambers. 61 Goodenough Ring Solicitors, Temple Chambers, 3-7 Temple Avenue, London EC4Y 0HP attention Alice Goodenough at <agoodenough@grsolicitors.co.uk> and Toby Fisher, Matrix Chambers.
  
-**Address for reply and service of court documents**+===== Address for reply and service of court documents =====
  
 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. 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.
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