North East File Collection - NEFC

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Goodenough Ring Solicitors , Temple Chambers, 3-7 Temple Ave, London, EC4Y 0HA

www.grsolicitors.co.uk

Marine Management Organisation, Tyneside House, Skinnerburn Road, Newcastle upon Tyne, NE4 7AR

Our ref: GIB00001

Your ref: MLA/2025/00263

4 December 2025

**__FOR YOUR URGENT ATTENTION__**

**__JUDICIAL REVIEW PRE-ACTION PROTOCOL LETTER__**


Dear Sir or Madam,

**Proposed claim for judicial review of the decision to grant** **a marine licence to PD Teesport Limited to undertake the 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 =====

1 The proposed claimant is Dr Simon Gibbon (“**the Claimant**”).

===== The Defendant =====

2 The proposed defendant is the MMO (“**the Defendant**”).

===== 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**’).

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.

===== 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**”).

===== The legal and policy framework =====

//The Defendant’s duties under the Marine and Coastal Access Act 2009//

7 Section 2 of the Marine and Coastal Access Act 2009 (‘**the 2009 Act**’) provides that it is the duty of the MMO to secure that its functions are so exercised that the carrying on of activities by persons in the MMO’s area is managed, regulated or controlled— (a) with the objective of making a contribution to the achievement of sustainable development, (b) taking account of all relevant facts and matters, and (c) in a manner which is consistent and co-ordinated.

8 Section 58 of the 2009 Act provides that a public authority must take any authorisation or enforcement decision in accordance with the appropriate marine policy documents, unless relevant considerations indicate otherwise. As set out below, the relevant marine policy documents in this case are the North East Inshore and Offshore Marine Plan Documents.

9 Section 65(1) of the 2009 Act prohibits anyone from carrying on or causing or permitting any other person to carry on, a “licensable marine activity” “except in accordance with a marine licence granted by the appropriate licensing authority”. Section 66 defines what are licensable marine activities and includes: “1. To deposit any substance or object within the UK marine licensing area, either in the sea or on or under the seabed, from — (a) any vehicle, vessel, aircraft or marine structure…”

10 Section 67 provides for the making of an application for a marine licence to the MMO. Section 69 deals with the determination of applications. Subsection (1) provides: - “(1) In determining an application for a marine licence (including the terms on which it is to be granted and what conditions, if any, are to be attached to it), the appropriate licensing authority must have regard to— (a) the need to protect the environment, (b) the need to protect human health, (c) the need to prevent interference with legitimate uses of the sea, and such other matters as the authority thinks relevant”

11 The Secretary of State has issued statutory guidance on the manner in which the MMO is to seek to secure, pursuant to section 2(1)(a) of the 2009 Act, the contribution to the achievement of sustainable development. Among other things, that statutory guidance requires the MMO to:
    - Act in accordance with the Marine Policy Statement (‘**MPS**’); and
    - Have regard to the need for evidence-based decision making driven by sound science.

12 Paragraph 3.6 of the MPS addressees marine dredging and disposal. It provides as follows:

//“3.6.6 When sediments are contaminated, dredging has the potential to cause significant environmental and health effects through exposure to contaminants in the dredging plume. These contaminants arise from diverse sources such as the legacy of industrial pollution, for example metals and poly chlorinated biphenyls, or historical and current use of antifoulants including tributyltin and heavy metals and new contaminants which are now finding their way into the marine environment, such as flame retardants including poly brominated diphenyl ethers.//

//3.6.7 In considering an application, decision makers should __undertake a detailed evaluation of the potential adverse effects of any dredging activity or deposit on the marine ecosystem and others using the sea__. This should have full regard to any accompanying environmental statement or additional data that may be requested in support of the application and __international obligations under the OSPAR Convention 1992 and London Protocol 1996, as well as any other available guidance__. Account should also be taken of the views expressed by other consultees before a decision is taken whether to grant approval.//

//3.6.8 Applications to dispose of wastes must __demonstrate that appropriate consideration has been given to the internationally agreed hierarchy of waste management options for sea disposal__. Wastes should not be accepted for disposal where appropriate opportunities exist to re-use, recycle or treat the waste without undue risks to either human health or the environment, or disproportionate costs. The decision maker should give appropriate consideration to alternative uses of the sediment.//

//3.6.9 Decision makers should consider the potential adverse effects on the marine environment, habitats and wildlife from dredging activity. Particular recognition should be given to the implementation and use of the maintenance dredge protocol to minimize impacts on habitats and wildlife and help meet statutory obligations in relation to European Sites. There also needs to be compliance with requirements of the WFD __and other EU Directives__.”// (emphasis added)

13 For the purposes of the statutory duty at section 58 of the 2009 Act, the relevant marine policy documents are the North East Inshore and Offshore Marine Plan Documents. The Plan includes the following policies, among others:

    - Policy NE-DD-3, which requires proposals for the disposal of dredged material to demonstrate that they have been assessed against the waste hierarchy (i.e. to demonstrate that disposal of dredged material at sea is a last resort).
    - 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 =====

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.

15 Regulation 3(1) of the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 (‘**the 2017 Regulations**’) requires the Secretary of State to exercise his “relevant functions” so as to secure compliance with the requirements of the Water Framework Directive. By regulation 2(1) “relevant functions” includes those functions under Part 4 of the 2009 Act, including the power to determine an application and issue a marine licence under sections 69 and 71.

16 Regulation 4 of the Marine Strategy Regulations 2010 (‘**the 2010 Regulations**’) requires the Secretary of State to exercise his “relevant 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. By regulation 4(2) and Schedule 2, “relevant function” includes those functions under Part 4 of the 2009 Act, including the power to determine an application and issue a marine licence under sections 69 and 71.

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 =====

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:

> //“The UK is signed up to the London Protocol and OSPAR Convention for the Protection of the Marine Environment of the North-East Atlantic, both of which address preventing marine pollution from disposal at sea.//

> //__MMO licenses disposing of dredged materials at sea and uses guidelines produced by OSPAR to regulate this activity.__ A marine licence to dispose of dredged materials to sea requires the sediments to be characterised to allow the potential adverse environmental effects of disposing of the material to be considered.//

> //__The OSPAR guidelines recommend a tiered approach to assess the sediments__, if sufficient information is not already available from existing sources. The assessments required will depend upon the specific details of the proposed activities, although characterisation of a standard set of physical and chemical determinands within the sediments is often necessary.”//

19 The OSPAR guidelines the MMO purports to apply are The OSPAR Guidelines for the Management of Dredged Material at Sea (Agreement 2014-06) (‘**the OSPAR Guidelines**’), which were adopted at the 2014 Meeting of OSPAR’s Environmental Impacts of Human Activities Committee and updated in 2024. They state: //“Contracting Parties should take these guidelines into consideration in their authorisation or regulation procedures for dredged material.”// (para.2.1)

20 Section 5 of the Guidelines concerns ‘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.//

> //5.2 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://

|**Dredged Area (m2)**  |**Number of Stations (locations)**  |
|<10 000                |1-3                                 |
|10 000 - 50 000        |4 – 8                               |
|50 000 //-// 100 000   |9 – 10                              |
|>100 000               |extra 5 per 100 000m2               |

> //Where projected depth of dredging is significant, samples will be required at depth, usually by vibracore. The volume of the dredge material should be taken into consideration to determine the number of samples, as below.//

|//**Amount dredged (m<sup>3</sup>)**//  |//**Number of Stations**//              |
|//Up to 25,000//                        |//3//                                   |
|//25,000 - 100,000//                    |//4 – 6//                               |
|//100,000 - 500,000//                   |//7 – 15//                              |
|//500,000 - 2,000,000//                 |//16 – 30//                             |
|//>2,000,000//                          |//extra 10 per million m<sup>3</sup>//  |

> //Contracting Parties are encouraged to use the Guidelines for the Sampling and Analysis of Dredged Material Intended for Disposal at Sea (IMO, 2005) to inform sampling regimes.//

> //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 =====

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.

22 The benthic environment within the Harbour is known to be contaminated with polycyclic aromatic hydrocarbons (‘**PAHs’**) and organohalogens (‘**OHs’**) including polychlorinated biphenyls (‘**PCBs**’) and polybrominated diphenyl ethers (‘**PDBEs**’) (together ‘**the Pollutants**’). These Pollutants can cause harm to biodiversity and there is a reasonable suspicion that they have contributed to the death of at least 21 of a total 23 harbour seal-pups born in or around the River Tees in the summer of 2025.((See https://www.sealresearch.org/research/tess-seal-pup-crowdfunding-project))

23 The level of Pollutants across the benthic environment of the Harbour varies considerably, including between locations in very close proximity. The levels of Pollutants in some areas of the Harbour exceed the level at which material dredged from those locations could safely be disposed at sea. For that reason, the Interested Party’s existing maintenance dredge disposal licence excludes from scope any material dredged from the following areas: Cochrane's/Tees wharf; Normanby Wharf Graving Dock; Tees Offshore Base; Teesport Commerce Wharf (TPC) Dry Dock; Wharf Britannia; and Enterprise Zone.

24 The Interested Party’s current maintenance dredge disposal licence L/2015/00427/7 is due to expire on 31 December 2025. Through application MLA/2025/00263, the Interested Party applied for a further licence commencing on 1 January 2026 and ending on 31 December 2035 authorising the disposal of material dredged from the Harbour at the Tees Bay A site. In support of that application, the Interested Party submitted (among other things): i) Tees Maintenance Dredge Protocol (MDP) Baseline Document (‘**the Baseline Report**’) and ii) Tess Maintenance Dredging Water Environment Regulations (WER) Compliance Assessment (‘**the WER Report**’).

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: section 3.2.
    - A summary of the results of sedimentary analysis of 36 samples from the benthic environment of the Habour, taken in 2019, which indicated that there were concentrations of metals, the majority of PAH compounds, C-napthalenes, Phenanthrene, and PCBs in excess of Cefas Action Level 1, and high concentrations of total hydrocarbons and PDBEs.
    - A summary of the results of sedimentary analysis of 31 samples from the benthic environment of the Habour, taken in 2024, which indicated levels of metals in excess of Cefas Action Level 1 and levels of PBDEs, BDE 209, 99 and 100 higher than recommended by Cefas experts.
    - An acknowledgment that alternative use considerations are a legal requirement of the marine licensing process, and a note that “where suitable, a proportion of dredged arisings for alternative (beneficial) use within the estuary have been identified”.
    - Plume modelling that illustrated the predicted dispersal of dredged material once disposed at Tees Bay A: see section 6.1.4.
    - 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 “//sediment plumes dilute quickly, within close proximity to disposal site boundary”// and //“there is therefore no pathway for effect”.//

26 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.

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 sampling and analysis, with prohibition of disposal at sea of dredge arisings which are unsuitable for that purpose.

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, and the areas protected by the Habitats 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 //“slightly under the guidelines set by OSPAR”//; it was dramatically short of what the OSPAR Guidelines required and was based on a misunderstanding of those Guidelines.

33 Paragraph 5.3 of the OSPAR Guidelines requires samples to “//provide a good spatial (surface) and vertical (depth) representation of the material to be dredged”.// It then provides that //“the minimum number of sampling stations”// is first to be determined by reference to the __area__ to be dredged and provides the following table (‘**the spatial table**’):

|**Dredged Area (m2)**  |**Number of Stations (locations)**  |
|<10 000                |1-3                                 |
|10 000 - 50 000        |4 – 8                               |
|50 000 //-// 100 000   |9 – 10                              |
|>100 000               |extra 5 per 100 000m2               |

34 The entire area of the Harbour which the Interested Party has statutory authority to dredge is 16,685,800m2. The licence permits the disposal of material dredged from that entire area with minimal exclusions. Applying the table to the entire area of the Harbour, the minimum number of samples required by the OSPAR Guidelines is 839. Even if the OSPAR Guidelines are applied only to the c.20% of the Harbour that has historically been dredged (c. 3,337,160m), the minimum number of samples required by the OSPAR Guidelines is 172. The Claimant does not accept that the lower figure would be appropriate, given that the licence permits disposal of any material dredged from the entire Harbour, but either way, the OSPAR Guidelines required somewhere between five and 27 times as many samples as was required by the Defendant.

35 Paragraph 5.3 of the OSPAR Guidelines then states: “//Where projected depth of dredging is significant, samples will be required at depth, usually by vibracore. The volume of the dredge material should be taken into consideration to determine the number of samples, as below”.// The Guidelines then show the following table (‘**the volumetric table**’)

|//**Amount dredged (m<sup>3</sup>)**//  |//**Number of Stations**//              |
|//Up to 25,000//                        |//3//                                   |
|//25,000 - 100,000//                    |//4 – 6//                               |
|//100,000 - 500,000//                   |//7 – 15//                              |
|//500,000 - 2,000,000//                 |//16 – 30//                             |
|//>2,000,000//                          |//extra 10 per million m<sup>3</sup>//  |

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, and rendered the Decision unlawful.

==== 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.

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, together with the complete absence of any evidence that the Defendant rectified this error, leads to two errors of law:

  - 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, the Defendant unlawfully failed to apply the requirements of policy NE-WQ-1 to the application, in particular by failing to consider whether the applicant had demonstrated that it would, in order of preference: i) avoid, ii) minimise, and iii) mitigate deterioration of water quality in the marine environment.

43 Alternatively, if the Defendant contends that it concluded that the proposal would not cause deterioration of water quality in the marine waters of the marine strategy area (even though that conclusion is not recorded anywhere), that conclusion was unlawful because it:
    - 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:
      - discharge its duty under section 69(1)(a) of the 2009 Act;
      - comply with paragraph 3.6.7 of the MPS; and
      - apply policy NE-WQ-1.

==== 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:
    - 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 requirement of MPS para 3.6.8.

==== 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.

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
    - 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.

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 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 cumulative pressures already impacting the integrity of the SPA, including pollution caused by the dredging (rather than disposal) process itself.

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, the Defendant was required to exercise its functions so as to secure compliance with that requirement (among others). There is no evidence that the Defendant considered whether the cessation or modification of the historic disposal activity might support the restoration of the SPA to favourable conservation status.
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 =====

52 The following orders will be sought from the Court:
    - a declaration of unlawfulness;
    - a suspended quashing order;
    - an order under CPR 46.26; and
    - costs.

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, avoiding the errors of law identified above.

===== What the Defendant is asked to do =====

54 The Defendant is asked to:
    - Agree that the Decision was unlawful;
    - Consent to judgment and agree to a suspended quashing order as set out above; and
    - Pay our client’s costs.
55 If the Defendant does not agree, please explain why not.

===== 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.

===== 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.

===== Further information requested =====

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).
  - All information held by the MMO which demonstrates contamination levels in the locations excluded for the disposal of dredged material (para.5.2.3 of the licence).
  - Documentation evidencing the Defendant’s "Test of Likely Significant Effect" (TLSE) or HRA Screening Matrix or Appropriate Assessment of the application, as required by regulation 63 of the Habitats Regulations.
  - The internal submission or recommendation report provided to the decision-maker (the signatory of the licence) summarising the application and making a recommendation for approval or refusal.
  - Cefas Scientific Advice: Full copies of all advice, correspondence, and technical reviews provided by the Centre for Environment, Fisheries and Aquaculture Science (Cefas) regarding:
    - Approaches to the development of sampling plans which underpin the decision to request 31 samples;
    - The reasons why the sediment analysis results do not require the measurement of all determinands from all samples for licence and also mid-licence sampling (specifically regarding particle size, total organic carbon, PAHs, PCBs, and PDBEs); and
    - Any validation of the plume dispersion modelling provided by the Interested Party carried out by Cefas.
  - Any internal notes, meeting minutes, or correspondence recording the rationale for applying the OSPAR "volumetric" table without regard to the "spatial" table when determining sample numbers.
  - Disclosure of the full documentation behind the sampling plans developed for both MLA/2025/00263 and MLA/2015/00088 which are not viewable on the MCMS Public Register, including SAM/2024/00054, SAM/2023/00028, SAM/2021/00027, SAM/2018/00050, SAM/2018/00069.

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 =====

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 =====

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 =====

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.

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**

64 Please confirm safe receipt. **__Please reply substantively by noon on 18 December 2025.__**

Yours faithfully,

**Goodenough Ring Solicitors**