North East File Collection - NEFC

• 1. We are in receipt of your pre-action protocol letter of 4 December 2025 (“PAPL 1”) as well as your further pre-action letter of 15 December 2025 (“PAPL 2”, together the “PAPLs”). We have now had an opportunity to carefully consider your proposed claim.
• 2. Unless otherwise stated all defined terms used in this letter are as defined in the PAPLs.
• 3. The proposed claim is directed to the grant of a new 10-year licence for the continued disposal of maintenance dredging arisings (“the Activity”) from the Harbour to the Tees Bay A disposal site (“the Disposal Site”). As your client will be well aware, this is an activity which has been going on for many years. Maintenance dredging arisings from the Harbour have been disposed of at the Disposal Site in comparable volumes for at least 15 years, and the Disposal Site has been used for disposal of maintenance and capital dredging since 1 June 2011. The new licence (ref L/2025/00366/1) (“the New Licence”) permits disposal of the same material at the annual quantities as the current licence (ref L/2015/00427/7) (“the Previous Licence”).
• 4. With one exception ¹, the PAPLs fail to identify any new information or evidence which the Marine Management Organisation (“MMO”) has not previously considered in the exercise of its functions in relation to the activity. Those functions include not only the determination of the Interested Party’s application (ref MLA/2025/00263) for the New Licence, but also:
  • (1) Determination of “mid-licence” approvals under relevant licence conditions: see condition 5.2.3 of the Previous Licence and condition 5.2.4 of the New Licence. The most recent of these was granted on 31 January 2025; and
  • (2) The MMO’s ongoing power to vary, suspend or revoke a licence under s.72(3) of the Marine and Coastal Access Act 2009 Act (“the 2009 Act”).
• 5. This is important because each of your proposed grounds proceed on the premise that there is evidence of some environmental impact or risk which the MMO could and should have considered against the relevant statutory or policy tests and which might have led to some other outcome. The MMO does not consider that there is any such evidence and will rely upon s.31(2A) of the Senior Courts Act 1981 in addition to its case that there have been no legal errors as alleged. However, your client should be aware that it remains open to the MMO to consider any new evidence or scientific arguments which your client may put forward and to act on them if it considers that it is appropriate to do so in the light of the legal and policy provisions which you raise.
• 6. It follows, and consistent with your client’s desire to avoid interfering with necessary dredging activities, there is at this time no merit in a court being asked to consider the proposed claim<sup>2<sup>. If your client believes that there are evidence or arguments which would justify the MMO seeking to vary or revoke the New Licence then he should submit the same to the MMO for its review. * 7. In accordance with the Pre-Action Protocol for Judicial Review, we can confirm the following details: * (1) The proposed claimant is Dr Simon Gibbon (“the Claimant”). * (2) The proposed defendant is the Marine Management Organisation (“the Defendant”, “the MMO”) * (3) The Defendant’s legal representative and address for service is: Legal Team – Marine Management Organisation, Tyneside House, Skinnerburn Road, Newcastle upon Tyne, NE4 7AR. We accept service at the following email address <legalteamhq@marinemanagement.org.uk;> and * (4) The interested party is PD Teesport Limited (“the Interested Party”). ===== Details of the matter being challenged ===== * 8. The decision of the Defendant dated 5 November 2025 to grant a licence under Part 4 of the Marine and Coastal Access Act 2009 (“the 2009 Act”) to the Interested Party to undertake the disposal of dredged material to Tees Bay A (TY160) (“the Decision”). ===== Legal and policy framework ===== * 9. The legal and policy framework at paragraphs 7 to 20 of PAPL 1 is acknowledged. * 10. In addition to the powers you set out the MMO is also empowered under s.72(3) of the 2009 Act to vary, suspend or revoke any licence if it appears to the authority that the licence ought to be varied, suspended or revoked “(a) because of a change in circumstances relating to the environment or human health; (b) because of increased scientific knowledge relating to either of those matters; © in the interests of safety of navigation; (d) for any other reason that appears to the authority to be relevant.” * 11. The MMO also draws your attention to the summaries of the origins and effect of the statutory framework governing the MMO’s exercise of its marine licensing functions as set out by the High Court in Powell v Marine Management Organisation [2017] LLR 808 at [42]-[67] and R (Tarian Hafren Severn Shield CYF) v Marine Management Organisation [20022] PTSR see [46]-[65]. The following features should be noted: * (1) The legislation is designed to be flexible proportionate and risk-based, regulating only those activities posing a significant risk to inter alia the environment (Tarian Hafren at [46]); * (2) The MMO is obliged to exercise its functions in accordance with the general objective imposed by section 2 of the 2009 Act which is 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 (see subsections (2) and (4) to (11)), * (b) taking account of all relevant facts and matters (see subsection (3)), and * © in a manner which is consistent and co-ordinated (see subsection (12))”; * (3) Per subsection (3), taking into account all relevant facts and matters under s.2(1)(b) may include taking into account: * “(a) scientific evidence, whether available to, or reasonably obtainable by, the MMO; * (b) other evidence so available or obtainable relating to the social, economic or environmental elements of sustainable development; * © such facts or matters not falling within paragraph (a) or (b) as the MMO may consider appropriate.” * (4) Section 2(3)© indicates the broad and flexible nature of the judgement which the MMO may exercise in pursuit of its statutory objectives (see Tarian Hafren at [48]). * (5) Similarly, section 69(1)©, which you quote at paragraph 10 of PAPL1, gives the MMO a broad and flexible discretion to take into account such matters as it considers relevant (see Tarian Hafren at [56]). ===== Response to the Claim ===== * 12. The claim is unarguable and will be defended in full. ==== Ground 1: Irrational application of sampling guidance==== * 13. The MMO was well aware of the need to ensure adequate sampling and requested an approved a sampling plan on the basis of detailed technical advice from Cefas, the government’s technical advisers on marine science. * 14. Cefas’ advice was that 31 samples was appropriate. This was first conveyed in the context of the Interested Party’s application for their final mid-licence review under the Previous Licence and was given by letter on 26 July 2024. The sampling requested was then reviewed by Cefas and advice given on 16 January 2025 and 5 March 2025, leading to a conclusion that the material was suitable for disposal at sea. * 15. Cefas’ advice on the application for the New Licence, given on 24 July 2025, substantially relied on its previous assessment and concluded that there was nothing to prevent the disposal of the material to sea, see paragraph 27 and summary as follows: * “Summary * 34. The analysis of the data provided for previous licence to discharged licence condition 5.2.3. for year nine sampling are suitable to support the application for this renewal for a ten-year licence for the continued use of Tees Bay A (TY160) for the disposal of maintenance dredge material from Tees and Hartlepool. The material remains acceptable for disposal to sea. * 35. The applicant should provide the MMO with accurately completed templates for this data to ensure that annual returns data for Tees Bay A (TY160) are accurate and for use with Cefas Sediment Framework Management Application for publication of the data4. * 36. Previous Cefas advice (cited points 8 and 9) suggested Tees Bay A (TY160) was included in future monitoring to look at impacts on sediment quality, flora and fauna at the site and surrounding area as a result of the continued disposal activity. This is in line with conclusions from the assessment of survey data from 2023 (Bolam et.al 2024). Should the results of any future monitoring indicate any negative adverse effects then this advice could be subject to change before the next round of monitoring. Therefore, results of monitoring should be reviewed alongside the licence conditions for this application if consented.” * 16. As can be seen from each of the advice letters, Cefas are well aware of the content of the OSPAR Guidelines which does not set out a fixed or preferred methodology for the assessment of the number of sampling stations required based on area, but provides two complementary methods and advice as to the nature of the technical judgement to be reached. Cefas’ assessment of the number of samples required reflects the availability of long term data as well as the relatively low risk nature of the activity as a maintenance dredge largely dealing with tidal sand deposits as opposed to a capital dredge. The MMO will say that requiring the operator to provide over 800 samples (which is what the strict application of the area based formula would lead to) would be a misapplication of the precautionary principle and contrary to evidence-based decision making. * 17. Your approach to the OSPAR Guidelines (i) applies an unduly legalistic approach to a technical guidance document which is intended to assist the contracting parties rather than set down fixed procedures and (ii) omits to refer to the various indications that the passages relied upon are not intended to require a decision-maker to use the area- based method. In particular, you do not refer to paragraph 1.3 which makes it clear that assessments are to be devised at national level or the new³ language before the inserted spatial table which says that the number of sample stations can “also” be determined on the basis of the size of the area to be dredged.
• 18. It is trite that the court will afford an enhanced margin of appreciation to a decision based on matters of technical, evaluative judgment (see e g R (Mott) v Environment Agency [2016] 1 WLR 4338) and will proceed on the basis that the MMO and Cefas have understood and applied the relevant policy guidance unless the contrary is demonstrated: see R (Keir) v Natural England [2022] Env LR 3 at paras 46 and 48. There is no such evidence here.

• 19. Under this ground you allege that the MMO failed to have regard to the impact of the regulated activity on marine waters beyond the water bodies regulated under the 2017 Regulations. This is said to lead to a breach of policy and/or the 2010 Regulations.

3 Inserted in the 2024 update.

20. MMO gave detailed consideration to the question as to whether the dredged material is suitable for disposal at sea, concluding that it is and that the proposals were in accordance with the North East Marine Plan (see second paragraph of the MMO’s Decision Letter dated 5 November 2025). In the course of our consideration MMO sought and obtained detailed advice from Cefas on the chemical characteristics of the material and also consulted Natural England and the Environment Agency. 21. The MMO also concluded, having identified potential affected species and habitats within the wider marine environment that the proposal was “unlikely to adversely affect other habitats/species”4. 22. None of these assessments were based on the “false comparison” you allege at paragraph 43(b) of PAPL 1; the MMO were assessing the consequences of permitting the relevant activity against the correct baseline of the marine environment as it currently exists with other lawful activities occurring, including the use of the Tees Bay A for the disposal of other dredging arisings. 23. These technical conclusions led the MMO to a conclusion that the proposals were in accordance with relevant policies, including NE-WQ-1. This conclusion cannot realistically be impugned: (1) Policy NE-WQ-1 does no more that make clear that in policy as well as legal terms “there should be no adverse impacts on water quality in line with [the 2010 Regulations]”. (2) The 2010 Regulations implement the Marine Strategy Framework Directive (“the MSF Directive”). Regulation 4 of the 2010 Regulations require the MMO to exercise its functions so as to secure compliance with the MRF Directive, including Article 1 which obliges Member States to take necessary measures to achieve GES by 2020. Under both the 2010 Regulations and the MSF Directive this is to be achieved through the development of marine strategies under regulation 5, to which all public authorities must have regard in the exercise of relevant functions (see regulation 9).

4 See answer to Gateway 3 response at Q10.

(3) Under the UK’s Marine Strategy, the UK’s waters are divided into sub-regions, the relevant sub-region being the Greater North Sea5. The UK Marine Strategy Part One (2019), Part Three (2025) and consultation draft of the most recent update to Part One all identify that GES for Contaminants (D8) has not been attained in the Greater North Sea. However, the mechanism to achieve GES is via the measures set out (most recently) in Part Three (2025). These do not indicate that maintenance dredging and disposal should be curtailed nor present any basis on which it could be said that disposal of dredged material should be at one location within a region or sub-region rather than another. (4) The MMO has given detailed consideration to the question of whether the dredged material is appropriate for disposal to sea. It is not and cannot be suggested that the material should be disposed of outside the Greater North Sea sub-region and nothing has been presented to suggest that use of a different disposal site within the sub-region would enable or facilitate the attainment of GES. Ground 3: Failure to comply with the waste hierarchy 24. The MMO gave specific consideration to the waste hierarchy under the 2011 Regulations and recorded a conclusion of compliance at Q18 of Gateway 3. This was based on consideration of paragraph 3.6 of the Interested Party’s Maintenance Dredging Protocol (“MDP”) baseline document which records the ways in which the Interested Party (as a waste operator and harbour authority itself is required to apply the waste hierarchy) has previously managed to find preferrable beneficial uses of the material. In the context of a long-standing maintenance activity this was sufficient to demonstrate to the MMO’s satisfaction that all alternatives to disposal had been and would continue to be considered. The MMO’s conclusion cannot realistically be impugned.

5 https://moat.Cefas.co.uk/introduction-to-uk-marine-strategy/

Ground 4: Failure to carry out a lawful appropriate assessment 25. As PAPL 2 recognises, the MMO carried out a Habitats Regulations Assessment (“HRA”) in relation to the New Licence. The HRA identifies relevant impacts and assesses them against the conservation objectives and advice provided by Natural England, using the Advice on Operations decision aid. The author applied this along with site specific knowledge to conclude that the project will give rise to no likely significant effects on the Special Protection Area (“SPA”), alone and in-combination with other projects. Site specific features included the evidence from the Interested Party that material disposed at the Tees Bay A site is carried in a south-easterly direction with “peak depositions occurring outside of the SPA boundary” but, as the HRA makes clear, the MMO did not accept that there was no pathway. Instead, the MMO’s reasoned view was that impacts alone and in-combination would not be significant. This view was reached in the context that: (1) The scale of the potential impact from the proposals in the light of the plume evidence, which led the MMO to conclude that there would “not be an impact to supporting habitat nor a significant impact on water quality which is a medium pressure impact for Common, Sandwich and Little Tern only”. (2) Relevant baseline pressures at the site would not be increased from the current position. (3) The activity was longstanding and had recently been assessed as a project in- combination with others via other licence applications or licence variations. This meant there were no additional in-combination impacts to consider that had not already been subject to a HRA and approved; and (4) Natural England had been consulted on the application, and again on the draft HRA, and had raised no objection. 26. The principles cited at paragraph 18 above are also relevant here. There is no proper basis on which to ask the court to impugn the MMO’s assessment as an expert regulator, nor the supporting advice of Natural England.

Ground 5: EIA 27. PAPL 2 raises an additional potential ground of claim which is a failure to consider whether the regulated activity falls within paragraph 76 of Schedule A2 to the 2007 Regulations. 28. A similar ground was raised in a judicial review6 of a licence granted to Premier Marinas (Brighton) Ltd in May 2025, which was consented to on other grounds. Following the Brighton Marina claim, the MMO sought advice from Leading Counsel (in which privilege is not waived). 29. The MMO’s position is that the question of whether material is sludge is a question of fact. In this case, maintenance dredging arisings are not sludge within the meaning of the EIA Directive as it is sediment and thus comes from natural processes of erosion and water movement rather than being the product of any industrial or biological process. The regulated activity is therefore not in the course of a sludge deposition site. 30. Further, even if the deposit of maintenance dredging arisings from the Harbour at the Disposal Site were an activity within Schedule A2 of the 2007 Regulations, you have provided no evidence that it might give rise to likely significant effects. As set out above, the MMO has concluded on the basis of the available scientific information and advice (including that of Cefas, Natural England and the Environment Agency) that the licensed activities do not give rise to any adverse effects on habitats and species, including those protected by the Habitats Regulations and that they do not result in deterioration of water quality within any Water Framework Directive waterbody. 31. As such the MMO will say that it is therefore highly likely that the outcome on EIA would have been substantially the same even if it had concluded that the material in question is sludge.

6 AC-2025-LON-002797

Further information requested 32. We enclose the following disclosure in response to your request and pursuant to our duty of candour: (1) A map setting out the locations of the excluded areas under the New Licence (request (i)), (2) The “gateway” internal decision making records (request (iv)); and (3) All advice provided to the MMO by Cefas in relation to the development of sampling plans for both the Previous Licence and New Licence. This covers (v)(a)-(b), (vi) and (viii). Cefas were not asked to validate the plume dispersion modelling provided by the Interested Party, as such the MMO holds nothing under (v)©. Conclusion / next steps 33. For all of these reasons, the proposed claim is unarguable and will be defended in full. Further, as set out above, the proposed Claimant is invited to submit any evidence which he considers should lead the MMO to taking a different decision in relation to the ongoing licensing of the regulated activity. If the claim is brought, it will be resisted in full.

Yours faithfully

K Hayes Kerry Hayes Drafting & Advisory Lawyer +44 (0) 2077142806 legalteamhq@marinemanagement.org.uk

1 Footnote 1 of PAPL 1 includes a link to a webpage discussing evidence of Polychlorinated Biphenyl levels in underweight seal pups within the Tees estuary. The MMO has not previously been provided with this information which will be reviewed. However, we note that the authors of the blog-post do not suggest any connection between the PCB contamination and the disposal of dredged material at Tees Bay A. Such a connection would not be consistent with Cefas’ advise that the material is suitable for disposal at the Disposal Site.

2 Which, in the event of a claim, the MMO will submit is an additional reason why the court should refuse permission/relief