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251204pre-action_protocol_letter_-_grs_to_mmo

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251204pre-action_protocol_letter_-_grs_to_mmo [2026/04/29 09:51] – 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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 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**”).
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 ===== Proposed grounds of challenge ===== ===== Proposed grounds of challenge =====
- 
-==== greed ==== 
  
 ==== Ground 1: irrational application of sampling guidance ==== ==== Ground 1: irrational application of sampling guidance ====
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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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