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**IN THE HIGH COURT OF JUSTICE CLAIM NO.** **AC-2026-LON**

**KING’S BENCH DIVISION**

**PLANNING COURT**

**B E T W E E N :**

**THE KING**

**(on the application of SIMON GIBBON)**

**Claimant**

**- v –**

**THE MARINE MANAGEMENT ORGANISATION**

**Defendant**

**and**

**PD TEESPORT LIMITED**

**Interested Party**

**STATEMENT OF FACTS AND GROUNDS**

//References to [CB/x] refer to page x in the claim bundle//

//List of essential reading://

  * //Statement of Facts and Grounds [CB/A23]//
  * //Witness statement of Simon Gibbon [CB/A102]//
  * //Decision of Defendant to grant a marine licence [CB/A62]//
  * //Licence Document [CB/A66]//

===== SECTION 1: INTRODUCTION =====

  * 1. By this claim, the Claimant seeks judicial review of the decision of the Defendant (‘**the MMO**’), dated 5 November 2025, to grant the Interested Party a marine licence (L/2025/00366/1) to dispose of material dredged from the lower reaches of the River Tees and Tees Harbour (together ‘**the Harbour**’) at an at-sea disposal location known as Tees Bay A for a period of 10 years commencing on 1 January 2026 (‘**the Marine Licence**’).
  * 2. A plan of the Harbour, Tees Bay A, the Teesmouth and Cleveland Coast Special Protection Area (‘**SPA**’) and Ramsar Site, and the water bodies regulated under the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 (‘**the 2017 Water Regulations**’) is provided at **[CB/C988]**.
  * 3. In its report on //Dredged Material Disposal Site Monitoring Around the Coast of England: Results of Sampling (2023-2024) Tees (Inner and Outer),**[CB/A204]**// the Centre for Environment, Fisheries and Aquaculture Science (‘**Cefas**’) stated the following:

> //“The River Tees is associated with many historic and ongoing chemical industries, including brominated flame-retardant producers, which have, in combination with the river’s highly mineralised catchment, resulted in elevated contaminants within dredged sediments. Within the Tees Estuary there has also historically been a breach in the half-tide embankment allowing erosion of the enclosed mudflat; sediments of which were contaminated with high levels of lead and zinc. Analysis of dredged material from the Tees has displayed some of the highest levels of polycyclic aromatic hydrocarbons (‘**PAHs**’) found in UK marine sediments and… high concentrations of persistent organic pollutants including polychlorinated biphenyls (‘**PCBs**’) and polybrominated diphenyl ethers (‘**PBDEs**’) relative to rivers of a similar nature in the UK and Europe.”// **[CB/A215]**

   * 4. Cefas advises that each of these pollutants is toxic to the marine environment. It advises:

> //“PAHs… accumulate in shellfish, either absorbed directly from the marine environment or indirectly through food consumption… The problems caused by PAHs in the marine environment vary considerably from tainting the taste of fish and shellfish to potential carcinogenic effects on humans and animals.”//((https://moat.cefas.co.uk/pressures-from-human-activities/contaminants/pahs-in-sediment-and-biota/
))

> //“PCBs do not break down easily in the environment and are not readily metabolised by humans or animals. PCBs accumulate in marine animals, with greater concentrations found at higher trophic levels. PCB compounds are toxic to animals and humans, causing reproductive and developmental problems, damage to the immune system, interference with hormones, and can also cause cancer.”//((https://moat.cefas.co.uk/pressures-from-human-activities/contaminants/pcbs-in-sediment-and-biota/
))

> //“PBDEs are toxic, they take a long time to degrade and have the potential to accumulate in fish or shellfish (taken up either directly from the surrounding water or indirectly via food)… PBDE are known to affect the nervous, immune and endocrine systems of birds and mammals.”//((https://moat.cefas.co.uk/pressures-from-human-activities/contaminants/pbdes-in-sediment-and-biota/
))// //

  * 5. 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 clearly exceed the level at which material dredged from those locations could safely be disposed at sea. Moreover, the benthic environment is dynamic: the tide and flow of the river transports contaminated sediment; and dredging operations themselves disturb and move contaminants from one place to another.
  * 6. There is //prima facie// evidence that the high level of these contaminants in sediment dredged from the Harbour is responsible for the extremely high mortality rate seen in seal pups born in or around the Harbour in recent years (at least 21 of a total 23 harbour seal-pups born in or around the River Tees in the summer of 2025 died within six months) **[CB/A299]**.
  * 7. Given the established and dynamic levels of contamination in the Harbour, and the potential impacts of such contamination on biodiversity and the marine environment if disposed at sea, the MMO was required to scrutinise the Interested Party’s application for the Marine Licence (‘**the Application**’) with care. As set out below, the MMO unlawfully failed to do so because:
    - Ground 1: the MMO misapplied section 5 of the OSPAR Guidelines for the Management of Dredged Material at Sea (Agreement 2014-06) (‘**the OSPAR Guidelines**’) and therefore accepted an inadequate number of sediment samples when concluding that the dredged material would be suitable for disposal at sea.
    - Ground 2: the MMO failed to ensure that there were no reasonably available alternatives to disposal at sea, as required by regulation 22 of the Waste (England and Wales) Regulations 2011 (‘**the Waste Regulations**’).
    - Ground 3: the MMO erroneously concluded that the Application did not fall within schedule A2 to the Marine Works (Environmental Impact Assessment) Regulations 2007 (‘**the 2007 EIA Regulations’**) and therefore failed to screen for, or require, environmental impact assessment.
    - Ground 4: the MMO failed to comply with its duty, under regulation 4 of the Marine Strategy Regulations 2010 (‘**the MSR 2010**’), to exercise its functions on behalf of the Secretary of State so as to secure compliance with the requirements of the Marine Strategy Framework Directive (Directive 2008/56/EC) (‘**the MSFD**’), including the requirement in Article 1 MSFD to take the necessary measures to achieve or maintain good environmental status of marine waters within the marine strategy area.
    - Ground 5: the MMO failed to carry out a lawful appropriate assessment of the proposed activity for the purposes of regulation 63 of the Conservation of Habitats and Species Regulations 2017 (‘**the 2017 Habitats Regulations**’).
    - Ground 6: the MMO failed to have regard to an obviously material consideration, namely the evidence provided by consultees linking high mortality of seal pups in the Harbour to the levels of contaminants in dredged sediment.
  * 8. Further, the Marine Licence is legally defective because the licence fails to identify the boundaries of the excluded areas from which dredged material may not be disposed at sea and the condition excluding those areas is thus void for uncertainty (Ground 7).
  * 9. On account of those errors of law, the Marine Licence is unlawful. The Claimant does not wish to interfere with necessary dredging activities that are critical to navigation in the Harbour and he does not seek a quashing order that would have that effect. Instead, the Claimant invites the Court to issue a quashing order, suspended for a period of nine months, to enable:
    - The Interested Party to: i) carry out a further sampling exercise that complies with the OSPAR Guidelines; ii) lawfully apply the waste hierarchy and demonstrate genuine consideration of alternatives to disposal at sea; and iii) make a revised application; and
    - The MMO to consider and lawfully determine the revised application, avoiding the errors of law identified above and below.

===== SECTION 2: LEGAL FRAMEWORK =====

==== 2.1 The MMO’s duties under the Marine and Coastal Access Act 2009 ====

  * 10. The statutory arrangements under which the MMO operates in the exercise of its marine licensing functions were summarised in //**R (Tarian Hafren Severn Shield CYF) v Marine Management Organisation**// [2022] EWHC 683 (Admin).
  * 11. Section 2(1) 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.**{CB/C947]**
  * 12. 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. The relevant marine policy document in this case is the North East Inshore and Offshore Marine Plan (‘**the NE Marine Plan**’).**[CB/C909]**
  * 13. 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…”//
  * 14. Section 67 of the 2009 Act 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”//
  * 15. 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 **[CB/C807]** requires the MMO to (among other things):
    - Act in accordance with the Marine Policy Statement (‘**MPS**’); and
    - Have regard to the need for evidence-based decision making driven by sound science and the application of the precautionary principle.
  * 16. Paragraph 3.6 of the MPS addresses 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)

  * 17. For the purposes of the statutory duty under section 58 of the 2009 Act, the relevant marine policy document is the NE Marine Plan. That 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.

==== 2.2 Other statutory duties of the MMO ====

  * 18. Regulation 22 of the 2011 Waste 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.
  * 19. Regulation 3(1) of the 2017 Water Regulations requires the Secretary of State to exercise his “relevant functions” so as to secure compliance with the requirements of the Water Framework Directive (‘**WFD**’). 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 of the 2009 Act.
  * 20. Regulation 4 of the MSR 2010 requires the Secretary of State to exercise his “relevant functions” so as to secure compliance with the requirements of the Marine Strategy Framework Directive (‘**MSFD**’), including the requirement in Article 1 to take the necessary measures to achieve or maintain good environmental status (‘**GES**’) of marine waters within the marine strategy area. By regulation 4(2) and Schedule 2, “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.
  * 21. Regulation 63 of the 2017 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).
  * 22. Regulation 8 of the Marine Works (Environmental Impact Assessment) Regulations 2007 require the MMO, as the appropriate authority, to consider whether any Schedule A2 project is likely, because of its size, nature or location, to have significant effects on the environment (‘screening’). If so, the application for such a project must be subject to environmental impact assessment. Paragraph 76 of Schedule A2 includes projects relating to “sludge deposition sites”. Paragraph 89 of Schedule A2 includes any change to or extension of development of a description listed in paragraphs 1 to 87 of Schedule A2 where that development is already authorised.

==== 2.3 MMO and OSPAR guidance on dredge sampling ====

  * 23. 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” **[CB/C920]**. It states:

> //“__The MMO must ensure that sediment sample analysis data submitted in support of marine licence applications is consistent__, and in a format that lets us compare separate applications. //

> //…//

> //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.”// (emphasis added)

  * 24. The OSPAR guidelines that the MMO has committed 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 **[CB/C916]**. They state: //“Contracting Parties should take these guidelines into consideration in their authorisation or regulation procedures for dredged material.”// (para.2.1)
  * 25. 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.”//

  * 26. Section 6 addresses the characterisation of dredged material. Section 6.13 requires contracting parties to identify lower and upper “action levels” as follows:

> //“a. Upper action levels – the limit above which dredged material is considered unsuitable for normal disposal at sea but may be suitable for other management options, see paragraphs 7.4 – 7.6 below;//

> //b. Material below the upper level but exceeding the lower level requires more detailed assessment before suitability for disposal at sea can be determined. This may involve additional chemistry, ecotoxicity tests, delineation of the dredge area or additional evidence or consideration such as physical size distribution, final end use of the material to apply the weight of evidence approach.//

> //c. Lower action levels – the limit below which dredged material is generally considered of little environmental concern for disposal at sea.”//

==== 2.4 Cefas Action Levels ====

  * 27. In compliance with OSPAR obligations, Cefas has identified upper and lower actions levels: Action Level 1 (AL1) is the lower threshold and Action Level 2 (AL2) is the upper threshold. Sediments with contaminant concentrations lower than AL1 are generally considered acceptable for disposal at sea. Sediments with contaminant concentrations above AL2 are generally considered unacceptable for disposal at sea. Sediments with contaminant concentrations between AL1 and AL2 are evaluated using a “weight of evidence approach”.
  * 28. The current ALs were implemented in 1995 for England and Wales. In 2003, Defra proposed revised ALs but these were not adopted. In 2015, the High Level Review of Current Action Level UK Guidance found that the current ALs were not fit for purpose because (among other things), Cefas AL2 values were not sufficiently conservative and ALs had only been adopted for a limited number of PAHs and PCBs.
  * 29. In 2020, Cefas proposed changes to existing ALs and new ALs for parameters without existing ALs (‘**the 2020 Report**’). These changes have not been adopted but, as a matter of practice, Cefas applies the proposed ALs set out in Table 5-1 of the 2020 Report as “other assessment criteria” **[CB/C908]**.

===== SECTION 3: FACTUAL BACKGROUND =====

==== 3.1 The Interested Party ====

  * 30. The Interested Party is 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**’).
  * 31. 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.
  * 32. The Interested Party does not, however, have statutory authority to dispose of any dredged material at sea. To do that, the Interested Party requires a marine licence from the MMO.
  * 33. The Interested Party has enjoyed a maintenance dredge disposal licence since 2005. The most recent licence (L/2015/00427/7) permitted material dredged from the Harbour to be disposed at Tees Bay A from 1 January 2015 until 31 December 2025. On account of the level of contamination in some areas of the Harbour the most recent licence excluded from scope any material dredged from the following wharfs/frontages: Cochrane's/Tees wharf; Normanby Wharf Graving Dock; Tees Offshore Base; Teesport Commerce Wharf Dry Dock; Wharf Britannia; and Enterprise Zone.

==== 3.2 The Application ====

  * 34. 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**’) **[CB/A366]** and ii) Tees Maintenance Dredging Water Environment Regulations (WER) Compliance Assessment (‘**the WER Report’**) **[CB/B489]**.
  * 35. No Environmental Statement (‘**ES**’) was provided and no Environmental Impact Assessment (‘**EIA**’) was carried out.

//3.2.1 The Baseline Report//

  * 36. The Baseline Report claimed to have been produced for the purpose of demonstrating that the dredging and disposal activity was compliant with the 2017 Habitats Regulations. The Baseline Report acknowledged that certain areas within the Harbour were excluded from the existing licence for disposal on account of high levels of contamination (section 3.2). In the same section (section 3.2), it set out the results of sediment analyses carried out in recent years, including:
    - A summary of the results of mid-licence year 3 (2018 and 2019) results containing sedimentary analysis of:
      - 36 samples from the benthic environment of the River Tees, 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 AL1, and high concentrations of total hydrocarbons. In some samples, levels of BDE209 were far in excess of the AL2 “other assessment criteria” (up to 407μg/kg as compared to the AL2 threshold of 47.5 μg/kg) **[CB/A447]**.
      - 10 surface sediment samples taken upstream in December 2018 which showed one exceedance each of AL2 for PCB, mercury and zinc, and BDE209 far in excess of the AL2 “other assessment criteria” (up to 912μg/kg as compared to the AL2 threshold of 47.5 μg/kg) **[CB/A448]**.
      - For Low Molecular Weight (‘**LMW**’) PAHs, only one sample out of a total of 57 samples was below the AL1 “other assessment criteria”, and only four of the 57 samples were below the AL2 “other assessment criteria”, meaning the vast majority exceeded the AL2 “other assessment criteria” **[CB/A446-450]**.
    - A summary of the results of mid-licence year 9 results (2024) of sedimentary analysis of 31 samples from the benthic environment of the Harbour, taken in 2024, which indicated:
      - levels of metals in excess of Cefas Action Level 1 **[CB/A460]**;
      - levels of LMW PAHs in excess of the AL2 “other assessment criteria” (up to 4820μg/kg as compared to the AL2 threshold of 3160μg/kg) **[CB/A60-A466]**;
      - levels of PBDEs, BDE209, BDE99 and BDE100 far in excess of the AL2 “other assessment criteria”: BDE209 up to 337μg/kg as compared to the AL2 threshold of 47.5μg/kg; BDE99 up to 6μg/kg as compared to the AL2 threshold of 1.0μg/kg; BDE100 up to 1.27μg/kg as compared to the AL2 threshold of 1μg/kg **[CB/A460-A466]**.
  * 37. Although the exceedances of these AL2 and AL2 “other assessment criteria” thresholds would ordinarily have rendered the material unsuitable for disposal at sea, the Report noted that “//Given historic manufacture of these chemicals in the area, it is acknowledged by the MMO that elevated PBDEs are to be expected and consequently it is more appropriate to compare data to previous PBDE datasets to look at historical trends (i.e. a decreasing trend indicates the risk is reducing)”// **[CB/A389]**. As addressed below, that reasoning is difficult to understand: toxic levels of contamination remain toxic to the marine environment, regardless of whether they are decreasing over time.
  * 38. At section 3.6 of the Baseline Report, it was acknowledged that alternative use considerations were a legal requirement of the marine licensing process. The Interested Party noted that //“where suitable, a proportion of dredged arisings for alternative (beneficial) use within the estuary have been identified”// **[CB/A391]** but no attempt was made to demonstrate compliance with the waste hierarchy in this, or any other, part of the Application.
  * 39. Section 6.2 of the Baseline Report addresses water quality in the relevant water bodies regulated by the 2017 Water Regulations (Tees Coastal and Tees transitional). It acknowledged that both water bodies had failing chemical status on account of pollutants including PDBEs, PAHs, and mercury. The assessment also acknowledged that dredging and disposal of contaminated sediment can re-release such pollutants into the water column.
  * 40. Section 6.1.4 of the Baseline Report included the results of plume modelling that provided an indication of the likely spread of the sediment plume generated when material was disposed of at Tees Bay A **[CB/A404-405]**. That plume modelling was carried out in 2006 for the purpose of a capital dredge application and (unrealistically) assumed no waves **[CB/A182-183]**. It nonetheless indicated that the sediment plume spread extremely close to the Teesmouth and Cleveland Coast SPA and Ramsar Site (see the overlaid plan produced by the Claimant at **[CB/A120]**). Given the uncertainty inherent in such a model, and the unrealistic assumptions on which it was based, a precautionary approach would require the assumption that the sediment plume would, in certain conditions, enter deep into the SPA.
  * 41. In any case, the Baseline Report failed to refer to more recent plume modelling, carried out by Cefas in 2022, which shows a far more extensive plume spreading deep into the SPA/Ramsar Site and enduring for the full 72 hour assessment period (//“As the particles are fine i.e. 75% silts they remain in suspension for the duration of the simulation (72 hours).”)// **[CB/A121 & A203]**.
  * 42. Section 7 of the Baseline Report included a consideration of the potential impact of the proposed activity on the Teesmouth and Cleveland Coast SPA and Ramsar Site and Teesmouth and Cleveland Coast SSSI. Both the SPA/Ramsar site and the SSSI are in unfavourable condition, with significant parts of the SSSI in a condition of continual decline. The assessment acknowledged that the SPA/Ramsar Site/SSSI was sensitive to a number of pressures that could be exacerbated by the proposed activity including (among other things): disturbance of substrate on the surface of the seabed; smothering and siltation rate changes; and changes in suspended solids (water clarity). However, the assessment ruled out adverse impacts on the SPA/Ramsar Site/SSSI from the disposal of dredged material because (in apparent reliance on the 2006 plume modelling and ignoring the 2022 plume modelling), the Interested Party concluded that:
    - //“baseline information indicates that dispersal occurs quickly and effects are localised to the disposal site. There is therefore no pathway for effect”// **[CB/A429] [CB/A430???] [CB/A431]**; and
    - //“studies undertaken to inform various projects do not indicate that disposal operations at the Tees Bay A disposal site would affect the SPA/Ramsar as sediment plumes dilute quickly, within close proximity to disposal site boundary.”// **[CB/A432]**
    - //“sediment plumes dilute quickly, within close proximity to disposal site boundary”// **[CB/432]**.
  * 43. On the basis of the 2006 modelling relied on by the Interested Party, which showed the sediment plume spreading very close to the SPA, these conclusions were plainly not precautionary. On the basis of the 2022 plume modelling produced by Cefas, these conclusions were simply wrong.

//3.2.2 Omissions in the Application//

  * 44. Notwithstanding the acknowledged toxicity of PAHs, PDBEs and PCBs to marine life, and notwithstanding the fact that sediment sampling indicated significant exceedances of AL2 and/or AL2 “other assessment criteria” for these pollutants, the Interested Party did not provide any assessment of:
    - the potential impact of the disposal of contaminated material on water quality in the marine environment outside the water bodies regulated by the 2017 Water Regulations;
    - the potential impact of the disposal of contaminated material on marine life, in particular harbour seals.

==== 3.3 Representations of consultees ====

//3.3.1 Natural England//

  * 45. Natural England made representations on the application, noting the close proximity of the proposed works to the Teesmouth and Cleveland SPA and Ramsar Sites **[CB/B712]**. It expressed the view that the application may have a likely significant effect on the SPA and recommended that the MMO, as competent authority, carry out an appropriate assessment of the application.
  * 46. Natural England said **[CB/B713]**:

> //“Heavy industrialisation and historic contamination is associated with the area. Contaminants can be effectively ‘locked into’ the seabed sediments in ports and harbours and subsequent re-mobilisation (eg by dredging or disposal) can release these contaminants into the water column. Subsequent resettlement of contaminants risks adverse effects on adjacent/downstream sites causing potential harm to qualifying features either directly or, through bioaccumulation of toxins via food chain processes.//

> //…given the close proximity of protected sites along the north-east coastline, the ecological impact of contaminants, and the possibility that new evidence may come to light following further investigations, we encourage the MMO to take a cautious approach when considering activities within the Tees which may mobilise contaminated sediment, and to consult with the relevant experts and authorities using the best available evidence on these matters”//

  * 47. While Natural England deferred to Cefas and the Environment Agency for further detailed advice on contaminated sediments, it also drew the MMO’s attention to the Supplementary Advice on Conservation Objectives for the Teesmouth and Cleveland Coast SPA which contains a target to //“reduce aqueous contaminants to levels equating to High Status according to Annex VIII and Good Status according to Annex X of the Water Framework Directive, avoiding deterioration from existing levels”//

//3.3.2 Cefas//

  * 48. Cefas made representations on the application, noting that the sample size of 31 sites was //“slightly less than the OSPAR guidelines which recommend 30 sites for dredges up to 2,000,000 m3 with an additional ten sites per million m3 thereover, but it was considered that this would provide adequate spatial coverage across the dredge locations”//.
  * 49. That advice was consistent with the advice given by the MMO to the Interested Party in advance of the 2024 mid-licence sampling exercise **[CB/A258]**. However, it was based on a clear misconstruction of section 5 of the OSPAR Guidelines and was wholly inappropriate for consideration of a new 10 year licence **[CB/C917]**. 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 two tables to help identify //“the minimum number of sampling stations”.// Consistent with paragraph 5.3 of the Guidelines, those two tables reflect both i) the surface area to be dredged (‘**the spatial table**’) and ii) the volume to be dredged (‘**the volumetric table**’).
  * 50. The Cefas approach to the OSPAR Guidelines as set out at paragraph 48 above, which aligned with the MMO’s 2024 advice to the Interested Party, __only__ had regard to the requirements of the __volumetric__ table and had no regard to the __spatial__ table. As set out in paragraphs x – y of the Claimant’s witness statement at **[CB/A111]**, while the volumetric table required a minimum of 35 sampling stations, the spatial table required:
    - 611 sampling stations if applied to the full licensed dredge area of 12,104,900m2;
    - 322 sampling stations if applied to the more limited area of the Harbour that is understood to have been typically dredged as a matter of practice (c.6,000,000m2).
  * 51. While there is scope for the application of professional judgment in applying the OSPAR Guidelines, Cefas’s / the MMO’s approach of applying the volumetric table __only__, without any regard to the spatial table, was plainly inconsistent with the OSPAR Guidelines, particularly in the context of the heterogeneous and dynamic nature of the benthic environment of the Harbour. Moreover, its conclusion that 31 samples //“would provide adequate __spatial__ coverage”// when that number was between 10 and 20 times less than the minimum number required by the spatial table (and also lower than the number of samples required by the volumetric table) was clearly inconsistent with the Guidelines.
  * 52. As for the results of sampling, Cefas referred the MMO to the advice provided on 16 January 2025 **[CB/A308].** That advice noted (among other things) that:
    - The levels of LMW PAHs in the majority of samples assessed exceeded the AL2 “other assessment criteria”. Cefas advised that this //“would normally preclude the material from continued disposal to sea due to levels that would pose a risk to the marine environment, however the river Tees is historically an area that exhibits PAH levels higher than other UK rivers due to industrial sources and history of the river, especially acute LMW PAHs.”// On the basis that the historic trend showed decreasing levels of LMW PAHs, Cefas advised that the PAH results did not preclude material from continued disposal to sea (paragraphs 25-26).
    - The levels of PBDEs raised concern for disposal at sea from risk to the marine environment, significantly exceeding the AL2 “other assessment criteria”. Nonetheless, on account of the fact that //“material in the river Tees are known to exhibit elevated PBDE levels above the LOD due to the historic manufacture of these chemicals in the Area”,// Cefas advised that //“a more appropriate assessment”// was to compare current levels to historic levels. On that assessment, levels of BDE209 and BDE99 //“pose a high risk to the marine environment at some sites… [and] a potentially unacceptable risk to the marine environment.”// Nonetheless, Cefas advised that //“Given that the levels of BDE 209 and BDE99 appear to be lower or generally consistent with the levels observed in previous years (excluding the BDE maximum) and given that the elevated presence of PBDEs in the river Tees that can be traced to historic industrial inputs the material, whilst of concern, may be allowed for disposal, in this case to Tees Bay A”.//
  * 53. Accordingly, Cefas advice was that the levels of LMW PAHs and PBDEs in the samples provided by the Interested Party posed a risk to the marine environment and were above the level at which the material would normally be considered safe for disposal to sea. However, because those levels were no worse than had historically been the case in the River Tees, the material could continue to be disposed of at sea, notwithstanding its toxicity. That advice was repeated in the consultation response at paragraphs 23-30.
  * 54. That advice is difficult to understand. Cefas accepts that LMH PAHs and PDBEs are toxic and material that shows exceedances of the AL2 “other assessment criteria” should not ordinarily be disposed of at sea. The fact that the River Tees has had levels of PAHs and PBDEs in excess of those levels does not reduce the toxic effects of contaminated sediment on the marine environment.
  * 55. That said, Cefas is not subject to the same statutory duties as the MMO and provided this advice without regard to, for example, the MMO’s specific duties under the 2007 EIA Regulations, the 2017 Habitats Regulations, the MSR 2010, or the 2011 Waste Regulations. In considering the Cefas advice, the MMO was required to consider it in the context of those statutory duties, and in light of other consultation responses.

//3.3.3 North East Marine Research Group//

  * 56. The Claimant made representations on the application as the lead author of the North East Marine Research Group (‘**NEMRG**’) **[CB/B550, B575, B577, B601]**, an informal coalition of academics, representatives from fishing groups, charities and community organisations. Among other things, the NEMRG objected to the Application on the basis that it adopted a “providential” rather than “precautionary” approach. In particular, NEMRG’s representations noted that:
    - by assuming that existing practices were acceptable on account of long-term occurrence, and by assessing the likely environmental effects of proposed polluting activity against a baseline of existing polluting activity, the Application failed properly to assess the risk of harmful impacts on the marine environment, despite actual evidence that existing practices might be having harmful impacts (e.g. high mortality of harbour seal pups). NEMRG specifically referred the MMO to the Tees Estuary Seal Study (TESS) **[CB/B553, B616]**.
    - the sediment quality analysis was insufficient because it proceeded on the erroneous basis that the benthic environment of the River Tees was relatively homogeneous when it was clearly not. The NEMRG therefore recommended further samples be taken **[CB/B555, B569, B601]**.

==== 3.4 The MMO’s consideration of the application ====

  * 57. The MMO’s consideration of the application is evidenced in three ‘Gateway’ documents known as Gateway 1 **[CB/B510]**, Gateway 2 **[CB/B517]** and Gateway 3 **[CB/B729]**. In addition, the MMO purported to carry out a Habitats Regulations Assessment **[CB/B718]** and an assessment of the application against the policies in the NE Marine Plan **[CB/C754]**.
  * 58. On the basis of that consideration, the MMO decided to issue the Marine Licence on 5 November 2025 **[CB/A62 & A66]**.

==== 3.5 Pre-action correspondence ====

  * 59. On 4 and 15 December 2025, the Claimant sent pre-action correspondence to the MMO and Interested Party **[CB/A124, A142]**. On 16 December 2025 the MMO and on 17 December 2025 the Interested Party agreed not to take a point on delay if the claim was issued in the first half of January 2026 **[CB/A144, A145]**. On 24 December 2025, the MMO provided a pre-action response **[CB/A153]**.

===== SECTION 4: GROUNDS OF CLAIM =====

==== 4.1 Ground 1: irrational acceptance of inadequate sampling ====

  * 60. The MMO accepts that the benthic environment of the Harbour is variably contaminated and shows little to no homogeneity. The MMO also accepts that:
    - parts of the Harbour have been excluded from previous licences because they contain levels of pollutants that are not safe for disposal at sea; and
    - other parts of the Harbour that have been included in previous licences contain levels of pollutants that nonetheless significantly exceed the AL2 and AL2 “other assessment criteria”.
  * 61. Those factors necessitated a rigorous sampling exercise to ensure that any material dredged from the Harbour was safe for disposal at sea.
  * 62. As acknowledged in the MMO’s guidance “Marine licensing: Sediment Analysis”, the MMO is required by section 2(1)(c) of the 2009 Act to exercise its functions consistently and it therefore “//must ensure that sediment sample analysis data submitted in support of marine licence applications is consistent.”// To ensure such consistency, the MMO applies the OSPAR Guidelines to determine the adequacy of sediment sample data submitted in support of a marine licence application.// //
  * 63. The MMO initially required the Interested Party to provide only 31 samples for the purposes of satisfying a 2024 mid-licence sampling condition **[CB/A258]**. As expressed in its letter of 1 April 2025, that was not initially intended to substitute for sampling for a new marine licence application and the MMO emphasised that //“new sampling will be required for any future Marine Licence applications”// **[CB/A342]**//.// By subsequently reversing that position and accepting that the 31 samples provided by the Interested Party for the purposes of satisfying a mid-licence condition were also sufficient for the purposes of an application for a new 10 year licence, the MMO failed to apply the OSPAR Guidelines. Contrary to the MMO’s view that the 31 samples “//would provide adequate spatial coverage across the dredge locations”,// the 31 samples constituted less than 10% of what the OSPAR spatial table required.
  * 64. The Court is referred to paragraphs xx – yy of the Claimant’s witness statement. In those paragraphs, the Claimant explains that the 31 samples provided by the Interested Party were __fewer__ than the minimum samples required as assessed purely against the OSPAR volumetric table and between __10 and 20 times__ __fewer__ than what was required by the OSPAR spatial table. In practice, the 31 samples provided meant that only one sample was provided for every 55 football fields of area to be dredged. In a highly heterogenous and contaminated benthic environment, this did not arguably comply with the requirements of the OSPAR Guidelines.
  * 65. In pre-action correspondence, the MMO argues that the OSPAR Guidelines do not require the application of the spatial table and the application of the volumetric scale was sufficient. While the Claimant accepts that there is scope for the application of professional judgment in ensuring a sampling programme that reflects __both__ spatial __and__ volumetric scales, the OSPAR Guidelines do not, on any rational basis, in relation to a highly heterogenous benthic environment, support the MMO’s conclusion that “//adequate spatial coverage across the dredge locations”// was delivered through 31 sample stations when the OSPAR spatial table required somewhere between 322 and 610 sample stations and the OSPAR volumetric table alone required 35 samples. Moreover, by failing to require the Interested Party to provide samples from areas adjacent to the excluded “hotspots”, the MMO failed properly to assess and/or manage the risk of contaminant migration in these areas: see the Claimant’s witness statement at **[CB/A113]**.
  * 66. The MMO suggests that the Court should 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). However, that enhanced margin of appreciation relies on a //“sufficiently clear and full explanation of the reasoning process of the defendant… as a quid pro quo for that enhanced margin of appreciation”// (see //**R (Friends of the Earth Ltd & others) v Secretary of State for Business Energy and Industrial Strategy**// [2022] EWHC 1841 (Admin) at [192]). No clear and full explanation of the reasoning process is available here, where the MMO has provided no explanation for their conclusion that //“adequate spatial coverage”// was delivered through a sampling exercise that used between 5 and 10% of the number of sampling stations required by the OSPAR spatial table. Moreover, there is no explanation or reasoning for why the MMO changed its view, as expressed in its letter of 1 April 2025, that //“new sampling [would] be required for any future Marine Licence applications”//.
  * 67. To the extent that the MMO has in its possession the results of historic sampling of the sediment in the riverbed, that historic sampling did not arguably provide sufficient reassurance in relation to the contents of the material to be dredged under the new Marine Licence because:
    - The OSPAR Guidelines (3 years?)
    - The historic data highlighted the dynamic and unpredictable nature of the benthic environment of the Harbour: see the Claimant's witness statement at **[CB/A113]**.
  * 68. The MMO’s conclusion that the sampling exercise undertaken by the Interested Party for the mid-licence application was sufficient for the application for the new Marine Licence and consistent with the OSPAR Guidelines reflected a fundamental misapplication of the Guidelines which precluded a reliable or accurate sampling exercise. In misapplying the OSPAR Guidelines, the MMO erred in law because it:
    - failed to comply with its own policy; and/or
    - failed to exercise its functions consistently as required by section 2(1)(c) of the 2009 Act; and/or
    - failed to comply with the obligation in statutory guidance issued by the Secretary of State, pursuant to section 2(1)(a) of the 2009 Act, to apply a precautionary approach when seeking to secure, in the exercise of its functions, a contribution to the achievement of sustainable development.
  * 69. This ground is plainly arguable and the Court is invited to grant permission.

==== 4.2 Ground 2: unlawful failure to apply the waste hierarchy ====

  * 70. Regulation 22 of the 2011 Waste Regulations required the MMO to exercise its licensing functions for the purposes of ensuring that (among other things) the waste hierarchy referred to in article 4 of the Waste Framework Directive was applied to the generation of waste. The waste hierarchy in article 4(1) of the Directive sets out the following order of priority for waste management: (a)  prevention; (b)  preparing for re-use; (c) recycling; (d) other recovery e.g. energy recovery; and (e) disposal.
  * 71. Policy NE-DD-3 of the NE Marine Plan provides that proposals for the disposal of dredged material must demonstrate that they have been assessed against the waste hierarchy and states: //“As a result of dredging activity, disposal of dredge material is often required, whether this is direct disposal __as a last resort__ in the waste hierarchy or deposit of material for alternative uses. This policy ensures that proposals have considered all steps within the waste hierarchy prior to the disposal of dredge material __as a last resort__”// (emphasis added).
  * 72. The legislative and policy obligations above implement international obligations binding on the UK under Article 4(2) and Annex 2 of the London Protocol((Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, 1972)), to which the MPS requires the MMO to have regard. Article 4(2) of the London Protocol provides:

> //“The dumping of wastes or other matter listed in Annex 1 shall require a permit. Contracting Parties shall adopt administrative or legislative measures to ensure that issuance of permits and permit conditions comply with provisions of Annex 2. Particular attention shall be paid to opportunities to avoid dumping in favour of environmentally preferable alternatives.”//

  * 73. Annex 1 lists “dredged material” as waste for which a permit is required. Paragraphs 5 and 6 of Annex 2 provide:

> //“5.// //Applications to dump wastes or other matter shall demonstrate that appropriate consideration has been given to the following hierarchy of waste management options, which implies an order of increasing environmental impact: .1 re-use; .2 off-site recycling; .3 destruction of hazardous constituents; .4 treatment to reduce or remove the hazardous constituents; and// //.5// //disposal on land, into air and in water.//

> //6. A permit to dump wastes or other matter shall be refused if the permitting authority determines that appropriate opportunities exist to re-use, recycle or treat the waste without undue risks to human health or the environment or disproportionate costs. The practical availability of other means of disposal should be considered in the light of a comparative risk assessment involving both dumping and the alternatives.”//

  * 74. The only evidence provided by the Interested Party in relation to its purported compliance with reg 22 of the 2011 Waste Regulations, Policy NE-DD-3 of the NE Marine Plan, and Article 4(2) and Annex 2 of the London Protocol was at section 3.6 of the Baseline Document **[CB/A391]**, as follows:

> //“3.6 Beneficial use of dredged material//

> //Where suitable, a proportion of dredged arisings for alternative (beneficial) use within the estuary have been identified (alternative use considerations are a legal requirement of the marine licensing process for disposal of dredged material under the Waste Framework Directive). To date, material has been provided to the River Tees Trust for habitat improvement to areas of currently degraded intertidal in the Newport Bridge area of the Tees. This comprised the installation of a ‘green-wall’ in front of the existing retaining wall, reprofiling and placement of geotextile bags filled with maintenance dredged material. The "Emerald Duchess" sidecast discharge arm for managed replenishment of intertidal areas is available for use in these projects.”//

  * 75. That evidence showed that, in the past, the Interested Party had directed an unquantified volume of dredged material for beneficial re-use. However, it did not arguably demonstrate that, prospectively, all reasonable options for beneficial reuse of the dredged material had been considered and rejected and that disposal at sea __of the full volume of dredged material__ for which the Marine Licence was required __in relation to__ __the full 10 year period__ was __the last resort__.
  * 76. As established by case law, the waste hierarchy is to be applied flexibly with a view to delivering the best environmental outcome (see e.g. //**R (Protreat) v Environment Agency**// [2019] Env. L.R. 5). However, the legal duty to apply the waste hierarchy to an application for a 10-year Marine Licence to dispose of huge volumes of contaminated material at sea cannot arguably be met through a simple reference to the fact that, in the past, the operator had reused an unquantified volume of dredged material for beneficial use. At a minimum, it required the Interested Party to demonstrate that it had considered all reasonably available options for beneficial reuse of the dredged material and to demonstrate that there were no realistically available alternative options for the volume of dredged material for which the Marine Licence was sought.
  * 77. Accordingly, the MMO’s conclusion in Q13 of the Gateway 2 and 3 documents that //“The applicant has considered the waste heirarchy// [sic] //with sea disposal the preferred option”// **[CB/B529] [CB/B745]** was:
    - not lawfully available on the evidence before it; and
    - in any case, not a lawful application of the waste hierarchy which required at sea disposal to be the “last resort” not the “preferred option”.
  * 78. For those reasons, it is clearly arguable that the MMO erred in law by failing to discharge its duties under reg 22 of the 2011 Waste Regulations, by failing properly to apply policy NE-DD-3 to the Application, and by failing properly to have regard to the requirements of the London Protocol, as required by the MPS. Permission should therefore be granted on this ground.

==== 4.3 Ground 3: unlawful failure to screen for and/or require an EIA ====

  * 79. The proposal to continue to dispose of material dredged from the Harbour at Tees Bay A for a further period of 10 years was a proposal to extend development relating to a sludge deposition site that was already authorised. Accordingly, it fell within paragraphs 76 and 89 of schedule A2 to the 2007 EIA Regulations.
  * 80. The MMO erroneously concluded that the proposal was not EIA development. In both the Gateway 2 and Gateway 3 documents, the MMO concluded **[CB/B517, B731]**: //“The disposal of dredged material within a licenced disposal site is not one that falls under Schedule A1 or A2 of the Marine Works regulations. The MMO does not consider the project to be one that requires an EIA, accordingly no ES has been prepared.”//
  * 81. In pre-action correspondence, the MMO contended that //“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”// **[CB/A162].** The MMO provided no basis for its chosen definition of “sludge” and the Claimant submits it is wrong on three bases:
    - While “sludge” is not defined in the EIA Directive (Council Directive 85/337/EEC), the natural meaning of the word “sludge”, as defined in the Oxford English Dictionary is //“mud, mire, or ooze, covering the surface of the ground or forming a deposit at the bottom of rivers etc.”// **[CB/C1032]**. On that basis, it is clear that a proposal to continue to dispose of material dredged from the bottom of rivers at a specific site falls within paragraphs 76 and 89 of schedule A2 to the 2007 EIA Regulations.
    - Second, to the extent that there is any doubt about the meaning of the term “sludge”, as used in the term “sludge deposition sites” in Annex II of the EIA Directive and schedule A2 of the 2007 EIA Regulations, it should be construed consistently with well-established case law that the EIA Directive should be interpreted broadly to ensure environmental protection: see e.g. Case C-72/95 //Kraaijeveld.// The narrow interpretation favoured by the MMO would have the effect of excluding from the scope of the EIA Directive significant activity that is recognised at both European and domestic level as posing serious risks of environmental harm.
    - Third, applying the MMO’s own (unexplained) narrow definition of sludge as being limited to the product of any industrial or biological process, it is transparently clear on the MMO’s own assessment that the material dredged from the bottom of the River Tees is a mix of both natural sediment and contamination from historic industrial processes. Accordingly, on the MMO’s own definition, the Application should have been treated as falling within paragraphs 76 and 89 of schedule A2 to the 2007 EIA Regulations.
  * 82. As a result, the MMO erred in law by failing to screen the Application for EIA purposes and/or by failing to require the preparation of an environmental statement.
  * 83. In pre-action correspondence, the MMO has stated that, even if the Claimant is correct on the scope of paragraph 76 of schedule A2 to the 2007 EIA Regulations **[CB/A162]**:

> //“You have provided no evidence that// [the proposed activity] //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.”//

  * 84. That argument is without merit:
    - First, it is not the Claimant’s responsibility to identify the likely significant effects that might have been identified had the MMO complied with its legal obligations and had the Interested Party submitted a lawful ES;
    - Second, the Claimant – through NEMRG’s consultation responses – did provide strong //prima facie// evidence that the high mortality rates seen in harbour seals in and around the Harbour were linked to high levels of contaminants in sediment disturbed by dredging and disposal activities.
    - Third, the information submitted by the Interested Party in the Baseline Report and WER Report did not arguably substitute for a lawful ES. Any advice provided by Cefas, Natural England and the Environment Agency was therefore not informed as it would have been had a lawful ES been produced. In particular, the Interested Party’s documents contain no assessment of the potential impact of contaminant bioaccumulation in marine mammals, fish and birds and erroneously assume the absence of any pathway from the disposal of contaminated material and the Teesmouth and Cleveland Coast SPA and Ramsar site (see paragraphs 40-43 above and ground 5 below). Moreover:
      - to the extent the MMO considered for itself the impact of the proposed activity on marine mammals **[CB/B744]**, that consideration was limited to the impacts of noise, vibration, collision risk and sedimentation. No consideration was given to the potential risk of bioaccumulation of contaminants, and there is no evidence that the MMO grappled with the evidence relating to the high mortality rates of harbour seals in the Harbour, as specifically drawn to the MMO’s attention by NEMRG (see ground 6 below).
      - to the extent the MMO carried out its own HRA assessing the impact of the proposal on the Teesmouth and Cleveland Coast SPA and Ramsar site, that HRA was defective (see ground 5 below).
  * 85. For those reasons, this ground of claim is clearly arguable and the Court is invited to grant permission.

==== 4.4 Ground 4: unlawful failure to discharge duty under regulation 4 of the MSR 2010 ====

  * 86. Regulation 4 of the MSR 2010 required the MMO to exercise its licensing functions, on behalf of the Secretary of State, so as to secure compliance with the requirements of the MSFD, including the requirement in Article 1 to take the necessary measures to achieve or maintain good environmental status (‘**GES**’) of marine waters within the marine strategy area.
  * 87. The UK Marine Strategy Part One (2019) indicates that, in relation to the “seals” descriptor (D1 and D4), harbour seals have not yet achieved GES in the Greater North Sea and there is a lack of certainty about the causes of decline **[CB/C882]**. In relation to the “contaminant” descriptor (D8), GES has not been 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. The UK Marine Strategy Part Three (2025) confirms that pollution and toxins, including the prevalence of pollutants such as PCBs and other persistent organic pollutants in the environment is a threat to harbour seals **[CB/C892]**, and confirms that the UK government and devolved governments are using evidence that may arise from stakeholder-led research and management into the decision-making processes to enable key pressures to be addressed, such as biotoxins. The Part Three Strategy also notes that actions to address legacy chemicals in sediment and biota would support the maintenance of GES related to contaminants (D8) and further safeguard the UK marine environment **[CB/C934].**
  * 88. The high level objective for the seals descriptor (D1 and D4) in the Marine Strategy Part One is that: //“The population abundance and demography of seals indicate healthy populations that are not significantly affected by human activities.”// **[CB/C893].** The high level objective for the contaminants descriptor in the Marine Strategy Part One is that //“Concentrations of specified contaminants in water, sediment or marine biota, and their effects, are lower than thresholds that cause harm to sea life, and are not increasing”// **[CB/C901]**.
  * 89. In determining the Application, the MMO failed to have regard to the duty in regulation 4 and failed to consider the impact of the proposal on the ability of the Secretary of State to achieve or maintain GES in the marine strategy area. There is no evidence that the MMO considered its duty under regulation 4 at any stage of decision making.
  * 90. In pre-action correspondence **[CB/A153]**, the MMO does not claim that it ever turned its mind to the regulation 4 MSR 2010 duty but it has provided the following two responses to this ground of claim:
    - First, the MMO contends that the duty in regulation 4 MSR 2010 is to be achieved through the development and delivery of marine strategies under regulation 5. That is wrong. The duties in regulation 4 and 5 are separate duties. While the UK Marine Strategy exists to ensure a strategic approach to delivering GES, the regulation 4 duty must be discharged separately __in the exercise of licensing functions__, so as to secure compliance with the requirements of the MSFD. There is no evidence that the MMO complied with this separate duty.
    - Second, the MMO contends that it did, in substance, comply with the regulation 4 duty because it assessed whether the dredged material was safe for disposal at sea and concluded that it was. However, that conclusion:
      - was based primarily on Cefas’s advice that, notwithstanding the fact that the material contained levels of LMW PAHs and PCBEs well in excess of the level at which it would ordinarily be safe for disposal at sea, the material could be disposed at sea because levels of LMW PAHs and PCBEs were historically high in the River Tees. That advice was given without consideration of the MMO’s statutory duties (including the regulation 4 duty as well as duties arising under the 2017 Habitats Regulations), and without regard to evidence received by the MMO through the consultation process relating to bioaccumulation of these contaminants in marine mammals in general and harbour seals in particular; and
      - did not grapple with the specific evidence relating to the high mortality rates of harbour seals in and around the Harbour, as drawn to the MMO’s attention by NEMRG.
  * 91. As with ground 3, the MMO does not benefit from the enhanced margin of appreciation normally afforded to a decision based on matters of technical, evaluative judgment (see e.g. //**R (Mott) v Environment Agency**// [2016] 1 WLR 4338). where it is unable to provide a clear and full explanation of the reasoning process and where there are significant gaps in the MMO’s evaluation of the proposal.
  * 92. For those reasons, this ground of claim is clearly arguable and the Court is invited to grant permission.

==== 4.5 Ground 5: failure to carry out a lawful appropriate assessment ====

  * 93. Pursuant to regulation 63 of the 2017 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. The assessment required by the 2017 Habitats Regulations was required to be without lacunae and to contain //“complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the proposed works on the protected site concerned”// : //**People Over Wind & Sweetman v Coillte Teoranta**// C-323/17. That required the application of the precautionary principle: //**Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij**// (C-127/02) [2005] Env. L.R. 14.
  * 94. In breach of that obligation, the MMO failed to carry out a lawful appropriate assessment. In particular, in its HRA, the MMO failed to consider the potential impacts of LMW PAHs, PCBs, PDBEs, and heavy metal contaminants on the integrity of the SPA because it:
    - wrongly accepted the Interested Party’s evidence, as set out in the Baseline Report, that there was //“no pathway for effect”// from disposal at Tees Bay A to the SPA;
    - ignored Cefas’s 2022 evidence (which was known to the MMO) that the sediment plume from disposal at Tees Bay A spread well into the SPA and remained suspended for more than 72 hours **[CB/A121 & A203]**.
  * 95. In pre-action correspondence, the MMO contends that it did not accept the Interested Party’s evidence that there was “no pathway for effect” **[CB/A161]**. That is correct insofar as the HRA accepted there was a pathway for effect __from water noise and visual disturbance__ **[CB/B722]**. However, as regards the entry of contaminated sediment into the SPA and the impact of that sediment on the conservation objective target to “//reduce aqueous contaminants”,// the HRA accepted the erroneous evidence in the Baseline Report that **[CB/B722]** //“the material disposed to Tees Bay A is carried in a South Easterly direction with the peak depositions occurring outside of the SPA boundary. Therefore, the MMO does not consider there to be an impact to supporting habitat nor a significant impact on water clarity which is a medium pressure impact for Common, Sandwich and Little Tern only.”//
  * 96. That conclusion is repeated in the MMO’s Gateway 3 document in relation to:
    - the Teesmouth and Cleveland Coast SSSI **[CB/B736]**: //“Due to the distance and expected dispersal of the material within the disposal site, no impact pathway has been identified”;// and
    - the water bodies regulated by the 2017 Water Regulations **[CB/B519]**: “//The WER assessment includes information that shows that the material deposited within the site could be dispersed in a South Easterly direction parallel to land and not encroaching on the WFD body.”//
  * 97. As set out above, the conclusions in the Baseline Report that the MMO relied on were contradicted by Cefas’s 2022 plume modelling. Any lawful appropriate assessment was required to grapple with that evidence, particularly as:
    - the 2022 Cefas plume modelling showed that the sediment plume from disposal at Tees Bay A spread deep into the SPA/Ramsar site and remained suspended for more than 72 hours after disposal;
    - the sediment in the plume would contain levels of LMH PAHs and PDBEs well in excess of what is ordinarily considered safe for disposal;
    - those contaminants are known to have adverse effects on fish and birds, including those reliant on the habitat in the SPA/Ramsar site;
    - the SPA/Ramsar site is sensitive to smothering and siltation rate changes and changes in suspended solids (water clarity);
    - one of the conservation objective targets for the SPA/Ramsar site is to “//reduce aqueous contaminants”.//
  * 98. Accordingly, the failure of the HRA to assess the potential impact of the contaminated sediment plume on the integrity of the SPA was a lacuna in the assessment constituting a material error of law.
  * 99. Alternatively, and to the extent the MMO did assess these potential impacts (which is denied), that assessment was legally flawed because the MMO’s approach was to treat the existing (soon to expire) licensed disposal activity as part of the baseline against which the proposed licensed disposal activity was to be assessed. This flawed approach is seen:
    - In the HRA itself **[CB/B722]**: “//As there is no increase in the quantity to be deposited there will be no increase above the existing baseline for material currently being deposited nor would there be an increase on the existing pressures on the SPA features”;// and
    - In the Gateway 2 and 3 documents **[CB/B520, B732]**: //“The licence will effectively "carry on" with existing disposal activities from maintenance dredging which has been undertaken for 15+ years. Therefore there is no increase in existing pressures as a result of this application.”//
  * 100. That approach was legally flawed because:
    - The proper comparison for the HRA was between the “do something” (grant the licence) and the “do nothing” (do not grant the licence) scenarios. That approach would have properly assessed, on a precautionary basis, the likely significant effects of the regulatory decision the MMO was charged with.
    - Further or alternatively, the proper approach was to consider the __cumulative__ impact of a further 10 years of disposal activity in combination with the preceding 15+ years of disposal activity: see //**R (Baker) v Bath and North East Somerset**// [2009] EWHC 595 (Admin). The MMO unlawfully failed to consider the cumulative / in-combination effects of the temporal extension to the existing licence, wrongly assuming that “no change in activity” meant “no effect”.
  * 101. For those reasons, this ground of claim is clearly arguable and the Court is invited to grant permission.

==== 4.6 Ground 6: failure to have regard to a mandatory material consideration ====

  * 102. In its representations to the MMO, NEMRG drew the MMO’s attention to evidence of the link between high mortality rates of harbour seal pups in the Harbour and high levels of pollutants in the sediment dredged from the River Tees and disposed of at Tees Bay A: see **[CB/B553, B573, B575, B616-617. B645]** and see [CB/A164, A277] for the Reports cited in the NEMRG representation.
  * 103. This evidence / these representations were “relevant facts and matters” that the MMO was required to take into account for the purposes of section 2(1)(b) of the 2009 Act and were “so obviously material” to the decision that the MMO was required to have regard to them as a matter of common law: see //**R (Friends of the Earth Ltd & others) v Secretary of State for Business Energy and Industrial Strategy**// [2022] EWHC 1841 (Admin) at [200].
  * 104. Unlawfully, the MMO failed to take into account, have regard to, and/or grapple with, the evidence / representations relating to the high mortality rates of harbour seal pups in the Harbour and the link to high levels of pollutants in the sediment dredged from the Harbour. In pre-action correspondence, the MMO (wrongly) stated that this evidence was //“new information”// provided at the pre-action stage and confirmed that the MMO //“ha[d] not previously considered [it] in the exercise of its functions in relation to the activity”// **[CB/A154]**. In the Claimant’s submission, that is an admission of an error of law in the decision-making process.
  * 105. This ground of claim is clearly arguable and the Court is invited to grant permission.

==== 4.7 Ground 7: exclusion condition void for uncertainty =====

  * 106. Section 5.2.3 of the Marine Licence excludes from disposal at sea material dredged from the following wharfs/frontages: Cochrane's/Tees wharf; Normanby Wharf Graving Dock; Tees Offshore Base; Teesport Commerce Wharf Dry Dock; Wharf Britannia; and Enterprise Zone. That condition is of critical importance because it seeks to avoid the serious environmental harm that would flow from the disposal of highly contaminated sediment at sea.
  * 107. The Marine Licence does not, however, provide any plan or coordinates for the excluded areas and does not define their boundaries. While, in pre-action correspondence, the MMO has provided the Claimant with a low resolution plan identifying the excluded areas **[CB/C799]**, that plan forms no part of the Marine Licence.
  * 108. As a result, the condition contained in section 5.2.3 of the Marine Licence is so uncertain as to be void. That is, the MMO could not reasonably enforce against the Interested Party for disposing of material dredged from any part of the River Tees because no part of the Marine Licence defines the location and extent of the excluded areas.
  * 109. By analogy with the planning case law, a condition that is so uncertain or imprecise as to be unenforceable is void for uncertainty: see e.g. //**Fawcett Properties Ltd v Buckingham CC**// (1961) AC 636. Where that condition goes to the heart of the licence, the licence itself is unlawful. Given the critical importance of the condition at section 5.2.3 to the Marine Licence, and its clear unenforceability, the Claimant submits that the licence should be quashed.

===== SECTION 5: CONCLUSION =====

  * 110. For the reasons above, the Court is invited to:
    - Grant permission for judicial review;
    - Make an order pursuant to CPR 46.26(2)(a) that: 
      - the Claimant’s liability for the Defendant’s and Interested Party’s costs is limited to £5,000. 
      - The Defendant’s liability for the Claimant’s costs is limited to £35,000. 
      - The Interested Party’s liability for the Claimant’s costs is limited to £35,000. 
     - Quash the Marine Licence with provision under section 29A(1)(a) of the Senior Courts Act 1981 for the order not to take effect for a period of nine months to enable the Interested Party to take the necessary steps to reapply for a marine licence and for the MMO to redetermine that application on a lawful basis.
     - Grant any other relief the Court sees fit.
     - Award the Claimant his costs of this claim, subject to the relevant caps above.

**13 January 2026**

**TOBY FISHER**

**Matrix**