R Tarian Hafren Severn Shield CYF v Marine Management Organisation
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Holgate |
| Judgment Date | 24 March 2022 |
| Neutral Citation | [2022] EWHC 683 (Admin) |
| Docket Number | Case No: CO/3440/2021 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2022] EWHC 683 (Admin)
Mr. Justice Holgate
Case No: CO/3440/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
David Wolfe QC and Gethin Thomas (instructed by Leigh Day Solicitors) for the Claimant
Sasha Blackmore and Matthew Dale-Harris (instructed by Browne Jacobson) for the Defendant
James Strachan QC and Victoria Hutton (instructed by Eversheds Sutherland) for the Interested Party
Hearing dates: 8 and 9 March 2022
Approved Judgment
This judgment was handed down remotely at 10.30 am on 24 March 2022 by circulation to the parties or their representatives by email and by release to BAILII and the National Archives.
Introduction
The main issue in this claim is whether the power to vary a marine licence under the Marine and Coastal Act 2009 (“MCAA 2009”) cannot be used to license a “marine licensable activity” which has not already been included in the licence being varied. The claimant says that the power of variation cannot be used to license what it describes as a “new activity”. That may only properly be authorised by the grant of a new marine licence. The claimant's challenge is to the variation approved by the defendant, the Marine Management Organisation (“MMO”) on 2 August 2021.
The claimant is a company incorporated on 7 October 2021 by a group of scientists, organisations and individuals to oppose the disposal of material dredged from the Severn Estuary as part of the Hinkley Point C project back into the Severn. A number of the people involved in the company have opposed works of the same type going back to the grant of a marine licence in 2014. The claimant is concerned that the material dredged contains fine radioactive particles, involving a risk of low levels of radiation.
NNB Generation Company (HPC) Limited (“HPC”), the Interested Party, is the promoter of the Hinkley Point C nuclear power station project. In October 2011 it made an application for a development consent order (“DCO”) under the Planning Act 2008 (“PA 2008”) to authorise the construction of the station as a “nationally significant infrastructure project”. The Panel conducted a statutory examination into that application between March and September 2012. They submitted their report to the Secretary of State for Energy and Climate Change on 19 December 2012. The Secretary of State issued his decision letter granting development consent on 18 March 2013. The order was made as SI 2013 No. 648 and came into force on 9 April 2013. There was an opportunity to challenge the order under s.118 of the PA 2008, subject to a 6 week time limit.
The project involves a number of activities or works which are required to be licensed by a marine licence granted under the MCAA 2009. The Secretary of State for Environment, Food and Rural Affairs is the “appropriate licensing authority” for the purposes of marine licensing under Part 4 of the MCAA 2009. However, by The Marine Licensing (Delegation of Functions) Order 2011 (SI 2011 No. 627) (“the 2011 Order”) the Secretary of State has delegated to the MMO certain functions under Part 4, including the determination of applications for a marine licence and the variation of such licences. The MMO exercises those functions as a delegate acting on behalf of the Secretary of State (see s.98(1)(b) of the MCAA 2009 and articles 3 and 4 of the 2011 Order).
In June 2012 HPC applied to the MMO for the grant of a marine licence for marine works related to the project. On 7 June 2013 the MMO granted that licence (“the original licence”). The licence recorded the proposal for the material it authorised to be dredged at Bridgwater Bay (about 5km north of Bridgwater, Somerset) to be disposed of at the Cardiff Grounds licensed disposal site, also lying within the Severn Estuary, but located about 3km off the South Wales coast. That disposal fell outside the territorial jurisdiction of the MMO, but inside that of the Welsh Ministers. On 11 July 2014 a separate marine licence was granted by Natural Resource Wales (“NRW”) on behalf of the Welsh Ministers for disposal of the dredged material at the Cardiff Grounds site (“the NRW licence”).
The MMO granted a series of four variations to the original licence in 2014, 2016, 2017 and 2019.
On 20 December 2019 the MMO granted a fifth variation of the original licence (“version 6”). This licence included three types of activity at Combwich Wharf within the River Parrett which had not been authorised by the original licence or earlier variations (e.g. capital dredging, maintenance dredging and desilting).
Neither the original licence, nor any of the first to fifth variations thereof, were the subject of judicial review.
In April 2020 HPC entered into discussions with the MMO regarding an application they intended to make for a further variation of the marine licence. In August 2020 HPC raised the possibility of using the already designated disposal site at Portishead, in the Bristol Channel, not far from the Somerset coast. The site has an area of about 200 ha. In August 2020 the MMO identified the nature of the additional information they would require and said that the proposed variation would have to be the subject of environmental impact assessment under the Marine Works (Environmental Impact Assessment) Regulations 2007 (SI 2007 No. 1518) (“the EIA Regulations 2007”).
On 20 August 2020 HPC submitted a scoping request to the MMO in respect of the further EIA work. On 17 September 2020 the MMO issued its scoping opinion.
On 21 December 2020 HPC submitted its application for a sixth variation of the marine licence granted in 2013. The proposal sought to carry forward activities authorised by the original licence or earlier revisions thereof (with or without updates resulting from detailed design work). It also proposed further activities, that is activities not previously authorised in earlier iterations of the licence, but now considered necessary because of the evolution of the detailed design. By way of example, the application proposed updated dredging details for the cooling water intakes and outfalls and, as a new matter, disposal of the dredged material at Portishead. It is that disposal which the claimant seeks to challenge in these proceedings.
The application was supported by inter alia the following documents issued in February 2021:-
• a Report to support the variation of the licence;
• an Environmental Statement on the disposal of dredged material at the Portishead disposal site;
• a Water Framework Directive Assessment for the disposal of dredged material at the Portishead site.
HPC also submitted a Habitats Regulations Assessment (“ HRA”) for the purposes of the Conservation of Habitats and Species Regulations ( SI 2017 No. 1012) (“the Habitats Regulations”) in relation to effects of the proposal on inter alia the Severn Estuary Special Area of Conservation (“SAC”).
On 12 February 2021 the MMO sent the application and supporting reports to public authority consultees, notably NRW, Natural England (“NE”), the Environment Agency (“ EA”), Devon and Severn Inshore Fisheries and Conservation Authority (“D&S IFCA”), North Somerset Council (“NSC”) and Portishead Town Council (“PTC”). In addition, because the proposal was an EIA application, it had to be publicised in two local newspapers, allowing a public consultation period of 6 weeks from 19 February 2021 (regulation 16 of the EIA Regulations 2007).
The MMO also sent the application documents to their independent consultants ABPmer for review. The consultants responded on 9 March 2021. They stated that they had not found “any significant marine water or sediment quality, marine ecology or navigation issues” with the proposed use of the Portishead site. But they provided a number of detailed criticisms of and comments upon the application documents.
In April 2021 HPC issued a Supplemental Environmental Information Report and an Addendum to the Environmental Statement responding to comments which had been made.
NE, the EA and NRW raised no objections to the proposal. NE and NRW agreed with the HRA carried out by the MMO.
On 31 July 2021 the MMO issued a decision granting EIA consent for the proposal in accordance with regulations 4(c), 21A and 22 of the EIA Regulations 2007.
On 2 August 2021 the MMO issued its notice pursuant to s.72(3)(d) of the MCAA 2009, approving the variation of the licence sought by HPC. This is the decision challenged by the claimant in these proceedings.
The Project Works
Mr. Guy Buckenham is the Head of Strategic and Emerging Markets Policy and Regulation Limited for HPC's parent company, EDF Energy Limited. He explains that the project forms an essential part of the UK's strategy for low-carbon energy infrastructure. Existing nuclear power stations produce 20% of the country's electricity, but by 2030 all but one of those will be closed. Hinkley Point C will make the UK less reliant on energy imports and more resilient to shortages caused by low wind conditions. Compared to a gas generation alternative, the project would avoid 9 million tonnes of carbon dioxide emissions for each year of full operation over a 60-year life span.
Hinkley Point C will have the capacity to produce 1.6 GW per reactor unit, or 3.2 GW in total. The dates for commercial operation are currently scheduled as 26 June 2026 for Unit 1 and 26 June 2027 for Unit 2.
Mr. Jonathan Smith is the Balance Plant Area Delivery Director for the scheme. He explains that it is one of the largest and most technologically complex construction projects in the UK, involving more than £20bn...
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