Court gives green light for legal challenge over licence to deposit dredged material in Severn Estuary

The ‘Save the Severn’ campaign group has been granted permission for a judicial review of the Marine Management Organisation’s decision to grant a licence for dredged material from construction works at a nuclear power station in Somerset to be deposited in the Severn Estuary.

About 540,000 cubic metres (800 000 tonnes) of material will be produced to make way for a water cooling system at the plant near Bridgwater.

Save the Severn is bringing the challenge over the Marine Management Organisation’s (MMO’s) grant of a changed licence for NNB Generation Company Ltd (HPC) to deposit the material in the Severn Estuary Marine Protection Area near to a Site of Special Scientific Interest, Portbury Wharf Salt Marsh, at the Portishead disposal site.

“The dredging and dumping locations both fall within the Severn Estuary Special Area of Conservation and OSPAR Marine Protection Area, the largest coastal estuary in the UK and one of the largest estuaries in Europe. It is internationally important for fish rearing and harbours a wide diversity of significant habitats and species,” the group said.

It will advance the following grounds:

1. No power to amend a licence to add an entirely new activity: “The MMO attached “disposal-by-dumping” to the existing licence for activities in Bridgwater Bay (constructing the jetty and seawater extraction system, with dredging to enable these). We argue the dumping is a different, new activity in a different location, so needs a separate licence, whereas MMO chose to amend the old one. This lessens the public scrutiny and removes the public inquiry that the local authorities (IFCA and N Somerset CC) asked for," the claimant said.
2. No lawful basis for relying on section 72(3)(d) of the Marine and Coastal Access Act 2009 in any event. “Section 72(3)(d) provides for licence variation ‘for any other reason that appears to the authority to be relevant.’ We argue against interpreting this clause as carte-blanche for the MMO to do what it likes, rather the clause is limited by context and requires a relevant reason.”
3. Unlawful approach to Habitats Assessment: “MMO failed to apply the correct legal tests. The smothering of the seabed by mounding of denser dredgings is adverse to the habitat. The objective is to restore fish species including the Twaite shad and lampreys to favourable condition, not maintain existing condition as MMO stated. It is argued that, as the MMO was unable to (lawfully) exclude adverse effects on features for which the Severn Estuary is designated, they had to follow the 'derogation' procedure. The MMO did not carry out this stage 3 of the Habitats Regulations Assessment, and therefore unlawfully did not assess alternative solutions, including dumping in the Holm Deep site.”
4. Failure to act in accordance with the Waste Framework Directive requirements: “Though it's a waste-disposal operation, MMO failed to assess the waste-dumping under Reg.22, which requires them to consider the full range of alternatives – which include using more dispersive sites like Holm Deep or re-using on land as under international policies (London Convention and OSPAR).”
5. Unlawful failure to comply with Water Framework Directive requirements: “MMO unlawfully took suitability for disposal at sea for the purposes of the London Convention & Protocol to be equivalent to complying with the Water Framework Directive, yet these are different legal obligations.”

So far the group has raised £25,655 towards a stretch target of £60,000 on Crowd Justice. It is being advised by law firm Leigh Day.

An MMO spokesperson said: “The marine licence was varied following a public consultation exercise and based on the best available scientific evidence. As legal proceedings remain ongoing it is not appropriate to comment further at this time.”