Associated Petroleum Terminals (Immingham) Limited & Anor, R (on the application of) v Secretary of State for Transport [2025] EWHC 1992 (Admin)

[2025] EWHC 1992 (Admin)

Case No AC-2024-LON-003733

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

PLANNING COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 29/07/2025

Before

THE HONOURABLE MR JUSTICE SAINI

Between

THE KINGClaimants

on the application ofClaimant

ASSOCIATED PETROLEUM TERMINALS (IMMINGHAM) LIMITEDClaimant

HUMBER OIL TERMINALS TRUSTEE LIMITEDClaimant

David Elvin KC and Matthew Henderson (instructed by Burges Salmon LLP) for Claimants

Mark Westmoreland Smith KC and Armin Solimani (instructed by The Treasury Solicitor) for Defendant

James Strachan KC (instructed by Clyde & Co LLP) for Interested Party

Victoria Hutton (instructed by Winckworth Sherwood LLP) for Intervener

Hearing Hearing dates: 15 & 16 July 2025

Approved Judgment

This judgment was handed down remotely at 4pm on Tuesday 29 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

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[1]This is a case about the Port of Immingham (“the Port”) on the south bank of the Humber Estuary (“the Humber”), and a decision by the Defendant to grant development consent for the construction of a substantial new ferry terminal within the Port (“the Proposed Development”). This is a “Nationally Significant Infrastructure Project” within the meaning of section 14 of the Planning Act 2008 (“the 2008 Act”).

[2]The Port comprises (enclosed) inner docks and an outer riverside port area. It is the UK’s largest port by tonnage, handling around 56 million tonnes annually. The Proposed Development is designed to increase the Port’s handling capacity by at least 250,000 units for embarkation or disembarkation per year. The Interested Party (“ABP”), owns and operates the Port as a commercial entity but also has a role as a marine safety regulator for the Port and the Humber.

[3]The Immingham Oil Terminal (“the Terminal”) is situated on the eastern extremity of the outer riverside port and comprises an in-river jetty with three main berths, a “finger” pier with four berths for use by coastal tankers and bunker (refuelling) barges, and a pipeline trunkway connecting the jetty with the Humber Refinery, Lindsey Refinery and tankage. The Claimants (or, “the IOT Operators”) operate the Terminal which is one of the UK’s most important facilities for handling and storing various petroleum products, chemicals and other liquids. The Terminal is classified as nationally critical infrastructure for energy supply security.

[4]This is a claim for judicial review brought under section 118 of the 2008 Act. The target of the claim is the decision by the Defendant for reasons given in a letter dated 4 October 2024 (“the DL”) to make the Associated British Ports (Immingham Eastern Ro-Ro Terminal) Development Consent Order 2024 (“the DCO”) under powers given to her by the 2008 Act. The DCO authorises the Proposed Development which, in summary, comprises construction by ABP of a new roll-on roll-off (“Ro-Ro”) ferry terminal comprising three new berths (and associated landside works) at the existing Port known as the Immingham Eastern Ro-Ro Terminal (“IERRT”) on the Humber. The Defendant’s decision accorded with the recommendation of the Examining Authority (“the ExA”) set out in a report dated 25 April 2024 following a six month examination into ABP’s proposals (“the Report”). See [11] below for an explanation of the role of the ExA. The DL, the DCO and the Report to which I refer in this paragraph have hyperlinks provided. That is in order to avoid lengthy citations in this judgment which will be restricted, in the main, to cross-references to these documents.

[5]The Claimants do not object to the principle of the Proposed Development. For the purposes of the present claim, their objections relate solely to the issue of the navigational safety of vessels which may operate in proximity to their own commercial jetty facility. Central to the safe navigation issue is the introduction of the new berths by ABP in what all parties accept is a fast-flowing river tideway characterised by navigational conditions that are described as “challenging”. The new berths will be located close to the Claimants’ existing jetty and pier infrastructure which handle hazardous substances. In particular, proposed new berth 1 will be only 95 metres from the Claimants’ “finger” pier. During the planning process, the Claimants made powerful representations concerning the risk of vessel allision. They explained safety and operational concerns about damage which might be caused, by the Ro-Ro vessels using the new berths, to the Claimants’ infrastructure or tankers berthed at the Terminal, including by way of example in a dead ship situation where a vessel loses power in an acknowledged fast flowing river.

[6]The navigational safety matter centres on the approach of the ExA and the Defendant to what is called the maximum “design vessel” (“DV”). The DV is a notional vessel which provides the design envelope to ensure that the IERRT infrastructure has a size adequate for future vessel sizes across its 50-year design life. The three new berths within the Proposed Development have been designed to accommodate a DV of up to 240 metres, with a beam of up to 35 metres and a draught of up to 8 metres. The DV of this type does not currently exist. It is a fictional vessel used for modelling in the planning process.

[7]The core complaint made by the Claimants is that the Defendant failed to take into account the “worst case” environmental effects of the DV as required by the material legislation. They say that this had to be done as part of a lawful Environmental Statement (“ES”) or the DCO should have made provision to prevent use by a DV of the new berths.

[8]The ExA and the Defendant found that the handling characteristics of a notional DV in terms of matters such as propulsion and manoeuvrability could not be reasonably defined but this would also be unnecessary given that the ability to use any vessel at the IERRT - including the DV – would be subject to control by the Harbour Master for the River Humber (“the Harbour Master”) acting through the Statutory Conservancy and Navigation Authority (“the SCNA”), along with the Port’s Dock Master. The ExA and the Defendant relied on the fact that the Harbour Master and SCNA can prohibit use of such vessels (if and when they come into service) until it has been demonstrated that they can be used safely at the new berths. In short, they relied on what I will call the “River Regime” (see Section IV below) to address concerns related to the notional DV, navigational safety and the related environmental impacts.

[9]The Claimants submit that the Defendant’s decision to make the DCO on this basis was unlawful on two grounds which are reflected in the Agreed List of Issues:(1) Ground I - the Defendant made the DCO in breach of Regulation 4 of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (“the Regulations”) since she: (a) failed to take into account the reasonable “worst case” environmental effects of the DV as specified in ABP’s ES; and/or (b) wrongly postponed consideration of those effects to after the making of the DCO, contrary to R v Cornwall CC Ex p. Hardy[2001] Env. L.R. 25; and/or (c) failed to restrict the DCO to defined parameters which reflected the matters assessed in the ES contrary to authority including R v Rochdale MBC, ex parte Tew[2000] Env. L.R. 1 and R v Rochdale MBC ex parte Milne [2001] Env. L.R. 406.

(2) Ground II: the Defendant’s decision to make the DCO was infected by apparent bias, arising specifically from the Defendant’s site visit and briefing with ABP, prior to the approval of the DCO, in the absence of the IOT Operators or any other interested party. The Secretary of State at the time the DCO was made was the Rt Hon Louise Haigh MP. This ground focusses on her conduct both when she was Shadow Secretary of State for Transport (and visited ABP) and after she became the Secretary of State for Transport and made the DCO. (There was also originally a further ground which for reasons that are not relevant is no longer pursued).

[10]In addition to the Defendant, ABP and the Intervener (the Harbour Master) have appeared in opposition to the claim, but with the Harbour Master restricting his submissions to Ground I. The current Harbour Master, Captain Andrew Firman (“Captain Firman”), has submitted a helpful witness statement to which I will make further reference below. II. The Legal Framework

[11]For the purposes of my summary, I have drawn on the joint agreed note helpfully submitted by Counsel after the hearing. Where the Secretary of State has accepted an application for an order granting development consent, she must decide whether the application is to be handled by a “Panel” (also called “the Examining Authority”) under Chapter 2 of Part 6 of the 2008 Act, or by a single appointed person under Chapter 3 of Part 6. In this case, the Secretary of State determined that ABP’s application should be handled by a Panel. The Panel has the functions of: (1) examining the application and making a report to the Secretary of State setting out – (a) the Panel’s findings and conclusions in respect of the application, and (b) the Panel’s recommendation as to the decision to be made on the application. After the Panel has reported, the Secretary of State has the function of deciding an application for an order granting development consent. This function can be exercised by a Minister on the Secretary of State’s behalf. Where a national policy statement has effect in relation to development of the description to which the application relates, the Secretary of State’s decision is governed by section 104 of the 2008 Act. The Secretary of State must have regard to (amongst other things) any national policy statement which has effect in relation to development of the description to which the application relates. In deciding such an application, the Secretary of State must decide the application in accordance with any relevant national policy statement, except to the extent that one or more of subsections (4) to (8) applies: see section 104(3) of the 2008 Act. In deciding an application for a DCO the Secretary of State may disregard representations, including evidence, if the Secretary of State considered that they (amongst other things) relate to the merits of policy set out in a national policy statement.

[12]The Secretary of State is under a duty to decide an application for a DCO by the end of the period of 3 months beginning with the deadline under section 98(3) or (if earlier) the end of the day on which the Secretary of State receives a report on the application (subject to certain extension provisions). When determining an application for an order granting development consent the Secretary of State must either make an order granting development consent; or refuse development consent. The Secretary of State must prepare a statement of her reasons for that decision. I turn to the procedural chronology. III. The Facts

[13]ABP submitted an application (“the Application”) to the Planning Inspectorate on 10 February 2023 for the DCO. The Application was submitted under section 31 of the 2008 Act. The legislative tests for whether the Proposed Development is a Nationally Significant Infrastructure Project (NSIP) were considered by the Defendant in her decision to accept the Application for Examination in accordance with section 55 of the Act on 6 March 2023. The members of the Panel/ExA were appointed on 20 March 2023 (with a modification of membership on 17 July 2023). On 25 April 2024, the ExA issued its Report. There is a detailed description together with helpful graphics of the layout of the Proposed Development in the Report at §1.3.1.

[14]The ExA said that the Proposed Development met the tests in section 104 of the 2008 Act and, on that basis, it concluded, subject to certain points which are not material, that the case for the development had been made. It recommended that the Defendant make an Order in the form attached to the Report. The Defendant determined for the reasons given in the DL of 4 October 2024to grant development consent, subject to the changes in the Order to which she made reference. Regulation and control of the Port and entry to the Humber

[15]Section IV below provides a more detailed description of the River Regime, but I will in this section provide an overview of how that matter was approached in the Report. It set out a “not exhaustive” list of legislative provisions which were “important and relevant” to the decision at §2.2.10. This list in substance set out the legal framework governing navigation and pilotage in the River Humber and the Port, and the powers by which the Harbour Master, the Dock Master, and ABP generally (in various statutory guises) regulate navigation and pilotage on the River Humber and in the Port.

[16]A detailed explanation of the management, control and regulation of the Port and the Humber was set out in Examination documents attached to the Report. ABP’s closing submissions to the ExA summarised the position as follows, and no issue was taken by the Claimants with the accuracy of this summary:

“4.55.2. The Humber Harbour Master has the statutory role of Harbour Master and the functions of discharging conservancy and pilotage on the River Humber and has all necessary powers (by his power to issue directions) to ensure his instructions are given effect. Thus if he were to conclude that any navigation operation on the River Humber were unsafe (including any type of berthing at IERRT) he has power to issue special directions preventing that from occurring or to prohibit entry of any vessel or to require its removal. Those powers apply regardless of any general direction made by ABP and if the Harbour Master considered any unsafe arrangement to arise, including resulting from any decision of the Dock Master, he has power to prevent vessels entering the Port that is within the jurisdiction of the Dock Master. The Dock Master also has such powers to ensure the safe operation of the docks and jetties. Both Harbour Master and Dock Master work closely together. … 4.56 The statutory functions and duties of ABP as a harbour authority and the Humber Harbour Master and Dock Master provide a full and comprehensive set of controls over the safety of navigation on the River Humber and the Port of Immingham. These functions can only be discharged for the purposes that have been identified. This provides a separate and complete system of regulation controlling the safe operation of the River and the Port. It will include the Proposed Development. Those functions will necessarily continue to be discharged and matters of safety regulated by the Harbour Master and Dock Master, with the Harbour Master have the overarching powers of direction and control identified.”

The Environmental Statement and the DV

[17]The ES stated that the environmental assessment took full account of the “Rochdale Envelope” (paragraph 2.3.4 of the ES) and that the marine infrastructure had been assessed on the basis of their maximum parameters with a view to defining the worst case scenario (paragraph 2.3.6 of the ES, and see [47] below for the meaning of the “Rochdale Envelope”). The marine infrastructure included an approach jetty (described at paragraphs 2.3.12 to 2.3.13 of the ES); a linkspan bridge (paragraph 2.3.14 of the ES); floating pontoons (paragraph 2.3.15 of the ES); and finger piers against which the Ro-Ro vessels would berth (paragraphs 2.3.16 and 2.3.17 of the ES). The ES described the maximum dimensions of each element of the proposed infrastructure.

[18]The ES stated that the berthing facilities had been designed to handle vessels with a length overall (LOA) of 240m, a breadth of 35m, and a draught of up to 8m (paragraph 4.5.2 of the Navigation Risk Assessment (“NRA”) (as recorded in the Report at §1.3.26). As I have recorded above, the DV provides a design envelope for the maximum scale and location of the physical marine infrastructure which was assessed in the ES.

[19]The Report considered the issue of Navigation and Shipping at section 3.3. Having noted that the navigational conditions were accepted by ABP to be “challenging” (§3.3.2), the ExA directly addressed the Claimants’ contention that the ES was inadequate on the basis of a failure to assess/model the use of the berths by the MDV (§§3.3.125-3.3.142). The ExA noted that most of the simulations had been carried out using a model for the Stena T class vessel that was already used by Stena Line on the Humber. Further simulations had been carried out using a model for the larger ‘Jinling’ class of Ro-Ro vessel which is closer in dimensions to the DV (§3.3.129) as well as for the G9 class vessel, albeit the G9 does not have the manoeuvrability and propulsion characteristics required of the DV, and was considered by ABP and interested parties to be unsatisfactory for simulating berthing at the development (§3.3.130). At the request of the ExA, further simulations were run applying challenging current and wind conditions close to and above those that the Harbour Master expected would limit the operation of the proposed berths (§3.3.125).

[20]The ExA was satisfied that the Stena T class vessel could be safely berthed at the development and that a vessel of the Jinling’s handling characteristics would be likely to be acceptable (§3.3.131). It noted ABP’s position that “a vessel with the dimensions, manoeuvrability and power characteristics of the maximum DVdoes not yet exist and that it would be misleading to adapt an existing simulation model, such as the G9 class, because the G9 has significantly different handling characteristics compared with what would be needed at the Proposed Development” (§3.3.133).

[21]The ExA accepted the Claimants’ argument that the NRA had not yet definitively demonstrated that a vessel of the proposed dimensions of the maximum DV could be operated safely (§3.3.137), but it said that did not mean the ES was inadequate. The ExA said in the Report (my underlined emphasis):

“…the ES has paid regard to the siting of the proposed berths relative to existing port infrastructure and the maximum physical dimensions of the proposed DV, albeit that the propulsion and manoeuvrability characteristics for that DV are currently unknown. In that regard, the ExA considers it important to note that consent is sought for the siting and dimensions of the proposed berths rather than for the vessels that would use those berths. It would only be possible to ascertain that the Proposed Development could be used safely by the maximum DV (the largest vessel it has been designed to accommodate) when that DV has been fully specified and designed.”

[22]The ExA went on to note that the Harbour Master had raised no objections to the use of the IERRT and considered the proposed berths could be operated safely. He had made it clear that the SCNA might restrict the types of vessel authorised to use the proposed berths, in the interests of navigational safety. Such decisions would be made by the Harbour Master, acting for the SCNA, and disregarding commercial considerations (§3.3.138).

[23]The ExA in the Report also noted that the Harbour Master “has confirmed that use of the proposed berths by vessels of the full ‘design vessel’ (DV) dimensions, as assessed in the Applicant’s ES for ‘Rochdale envelope’ purposes as described in ... would be prohibited by the SHAs until it had been demonstrated that those vessels could manoeuvre safely in and out of the proposed berths” (§5.2.17).

[24]It is significant in my judgment that ABP and the Harbour Master were specifically questioned by the ExA as to how they would regulate, in future, vessels with dimensions and capabilities that went beyond what was assessed and simulated for the purposes of the NRA. I note that the Harbour Master made clear that any vessels significantly different to those already tested (i.e. vessels of greater or more risky dimensions/characteristics than the tested vessels, like the DV) would need to be assessed and approved by the Harbour Authorities before they could use the harbour (§§9-10). The ExA expressly recognised and accepted this point. The DL

[25]In the DL, the Defendant explained that she agreed with the findings, conclusions and recommendations set out by the ExA in the Report (unless otherwise stated). She noted the Claimants’ arguments on adequacy of the NRA/ES, and in that context, she further noted that the Harbour Master could issue byelaws and General Directions controlling operations in the Humber under the statutory powers of the Statutory Harbour Authority (“SHA”) and Competent Harbour Authority (“CHA”). These directions could include specific instructions to vessels. Further, the Harbour Master was provisionally satisfied with the NRA and simulation work put forward by ABP and the initial assessment would be subject to further and more vigorous appraisal in the event that the development gained consent. The Defendant noted the ExA was satisfied that the NRA was adequate (which I consider can be taken as the Defendant’s agreement with that assessment).

[26]The key paragraphs of the DL in relation to Ground I are paragraphs 62 - 69. These demonstrate that the Defendant took into account the following: the maximum DV and simulations carried out; the Claimant’s case on the adequacy of the NRA and ES and their case as to the need for a restriction on vessel size; that Class G9 vessels do not have the manoeuvrability or propulsion characteristics of the maximum design vessel, making it unsuitable for berthing simulations for the development; that the DV does not yet exist and its manoeuvrability, and power characteristics are unknown;that Stena T class vessels had been shown to be able to safely berth; that vessels with the handling characteristics of the Jinling class could acceptably berth; that the ExA was satisfied that the ES gave adequate and appropriate regard to the siting of the proposed berths relative to existing port infrastructure and the maximum physical dimensions of the proposed maximum DV; that the Harbour Master did not object to the development; and, that the type of vessels using the berths could be restricted on the grounds of navigational safety.

[27]The Defendant’s conclusions on the DV issue are set out at paragraphs 73 – 75 of the DL. Of significance are the following points. She noted it is possible a vessel of the DV’s scale may be designed and seek to use the IERRT in future. She agreed with the ExA that such vessels “will only be able to use” the IERRT if the Harbour Authorities assess that as being safe. She therefore did not consider it necessary to restrict the DCO to smaller vessels for “‘Rochdale Envelope’ purposes”. The DCO

[28]Schedule 4 to the DCO sets out what are termed “the Protective Provisions”. Part 1 to that Schedule is for the protection of the SCNA. Paragraph 16 is entitled “Operating procedures” and provides:

“(1) Before commencing marine commercial operations the undertaker must submit to the Statutory Conservancy and Navigation Authority for approval a written statement of proposed safe operating procedures for access to and egress from the authorised development. (2) The undertaker must not submit the statement referred to in sub–paragraph (1) unless it has first consulted with the harbour master, the dock master for the Port of Immingham and the IOT Operators, as defined in Part 4 of this Schedule, and has had due regard to their representations. (3) Prior to granting or refusing approval of the statement referred to in sub–paragraph (1), the Statutory Conservancy and Navigation Authority may carry out its own navigational risk assessment and may impose reasonable conditions on the approval for the purposes set out in paragraph 3(2)(a) to (c) of this Part of this Schedule. (4) The undertaker must operate the authorised development only in accordance with such procedure as approved, including any approved alteration made from time to time.”

I will refer to these by way of shorthand as “the Para 16 Provisions” below. IV. The River Regime

[29]Before turning to the legal framework, it is convenient to set out in more detail the regulatory regime which was given the shorthand “the River Regime” at the hearing. This regime was at the heart of the ExA’s and the Defendant’s approach to the matters in issue in this claim. My summary in this section is based on Captain Firman’s witness statement and the excellent oral and written submissions of Ms Hutton.

[30]It is not in dispute that the River Humber and the Port are highly regulated environments. They are managed on a constant basis in accordance with the Port Marine Safety Code (‘PMSC’). The nature of this management is such that operation of the existing River Regime and the provisions of the DCO itself mean that the DV (or any other vessel) will not be able to berth at the jetty without the approval of the SCNA, and a decision that such movements can be made safely. Movements must take place in accordance with operational controls laid down by the SCNA. The Harbour Master also controls who is able to pilot the vessels berthing at the jetty. The Dock Master also possesses these powers within the limits of the Port. I turn to the various statutory and other bodies/office holders. The Statutory Harbour Authorities, Competent Harbour Authority, the Harbour Master and the Dockmaster

[31]The River Regime is regulated and managed by ABP in its capacity as the SHA and CHA for the River Humber and the Local Lighthouse Authority (“LLA”). ABP acting as the SHA, CHA and LLA is the SCNA. Humber Estuary Services (“HES”) is the name used by ABP in its capacity as SCNA for the Humber.

[32]The statutory functions and responsibilities which ABP exercises as SHA, CHA and LLA are separate and distinct from ABP’s role as the owner and operator of the Port. It is not in issue before me that these statutory functions are and will be carried out in an independent and professional manner despite ABP’s commercial role. Captain Firman was appointed as the Harbour Master by the SCNA in 2015. The power to appoint a Harbour Master is found in section 5 of the British Transport and Docks Act 1972 (“the 1972 Act”). The Harbour Master has statutory powers which are distinct from the SCNA. The Port Marine Safety Code (“PMSC”)

[33]The SCNA, the Harbour Master and the SHA for the Port carry out their responsibilities in accordance with the PMSC. Paragraph 1 of that document sets out a ‘strong expectation’ from the UK Government that ‘all harbour authorities will comply’. The PMSC provides that “[P]owers, policies, plans and procedures should be based on a formal assessment of hazards and risks and organisations should have a formal MSMS”(that is, “marine safety management system”) (p.14). With regard to the MSMS the PMSC provides that the most severe risks should either be eliminated or reduced to the lowest possible level, so far as is reasonably practicable (p.14). Further the MSMS is required to incorporate safety policies and procedures to: “ensure there is proper control of vessel movements by regulating the safe arrival, departure and movement within the harbour of all vessels” (para 2.13, p23). VTS HUMBER and the Byelaws

[34]Amongst other requirements to control the movement of vessels in a safe manner, the Humber Navigation Byelaws 1990 require the master of every vessel (other than a river craft or other small vessel) to give prior notice to Vessel Traffic Services HUMBER (“VTS HUMBER”), located in Grimsby, of its arrival at, departure from or movement within the Humber and must also report to VTS HUMBER when passing the published ‘Reporting Points’ along the river (Byelaw 7). The byelaws also require the master of every power-driven vessel to maintain a continuing listening watch on the appropriate radio channel for the area in which the vessel is navigating unless using an operating radio channel for berthing (Byelaw 9).

[35]As such, every large vessel within the Humber is constantly monitored by SCNA and its passage (including the time, manner and means of its berthing) can be, and is, directed by the SCNA. Pilotage

[36]The Pilotage Act 1987 (“the 1987 Act”) requires the CHA to authorise and provide pilots (any person not belonging to a ship or who has conduct thereof) and to decide the circumstances where pilotage should be compulsory (required under the interests of safety under sections 7, 8, and 15 of the 1987 Act). The current requirements are set out in the Humber Pilotage Directions. In summary, the effect of those directions is that ships 60m or over in length are maneuvered through the Humber and onto a jetty either by a pilot of the SCNA or by the holder of a Pilotage Exemption Certificate (“PEC”). Pilots and PEC Holders receive training and operate subject to guidance and procedures laid down by the SCNA. Directions

[37]The SHA for the Humber has power to issue general directions under section 6 of the 1972 Act, following consultation with specified bodies. These can be made for the purpose of promoting or securing conditions conducive to the ease, convenience or safety of navigation in the Humber. The Harbour Master has the power to issue special directions under section 7 of the 1972 Act. These can be made for:(a) requiring a vessel to comply with a requirement made in or under a general direction,

(b) regulating or requiring for the ease, convenience, or safety of navigation the movement, mooring, or unmooring of a vessel, and

(c) regulating for the safety of navigation the manner in which a vessel takes in or discharges cargo, fuel, water or ship’s stores.

[38]The SHA for the Port has the power to issue general directions and the Dock Master has the power to give special directions in certain circumstances. He may prevent mooring. The breach of a general or special direction is a criminal offence (see section 12 of the 1972 Act). Under section 17 of the 1972 Act if a special direction is not complied with within a reasonable time the Harbour Master or Dockmaster may put persons aboard the vessel to carry out the direction or may otherwise cause the vessel to be handled in accordance with the direction. The Planning Act 2008 and the DCO

[39]Under section 145(2) of the 2008 Act, the powers and duties of a harbour authority can only be amended with that authority’s consent. The DCO changes the statutory powers, by consent. A relevant change to the powers of the SHA for the Humber is that section 9 of the Humber Conservancy Act 1899 (“the 1899 Act”) has been disapplied by Article 3(3) of the DCO. Section 9 of the 1899 Act empowers the SHA to issue licenses for works (including jetties) on the foreshores or bed of the River Humber subject to such conditions as they think fit. Part 1 of Schedule 4 of the DCO contains protective provisions for the SCNA. Paragraph 3 of these protective provisions requires ABP to provide plans and sections of the tidal works or operation for the approval of the SCNA. Paragraph 16 of the SNCA protective provisions provides that the jetty must only be operated in accordance with safe operating procedures approved by the SCNA (which may be amended with approval from time to time) and that it must be operated in accordance with these procedures. I have set these provisions out in full above. Operating procedures will include vessel type and the time, manner and means of their arrival and departure, including the use of tugs, tidal directions/speeds and wind speeds.

[40]During the Examination by the ExA, Captain Firman provided detailed evidence both orally and in writing as to how the operation of the new facility would be regulated to ensure safety. This was summarised in the ExA at length, and I will not set it out in this judgment. This evidence showed, without contradiction, that he would not allow the IERRT to be operated in a manner which was unsafe. He provided evidence on the procedures which would be followed in the event that the operator of the jetty wanted to operate a new type of vessel at the jetty. He responded to oral questions at Issue Specific Hearing 5 on this matter. In short, his evidence was that if the operator was looking to introduce a larger vessel to the jetty, then they would need to apply for a set of controls to be examined and at that point conditions would be imposed and examples of this process taking place in relation to other infrastructure were given. Captain Firman said he would expect that the design vessel would be designed with the correct propulsion to be capable of manoeuvring out of the berths. He explained that a smaller vessel that is underpowered could be just as dangerous as a larger vessel; and that any vessel has to be fit for purpose and the SHA would always check before allowing it to operate. Captain Firman also said that the DCO should not prescribe operating limits for the new jetty because operating limits were within the control of the SHA and there would be a need to ensure any limits were specific to any type of vessel. V. Environmental Framework The Regulations

[41]The Proposed Development was EIA development (as defined in Regulation 2) for the purpose of the Regulations. Under Regulation 4(2), the Secretary of State:

“must not... make an order granting development consent... unless an EIA has been carried out in respect of that application [for an order granting development consent].”

[42]Under Regulation 2(1), “EIA” has the meaning given by Regulation 5, which includes the following (my underlined emphasis):

“(1) The environmental impact assessment (“the EIA”) is a process consisting of – (a) the preparation of an environmental statement... by the applicant; ... (2) The EIA must identify, describe and assess in an appropriate manner, in light of each individual case, the direct and indirect significant effects of the proposed development on the following factors— (a) population and human health; (b) biodiversity, with particular attention to species and habitats protected under any law that implemented Directive 92/43/EEC and Directive 2009/147/EC; (c) land, soil, water, air and climate; (d) material assets, cultural heritage and the landscape; (e) the interaction between the factors referred to in sub-paragraphs (a) to (d). (3) The effects referred to in paragraph (2) on the factors set out in that paragraph must include the operational effects of the proposed development, where the proposed development will have operational effects. (4) The significant effects to be identified, described and assessed under paragraph (2) include, where relevant, the expected significant effects arising from the vulnerability of the proposed development to major accidents or disasters that are relevant to that development...” (a) the preparation of an environmental statement... by the applicant; ... (a) population and human health; (b) biodiversity, with particular attention to species and habitats protected under any law that implemented Directive 92/43/EEC and Directive 2009/147/EC; (d) material assets, cultural heritage and the landscape; (e) the interaction between the factors referred to in sub-paragraphs (a) to (d). (3) The effects referred to in paragraph (2) on the factors set out in that paragraph must include the operational effects of the proposed development, where the proposed development will have operational effects. (4) The significant effects to be identified, described and assessed under paragraph (2) include, where relevant, the expected significant effects arising from the vulnerability of the proposed development to major accidents or disasters that are relevant to that development...”

[43]Under Regulation 14:(1) an application for an order granting development consent for EIA development must be accompanied by an “environmental statement”;

(2) which must include at least: any additional relevant information specified in Schedule 4. Furthermore Regulation 14(3) provides at (b) that the environmental statement must “include the information reasonably required for reaching a reasoned conclusion on the significant effects of the development on the environment, taking into account the current knowledge and methods of assessment”. Again, my underlined emphasis.

[44]Regulation 21 is the operative provision. It is entitled “Consideration of whether development consent should be granted”. It sets out a staged process for consideration of whether development consent should be granted: first ((1)(a)), to “examine the environmental information”; secondly ((1)(b)), to “reach a reasoned conclusion on the significant effects of the proposed development on the environment, taking into account the examination referred to in sub-paragraph (a) and, where appropriate, any supplementary examination considered necessary”; thirdly ((1)(c)), to integrate that conclusion into the decision as to whether an order is to be granted.

[45]This Regulation 21 “staged” process plainly involves the exercise of planning judgment by the decision-maker, in respect first of whether there is sufficient information to enable an evaluation of the likely significant environmental effects, and, secondly, the making of that evaluation: seeR (Pearce) v Secretary of State for Business, Energy and Industrial Strategy

[2021] EWHC 326 (Admin)

per Holgate J at [120] (in respect of the 2009 version of the Regulations). The courts have repeatedly identified that the EIA process is intended to be an aid to good environmental decision-making, not a “legal obstacle course” or “obstacle race” for developers: see R (Blewett) v Derbyshire County Council [2004] Env. L.R. 29 per Sullivan J at [41]; R (Hart DC) v Secretary of State

[2008] 2 P&CR 16

per Sullivan J at [72]; and R (Champion) v N Norfolk DC

[2015] UKSC 52

; [2015] Env. L.R. 5 per Lord Carnwath at [64].

[46]The adequacy of the assessment in an ES is a matter of judgement for the decision-maker subject only to Wednesbury unreasonableness: R (Friends of the Earth Limited v Heathrow Airport Ltd [2021] P.T.S.R. 190 per Lord Hodge and Lord Sales at [142]-[145]. The Rochdale Envelope

[47]Counsel were agreed that the nature of the Rochdale Envelope is correctly summarised in The Planning Inspectorates’ Guidance on Nationally Significant Infrastructure Projects - Advice Note Nine: Rochdale Envelope:

“2.1 The Rochdale Envelope arises from two cases: R. v Rochdale MBC ex parte Milne (No. 1) and R. v Rochdale MBC ex parte Tew [1999] and R. v Rochdale MBC ex parte Milne (No. 2) [2000]. These cases dealt with outline planning applications for a proposed business park in Rochdale. 2.2 They address: • applications for outline planning permission under the Town and Country Planning Act 1990; • and consideration of an EIA in the context of an outline planning consent to enable compliance with the Council Directive 85/337/EEC as transposed by The Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1988. 2.3 To understand the implications arising from the comprehensive consideration of the issues by the Judge (Sullivan J. (as he then was)) in Milne (No. 2) (‘the Judgment’), it is helpful to note some of the key propositions, as follows: the assessment should be based on cautious ‘worst case’ approach: • “such an approach will then feed through into the mitigation measures envisaged […] It is important that these should be adequate to deal with the worst case, in order to optimise the effects of the development on the environment” (para 122 of the Judgement); • the level of information required should be: “sufficient information to enable ‘the main,’ or the ‘likely significant’ effects on the environment to be assessed […] and the mitigation measures to be described” (para 104 of the Judgment); • the need for ‘flexibility’ should not be abused“This does not give developers an excuse to provide inadequate descriptions of their projects. It will be for the authority responsible for issuing the development consent to decide whether it is satisfied, given the nature of the project in question, that it has ‘full knowledge’ of its likely significant effects on the environment. If it considers that an unnecessary degree of flexibility, and hence uncertainty as to the likely significant environmental effects, has been incorporated into the description of the development, then it can require more detail, or refuse consent” (para 95 of the Judgment).” • applications for outline planning permission under the Town and Country Planning Act 1990; • and consideration of an EIA in the context of an outline planning consent to enable compliance with the Council Directive 85/337/EEC as transposed by The Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1988. 2.3 To understand the implications arising from the comprehensive consideration of the issues by the Judge (Sullivan J. (as he then was)) in Milne (No. 2) (‘the Judgment’), it is helpful to note some of the key propositions, as follows: the assessment should be based on cautious ‘worst case’ approach: • “such an approach will then feed through into the mitigation measures envisaged […] It is important that these should be adequate to deal with the worst case, in order to optimise the effects of the development on the environment” (para 122 of the Judgement); • the level of information required should be: “sufficient information to enable ‘the main,’ or the ‘likely significant’ effects on the environment to be assessed […] and the mitigation measures to be described” (para 104 of the Judgment); • the need for ‘flexibility’ should not be abused“This does not give developers an excuse to provide inadequate descriptions of their projects. It will be for the authority responsible for issuing the development consent to decide whether it is satisfied, given the nature of the project in question, that it has ‘full knowledge’ of its likely significant effects on the environment. If it considers that an unnecessary degree of flexibility, and hence uncertainty as to the likely significant environmental effects, has been incorporated into the description of the development, then it can require more detail, or refuse consent” (para 95 of the Judgment).”

Regulation outside the planning system: the “Gateshead principle”

[48]Unlike the Rochdale Envelope, Counsel were not in agreement on the nature or scope of the Gateshead Principle. I was taken to a number of cases. Without referring to every case, I am satisfied that there is an established line of authority to the effect that:(1) planning decision-makers are entitled to have regard to regulation outside of the planning system,

(2) that there is no requirement to duplicate such controls which are often the responsibility of expert bodies/regulators, and

(3) the decision-maker should generally assume these regulatory processes will operate effectively. One can draw these principles from Gateshead MBC v Secretary of State for the Environment [1995] Env. L.R. 37, per Glidewell LJ at pp.49-50; Cornwall Waste Forum St Dennis Branch v Secretary of State for Communities and Local Government [2012] Env LR 34, per Carnwath LJ at [30], [34] and [38]; R (Frack Free Balcombe Residents Association) v West Sussex CC

[2014] EWHC 4108 (Admin)

per Gilbart J at [95], [100]-[104]); and more recently Gladman Developments v SSCLG [220] PTSR 129, per Lindblom LJ at [43].

[49]The nature of the principle was also addressed by Sullivan LJ in R (An Taisce (The National Trust for Ireland)) v Secretary of State for Energy and Climate Change

[2014] EWCA Civ 1111

(“An Taisce”) at [46]-[51]. That judgment is instructive in relation to the issues before me. After noting it was common ground that the decision-maker was entitled to rely on that principle in having regard to the UK nuclear regulatory regime in assessing the likelihood of accidents, Sullivan LJ explained (my underlining):

“48. Many major developments…are not designed to the last detail at the environmental impact assessment stage. There will, almost inevitably in any major project, be gaps and uncertainties as to the detail, and the competent authority will have to form a judgement as to whether those gaps and uncertainties mean that there is a likelihood of significant environmental effects, or whether there is no such likelihood because it can be confident that the remaining details will be addressed in the relevant regulatory regime… … 50. In view of this factual background [an exposition of nuclear regulation], it might be thought that this case was the paradigm of a case in which a planning decision-taker could reasonably conclude that there was no likelihood of significant environmental effects because any remaining gaps in the details of the project would be addressed by the relevant regulatory regime. Undaunted, Mr. Wolfe submitted that there was a distinction between reliance upon a pollution regulator applying controls “which it has already identified in the light of assessments which it has already undertaken on the basis of a scheme which has already been designed”, which he said was permissible, and reliance up “current” gaps in knowledge “being filled by the fact of the existence of the pollution regulator [who] will make future assessments… on elements of the project still subject to design changes…”, which was not. 51. There is no basis for this distinction, which is both unrealistic and unsupported by any authority. The distinction is unrealistic because elements of many major development projects…will still be subject to design changes, and applying Mr. Wolfe’s approach those projects will not have “already been designed” at the time when an environmental impact has to be carried out... To require the elimination of the prospect of all design changes before the environmental assessment of major projects could proceed would be self-defeating. The promoters of such projects would be unlikely to incur the, in some cases, very considerable expense, not to mention delay, in resolving all the outstanding design issues, without the assurance of a planning permission. If the environmental impact assessment process is not to be an obstacle to major developments, the planning authority (in this case the Defendant) must be able to grant planning permission so as to give the necessary assurance if it is satisfied that the outstanding design issues – which may include detailed design changes – can and will be addressed by the regulatory process.”

VI. Ground I

[50]Mr Elvin KC’s principal points, in summary, were as follows. He argued that the effects of the vessels operating within the three new proposed berths were matters which ABP was required to assess within the ES. Mr Elvin KC relied on the facts that the three berths formed part of the Proposed Development; that they had the potential to have “direct or indirect significant effects” on the factors specified in Regulation 5(2); and that any such effects must be stated in the ES pursuant to Regulation 14(2)(a) and (f) (read together with paragraph 4 of Schedule 4 to the Regulations). Mr Elvin KC submitted that the fact that ABP did not seek consent for any particular vessels is irrelevant because the three berths were designed to be used – and will in fact be used – by vessels including (in due course it is assumed) the DV. Accordingly, the use of the three berths by vessels is a potential operational effect of the Proposed Development.

[51]In these circumstances, Mr Elvin KC submitted that the decision to make the DCO was unlawful, and in breach of the Regulations. More particularly, Mr Elvin KC relied on the following three points. First, the Defendant failed to take into account the full environmental effects of the Proposed Development and thus erred in law. The DL was accordingly said to be in breach of the Regulations because:(1) the ES was incomplete because it omitted consideration of the effects of the DV, contrary to Regulation 14;

(2) the EIA process was incomplete because it omitted consideration of the effects of the DV, contrary to Regulation 5; and

(3) as a result, the Defendant made the DCO in breach of Regulation 4 because the EIA had not been undertaken as required. Mr Elvin KC did not accept this was a Wednesbury challenge to the adequacy of the ES. As I understood his submissions, his case was that by reason of the incompleteness to which I have referred there was a simple failure to observe mandatory legislative requirements. Secondly, Mr Elvin KC argued that the Defendant unlawfully “postponed” consideration of the environmental effects of the DV’s use of the berths to a third party (the Harbour Master) and thus erred in law, applying Tew, Hardy and Smith v Secretary of State [2003] Env. LR 32 (“Smith”). Thirdly, he argued that the Defendant unlawfully failed to set parameters which “tied” the DCO to the effects assessed in the ES. He said she should have imposed a restriction in the DCO – as requested by the Claimants – which limited the use of the berths to the assessed vessels. I will consider these cases below.

[52]Mr Westmoreland Smith KC, Mr Strachan KC and Ms Hutton collectively responded in summary as follows. They say that Ground I amounts to a challenge to the Defendant’s conclusion on the adequacy of the ES, and argue it is well established that the adequacy of environmental information is a matter of judgment for the decision-maker with which the courts will not interfere save in cases of Wednesbury unreasonableness. As to the argument that the ES was inadequate because the navigational risks of the DV were not modelled, they respond that this was because the DV does not yet exist and as such data on its manoeuvrability, required to model the DV, does not currently exist. The exercise cannot be undertaken. They further say that it is a vessel’s manoeuvrability as opposed to dimensions that is key to understand in the context of navigational risk; and an ES is only required to include the information “reasonably” required for reaching a reasoned conclusion on the significant effects of the development on the environment, taking into account current knowledge and methods of assessment. The DV manoeuvrability is not known and the Defendant understood this, considered it, and concluded the ES was adequate. They further submit that it was appropriate for the Defendant to have regard to the River Regime. They say that statutory regulation of navigation on the Humber was plainly relevant and the Gateshead principle applied. As such, they argue that it was not necessary to impose a requirement limiting vessel size given:(a) as a matter of judgment the Defendant and ExA were content that the Proposed Development could be operated safely on the basis of the modelling done; and

(b) were cognisant of the fact that the Harbour Authorities properly applying the River Regime would have to consent to any new vessel using the IERRT (including one that fell outside of the modelled parameters) and, as such, there would be no likely significant effect within the meaning of the Regulations. Discussion

[53]The Claimants’ arguments under Ground I essentially fall into three parts:(1) adequacy/incompleteness of the ES;

(2) whether it was reasonable for the Defendant to have regard to the River Regime to control the safe navigation of the Humber; and

(3) whether the Defendant was obliged to limit the maximum size of the vessels that could use the IERRT to those which had been modelled. I will address each part in turn. (1). Adequacy/incompleteness of the ES

[54]As I have noted above, Regulation 14(3)(b) provides that an ESmust include the information “reasonably required” for reaching a reasoned conclusion on the “significant effects” of the development on the environment, taking into account “current knowledge and methods” of assessment. This directly links to the duty on the Defendant to reach a reasoned conclusion on the significant effects of the development under Regulation 21(1). I accept the Defendant’s submission that the adequacy of environmental information is a matter of judgment for the decision-maker with which the courts will not interfere save in cases of Wednesbury unreasonableness (Blewett at [36]-[41]). Mr Elvin KC’s first complaint was skilfully and attractively presented as a submission about a failure by the Defendant to undertake a compliant and complete assessment. However, when stripped to its essentials, it is in substance a complaint about the judgment of the Defendant on adequacy/completeness which can only be challenged on rationality grounds.

[55]As to the complaint that the ES did not include a navigational simulation of the DV, the ExA found and the Defendant accepted that, “It would only be possible to ascertain that the Proposed Development could be used safely by the maximum DV (the largest vessel it has been designed to accommodate) when that DV has been fully specified and designed” (§3.3.137). As I have underlined above, Regulation 14(3) is clear that an ES is directed towards information reasonably required for reaching a reasoned conclusion on the significant effects of the development on the environment, “taking into account current knowledge and methods of assessment”. The manoeuvrability and power characteristics of the DV are unknown and I accept the Defendant’s submission that it is the manoeuvrability and power characteristics that are key (as opposed to mere dimensions). As a matter of common sense, vessels of the same size may have very different manoeuvrability depending on, for example, the number and independence of engines and thrusters. It is therefore necessary to know these characteristics to meaningfully assess the navigation of a particular vessel.

[56]Both the ExA and the Defendant understood this and expressly addressed and rejected the argument that the ES was inadequate. That was a matter of judgment for the decision-maker and was clearly not irrational (indeed, it is not pleaded as such).

[57]The ES was in my judgment plainly adequate and complete on the facts before the Defendant. (2) Having regard to the River Regime

[58]As I have noted above, having found that the navigational risk for existing ships was acceptable and that an assessment could not be made for the DV given current knowledge both the ExA and the Defendant went on to note that the Harbour Master did not object to the proposed IERRT Development and considered that the proposed berths could be operated safely and that it could, by acting on behalf of the Statutory Conservancy and Navigation Authority, restrict the types of vessels using the proposed berths in the interests of navigational safety and such restrictions would be imposed disregarding commercial considerations (Report §3.3.138).

[59]The Defendant accordingly recognised that there was an additional layer of statutory control which meant that the use of the berths by the DV was not a likely “significant effect” of the IERRT Development as the Harbour Master would not permit such use, if it were not acceptable and safe. I consider this to be a lawful approach. In short, a decision maker on a development consent order can properly have regard to statutory controls outside of the planning regime on the basis of the Gateshead Principle as I have summarised it above. In writing in reply to ABP’s grounds of opposition, the Claimants originally argued that use of the principle is confined to cases of pollution control regimes (by reference to Gladman). That point was rightly not pursued by Mr Elvin KC in oral submissions. It is inconsistent with the case law.

[60]The case law, which considers regulators in disparate fields, with a range of degrees of control and oversight over operational activity, demonstrates that the question is whether the decision-maker was “justified” in finding that the regulator’s “controls… are adequate to deal with” the environmental concerns (Gateshead, p.49). The decision-maker is “entitled to rely on the operation of those controls with a reasonable degree of competence on the part of the responsible authority”, despite the fact that “mistakes may occur in any system of detailed controls” (Milne, at [128]). The decision-maker is entitled to “have regard to, and rely upon, the existence of a stringently operated regulatory regime for future control” (An Taisce, at [46]). The decision-maker “will have to form a judgment as to whether those gaps and uncertainties [in the current environmental information] mean that there is a likelihood of significant environmental effects, or whether there is no such likelihood because it can be confident that the remaining details will be addressed in the relevant regulatory regime” (An Taisce, at [48], citing R (Jones) v Mansfield District Council

[2004] 2 P & CR 14

[61]Whether a regulatory regime can be relied within the Gateshead principle to control an environmental effect is plainly a matter for the decision-maker’s judgment. I have concluded that the Defendant and the ExA were each entitled to find the Harbour Authorities and River Regime could be relied on to prevent unsafe navigation by the DV, if and when, such a vessel seeks to use the new berths. They were presented with a wealth of information supporting that conclusion and no issue was taken before me by Mr Elvin KC with any aspect of the Defendant’s or the Harbour Master’s description of the regime or its efficacy. I have provided a broad summary in Section IV above. In short, the Harbour Authorities repeatedly assured the ExA that they would prevent any navigation by the DV until the safety of that had been conclusively demonstrated.

[62]It follows that the Defendant was entitled to conclude that the ES was adequate and that there was no likelihood of significant environmental effects because any remaining gaps in the details of the project would be addressed by the statutory controls over navigation in the Humber and the Port.On the evidence before the Defendant, and before me, there exists a very robust process (consistent with the PMSC) which ensures that any ‘new’ vessel which is seeking to enter the Port is reviewed as to its navigational and operational acceptability, taking into account the specifics of that vessel.

[63]Finally, I note that the DCO in the Part 6 Provisions for the approval of operating procedures enable the SCNA to carry out its own navigational risk assessment and allow it to impose reasonable conditions on the approval. As such there is a yet further layer of protection in the scheme of the DCO itself. (3) Limiting the maximum size of ship that could use the IERRT to that which had been modelled

[64]Mr Elvin KC argued that if the Defendant was unable to assess the environmental effects of the DV using IERRT, then she was required to restrict the use of IERRT in order to limit the scope of the development to that assessed. In this regard, Mr Elvin KC placed reliance on a number of authorities.

[65]As to Smith, Mr Elvin KC placed particular reliance on the following observation of Waller LJ in relation to constraints at [31] (which follows his citation of [128] of Milne):

“In my view it is a further important principle that when consideration is being given to the impact on the environment in the context of a planning decision, it is permissible for the decision maker to contemplate the likely decisions that others will take in relation to details where those others have the interests of the environment as one of their objectives. The decision maker is not however entitled to leave the assessment of likely impact to a future occasion simply because he contemplates that the future decision maker will act competently. Constraints must be placed on the planning permission within which future details can be worked out, and the decision maker must form a view about the likely details and their impact on the environment.”

[66]I was not persuaded this citation assisted Mr Elvin KC when the remainder of the Smith case is considered. It has been clear since the original Rochdale cases that “any major development project will be subject to a number of detailed controls, not all of them included within the planning permission”, and so the decision-maker is entitled to rely on those controls regulating the proposal’s environmental impacts when granting planning permission (Milne, at [128]). A decision-maker, in reliance on the Gateshead principle, is entitled to “consider how the [relevant regulator] was likely to deal with the details and to conclude that the way the details would be dealt with would mitigate the adverse effect on the environment…” (Smith at [49]).In light of that conclusion, Waller LJ in Smith approved a condition that simply required that “No development shall take place until a scheme to suppress dust generated on site, has been submitted to and approved in writing by the Local Planning Authority…”, despite the claimant’s critique that this left the significant impact of dust and its mitigation undetermined and in the hands of the local planning authority and not the Inspector, who was the relevant decision-maker for EIA purposes. But the Inspector was entitled to find that the Environment Agency’s regulatory regime would likely prevent dust from causing significant environmental effects by way of an effective mitigation scheme.

[67]I note that an analogous approach was taken in R (Kent) v First Secretary of State [2005] Env. L.R. 30 (“Kent”). At the consent stage for a proposed underground waste disposal facility, it was not clear what kind of waste would be put into the facility, so the decision-maker assessed a sample of representative wastes, and relied on a pollution regulator to otherwise control harmful effects. The criticism that the permission had to be limited to waste which was actually assessed was dismissed; rather the reliance on generic waste types was lawful, so long as “the description of the generic waste types was sufficient to enable the decision maker to identify and assess the main effects of the development on the environment” [80]. Even if the generic analysis had meant the effects of a particular waste type had “fallen through the net” of the EIA assessment, that would “still be picked up” by the regulator and would therefore have been lawful [81].

[68]In my judgment, precisely the same applies here. On the material before me, it is clear that the Defendant has assessed the largest vessels she is able to, determined they are safe, and determined that should a DV come into existence its safe navigation would be ensured by the Harbour Authorities under the River Regime. Her assessment of the safety of vessels navigating the DV, which included her consideration of River Regime in controlling impacts arising from the hypothetical DV, was rational, sufficient and detailed.

[69]Mr Elvin KC also relied strongly on Hardy. I do not consider that authority assists me. In that case the decision-maker failed to require surveys of a cave that may well have contained bats before granting consent. For that reason, the decision-maker could not have reasonably determined they were in possession of the “full information” they required to make their decision and could not rationally conclude that there were no significant effects until they had the data from the survey. They essentially had no information, but could have acquired a survey, and the decision was thereby unlawful (see Sir Michael Harrison’s explanation of his decision in Hardy in Kent at [54]).

[70]In my judgment, there is no justification for the imposition of restrictions on vessel size and type, let alone the failure to do so being unlawful.

[71]Ground 1 is dismissed. VII. Ground II – apparent bias

[72]This ground concerns the former Secretary of State for Transport, the Rt Hon Louise Haigh MP (“Ms Haigh MP”). The bases for the apparent bias claim are her actions as a shadow minister before becoming the Secretary of State on 5 July 2024, following the General Election, and during her tenure in that role as Secretary of State. As Secretary of State Ms Haigh MP was the minister that made the DCO which is challenged in these proceedings. The law

[73]Although Counsel referred me to a number of cases, and as I indicated at the hearing, I propose to rely only on the principles in Porter v Magill

[2002] 2 AC 357

, per Lord Hope at [103]. The test for apparent bias is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the decision maker was biased. The Porter test is a two stage inquiry. First, the Court ascertains all the circumstances which have a bearing on the suggestion of bias. Then, the Court asks whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the decision-maker was biased. I was taken to a number of other cases including some in the planning context but (save for R (Lewis) v Redcar and Cleveland Borough Council

[2008] EWCA Civ 746

("Lewis") see [75] below), I did not find them of assistance. Each case turned on its own facts. The Lewis case reflects the practical realities of applying the apparent bias test when planning decision-makers operate in a political context.

[74]It was common ground that in adjudicating on an apparent bias allegation the Court is not limited to considering information readily available in the public domain. So, a witness statement from the decision-maker explaining the facts is relevant evidence, and can be of determinative significance. In terms of evidence, the Defendant relied on a witness statement from Mr Gareth John Leigh (“Mr Leigh”) who is the Head of the Transport Infrastructure Planning Unit within the Department for Transport. Mr Leigh describes information provided to him by Ms Haigh MP in relation to matters preceding the DCO including the site visit. He also provides an explanation as to why she decided to determine the application personally, including the advice the Unit gave her. There was rightly no challenge to what is said in Mr Leigh’s statement and in particular to the accuracy of the facts Ms Haigh MP provided to him as the information to be put before the court in his witness statement. I did not consider there was any need for Ms Haigh MP to provide a witness statement personally.

[75]In terms of case law, I found the following observations of Rix LJ in the Lewis case, in the planning context, of assistance: “95. The requirement made of such decision-makers is not, it seems to me, to be impartial but to address the planning issues before them fairly and on their merits, even though they may approach them with a predisposition in favour of one side of the argument or the other. It is noticeable that in the present case no complaint is raised by reference to the merits of the planning issues. The complaint, on the contrary, is essentially as to the timing of the decision in the context of some diffuse allegations of political controversy. “So the test would be whether there is an appearance of predetermination in the sense of a mind closed to the planning merits of the decision in question. Evidence of political affiliation or of the adoption of policies towards a planning proposal will not for these purposes by itself amount to an appearance of the real possibility of predetermination or what counts as bias for these purposes. Something more is required, something which goes to the appearance of a predetermined, closed mind in the decision-making itself. I think that Collins J put it well in R (Island Farm Development Ltd) v Bridgend County Borough Council

[2007] LGR 60

when he said, at paras 31—32: “31. The reality is that councillors must be trusted to abide by the rules which the law lays down, namely that, whatever their views, they must approach their decision-making with an open mind in the sense that they must have regard to all material considerations and be prepared to change their views if persuaded that they should . . . unless there is positive evidence to show that there was indeed a closed mind, I do not think that prior observations or apparent favouring of a particular decision will suffice to persuade a court to quash the decision. 32. It may be that, assuming the Porter v Magill test is applicable, the fair-minded and informed observer must be taken to appreciate that predisposition is not predetermination and that councillors can be assumed to be aware of their obligations.” 96. In context I interpret Collins J’s reference to “positive evidence to show that there was indeed a closed mind” as referring to such evidence as would suggest to the fair-minded and informed observer the real possibility that the councillor in question had abandoned his obligations, as so understood. Of course, the assessment has to be made by the court, assisted by evidence on both sides, but the test is put in terms of the observer to emphasise the viewpoint that the court is required to adopt. It need hardly be said that the viewpoint is not that of the complainant.” “So the test would be whether there is an appearance of predetermination in the sense of a mind closed to the planning merits of the decision in question. Evidence of political affiliation or of the adoption of policies towards a planning proposal will not for these purposes by itself amount to an appearance of the real possibility of predetermination or what counts as bias for these purposes. Something more is required, something which goes to the appearance of a predetermined, closed mind in the decision-making itself. I think that Collins J put it well in R (Island Farm Development Ltd) v Bridgend County Borough Council

[2007] LGR 60

when he said, at paras 31—32: Submissions

[76]On behalf of the Claimants, Matthew Henderson argued Ground II. In his focussed and well-structured oral submissions, Mr Henderson said that Ms Haigh MP’s decision to make the DCO was “infected by apparent bias” arising specifically from three “strands” in the evidence as follows. First, from Ms Haigh MP’s visit to the Port on 24 May 2024 and briefing by ABP in the absence of the Claimants and any other interested party. Secondly, by reason of the nature of the correspondence between ABP and Ms Haigh MP following her appointment as Secretary of State. Thirdly, from her decision to keep hold of the decision-making on the DCO and to determine it personally when she had declined to personally deal with decisions on other projects. Mr Henderson also helpfully took me through the ministerial submissions Ms Haigh MP received in July and August 2024, and to the written governmental guidance on DCO (and related) applications and the safeguards to be adopted by ministers to avoid the appearance of bias.

[77]Mr Westmoreland Smith KC argued that Ground 2 as originally pleaded was entirely focused on the 24 May visit to the Port but had “evolved” to incorporate the suggestion that Ms Haigh MP’s taking of the decision herself, as opposed to delegating it to junior ministers, also shows apparent bias. He submitted that neither way of putting the claim has merit when the facts are understood.

[78]I begin with an obvious point which cannot be disputed. It is commonplace for politicians – both in Government and opposition – to visit businesses of all kinds. One does not need evidence of this, but it is amply demonstrated by the list of visits to ABP produced by it in the evidence before me. ABP has also produced a timeline that summarises the majority of the relevant factsand it has not been disputed. The facts

[79]Based on the evidence before me, my factual findings are as follows (for the avoidance of doubt when I refer to the evidence of a witness I accept that evidence as true and accurate). As of 24 May 2024, the actual Secretary of State (Mark Harper MP) had not made a visit to the Port and indeed he was unaware of the visit on that day by Ms Haigh MP. Ms Haigh MP, who was then the Shadow Secretary of State for Transport, was invited by ABP to visit ABP’s operations in the Humber in March 2024. At the time of the invitation, its acceptance and the confirmation of the date of the visit (the date was confirmed on 26 March 2024), no date had been set for the General Election; and the deadline for Mark Harper MP to issue the decision on the DCO was 25 July 2024. The General Election was announced on 22 May 2024, less than two full days before the visit by Ms Haigh MP.

[80]The visit itself was relatively brief. She was given a PowerPoint presentation by ABP and Air Products. The presentation described APB as a commercial operator; its particular assets and activities on the Humber; and current projects on the Humber (one of which being the IERRT); and slides on ABP and Labour and transport policies (none of which mention the IERRT). There was a single slide on the IERRT in the context of the current projects on the Humber. It states:

“New £100m+ planned Roll-on/Roll-off ferry cargo facility with partner Stena Line Adds capacity and choice for trade with Europe and more direct, lower emissions route for north of England businesses & supply chains. Adds more resilience for UK supply chains, reducing reliance on routes via Kent and reducing congestion. Dependent on DCO, build due 25/26”

Dependent on DCO, build due 25/26”

[81]Mr Tim Morris, Group Head of Corporate Communications for ABP, received Ms Haigh MP at the Port and he explains in his witness statement that while in the Port Control Centre he pointed out from the balcony “... a panorama of notable sites around the port, including the location of the proposed major project developments covered in the high-level briefing which we gave to her about the port”. He explains that the proposed site of the IERRT was included in the panorama but other than pointing this out no further conversation took place about it.

[82]On the day of the visit itself, Mark Harper MP announced the delay of the decision on the DCO until 4 October 2024 due to the General Election. Following the General Election, on 5 July 2024, Ms Haigh MP was appointed the Secretary of State for Transport.

[83]The Chief Executive of ABP wrote to Ms Haigh MP as the new Secretary of State on 15 July 2024. This was an unsolicited letter and was not specifically focused on the IERRT, but spoke generally as to how ABP could work with the Government. The letter mentioned her visit. It said:

“I and my colleagues are looking forward to working with you to deliver more of what you saw on your recent visit to our Port of Immingham: enabling trade for UK economy and an ambitious investment programme for the energy transition”

. The letter set out six specific “asks” of the Government one of which related to IERRT. It asked:

“1. Support ABP’s delivery of the Immingham Eastern Roll-On Roll-Off Terminal (IERRT) Support ABP’s delivery of the Immingham Eastern Roll-On Roll-Off Terminal (IERRT) which represents £100m+ investment by ABP and our partner, Stena Line, to build better trading links with our European neighbours. The development builds on the observed and forecasted trend for trade to diversify away from the short straights route in a post Brexit world, given the well-publicised issues with congestion in Kent and the required new border formalities. Approval of the Development Consent Order (DCO) to give this project the green light, currently sits on your desk”

. An accompanying slide pack included one slide on IERRT which briefly describes the project and then states: “What’s required from Government? Planning approval – the Development Consent Order currently sits on the desk of the Secretary of State for Transport”.

[84]On 18 July 2024, ABP sent a letter in similar terms to the Parliamentary Under Secretary of State for Transport, Mike Kane MP. I understand that he did not respond to that letter.

[85]On 23 July 2024, ABP wrote to Ms Haigh MP to invite her to the ABP Humber Marine Dinner. This invitation had enclosed the following PDFs:

“ABP Humber IGET overview Feb 2024” and “ABP Humber IERRT overview May 2024”

. These included a page on the IERRT. She declined the invitation. The advice behind the decision to decline said:

“Reasons for Recommendation [to decline] ABP have two outstanding applications for Development Consent Orders (DCO). The deadline for the DCO decision for their proposed construction and operation of a new Roll-on/Roll-off cargo facility at the Port of Immingham is 4 October. This event is very close to the deadline. The Secretary of State (or delegated junior minister) will be the decision maker for the DCO and therefore cannot be drawn into any discussions on this matter. Attending this event may put her in a difficult position. If she did want to attend or delegate to another Minister or senior official, we should seek legal advice on the risk.”

That advice was however not necessary as Ms Haigh MP had simply declined the invitation.

[86]Ms Haigh MP replied to ABP’s 15 July 2024 letter on 5 August 2024. It was a polite response of a generic nature, whilst recognising the importance of ABP and stating that she would be happy to meet with ABP after the Summer recess. The response did not refer to the IERRT development.

[87]On 6 September 2024 a joint letter from ABP and Stena Line was sent to Ms Haigh MP in relation to the IERRT development offering a meeting on the project. As explained by Mr Leigh, this correspondence was handled by Ministerial Private Offices. Ms Haigh MP was not briefed on it. It was not shared with the team advising Ms Haigh MP on the DCO decision and at no point was it introduced into the departmental decision-making process, including any recommendation made to her. No response was issued by the Secretary of State. She did not visit any ABP site prior to the decision on the DCO.

[88]Mr Leigh explains the advice Ms Haigh MP received in relation to delegation of planning and DCO decisions. Initially, a few days after taking up her post, she was advised to delegate all decisions regarding applications for development consent to junior Ministers with unrelated portfolios; and she agreed to this on 15 July 2024. However, further advice was subsequently provided. The key advice was provided on 22 August 2024 (“the August Submission”). The August Submission recommended that Ms Haigh MP decide all aviation DCOs and the Lower Thames Crossing application and delegate the remainder to junior ministers.

[89]As explained by Mr Leigh, the Secretary of State did not want to delegate decisions to junior ministers where they were imminent. I accept that this was so as to not over-burden new junior ministers with significant planning decisions that needed to be determined in the near term. Annex A to the August Submission sets out a list of DCO projects that required determination by or on behalf of the Secretary of State at that time. Only four of these were to be determined in 2024: Hinckley Rail Freight Interchange (“Hinckley”), IERRT, Lower Thames Crossing (“LTC”) and Luton Airport (“Luton”). Ms Haigh MP did not delegate either LTC or Luton, in accordance with the advice she received, and in any event, their deadlines were extended into 2025.

[90]As to Hinckley, the Secretary of State issued the minded to refuse letter on 10 September 2024 alongside a Written Ministerial Statement which extended the deadline to 10 March 2025. As such Hinckley was not an imminent decision, but Ms Haigh MP did issue the minded to letter herself, which did require dealing with it in the short term, rather than delegating that decision to a junior minister.

[91]As a result, IERRT was the only DCO that had to be substantively determined in 2024 and fell into the “imminent” category that Ms Haigh MP wanted to retain to decide herself. On 11 September 2024, therefore, she accepted the recommendation in the August Submission, save she said she wanted to take the substantive decision on IERRT. She subsequently determined the application in accordance with the ExA’s recommendation. Discussion

[92]In my judgment, when the facts are appreciated neither the original nor evolved claim of apparent bias has any merit. First, I underline that there was no “site visit” by the Secretary of State. The May visit complained of was made by Ms Haigh MP before the election and her appointment as part of the new Government to be Secretary of State in July 2024. It was not a “site visit” which is a term of art in the planning field.

[93]The high point of the case on apparent bias is therefore the letter dated 5 August 2024 in response to the ABP letter of 15 July 2024. In my judgment, Ms Haigh MP’s letter was simply a polite response to a generic letter seeking good working relations with a new Government of the type written by industry frequently. As I have said, the response does not mention the IERRT. It must be read in the light of(a) the frequency of interaction between large scale industry and Government and opposition politicians;

(b) the other correspondence from ABP to the Secretary of State following the election and the Secretary of State’s decision not to respond to any other letter from ABP; and

[94]In my judgment, a fair minded and impartial observer would not conclude from either the visit or the correspondence that there was a real possibility of bias. Indeed, the declined invitation shortly before that letter indicates that the Secretary of State was not prepared to engage in any material way with ABP whilst the decision on the DCOs lay before her.

[95]As to the complaint about Ms Haigh MP deciding to deal with the DCO herself, that is equally without merit. In short, the fair-minded observer would recognise that:(i) Legislation confers upon the Secretary of State the duty to determine DCO applications. It is not only entirely legitimate for the Secretary of State to take decisions on DCOs herself but that is the starting point under the 2008 Act. The fact that such decisions are sometimes delegated to junior ministers does not change the statutory starting point;

(ii) It was reasonable and understandable for the Secretary of State to retain imminent substantive decisions on DCOs at the start of her tenure, so as not to overburden her newly installed junior ministers;

(iii) There was only one such decision and that happened to be IERRT;

(iv) The ExA, whose independence and propriety is not challenged, had already made a highly detailed and thorough recommendation that the IERRT be approved. Ms Haigh MP accepted the advice of that expert panel;

(v) She refused ABP’s invitation to dinner whilst the IERRT DCO application was before her; and

(vi) The DL is thorough, carefully reasoned, even-handed and gives no indication whatsoever of a bias in favour of granting permission.

[96]Ground 2 is dismissed. VIII. Conclusion

[97]The claim is dismissed.

Cited in 1 later judgment

Luton and District Association for the Control of Aircraft Noise, R (on the application of) v Secretary of State for Transport 2025