Protection of Marine Conservation Zones

This was a judicial review claim following the grant of a licence to Dover Harbour Board to dredge up to 2 million m3 of sub-tidal sand from the English Channel in an area known as the Goodwin Sands – an area important as a habitat for seabed flora and fauna, for protection against coastal erosion, and as the location of numerous shipwrecks and wrecks of aircraft.

At the time of the licence application, the Goodwin Sands was a proposed Marine Conservation Zone (and this designation was in fact confirmed just a few days before the JR hearing). One of the protected features of the Goodwin Sands MCZ is “subtidal sand”. It was accepted that the proposed dredging was capable of affecting the protected features of the MCZ as it would involve the direct removal of part of the subtidal sand feature.

Before granting a licence, the Marine Management Organisation (MMO) needed to carry out Environmental Impact Assessment (EIA). The MMO considered the Environmental Statement and consultation responses and concluded that, subject to the mitigation measures secured by conditions on the licence, there was no significant risk of the dredging hindering the achievement of the conservation objectives stated for the Goodwin Sands MCZ.

The central challenge in the JR claim was that the MMO had ignored or failed to approach correctly in law an attribute of the Goodwin Sands (its topography, specifically its depth and distribution), which it was mandatory for it to consider. The applicant relied on guidance from the Joint Nature Conservation Council (JNCC), a statutory body responsible for “establishing common standards throughout the United Kingdom for the monitoring of nature conservation….”. This guidance was repeatedly referred to in the Environmental Statement. Natural England is obliged to have regard to the JNCC guidance in discharging its functions in relation to monitoring nature conservation.

It was argued that if topography was properly considered as important, the proposal would probably have to undergo a Stage 2 EIA which it would have been unlikely to succeed because alternative sources of aggregates are available and there would be insufficient public benefit to outweigh the harm of dredging in this location.

Witness evidence was produced by both MMO and Natural England to counter the allegation that Natural England had failed to follow mandatory guidance from JNCC.

The Court concluded that the JNCC guidance was not applicable when assessing the impact on the protected features of a MCZ and that the Environmental Statement had included adequate assessments of both the direct and indirect effects of the removal of the sand. The claim was therefore unsuccessful and the license for dredging was held to be valid.

Counsel instructed were Marie Demetriou QC and Daniel Piccinin.