Humber Sea Terminal Ltd. v Secretary of State for Transport

For an unclassified site, the stricter protection regime applicable to a site which should have been classified under the Birds Directive arises only where the failure to classify constitutes a breach of the Directive. Government policy treating a potential SPA as if classified does not itself establish such a breach.

An environmental statement must describe proposed measures to remedy significant adverse effects, including mitigatory or compensatory measures. An omission invalidates the statement only where it is sufficiently serious to mean that the document is not an environmental statement in law.

An appropriate assessment must consider relevant in-combination effects even where the project independently triggers the assessment. A Harbour Revision Order need not state the particular Schedule 2 objectives it achieves.

Associated British Ports applied for a Harbour Revision Order authorising the Immingham Outer Harbour, including works affecting intertidal mud flats and bird habitat. The Secretary of State treated the potential extension to an existing Special Protection Area as subject to the Habitats Regulations regime, applied the precautionary policy in PPG9, and approved the order.

Humber Sea Terminal Ltd, a competing port operator, challenged the order under section 44 of the Harbours Act 1964. It alleged breaches of the Birds Directive, defects in the environmental statement, inadequate Natura 2000 compensation, failure to assess in-combination effects, irrationality concerning 24-hour access and alternatives, failure to identify the statutory objectives, and consultation defects.

1. Application dismissed. The claimant had not alleged or proved that the United Kingdom’s failure to classify the relevant potential SPA breached the Birds Directive. The principle in Commission v France (Basses Corbieres) applied only to a site which should have been classified because the failure to classify involved a breach of the Directive. Treating a potential SPA as classified under domestic policy did not trigger the stricter regime in Article 4(4).
2. The environmental statement was legally sufficient. Schedule 3 to the Harbours Act 1964 and the EIA Directive required description of proposed measures to remedy significant adverse effects. That language could include both mitigation and compensation. However, the claimant had not shown that the later compensation schemes were main or likely significant effects of the project, or that the omission was so severe that the document ceased to be an environmental statement.
3. Regulation 53 of the Conservation (Natural Habitats etc) Regulations 1994 imposed a duty to secure necessary compensatory measures when consent was granted. The measures did not have to be completed before consent. The Secretary of State could rationally rely on the agreement, the implementation arrangements and English Nature’s advice, and the agreement would not inevitably fail.
4. The appropriate assessment obligation covered in-combination effects even though the project independently required assessment. The claimant had produced no evidence of an interactive effect capable of altering the compensation required for the Immingham project. Any merely additive effects could be addressed in the claimant’s own assessment.
5. The remaining grounds failed. The evidence supported the importance of tide-independent, 24-hour access; the Secretary of State had considered the relevant alternatives; the statutory scheme did not require the order to identify the particular Schedule 2 objectives; and no material consultation failure or prejudice was shown. Permission to amend the grounds concerning piling and highways was refused.
6. The Secretary of State received his costs. Associated British Ports received only the costs of preparing its witness statements.

First-instance judicial review in the Administrative Court. The application challenging the Harbour Revision Order was dismissed.