Associated Petroleum Terminals (Immingham) Limited & Anor, R (on the application of) v Secretary of State for Transport

In environmental impact assessment, the adequacy of an environmental statement is ordinarily a matter of planning judgment. The court will intervene only on conventional rationality grounds. A decision-maker may rely on effective statutory controls outside the planning system where those controls can address remaining uncertainties and environmental risks.

Where a future vessel or activity cannot presently be modelled because its relevant characteristics are unknown, consent need not necessarily be restricted to the parameters already assessed. It is lawful to rely on a robust regulatory regime which will prevent operation unless the relevant risks have been assessed and controlled. Apparent bias is assessed by the two-stage Porter v Magill test. Political predisposition, prior contact and the retention of a decision by a minister do not establish apparent bias without circumstances indicating a real possibility of a closed mind.

The claimants operated an oil terminal adjoining a proposed roll-on roll-off ferry terminal at the Port of Immingham. They challenged the Secretary of State’s decision to make the Associated British Ports (Immingham Eastern Ro-Ro Terminal) Development Consent Order 2024.

Ground I alleged that the environmental statement and environmental impact assessment unlawfully failed to assess the effects of a notional maximum design vessel, postponed those effects to the Harbour Master, and failed to restrict vessel use to assessed parameters. Ground II alleged apparent bias arising from the Secretary of State’s earlier visit to the port, subsequent correspondence with Associated British Ports, and her decision to determine the application personally.

1. Ground I dismissed. Under Regulations 14(3)(b) and 21(1) of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017, the environmental statement had to contain information reasonably required for a reasoned conclusion, having regard to current knowledge and methods of assessment. The adequacy of that information was a matter of judgment for the decision-maker, subject to Wednesbury unreasonableness.
2. The maximum design vessel was not an existing vessel. Its propulsion and manoeuvrability characteristics were unknown, and those characteristics, rather than dimensions alone, were essential to meaningful navigational assessment. The ExA and the Secretary of State had expressly considered the issue and rationally concluded that the environmental statement was adequate and complete.
3. The Secretary of State was entitled to rely on the River Regime under the Gateshead principle. The statutory Harbour Authorities could prevent a vessel from using the berths until its safe operation had been demonstrated, irrespective of commercial considerations. The regulatory regime was sufficiently robust to address remaining uncertainties and prevent likely significant environmental effects. The protective provisions in Part 1 of Schedule 4 to the DCO provided an additional safeguard by requiring approval of safe operating procedures and permitting a further navigational risk assessment.
4. The authorities concerning the Rochdale Envelope, postponement and future controls did not require a restriction on vessel size or type. The Secretary of State had assessed the largest vessels capable of assessment and could lawfully rely on the River Regime for a future design vessel whose characteristics were not yet known. There was no unlawful postponement or failure to define the development.
5. Ground II dismissed. Applying Porter v Magill, the court considered all circumstances and asked whether a fair-minded and informed observer would conclude that there was a real possibility of bias. The earlier visit was made before the minister became Secretary of State and was not a planning site visit. The later correspondence was generic, the Secretary of State had declined an invitation to an industry dinner while the application was pending, and the decision letter was thorough and even-handed.
6. It was also legitimate for the Secretary of State to determine the application personally. The statutory starting point was that she was responsible for determining development consent applications. Retaining an imminent decision to avoid overburdening new junior ministers did not indicate a closed mind. The claim was dismissed.