Judicial Review decision : aggregate dredging may proceed at Goodwin Sands MCZ
The campaign group, Goodwin Sands SOS (Save Our Sands), has reported 11th September 2019 that their judicial appeal to the High Court has failed to secure a judgement against the granting of the licence to the Dover Harbour Board (DHB) by the Marine Management Organisation (MMO – the statutory licensing authority) to allow the dredging of sand from the Goodwin Sands to enable the Harbour Board to secure marine sand as a construction material for its port regeneration scheme.
The Goodwin Sands is an extensive sand bank system in the English Channel located 6 miles (10 km) offshore from Deal, Kent. The Goodwin Sands were a candidate Marine Conservation Zone (MCZMCZ Marine Conservation Zone) under the UK Marine and Coastal Access Act 2009 (MCAA 2009) at the time of the licence’s consideration by the MMO and have subsequently been designated a full MCZ by Natural England under the MCCA 2009.
The MCZ’s principal designated features and management objectives are (amongst others): subtidal sand and coarse sediment which need to be managed to maintain in a favourable condition, along with blue mussel beds and Ross wormRoss worm Ross worms build tubes made out of sand or shell fragments, and sometimes many thousands of worms all build tubes which clump together forming large reefs, which are an important habitat for a range of other life. They are very fast growing and can form thick crusts over just one summer. These worms feed by catching tiny food particles from the water. (sabellaria spinulosaSabellaria spinulosa Also known as the Ross Worm, this is a marine species of worm living in the seabed and building tubes of sand in which it lives. Usually encountered as individuals, this species sometimes behaves gregariously and, when it does so, the tubes which it builds can concrete and form sizeable structures on the seabed of several centimetres thickness, and these structures can persist for many years. These structures are known as "biogenic reefs" and are particularly important because they form a habitat (see, Biotope) around which many other marine species begin to live (i.e. the habitat affords shelter and food). These "reefs" can occur where the substrata of the seabed is made of sand, pebbles or gravel, and the Sabellaria spinulosa reefs are classified as an Annex I habitat under the EU Habitats Directive, 92/43/EEC. An Annex I habitat is subject to conservation measures, amongst which are that the habitat must be maintained in a favourable condition.) reefs which need to be managed in order to enable them to recover to a favourable condition.
The dredging licence which the Dover Harbour Board may now operate allows DHB to extract 3 million tonnes of sand up to the end of December 2022. However the construction programme in the port has already commenced and so construction has required some sand to be sourced from elsewhere – first, whilst the licensing process itself was extended by a legal challenge by Marinet with respect to the archaeological remains, principally focused on the crashed military aircraft along with their lost crews from World War II which in Marinet’s belief warranted protection from disturbance under the Protection of Military Remains Act 1986 and then, secondly, following the determination decision by the MMO because the licence’s implementation has been stalled by the judicial review challenge by Goodwin Sands SOS.
This has meant that the Harbour Board may need to extract only around two-thirds of its licence allocation of 3 million tonnes.
In its press release of 11th September 2019 announcing the judicial review decision, Goodwin Sands SOS has stated:
Dear Goodwin Sands SOS supporters,
The Honourable Sir Duncan Ouseley has dismissed Goodwin Sands SOS claim for the marine aggregate dredging licence granted to Dover Harbour Board for the Goodwin Sands to be quashed. SOS’s legal advisors have advised against appealing the decision.
We are naturally very disappointed at this decision. It was a tough legal challenge but we had to pursue every avenue to save this precious and unique environment. However, the campaign is far from over. This Judicial Review related only to a specific environmental matter. The dredging’s impact upon war graves and the internationally important underwater cultural heritage (UCH) remains to be resolved by the MMO and Historic England.
The Archaeological Written Scheme of Investigation (AWSI), yet to be formulated, should provide protection for our heritage and we shall fight to ensure that it does, if necessary by further legal action. Furthermore, the issue of allowing dredging of a protected habitat in a Marine Conservation Zone also needs addressing at the highest level without delay, as it makes a complete mockery of the whole MCZ programme. Protection must mean protection.
Despite losing this round of the Judicial Review, we can be proud of our many achievements:
• it has prevented the destruction by dredging of at least one and possibly two military aircraft crash sites and the same number of potentially valuable shipwrecks. These lie in the original dredge zone and had not been detected by Dover Harbour Board’s consultants. Damaging military aircraft crash sites is unlawful under the Protection of Military Remains Act 1986.
• it has forced the Marine Management Organisation to allow the public to comment on the revised draft AWSI before the pre-dredge surveys can start.
• it has highlighted the considerable failings in the marine licensing process which must be addressed
• it has created the Goodwin Sands Conservation Trust which will educate the public and raise awareness of the cultural, environmental and historical significance of the Sands. The Trust’s main goal is to inscribe the Goodwins as the first UNESCO marine cultural World Heritage Site.
Dredging the Goodwins will have three important impacts:
• it completely undermines the protection supposedly provided by Marine Conservation Zones. The subtidal sand targeted for extraction was designated a Protected Habitat on 31st May 2019. The Marine Management Organisation concluded that removing 3 million tonnes of this sand would not hinder the conservation objectives as Natural England have advised them that the habitat will recover within five years.
• it poses a serious risk to our underwater cultural heritage. Dover Harbour Board’s contractors have not positively identified any of the targets lying in the dredge zone and have dismissed all of them as being of no human interest i.e. part of a shipwreck or aircraft crash site. DHB has no idea what they are because they will not ground truth these targets by diver and / or ROV [remotely operated vehicle] inspection.
• it jeopardises the inscription of a potential World Heritage Site
Dover Harbour Board’s marine licence allows them to dredge up to 3 million tonnes of dry aggregate until 31st December 2022. It will be used as landfill for their Dover Western Docks Revival project. No official purpose has been given for the reclaimed land but many consider it will be used as a lorry park.
We would like to thank all the many advisors who have so willingly and generously given their professional advice over the past three years. In particular, Paul Taylor and Richard Buxton of Richard Buxton solicitors and Marie Demetriou QC and Daniel Piccinin of Brick Court Chambers, who submitted a compelling legal argument on what was essentially a very narrow point.
We would also like to thank you fantastic supporters who so far have raised almost £50K for the legal fees and whose words of encouragement have helped to keep them persevering for the duration of this lengthy and challenging campaign.
Your continued support is vital to our eventual success.
Please share this link with anyone who you feel, like you, that the Goodwin Sands are worth protecting.
https://you.38degrees.org.uk/petitions/goodwin-sands-sos-stop-the-dredge
Marinet observes: The Goodwin Sands SOS legal team fought their judicial review case on the grounds of whether the Environmental Impact Assessment (EIA) Regulations 2007 had been correctly applied with regard to the topography of the Goodwin Sands.
Topography was defined as “the depth and distribution of the sediment” (in this case sand) which was “fundamental to the structure of the feature and bears a direct influence on the associated faunafauna The animals characteristic of a region, period, or special environment.”
The legal team argued that the decision of the MMO and the government’s Joint Nature Conservation Committee/Natural England should have been to progress the evaluation of the topography of Goodwin Sands MCZ beyond Stage 1 of the EIA Regulations to Stage 2 which, if that had been done, would have likely resulted in the refusal or severe limitation of the licence to dredge.
Stage I of the Regulations requires that authorisation (a licence) cannot be granted unless the licence applicant satisfies the authority, here the MMO, under subsection (6) of the EIA Regulations, in what is called a Stage 1 assessment, “that there is no significant risk of the act hindering the achievement of the conservation objectives stated for the MCZ”.
The MMO and regulatory partners (JNCC/NE) argued to the Court that they had made a proper assessment of the topography under Stage 1 of the EIA Regulations whose outcome had determined that progress to Stage 2 was not required and, despite the arguments of the Goodwin Sands SOS legal team, the Court found in favour of the MMO’s decision and thus that the licence had been soundly issued.
A legal process pursued by Marinet, earlier during the licence consultation period prior to its determination by the MMO, had argued that the remains of World War II military aircraft and their crew (regardless of nationality) which had crashed on the Goodwin Sands and for which the Sands were their final resting place should be protected and prohibited from disturbance under the Protection of Military Remains Act (PMRA) 1986. Marinet argued that the Goodwin Sands as a whole warranted this PMRA protection and not just the dredge site. Marinet sought to sustain the argument that the Goodwin Sands as a whole were effectively a military grave (burial site) under the terms of PMRA 1986 and thus prohibited from disturbance. Marinet’s lawyers were unable to sustain this belief in the minds of the Ministry of Defence, the authority responsible for implementing the PMRA, and Marinet did not have the very substantial financial resources additionally required to take this decision to Court for review.
Both Marinet and Goodwin Sands SOS share the conviction that the decision by government to allow dredging, and indeed other marine activities such as fishing, in MCZsMCZ Marine Conservation Zone serves only to undermine the integrity of the conservation regime which MCZs and the Marine and Coastal Access Act 2009 ostensibly seek to establish. However the 2009 MCAA legislation contains this fundamental weakness in its legal structure and decisions like this one in respect of the Goodwin Sands have occurred before and will be repeated again in the future until the 2009 Act is reformed.
Goodwin Sands SOS is currently seeking to secure the implementation of Highly Protected Marine Area (HMPA) status to the Goodwin Sands MCZ. The UK government presented a report in 2018 to Parliament which examines the status of UK Marine Protected Areas (MPAs), of which MCZs are one such type, and in section 3.4 of this 2018 report to Parliament the status and role of Highly Protected Marine Areas is considered. HMPAs, if deployed, effectively prohibit any activity within a MPA (MCZ) other than for the purpose of the site’s conservation. The UK government is currently conducting a review of HMPAs and is inviting contributions from the public.
