Marine licences – can an existing licence be varied to authorise a new activity?

OVERVIEW

The High Court in England and Wales recently issued its judgment on R (on the application of Tarian Hafren Severn Shield Cyf) v Marine Management Organisation [2022] EWHC 683 (Admin). The Court dismissed the claimant’s, Tarian Hafren Severn Shield Cyf (“THSS”), application for a judicial review of a decision by the Marine Management Organisation (“MMO”) to vary a marine licence under Section 72 of the Marine and Coastal Act 2009 (“MCAA 2009”) which authorised an “activity” not included within the existing licence.

FACTS

The interested party and beneficiary of the marine licence, NNB Generation Company (HPC) Limited (“the Developer”), was the promoter of the Hinkley Point C nuclear power station project. The project included activities such as dredging, which require a marine licence under the MCAA 2009.

The Developer originally applied and obtained from the MMO a marine licence in June 2013 (the “Original Licence”). It was accompanied by a further licence granted by Natural Resource Wales which enabled the disposal of dredged material at a separate site falling outside the jurisdiction of the MMO.

The MMO granted five variations to the Original Licence in 2014, 2016, 2017 and 2019. Neither the Original Licence, nor any of the first five variations, were subject to challenge.

The Developer submitted an application for a sixth variation to the Original Licence in December 2020. It sought to continue the existing activities authorised and to propose further activities, including the disposal of dredged material, not previously permitted. The MMO granted the variation in August 2021.

THSS (a company incorporated to oppose the disposal of material dredged from the Severn Estuary as part of the Hinkley Point C project back into the Severn) was concerned that the material dredged contained fine radioactive particles, involving a risk of low levels of radiation. It commenced judicial review proceedings to challenge the MMO’s decision in relation to the sixth variation.

GROUNDS FOR CHALLENGE

THSS challenged the MMO’s decision on five grounds. A summary of the headline grounds (ground one and ground two) is contained below.

Ground one maintained that the decision in August 2021 to vary the licence was ultra vires the MCAA 2009, particularly Section 72 which grants the licensing authority the power to vary, suspend, revoke or transfer a licence.

THSS argued that because the Original Licence and its subsequent variations only authorised dredging, Section 72 could not be used to add a wholly new activity i.e. the disposal of that dredged material.

The Court dismissed this ground of challenge. It held the power to vary can be used to introduce a new activity “so long as the new activity can properly be said to represent a variation of that licence”.

The Court determined that “it would not be appropriate…to seek to define exhaustively what may or may not constitute a variation of a marine licence, or to define the outermost reach of the power to vary”. However, it ruled that what will qualify as a variation will be affected by a number of factors, including:

• the terms of the licence (including its conditions);
• the nature and extent of activities already authorised and any previous variations;
• the nature and extent of the proposed addition to the licence; and
• the nature of the project to which the licence relates, or any other relevant statutory authorisation.

(the “Considerations”).

The Court acknowledged that the Considerations involve matters of judgement entrusted to the MMO (and to which MMO was well-qualified to assess).

It was held that the variation proposed in this case did not go beyond the ambit of that which could lawfully be considered and approved under Section 72 MCAA 2009.

Ground two argued that the power to vary a licence may only be exercised where the MMO has a reason (which appears relevant) to do so and that reason is identified.

THSS alleged that the mere content of a proposal by the Developer to vary a licence did not amount to a sufficient reason to exercise the variation power under the MCAA 2009 and therefore no such reason existed or was identified by the Developer.

The Court rejected this ground. It held that Section 72 confers a “broad discretion” upon the MMO as to the reasons upon which it can act. There was no justification for the restrictive approach advocated by THSS to the MMO’s power or to impose a duty to give reasons for variation upon the MMO. The Court found that the MMO had “lawfully consider[ed] that the licence ought to be varied for reasons that appeared to the authority to be relevant”.

The Court rejected the application on all grounds and the judicial review was therefore dismissed.

IMPLICATIONS

This is an important judgment which makes clear:

• It is lawful to vary a marine licence to introduce a new activity as long as the new activity properly represents a variation of the original marine licence.
• The context under which an original marine licence is granted is crucial when seeking to authorise new activities through a variation under Section 72 MCAA 2009.
• When determining whether a new “activity” may be authorised under an existing marine licence, as opposed to applying for a new marine licence, the Considerations (as set out by the Court in this judgment) should be carefully considered against the context of the original licence.

If you would like any further information or advice relating to planning law, please contact Nicole McAlorum from the Planning and Environmental team at Carson McDowell.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.