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Marine Management Organisation defeats judicial review over permission for dredging off Kent coast

The Marine Management Organisation (MMO) made no legal error when it permitted dredging on the Goodwin Sands, the High Court has ruled.

A challenge was brought by Joanna Thomson, who lives in Walmer from which the sands are visible.

The MMO in July 2019 granted a licence under s71 of the Marine and Coastal Access Act 2009 for dredging subtidal sand in part of the Goodwin Sands to the Dover Harbour Board, which intends to use the dredged sand for construction work at Dover Western Docks.

Under the licence up to 2.0m cubic metres of sub-tidal sand may be dredged from the western edge of the South Calliper Sandbank.

Ms Thomson challenged the grant of the licence on the ground that the MMO ignored or failed to approach correctly in law an attribute of the Goodwin Sands under the Joint Nature Conservation Council Guidance of 2004.

This was the topography, defined in the guidance as depth and distribution.

The MMO argued that the impact of the changes in topography was relevant, rather than the changes to the topography in itself, and all impacts had been considered at length.

Sir Duncan Ouseley, sitting as a judge of the High Court, said: “I am satisfied that the claimant's arguments are wrong.”

In Thomson v Marine Management Organisation [2019] EWHC 2368 the judge went on: “Essentially, the claimant's arguments involve a fundamental misreading and misunderstanding of the role of the 2004 Guidance in relation to the decision to grant this licence, subject to conditions.

“The claimant makes far more of the JNCC 2004 Guidance than is warranted; it plainly does not support her approach to the significance of topography for the assessment of impact of dredging in the South Goodwin Sands.”

He said that “however well disguised” Ms Thomson’s claim was in substance a challenge to expert scientific advice and conclusions.

“In this case, the asserted error is by Natural England in understanding expert natural conservation guidance to which it was a contributor, which is not a promising starting point for the claimant,” the judge said.

He said it was “clear beyond a peradventure that no material consideration was overlooked or misunderstood”.

‘Topography in its own right’ was a concept “devoid of practical meaning or application in relation to subtidal sand”, Sir Duncan said, and since the sands moved naturally “the 2004 Guidance and its interpretation is irrelevant to the decision-making process here and cannot found a challenge to the decisions at issue, nor does it require some reasons to be given for a departure from it.

“It is simply irrelevant in what it has to say about topography as a mandatory attribute.”

The judge said he found it impossible to see how any error of approach to topography could affect the practical analysis of impact or an effect on the outcome of the decisions.

Mark Smulian

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