Sophie Hunter

In R (on the application of Associated Petroleum Terminals (Immingham) Ltd and Humber Oil Terminals Trustee Ltd) v Secretary of State for Transport [2025] EWHC 1992 (Admin), the English High Court dismissed a judicial review of the Secretary of State for Transport’s decision to grant a Development Consent Order (DCO) for the construction of the new Immingham Eastern ‘Roll-on Roll-off’ Terminal (IERRT).

The Port of Immingham is situated on the Humber Estuary and is the UK’s largest port by tonnage, handling over 50 million tonnes of cargo every year.

A key ground in this case related to the Environmental Impact Assessment Regulations 2017 and the applicability of the Gateshead principle to the Development Consent Order decision-making.

EIA ground of challenge

The claimants argued that the decision to grant the DCO was in breach of the EIA Regulations 2017. It was contended that the developer had failed to undertake a satisfactory EIA, insofar as the assessment failed to consider the navigational safety risks associated with a hypothetical large vessel using the IERRT.

The claimants argued that the Secretary of State had failed to properly consider the potential environmental implications of a large vessel using the IERRT and, in particular, failed to consider the environmental impacts of such a vessel colliding with the neighbouring oil terminal, operated by the claimant.

Throughout the preparation of the environmental statement, the developer used computer-generated simulations to assess the safety of several different vessels navigating the port. However, it was argued that the environmental statement was defective in that it failed to assess the navigability of a hypothetical design vessel (DV), namely the largest vessel that could theoretically use the IERRT given the 240-metre length of the IERRT’s berth.

The Secretary of State determined that she could not assess whether the design vessel could safely use the IERRT as a vessel of the DV size does not currently exist in the real world, and the key navigational characteristics of the DV, such as its propulsion and manoeuvrability, remain unknown.

Instead, the Secretary of State relied on the existing ‘river regime’, namely a set of controls and powers in place throughout the Humber Estuary and Port, including the Humber Harbour Master and the Dock Master, who would scrutinise the design vessel, if and when it was created. The claimant argued this approach was in breach of the EIA Regulations.

Held

The High Court dismissed the challenge, confirming that the environmental statement was adequate. The court emphasised that the assessment of adequacy falls on the decision-maker not the court, unless it is Wednesbury unreasonable.

The court reinforced that the environmental statement should incorporate information that is “reasonably required for reaching a reasoned conclusion on the environmental impacts of a development”. This means taking into account current knowledge and methodologies.

The court stated that an Environmental Statement will not be held to be inadequate simply because it does not include an assessment of a hypothetical issue, in this case, a design vessel (the largest vessel the development could theoretically accommodate) that has yet to be developed. This is particularly the case where the information needed to make a meaningful assessment is not available.

With regards to whether the Secretary of State could rely on the river regime to manage any navigational risks that the environmental statement could not, the judge referred to the case of Gateshead MBC v Secretary of State for the Environment [1995] Env. L.R 37. This case established the principle that a planning decision-maker, when assessing the nature and acceptability of a development’s impacts, is entitled to have regard to the competent operation of existing regulatory regimes that deals with those impacts.

In the case at hand, the judge endorsed the decision-maker’s reliance on the ‘river regime’ to manage any navigational risks that the environmental statement could not assess and held that this was appropriate.

Implications

This judgment is of interest to port developers as well as developers of regionally significant/major infrastructure projects and serves as a helpful reminder that the adequacy of an environmental statement is a matter for the decision maker, subject to Wednesbury unreasonableness.

It also confirms that an environmental statement will not be deemed to be inadequate where it has failed to consider a hypothetical scenario, in this case, a design vessel which is not yet in existence.

• Sophie Hunter is a solicitor in the planning and environmental law team at Carson McDowell.