Infrastructure Planning Blog

Today’s entry looks at a legal challenge to the Immingham Eastern Ro-Ro Terminal DCO project, an update on a non-material amendment application to a DCO, and considers the Aarhus Convention.

Ship happens

The High Court handed down its judgment in the case concerning the Immingham Eastern Ro-Ro Terminal DCO project. The claimants failed on the two grounds lodged.

The first was that that the Environmental Impact Assessments was somehow deficient because the Secretary of State failed to take into account the reasonable worst case environmental effects, deferred consideration of those effects until after the making of the DCO and separately the Secretary of State failed to restrict the DCO to defined parameters. The judgment is a welcome re-instatement of the principles underlying the “Rochdale Envelope”.

The particular qualms were with the assessment of the “Design Vessel” (DV) (which provides a design envelope for the maximum scale and location of the physical marine infrastructure which would use the facility). The promoter’s assessments had included consideration of existing DVs, but it was argued that a vessel with the dimensions, manoeuvrability and power characteristics of the potential maximum DV should be assessed given the development was big enough to accommodate it.

The promoter argued that a vessel of that size did not yet exist and that trying to assess the environmental effects associated with such a vessel (particularly from the perspective of navigation) would be speculative. The Examining Authority agreed with the promoter but noted that the trusty Harbour Master would control things during operation if the maximum DV did try to dock at the port in future. The Secretary of State agreed, added a requirement requiring safe operating procedures to be approved, and said there was no need to limit the use of the facility to the DV in the assessments given those controls.

The claimants said this was deficient. Not so, friend says the High Court. The judgment endorses the age old principle that planning decision-makers are entitled to have regard to regulation outside of the planning system and that the decision-maker should generally assume these regulatory processes will operate effectively. The suggestion that more should have been assessed was met with the response that there was no need to go beyond what is considered ‘current knowledge and [current] methods of assessment’.

Amusingly, the second ground argued that the Secretary of State had an “apparent bias” and so should have recused herself. This was on the basis that the Secretary of State (Louise Haigh) had (before the Order was made) visited the site for 45 minutes (which was suggested to be a more formal “site visit”), and after becoming Secretary of State had exchanged some pleasantries. A dinner party invite, rather than being jovial and welcome, was said to further indicate bias (even though it was turned down). There was nothing in this ground.

The learned judge held that a fair minded and impartial observer would not conclude from either the visit or the correspondence that there was a real possibility of bias, and that nothing in the decision letter, or indeed the ExA’s detailed consideration (which the SoS agreed with) could be taken as indicating bias.

From hero to zero

A brief aside that an application for a non-material change to the Net Zero Teesside DCO has been the subject of some musings from the Secretary of State. In particular, the Secretary of State states that the application “does not contain sufficient clarity or detail to enable him to reach informed conclusions”.

The consultation letter goes onto explain that there is not sufficient detail relating to the proposed use of land outside of the Order limits (which is not proposed to be subject to compulsory acquisition). Part of the concern appears to relate to whether relevant landowners have been consulted. In relation to the Environmental Statement Addendum (i.e., the update as a result of the proposed non-material change), a series of apparent defects are identified (e.g., photomontages, consideration of traffic movements and the overall programme).

Aarhus, in the middle of a street

The Aarhus Convention is increasingly coming under attack. You may have seen the Sky News segment on the challenge relating to a national landscape (we covered the latter in Blog 13). In the segment, the claimant in that case says that they would have thought twice about bringing in a legal challenge if they didn’t have the protections of the Aarhus Convention.

The Convention has two important elements for the purposes of this discussion. The first is the principle of public participation in decisions which affect the environment, and the second is the ‘costs caps’ protection given in legal challenges/judicial reviews of environmental decisions. The Convention says the costs of challenging should not be ‘prohibitively expensive’. In this country, in effect, that has been transposed so that contrary to the principle that ‘costs follow the event’ (i.e., the loser pays), the costs which a losing party are on the hook for £5,000 (in the case of an individual) or £10,000 (in the case of an organisation).

We all have our own views on the right balance between access to justice, and ensuring critical infrastructure gets built but we thought it would be interesting to look at what the Convention’s Compliance Committee is getting up to. There is no direct enforcement power of the Convention beyond these findings and the Committee’s remedy is to give recommendations. Given the dualist legal system (where international law has no effect unless domestically legislated) these cannot be directly enforced in UK courts (though see this recent case which touches on the extremely limited way in which it can be used as a contextual tool).

So what are the Committee saying about us? It’s three genetically modified thumbs down, I’m afraid.

With a hat tip to the excellent Aarhus Convention Blog, in July 2025, the Committee issued a draft finding which said that the process for the EU Withdrawal Bill failed to meet the public participation requirements of the Aarhus Convention because of a lack of consultation. Their recommendations include ‘the Party concerned take the necessary legislative, regulatory or other measures to establish a consistent framework to promote effective public participation during the preparation of draft legislation that may have a significant effect on the environment’ – in other words, change the way that you have been making legislation for centuries. Sure, that sounds easy, thanks pal.

Last year, a “review” into the UK’s compliance had a litany of apparent non-compliances including in relation to the costs caps (remarkably suggesting that our existing caps are too low), the Scottish costs allocation system, the standard of review applied to decisions by the courts, the way we treat “persons unknown” in cases concerning anti-social protests. This is not unique to the UK, there are various findings amongst the league of nations – e.g. a failure to consult for an operational life extension for a nuclear power plant in Spain.

Would a consultation on the Almaraz Nuclear Power Plant, delaying the ongoing generation of low-carbon energy, have been better or worse for the environment? Would that delay be better, or worse, for energy costs just at the point of Russia’s invasion of Ukraine? These are not questions for the Committee, but they are questions that sovereign countries need to answer. As the Aarhus Blog say, in contrast to upending our entire legal systems and processes, an alternative is that “we could just take the obvious course of action when faced with an adverse decision on the international stage, and withdraw the UK from the Aarhus Convention entirely”. 

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at August 2025. Specific advice should be sought for specific cases. For more information see our terms & conditions.