AC-2024-LON-003733 - [2025] EWHC 1992 (Admin)

Unlike the Rochdale Envelope, Counsel were not in agreement on the nature or scope of the Gateshead Principle. I was taken to a number of cases. Without referring to every case, I am satisfied that there is an established line of authority to the effect that: (1) planning decision-makers are entitled to have regard to regulation outside of the planning system, (2) that there is no requirement to duplicate such controls which are often the responsibility of expert bodies/regulators, and (3) the decision-maker should generally assume these regulatory processes will operate effectively. One can draw these principles from Gateshead MBC v Secretary of State for the Environment [1995] Env. L.R. 37, per Glidewell LJ at pp.49-50; Cornwall Waste Forum St Dennis Branch v Secretary of State for Communities and Local Government [2012] Env LR 34, per Carnwath LJ at [30], [34] and [38]; R (Frack Free Balcombe Residents Association) v West Sussex CC [2014] EWHC 4108 (Admin) per Gilbart J at [95], [100]-[104]); and more recently Gladman Developments v SSCLG [220] PTSR 129, per Lindblom LJ at [43].

The nature of the principle was also addressed by Sullivan LJ in R (An Taisce (The National Trust for Ireland)) v Secretary of State for Energy and Climate Change [2014] EWCA Civ 1111 (“An Taisce”) at [46]-[51]. That judgment is instructive in relation to the issues before me. After noting it was common ground that the decision-maker was entitled to rely on that principle in having regard to the UK nuclear regulatory regime in assessing the likelihood of accidents, Sullivan LJ explained (my underlining):

“48.

Many major developments…are not designed to the last detail at the environmental impact assessment stage. There will, almost inevitably in any major project, be gaps and uncertainties as to the detail, and the competent authority will have to form a judgement as to whether those gaps and uncertainties mean that there is a likelihood of significant environmental effects, or whether there is no such likelihood because it can be confident that the remaining details will be addressed in the relevant regulatory regime…

…

50.

In view of this factual background [an exposition of nuclear regulation], it might be thought that this case was the paradigm of a case in which a planning decision-taker could reasonably conclude that there was no likelihood of significant environmental effects because any remaining gaps in the details of the project would be addressed by the relevant regulatory regime. Undaunted, Mr. Wolfe submitted that there was a distinction between reliance upon a pollution regulator applying controls “which it has already identified in the light of assessments which it has already undertaken on the basis of a scheme which has already been designed”, which he said was permissible, and reliance up “current” gaps in knowledge “being filled by the fact of the existence of the pollution regulator [who] will make future assessments… on elements of the project still subject to design changes…”, which was not. 

51.

There is no basis for this distinction, which is both unrealistic and unsupported by any authority. The distinction is unrealistic because elements of many major development projects…will still be subject to design changes, and applying Mr. Wolfe’s approach those projects will not have “already been designed” at the time when an environmental impact has to be carried out... To require the elimination of the prospect of all design changes before the environmental assessment of major projects could proceed would be self-defeating. The promoters of such projects would be unlikely to incur the, in some cases, very considerable expense, not to mention delay, in resolving all the outstanding design issues, without the assurance of a planning permission. If the environmental impact assessment process is not to be an obstacle to major developments, the planning authority (in this case the Defendant) must be able to grant planning permission so as to give the necessary assurance if it is satisfied that the outstanding design issues – which may include detailed design changes – can and will be addressed by the regulatory process.”

Mr Elvin KC’s principal points, in summary, were as follows. He argued that the effects of the vessels operating within the three new proposed berths were matters which ABP was required to assess within the ES. Mr Elvin KC relied on the facts that the three berths formed part of the Proposed Development; that they had the potential to have “direct or indirect significant effects” on the factors specified in Regulation 5(2); and that any such effects must be stated in the ES pursuant to Regulation 14(2)(a) and (f) (read together with paragraph 4 of Schedule 4 to the Regulations). Mr Elvin KC submitted that the fact that ABP did not seek consent for any particular vessels is irrelevant because the three berths were designed to be used – and will in fact be used – by vessels including (in due course it is assumed) the DV. Accordingly, the use of the three berths by vessels is a potential operational effect of the Proposed Development.

In these circumstances, Mr Elvin KC submitted that the decision to make the DCO was unlawful, and in breach of the Regulations. More particularly, Mr Elvin KC relied on the following three points. First, the Defendant failed to take into account the full environmental effects of the Proposed Development and thus erred in law. The DL was accordingly said to be in breach of the Regulations because: (1) the ES was incomplete because it omitted consideration of the effects of the DV, contrary to Regulation 14; (2) the EIA process was incomplete because it omitted consideration of the effects of the DV, contrary to Regulation 5; and (3) as a result, the Defendant made the DCO in breach of Regulation 4 because the EIA had not been undertaken as required. Mr Elvin KC did not accept this was a Wednesbury challenge to the adequacy of the ES. As I understood his submissions, his case was that by reason of the incompleteness to which I have referred there was a simple failure to observe mandatory legislative requirements. Secondly, Mr Elvin KC argued that the Defendant unlawfully “postponed” consideration of the environmental effects of the DV’s use of the berths to a third party (the Harbour Master) and thus erred in law, applying Tew, Hardy and Smith v Secretary of State [2003] Env. LR 32 (“Smith”). Thirdly, he argued that the Defendant unlawfully failed to set parameters which “tied” the DCO to the effects assessed in the ES. He said she should have imposed a restriction in the DCO – as requested by the Claimants – which limited the use of the berths to the assessed vessels. I will consider these cases below.

Mr Westmoreland Smith KC, Mr Strachan KC and Ms Hutton collectively responded in summary as follows. They say that Ground I amounts to a challenge to the Defendant’s conclusion on the adequacy of the ES, and argue it is well established that the adequacy of environmental information is a matter of judgment for the decision-maker with which the courts will not interfere save in cases of Wednesbury unreasonableness. As to the argument that the ES was inadequate because the navigational risks of the DV were not modelled, they respond that this was because the DV does not yet exist and as such data on its manoeuvrability, required to model the DV, does not currently exist. The exercise cannot be undertaken. They further say that it is a vessel’s manoeuvrability as opposed to dimensions that is key to understand in the context of navigational risk; and an ES is only required to include the information “reasonably” required for reaching a reasoned conclusion on the significant effects of the development on the environment, taking into account current knowledge and methods of assessment. The DV manoeuvrability is not known and the Defendant understood this, considered it, and concluded the ES was adequate. They further submit that it was appropriate for the Defendant to have regard to the River Regime. They say that statutory regulation of navigation on the Humber was plainly relevant and the Gateshead principle applied. As such, they argue that it was not necessary to impose a requirement limiting vessel size given: (a) as a matter of judgment the Defendant and ExA were content that the Proposed Development could be operated safely on the basis of the modelling done; and (b) were cognisant of the fact that the Harbour Authorities properly applying the River Regime would have to consent to any new vessel using the IERRT (including one that fell outside of the modelled parameters) and, as such, there would be no likely significant effect within the meaning of the Regulations.

The Claimants’ arguments under Ground I essentially fall into three parts: (1) adequacy/incompleteness of the ES; (2) whether it was reasonable for the Defendant to have regard to the River Regime to control the safe navigation of the Humber; and (3) whether the Defendant was obliged to limit the maximum size of the vessels that could use the IERRT to those which had been modelled. I will address each part in turn.

Adequacy/incompleteness of the ES

As I have noted above, Regulation 14(3)(b) provides that an ESmust include the information “reasonably required” for reaching a reasoned conclusion on the “significant effects” of the development on the environment, taking into account “current knowledge and methods” of assessment. This directly links to the duty on the Defendant to reach a reasoned conclusion on the significant effects of the development under Regulation 21(1). I accept the Defendant’s submission that the adequacy of environmental information is a matter of judgment for the decision-maker with which the courts will not interfere save in cases of Wednesbury unreasonableness (Blewett at [36]-[41]). Mr Elvin KC’s first complaint was skilfully and attractively presented as a submission about a failure by the Defendant to undertake a compliant and complete assessment. However, when stripped to its essentials, it is in substance a complaint about the judgment of the Defendant on adequacy/completeness which can only be challenged on rationality grounds.

As to the complaint that the ES did not include a navigational simulation of the DV, the ExA found and the Defendant accepted that, “It would only be possible to ascertain that the Proposed Development could be used safely by the maximum DV (the largest vessel it has been designed to accommodate) when that DV has been fully specified and designed” (§3.3.137). As I have underlined above, Regulation 14(3) is clear that an ES is directed towards information reasonably required for reaching a reasoned conclusion on the significant effects of the development on the environment, “taking into account current knowledge and methods of assessment”. The manoeuvrability and power characteristics of the DV are unknown and I accept the Defendant’s submission that it is the manoeuvrability and power characteristics that are key (as opposed to mere dimensions). As a matter of common sense, vessels of the same size may have very different manoeuvrability depending on, for example, the number and independence of engines and thrusters. It is therefore necessary to know these characteristics to meaningfully assess the navigation of a particular vessel.

Both the ExA and the Defendant understood this and expressly addressed and rejected the argument that the ES was inadequate. That was a matter of judgment for the decision-maker and was clearly not irrational (indeed, it is not pleaded as such).

The ES was in my judgment plainly adequate and complete on the facts before the Defendant.

As I have noted above, having found that the navigational risk for existing ships was acceptable and that an assessment could not be made for the DV given current knowledge both the ExA and the Defendant went on to note that the Harbour Master did not object to the proposed IERRT Development and considered that the proposed berths could be operated safely and that it could, by acting on behalf of the Statutory Conservancy and Navigation Authority, restrict the types of vessels using the proposed berths in the interests of navigational safety and such restrictions would be imposed disregarding commercial considerations (Report §3.3.138).

The Defendant accordingly recognised that there was an additional layer of statutory control which meant that the use of the berths by the DV was not a likely “significant effect” of the IERRT Development as the Harbour Master would not permit such use, if it were not acceptable and safe. I consider this to be a lawful approach. In short, a decision maker on a development consent order can properly have regard to statutory controls outside of the planning regime on the basis of the Gateshead Principle as I have summarised it above. In writing in reply to ABP’s grounds of opposition, the Claimants originally argued that use of the principle is confined to cases of pollution control regimes (by reference to Gladman). That point was rightly not pursued by Mr Elvin KC in oral submissions. It is inconsistent with the case law.

The case law, which considers regulators in disparate fields, with a range of degrees of control and oversight over operational activity, demonstrates that the question is whether the decision-maker was “justified” in finding that the regulator’s “controls… are adequate to deal with” the environmental concerns (Gateshead, p.49). The decision-maker is “entitled to rely on the operation of those controls with a reasonable degree of competence on the part of the responsible authority”, despite the fact that “mistakes may occur in any system of detailed controls” (Milne, at [128]). The decision-maker is entitled to “have regard to, and rely upon, the existence of a stringently operated regulatory regime for future control” (An Taisce, at [46]). The decision-maker “will have to form a judgment as to whether those gaps and uncertainties [in the current environmental information] mean that there is a likelihood of significant environmental effects, or whether there is no such likelihood because it can be confident that the remaining details will be addressed in the relevant regulatory regime” (An Taisce, at [48], citing R (Jones) v Mansfield District Council [2004] 2 P & CR 14).

Whether a regulatory regime can be relied within the Gateshead principle to control an environmental effect is plainly a matter for the decision-maker’s judgment. I have concluded that the Defendant and the ExA were each entitled to find the Harbour Authorities and River Regime could be relied on to prevent unsafe navigation by the DV, if and when, such a vessel seeks to use the new berths. They were presented with a wealth of information supporting that conclusion and no issue was taken before me by Mr Elvin KC with any aspect of the Defendant’s or the Harbour Master’s description of the regime or its efficacy. I have provided a broad summary in Section IV above. In short, the Harbour Authorities repeatedly assured the ExA that they would prevent any navigation by the DV until the safety of that had been conclusively demonstrated.

It follows that the Defendant was entitled to conclude that the ES was adequate and that there was no likelihood of significant environmental effects because any remaining gaps in the details of the project would be addressed by the statutory controls over navigation in the Humber and the Port.On the evidence before the Defendant, and before me, there exists a very robust process (consistent with the PMSC) which ensures that any ‘new’ vessel which is seeking to enter the Port is reviewed as to its navigational and operational acceptability, taking into account the specifics of that vessel.

Finally, I note that the DCO in the Part 6 Provisions for the approval of operating procedures enable the SCNA to carry out its own navigational risk assessment and allow it to impose reasonable conditions on the approval. As such there is a yet further layer of protection in the scheme of the DCO itself.

Mr Elvin KC argued that if the Defendant was unable to assess the environmental effects of the DV using IERRT, then she was required to restrict the use of IERRT in order to limit the scope of the development to that assessed. In this regard, Mr Elvin KC placed reliance on a number of authorities.

As to Smith, Mr Elvin KC placed particular reliance on the following observation of Waller LJ in relation to constraints at [31] (which follows his citation of [128] of Milne):

“In my view it is a further important principle that when consideration is being given to the impact on the environment in the context of a planning decision, it is permissible for the decision maker to contemplate the likely decisions that others will take in relation to details where those others have the interests of the environment as one of their objectives. The decision maker is not however entitled to leave the assessment of likely impact to a future occasion simply because he contemplates that the future decision maker will act competently. Constraints must be placed on the planning permission within which future details can be worked out, and the decision maker must form a view about the likely details and their impact on the environment.”

I was not persuaded this citation assisted Mr Elvin KC when the remainder of the Smith case is considered. It has been clear since the original Rochdale cases that “any major development project will be subject to a number of detailed controls, not all of them included within the planning permission”, and so the decision-maker is entitled to rely on those controls regulating the proposal’s environmental impacts when granting planning permission (Milne, at [128]). A decision-maker, in reliance on the Gateshead principle, is entitled to “consider how the [relevant regulator] was likely to deal with the details and to conclude that the way the details would be dealt with would mitigate the adverse effect on the environment…” (Smith at [49]).In light of that conclusion, Waller LJ in Smith approved a condition that simply required that “No development shall take place until a scheme to suppress dust generated on site, has been submitted to and approved in writing by the Local Planning Authority…”, despite the claimant’s critique that this left the significant impact of dust and its mitigation undetermined and in the hands of the local planning authority and not the Inspector, who was the relevant decision-maker for EIA purposes. But the Inspector was entitled to find that the Environment Agency’s regulatory regime would likely prevent dust from causing significant environmental effects by way of an effective mitigation scheme.

I note that an analogous approach was taken in R (Kent) v First Secretary of State [2005] Env. L.R. 30 (“Kent”). At the consent stage for a proposed underground waste disposal facility, it was not clear what kind of waste would be put into the facility, so the decision-maker assessed a sample of representative wastes, and relied on a pollution regulator to otherwise control harmful effects. The criticism that the permission had to be limited to waste which was actually assessed was dismissed; rather the reliance on generic waste types was lawful, so long as “the description of the generic waste types was sufficient to enable the decision maker to identify and assess the main effects of the development on the environment” [80]. Even if the generic analysis had meant the effects of a particular waste type had “fallen through the net” of the EIA assessment, that would “still be picked up” by the regulator and would therefore have been lawful [81].

In my judgment, precisely the same applies here. On the material before me, it is clear that the Defendant has assessed the largest vessels she is able to, determined they are safe, and determined that should a DV come into existence its safe navigation would be ensured by the Harbour Authorities under the River Regime. Her assessment of the safety of vessels navigating the DV, which included her consideration of River Regime in controlling impacts arising from the hypothetical DV, was rational, sufficient and detailed.

Mr Elvin KC also relied strongly on Hardy. I do not consider that authority assists me. In that case the decision-maker failed to require surveys of a cave that may well have contained bats before granting consent. For that reason, the decision-maker could not have reasonably determined they were in possession of the “full information” they required to make their decision and could not rationally conclude that there were no significant effects until they had the data from the survey. They essentially had no information, but could have acquired a survey, and the decision was thereby unlawful (see Sir Michael Harrison’s explanation of his decision in Hardy in Kent at [54]).

In my judgment, there is no justification for the imposition of restrictions on vessel size and type, let alone the failure to do so being unlawful.

Ground 1 is dismissed.

This ground concerns the former Secretary of State for Transport, the Rt Hon Louise Haigh MP (“Ms Haigh MP”). The bases for the apparent bias claim are her actions as a shadow minister before becoming the Secretary of State on 5 July 2024, following the General Election, and during her tenure in that role as Secretary of State. As Secretary of State Ms Haigh MP was the minister that made the DCO which is challenged in these proceedings.

Although Counsel referred me to a number of cases, and as I indicated at the hearing, I propose to rely only on the principles in Porter v Magill [2002] 2 AC 357, per Lord Hope at [103]. The test for apparent bias is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the decision maker was biased. The Porter test is a two stage inquiry. First, the Court ascertains all the circumstances which have a bearing on the suggestion of bias. Then, the Court asks whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the decision-maker was biased. I was taken to a number of other cases including some in the planning context but (save for R (Lewis) v Redcar and Cleveland Borough Council [2008] EWCA Civ 746 ("Lewis") see [75] below), I did not find them of assistance. Each case turned on its own facts. The Lewis case reflects the practical realities of applying the apparent bias test when planning decision-makers operate in a political context.

It was common ground that in adjudicating on an apparent bias allegation the Court is not limited to considering information readily available in the public domain. So, a witness statement from the decision-maker explaining the facts is relevant evidence, and can be of determinative significance. In terms of evidence, the Defendant relied on a witness statement from Mr Gareth John Leigh (“Mr Leigh”) who is the Head of the Transport Infrastructure Planning Unit within the Department for Transport. Mr Leigh describes information provided to him by Ms Haigh MP in relation to matters preceding the DCO including the site visit. He also provides an explanation as to why she decided to determine the application personally, including the advice the Unit gave her. There was rightly no challenge to what is said in Mr Leigh’s statement and in particular to the accuracy of the facts Ms Haigh MP provided to him as the information to be put before the court in his witness statement. I did not consider there was any need for Ms Haigh MP to provide a witness statement personally.

In terms of case law, I found the following observations of Rix LJ in the Lewis case, in the planning context, of assistance:

“95.

The requirement made of such decision-makers is not, it seems to me, to be impartial but to address the planning issues before them fairly and on their merits, even though they may approach them with a predisposition in favour of one side of the argument or the other. It is noticeable that in the present case no complaint is raised by reference to the merits of the planning issues. The complaint, on the contrary, is essentially as to the timing of the decision in the context of some diffuse allegations of political controversy.

“So the test would be whether there is an appearance of predetermination in the sense of a mind closed to the planning merits of the decision in question. Evidence of political affiliation or of the adoption of policies towards a planning proposal will not for these purposes by itself amount to an appearance of the real possibility of predetermination or what counts as bias for these purposes. Something more is required, something which goes to the appearance of a predetermined, closed mind in the decision-making itself. I think that Collins J put it well in R (Island Farm Development Ltd) v Bridgend County Borough Council [2007] LGR 60 when he said, at paras 31—32:

“31.

The reality is that councillors must be trusted to abide by the rules which the law lays down, namely that, whatever their views, they must approach their decision-making with an open mind in the sense that they must have regard to all material considerations and be prepared to change their views if persuaded that they should . . . unless there is positive evidence to show that there was indeed a closed mind, I do not think that prior observations or apparent favouring of a particular decision will suffice to persuade a court to quash the decision.

32.

It may be that, assuming the Porter v Magill test is applicable, the fair-minded and informed observer must be taken to appreciate that predisposition is not predetermination and that councillors can be assumed to be aware of their obligations.”

96.

In context I interpret Collins J’s reference to “positive evidence to show that there was indeed a closed mind” as referring to such evidence as would suggest to the fair-minded and informed observer the real possibility that the councillor in question had abandoned his obligations, as so understood. Of course, the assessment has to be made by the court, assisted by evidence on both sides, but the test is put in terms of the observer to emphasise the viewpoint that the court is required to adopt. It need hardly be said that the viewpoint is not that of the complainant.”

On behalf of the Claimants, Matthew Henderson argued Ground II. In his focussed and well-structured oral submissions, Mr Henderson said that Ms Haigh MP’s decision to make the DCO was “infected by apparent bias” arising specifically from three “strands” in the evidence as follows. First, from Ms Haigh MP’s visit to the Port on 24 May 2024 and briefing by ABP in the absence of the Claimants and any other interested party. Secondly, by reason of the nature of the correspondence between ABP and Ms Haigh MP following her appointment as Secretary of State. Thirdly, from her decision to keep hold of the decision-making on the DCO and to determine it personally when she had declined to personally deal with decisions on other projects. Mr Henderson also helpfully took me through the ministerial submissions Ms Haigh MP received in July and August 2024, and to the written governmental guidance on DCO (and related) applications and the safeguards to be adopted by ministers to avoid the appearance of bias.

Mr Westmoreland Smith KC argued that Ground 2 as originally pleaded was entirely focused on the 24 May visit to the Port but had “evolved” to incorporate the suggestion that Ms Haigh MP’s taking of the decision herself, as opposed to delegating it to junior ministers, also shows apparent bias. He submitted that neither way of putting the claim has merit when the facts are understood.

I begin with an obvious point which cannot be disputed. It is commonplace for politicians – both in Government and opposition – to visit businesses of all kinds. One does not need evidence of this, but it is amply demonstrated by the list of visits to ABP produced by it in the evidence before me. ABP has also produced a timeline that summarises the majority of the relevant factsand it has not been disputed.

Based on the evidence before me, my factual findings are as follows (for the avoidance of doubt when I refer to the evidence of a witness I accept that evidence as true and accurate). As of 24 May 2024, the actual Secretary of State (Mark Harper MP) had not made a visit to the Port and indeed he was unaware of the visit on that day by Ms Haigh MP. Ms Haigh MP, who was then the Shadow Secretary of State for Transport, was invited by ABP to visit ABP’s operations in the Humber in March 2024. At the time of the invitation, its acceptance and the confirmation of the date of the visit (the date was confirmed on 26 March 2024), no date had been set for the General Election; and the deadline for Mark Harper MP to issue the decision on the DCO was 25 July 2024. The General Election was announced on 22 May 2024, less than two full days before the visit by Ms Haigh MP.

The visit itself was relatively brief. She was given a PowerPoint presentation by ABP and Air Products. The presentation described APB as a commercial operator; its particular assets and activities on the Humber; and current projects on the Humber (one of which being the IERRT); and slides on ABP and Labour and transport policies (none of which mention the IERRT). There was a single slide on the IERRT in the context of the current projects on the Humber. It states:

“New £100m+ planned Roll-on/Roll-off ferry cargo facility with partner Stena Line

Adds capacity and choice for trade with Europe and more direct, lower emissions route for north of England businesses & supply chains.

Adds more resilience for UK supply chains, reducing reliance on routes via Kent and reducing congestion.

Dependent on DCO, build due 25/26”

Mr Tim Morris, Group Head of Corporate Communications for ABP, received Ms Haigh MP at the Port and he explains in his witness statement that while in the Port Control Centre he pointed out from the balcony “... a panorama of notable sites around the port, including the location of the proposed major project developments covered in the high-level briefing which we gave to her about the port”. He explains that the proposed site of the IERRT was included in the panorama but other than pointing this out no further conversation took place about it.

On the day of the visit itself, Mark Harper MP announced the delay of the decision on the DCO until 4 October 2024 due to the General Election. Following the General Election, on 5 July 2024, Ms Haigh MP was appointed the Secretary of State for Transport.

The Chief Executive of ABP wrote to Ms Haigh MP as the new Secretary of State on 15 July 2024. This was an unsolicited letter and was not specifically focused on the IERRT, but spoke generally as to how ABP could work with the Government. The letter mentioned her visit. It said: “I and my colleagues are looking forward to working with you to deliver more of what you saw on your recent visit to our Port of Immingham: enabling trade for UK economy and an ambitious investment programme for the energy transition”. The letter set out six specific “asks” of the Government one of which related to IERRT. It asked: “1. Support ABP’s delivery of the Immingham Eastern Roll-On Roll-Off Terminal (IERRT) Support ABP’s delivery of the Immingham Eastern Roll-On Roll-Off Terminal (IERRT) which represents £100m+ investment by ABP and our partner, Stena Line, to build better trading links with our European neighbours. The development builds on the observed and forecasted trend for trade to diversify away from the short straights route in a post Brexit world, given the well-publicised issues with congestion in Kent and the required new border formalities. Approval of the Development Consent Order (DCO) to give this project the green light, currently sits on your desk”. An accompanying slide pack included one slide on IERRT which briefly describes the project and then states: “What’s required from Government? Planning approval – the Development Consent Order currently sits on the desk of the Secretary of State for Transport”.

On 18 July 2024, ABP sent a letter in similar terms to the Parliamentary Under Secretary of State for Transport, Mike Kane MP. I understand that he did not respond to that letter.

On 23 July 2024, ABP wrote to Ms Haigh MP to invite her to the ABP Humber Marine Dinner. This invitation had enclosed the following PDFs: “ABP Humber IGET overview Feb 2024” and “ABP Humber IERRT overview May 2024”. These included a page on the IERRT. She declined the invitation. The advice behind the decision to decline said: “Reasons for Recommendation [to decline] ABP have two outstanding applications for Development Consent Orders (DCO). The deadline for the DCO decision for their proposed construction and operation of a new Roll-on/Roll-off cargo facility at the Port of Immingham is 4 October. This event is very close to the deadline. The Secretary of State (or delegated junior minister) will be the decision maker for the DCO and therefore cannot be drawn into any discussions on this matter. Attending this event may put her in a difficult position. If she did want to attend or delegate to another Minister or senior official, we should seek legal advice on the risk.” That advice was however not necessary as Ms Haigh MP had simply declined the invitation.

Ms Haigh MP replied to ABP’s 15 July 2024 letter on 5 August 2024. It was a polite response of a generic nature, whilst recognising the importance of ABP and stating that she would be happy to meet with ABP after the Summer recess. The response did not refer to the IERRT development.

On 6 September 2024 a joint letter from ABP and Stena Line was sent to Ms Haigh MP in relation to the IERRT development offering a meeting on the project. As explained by Mr Leigh, this correspondence was handled by Ministerial Private Offices. Ms Haigh MP was not briefed on it. It was not shared with the team advising Ms Haigh MP on the DCO decision and at no point was it introduced into the departmental decision-making process, including any recommendation made to her. No response was issued by the Secretary of State. She did not visit any ABP site prior to the decision on the DCO.

Mr Leigh explains the advice Ms Haigh MP received in relation to delegation of planning and DCO decisions. Initially, a few days after taking up her post, she was advised to delegate all decisions regarding applications for development consent to junior Ministers with unrelated portfolios; and she agreed to this on 15 July 2024. However, further advice was subsequently provided. The key advice was provided on 22 August 2024 (“the August Submission”). The August Submission recommended that Ms Haigh MP decide all aviation DCOs and the Lower Thames Crossing application and delegate the remainder to junior ministers.

As explained by Mr Leigh, the Secretary of State did not want to delegate decisions to junior ministers where they were imminent. I accept that this was so as to not over-burden new junior ministers with significant planning decisions that needed to be determined in the near term. Annex A to the August Submission sets out a list of DCO projects that required determination by or on behalf of the Secretary of State at that time. Only four of these were to be determined in 2024: Hinckley Rail Freight Interchange (“Hinckley”), IERRT, Lower Thames Crossing (“LTC”) and Luton Airport (“Luton”). Ms Haigh MP did not delegate either LTC or Luton, in accordance with the advice she received, and in any event, their deadlines were extended into 2025.

As to Hinckley, the Secretary of State issued the minded to refuse letter on 10 September 2024 alongside a Written Ministerial Statement which extended the deadline to 10 March 2025. As such Hinckley was not an imminent decision, but Ms Haigh MP did issue the minded to letter herself, which did require dealing with it in the short term, rather than delegating that decision to a junior minister.

As a result, IERRT was the only DCO that had to be substantively determined in 2024 and fell into the “imminent” category that Ms Haigh MP wanted to retain to decide herself. On 11 September 2024, therefore, she accepted the recommendation in the August Submission, save she said she wanted to take the substantive decision on IERRT. She subsequently determined the application in accordance with the ExA’s recommendation.

In my judgment, when the facts are appreciated neither the original nor evolved claim of apparent bias has any merit. First, I underline that there was no “site visit” by the Secretary of State. The May visit complained of was made by Ms Haigh MP before the election and her appointment as part of the new Government to be Secretary of State in July 2024. It was not a “site visit” which is a term of art in the planning field.

The high point of the case on apparent bias is therefore the letter dated 5 August 2024 in response to the ABP letter of 15 July 2024. In my judgment, Ms Haigh MP’s letter was simply a polite response to a generic letter seeking good working relations with a new Government of the type written by industry frequently. As I have said, the response does not mention the IERRT. It must be read in the light of (a) the frequency of interaction between large scale industry and Government and opposition politicians; (b) the other correspondence from ABP to the Secretary of State following the election and the Secretary of State’s decision not to respond to any other letter from ABP; and (c) the decision to decline the invitation to an ABP dinner having regard to the outstanding decisions on the DCOs.

In my judgment, a fair minded and impartial observer would not conclude from either the visit or the correspondence that there was a real possibility of bias. Indeed, the declined invitation shortly before that letter indicates that the Secretary of State was not prepared to engage in any material way with ABP whilst the decision on the DCOs lay before her.

As to the complaint about Ms Haigh MP deciding to deal with the DCO herself, that is equally without merit. In short, the fair-minded observer would recognise that:

Ground 2 is dismissed.

The claim is dismissed.