Hayley Tam and George Hobson from LexisPSL on a recent tribunal decision on a MMO remediation order
On 22 October, the first-tier tribunal general regulatory chamber (environment) concluded its first appeal against a remediation notice served by the Marine Management Organisation (MMO). The conclusion of the case, Frieda v Marine Management Organisation NV/2012/0002, followed a three-day hearing and, importantly, a site visit.
The appellant had rights to maintain a causeway located in a special area of conservation, special protection area and Ramsar wetland. He deposited some 300 tonnes of mixed building rubble along the edges of the causeway to keep vehicles away from the mudflats on either side.
The new deposits were added to existing materials, some of which dated back to World War II.
The remediation notice required the appellant to remove the material, which was deposited without a licence.
The MMO was concerned that the material interfered with navigation; was a hazard to human health; and gave rise to environmental concerns. The appellant acknowledged that he had carried out the activity without a licence, but argued the new material was no more an interference or a hazard than the existing material.
The conduct of the tribunal hearing was key to the outcome of the case. After a two-hour site visit, the appellant offered to remediate the causeway. The main issue then became whether the proposed remediation was likely to have a significant effect on the protected sites and on wintering birds. If it did, the remediation would require an appropriate assessment under the Habitats Directive (92/43/EEC) and the Conservation of Habitats and Species Regulations 2010.
The tribunal decided that the proposed remediation, with built-in noise reduction and monitoring provisions, was not likely to have significant effects so did not require appropriate assessment. Its decision was informed by expert ecological evidence from both the MMO and the appellant.
