Oceana UK v Secretary of State for Energy Security and Net Zero & Anor

MR JUSTICE MOULD : Introduction

1. The Claimant, Oceana UK, brings this claim for judicial review to challenge the lawfulness of three appropriate assessments [“AA”] published by the First Defendant, the Secretary of State for Energy Security and Climate Change, on 3 May 2024. The AAs are the Offshore Oil and Gas Licensing 33 rd Seaward Round Habitats Regulations Assessment Appropriate Assessments for – (1) Southern North Sea and Mid North Sea High; (2) West of Shetland and Central North Sea; and (3) Eastern Irish Sea.

2. The AAs were carried out by the Offshore Petroleum Regulator for Environment and Decommissioning [“OPRED”] under regulation 5(1) of the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001 [“the 2001 Regulations”] . OPRED is part of the Department for Energy Security and Net Zero’s Energy Infrastructure Group. On behalf of the First Defendant, OPRED is responsible for regulating environmental and decommissioning activity in the territorial sea adjacent to the UK and on the UK continental shelf. OPRED’s responsibilities include managing the process of appropriate assessment of offshore oil and gas activities under regulation 5 of the 2001 Regulations.

3. The AAs were carried out for the purpose of enabling the First Defendant to discharge his function under regulation 5 of the 2001 Regulations in relation to the proposed grant by the Second Defendant of Petroleum Act licences, as part of the 33 rd Seaward Oil and Gas Licensing Round [“the 33 rd Round”] which opened on 7 October 2022. The Second Defendant, the Oil and Gas Authority [“OGA”] which trades as the North Sea Transition Authority [“NSTA”] has the function of granting licences under section 3 of the Petroleum Act 1998 [“ to search and bore for and get petroleum, including oil and gas, which is to be found existing in its natural condition in or beneath the territorial seas adjacent to Great Britain. the 1998 Act ”]

4. By virtue of regulation 5 of the 2001 Regulations – (1) The Second Defendant may not grant any such “Petroleum Act licence” without the First Defendant’s agreement. (2) Where the First Defendant considers that anything that might be done or any activity which might be carried out pursuant to a Petroleum Act licence is likely to have a significant effect on a relevant site, whether individually or in combination with any other plan or project, he must make an appropriate assessment of the implications for the site in view of the site’s conservation objectives, before he agrees to the grant of the licence. For those purposes, a “relevant site” includes designated Special Areas of Conservation [“SAC”] and Special Protection Areas [“SPA”] . (3) In the light of the conclusions of the appropriate assessment, the First Defendant shall agree to the grant of a Petroleum Act licence “only after having ascertained that nothing that might be done and no activity that might be carried out pursuant thereto would have an adverse effect on the integrity of a relevant site” : regulation 5(3).

5. In this case, it was the overall conclusion of each of the three AAs under challenge that nothing that might be done and no activity that might be carried out pursuant to the proposed Petroleum Act licences, which had been subject to appropriate assessment, would have an adverse effect on the integrity of any SAC or SPA. On 3 May 2024, it was announced that the Second Defendant had offered thirty-one Petroleum Act licences, known as Seaward Production Licences [“the Licences”] . The Interested Parties are the licensees to whom those Licences were offered. On 24 May 2024, it was announced that a further Licence had been offered to the 22 nd Interested Party, TotalEnergies E&P Limited [“Total”] . That Licence also had been subject to appropriate assessment under the AAs.

6. Although the target of the claim for judicial review is stated to be the AAs, strictly speaking, the decision which the Claimant seeks to challenge is the First Defendant’s decision taken under regulation 5(3) of the 2001 Regulations to agree to the grant of the Licences by the Second Defendant.

7. On 2 October 2024, Lang J refused permission to apply for judicial review on the papers. The Claimant sought reconsideration of the question of permission at an oral hearing. On 12 November 2024 Fordham J heard that application and granted permission.

8. The claim proceeds on four of the original five pleaded grounds. In summary – (1) Ground 1 – The First Defendant failed to consider the impact of oil and gas industry accidents, including oil spills and discharges, on marine protected areas [“MPAs”] and their conservation features. (2) Ground 2 – The First Defendant failed to assess the impact of climate change both in terms of its impact on the MPAs’ increasingly vulnerable protected marine habitats and in relation to the licensed activities. (3) Ground 4 – The First Defendant failed adequately to address the cumulative and in-combination effects of the licenced activities on the MPAs. (4) Ground 5 – The First Defendant failed to give cogent reasons for departing from the advice given by the Joint Nature Conservation Committee [“JNCC”] following consultation with the JNCC and Natural England [“NE”] as the appropriate nature conservation body, pursuant to regulation 5(2) of the 2001 Regulations.

9. On 22 January 2025 the Claimant applied to amend their statement of facts and grounds by the addition of a further ground of challenge (Ground 6) which contends that the First Defendant failed lawfully to conduct appropriate assessments of those Licences which were granted by the Second Defendant as “straight to second term” [“SST”] Licences. The First Defendant contends that permission to amend should be refused on the basis that Ground 6 is unarguable.

10. In essence, the Claimant’s case is that the AAs did not contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the licensed activities on the SACs and SPAs affected by the Licences. As a result, the First Defendant was unable properly to be satisfied that there was no reasonable doubt as to the absence of adverse effects on the integrity of those MPAs. The First Defendant was not in a position lawfully to agree to the grant of the Licences under regulation 5(A1) of the 2001 Regulations. Consequently, the Second Defendant’s decision to grant the Licences was in each case also unlawful. Evidence in support of the Claimant’s case is given by Naomi Tilley, an environmental scientist and the Claimant’s Oil and Gas Lead, in her three witness statements.

11. The First Defendant’s case is that the Claimant has misunderstood the nature of the decisions taken under regulation 5 of the 2001 Regulations and their wider context as a step in a multi-stage consent process. The Licences grant exclusive rights over a specified area or areas of seabed in UK territorial waters or the UK continental shelf [“UKCS”] , referred to as a “Block” or “Blocks”. However, separate consents are required before any exploration activities may take place which could give rise to adverse effects on the integrity of any MPA. At this stage in the process, the precise nature, timing and location of exploration and production activities are not known. The AAs were therefore carried out on the basis that certain activity-specific effects could not be assessed at this stage; and if necessary, where consent is sought for exploration activities, further appropriate assessment will be carried out under regulation 5(2) of the 2001 Regulations. This was acknowledged in the AAs themselves. It is lawful to defer assessment to a later stage in a multi-consent procedure when the effects of activities will be capable of being understood and meaningfully assessed. Evidence in support of the First Defendant’s case is given by Helena Charlton, a senior civil servant and at the time of her witness statement dated 18 December 2024, Acting Director of OPRED.

12. A number of the Interested Parties have filed grounds of defence and evidence in response to the substantive claim. Total has filed summary grounds of defence, and the witness statement of Jesse Clark dated 3 October 2024. Hartshead Resources Limited has filed detailed grounds of defence and the witness statement of Chris Lewis dated 18 December 2024. Perenco UK Limited [“Perenco”] has filed detailed grounds of defence. Perenco has also filed the witness statements of Sophie Constantine Smith dated 20 January 2025 and two witness statements of Alexander Froud, a geophysicist employed by Perenco. Orcadian Energy (CNS) Ltd has filed a written response to the claim in the form of a skeleton argument dated 17 December 2024.

13. Zoe Leventhal KC appeared with Kate Cook and Emma Foubister as counsel for the Claimant. Rose Grogan appeared with Ben Fullbrook as counsel for the First Defendant. I am grateful to them all for their excellent written and oral submissions. I also express my gratitude to Jane Oldham who appeared for ONE-Dyas UK Limited and Ruth Keating who appeared for Perenco. The Claimant and its objectives

14. The Claimant, Oceana UK, is a charity dedicated to ocean conservation. In her first witness statement, Naomi Tilley explains that the Claimant’s objective is to win specific and concrete policy changes to reduce pollution and to prevent the irreversible collapse of fish populations, marine mammals and other sea life.

15. The Claimant currently has three campaigns in the UK, the third of which is to secure the cessation of offshore oil and gas drilling. Ms Tilley says that the campaign was launched in April 2023 with the publication of In Deep Water, which she says is the first ever comprehensive review of how the oil and gas industry is damaging the UK's seas. She says that the report shows how the UK's marine life is subject to a wide range of harm from the oil and gas industry at all stages of the exploration and production process. That harm includes deafening underwater noise, smothering and damage to sea floor habitats, the risk of catastrophic large oil spills and smaller, routines spillages which can and do pollute the UK seas on a daily basis.

16. Ms Tilley says that the oil and gas industry's contribution to climate change adds further pressure onto UK seas, driving changes in seasonality, ranges and distributions of species and habitats and the loss of cooler water species and habitats.

17. Ms Tilley sets out the Claimant’s concerns about the impacts on marine habitats and species of the key stages in process of oil and gas exploitation offshore. She says that during the exploration phase, seismic surveys and exploratory drilling can cause severe harm to protected species through noise and physical disturbance of marine habitats. Pollution from oil spills and other chemicals during both exploratory activities and oil and gas production is highly damaging to marine habitats and species. The damage caused is long term. In addition to the end use of oil and gas exploited during the production stage, significant quantities of greenhouse gases are released into the atmosphere during oil and gas exploration. The marine environment acts to reduce the extent and impact of climate change through its capacity to lock down carbon into marine systems, a process known as “blue carbon”. Oil and gas exploration and production diminishes the effectiveness of that process. The combustion and transportation of fossil fuels produced under the Licences will inevitably contribute to global greenhouse gas emissions and in turn to the degradation of the UK’s marine environment through climate change.

18. Ms Tilley explains the Claimant’s response to the public consultation round on the draft appropriate assessments [“the draft AAs”] which opened on 31 July 2023. The Claimant co-ordinated an open letter signed by 37 organisations, expressing their dismay at the government's decision to award new oil and gas licences and urging reconsideration. On 15 September 2023 the Claimant submitted its detailed written response to consultation on the draft AAs, raising numerous and wide-ranging concerns over the adequacy of those assessments.

19. On 3 May 2024, the date on which the AAs were published in their final form, OPRED wrote to the Claimant in relation to the matters raised by the Claimant in their response to consultation on the draft AAs. Ms Tilley states that the Claimant was disappointed by OPRED’s response, which they considered dismissive of their concerns and failing to reassure them as to the adequacy of the AAs.

20. Ms Tilley states that over one third of the 32 Licences granted on 3 May 2024 overlap MPAs, with multiple licences granted within single MPAs. The UK’s network of MPAs is intended to be an ecologically coherent and well managed network of geographical areas to achieve long term nature conservation and sustainable use of UK seas. MPAs are critical tools for recovering and protecting the richness of the UK's marine environment and wildlife. She says that the grant of the Licences in these protected areas undermines the purposes for which they have been designated. She offers the example of Licences granted within the Dogger Bank SAC, which is the largest sandbank in the UK and is home to a variety of species which rely on the habitat it provides. Wildlife includes hermit crabs, starfish and sandeels, which provide food for many seabirds, dolphins and whales. The Dogger Bank SAC overlaps with the Southern North Sea SAC, which is designated to protect the harbour porpoise, supporting an estimated 17.5% of the UK North Sea population.

21. I have summarised the Claimant’s objectives and its concerns about the continuing exploitation of oil and gas reserves in UK territorial waters in order to give some context to the issues raise by this claim. It is important to emphasise that the political and socio-economic choices which are engaged by the 33 rd Round are not for this court to make. When faced with a claim for judicial review, the role of the court is to determine whether the grounds on which the claim is advanced establish that the decision or decisions under challenge were reached unlawfully. As the Claimant correctly observes in its statement of facts and grounds, this claim is not a challenge to the merits of the AAs. The focus of the grounds of claim is on what are contended to have been specific errors of approach which are said to have resulted in AAs that fail to meet the legal threshold for validity. Legal Framework Petroleum licensing Petroleum Act 1998

22. Section 2 of the 1998 Act vests in the Crown the exclusive right of searching and boring for and getting petroleum which for the time being exists in its natural condition in strata in Great Britain, or beneath the territorial seas adjacent to the United Kingdom. Section 1 of the 1998 Act defines petroleum as including any mineral oil or relative hydrocarbon and natural gas existing in its natural condition in strata. petroleum vested in the Crown. Section 3 of the 1998 Act empowers the Second Defendant, as appropriate authority, to grant licences to search and bore for and get

23. Section 9 A(1) of the 1998 prescribes the “principal objective” . That objective is to maximise the economic recovery of UK petroleum: in particular, through development, construction, deployment and use of equipment used in the petroleum industry (including upstream petroleum infrastructure); and collaboration among holders of petroleum licences, operators under petroleum licences, owners of upstream petroleum infrastructure, persons planning and carrying out the commissioning of upstream petroleum infrastructure and owners of relevant offshore installations. The Second Defendant is required by section 9 A(2) of the 1998 Act to produce strategies for enabling the principal objective to be met. Model Clauses – the 2008 Regulations

24. Section 4 of the 1998 Act empowers the appropriate Minister to make regulations prescribing model clauses to be incorporated into licences granted under the powers conferred by section 3 . Schedule 1 to the Petroleum Licensing (Production) (Seaward Areas) Regulations 2008 [“the 2008 Regulations”] prescribe model clauses for seaward area production licences.

25. Model Clause 2 prescribes the terms of grant – “2. In consideration of the payments hereinafter provided for and the performance and observance by the Licensee of all the terms and conditions hereof, the OGA, in exercise of the powers conferred upon it by the Act hereby grants to the Licensee exclusive licence and liberty during the continuance of this licence and subject to the provisions hereof to search and bore for, and get, Petroleum in the sea bed and subsoil under the area described in Schedule 1 to this licence provided that nothing in this licence shall affect the right of the OGA to grant a methane drainage licence in respect of the whole or any part of the Licensed Area or affect the exercise of any rights granted under any such methane drainage licence”.

26. The term of a licence granted under section 3 of the 1998 Act is prescribed by Model Clause 4. The licence commences on the date on which it is granted. Unless sooner determined, the licence then continues through three stages – the Initial Term, the Second Term and the Third Term – and determines on the expiry of the Third Term, unless extended. The Initial Phase is defined in Model Clause 1 as consisting of three phases – Phases A, B and C – each of which is to be specified in schedule 5 to the licence. The Initial Stage ends on the last day of Phase C. The periods of the Second and Third Terms are also specified in schedule 5 to the licence.

27. Model Clause 4 makes more detailed provision for the Initial Term. In particular, Clause 4 provides for the immediate cessation and determination of the licence in the event that the elements of the “Work Programme” applicable to the given Phase of the Initial Term have not been completed by the expiry of that Phase. Clause 1 defines the “Work Programme” as the programme set out in schedule 3 to the licence.

28. Model Clauses 6 and 8 grant options to the licensee on giving written notice to the OGA to continue the licence into the Second Term and thereafter into the Third. The options are subject to fulfilment of stated conditions. Model Clause 7 enables the licensee to apply to the OGA to extend phases of the Initial Term or the Second Term, with corresponding reductions in the following terms. Model Clause 11 enables the licensee to apply to determine the licence or to surrender it in relation to part of the licensed area. Model Clause 12 provides for payments by the Licensee in consideration of the grant of the licence to be specified in schedule 2 to the licence.

29. Model Clause 16 requires the licensee to carry out the Work Programme before the expiry of Phase C of the Initial Term of the licence. Model Clause 17 governs the development and production programmes. Clause 17(1) states – “The licensee shall not – (a) erect or carry out any relevant works, either in the licensed area or elsewhere, for the purposes of getting petroleum from that area or for the purpose of conveying to a place on land petroleum got from that area; or (b) get petroleum from that area otherwise than in the course of searching for petroleum or drilling wells, except with the consent in writing of the OGA or in accordance with a programme which the OGA has approved or served on the licensee in pursuance of the following provisions of this clause”.

30. For the purposes of Model Clause 17, relevant works are any structures and any other works whatsoever which are intended by the licensee to be permanent and are neither designed to be moved from place to place without major dismantling nor intended by the licensee to be used only for searching for petroleum: clause 17(9).

31. Model Clause 19 provides that the licensee shall not commence or recommence the drilling of any well or borehole without the written consent of the OGA. Nor is the licensee to abandon any well or borehole without the OGA’s written consent. Model Clause 23 requires the licensee to take steps to avoid harmful methods of working – “(1) The licensee shall maintain all apparatus and appliances and all Wells in the licensed area which have not been abandoned and plugged as provided by clause 19 of this licence in good repair and condition and shall execute all operations in or in connection with the licensed area in a proper and workmanlike manner in accordance with methods and practice customarily used in good oilfield practice and without prejudice to the generality of the foregoing provision the licensee shall take all steps practicable in order— (a) to control the flow and to prevent the escape or waste of petroleum discovered in or obtained from the licensed area; (b) to conserve the licensed area for productive operations; (c) to prevent damage to adjoining petroleum-bearing strata; (d) to prevent the entrance of water through wells to petroleum-bearing strata except for the purposes of secondary recovery; and (e) to prevent the escape of petroleum into any waters in or in the vicinity of the licensed area”. Conservation of Species and Habitats – Appropriate Assessment Habitats Directive

32. Article 6 of Council Directive 92/43 EEC on the conservation of natural habitats and of wild flora and fauna [“the Habitats Directive”] states – "2. Member states shall take appropriate steps to avoid, in special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.

3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public."

33. Article 6 has been transposed into English law by regulation 63(2) of the Conservation of Habitats and Species Regulations 2017 [“the 2017 Regulations”] . Offshore Petroleum Activities (Conservation of Habitats and Species Regulations) 2001

34. Regulation 3 of the 2001 Regulations requires the First and Second Defendants to exercise their respective, relevant functions in such manner and to the extent necessary in order to secure that offshore oil and gas activities are carried out in a manner that is consistent with the requirements of the Habitats and Wild Birds Directives. Those functions are defined by regulation 2 to mean any function exercisable by the First and Second Defendant in relation to or in connection with offshore oil and gas activities including, without limitation, functions exercisable under the 1998 Act or any licence granted or having effect as if granted under that Act .

35. Regulation 4 of the 1998 Regulations identifies certain oil and gas related activities which are not to be carried out in any area comprising UK waters, waters in a designated area of continental shelf or the seabed and subsoil under such waters without the prior written consent of the First Defendant – “4(1) In so far as they relate to oil and gas activities, the following activities or procedures shall not be carried out in a relevant area without the prior written consent of the Secretary of State - (a) prospecting or carrying out geological surveys by physical or chemical means; (b) drilling for the purpose of obtaining geological information about strata; or (c) testing the surveying or drilling equipment to be used in the activities or procedures falling within (a) or (b). (2) Paragraph (1) above shall apply notwithstanding any provision in any Petroleum Act licence. (3) For the purposes of regulations 5 and 7 below, “consent” means— (a) a consent granted pursuant to paragraph (1) above; or (b) a consent granted pursuant to a Petroleum Act licence, including any consent required pursuant to the Offshore Petroleum Production and Pipe-lines (Assessment of Environmental Effects) Regulations 1999 or the Offshore Oil and Gas Exploration, Production, Unloading and Storage (Environmental Impact Assessment) Regulations 2020”.

36. For that purpose, oil and gas activities include any activities carried out for or in connection with the exploration for or production of petroleum. Petroleum Act licensing – appropriate assessment

37. Regulation 5 of the 2001 Regulations provides for appropriate assessment prior to the grant of licences under section 3 of the 1998 Act – “5( A1) The OGA shall not grant any Petroleum Act licence, consent or authorisation without the agreement of the Secretary of State. (1) The Secretary of State shall, before agreeing to the grant of any Petroleum Act licence, any consent, or any authorisation, or granting any consent or approval, where he considers that anything that might be done or any activity which might be carried on pursuant to such a licence, consent, authorisation or approval is likely to have a significant effect on a relevant site, whether individually or in combination with any other plan or project, including but not limited to any other relevant project, make an appropriate assessment of the implications for the site in view of the site’s conservation objectives. (2) The Secretary of State shall for the purposes of the assessment consult the appropriate nature conservation body and have regard to any representations made by that body within such reasonable time as the Secretary of State may specify and shall also, if he considers appropriate, take the opinion of the general public. (3) Subject to regulation 6 below, in the light of the conclusions of the assessment the Secretary of State shall agree to the grant of any such licence, consent, or authorisation or grant any such consent or approval only after having ascertained that nothing that might be done and no activity that might be carried out pursuant thereto would have an adverse effect on the integrity of a relevant site”.

38. Regulation 2(1) defines a “relevant project” as meaning any plan or project which relates to offshore oil and gas activities and “relevant site” as including an SAC and an SPA.

39. Regulation 6(1) provides that regulation 5(3) shall not apply to things done or anything in connection with the carrying out of any relevant project affecting a relevant site to which, in the opinion of the First Defendant, there is no satisfactory alternative; and which the First Defendant has certified in writing as a project which should be carried out for “imperative reasons of overriding public interest” [“IROPI”] , which may include reasons of a social or economic nature.

40. Regulation 7 of the 2001 Regulations empowers the First Defendant to give a direction specifying steps to be taken in order to control the adverse effects on the integrity of a relevant site of things done or proposed to be done pursuant to a Petroleum Act licence. Appropriate assessment – applicable principles of judicial review

41. There is an extensive body of case law on the interpretation and application of article 6(3) of the Habitats Directive and regulation 63 of the 2017 Regulations. The applicable principles were helpfully summarised by the Court of Appeal in R (Wyatt) v Fareham Borough Council [2022] EWCA Civ 983 ; [2023] PTSR 1952 [“Wyatt”] at [9] (which I set out in full below, omitting some case citations). It was not in dispute that those principles should also apply to the interpretation and application of regulation 5 of the 2001 Regulations. “9. There is a wealth of case law relevant to article 6(3) and regulation 63, both in the Court of Justice of the European Union ("the CJEU") and in the domestic courts. Some basic points emerge: (1) The duty imposed by article 6(3) of the Habitats Directive and regulation 63 of the Habitats Regulations rests with competent authorities, not with the courts. Whether a plan or project will adversely affect the integrity of a European protected site under regulation 63(5) is always a matter of judgment for the competent authority itself … That is an evaluative judgment, which the court is neither entitled nor equipped to make for itself (see the judgment of Lord Carnwath in R(Champion) v North Norfolk District Council [2015] UKSC 52 ; [2015] 1 W.L.R. 3170 , at [41]…). In a legal challenge to a competent authority's decision, the role of the court is not to undertake its own assessment, but to review the performance by the authority of its duty under regulation 63. The court's function is supervisory only. This has been emphasised often in the domestic cases .... (2) In Coöperatie Mobilisation for the Environment UA, Vereniging Leefmilieu v College van Gedeputeerde Staten van Limburg ( Case C-293/17 ) [2019] Env LR 27 ("Dutch Nitrogen"), the CJEU said that it is "for the national courts to carry out a thorough and in-depth examination of the scientific soundness of the "appropriate assessment"…" (paragraph 101 of the judgment), which "makes it possible to ensure that there is no reasonable scientific doubt as to the absence of adverse effects of each plan or project on the integrity of the site concerned, which it is for the national court to ascertain" (paragraph 104). The force of these statements is that the court, for its part, must be wholly satisfied in the exercise of its supervisory jurisdiction that the competent authority's performance of its obligations under article 6(3) was lawful. It must satisfy itself of the lawfulness of the authority's consideration of the scientific soundness of the appropriate assessment. But there is nothing in the CJEU's judgment to suggest that it intended to transform the respective roles of the competent authorities and the domestic courts by giving the court the job of undertaking an alternative appropriate assessment of its own. (3) When reviewing the performance by a competent authority of its duty under regulation 63, the court will apply ordinary public law principles, conscious of the nature of the subject-matter and the expertise of the competent authority itself. If the competent authority has properly understood its duty under regulation 63, the court will intervene only if there is some Wednesbury error in the performance of that duty (see the judgment of Sales L.J. in Smyth v Secretary of State for Communities and Local Government [2015] EWCA Civ 174 ; [2015] PTSR 1417 , at [80]…). When exercising its supervisory function, the court will apply the normal Wednesbury standard, not a heightened standard such as "anxious scrutiny" ... Given the demanding requirement inherent in regulation 63(5) – for the competent authority to ascertain that the project "will not adversely affect the integrity of the European site" – the court's examination of the authority's performance of its duty will be suitably exacting within the bounds of its jurisdiction. But it should be remembered that the autonomous approach of the domestic courts in judging the lawfulness of such action has been explicitly approved by the CJEU … (4) A competent authority is entitled, and can be expected, to give significant weight to the advice of an "expert national agency" with relevant expertise in the sphere of nature conservation, such as Natural England (see the judgment of Sales L.J. in Smyth , at [84], and the first instance judgment in R(Preston) v Cumbria County Council [2019] EWHC 1362 (Admin) , at [69]). The authority may lawfully disagree with, and depart from, such advice. But if it does, it must have cogent reasons for doing so (see … R (Morge) v Hampshire County Council [2011] 1 WLR 268 , at [45], … Smyth , at [85], and … R(Prideaux) v Buckinghamshire County Council [2013] Env LR 32 , at [116]). And the court for its part will give appropriate deference to the views of expert regulatory bodies (see… R(Mott) v Environment Agency [2016] 1 WLR 4338 , at [69]-[77]). (5) When provided with expert evidence in a claim for judicial review, the court will not substitute its own opinion for that of the expert. As this court emphasised in R(BACI Bedfordshire) v Environment Agency [2020] Env LR 16 , at [87], "[unless] there is clear evidence revealing a failure of … expertise – for example, some conspicuous factual or scientific error – the court is entitled to conclude there was no such failure". Experts may be expected to provide enough explanation to enable the court to decide whether the views they have stated are based on a conspicuous error (see … Smyth , at [83]). But the court will bear in mind that decisions which entail "scientific, technical and predictive assessments by those with appropriate expertise" and which are "highly dependent upon the assessment of a wide variety of complex technical matters by those who are expert in such matters and/or who are assigned to the task of assessment (ultimately by Parliament)" should be accorded a substantial margin of appreciation ... (6) The requirement in the second sentence of article 6(3) of the Habitats Directive and in regulation 63(5) of the Habitats Regulations embodies the "precautionary principle, and makes it possible effectively to prevent adverse effects on the integrity of protected sites as a result of the plans or projects being considered" (see the judgment of the CJEU in Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris Van Landbouw, Natuurbeheer en Visserij (Coöperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij UA intervening) ( Case C-127/02 )) [2005] 2 CMLR 31 ("Waddenzee"), at [58]). The "precautionary principle" requires a high standard of investigation (see the judgment in Waddenzee , at [44], [58], [59] and [61]). (7) The duty placed on the competent authority by article 6(3) and regulation 63 is to ascertain that there will be no adverse effects on the integrity of the protected site, but that conclusion does not need to be established to the standard of "absolute certainty". Rather, the competent authority must be "satisfied that there is no reasonable doubt as to the absence of adverse effects on the integrity of the site concerned" ([44], [58], [59], and [61] of the CJEU's judgment and [107] and [108] of the Advocate General's opinion in Waddenzee ….). In Waddenzee (at [59]), the CJEU emphasised the responsibility of the competent authority, having taken account of the conclusions of the appropriate assessment, to authorise the proposed development "only if [it] has made certain that it will not adversely affect the integrity of that site". That, it said, "is the case where no reasonable scientific doubt remains as to the absence of such effects". But as Advocate General Kokott explained in Waddenzee (in [102] to [106] of her opinion), a requirement of "absolute certainty" would be "disproportionate". As she said (at [107]), "the necessary certainty cannot be construed as meaning absolute certainty …", the conclusion of an appropriate assessment is, "of necessity, subjective in nature", and "competent authorities can, from their point of view, be certain that there will be no adverse effects even though, from an objective point of view, there is no absolute certainty". Similar observations appear in the judgment itself (in paragraphs [44], [58], [59] and [61]). As the Supreme Court acknowledged in Champion , adopting the approach in Waddenzee , "while a high standard of investigation is demanded, the issue ultimately rests on the judgment of the authority" (see the judgment of Lord Carnwath, at [41]). This approach is, in essence, what the "precautionary principle" requires in the context of article 6(3) of the Habitats Directive and regulation 63 of the Habitats Regulations. (8) The requirement that there be "no reasonable doubt as to the absence of adverse effects on the integrity of the site concerned" does not mean that the "reasonable worst-case scenario" must always be assessed. In the European Commission guidance document entitled "Communication on the precautionary principle" (2000) it is stated in Annex III that "[when] the available data are inadequate or non-conclusive, a prudent and cautious approach to environmental protection, health or safety could be to opt for the worst-case hypothesis". That guidance, however, is not law … nor is it in mandatory terms. What is required in law is a sufficient degree of certainty to ensure that there is "no reasonable doubt" on the relevant question. It may sometimes be useful to consider a "reasonable worst-case scenario" when assessing whether the necessary degree of certainty has been achieved. But whether there are grounds for "reasonable doubt" will always be a matter of judgment in the particular case. (9) An appropriate assessment must be based on the "best scientific knowledge in the field" … Such knowledge must be both up-to-date and not merely an expert's bare assertion (see … Smyth , at [83]). And the concept of "best scientific knowledge" is not a wholly free-standing requirement, separate from the precautionary principle itself. It is inherent in the precautionary principle, and in the concept of "no reasonable doubt". (10) What is required of the competent authority, therefore, is a case-specific assessment in which the applicable science is brought to bear with sufficient rigour on the implications of the project for the protected site concerned. If an appropriate assessment is to comply with article 6(3) of the Habitats Directive it "cannot have lacunae and must contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works proposed on the protected site concerned" (see the judgment of the CJEU in Sweetman v An Bord Pleanála ( Case C-258/11 ) [2014] PTSR 1092 , at [44], and its judgment in People Over Wind and Sweetman v Coillte Teoranta ( Case C-323/17 ) [2018] PTSR 1668 , at [38])” .

42. In Holohan v An Bord Pleanála [2019] PTSR 1054 [“Holohan”] at [33], the CJEU emphasised that the process of appropriate assessment required a rigorous approach – “Under Article 6(3) of the Habitats Directive, an appropriate assessment of the implications of a plan or project for the site concerned implies that, before the plan or project is approved, all the aspects of the plan or project which can, either individually or in combination with other plans or projects, affect the conservation objectives of that site must be identified, in the light of the best scientific knowledge in the field. The competent national authorities are to authorise an activity on the protected site only if they have made certain that it will not adversely affect the integrity of that site. That is so when there is no reasonable scientific doubt as to the absence of such effects…”.

43. In C G Fry and Son Limited v Secretary of State for Housing, Communities and Local Government [2025] UKSC 35 [“Fry”] at [47], the Supreme Court stated that the object of the Habitats Directive is to ensure a high degree of protection for vulnerable habitats and sites of various kinds as identified for the purposes of that Directive, and to ensure careful scrutiny of development proposals likely to have an impact on such sites with a view to minimising or avoiding such impact. At [50], the Supreme Court said that the Habitats Directive has to be interpreted in light of the precautionary principle, which both reflects and gives expression to the purpose of that Directive.

44. At [51] the Supreme Court said – “The purpose of the habitats regulations is to implement and follow the habitats directive in pursuing the same objective”. The same is also the purpose of regulation 5 of the 2001 Regulations.

45. Ms Leventhal KC placed emphasis on the precautionary approach to assessment as being central to the effective realisation of that essential purpose. There is ample authority in support of that: see Wyatt at [9(6)] and the references in that sub-paragraph to the judgment of the CJEU in Waddenzee . Ms Leventhal KC also placed emphasis on the established principles summarised in Wyatt at [9(10)], that a compliant appropriate assessment cannot have lacunae and must contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works proposed on the protected site concerned. In Holohan at [37], the CJEU said that all aspects which might affect a protected sites conservation objectives must be identified, as to which the appropriate assessment must contain complete, precise and definitive findings. The competent authority, in this case the First Defendant, must only authorise the proposed plan or project if they are certain that it will not adversely affect the integrity of the protected site or sites. For that to be the case, there must be no remaining, reasonable scientific doubt as to the absence of such effects: see Waddenzee at [57]-[59].

46. For her part, Ms Grogan placed emphasis on the principles stated in Wyatt at [9(3)] and [9(5)]. She referred to the judgment of Lord Carnwath in Champion at [41] and the observations of the Advocate General in Waddenzee at [107] of her opinion, that the necessary certainty cannot be taken to mean absolute certainty, since that is almost impossible to attain. The task of the competent authority is to assess all the relevant information which is set out in the appropriate assessment. A high standard of investigation is needed, but it is for the competent authority to judge whether they are certain as to the absence of adverse effects on site integrity. Provided that the First Defendant has properly understood the duty imposed under regulation 5 of the 2001 Regulations, the court will intervene only if the Claimant is able to establish that the First Defendant has fallen into Wednesbury error in carrying out the appropriate assessment.

47. Ms Grogan referred to the Sullivan LJ’s analysis of the CJEU’s approach in Waddenzee to assessing risk: see R (An Taisce) v Secretary of State for Energy and Climate Change [2014] EWCA Civ 1111 ; [2015] PTSR 189 [“An Taisce”] at [37]-[39]. The CJEU had equated certainty with the absence of scientific doubt. It must, therefore, be open to a competent authority to conclude that the risk of an adverse effect on the integrity of a protected site was so remote that there was no reasonable scientific doubt as to the absence of such an effect resulting from the eventuation of that risk – “The competent authority does not have to be satisfied that there is no risk, however remote, that a severe nuclear accident will occur in order to be satisfied that there is ‘no reasonable scientific doubt’ that such an accident will not occur”.

48. Central to the issues raised by this claim is the lawful approach to the assessment process under regulation 5 of the 2001 Regulations, in circumstances where activities which are in contemplation following the grant of Petroleum Act licences will nevertheless require future regulatory approval, consent or authorisation which may itself engage appropriate assessment. Such approval, consent or authorisation may be required under statute (for example, under regulation 4 of the 2001 Regulations); or under the terms of the licences themselves (for example, under Model Clauses 17 and 19 which are applied to licences granted in the 33 rd Round).

49. I was referred by counsel to a number of cases in which broadly similar issues have arisen in the context of multi-stage development consent procedures, such as outline planning permissions and the discharge of conditions imposed on planning permissions.

50. In R (Wingfield) v Canterbury City Council [2019] EWHC 1974 (Admin) , the question was whether it was open to the local planning authority to remedy a legally deficient approach to regulation 63 of the 2017 Regulations when granting outline planning permission, through conducting a compliant process of appropriate assessment in advance of deciding whether to approve the reserved matters. At [72]-[74] and [77], Lang J held that the City Council’s decision to remedy its earlier error by conducting an appropriate assessment at the reserved matters stage was permissible under EU and domestic law. In R (Swire) v Canterbury City Council [2022] EWHC 390 (Admin) ; [2022] JPL 1026 at [94]-[95], Holgate LJ followed and applied Lang J’s reasoning, noting that the Court of Appeal had rejected attempts to challenge her decision.

51. In Fry at [56]-[57] the Supreme Court endorsed Lang J’s reasoning in Wingfield and Holgate J’s reasoning in Swire . At [56], Lord Sales said – “ It is clear that the protective purpose of the Habitats Regulations and the precautionary principle would be defeated, rather than promoted and respected, if the Regulations are read as precluding any opportunity for an appropriate assessment to be carried out at a later stage in a multi-stage planning process, such as that in issue in the present proceedings, where the planning authority has for any reason (e.g. by oversight, misinterpretation of the law or being ignorant of relevant science or misunderstanding that science) failed to carry one out at the stage of assessing whether to grant outline planning permission. Therefore, in a case involving a potential impact on a European site where the Habitats Regulations have effect, application of a normal purposive approach to their interpretation and having regard to the precautionary principle leads to the conclusion that regulation 63 would apply to a decision to give reserved matters approval or to discharge conditions attached to such an approval where that would result in authorisation for the project to proceed. Giving the words of regulation 63 their ordinary and natural meaning in the context in which they appear leads to this result”.

52. In principle, therefore, the failure to carry out, or absence of, appropriate assessment at the earlier stage in a multi-stage consenting process can and should be remedied at a later stage in that process, in order to give effect to the protective purpose of the Habitats Directive, which is shared by both the 2017 Regulations and the 2001 Regulations. In my judgment, that principle is not engaged by the facts of the present claim. Here, the issue is whether appropriate assessments carried out under regulation 5 of the 2001 Regulations at the first stage in the consenting process are legally flawed. If that is found to be the position, the error should be corrected now, rather than being left over to be remedied at a later stage in the consenting process.

53. It does not, however, follow that the existence of later stages in a multi-stage consenting process is irrelevant to the appropriate assessment to be carried out at the first stage.

54. Ms Grogan submitted that in circumstances where there is more than one stage in the consenting process, in carrying out appropriate assessment at the first stage it is lawful to defer consideration of effects which are either not yet known or capable of being sufficiently identified, to a later stage at which time those effects will have become sufficiently identifiable for meaningful appropriate assessment of their potential impact on integrity of protected sites. She submitted that such a “staged approach” had been approved in principle in R (Together Against Sizewell C Limited) v Secretary of State for Energy Security and Net Zero [2023] EWCA Civ 1517 ; [2024] Env LR 595 [“Sizewell”] at [60]-[62].

55. In Sizewell at [60], the court said that it was a well-established principle that – “Two connected projects may proceed separately, and their cumulative effects be assessed, whether under the EIA Regulations or under the Habitats Regulations, either in two stages or at the second, but as soon as those cumulative effects can be identified for meaningful assessment… A “staged approach” to assessment is, in principle, legitimate and will prevent what has been described as “sclerosis in the planning system” (see the judgment of Sales LJ in Forest of Dean District Council [2015] PTSR 1460 at [18])”.

56. At [61], the court said that in some cases this would be the obvious and only realistic course to take. It would enable the first project to receive the permission or consent it requires, without preventing or prejudicing a proper assessment of likely cumulative effects. If done correctly, it can ensure that a cumulative assessment of the two projects is undertaken in accordance with the legislative requirements, any suitable mitigation proposed, and a decision taken either to refuse or permit the second project to proceed – “It can overcome the risk of an incomplete and unreliable cumulative assessment being produced at the first stage, when the first project is being considered and the second is still uncertain in its form and timing ... It can prevent unnecessary delay for decision-makers, developers and third parties”.

57. At [62] the court acknowledged the principle stated by the CJEU in Inter-Environnement Wallonie ASBL v Conseil des Ministres (C-411/17) [2020] Env LR 9 [“Wallonie”] at [143] – “… If national law provides a number of steps in the consent procedure, the assessment under article 6(3) of the Habitats Directive, should, in principle, be carried out as soon as the effects which the project in question is likely to have on a protected site are sufficiently identifiable”. The corollary of that, said the court, is that – “where the cumulative effects in question are not yet capable of being sufficiently identified for proper assessment at the consenting stage for the first project because the second is still unidentified, the assessment of cumulative effects can lawfully await the consenting stage for that second project”.

58. The court said that this approach can be adopted without compromising the precautionary approach. The court referred to the opinion of Advocate General Kokott in Commission v United Kingdom [2006] Env LR 673 [“EC v UK”] at [49] – "The United Kingdom Government is admittedly right in raising the objection that an assessment of the implications of the preceding plans cannot take account of all the effects of a measure. Many details are regularly not settled until the time of the final permission. It would also hardly be proper to require a greater level of detail in preceding plans or the abolition of multi-stage planning and approval procedures so that the assessment of implications can be concentrated on one point in the procedure. Rather, adverse effects on areas of conservation must be assessed at every relevant stage of the procedure to the extent possible on the basis of the precision of the plan. This assessment is to be updated with increasing specificity in subsequent stages of the procedure."

59. In R (Forest of Dean (Friends of the Earth)) v Forest of Dean District Council [2015] EWCA Civ 683 ; [2015] PTSR 1460 [“Forest of Dean”] at [17], Sales LJ said – “17. In my view, this paragraph in the Advocate General's Opinion is plainly correct, since it both accords with practical reality and sets out an approach which allows for full compliance with the safeguarding objective of Article 6 in relation to a protected site and the strict precautionary approach required thereunder: see also paras. 35-36 of Advocate General Kokott's Opinion in the Waddenzee case, discussed at para. [102] in Smyth . Advocate General Kokott's approach ensures that the objective of the Habitats Directive with respect to safeguarding protected sites is met, while at the same time avoiding the imposition of excessive and disproportionate burdens on planning authorities, landowners and developers in relation to having to show that a first project in a series (which is innocuous in itself) could never have "in combination" effects with later projects in the series, about which they may not have any or any detailed information and which may never in fact be granted permission to take place”.

60. At [18] Sales LJ agreed with a judicial observation in an earlier case that Advocate General Kokott’s approach was necessary to avoid “sclerosis” of the planning system.

61. Factual distinctions may readily be drawn between Sizewell and Forest of Dean and the present case. However, in my view, Ms Grogan is correct to submit that the approach endorsed in those cases and as stated by Advocate General Kokott is capable of being applied in the context of Petroleum Act licensing; and the appropriate assessment of oil and gas activities for which licensees may seek consent, in order to realise the benefit of the exclusive rights which the licence confers upon them. Conversely, Ms Leventhal KC is correct to submit that the approach stated by the court in Sizewell and by the Advocate General in the passages endorsed by the court in Forest of Dean cannot be relied upon to justify failure properly to carry out an appropriate assessment of known or sufficiently identifiable effects of a plan or project at the first stage in a multi-stage consenting process, in accordance with the principle stated by the CJEU in Wallonie and the established principles governing appropriate assessment summarised in Wyatt . Factual background The 33 rd Round

62. On 7 October 2022, the Second Defendant launched the 33 rd Round inviting applications for licences relating to 931 Blocks or part Blocks across the UKCS. The 33 rd Round covers areas of the UKCS in the southern, central and northern North Sea, west of Shetland and the eastern Irish Sea. The period for licence applications closed on 12 January 2023. There had been 32 offshore licencing rounds between 1964 and 2020. The process leading up to the launch of the 33 rd Round is helpfully summarised by Holgate J (as he then was) in R (Greenpeace Limited v Secretary of State for Energy Security and Net Zero [2023] EWHC 2608 (Admin) ; [2024] PTSR 345 at [23] to [48]. Innovate licences

63. Since 2016, the Seaward Production Licence for which applicants are invited to bid in each offshore licensing round has been a single licence known as an “Innovate” licence. The Model Clauses enacted by the 2008 Regulations, to which I have already referred, are in amended terms which reflect the Innovate licensing approach.

64. The Innovate licence is made up of three terms covering the Initial Term (exploration), the Second Term (appraisal and field development planning) and the Third Term (development and production). The Innovate licence introduced the three Phases comprising the Initial Term. Phase A covers geotechnical studies and geophysical data reprocessing; it involves no field activities. Phase B covers acquisition of new seismic data and other geophysical data. Phase C covers exploration and appraisal drilling.

65. Helena Charlton says that Applicants for licences may propose the phase combination in their submission to the Second Defendant. Phases A and B are optional: they may not be appropriate in certain circumstances, such as where geotechnical studies or seismic data have already been obtained. However, all licence applications must propose a Phase C. Where the applicant does not think that exploration is necessary, such as in the case of an existing discovery or field redevelopment, they may propose to go straight to development and apply for an SST licence.

66. The duration of the Initial Term and the Phases within it are agreed between the applicant for the licence and the Second Defendant. Typically, applicants may choose to spend up to four years on a single Phase in the Initial Term but are not able to take more than nine years to progress to the Second Term. For the 33 rd Round, the Second Defendant indicated that it expected applicants to request Initial Term durations of no more than six years, as the areas offered were relatively mature. Failure to complete the work agreed in a Phase, or to commit to the next Phase, results in the cessation and determination of the licence, unless the Term or Phase has been extended by the Second Defendant.

67. In support of their licence applications, applicants were required to provide the Second Defendant with details of the minimum “work programme” that they propose for the Initial Term. Activities detailed in work programmes may include the purchase, reprocessing or shooting of two-dimensional or three-dimensional seismic data (during Phases A and B); and the drilling of wells (during Phase C).

68. There are two levels of drilling commitment, a firm drilling commitment and a drill or drop drilling commitment. A firm commitment to drill a well is preferred, as it commits successful applicants to make full use of their licences. However, a firm drilling commitment does not guarantee that the licensee will actually be able to drill a well. The ability to drill will depend upon the outcome of technical evaluation of the Block to which the licence relates. It will also be contingent upon the outcome of environmental assessment of the requisite activities involved in drilling the well. A drill or drop commitment is associated with Phases A and B of the Initial Term. Under the Model Clauses, licensees are required to commit to a Phase C work programme, failing which the licence will cease and determine on the expiry of the current Phase. Before expiry, the licensee must accordingly seek the continuation of the licence into Phase C. The Second Defendant will only agree to continuation of the licence into Phase C so that the well becomes a firm commitment if the licensee can show financial capacity and on approval of a licence operator.

69. In accordance with the Second Defendant’s technical guidance, applicants are required to indicate whether they intend to obtain or to reprocess existing data, whether they commit to conducting new seismic surveys and whether they commit to a firm or to a drill or drop drilling commitment. Where a new seismic survey forms part of the work plan, applicants are also required to give an approximate survey area, but it is not geographically specific.

70. Ms Charlton says that observed trends during previous licensing rounds show that a significant proportion of licences awarded in relation to Blocks have been relinquished without any offshore activities being carried out; or have not been pursued into the Second Terms following consideration of the results gained during the Initial Term of exploration – “Of the Blocks awarded in the 29 th , 30 th and 31 st Licensing Rounds, 93%, 80% and 87% had been relinquished respectively by February 2024. 56% of the Blocks awarded in 32 nd Licencing Round had also been relinquished by that date”.

71. Ms Charlton says that the majority of licences were relinquished in the first 3 or 4 years after their award. Most of those licences will have covered Phase A of the Initial Term, involving only geotechnical studies and geophysical data reprocessing, with no activities taking place in the field. Of the 60 Blocks awarded in the 29 th to 32 nd Licensing Rounds which were partly or entirely within SACs in the Southern North Sea which had been designated for benthic features (sandbanks and reefs), 47 had been relinquished, amounting to approximately 78% of the Blocks awarded. She continues – “Activity after the Initial Term is much harder to predict, as this depends on the results of the Initial Term, which is, by definition, exploratory. Discoveries that progress to development (Second Term) and beyond that to production (Third Term), may require further drilling, installation of infrastructure such as wellheads, pipelines and possibly fixed platform production facilities, although recent developments are mostly tiebacks to existing production facilities rather than stand-alone development. For example, out of 30 development projects identified on the NSTA’s Energy Pathfinder (as of 17 th January 2024), 16 are planned as subsea tiebacks to existing infrastructure, 4 involve new stand-alone production platforms and 3 are likely to be developed via Floating Production, Storage and Offloading (FPSO) facilities, with the remaining involving facility modifications. The final form of development for many of the projects is not decided at licensing stage, with some undergoing re-evaluation of development options”. OESEA 4 and Habitats Regulations Assessments

72. The First Defendant’s policy for further licensing of offshore oil and gas exploration and production which lies behind the 33 rd Round was contained in the non-statutory Offshore Energy Plan. The First Defendant was required to carry out environment assessment of that Plan in accordance with regulation 5 of the Environmental Assessment of Plans and Programmes Regulations 2004 [“the 2004 Regulations”] . That environment assessment, which is referred to as OESEA4, was completed in September 2022, prior to the launch of the 33 rd Round. Also published ahead of the launch of the 33 rd Round was the Department’s “Climate Compatibility Checkpoint”, a non-statutory tool whose aim was to ensure that, prior to launch, the compatibility of future oil and gas licensing with the UK’s climate objectives was evaluated. In R (Greenpeace Limited v Secretary of State for Energy Security and Net Zero [2023] EWHC 2608 (Admin) ; [2024] PTSR 345 Holgate J dismissed claims for judicial review of the First Defendant’s decisions to adopt OESEA4 and to proceed with the 33 rd Round.

73. In response to the invitation to apply for licences under the 33 rd Round, the Second Defendant received applications in respect of 258 Blocks or part Blocks. Thereafter OPRED carried out a screening process for the purposes of determining which of those applications must be made the subject of appropriate assessment in accordance with regulation 5 of the 2001 Regulations. On 31 July 2023 OPRED published the final results of that screening process in the report Offshore Oil & Gas Licensing 33 rd Seaward Round Habitats Regulations Assessment Stage 1 – Block and Site Screening [“the screening report”] . Habitats Regulations Assessment [“HRA”] is a phrase in common usage to describe the statutory procedures for appropriate assessment in regulation 63 of the 2017 Regulations and, in relation to oil and gas activities, in regulation 5 of the 2001 Regulations. The screening report concluded that appropriate assessment was required in accordance with regulation 5(2) of the 2001 Regulations in relation to 96 of the 258 Blocks in relation to which applications for licences had been received.

74. Also on 31 July 2023, OPRED published three draft AAs in respect of (1) Southern North Sea and Mid North Sea High, (2) West of Shetland and Central North Sea and (3) Eastern Irish Sea. In each report, the provisional conclusion was that the licensing of the Blocks considered in the draft AA would not have an adverse effect on the integrity of the MPAs likely to be affected by activities which might be carried on pursuant to those licences.

75. On 15 September 2023, JNCC and NE submitted their consultation response to OPRED. JNCC and NE’s overall conclusion was that they were unable to agree with the conclusions of the draft AAs, of no adverse effect on site integrity [“AEOSI”] until their advice contained in their consultation response had been addressed. They emphasised the relevance of that advice in relation to matters concerning the in-combination assessment, which was said to require updating. They advised that further information, evidence and justification was required, in accordance with their detailed comments, in order to ensure robust appropriate assessments to support the 33 rd Round.

76. Also on 15 September 2023, the Claimant submitted its consultation response to OPRED. The Claimant re-iterated its opposition to the grant of new oil and gas licences, arguing that to do so would breach international commitments on addressing climate change and run contrary to domestic and international commitments to significant marine ecosystem protection and restoration required to reverse biodiversity loss. In direct response to the draft AAs, the Claimant contended that the licensing of new offshore oil and gas within or adjacent to MPAs was incompatible with effective protection of conservation features and may adversely affect site integrity. The Claimant contended that the assessments reported in the draft AAs had not followed the precautionary principle. The Claimant disagreed with the assessment that the Licences would not undermine the legal protection afforded to the marine species and habitats by the MPAs.

77. On 30 October 2023, the Second Defendant announced that the first tranche of 27 licences under the 33 rd Round, Tranche 1, had been offered in relation to Blocks that had been determined not to require appropriate assessment following completion of the screening report. A second tranche of 24 licences, Tranche 2, was announced by the Second Defendant on 31 January 2024.

78. On 3 rd May 2024, the First Defendant published the AAs. On the same day, the Second Defendant announced the award of the Licences as the third and final tranche of licences, Tranche 3, awarded under the 33 rd Round. The First Defendant had agreed to the award of the Licences in light of the conclusions of the AAs that their grant would not result in any adverse effect on the integrity of any MPA. The announcement stated that Tranche 3 was made up of 29 new licences and two mergers. Of the 29 new licences, 23 were Initial Term Phase A and C licences. Two were Initial Term Phase C licences with firm drilling commitments, and four were SST licences. The Claimant’s challenge under this claim is to the award of those new licences. Perenco licences

79. In his first witness statement, Alexander Froud says that Perenco applied for and was awarded five Innovate licences under the 33 rd Round, but in the event only entered into four of those licences. Each of those four is a Tranche 3 Licence awarded on 3 May 2024. The relevant AA for all four Licences is the Southern North Sea and Mid North Sea High AA. Three (P2665, P2674 and P2677) are Initial Term licences, two of which include Phases A and C and the third, Phase C only. The fourth Licence (P2673) is SST.

80. Mr Froud gives details of these Licences and produces copies of the Work Programmes included in schedule 3 to each of those four Licences. Their contents reflect Helena Charlton’s evidence as to the essentially exploratory character of the Initial Term and the lack of any explanation or definition of the activities that may ultimately be carried out during the Second Term and the Third Term. They recognise the need for the Second Defendant’s prior consent to be sought and obtained for specific activities – (1) Licence P2665 – The Licence relates to two offshore Blocks located 100 km east of Scarborough. Initial Term Phase A is three years beginning on 1 June 2024. Initial Term Phase C runs for three years beginning on the day after Phase A ends. The Second Term runs for four years beginning on the day after the Initial Term ends. The Third Term runs for 18 years beginning on the day after the Second Term ends. During Phase A, Perenco is required to obtain and interpret 50 sq. km of 3D seismic data; to complete a feasibility study for seismic inversion to establish whether it could improve imaging in the Carboniferous interval; to complete a biostratigraphy study to correlate marine rock horizons with those in nearby fields; and complete a static and dynamic model for the Cotton Discovery. There is no Phase B. During Phase C, Perenco is required to drill a well to the shallower of 3,100 m true vertical depth sub sea (TVDSS) or 50 m below top Carboniferous. The Work Programme states that nothing fetters the Second Defendant’s discretion when considering whether to consent to any specific activity. (2) P2674 - The Licence relates to two offshore Blocks located 100 km east of Hull. Initial Term Phase A is three years beginning on 1 June 2024. Initial Term Phase C runs for three years beginning on the day after Phase A ends. The Second Term runs for four years beginning on the day after the Initial Term ends. The Third Term runs for 18 years beginning on the day after the Second Term ends. During Phase A, Perenco is required to complete a static and dynamic model of the Cobra and Python prospects; and complete a seal integrity and risk study to understand where pop-up/inversion structures led to relative thinning of the Zechstein caprock. There is no Phase B. During Phase C, Perenco is required to drill a well to the shallower of 3,400 m TVDSS or 100 m below the Lower Leman formation. The Work Programme states that nothing fetters the Second Defendant’s discretion when considering whether to consent to any specific activity. (3) P2677 – The Licence relates to one offshore Block located 90 km east of Grimsby. Initial Term Phase C is three years beginning on 1 June 2024. The Second Term runs for four years beginning on the day after the Initial Term ends. The Third Term runs for 18 years beginning on the day after the Second Term ends. During Phase C, Perenco is required to drill a well to the shallower of 2,950 m TVDSS or 100 m below the Lower Leman Sandstone. The Work Programme states that nothing fetters the Second Defendant’s discretion when considering whether to consent to any specific activity. (4) P2673 – The Licence relates to two offshore Blocks located 80 km east of Hornsea. The Second Term runs for three years beginning on the day after the Initial Term ends. The Third Term runs for 18 years beginning on the day after the Second Term ends. The Work Programme is intentionally left blank – “There is no Schedule 3 Work Programme because the licence goes straight to Second Term. The application process for a Phase C only or Second Term licence requires an applicant to show understanding of the licence area, and part of doing so is to comment on the future development concept. None of this is set in stone or is even necessarily likely to be the way in which the development proceeds because plans will change as more information becomes available and as more work is done on the proposed development concept. So our application for Licence P2673 indicated that, if approval of a Field Development Plan was ultimately given, the Third Term Work Programme that was proposed was to involve the drilling of two wells and installation of a minimum facilities platform (MFP) at the surface, through which the wells would produce gas. We now know (through work done subsequent to the grant of the licence) that these wells will not be drilled in the locations identified in our application. Additionally, the application for Licence P2673 commented on export routes for the gas and discussed several options in which the gas could be tied back through the Perenco operated infrastructure at the West Sole Field, ultimately being piped onshore at Easington. Again, since the grant of the licence, this development approach has changed and we are also considering a new option, namely looking at the gas being tied-back to Cleeton”. Mr Froud says that the focus of the Second Term is on producing a Concept Select Report, Field Development Plan and accompanying Environmental Statement with a view to obtaining the necessary consents to proceed to development activity at the Third Term. That work is principally desktop work. There will also be limited, non-invasive survey work done at the site – “… a survey vessel will need to visit the site for the necessary MBES (multibeam echo sound) bathymetry survey, which is for the purpose of mapping the seabed to inform our discussions around the possible pipeline routing. It will only be after we have finalised the Concept Select Report, and as we finalise the Field Development Plan that we will have a clearer picture of actual development infrastructure; this will include further pipelines and may or may not include a platform, but the routing/location of any additional pipeline and the emplacement of a platform are matters for the Concept Select Report/Field Development Plan in due course - this is done in discussion with the NSTA and is ultimately also subject to necessary consents from OPRED. Development activity would take place at the Third Term stage, based upon whatever have been decided and consented during the second term as part of the approvals process”.

81. Mr Froud says that each of these four Licences contains the Model Clauses in the 2008 Regulations, including clauses 16, 17 and 19 (in the case of the Initial Term Licences) and clauses 17 and 19 (in the case of the SST Licence). Total licence

82. In his witness statement on behalf of Total, Jesse Clark says that his company was awarded one Tranche 3 Licence under the 33 rd Round, on 24 May 2024. The Licence (P2683) relates to seven Blocks in the West of Shetland area of the UKCS. It came into effect on 1 June 2024. Mr Clark produces copies of the Work Programme for the Initial Term included in schedule 3 to Licence P2683. During Phase A, Total is required to complete a geophysical modelling study on a seismic dataset incorporating a minimum of six wells. There is no Phase B. During Phase C, Total is required to drill a well to the shallower of 3,900 m TVDSS or to the top T35.3 reservoir. The Work Programme states that nothing fetters the Second Defendant’s discretion when considering whether to consent to any specific activity. The AA reports

83. The three reports which comprise the AAs subject to challenge in this claim are organised as follows. Section 1 of each report introduces the process of appropriate assessment under regulation 5 of the 2001 Regulations. Section 1 also identifies the Blocks and the corresponding MPAs which are to be the subject of appropriate assessment in each report. Section 2 of each report gives an overview of the licensing process under the 1998 Act and of the activities that could follow the grant of licences, including certain assumptions that have been applied in carrying out the process of appropriate assessment. Section 3 of each report describes the approach taken to ascertain the absence or otherwise of adverse effects on the integrity of relevant sites. Section 4 of each report states the evidence base on the environmental effects of offshore oil and gas activities which informs the appropriate assessment. Section 5 of each report contains the assessment of effects on the integrity of relevant sites, including in-combination effects with other plans and projects. Overall conclusions are stated in section 6 of each report.

84. Table 2.1 in each report shows the indicative Work Programmes relevant to the licence applications and related Blocks considered in the AA for the marine area to which that report relates. The most extensive set of such Work Programmes is that proposed for Blocks located in the Southern North Sea and Mid North Sea High. The parties based their respective submissions on that AA. However, the issues raised by the claim are essentially concerned with the approach to assessment which is stated in sections 2 and 3 of each report and common to the three AAs. I shall therefore refer to the Southern North Sea and Mid North Sea High AA for the relevant excerpts which are essentially common to the AAs. The Southern North Sea and Mid North Sea High AA report

85. Section 2 .1 of the AA states that the main type of offshore licence is the Seaward Production Licence which grants exclusive rights to the licensee to search and bore for and get petroleum in the area covered by the licence. The terms and phases of the Innovate licence are described. The report states that a licence – “does not constitute any form of approval for activities to take place in the Blocks, nor does it confer any exemption from other legal or regulatory requirements. Offshore activities are subject to a range of statutory permitting and consenting requirements, including, where relevant, activity specific HRA under the Habitats Regulations”.

86. Section 2 .2 of the AA describes the activities that could follow the grant of a licence. As part of the licence application process, applicants provide the Second Defendant with details of the minimum work programmes they propose in the Initial Term – “These work programmes are considered along with a range of other factors by the NSTA before arriving at a decision on whether to license the Blocks and to whom. Activities detailed in work programmes may include the purchase, reprocessing or shooting of 2D or 3D seismic data (Phases A and B) and the drilling of wells (Phase C). There are two levels of drilling commitment: [Firm Drilling Commitments and Drill or Drop Drilling Commitments are then explained] …. The proposed work programmes for the Initial Term are detailed in the licence applications. For some activities, such as seismic survey, the potential impacts associated with noise could occur some distance from the licensed Blocks and the degree of activity is not necessarily proportional to the size or number of Blocks in an area. In the case of direct physical disturbance, the licence Blocks being applied for are relevant”.

87. Section 2 .1 of the report reiterates that offshore activities such as drilling or seismic survey are subject to relevant activity-specific environmental assessments by the Department, and there are other regulatory provisions exercised by the Offshore Major Accident Regulator and bodies such as the Health and Safety Executive. It is the licensee’s responsibility to be aware of, and comply with, all regulatory controls and legal requirements, and work offshore cannot proceed until the relevant consents/approvals are in place.

88. Section 2 .2.1 of the report describes the likely scale of activity, essentially reflecting Helena Charlton’s evidence that, on the basis of past experience, the activity which actually takes place following the grant of a licence is less than that which is included in the work programme which is proposed in the application for the licence. Moreover, activity after the Initial Term is “much harder to predict, as this depends on the results of the initial phase, which is, by definition, exploratory”. It is stated that discoveries that progress to development may require further drilling, installation of infrastructure such as wellheads, pipelines and possibly fixed platform production facilities, although recent developments are mostly tiebacks to existing production facilities rather than stand-alone developments. Of relevance to SST licences - “The nature and scale of potential environmental impacts from the drilling of development wells are similar to those of exploration and appraisal wells and thus the evidence base described in Section 4 are applicable to the potential effects of development well drilling within any of the 33 rd Round Blocks”.

89. Section 2 .2.2 of the report is central to the issues raised by this claim. It is headed “33 rd Round activities considered in this HRA” . The scope of the AAs carried out is described and explained in the following passage - “The nature, extent and timescale of development, if any, which may ultimately result from the licensing of 33 rd Round Blocks is uncertain, and therefore it is regarded that at this stage a meaningful assessment of development level activity (e.g. pipelay, placement of jackets, subsea templates or floating installations) cannot be made. Even where an applicant has applied for a licence to go straight to the Second Term, the nature and scale of any development which might be associated with this licence is highly uncertain. This is because there will be multiple options for development (e.g. subsea tie-back, standalone platform) including export routes (e.g. pipeline to shore, or tie-back to one or more existing host facilities), most of which will not be known in detail until towards the end of the Second Term. At this stage, based on the information provided in the licence applications, and the level of uncertainty about the nature, scale, and location of any development within the wider licence areas applied for, it is not considered that there is sufficient detail to undertake a meaningful assessment of development level activities”.

90. Section 2 .2.2 then anticipates the need for further appropriate assessment as licensees develop their projects – “Moreover, once project plans are in place, subsequent permitting processes relating to exploration, development and decommissioning, would require assessment including where appropriate an HRA, allowing the opportunity for further mitigation measures to be identified as necessary, and for permits to potentially be refused, or where necessary, compensatory measures to be identified. Therefore, only activities as part of the work programmes associated with the Initial Term and its associated Phases A-C are considered in detail in this AA (see Table 2.2). However, in relation to potential developments, as indicated in Figure 1.1, the Blocks considered in this AA include those entirely outside, those overlapping with or those entirely within site boundaries. The first two categories present opportunities for a potential development to be sited without impinging on relevant sites or features, and the Department will expect this to be done where feasible. Should a development be proposed that would involve the placement of infrastructure in a site, HRA at the field development stage would ensure that there are no adverse effects on the integrity of SACs and SPAs or that compensatory measures are applied should it be decided that the project should be carried out for imperative reasons of overriding public interest. The Department is involved in the identification of compensatory measures for a number of benthic and other conservation sites in relation to offshore wind plans and projects. Based on the sources of effect relevant to the oil and gas industry (see BEIS 2022, Section 4 ), impacts resulting in permanent habitat change in SACs designated for benthic habitats (sandbanks, reefs) are considered to be of most relevance. The Department has engaged with NSTA and the industry to raise awareness of the status of relevant conservation sites, the potential for conclusions of adverse effects in relation to activities which could follow licensing, and the need to identify potential mitigation and/or compensation measures”.

91. Paragraph 2.2.2 states that accidents have not be considered in the AA. The lawfulness of that approach is the issue raised by ground 1 of the claim.

92. As to the drilling of wells and seismic shooting activities – “It was assumed for the assessment made in the draft AA that a well would be drilled in each Block applied for, however, two or more Blocks may be part of a single licence application within which only one well would be drilled. As the Blocks covered by each licence application are now known, the assumption used for this AA is that one well will be drilled in each licence area, which results in the consideration of fewer wells than in the draft AA (for example, 32 potential licences are relevant to this AA across 67 Blocks). There remains a lack of spatial definition for where wells could be drilled, and so it is assumed that a well could be drilled anywhere within the licence area and across all of the Blocks, and it is similarly assumed that where the shooting of new seismic is proposed, this could take place anywhere across the licence areas. The estimates of work commitments for the relevant licence applications and related Blocks derived from the applications received by the NSTA are shown in Table 2.1 – indicative work programmes relevant to licence applications and related Blocks considered in this assessment”.

93. Section 2 .2.2 states that completion of the licensed work programmes is likely to involve one or more of the activities summarised in Table 2.2 of the AA. A series of assumptions is said to have been developed on the nature and scale of activities to be assessed based on the evidence base for potential effects presented in Section 4 of the AA, as well as reviews of exemplar Environmental Statements of relevant activities. Subsequent development activity is again said to be contingent on successful exploration and appraisal and may or may not result in the eventual installation of infrastructure. Where relevant, such future activities will themselves be subject to activity specific screening procedures and tests under the relevant legislation.

94. Table 2.2 of the report identifies and describes a series of potential activities and assessment assumptions covering Phases B and C of the Initial Term of licences. They include geophysical surveys in Phase B; and in Phase C, a series of activities involved in drilling and well evaluation.

95. Section 2 .3 of the report explains existing regulatory requirements and controls in relation to physical disturbance of the seabed and drilling effects, and underwater noise effects, which have been assumed to be in effect in the appropriate assessment. They are described as high-level controls which are applied as standard to activities “since they are legislative requirements” . In particular, the following is said in relation to discharges from oil and gas facilities – “Discharges from offshore oil and gas facilities have been subject to increasingly stringent regulatory controls over recent decades (see review in BEIS 2022, and related Appendices 2 and 3). As a result, oil and other contaminant concentrations in the major streams (drilling wastes and produced water) have been substantially reduced or eliminated (e.g. the discharge of oil based muds and contaminated cuttings is effectively banned), with discharges of chemicals and oil exceeding permit conditions or any unplanned release, potentially constituting a breach of the permit conditions and an offence. Drilling chemical use and discharge is subject to strict regulatory control through permitting, monitoring and reporting (e.g. the Environmental Emissions Monitoring System (EEMS) and annual environmental performance reports). The use and discharge of chemicals must be risk assessed as part of the permitting process (e.g. Drilling Operations Application) under the Offshore Chemicals Regulations 2002 (as amended), and the discharge of chemicals expected to have a significant negative impact would not be permitted. OSPAR have recognised the potential concerns associated with the use and discharge of microplastics during drilling operations. Recommendation 2010/03 and Agreement 2012-05 have been amended such that chemical suppliers are required to identify whether their offshore chemical products contain plastics, microplastics, or deliberately added nanomaterials. The related data will allow OSPAR to determine the extent of the use and discharge of substances, and where appropriate, develop management measures to control or eliminate their use. At the project level, discharges would be considered in detail in project-specific EIAs (and where necessary through HRAs) and chemical risk assessments under existing permitting procedures” .

96. Section 3 .1 of the report explains the process of appropriate assessment and the approach followed by the Department in applying regulation 5 of the 2001 Regulations. A precautionary approach has been followed. In-combination effects have been considered. The Department is reported to have taken the following approach – (1) Prior to the grant of any licence all activities which may be carried out during the Initial Term following the grant of such a licence, and which by themselves or in combination with other activities can affect the site’s conservation objectives, are identified in the light of the best scientific knowledge in the field. (2) A licence can only be granted if the Department has made certain that the activities to be carried out during the Initial Term under such a licence will not adversely affect the integrity of that site (i.e. cause deterioration to a qualifying habitat or habitat of qualifying species, and/or undermine the conservation objectives of any given site). That is the case where no reasonable scientific doubt remains as to the absence of such effects.

97. Section 3 .2 of the AA discusses the concept of site integrity. It offers the established definition that the integrity of a designated nature conservation site is the coherence of its ecological structure and function, across its whole area, that enables it to sustain the habitat, complex of habitats and/or the levels of populations of the species for which it was classified or designated. Paragraph 3.2 continues – “The integrity of a site relates to the site’s conservation objectives. These objectives are assigned at the time of designation to ensure that the site continues, in the long term, to make an appropriate contribution to achieving favourable conservation status for the qualifying interest features. An adverse effect would be something that impacts the site features, either directly or indirectly, and results in disruption or harm to the ecological structure and functioning of the site and/or affects the ability of the site to meet its conservation objectives. ... The AA must therefore conclude whether the proposed activity adversely affects the integrity of the site, in the light of its conservation objectives”.

98. Section 3 .2 then discusses two threats to the integrity of MPAs: firstly, the avian influenza outbreak of 2022-2023 which may affect the favourable conservation status of SPA sites; and secondly, the effects of climate change. The lawfulness of the AA’s approach to the effects of climate change is the issue raised by ground 2 of this claim. I shall return to paragraph 3.2 in addressing that ground below.

99. Section 3 .3 of the report explains how the assessment of effects on site integrity has been carried out – “The assessment has been undertaken in accordance with the European Commission Guidance (EC 2019) and with reference to other guidance, reports and policy, including the Habitats Regulation Guidance Notes (English Nature 1997, Defra 2012, SEERAD 2000), SNH (2015, the National Planning Policy Framework (DLUHC 2023), the Marine Policy Statement (HM Government 2011), English Nature report No. 704 (Hoskin and Tyldesley 2006) and Natural England report NECR205 (Chapman and Tyldesley 2016). The assessment of effects on site integrity is documented in Section 5. It has been informed by an evidence base on the environmental effects of oil and gas activities on the UKCS and elsewhere ( Section 4 ), and has utilised a number of assumptions on the nature and scale of potential activities that could follow licensing (Table 2.2), along with the characteristics and specific environmental conditions of the relevant sites (see Section 5). Activities which may be carried out following the grant of a licence, and which by themselves or in combination with other activities can affect the conservation objectives of relevant sites are discussed under the following broad headings: physical disturbance and drilling effects (Section 5.1); underwater noise effects (Section 5.2); and in-combination effects (Section 5.3)”.

100. Section 4 of the report sets out a detailed account of the evidence upon which the appropriate assessment in section 5 of the AA is based. Section 4 .2 covers those exploration and appraisal activities considered to have the potential to cause physical disturbance or to involve drilling effects. They include penetration and disturbance of the substrate below and on the surface of the seabed; physical change to another seabed type through rock placement around jack-up legs for rig stabilisation; contamination; the introduction or spread of non-indigenous species; visual disturbance, introduction of light and collision associated with the presence and movement of vessels causing displacement of sensitive receptors; and collisions above or below water with static or moving objects. Section 4 .3 covers underwater noise effects, including noise sources and propagation; and potential ecological effects on mammals, birds and fish.

101. Section 5 of the report sets out the details of the assessment itself. Section 5.1 provides a detailed account of each relevant SAC and SPA in turn. Section 5.2 sets out the assessment of physical disturbance and drilling effects in relation to those relevant sites. The analysis is explained as follows – “The conservation objectives of relevant sites that could be impacted by physical disturbance and drilling effects, and information relating to site selection and advice on operations have been considered against the activities in the proposed work programmes for the licence areas applied for to determine whether they could adversely affect site integrity. The results are given in Table 5.1 below. All mandatory control requirements (as given in Section 2 .3.1), are assumed to be in place as a standard for all activities assessed”.

102. The assessment of potential physical disturbance and drilling effects on the conservation objectives of each MPA is tabulated under Table 5.1. For each site, the table identifies the site area, its relevant qualifying features (for example, harbour porpoise) and its conservation objectives (for example, to avoid deterioration of the habitats of the harbour porpoise or significant disturbance to the harbour porpoise, thus ensuring that the integrity of the site is maintained and the site makes an appropriate contribution to maintaining favourable conservation status for the UK harbour porpoise). The table then identifies the activities associated with the proposed work programmes in licences relating to the relevant site (for example, drilling of up to 32 wells involving siting of rigs and drilling discharges). The table then assesses the potential effects of those activities on the integrity of the relevant site. Finally, the table assesses potential “intra-plan” in-combination effects, that is to say, the in-combination effects of other licensed oil and gas activities.

103. Section 5.2.1 of the report discusses further mitigation measures which will address the effects of physical disturbance and drilling activities. The following conclusions are set out in section 5.2.2 – “Likely significant effects identified with regards to physical damage to the seabed, drilling discharges, and other effects when considered along with project-level mitigation (Section 5.2.1) and relevant activity permitting requirements (see Section 2 .3.1), will not have an adverse effect on the integrity of the sites considered in this assessment. This conclusion relies on the implementation of plan level mitigation to avoid permanent habitat change to selected sites. Specifically, that should rig stabilisation be required for any well drilled in the Dogger Bank SAC, the North Norfolk Sandbanks and Saturn Reef SAC, and Haisborough, Hammond and Winterton SAC, removeable methods must be used, subject to these meeting the technical and safety requirements of rig placement at a particular location (this would be identified once project plans are known), or else in the event that rock must be used, that it is removed at the end of the drilling campaign. At the project level, there is a legal framework through the implementation of the EIA Regulations and the Habitats Regulations, to ensure that there are no adverse effects on the integrity of SACs and SPAs or that compensatory measures are applied if it is decided that a project should be carried out for imperative reasons of overriding public interest. Their application at the project level allows for an assessment to be made of likely significant effects on the basis of detailed project-specific information and allows for applicants to propose project specific mitigation measures”.

104. The same approach to assessment is set out in section 5.3 and Table 5.2 of the report in relation to underwater noise. The conclusions in section 5.3.2 are – “Although underwater sound generated during project-level activities, specifically seismic surveys, has the potential to injure and disturb individual harbour porpoises, seals, fish (including qualifying features and prey) and diving birds, the actual risk is minimised by the controls currently in place. For any of the relevant sites, it is concluded that the likely level of activity expected to take place within the Blocks considered in this assessment (listed in Table 5.2) will not cause an adverse effect on site integrity, taking account of the following: should a 3D seismic survey be proposed in any of the areas applied for, further HRA may be required to assess the potential for adverse effects on the integrity of the site once the area of survey, source size, timing and proposed mitigation measures are known and can form the basis for a definitive assessment. Individual activities (e.g. drilling, seismic) require individual consents which will not be granted unless the operator can demonstrate that the proposed activities, which may include 3D seismic surveys, will not adversely affect the site integrity of relevant sites, or that compensatory measures are applied if it is decided that a project should be carried out for imperative reasons of overriding public interest. These activities will be subject to activity level EIA and, where appropriate, HRA”.

105. Section 5.4 of the report assesses the potential for in-combination effects with other relevant plans or programmes (intra-plan in-combination effects having been assessed in sections 5.2 and 5.3). The report states that projects have been identified as relevant for the purposes of in-combination assessment on the basis of the nature and location of existing or proposed activities and spatial datasets in a geographical information system. The projects are identified and described in Table 5.3. They include offshore renewables and interconnectors, gas storage projects, oil and gas projects, oil and gas decommissioning projects and aggregate areas. Paragraph 5.4 states – “The principal sources of in-combination effects are regarded to be related to noise, physical disturbance, and physical presence, primarily arising from offshore wind development. OWF development will introduce noise and disturbance sources (particularly during construction) and present an additional physical presence in the marine environment. Offshore wind zones (e.g. those associated with Rounds 3 and 4) have already been subject to SEA and plan-level HRA, and any related projects have been, or will be, subject to their own individual assessment and HRA processes”.

106. Sections 5.4.1 to 5.4.3 provide a detailed assessment of the potential for in-combination effects with the projects identified in Table 5.3 to affect the integrity of relevant MPAs through physical disturbance and drilling effects, physical presence and/or underwater noise effects. The conclusion of that assessment is stated in section 5.4.4 – “Exploration activity is identified as a pressure to which most of the sites considered in this assessment are sensitive (e.g. from physical effects or underwater noise). SACOs for some sites identify oil and gas infrastructure as contributing to unfavourable feature condition, though this is generally associated with pipelines or platforms which represent long-term or permanent changes to site habitat, which exploration activities would not. Though not site specific, available evidence (see e.g. UKBenthos database, OSPAR 2010, OSPAR 2023110) for the southern North Sea indicates that the scale of effects from offshore oil and gas activities have significantly decreased over time, with some sources of pollution substantially reduced or eliminated entirely. OSPAR (2023) note that the main concerns in relation to oil and gas now relate to historical cuttings piles, which are not a feature of the southern North Sea, and produced water (also less of an issue for the southern North Sea as it is a gas province). Any activities relating to the work programmes will be judged on its own merits and in the context of wider development in the North Sea (i.e. any potential incremental effects). The current controls on terrestrial and marine industrial activities, including activities that could follow licensing, can be expected to prevent significant in-combination effects affecting relevant sites. The Department will assess the potential for in-combination effects whilst considering project specific EIAs and, where appropriate, through HRAs. This process will ensure that mitigation measures are put in place to ensure that activities, if consented, will not result in adverse effects on integrity of the relevant sites. Therefore, it is concluded that the in-combination effects from activities arising from the licensing of the Blocks applied for in the 33 rd Seaward Licensing Round, with those from existing and planned activities in the southern North Sea, will not adversely affect the integrity of relevant Sites”.

107. The overall conclusion of the AA is set out in section 6 of the report – “Taking account of the evidence and assessment presented above, it has been determined that the licensing through the 33 rd Licensing Round of the relevant Blocks considered in this AA, will not have an adverse effect on the integrity of the relevant sites (identified in Section 1 .2), and the Department have no objection to the NSTA awarding seaward licences (subject to meeting application requirements) covering those areas listed in Section 1 .2. This is because there is a sufficient degree of certainty that licensing of the areas applied for will not adversely affect the integrity of relevant sites (as described in Sections 5.1 to 5.3), because of the mitigation measures outlined in Section 5 and in Section 6.1 below”.

108. Section 6.1 of the report reiterates that mitigation measures can be imposed through existing permitting mechanisms on the planning and conduct of activities which result in physical disturbance and underwater noise effects. The necessary and appropriate measures to be applied will be informed by project specific plans and the nature of sensitivities identified which would be subject to further assessment, including HRA, where required. A list of possible further mitigation measures going beyond existing regulatory requirements and controls is provided. Section 6.1.1 describes further plan level mitigation which has been identified to avoid permanent habitat change to Dogger Bank SAC, North Norfolk Sandbanks and Saturn Reef SAC and Haisborough, Hammond and Winterton SAC. If a well is proposed within those areas, and rig stabilisation or scour protection is needed, removable methods are to be used where practicable. Otherwise, stabilising rock must be removed as far as practicable following completion of drilling. In sites with qualifying reef features, rig siting is to be informed by recent survey data so that sensitive areas can be avoided. These mitigation measures will be secured through licence or permit conditions. They are tabulated in Table 6.1 of the report.

109. The concluding section 6.2 of the report looks forward to future consenting and HRAs – “The existing regulatory requirements and controls on activities that could follow the licensing of Blocks in the 33 rd Round are outlined in Section 2 .3 … It is emphasised here (and has been noted throughout this AA) that the granting of future consents for activities is not automatic and is dependent on future applications supported by suitable location and activity/project specific assessments which take account, where relevant, of conservation sites, their features and conservation status. The Department will, where appropriate, undertake Habitats Regulations Assessment screening and Appropriate Assessment to inform decisions on the granting of consents. Consent and/or agreement to the grant of consent (as appropriate) will not be given unless the requirements of Regulations 5 and/or 6 of the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001 have been met”.

110. Those matters were emphasised by the First Defendant in response to this claim. In her witness statement, Helena Charlton states that there are broadly two stages in the process for offshore oil and gas production licensing and consenting – (1) A Seaward Production Licence must be granted by the Second Defendant pursuant to section 3 of the 1998 Act , granting exclusive rights to search and bore for and get petroleum in a specific geographic area - the Block, Blocks or part Blocks allocated in the licence. The grant of the licence does not, on its own, allow the licence holder to undertake activities offshore; nor does it confer any exemption from other legal or regulatory requirements. (2) The necessary consents, authorisations and other approvals must be granted by the Second Defendant and other regulators to allow oil and gas activities to take place. This includes consents granted by the Second Defendant under both legislative powers and the terms of the licence, which will be based upon the Model Clauses.

111. The First Defendant’s position, therefore, is that the award or grant of a Licence does not constitute any form of approval for activities to take place in the Blocks, nor does it confer any exemption from other legal or regulatory requirements. Offshore activities are subject to a range of statutory permitting and consenting requirements, including, where relevant, activity-specific appropriate assessment. Even where a site or interest feature has been screened out at plan level, the potential for likely significant effects on any relevant site would need to be revisited at the project level, once project plans are known. New relevant site designations, new information on the nature and sensitivities of interest features with insights, and new information about effects including in combination effects may be available to inform future project level screening and appropriate assessment under regulation 5 of the 2001 Regulations. Ground 1 – accidents Issue

112. The issue under this ground is whether the First Defendant unlawfully failed to assess the impact of oil and gas industry accidents on MPAs and their conservation features, contrary to regulation 5 of the 2001 Regulations and the Tameside duty to take reasonable steps to obtain relevant information in order to reach a rational decision. Background and evidence

113. Section 2 .2.2 of the AA reports states – “Potential accidental events, including spills, are not considered in the AA as they are not part of the work plan. Measures to prevent accidental events, response plans and potential impacts in the receiving environment are considered as part of the environmental impact assessment (EIA) process for specific projects that could follow licensing when the location, nature and timing of the proposed activities are available to inform a meaningful assessment of such risks” .

114. The same analysis was offered in section 2 .2.2 of the consultation draft AAs. The HRA Screening Report for the 33 rd Round, published in July 2023, had screened out potential accidental events, including spills and releases, for essentially similar reasons – “Potential accidental events, including spills or releases, are not considered in this HRA screening as they are not part of the work plan. Measures to prevent accidental events, response plans and potential impacts in the receiving environment would be considered as part of the environmental impact assessment (EIA) process for specific projects that could follow licensing when the location, nature and timing of the proposed activities are available to inform a meaningful assessment of such risks. The EIA would be informed by the modelling undertaken for the Oil Pollution Emergency Plan (OPEP). The OPEP is assessed by the Department, and a range of organisations, and other Government Departments are consulted by the Department during the OPEP determination process. The OPEP includes an assessment of spill risk, response arrangements, interface arrangements, training and exercises specific to an installation or operation. A comprehensive overview of spill risk on the UKCS from offshore oil and gas activity and related potential environmental effects is provided in OESEA4”.

115. In its consultation response, the Claimant contended that it was a serious omission not to consider the impact of oil and gas industry accidents on MPAs and their conservation features. That omission undermined the AA process – “For many of the conservation features protected by the MPAs considered in these assessments, a major oil spill, or a high level of chronic oil pollution would be devastating for populations and this should be considered before licencing is approved. It is not sufficient to defer that consideration to EIAs once licensing has gone ahead. This is not a precautionary approach . For example, a major oil spill in the vicinity of the Foula great skua population and wide foraging area could lead to further mortality of breeding adults which could have a devastating impact on an already rapidly declining population, with implications not only for that site but for UK and global populations of that species. Pre-empting and avoiding such a risk seem like obvious management measures and one that needs to be implemented before licensing rather than leaving this to later stages of the permitting process or most worryingly, until an oil spill actually occurs. The extent of discharges of oil and other damaging chemicals is also systematically downplayed in the documents and does not reflect recent research on unreported UK chronic oiling or OSPAR analysis of reported releases and their ranking of the UK as having the highest concentration of oil in produced waters of all the OSPAR countries (OSPAR, 2020)”.

116. In its letter of 3 May 2024, OPRED responded to the Claimant that – “It is considered inappropriate to take potential accidental events into consideration for the purpose of these HRAs as they are not part of the planned programme of work and could not therefore constitute a likely significant effect. Measures to prevent accidental events, response plans and potential impacts in the receiving environment would be considered as part of the EIA process for specific projects”.

117. In her witness statements, Naomi Tilley says that during exploratory drilling and throughout production, whales, dolphins and sea birds including some of this country’s most endangered species and habitats, are subject to a constant flow of chronic oiling and other chemical pollution. Accidental spills are reported frequently to Government, with many citing non-production installations or support vessels as sources. In addition to oil releases, accidental chemical spills are also frequently reported, including spills of hydraulic fluids, methanol and bleach. The OSPAR Commission monitors regional pollution and contamination indicators. Between 2009 and 2019, OSPAR found no significant trend in the annual number of oil spills, but the quantity of spilt oil increased year on year from 2016 to 2019. Additional data from country reporting showed that oil spills and other contamination incidents were reported more often for the UK than almost any other country. It was also highlighted that the UK had a higher average dispersed oil concentration than other OSPAR signatory states.

118. Ms Tilley said that the information available from OSPAR’s monitoring work was relevant to the exploration stage of oil and gas activities. That information was or should have been well known to OPRED and to the First Defendant. The Claimant had drawn attention to OSPAR’s analysis of the scale of damaging discharges of oil and chemicals into UK seas in response to consultation on the draft AAs.

119. Ms Tilley states that while control incidents or “blowouts” are rare, with few recent examples in the UK, international cases such as the Deepwater Horizon event in the Gulf of Mexico are catastrophic and cause ecosystem level injury. A full blowout only has to happen once to have devastating, far reaching and long-lasting impacts.

120. In response to this evidence, Helena Charlton states that Ms Tilley conflates information which ranges considerably more widely than oil or chemical spills during the exploratory stage of Petroleum Act licensed operations. In particular, Ms Tilley has included discharges that are permitted and regulated as part of oil and gas production activities under the Offshore Petroleum Activities (Oil Pollution Prevention and Control) Regulations 2005 and the Offshore Chemical Regulations 2002. As was made clear in the AAs, their scope was limited to Initial Term activities and the impacts of controlled and regulated discharges during the Third Term production stage was not assessed.

121. Focusing on the level of risk of an adverse effect on site integrity resulting from an accidental oil or chemical spill during Initial Stage exploration activities, Ms Charlton relied on three matters. (1) The existence of a detailed regulatory regime whose purpose is both to prevent oil and chemical spills and to minimise their impact, should they occur. She refers to regulation 7 of the Offshore Installations (Offshore Safety Directive) (Safety Case etc) Regulations 2015, which requires licensees to have in place a major accident prevention policy. She also refers to regulation 4 of the Merchant Shipping (Oil Pollution Preparedness, Response and Co-operation Convention) Regulations 1998, which requires oil pollution emergency plans to be in place. The requirements for detailed emergency planning justify the conclusion that measures are in place to prevent accidental spills and to respond effectively to such incidents, should they occur. For these reasons, OPRED has concluded that there is a very low level of risk of an accidental oil or chemical spill occurring which could result in an adverse effect on site integrity of any MPA. Ms Charlton refers to Part 5.13 of the OESEA4 Environmental Report, which undertook a detailed assessment of the risks of accidental events relating to both exploration and production of offshore oil and gas under the 33 rd Round. Paragraph 5.13.5 found – “The incremental risk associated with activities resulting from the proposed licensing (i.e. additional to existing risk, primarily associated with shipping and other maritime activities) is low. This reflects the combination of low probability and low severity (since most spills would be small in volume). The overall risks of a major crude oil spill, which would require a catastrophic loss of well control, are qualitatively and qualitatively comparable to those considered ALARP (As Low As Reasonably Practicable) under the relevant UK health and safety regulations”. (2) Insofar as drilling activities are concerned, the effects of minor spills at the exploration stage are well documented and understood. Any accidental spills from drilling are likely to be localised around the vicinity of the well site. Minor spills are very unlikely to give rise to an adverse effect on site integrity of any MPA. Moreover, the control mechanisms that need to be in place to reduce the risk of accidents and to mitigate any impacts will depend on specific characteristics of the well-being drilled. Any specific risks can only be ascertained and appropriate mitigation prescribed once the precise location for the proposed drilling site has been established. (3) Major spills are very rare events. The risk of a major accidental spill following a “blowout” occurring is very low indeed. See OESEA4 at paragraph 5.13.5 above.

122. Ms Charlton’s evidence is that in the light of these factors, OPRED’s approach has been to consider the risk and the potential consequences of accidental spills at the project stage. OPRED’s position remains that at the licensing stage, accidents do not form part of licensees’ planned programme of work. The grant of licences and the potential activities undertaken under the Initial Term work programmes do not give rise to a meaningful risk of accidents which requires assessment in the AAs. OPRED has made that approach clearly known to both the JNCC and NE during previous licensing rounds. Neither the JNCC nor NE has taken issue with it. In their consultation response to the 31 st licensing round JNCC stated – “Whilst JNCC acknowledges BEIS’s reasoning for this approach, we are concerned that although such protected sites are screened out at this high level plan stage, this should not preclude project level HRA in relation to potential oil spill impacts... once project level proposals are developed. We therefore consider it important that the report clearly caveats that conclusions related to the screening out of offshore, inshore and coastal [MPAs] does not preclude project level HRA…”.

123. Ms Charlton says that the approach in paragraph 2.2.2 of the AA reports is consistent with that advice. The Claimant’s submissions in summary

124. Ms Leventhal KC submitted that a compliant appropriate assessment must contain complete, precise and definitive findings and conclusions capable of removing all scientific doubt as to the effect of the proposed works on the protected sites under consideration. The appropriate assessment cannot have lacunae. As the CJEU said at [45] in Waddenzee , appropriate assessment is required in a case in which it cannot be excluded, on the basis of objective information, that the plan or project will have a significant effect on the protected site, in view of that site’s conservation objectives.

125. In this case, it was clear from paragraph 2.2.2 of the AAs that the First Defendant had failed to fulfil those requirements. The impact of oil and gas industry accidents had been left out of the appropriate assessment. However, the objective evidence was that such accidents are likely to occur during the carrying out of licensed activities, including the exploratory works undertaken during the work programmes which form part of the initial, exploratory term of the Licences.

126. Ms Tilley had drawn attention to evidence of polluting spillages and other contamination incidents resulting from licensed oil and gas activities. There was evidence that accidental spills are a known risk during the conduct of exploratory activities such as surveying and drilling. The risk of accidents resulting in oil spills and other harmful polluting and contaminating impacts is both known and credible.

127. It was submitted that it was unlawful for OPRED to have ruled out proper assessment of the impact of accidents during licensed oil and gas activities on the basis that accidental events are not part of the work plan. The precautionary principle requires the First Defendant to assess not only intended but also unintended consequences of the licensed oil and gas activities for their potential effects on MPAs. The failure to assess the impact of accidents was a clear lacuna or gap in assessment. The First Defendant’s approach and stated justification for excluding the risk of accidents from assessment was irrational.

128. It was submitted that the evidence of Ms Charlton revealed the legally flawed approach taken by OPRED and the First Defendant to the risk of accidents in the AAs. Discussion

129. The evidence before the court establishes that licensed oil and gas activities in the UKCS carry with them the risk of accidents, including oil and chemical spills and, at least in principle, of a major polluting or contaminating event. Oil spills and chemical discharges do occur. Ms Charlton does not say that oil spills and chemical discharges will not occur during Initial Stage exploration activities.

130. It is, nevertheless, reasonable for OPRED and the First Defendant to approach the task of appropriate assessment on the basis that accidental events, including spills, are “not part of the work plan” . Applicants for Petroleum Act licences propose the work programmes for which they seek the grant of a licence. They do not intend that the performance of the works included in those programmes, or the oil and gas activities for which they seek the grant of a licence, should result in accidental events of the kind that the Claimant identified in its consultation response to the draft AAs.

131. It is, however, obvious that a precautionary approach to assessment of activities which carry the risk of accidents should extend to consideration of the consequences of that risk eventuating during the course of carrying out those activities. A precautionary approach requires an assessment not only of that risk eventuating, but also of the degree of frequency of it doing so and of harm that may result if it does. To rule out consideration of potential accidental events and their impacts from appropriate assessment simply on the ground that they are not intended would not be consistent with the precautionary approach to assessment. It would be a rudimentary error of approach.

132. The gravamen of the Claimant’s complaint is that OPRED and the First Defendant have fallen into that rudimentary error. Indeed, the Claimant’s argument must be that the error was made when the draft AAs were first published and went uncorrected, notwithstanding and in the face of the Claimant’s response to consultation on the draft AAs.

133. For the following reasons, in my view, the Claimant’s complaint is not justified.

134. As I have noted above, the explanation given for not considering potential accidental events in the AAs was unchanged throughout the HRA screening report, the consultation draft AAs and the published AAs themselves. The same explanation also formed part of OPRED’s letter of 3 May 2024 responding to the Claimant’s representations. OPRED’s and the First Defendant’s approach throughout those documents was not founded simply on the premise that potential accidental events are not part of Licensees’ work plans. On the contrary, both the draft AAs and the published AAs acknowledge the potential for accidental events, including spillages. In other words, the existence of the risk of accidents is accepted. The focus, however, is upon the management of that risk, including measures to prevent accidents occurring; a planned response to accidents should they occur; and upon the assessment of potential environmental impacts of accidental events in the light of a properly informed understanding of the location, nature and timing of the proposed activities which give rise to that risk.

135. It is important to have in mind that the particular concerns raised by the Claimant were the potential impacts on the MPAs of a major oil spill or a high level of chronic oil pollution. The Claimant raised those concerns in response to the approach taken by OPRED in the draft AAs. It was contended that OPRED’s approach was not precautionary, as it was not sufficient to defer consideration of such risks and their potentially devastating consequences to environmental impact assessment, following the grant of Licences.

136. Both OPRED and the First Defendant purported to follow a precautionary approach to assessment. It is not for this court to substitute its own judgment as to what a precautionary approach required, but rather to consider whether OPRED and the First Defendant had a reasonable basis, in the circumstances, for judging their approach to be properly precautionary.

137. It is clear from paragraph 2.2.2 of the AAs that OPRED and the First Defendant recognised the potential for accidental events arising during the course of activities carried out under the authority of the Licences. They recognised the potential for such accidental events adversely to affect the environment in which they occur. OPRED and the First Defendant also recognised the need for measures to be put in place to prevent such accidental events, to respond to such events in a planned way should they nevertheless occur, and to address their potential impacts on the receiving environment. The need to formulate such measures, essentially to avoid, manage and mitigate the risk which was of concern to the Claimant, was not in dispute.

138. The contentious aspect of OPRED’s and the First Defendant’s reasoning was their judgment that a meaningful assessment of the risk which such accidental events may present to MPAs should be carried out in the context of applications for consent for specific projects, when the location, nature and timing of the activities proposed under such projects would be known. The Claimant was well aware of that judgment, as it was stated in paragraph 2.2.2 of the draft AAs. The Claimant’s response was to argue that pre-empting and avoiding risks such as a major oil spill or high level of chronic oil pollution “seem like obvious management measures and one that needs to be implemented before licensing rather than leaving this to later stages of the permitting process…” .

139. In response to the Claimant’s concerns, OPRED and the First Defendant accepted that pre-empting and avoiding such accident risks was an obvious management measure. Both the draft and final AAs identified the need to consider measures to prevent accidental events and to plan responses to such events. What was far less obvious, at least to OPRED and the First Defendant, was how such measures could be identified meaningfully, in the absence of and in advance of knowledge of the location, nature and timing of specific projects for oil and gas activities for which the licensee later sought consent. The Claimant has not suggested how that practical difficulty may be overcome.

140. What is left, therefore, is the question whether there was a gap in proper, precautionary assessment where the AAs acknowledged the potential for accidental events, including spills and discharges, to occur following the grant of the Licences; but anticipated that preventative measures, planned responses and remedial action, provided for in the context of the design and assessment of specific projects, would prove effective to address the risk of such events affecting the conservation status of MPAs. In other words, did the precautionary principle require OPRED and the First Defendant, acting reasonably, to recognise that there nevertheless remained a residual risk that such accidental events may adversely affect the integrity or diminish the conservation status of the MPAs under assessment?

141. Ms Charlton addresses that question in her evidence. I have set out the material points above. Paragraph 2.3.1 of the AAs refers to the existing regulatory controls on discharges from oil and gas activities. Ms Charlton refers to relevant regulatory legislation whose purpose is to prevent accidental spills and to respond effectively when they do occur. In deciding how to approach consideration of the risks of accidental events resulting from both exploration and production of offshore oil and gas under the 33 rd Round, OPRED and the First Defendant had before them the detailed assessment undertaken under OESEA4 and the conclusion reached in paragraph 5.13.5 of the OESEA4 Environmental Report.

142. The existence of mandatory requirements imposed by a regulatory regime whose purpose is to prevent oil and chemical spills and discharges, and to minimise their environmental impact, is a relevant factor to which OPRED and the First Defendant were reasonably entitled to give significant weight in evaluating the degree of risk that such spills presented to the overall integrity of protected sites. R (Finch) v Surrey County Council [2024] UKSC 20 ; [2024] PTSR 988 [“Finch”] at [108] is not authority to the contrary. Simply to assume the efficacy of that regulatory regime would be questionable. Here, however, the detailed investigation carried out under OESEA4 and the conclusion stated in paragraph 5.13.5 of the OESEA4 Environmental Report provided a reasonable basis for the approach taken by OPRED and the First Defendant in response to the Claimant’s concerns. The conclusion that the potential for accidental events resulting from the grant of the Licences alone did not present a meaningful risk of adverse effects to the integrity of MPAs was supported by that evidence. OPRED and the First Defendant were, moreover, reasonably entitled to attach weight to the acceptance by the JNCC of the approach taken in paragraph 2.2.2 of the draft and final AAs, as is clear from the JNCC’s consultation response to the 31 st licensing round. Conclusion

143. For these reasons, I am unable to accept that the approach taken by OPRED and the First Defendant in paragraph 2.2.2 of the AAs leaves a gap in assessment in relation to potential accidental events and the risk which they may present to the integrity and conservation status of MPAs. The approach to assessment of that risk was properly precautionary. There was no failure to fulfil the First Defendant’s duty of reasonable inquiry. Ground 1 is rejected. Ground 2 – climate change Issue

144. The issue under this ground is whether the First Defendant failed properly to consider the impacts of climate change in terms of (i) its impact on these increasingly fragile MPAs; and (ii) following Finch , the specific additional climate impacts of the licences from both the operation of the licenced activities (scope 1) and their downstream emissions (scope 3), contrary to (i) regulation 5 of the 2001 Regulations and/or (ii) the Second Defendant’s Tameside duty. The approach of the AAs to climate change

145. Section 3 .2 of the AA reports addresses the potential impact of climate change in the context of the analysis of site integrity – “Similarly, a number of effects of climate change on the marine environment and its biota are possible in the coming decades which could affect qualifying interests of SACs and SPAs (as summarised in BEIS 2022). Burton et al. (2023) provide a summary of the influence climate change is already having on birds in the UK, which include population responses across annual cycles and ranges, declines in breeding seabird numbers, in part linked to climate mediated changes in fish prey species (e.g. sandeel and sprat) and changes in storminess affecting winter survival, and declines in waterbird populations and north-easterly shifts in waterbird winter distributions in Europe. Burton et al. (2023) note that evidence of the influences of climate change on bird demographics has recently improved but requires further study to understand the underlying processes. For projections of potential future effects (e.g. Hakkinen et al. 2022, Searle et al. 2022), there remains limited evidence or consensus across species groups on what could happen. Range shifts (see Martin et al. 2023) in marine mammals have been reported in the north-east Atlantic, and these have been linked to increasing sea temperatures, and related distribution shifts in their prey. While climate change is likely to result in impacts on qualifying features of conservation sites, it is not possible to consider these in more than a general sense in the absence of information on how they are presently affecting the status of site features”.

146. The analysis in section 3 .2 of the AA reports did not appear in the draft AAs. It was included, at least in part, in the light of representations made both by the JNCC and the Claimant in their consultation responses.

147. In their consultation response of 15 September 2023, the JNCC said – “The latest expert advice from the Intergovernmental Panel on Climate Change (IPCC) and the UK Climate Change Committee (CCC) clearly states that any new extraction of oil and gas is not compatible with the commitments the UK has made under the Paris agreement to limit global warming to well below 2°C above pre-industrial levels and achieve Net Zero commitments. With fossil fuel extraction and use being one of the major contributors to climate change, the new extraction of oil and gas will continue to exacerbate climate change. Climate change impacts are already being felt within the UK marine environments, for example the distribution of infaunal species in the North Sea has shifted in response to changing sea temperature. In addition, the extreme heat wave that occurred in UK seas during spring/summer 2023 has seen seas temperatures regionally rise and in some areas up to 4°C higher than average for this time of year. Marine heat waves can have a devastating effect on marine ecosystems and so it is imperative that protected habitats and species are safeguarded from additional pressures, to ensure they have as much resilience as possible in the face of these events. The impact of oil and gas activities on carbon stored in the marine environment Marine ecosystems are under increasing pressure from multiple anthropogenic activities and environmental factors, like climate change. Ocean warming and acidification can significantly alter the prevailing environmental conditions, for example, increased temperature and lower pH are predicted to reduce habitat suitability for key habitat-forming species, and leading to declines in population density, reduced habitat integrity and loss of biodiversity. Additional oil and gas activities licenced under this regime are likely to compound these issues through cumulative or synergistic effects. The natural storage and sequestration capacity of marine benthic habitats means they can play a role in climate regulation, as highlighted in JNCC's work on climate smart MPAs. Activities related to oil and gas, in addition to other marine sectors, are known to disturb the seabed. Any disturbance to the sea floor sediment would have the potential to release carbon locked in sediments and impact the ability of the seabed to store carbon. UK MPAs have predominantly been designated to protect biodiversity and not for the purposes of carbon sequestration. However, many protected features of MPAs do play a role in biogeochemical processes (e.g. they can sequester carbon and act as a natural store, a so-called nature-based solution). Any oil and gas activity licenced in an MPA that impacts these habitats would therefore have the potential to impair the ability of an MPA to deliver these benefits”.

148. In its consultation response, the Claimant said that the draft AAs had failed to mention the impact of climate change on the MPAs and their designated features, despite being a major contributor to in-combination effects. The Claimant said that climate change is causing a wide range of impacts on UK marine ecosystems, from changes in distribution of species and habitats as waters warm to the expected loss of some habitats from UK waters and a range of impacts caused by changing ocean chemistry. These impacts are not only affecting biodiversity but also impacting on fisheries and other uses of the sea. These were said to be relevant in-combination impacts that would be exacerbated by increasing fossil fuel extraction and required consideration in the AAs. It was said that marine management decisions, particularly related to extractive use of offshore areas, need to take into account climate impacts as well as other uses of the sea. Reference was made to the Marine Climate Change Impacts Partnership [“MCCIP”] which had published “a wealth of evidence for the current and predicted impacts of climate change on UK waters” and reference should be made to relevant information in these documents as part of the AAs.

149. The Claimant said that in UK waters, the most significant temperature increases were being recorded around Scotland and in the North Sea, which is where much of the oil and gas activity is currently occurring and where many of the licences being considered in the 33 rd Round are also located. Both average sea temperatures and the frequency of marine heatwaves is increasing, with serious consequences for marine ecosystems. Many species in the North Sea were said to be at the edge of the range of temperature tolerance. Overall higher temperatures and heat waves were an additional stressor for the species, habitats and ecosystems assessed in the AAs.

150. The Claimant said – “A recent report (Martin, E et al. 2023) outlines the impacts that have already been recorded on marine mammals in UK waters which include range shifts, reduction in suitable habitats, food web alterations and increased prevalence of disease. One of the species that will be most affected by the new licensing currently under consideration for the North Sea are harbour porpoises and their distribution changes over the past two decades have been linked to climate change impacts on their sandeel prey. Changes in the timing of the phytoplankton bloom having a knock on effect on the availability of zooplankton is driving changes in the seasonality and availability of sandeels (van Deurs et al. 2009) which are prey for marine mammals and seabirds, potentially creating additional pressures for the species assessed as conservation features in this consultation. In addition to climate change impacts on prey availability, habitat and other impacts associated with sea temperature increases, it is also thought that climate change is leading to increased concentration of contaminants (Kebke et al. 2022), to which Marine mammals are very vulnerable. So, in addition to the direct contamination of the marine environment which these new licences will create, the climate change to which they also contribute will exacerbate other sources of pollution, increasing the impacts on marine mammal health and reproduction. Many of the conservation features assessed in this consultation are seabirds with populations with unfavourable conservation status. Climate change is now regarded as one of the primary causes for declines in UK seabird populations (Mitchell et al. 2020) which are almost all assessed as in poor conservation condition. Many more examples of the relevance of climate change impacts could be given here, but the main point to make is that climate change impacts are a very real additional threat to the marine environment, they add to the other anthropogenic pressures on the conservation features in Marine Protected Areas and should certainly be considered as part of the in-combination effects. This is particularly relevant when considering the impact of new offshore oil and gas licences which will directly contribute to future climate change and associated marine impacts”.

151. OPRED’s letter of 3 May 2024 to the JNCC said – “A number of effects of climate change on the marine environment and its biota are possible in the coming decades which could affect qualifying interests of SACs and SPAs (e.g. see Burton et al. 2023, Hakkinen et al. 2022, Searle et al. 2022, Martin et al. 2023). However, there is insufficient definition at this stage to consider this in more than a general sense, particularly in the absence of information on how they are presently affecting the status of site features”.

152. A similar response was given by OPRED in its letter of 3 May 2024 to the Claimant. OPRED also said – “The assessments are undertaken in the context of the Initial Term activities which may follow licensing, the site conservation objectives and any related advice on operations and supplementary advice on conservation objectives. Emissions from potential activities were not identified as a source of likely significant effect for the HRA”.

153. In her witness statement, Helena Charlton says that the Claimant’s assertion that OPRED and the First Defendant failed to consider the impact of climate change on the relevant MPAs is incorrect. The Claimant’s broader policy objection to new oil and gas licensing had been considered in the work done under OESEA4. OESEA4 found that over time there would be a natural decline and eventual cessation of oil and gas activities in UKCS as a consequence of the depletion of reserves. Moreover, it was the Government’s established policy to ensure that further oil and gas extraction in UKCS was consistent with achieving net zero by 2050.

154. Ms Charlton says that the proper focus of inquiry was on the potential impacts of licensed oil and gas activities on relevant MPAs. In paragraph 3.2 of the AAs, OPRED and the First Defendant had responded to the JNCC’s and the Claimant’s comments on the impacts of climate change on the marine environment, in particular changes to the distribution of certain species arising from changes in sea temperatures, the decline in habitat forming species and in biodiversity. Those effects had been considered in the OESEA4 Environmental Report. Following the JNCC’s and the Claimant’s consultation responses, the published AAs discussed the potential effects of climate change on UK marine habitats and species, in the light of the science reviews of the MCCIP relied upon by the JNCC and the Claimant.

155. Ms Charlton says that the conclusions drawn in paragraph 3.2 of the AAs were a proper response in the light of the information reasonably available to OPRED and the First Defendant – “The AAs concluded that, while as a matter of principle climate change is likely to result in impacts on qualifying features of conservation sites, including potential population level effects from effects changes in prey distribution and availability, and range shifts of species, it was not possible for the HRA to consider the effects of those definitively for specific relevant sites and features. This includes how any current or and future climate change related effects would affect the conservation status of specific species or habitats, and the coherence of the site network. OPRED are not aware of site-specific advice on how the effects of climate change on sites should be considered in assessment. However, should relevant information or data come to light in the future (for example through monitoring of habitats and species carried out by the SNCB's or other entities), there is an opportunity to consider these specific effects of climate change on relevant sites at the consenting stage” .

156. In relation to the Claimant’s concerns over the effects of greenhouse gas emissions [“GHG”] , Ms Charlton says that it is not possible to attribute the effects of such emissions to any one or more specific MPAs. The effects of additional GHG emissions are not specific to any one area. It is not possible to link additional GHG emissions directly from oil and gas exploration or production, or indirectly and from the end use of oil and gas products, to the conservation objectives of any given MPA. Ms Charlton says that the JNCC advises government on the specific activities that give rise to pressure on the features of protected sites. The JNCC has not identified GHG emissions as a relevant pressure in the MPAs which were the subject of assessment in the AAs.

157. In her evidence in reply, Ms Tilley challenges Ms Charlton’s evidence. In particular, Ms Tilley says that the correlation between climate change and damage to protected marine conservation sites and species is well documented. She says that since 2006 MCCIP has regularly published and updated evidence which substantiates the impact of climate change on the marine environment of the UKCS. MCCIP also reports on likely future impacts. She says that there is sufficient information available to OPRED and the First Defendant to undertake a meaningful assessment of the impacts of climate change on the UK marine environment and on MPAs within that environment.

158. In relation to GHG emissions, Ms Tilley refers to published UK GHG emissions data which identifies that component of overall UK GHG emitted by oil exploration. She says that the published figures may be an underestimate, as they do not include oil and gas exploration activities. In terms of indirect GHG emissions (known as “Scope 3 emissions”) from oil and gas activities, Ms Tilley points to the Second Defendant’s published assessment the potential supply of oil and gas produced under the 33 rd Licensing Round. She also points to draft supplementary EIA guidance published by OPRED in the light of Finch , which states that end-use GHG emissions from the burning of extracted hydrocarbons need to be assessed as part of the EIAs undertaken in relation to offshore oil and gas activities.

159. Following the hearing of this claim, the parties helpfully submitted an analysis of the scientific papers referred to in paragraph 3.2 of the AAs and other papers which had been before OPRED and the First Defendant at the time of preparation of the AAs. The papers were Burton, Daunt, Kober, Humphreys and Frost (2023) “Impacts of Climate Change on Seabirds and Waterbirds in the UK and Ireland” [“Burton”] ; Martin, Banga and Taylor (2023) “Climate Change Impacts on Marine Mammals around the UK and Ireland” [“Martin”] ; Findlay, Artoli, Birchenough, Hartman, Leon and Stiasny (2022) “Ocean Acidification around the UK and Ireland” “[“Findlay”] ; and Moore and Smale (2020) “Impacts of climate change on shallow and shelf subtidal habitats, relevant to the coastal and marine environment around the UK” [“Moore”] . The Claimant’s submissions in summary

160. Ms Cook submitted that the draft AAs had not included any consideration of the effects of climate change on the marine environment in UKCS. Following representations made by both the JNCC and the Claimant in response to consultation on the draft AAs, a paragraph had been included in section 3 .2 of the final AAs which provided a short summary of possible effects of climate change on the marine environment and its biota in the coming decades. However, it was submitted that the very brief and high-level summary given failed properly to engage with the published scientific evidence to which the JNCC and the Claimant had drawn attention.

161. It was incorrect for the First Defendant to characterise the brief analysis carried out in section 3 .2 of the AA reports as being founded upon a disagreement with the JNCC’s and the Claimant’s representations. The true legal analysis was that section 3 .2 demonstrated that the objective and available scientific evidence had been disregarded by OPRED and the First Defendant. In particular, the brief analysis set out in section 3 .2 was inconsistent with the conclusions drawn in the scientific evidence and failed to acknowledge the true level of understanding to be found in that evidence of the existing and likely scale of impact of climate change on both protected marine habitats and protected species. In failing to acknowledge and act on that scientific evidence, OPRED and the First Defendant had failed to follow a precautionary approach or properly to inform themselves in relation to the likely impact of climate change on the MPAs and their resilience, in the face of oil and gas activities carried out under the Licences.

162. Ms Cook relied upon the CJEU’s emphasis in Sweetman v An Bord Pleanála [2014] PTSR 1092 [“Sweetman”] at [37] on the long-term maintenance of the conservation status of sites protected under article 6 of the Habitats Directive – “… the conservation status of a natural habitat is taken as “favourable” when, in particular, its natural range and areas it covers within that range are stable or increasing and the specific structure and functions which are necessary for its long term maintenance exist and are likely to continue to exist for the foreseeable future”.

163. In relation to the assessment of GHG emissions, Ms Cook submitted that the failure to assess the effects of oil and gas activities carried out under the Licences was unexplained and inconsistent with the Government’s approach in draft supplementary EIA guidance following the Supreme Court’s judgment in Finch . OPRED was consulting on how to approach environment impact assessment of the effects of indirect and downstream (Scope 3) emissions on climate from offshore oil and gas activities. Ms Tilley’s evidence shows that both Scope 1 and Scope 3 emissions from oil and gas activities are capable of being meaningfully assessed. Indeed, the 33 rd Round is predicated on there being winnable reserves of oil and gas which merit exploitation. Reasonable assumption can be made as to the scale of hydrocarbon production for the purposes of assessment. Both the Initial Stage and the development and production stage of licensed oil and gas activities will result in the release of GHG emissions. On the authoritative approach of Finch at [97], there is a clear causal link between the grant of Licences and the risk of adverse effects on the integrity and conservation status of MPAs, since the GHG emissions resulting both directly and indirectly from licensed activities will contribute to rising global temperatures and ocean acidification. MPAs in the UKCS are not immune from those impacts.

164. In failing to assess those effects, the First Defendant has left a gap in assessment which vitiates the AAs. Discussion

165. The focus of the Claimant’s first complaint under this ground is on the impact of climate change on the integrity and conservation status of MPAs. Section 3 .2 of the AAs refers to the conservation objectives which are assigned to an MPA at the time of its designation. The purpose of identifying those objectives is to ensure that the MPA continues in the long term both to achieve and to maintain the favourable conservation status of the features of qualifying interest for which it has been designated.

166. As was recognised by the CJEU in Sweetman , in order properly to discharge the statutory requirement to carry out appropriate assessment, it is necessary for the assessor to take into account evidence that the favourable conservation status of the protected site or sites is under pressure from other processes, natural or anthropogenic, in both the short and longer term. Natural habitats do not remain static over time. They are dynamic and susceptible to change. An assessment of the likely impact of activities carried out pursuant to a plan or project on an MPA should therefore take account of evidence that the site’s marine environmental features of qualifying interest are likely to be affected by other processes over time; particularly where those processes are likely to impair the integrity of the MPA and its ability to maintain favourable conservation status.

167. For these reasons, it is unsurprising that in response to consultation, both the JNCC and the Claimant raised the need for consideration in the AAs of the impact of climate change. OPRED’s response was to extend the explanation of site integrity given in section 3 .2 of the draft AAs to include the discussion of the effects of climate change which I have set out in paragraph 145 above.

168. It is clear from that discussion that there is no dispute between the JNCC, the Claimant and the First Defendant that climate change is both affecting the marine environment of the UKCS and likely to lead to impacts on qualifying features of MPAs in the longer term. For an assessment of the effects of climate change on the marine environment and its fauna and flora which have the potential to affect qualifying interests of MPAs in the longer term, section 3 .2 of the AAs refers to “BEIS 2022”, which is a reference to the OESEA4 Environmental Report. Paragraph 4.5 of the OESEA4 Environmental Report provides a detailed analysis of the “likely evolution” of the marine environmental baseline in the UKCS and discusses the possible impact of climate change. That analysis includes consideration of the likely impact of climate change on habitats and species, including benthic habitats, the distribution of prey species, birds and marine mammals. The discussion of benthos includes consideration of the findings of Moore and Smales’ scientific paper on shifts in species distribution in response to changing sea temperatures; and following modelling studies which suggest significant shifts in species ranges into the future.

169. It was plainly reasonable for OPRED to draw on the analysis in the OESEA4 Environmental Report, as part of the evidence base upon which to found discussion of the effects of climate change on qualifying features of MPAs in section 3 .2 of the AAs.

170. Section 3 .2 then considers the conclusions of two of the more recently published scientific papers to which the JNCC had referred in their consultation response, Burton and Martin. In their written comments on those papers submitted following the hearing, both parties drew my attention to particular passages which they wished to emphasise in support of their respective arguments. In my view, the relevant question for the court is whether the discussion of those papers in section 3 .2 of the AAs reveals a misunderstanding of or failure to engage with the findings and conclusions of that scientific evidence.

171. Burton’s conclusions on the impacts of climate change on seabirds and water birds in the UK and Ireland are summarised in answer to two questions “What is already happening?” and “What could happen in the future?” . The key facts stated by Burton in response to the first of those questions are substantially reflected in section 3 .2 of the AAs, in summarising the influence which climate change is already having on birds in the UK. In response to the second question, Burton identified a number of possible future impacts which climate change may have on sea and water birds. Burton concluded that both the level of scientific consensus and the evidence base in respect of those possible future effects is low. Section 3 .2 of the AAs fairly reflects that position.

172. Martin’s conclusions on the impacts of climate change on marine mammals around the UK and Ireland are also summarised in answer to two questions “What is already happening?” and “What could happen in the future?” . Again, the key facts stated by Martin in response to the first of those questions are substantially reflected in section 3 .2 of the AAs, in summarising the influence which climate change is already having on marine mammals around the UK. As with Burton, in response to the second question Martin identifies potential future impacts, but states that further work is needed both to distinguish the impacts of climate change from other pressures in the environment and to determine causal relationships.

173. The overall conclusions drawn by OPRED in section 3 .2 of the AAs, following consideration of the scientific evidence, were – (1) Climate change is already affecting the marine environment, including its flora and fauna, in UKCS. (2) In the longer term - “the coming decades” – climate change is likely to have effects on the marine environment, including its flora and fauna, in UKCS resulting in impacts on qualifying features of MPAs. (3) It is not possible to give specific, as opposed to general consideration of the impact of climate change on MPAs, given the absence of information as to how climate change is affecting their qualifying features.

174. Those conclusions are, in my view, both consistent with and a reasonable response to the advice given by the JNCC in the consultation on the draft AAs. The JNCC had stated that climate change impacts were already being felt in within the UK marine environments. Section 3 .2 of the AAs reflects that advice and draws on the scientific evidence base to identify such impacts. The JNCC stated that protected habitats and species need to be safeguarded from additional pressures, to ensure that they have as much resilience as possible to cope with the effects of climate change. However, that general advice is not supported by any specific evidence of how climate change is affecting qualifying features of MPAs under consideration in the AAs. The JNCC refer to the potential for ocean warming and acidification to affect the suitability of marine habitat to key habitat-forming species, and result in species decline, deteriorating habitat and loss of biodiversity. Again, however, that advice is expressed in general terms.

175. The conclusions in section 3 .2 of the AAs are also consistent with and a reasonable response to the points made by the Claimant in consultation. The Claimant stated that its “main point” was that climate change impacts “are a very real additional threat to the marine environment” . Section 3 .2 acknowledges that fact, albeit in less forthright terms and with a greater degree of circumspection as to the emerging evidence base and level of scientific confidence in longer term impacts. I am satisfied that insofar as section 3 .2 adopts a more cautious prognosis than the Claimant, that is both consistent with the scientific evidence, including the four scientific papers on which the parties have commented, and betrays no lack of proper consideration of that evidence on the part of OPRED and the First Defendant.

176. As with the JNCC, the Claimant made a number of points about the impact of climate change on the marine environment around the UK, drawing on Martin and other scientific evidence to show range shifts in marine mammals and the distribution of their prey and the effects of rising sea temperatures. Again, the Claimant did not point to any specific evidence of how climate change is affecting qualifying features of MPAs under consideration in the AAs.

177. In summary, in the light of the advice of the JNCC and the Claimant’s representations, OPRED was clearly correct to include in the final AAs discussion of the effects of climate change on the marine environment. The scientific evidence supported the JNCC’s and the Claimant’s concern that climate change was already affecting the marine environment, its flora and fauna; was likely over time to affect the qualifying features of MPAs; and could have an impact on their conservation status in the longer term. I do not accept that OPRED and the First Defendant have failed to give proper consideration to those matters in the AAs. In particular, I am unable to accept that the discussion in section 3 .2 of the AAs discloses a failure properly to consider either the scientific evidence or the advice of the JNCC. The approach in section 3 .2 was properly precautionary, in that it acknowledged the likelihood of impacts resulting from climate change over time on qualifying features of MPAs. Section 3 .2 does give consideration at a general level to the known effects of climate change on the marine environment, informed by the scientific evidence which had been identified by the JNCC and the Claimant. It was reasonably open to OPRED and the First Defendant to judge there to be a lack of information from which to draw specific conclusions on how climate change is presently affecting the integrity and conservation status of the MPAs under consideration in the AA reports.

178. I can deal more briefly with the Claimant’s second contention under this ground. I do not accept that the absence of consideration of the effects of GHG emissions resulting from oil and gas activities carried out pursuant to Licences constitutes a gap in assessment for the purposes of regulation 5 of the 2001 Regulations.

179. Regulation 5 of the 2001 Regulations follows article 6(3) of the Habitats Directive, in requiring appropriate assessment in a case where activities involved in the proposed plan or project are likely, alone or in combination with other plans or projects, “to have a significant effect on a relevant site” . In such a case, the purpose of the assessment is to address “the implications for the site in view of the site’s conservation objectives” . The object of the inquiry is to understand whether and if so, how the activities in contemplation, alone or in combination, may affect the particular site or sites which are the focus of the assessment.

180. Finch was concerned with the process of environmental impact assessment of a project under the domestic regulations – the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 [“the EIA Regulations”] – which transpose into domestic law the provisions of the EU EIA Directive 2014 (2014/52/EY) [“the EIA Directive”] . The object of the inquiry under the EIA Regulations is to assess the likely significant effects of a project on the environment. That assessment is required to cover not only to the direct effects of the project but also “any indirect, secondary, cumulative, transboundary, short-term, medium-term and long-term, permanent and temporary, positive and negative effects” of the project: see paragraph 5 of schedule 4 to the EIA Regulations. The same paragraph stipulates the focus of the required environmental assessment in wide terms, which include “the impact of the project on climate (for example the nature and magnitude of greenhouse gas emissions) and the vulnerability of the project to climate change” .

181. The issue for determination in Finch was whether GHG emissions generated by the eventual use of fuel produced from the extraction of oil and gas under a drilling project, which was subject to environmental impact assessment pursuant to the EIA Regulations, constituted an indirect effect of that project on a specified environmental factor, namely climate. The Supreme Court held that those Scope 3 emissions were properly to be regarded as such an indirect effect. That conclusion was reached against the context of the statutory requirements of the 2017 Regulations; in particular, the requirement that the assessment of environmental effects of the project should extend to its indirect effects on climate, which embraced GHG emissions. Finch at [97], on which the Claimant relies, must be understood in that context – “ Climate change is a global problem precisely because there is no correlation between where GHGs are released and where climate change is felt. Wherever GHG emissions occur, they contribute to global warming. This is also why the relevance of GHG emissions caused by a project does not depend on where the combustion takes place. If an activity is carried on which will inevitably result in significant GHG emissions, people who carry on the activity cannot be heard to say: ‘These emissions are not effects of our activity because they are occurring far away among people of whom we know nothing’".

182. That paragraph of Lord Leggatt’s reasoning is found in a section of his judgment considering whether requiring consideration of the end use of fossil fuels produced by the project in that case as an indirect effect would engage the transboundary arrangements applying under the EIA Directive.

183. There is no corresponding requirement under the 2001 Regulations to widen the scope of assessment so as to embrace the indirect effects of oil and gas activities on climate. The scope of assessment under regulation 5 of the 2001 Regulations is quite differently defined to the scope of environmental impact assessment under the EIA Regulations. Under regulation 5, the assessment is focused on a particular and defined component of the natural environment, namely an MPA. It is the effects of proposed activities on the designated site or sites that is the object of the inquiry. Ms Charlton’s evidence is that it is not possible to attribute the effects of GHG emissions from oil and gas activities carried out pursuant to Licences to any one or more specific MPAs. In its representations in response to the draft AAs, the Claimant did not explain how that difficulty could be overcome. Ms Charlton points out that the JNCC did not identify GHG emissions as a relevant pressure in the MPAs which were the subject of assessment in the AAs. Ms Tilley refers to the draft guidance published by OPRED following the decision in Finch . Tellingly, however, that draft guidance concerns the process of environmental impact assessment under the aegis of the EIA Directive. It is not concerned with appropriate assessment under regulation 5 of the 2001 Regulations.

184. The short point is that the absence of consideration of GHG emissions in the AA reports does not result in a gap in assessment of the environmental impact of emissions generated by licensed oil and gas activities from exploration to production and end use of the fuels. Under existing statutory arrangements, and on the authority of Finch , that assessment is required in any event, but in the context of environmental impact assessment pursuant to the domestic regulations which implement the EIA Directive. Conclusion

185. For these reasons, ground 2 is rejected. Ground 4 – cumulative and in-combination impact Issue

186. The issue under this ground is whether the First Defendant failed or failed adequately to assess the in-combination impacts of the licensed activities on the protected sites contrary to: (i) regulation 5 of the 2001 Regulations; and/or his Tameside duty. Background

187. In their consultation response of 15 September 2023 to the draft AAs, the JNCC said that they were unable to agree with the conclusions of no adverse effect on site integrity (AEOSI) until their advice in their letter had been addressed. This was said to be particularly relevant to aspects concerning the in-combination assessment, which the JNCC advised needed updating. The second of the JNCC’s main concerns was as follows – “ Overall, we have concerns about the approach taken to, and the conclusions made, with the Appropriate Assessments and the Marine Conservation Zone/Marine Protected Area Assessment. Most notably, the postponement of a detailed impact assessment and consideration of mitigation measures has been pushed to the project level. Such an approach doesn't allow for strategic consideration of all the potential impacts of the 33 rd Round holistically and where required the implementation of strategic mitigation/compensation. These assessments have insufficient evidence in order to conclude with certainty that there will be no significant effect on MPA site integrity. However, we believe this type of broad conclusion is not possible or appropriate at this level of assessment when based on a hierarchy of assumptions. We would like to reiterate that many designated sites and features are already in unfavourable condition as a result of ongoing impacts from existing and consented infrastructure. Further large-scale development will place significant risk on the longer-term achievement of site conservation objectives, and we must take active steps to ensure our sites are given the best chance to recover. Therefore, unless the mitigation hierarchy can be successfully adopted to suitably reduce the impacts to ensure that the placement of new Oil and Gas infrastructure will not materially contribute to existing impacts; the sites will be taken further away from meeting their conservation objectives/targets. We advised that AEOSI cannot be ruled out and a derogations case including compensation measures will be required. We therefore do not agree with the conclusions drawn within the assessment that there would be no significant effect on nature conservation in the marine environment ” . (Original emphasis)

188. A further main concern of the JNCC was that, in their view, the approach to licensing oil and gas activities was inconsistent with that taken for other industries – “The approach to licensing oil and gas activities within UK waters is inconsistent with the approach being taken by other industries. For example, the need for plan level compensation was recognised by both The Crown Estate in relation to Round 4 wind farms in the draft Report to inform Appropriate Assessment (RIAA) and the Scottish Offshore Wind Sectoral Plan, concluding that they could not rule out AEOSI. If the regulator decides to award licence blocks that overlap with MPAs, we would welcome similar recognition for plan level compensation. As [statutory nature conservation bodies] we would welcome discussions with OPRED and the NSTA on how this could be aligned with the approach being adopted elsewhere”. (Original emphasis)

189. The JNCC also stated a main concern in relation to in-combination effects on marine mammals – “Given the recent significant increase in activity in both the summer and winter areas of the Southern North Sea SAC, the published marine mammal disturbance thresholds are increasingly being pushed to the limit, and consequently the potential for adverse in-combination effects has also increased. We recommend this is considered in more detail within the assessment, although we appreciate knowledge of details of other activities is limited at this stage. We note that further consideration of in-combination effects shall be undertaken once project plans are known and that activities will not be permitted if an adverse effect cannot be avoided. However, as this risk is identified at the plan-level, there is merit in further consideration of mitigation to avoid adverse effects at the plan-level” .

190. The JNCC questioned whether the level of detail provided in the draft AAs on site appraisal and exploration activities was sufficiently robust. They advised that further detail and clarity on appraisal exploration activities should come forward under the plan level assessments. The JNCC assumed that details of the number of wells that might come forward during exploration were either included in licence applications or could be appropriately estimated at a high level, based on previous knowledge and experience. This information should be used to develop a worst-case scenario for the purposes of appropriate assessments. The JNCC advised that further detail should also be included on matters such as rig stabilisation, helicopter and vessel movements and impacts.

191. The JNCC warned that the draft AAs suffered from an overall lack of acknowledgement of uncertainties in the evidence base and the assumptions upon which the assessments were based. They advised that a thorough review of the draft assessments was needed to identify and acknowledge such uncertainties, with greater transparency about the quality of the evidence base and assumptions which informed the assessments, in accordance with the precautionary approach. There was an assumption in all assessments that existing regulatory requirements will adequately reduce risks. This needed to be evidenced and their relevance to sites articulated.

192. Under the heading “In-combination assessment and cumulative assessment” the JNCC advised – “There is a general assumption underpinning the assessments presented that there is considerable scope to ensure cumulative or in-combination effects are managed through collaboration and engagement between sectors going forward to avoid significantly hindering the conservation objectives of the relevant MPAs. There is no evidence provided to support this assumption and the use of mechanisms by which collaboration could/would occur. Given recent UK government commitments to increase the pace of offshore renewables, carbon capture and storage, subsea cables and oil and gas expansion in the marine environment, this does not seem like a robust assumption to make. We therefore advised that further work is required with respect to the in-combination assessment and as a result of this we are unable to agree with the conclusions of this assessment. The in-combination assessment should consider all plans and projects across all relevant sectors both offshore and in the coastal area where pathways of effect may act in-combination. We advised that there are plans and projects that have been missed within the in-combination and cumulative assessments. This should be reviewed, and we have included further projects that need to be included within each in-combination or cumulative assessment (as relevant) in our detailed comments...”.

193. In relation to the assessment of impacts on marine mammals, the JNCC raised a particular concern over the adequacy of consideration of underwater noise effects. In respect of the Southern North Sea SAC, the JNCC advised – “We do not agree that significant in-combination underwater noise effects on the harbour porpoise feature of the Southern North Sea SAC are unlikely due to the nature of exploration/appraisal activities. Indeed, we consider that there would be risk of significant in-combination effects if not for the controls that are currently in place. Natural England has significant ongoing concerns with the Southern North Sea Activity Tracker and how multiple noisy projects are being managed (e.g., through the SIP process). The pipeline for offshore wind construction in the Southern North Sea SAC through to 2030 is extremely busy and there may be little capacity in the thresholds for further new noisy activity. At both the plan and project level, mitigation to reduce the contribution to the in-combination underwater noise disturbance in the Southern North Sea SAC during the relevant area/season should be considered”.

194. In its consultation response, the Claimant raised specific concerns about the lack of assessment of cumulative impacts. The Claimant said that grey and harbour seals face a range of cumulative impacts both from environmental and anthropogenic sources, reducing their chances of survival. The Claimant said that the cumulative impacts need to be assessed of the physiological tipping points of all species, due to additional stressors as the result of new proposed oil and gas sites.

195. In its response of 3 May 2024 to the JNCC, OPRED addressed the JNCC’s main concern over the approach taken to appropriate assessment in the draft AAs. OPRED referred to section 2 .2.2 of the final AAs, which I have quoted in some detail in paragraphs 89 to 93 of this judgment. Under the heading “Development level activities should be considered in the assessment and level of detail” , OPRED said – “…. the Department does not accept that development level activities can be meaningfully assessed at this stage. The location, timing, scale and nature of any development is unknown and any assessment would not provide a meaningful conclusion. As noted in . section 2 .2.2... even where an applicant has applied for a licence to go straight to the Second Term, the nature and scale of any development which might be associated with this licence is highly uncertain. This is because there will be multiple options for development (e.g. subsea tie-back, standalone platform) including export routes (e.g. pipeline to shore, or tie-back to one or more existing host facilities, which may export via tanker), most of which will not be known in detail until towards the end of the Second Term. The Department do not consider it to be appropriate to consider the whole life cycle of potential developments in all blocks when no such development has been proposed. Similarly, with regards to landfall and pipelines, realistic assumptions cannot be made at this time. The potential for new projects to tie-back to existing host facilities and the routing of any export pipeline needs detailed consideration which is beyond the scope of this assessment, as is the consideration of any potential infrastructure re-use for carbon capture and storage”

196. OPRED also referred to the assumptions stated in section 2 .2.2 of the AAs upon which the assessment of appraisal and exploration activities has been based – “The activities which could follow the licencing of the Blocks are provided in Section 2 .2.2 of the AA documents and includes for each Block whether seismic survey or other forms of desk-based seismic work is proposed, and whether a well is proposed. These are based on the work programmes provided by the applicants. It is considered that the assumption that all of the proposed activity takes place is a suitably worst-case scenario for Initial Term activities. To clarify, while the AAs assess on a Block by Block basis, assuming that for each Block a well would be drilled, the potential number of wells that could be drilled is much less as the Blocks generally form part of wider licence areas within which one well could be drilled… A proportion of Blocks will be relinquished without any offshore activities occurring; Typically, less than half the wells drilled reveal hydrocarbons, and of that, less than half will have a potential to progress to development. Section 2 .2.1 of the AAs has been expanded to emphasise the likely outcome of any round in terms of Blocks offered, those applied for, those awarded, those for which activity actually takes place….”.

197. OPRED placed significant weight on the role of licensing and the need for further consents to be sought and obtained which would engage the procedure under regulation 5 of the 2001 Regulations – “The conclusions of the AAs have been updated to emphasise that the granting of future consents for activities is not automatic and is dependent on future applications supported by suitable location and activity/project specific assessments which take account, where relevant, of conservation sites, their features and conservation status. The Department will, where appropriate, undertake HRA screening and Appropriate Assessment to inform decisions on the granting of consents. Consent and/or agreement to the grant of consent as appropriate will not be given unless the requirements of [regulations 5 and/or 6 of the 2001 Regulations] have been met. Should a development be proposed that would involve the placement of infrastructure in a site, HRA at the field development stage would ensure that there are no adverse effects on the integrity of SACs and SPAs or that compensatory measures are applied should it be decided that the project should be carried out for imperative reasons of overriding public interest…. The Department does not agree that mitigation along the lines of the Crown Estates cables protocol is required at this stage, as the assessments are not considering development level activities…” .

198. In response to the JNCC’s concern about inconsistency of approach in comparison with other energy sectors, OPRED said that the approach taken by competent authorities to Habitats Regulations Assessment in their areas had been considered – “We note that the AA for the Scottish Offshore Wind Sectoral Plan did not conclude that there would be adverse effects on site integrity subject to the implementation of mitigation, and that the main impacts related to ornithological effects, which are not predicted for the 33 rd Licensing Round. The conclusions of adverse effects from the Crown Estate’s Round 4 offshore wind farm leasing were based on permanent habitat change from the placement of protection materials and the duration of the footprint of wind farm structures through the project life. Similarly, the conclusions for the HRAs associated with Norfolk Boreas and Norfolk Vanguard related to permanent changes to Haisborough, Hammond and Winterton SAC, with those relating to the impact of sandbank levelling, cable installation and repairs concluded to be short term and temporary and without an adverse effect alone or in-combination. The AAs for the 33 rd Round concluded that permanent change could be avoided by the application of plan level mitigation, and adverse effects on ornithological receptors is not predicted. The Department does not accept that the conclusions of the 33 rd Round are inconsistent with other HRA conclusions” .

199. In summarising its response to the JNCC’s main concern on the question of approach to appropriate assessment, OPRED reiterated that the award of a Licence “does not constitute any form of approval for activities to take place in any of the Blocks” . Such activities are subject to a range of statutory permitting and consenting requirements, including where relevant, “activity-specific HRA” allowing for further assessment and application of mitigation at a time when further project details are known. This was said to apply both to Initial Term activities and any developmental level activities as may be later be proposed.

200. Responding to the JNCC’s concern over uncertainties, OPRED said that the final AAs had been updated properly to reflect uncertainty. OPRED said that the Department considered it to be appropriate to assume that regulatory controls would be effective. In relation to the assessment of in-combination assessment, OPRED said that account had been taken of the projects to which the JNCC had referred as being relevant to that element of appropriate assessment. Where considered relevant, those projects had been included – “We note that many of the projects referred to are at a very early stage in planning, and while PEIR and scoping information may provide a high level of detail, there is also a high level of uncertainty attached to what the final consented project will be, the level of impacts of these projects, and their timing…. More broadly, the projects considered to be relevant to the in-combination assessment were identified on the basis of the nature and location of existing or proposed activities in relation to the relevant sites considered in the AA and the Blocks which had been applied for, and also the sources of potential effect from these projects for which in-combination effects were considered to be possible. The potential cumulative footprint of activities is discussed in Section 5.2 of each AA, but these cannot be mapped accurately as there is no information on where any well could be drilled…. As noted above, and in detail in Section 2 of each AA, the licences only grant exclusivity to the applicant and do not provide consent for individual activities. At the activity level, further opportunity exists to account for in combination effects once project plans are known (e.g. once the specific location and timing of survey or well-related activities are understood)”.

201. In relation to the JNCC’s concerns about the treatment of mitigation, OPRED considered that sufficient information was set out in the AA reports on the use of timing as a means to avoid impacts on sensitive qualifying interests – “Whether such mitigation to avoid interaction with any relevant feature is necessary is uncertain at this stage, and, as noted in Sections 5.2.1 and 5.3.1, will be subject to further assessment at the project level, and is not reliant upon plan level mitigation to avoid a conclusion of no adverse effects on site integrity. The Department has concluded that plan level mitigation is required to avoid a conclusion of adverse effects for a number of sites, and has made the NSTA aware of this conclusion, and has also engaged more widely with industry to raise awareness. The Department considers that there are adequate processes in place both at the plan level, and through those consenting processes following licensing, to ensure that mitigation is applied” .

202. OPRED responded in detail to the JNCC’s concerns about the potential for licensing to lead to activity in MPAs in respect of which conservation features were already judged to be in an unfavourable condition, including benthic habitats. OPRED stated that the draft AAs had been reviewed. Plan level mitigation had now been specified for benthic MPAs with such features. Removable rig stabilisation or anti-scour materials were to be used. Where rock for technical or safety reasons, it must be removed as far as practicable at the end of the drilling campaign. During the Initial Term, rig stabilisation would be deployed only as part of a drilling campaign and would be present for a temporary period only.

203. Table 5.1 in the final AAs considers the potential for physical disturbance and drilling effects from Initial Stage activities to affect the conservation objectives of each of the relevant MPAs, including the potential for “intra-plan” cumulative effects arising between licensed activities. In paragraph 103 above, I have referred to the overall conclusions reached on the basis of that assessment in paragraph 5.2.2 of the AA reports. Section 5.4.1 of the AA reports extends that assessment to address potential effects from physical disturbance and drilling effects in combination with other plans and projects, based on the survey of such plans and projects in table 5.3 and as shown in the locations on the accompanying figures. The conclusion drawn throughout is that any disturbance generated by exploration and appraisal drilling will be minor and short-term in duration; and that as such, it will not result in adverse in-combination effects with any other plans or projects, when considered in the context of the operation of the mandatory regulatory controls in section 2 .3.1 and the mitigation which is discussed in section 5.2 and Table 5.1.

204. There is detailed consideration in section 5.4.3 of the AAs of the potential for adverse underwater effects from Initial Term seismic surveys and noise generating activities in combination with other plans and projects. At pages 97-98 of the Southern North Sea and Mid North Sea High AA report, in the light of the particular concerns raised by the JNCC, there is detailed consideration of the potential for such effects on harbour porpoise.

205. In paragraphs 104 to 115 of her witness statement, Ms Charlton refers to the approach taken in Table 5.3 and section 5.4 of the final AA reports to the assessment of in-combination effects. She says that this assessment was founded on the same assumptions set out in section 2 .2.2 of the AA reports as to the nature and scale of Initial Stage activities that could follow the grant of Licences, including the need for further assessment under regulation 5 of the 2001 Regulations in the context of the consents for activities required both pursuant to the 2001 Regulations and the Model Clauses.

206. In relation to the robustness of the assumption that there is scope to ensure that potential effects are managed through collaboration and engagement between sectors, Ms Charlton says that there are a number of established mechanisms used at project level to understand the potential for interaction between activities and then management, which includes fisheries liaison, vessel traffic surveys, consultation with the Ministry of Defence and holders of other Crown Estate offshore interests. She says that at the project level, assessment under regulation 5 of the 2001 Regulations would need to consider the specific location, nature and timing of interactions between projects which could give rise to in-combination effects, irrespective of engagement between parties. Consent would not be given if it was concluded that adverse effects could not be avoided.

207. Ms Charlton refers to the assessment of potential in-combination underwater noise effects in section 5.4.3 of the AAs. In relation to harbour porpoise, she says – “The Southern North Sea SAC is classified for the harbour porpoise, and SNCB guidance on assessing the significance of noise disturbance against conservation objectives of harbour porpoise SACs presents thresholds for daily and seasonal disturbance as a proportion of the site area from which harbour porpoise may be excluded. This gives a mechanism for assessing the potential in-combination effects of low frequency impulsive noise on the Southern North Sea SAC across multiple sources and industries. It was noted in the AAs that surveys related to oil and gas activities are captured in the UK Energy Portal and Southern North Sea activity tracker (see Section 5.4.3 of SNS & MNHS AA), and the latter assists in the consideration and management of project level in-combination effects in relation to the site daily and seasonal thresholds. At the licensing stage, the timing and specific location and scale of any new seismic survey is not known, along with the specific timing or other activities that could act in-combination at the time, and therefore it is not possible to consider such activity against the thresholds” .

208. Concluding her evidence in response to this ground of challenge, Ms Charlton again emphasises that OPRED “does not lose the ability to consider all potential impacts holistically, taking account of all the relevant Blocks” , when further appropriate assessment is carried out in the context of applications for consent for oil and gas activities, including development activities in relation to SSTs. In-combination effects are required to be taken into account in carrying out appropriate assessment at the project stage, by virtue of regulation 5 of the 2001 Regulations. The Claimant’s submissions in summary

209. Ms Leventhal KC submitted that the JNCC’s advice, speaking as the statutory nature conservation body and following their detailed consideration of the draft AAs, was that the appropriate assessments did not support a conclusion of no adverse effect on site integrity (AEOSI). It was submitted that OPRED had not properly addressed the issues raised by the JNCC, and supported by the Claimant, in the final AAs. That was particularly the case in relation to the assessments in the AAs of in-combination and cumulative effects.

210. In support of both grounds 4 and 5, Ms Leventhal relied on the approach stated by the CJEU in Holohan at [48]-[52]. In those paragraphs of its judgment, the CJEU addressed the situation in which the competent authority undertaking appropriate assessment of a plan or project rejects the findings in a scientific expert opinion recommending that further information should be obtained. The CJEU referred at [49] to the principle that the assessment under article 6(3) of the Habitats Directive must not have lacunae and must contain complete, precise and definitive findings and conclusions capable of dispelling all reasonable scientific doubt as to the effects of the proposed works on the protected area concerned. At [51]-[52], the CJEU said – “51. …that requirement entails that the competent authority should be in a position to state to the requisite legal standard the reasons why it was able, prior to the granting of development consent, to achieve certainty, notwithstanding the opinion of its inspector asking that it obtain additional information, that there is no reasonable scientific doubt with respect to the environmental impact of the work envisaged on the site concerned.

52. … article 6(3) of the Habitats Directive must be interpreted as meaning that where the competent authority rejects the findings in a scientific expert opinion recommending that additional information be obtained, the “appropriate assessment” must include an explicit and detailed statement of reasons, capable of dispelling all reasonable scientific doubt concerning the effects of the work envisaged on the site concerned”.

211. It was submitted that the JNCC, as the statutory nature conservation body, had raised serious concerns as to the reliability of the assumptions upon which the AAs were based. The JNCC had not been satisfied that the approach to assessment was precautionary. The JNCC had advised that further work was needed to overcome uncertainty in the assessment presented in the draft AAs. However, although some matters had been the subject of further detail and consideration in the final AA reports, the fundamental error of approach which had been a main concern of the JNCC remained unresolved. The AAs were still too narrow in scope, founded as they were on questionable and uncertain assumptions and leaving obvious scientific doubt as to the potential for adverse effects to site integrity. Discussion

212. Ms Grogan submitted that the answer to the Claimant’s contentions under this ground of challenge is to be found in the principle stated by the CJEU in Wallonie at [143]. That principle had been both endorsed by the Court of Appeal in Forest of Dean at [17] and applied in Sizewell at [60]-[62]. See the discussion at paragraphs 61 above.

213. The evidence before the court clearly establishes that the principal effect of the grant of a Licence is to give the exclusive right to the licensee to carry out oil and gas activities in accordance with its terms and conditions. The Work Programme specified in the Licences is based upon the works proposed by licensees in their applications. The specified works are limited to those works (if any) proposed during the Initial Phase of the Licence. No works are specified for the Second or Third Phases of the Licence. Notwithstanding the provisions of the Licence, regulation 4 of the 2001 Regulations prohibits a licensee from carrying out certain specified activities without the prior written consent of the NSTA. Those specified activities include (1) prospecting or carrying out geological surveys; (2) exploratory drilling; and (3) testing equipment to be used for the purposes of geological surveys and exploratory drilling. Model Clause 17 effectively prohibits the licensee from carrying out permanent works, or works other than of an exploratory nature, without having first sought and obtained the prior consent of the NSTA.

214. By virtue of regulation 5(A1) of the 2001 Regulations, the grant of any such prior consent is prohibited unless the First Defendant has agreed to its grant. In order to be in a position lawfully to agree to its grant, regulation 5(1) obliges the First Defendant to have considered whether anything that might be done or any activity which might be carried on pursuant to the consent applied for “is likely to have a significant effect on a relevant site, whether individually or in combination with any other plan or project, including but not limited to any other relevant project” . For that purpose, the First Defendant must first have consulted with the appropriate nature conservation body and taken into proper consideration the representations of that body. The First Defendant may also take the opinion of the general public if he considers that to be an appropriate step.

215. In my view, those statutory arrangements are correctly to be characterised as a multi-stage consent procedure. The legal and practical reality is that, notwithstanding the exclusive rights conferred by the grant of a Licence, a licensee will need to apply for and obtain consent from the NSTA for activities in the licensed work programme that fall within regulation 4 of the 2001 Regulations. Looking further ahead, the licensee will require further consents from the NSTA both under the terms of the Licence and under regulatory controls for development and production activities, should the licensee proceed to Stages 2 and 3 of the Licence.

216. It was nevertheless necessary for the First Defendant to fulfil his obligation under regulation 5(1) of the 2001 Regulations in order to determine whether he was willing to agree to the grant of Licences by the NSTA.

217. It is self-evident that in order meaningfully to consider whether anything that might be done or anything that might be carried out pursuant to a Licence is likely to have an effect on an MPA “in combination with any other plan or project” , the assessor needs information about the location, timing, duration and extent of those activities relative to the activities of any other plan or project which is brought into account. The quantity and quality of that information will vary from case to case. Even if the assessor lacks specific information or sufficiently detailed information about those matters, it may nevertheless be possible to adopt meaningful assumptions from which reliable scientific judgments may be drawn. However, the question whether the information about proposed activities or works available to the assessor is sufficient in itself to reach reliable scientific findings and conclusions, or to formulate assumptions upon which such findings and conclusions may properly be based, is for the assessor to judge. If having considered those questions, the assessor concludes that there is insufficient information even to proceed on the basis of assumptions, the assessor may well conclude that it is not yet possible to make a meaningful assessment of the likely effects of the effects of the activities and works which may be carried out pursuant to the Licence, in combination with other plans or projects.

218. How is the assessor to resolve that difficulty whilst remaining true to the precautionary basis of assessment which is required under article 6(3) of the Habitats Directive and, in this statutory context, regulation 5(4) of the 2001 Regulations? At least in the context of a multi-stage consent procedure, the answer to that question is to be found in the approach stated by the Advocate General at [49] in EC v UK to which Sales LJ referred at [17] in Forest of Dean . It is a proper approach, consistent with the precautionary basis of assessment, for adverse effects on MPAs to be assessed at every relevant stage of the procedure to the extent possible on the basis of the precision of the plan; provided that the assessment is updated with increasing specificity in subsequent stages of the procedure. As Sales LJ put it, that approach ensures that the objective of safeguarding protected sites is met – “while at the same time avoiding the imposition of excessive and disproportionate burdens on planning authorities, landowners and developers in relation to having to show that a first project in a series (which is innocuous in itself) could never have "in combination" effects with later projects in the series, about which they may not have any or any detailed information and which may never in fact be granted permission to take place” .

219. Of course, it remains necessary for the assessor properly to consider and conclude that the first project in the series is indeed innocuous in itself, applying a proper precautionary approach. Where, however, the assessor both reaches that conclusion and forms the reasonable and proper judgment that, for the reasons ventilated by Sales LJ, a meaningful assessment of in-combination effects may not yet be made, the existence of that uncertainty is not in itself determinative of the outcome of appropriate assessment. It is open to the assessor properly to conclude that there is no adverse effect on site integrity, notwithstanding the lack of certainty over in-combination effects, provided that that residual lack of certainty is able to be resolved within the framework of the consent procedure without exposing protected sites to adverse effects.

220. As is made clear from the discussion in section 2 .2.2 of the AA reports and confirmed in OPRED’s response to the JNCC’s representations, that was the approach to assessment followed by OPRED and the First Defendant in this case. In my judgment, it was an approach properly open to them on the basis of the consent procedure under the 2001 Regulations and the Model Conditions, which applies to oil and gas activities and works carried on by licensees following the grant of Licences. It was an approach which was reasonably open to OPRED and the First Defendant to follow, consistently with the precautionary basis of assessment, on the basis of the information available to them upon which to assess the likely effects of the Licences on MPAs in combination with other plans and programmes. It was, moreover, a judgment reasonably open to them that the assumptions stated in section 2 .2.2, as the basis for assessing the effects of works at the Initial Stage, were “worst-case”. The judgment that beyond those assumptions, there was insufficient information to undertake a meaningful assessment now of the likely in-combination effects, was also reasonable.

221. The detailed assessments reported in chapter 5 of the AAs are lawfully and reasonably founded upon the application of the approach to appropriate assessment in the context of a multi-stage consent procedure approved in Waddenzee , Forest of Dean and Sizewell . That approach is highlighted through the discussion in chapter 5, including the assessment of in-combination effects in section 5.4 of the AA reports.

222. In setting out the background to this ground of challenge, I have referred in some detail to OPRED’s response of 3 May 2024 to the JNCC’s stated serious concerns about the approach to assessment of in-combination effects in the draft AAs. It was the First Defendant’s duty to have regard to the JNCC’s advice in their consultation response. Section 2 .2.2 of the AA reports and OPRED’s response to the JNCC addressed those concerns and provide ample evidence of OPRED’s and the First Defendant’s consideration of them. It is clear that at least at the time of preparing their advice in response to the draft AAs, the JNCC firmly disagreed with the approach taken by OPRED. The JNCC did so on the basis that it resulted in uncertainty; and that it did not provide the foundation for a proper precautionary assessment of the effects of licensed activities which was free from scientific doubt.

223. For the reasons I have given, OPRED and the First Defendant were nevertheless entitled lawfully and reasonably to maintain their approach to assessment as stated in section 2 .2.2 of the AAs. I see no good reason to doubt that proper consideration was given to the JNCC’s concerns. Nevertheless, the view was taken on the question of approach to assessment, that the approach set out in section 2 .2.2 was a proper and reasonable basis for appropriate assessment in the circumstances of these AAs.

224. Given that the approach taken by OPRED and the First Defendant to the assessment of in-combination effects was both lawful and reasonable, the more detailed complaints about the in-combination assessment itself are without merit. I accept Ms Leventhal’s submission that temporary effects such as exploratory drilling or seismic surveys are capable of adversely affecting the conservation status of a protected site where, for example, a part of the protected habitat is fundamentally compromised by those temporary activities: see Sweetman at AG [59]-[61]. In the present case, the assessment of both intra-project cumulative effects in Table 5.2 and of in-combination effects with other plans and projects in section 5.4 of the AAs explains why, in the judgment of OPRED and the First Defendant, exploratory activities carried out pursuant to work programmes in the Licences will not have such effects. I am unable to see any justification for questioning the rationality of those aspects of the assessments. Likewise, the actual assessments in chapter 5 of the AA reports of the potential impacts of works and activities carried out during the Initial Stage of Licences on marine mammals respond to the concerns raised by the JNCC and the Claimant. I am unable to conclude that those assessments are other than a reasonable response to the information placed before OPRED and the First Defendant. Conclusion

225. Stepping back from the arguments on this ground, there is in fact broad agreement between both the Claimant, the JNCC and OPRED that uncertainties remain as the potential cumulative and in-combination effects on MPAs of works and activities carried on following the grant of Licences. That such uncertainties remain is the inevitable consequence of the approach to assessment adopted by OPRED and the First Defendant in section 2 .2.2 of the AAs; and explained by OPRED in the response to the JNCC’s advice given in the letter of 3 May 2024. Where the parties differ is essentially on what should follow now from the fact of those remaining uncertainties. As Ms Leventhal submitted, the JNCC’s advice was that AEOSI could not be ruled out, particularly in light of their serious concerns over the limitations of the assessment of in-combination effects. The Claimant reached the same judgment. Had the AAs been the sole opportunity to assess the likely effects on the integrity of MPAs of the works and activities that might follow the grant of the Licences through their various stages from exploration through to production, the JNCC’s and the Claimant’s judgment would have been unassailable, applying the precautionary approach to assessment. The AAs, however, were not the sole opportunity to do so. On the contrary, under the statutory and regulatory framework which governs how licensees must now proceed, the First Defendant is able lawfully and reasonably to follow the approach to assessment approved by both the CJEU and the English courts to which I have referred in paragraphs 54 to 60 above. Ground 4 must be rejected. Ground 5 – reasons Issue

226. The issue raised under this ground is twofold. Firstly, whether the First Defendant has given cogent reasons (whether in the AAs or the letters of 3 May 2024 to the JNCC and the Claimant responding to consultation responses) for departing from the JNCC's advice in relation to: (i) climate change; and (ii) in-combination effects. Secondly, whether the First Defendant was required to provide those reasons within the body of the AA reports themselves. Discussion and conclusions

227. There was some dispute between the parties as to whether the requirement for a competent authority to give “cogent reasons” for disagreeing with the advice of an expert national agency such as the JNCC (see Wyatt at [9(4)]) denotes a higher standard for judging the legal adequacy of such reasons than was stated by the House of Lords in South Bucks District Council (No. 2) v Porter [2004] 1 WLR 257 at [36].

228. I do not find it necessary to resolve that dispute, since I am quite satisfied that the reasons given both in the AA reports themselves and in OPRED’s letter of 3 May 2024 are sufficient to amount to a cogent explanation for OPRED’s and the First Defendant’s disagreement with the JNCC’s advice on both consideration of the impact of climate change and the approach to assessment of in-combination effects.

229. The extent of OPRED’s and the First Defendant’s disagreement with the JNCC on the impact of climate change was in fact limited. The explanation of site integrity in section 3 .2 of the draft AAs was extended following the JNCC’s advice to include a discussion of the impact of climate change on the marine environment, its flora and fauna. That discussion was informed by the JNCC’s advice and the scientific papers to which the JNCC had drawn OPRED’s attention. There was general acceptance that climate change is affecting the qualifying features of MPAs. At most, in section 3 .2 of the AA reports, OPRED and the First Defendant were more cautious than the JNCC in the ability to draw more than general conclusions on longer term changes in protected habitat and other qualifying features of MPAs from the impact of climate change. There is no force in the Claimant’s argument on this point.

230. In the light of my analysis under ground 4 of OPRED’s and the First Defendant’s justification for maintaining their approach to assessment of in-combination effects in the AA reports, I cannot accept that the First Defendant has failed to provide a cogent explanation for declining to accept the JNCC’s advice on that issue. As I have found, the approach to assessment explained adopted in section 2 .2.2 of the AAs, and carried through the detail of the appropriate assessments in chapter 5 of the AA reports, is justified both as a matter of legal principle and in the circumstances of this case. No further explanation was needed for the decision to maintain that approach.

231. It follows that the second issue under this ground does not really arise for decision. Nevertheless, I do not necessarily accept the Claimant’s submission that the competent authority’s explanation for declining to accept the expert national agency’s advice must be found within the four corners of the published appropriate assessment report itself. In my view, the CJEU’s reasoning in Holohan does not support that contention. The CJEU said that the competent authority “should be in a position to state to the requisite legal standard the reasons why” it was able to conclude that there was no reasonable scientific doubt, notwithstanding the advice that further information was needed. At [52], the CJEU said that the appropriate assessment must include an explicit and detailed statement of reasons, capable of dispelling all reasonable scientific doubt concerning the effects of the work envisaged on the site concerned. It does not follow that the competent authority may not draw on direct communications with the expert national agency if called upon to justify its position on points of disagreement. That is, in my view, permissible in the context of a challenge founded upon the advice given by that expert national agency, during preparation of the appropriate assessment. It is important to have in mind that appropriate assessment is in part an iterative process of scientific inquiry and engagement.

232. In any event, for the reasons I have given in considering grounds 2 and 4, I do not accept that the AA reports themselves fail cogently to explain why OPRED and the First Defendant followed the approach that they did on climate change and the assessment of in-combination effects. Ground 5 is rejected. Ground 6 – Straight to Second Term Licences

233. This proposed ground of challenge is founded upon an options paper to which Ms Charlton refers in paragraph 42 of her witness statement – “In both the screening and AAs, initial term activities were considered to be capable of assessment, however, Second term (i.e. development) activities were not considered… This is consistent with the Secretary of State's practice in HRAs for previous licensing rounds. It is also the result of careful consideration on behalf of the Secretary of State as to the best way to approach straight to Second Term. An options paper was produced to assist with this and a judgement reached that it was better to assess only initial term work programme activities with a commitment to undertake HRA when sufficient details of a proposed development are known: see internal note on options to deal with straight to Second Term Blocks in the draft HRAs which was finally finalised on 20th June 2023” .

234. The options paper briefly discussed five potential approaches to assessing SST Licence applications as part of the 33 rd Round. By way of context, the options papers referred to the approach taken in relation to SST applications in previous licensing rounds – “… The assessments only considered the exploration/appraisal activities, with potential development considerations deferred to a later stage, see e.g. this quote from the 32nd round SNN AA ‘The nature, extent and timescale of development, if any, which may ultimately result from the licensing of 32nd Round Blocks is uncertain, and therefore it is regarded that at this stage a meaningful assessment of development level activity (e.g. pipelay, placement of jackets, subsea templates or floating installations) cannot be made. Moreover, once project plans are in place, subsequent permitting processes relating to exploration, development and decommissioning, would require assessment including where appropriate an HRA, allowing the opportunity for further mitigation measures to be identified as necessary, and for permits to potentially be refused. In this way the opinion of the Advocate General in ECJ case C-6/04 , on the effects on Natura sites, “must be assessed at every relevant stage of the procedure to the extent possible on the basis of the precision of the plan. This assessment is to be updated with increasing specificity in subsequent stages of the procedure” is addressed. Therefore, only activities as part of the work programmes associated with the Initial Term and its associated Phases A-C are considered in this AA (see Table 2.2). A further plan level HRA consideration is not made when the NSTA agrees that initial term licences can move to the 2nd term (as this would occur over a period of several years). However, where appropriate, HRA would be undertaken as part of the consenting process for particular initial and 2 nd term licence activities, and when an FDP and Environmental Statement is submitted in support of a development”.

235. The quoted opinion of the Advocate General in ECJ case C-6/04 is a reference to Advocate General Kokott’s opinion at [49] in EC v UK , to which I have referred in paragraph 58 above.

236. The options paper set out the following five options for assessing SST licence applications under the 33 rd Round – (1) Follow past practice of assessing only initial term work programme activities, with a commitment to undertake HRA when sufficient details of a proposed development are known (i.e. based on the Final Development Programme and Environmental Statement). (2) Expand the existing draft regional AAs to include assessment of work programmes in the SST licence applications, including the competitive bids for individual or groups of blocks. (3) Expand the existing draft regional AA to include assessment of work programmes in the SST licence applications, once the NSTA have completed their evaluations and decided on which applicants to offer Licences to (i.e. not having multiple development options within a block). (4) Undertake a two AA process, the first covering the Initial Term licences applied for, and the second covering the SST licence applications. (5) Undertake a two stage AA process, the first covering the Initial Term licences applied for, and the second covering the SST licence applications once the NSTA have completed their evaluations and decided on which applicants to offer Licences to.

237. The brief discussion of these five options included the following – “Option 1 follows the established process based on which the AAs have been drafted, and conclusions of no adverse effects drawn. Option 2 the assessment of the SST licences section would be conjectural and uncertain as there are different development scenarios in the competitive bids, and the effects on site condition status of the site management actions already taken unclear. For those blocks wholly within boundaries of sites deemed to be in unfavourable status there is a risk that a conclusion of adverse effects would be reached. This would present a Catch 22, as agreement to the NSTA granting the licence(s) could not be given. The assessment could be considered irrational as it was based on limited and uncertain information, not necessarily relevant to future proposals. Option 3…the outcomes and caveats are similar to Option 2. Option 4 outcomes and caveats are similar to option 2…Option 5 outcomes and caveats are considered similar to options 2 and 4”.

238. As is clear from the analysis in section 2 .2.2 of the AA reports which I have set out in paragraph 89 of this judgment, the decision was taken to proceed with the approach summarised under option 1. Confirmation of that approach was also given in OPRED’s letter of 3 May 2024 to the JNCC, to which I have referred in paragraph 195 above.

239. For the reasons I have given in addressing the Claimant’s contentions under ground 4 of this claim, the options paper was correct in deriving support for the approach summarised under option 1 from the reasoning of Advocate General Kokott in EC v UK . I draw attention to the evidence of Mr Froud in relation to Perenco’s Licence P2673, an SST Licence, which I have set out in paragraph 80(4) above. That evidence illustrates the high degree of uncertainty as to the nature and scale of development which may be associated with an SST Licence, a key factor in the justification for the approach to assessment given in section 2 .2.2 of the AAs.

240. In short, in deciding to proceed with the approach summarised under option 1, as had been done in previous licensing rounds, the First Defendant acted in accordance with the principle established in both the European and English case law which founded upon the Advocate General’s opinion in EC v UK .

241. Nevertheless, the Claimant seeks permission to argue that the brief discussion of the various options in the options paper discloses the fact that First Defendant took account of an immaterial consideration, in that he selected option 1 with a view to avoiding a finding under regulation 5(3) of the 2001 Regulations that the grant of SST Licences would have an adverse effect on the integrity of MPAs. Moreover, it was submitted, the First Defendant evidently misunderstood the legal consequences of such a finding. That consequence was not that applications for SST Licences must necessarily be refused. The true legal consequence was that regulation 6 of the 2001 Regulations was engaged, which required the First Defendant to consider whether the Licences should be granted for imperative reasons of overriding public interest (IROPI).

242. In my view, neither of those contentions is justified. The options paper is a Departmental discussion document. It should be read fairly, with that context well in mind. I agree with Ms Grogan’s submission that in speaking of a risk that a conclusion of adverse effects would be reached, the author is to be taken to refer to the desirability of avoiding an unwarranted finding of adverse effects, which is otherwise reached simply because of the absence of a meaningful basis for appropriate assessment at this stage in the multi stage consenting process. In other words, the options paper is properly and fairly to be taken to be echoing the reasoning of Sales LJ at [17] in Forest of Dean . The Claimant’s argument that the author of the options paper did not understand that the consequence of a finding of adverse effects on site integrity was to engage regulation 6 of the 2001 Regulations is, in my judgment, simply unrealistic. I suspect that the point being made in the options paper was that the question whether oil and gas activities under a proposed SST Licence should be carried out for imperative reasons of overriding public interest was a matter for the First Defendant to determine in accordance with the procedure laid down by regulation 6 of the 2011 Regulations, rather than for the NSTA.

243. I grant permission to the Claimant to amend its claim and pursue ground 6, but for the reasons I have given, that ground must be rejected. Overall conclusion

244. None of the grounds of challenge are upheld and the claim is accordingly dismissed.

245. In conclusion, however, I would emphasise the corollary of the First Defendant’s principal argument in defence of this claim. As the Claimant rightly points out, the First Defendant has founded his defence on the proposition that appropriate assessment of the Licences is but the first stage in a multi stage consenting process which governs oil and gas activities carried out pursuant to the exclusive rights conferred by the grant of Licences. Ms Tilley has produced some statistics which suggest that following previous licensing rounds, further appropriate assessment in the context of subsequent applications for consent has been the exception rather than the rule. Ms Charlton acknowledges that it has been relatively rare for such applications to be refused on environmental grounds.

246. The fact that subsequent applications for consent for particular activities or projects do not often result in findings of significant adverse effects on nature conservation interests is of course consistent with the assessment process working effectively. It is in the interests of well motivated and well advised developers to design their schemes and plan their works so as to avoid adverse impacts on the natural environment; or to provide effective mitigation against those impacts that cannot be avoided. A central purpose of article 6 of the Habitats Directive and regulation 5 of the 2001 Regulations is to encourage and incentivise planners and developers to design and plan their schemes and works in ways which avoid the need for further active regulatory intervention at the consenting stage.

247. Nevertheless, the principle relied upon by the First Defendant was stated in clear terms by Advocate General Kokott in EC v UK . Adverse effects on areas of conservation must be assessed at every relevant stage of the procedure to the extent possible on the basis of the precision of the plan. The assessment is to be updated with increasing specificity in subsequent stages of the procedure. In effect, that is the approach to which the First Defendant has committed himself in section 2 .2.2 of the AA reports, in OPRED’s response to the JNCC, and in his evidence and submissions to this court. It is an approach which is of particular importance in the assessment of in-combination effects, given the overall scale of activity within the marine environment of the UKCS as evidenced by chapter 5 of the AA reports and the advice of the JNCC; and the dynamic character of that environment, potentially rendered increasingly so due to the impact of climate change. I have no doubt that the Claimant will be astute in holding the First Defendant to that commitment, as it has good reason to, in the light of the response which the First Defendant has made to this claim.

248. I will hear counsel on any consequential matters arising from my decision.