Bennett v Environment Agency - Nuclear Water Abstraction Judicial Review

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  Bennett (on behalf of Lakes Against the Nuclear Dump), R (On the Application Of) v Environment Agency [2026] EWHC 778 (Admin) (31 March 2026)

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[2026] EWHC 778 (Admin) | | |
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| | | Neutral Citation Number: [2026] EWHC 778 (Admin) |
| | | Case No: AC-2025-MAN-000393 |
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT

| | | Civil Justice Centre
1 Bridge Street West
Manchester M60 9DJ |
| | | 31/03/2026 |
B e f o r e :

KAREN RIDGE SITTING AS A DEPUTY HIGH COURT JUDGE

Between:
| | THE KING
On the application of MARIANNE BENNETT (on behalf of LAKES AGAINST THE NUCLEAR DUMP) | Claimant |
| | - and ? | |
| | ENVIRONMENT AGENCY | Defendant |
| | -and- | |
| | SELLAFIELD LIMITED | Interested Party |

**Jake Thorold (instructed by Leigh Day) for the Claimant
Matthew Fraser (instructed by Environment Agency Legal Services) for the Defendant
Ruth Keating (instructed by Sellafield Limited) for the Interested Party

Hearing date: 27 November 2025**

HTML VERSION OF APPROVED JUDGMENT ____________________

Crown Copyright ©

1. Deputy High Court Judge Karen Ridge:
3. This is the Claimant's renewed application for permission to commence judicial review proceedings in relation to the decision of the Environment Agency ("EA") to grant Sellafield Limited ("Sellafield") a transfer licence to abstract water from the Sellafield site. The abstraction licence was granted on 12 May 2025 from that date until 31 March 2032. The Claimant is an individual acting on behalf of Lakes Against the Nuclear Dump (LAND), a campaign group set up to oppose any detrimental impacts on the environment of nuclear energy activities. This claim is brought due to the concerns of LAND that the impacts of the water abstraction authorised by the EA under the abstraction licence have not been properly assessed as required by law.
5. Background
6. The Sellafield site is a nuclear site which is subject to regulation by the Office for Nuclear Regulation and the EA. Through the environmental permitting regime the EA regulates Sellafield's radioactive discharges to air and water, as well as solid radioactive waste disposals. As part of its wider remediation and clean-up operations, Sellafield has a longer term plan for the storage of waste via its "Box Encapsulation Plant Product Stores" (BEPPS) which are designed to provide safe and secure storage for intermediate level radioactive waste retrieved from legacy ponds and silos which hold waste dating back to the 1950s.
8. The BEPPS have been designed in phases. BEPPS 1 is already operational, with BEPPS 2 under construction. In July 2024 Sellafield applied to the EA for a licence to abstract water for the purpose of dewatering necessary to facilitate the construction of BEPPS 2. Essentially, Sellafield may need to remove water in locations where the excavations are below the water table. The water is then to be discharged via a private sewer, the Calder Interceptor Sewer, into the Irish Sea. The discharge point into the Irish Sea is already permitted by a separate Installation Permit (EPR/BM4317I/V016) and a Radioactive Substances Permit (EPR/KP3690SX).
10. The BEPPS scheme was granted full planning permission on 30 January 2024 subject to a condition which required the development to be carried out in accordance with an approved Construction Environmental Management Plan. The scheme further contains a condition to ensure that if contamination, not previously identified, is encountered during construction then development shall cease until a remediation strategy has been approved.
12. The application was for a full licence to abstract groundwater for a period of just over 7 years in the following maximum amounts; 40 cubic metres an hour; 960 cubic metres a day; and 350,400 cubic metres a year. The licence limits both groundwater and surface extraction necessary to dewater the excavation site. Sellafield point out that the abstraction licence was obtained as a risk mitigation measure to cater for a scenario in which excavations encountered groundwater which needed to be removed.
14. The River Calder lies within the vicinity of the Sellafield site, the nearest point of the river being some 409 metres away from the nearest proposed point of water abstraction. The closest point of the River Ehen is around 788 metres from the nearest point of abstraction. Both rivers converge before flowing into the Irish Sea. The River Ehen Special Area of Conservation (SAC) is located some 10 kilometres upstream of the Sellafield site. A population of Natterjack Toads, a European protected species under the Habitats Regulations, are present within the vicinity of the Sellafield site.
16. These Proceedings
17. The claim was issued on 22 August 2025. The Claimant seeks to challenge the decision to grant the abstraction licence on the basis that it was not taken in accordance with the legal obligations placed on the EA under the common law, the Conservation of Habitats and Species Regulations 2017 ("the Habitats Regulations"), the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 ("the WFD Regulations"), and the Water Resources Act 1991 ("WRA 1991").
19. Permission was refused on the 17 October 2025 by Andrew Kinnier KC, sitting as a Deputy Judge of the High Court. The Claimant renewed her application and all parties were represented at the oral renewal hearing. On behalf of the Claimant at the oral hearing, Mr Thorold confirmed that ground 5 is not pursued.
21. Two preliminary issues were initially taken by the Defendant in relation to procedural matters. At the renewal hearing the Defendant indicated that it no longer pursued a point in relation to service of the sealed claim form but it did pursue its challenge in relation to the promptness with which the proceedings were brought. The Interested Party has remained neutral on the points. I therefore grant the extension of time for service of the sealed claim in the terms of the application made.
23. Promptness
24. CPR 54.5(1) provides that the claim must be filed promptly and in any event not later than 3 months after the grounds to make the claim first arose. The abstraction licence was granted on 12 May 2025. The claim was issued on 22 August 2025. The Claimant applies for an extension of time insofar as one might be required.
26. The EA communicated its decision to issue the licence to the Claimant on 22 May 2025 when it sent an email headed "Licence Issued- Consultee Notification". That email attaches a document with a response to the specific comments previously made by the LAND group in its consultation submission. There is no copy of the licence or details of the conditions attached. The actual licence, including the reasons, was not provided to the Claimant until 11 August 2025. It had not been made available on a public register.
28. The Defendant criticises the Claimant for not taking steps after notification on the 22 May 2025 for a further two months. The criticism is that it was only on the 21 July 2025 that the Claimant took steps to request further information and thereby failed to act promptly as required by the rules.
30. The Claimant says that LAND was only informed that the abstraction licence had actually been granted in a response to pre-action correspondence dated 11 August 2025. The Claimant submits that she was acting under an expectation that further information would be provided by the EA. Further she contends that she cannot be expected to challenge a decision until she became aware of it, so an extension to 22 August 2025 would be appropriate given that no prejudice has been identified by the EA or Sellafield.
32. The decision was made on 12 May 2025. Irrespective of the issues with regard to publication, the clock started running on that date since it was the date of the legally operative decision. That is in line with the dicta of Saini J. in the case of R (Hynot Ltd) v Secretary of State for Energy Security and Net Zero & Anr [2025] EWHC 2644 which also restated the established proposition that even where a claim is commenced within three months from the date of decision, it may be out of time if the Claimant did not bring proceedings promptly.
34. It is relevant to the Claimant's application that, despite the EA being aware of the Claimant's interest, the LAND group were not actually notified until 22 May 2025 of the decision to issue the licence. It is also relevant that the licence was not publicly available. The consultation page on the application page of the EA website directed anyone interested in the application to the public register but there was no record of the application on the public register. On the 21 July 2025 there is an email signed by Richard Outram (on behalf of Nuclear Free Local Authorities) and Marianne Birkby (on behalf of LAND) to the EA, noting that the EA had chosen to grant the licence with conditions but asking "what are the conditions". There is a second email directed to the EA dated 22 July 2025 when Ms Birkby, emails the EA to ask "has a final decision been made and if so where can I access it?". Those emails attest to the lack of information in the public domain regarding the licence.
36. The Claimant did not see a copy of the licence and its conditions until 11 August 2025. The notification of the 22 May 2025 was a summary of the response to the concerns of the Claimant. A copy of the licence with conditions was not provided and nor was it publicly available. Given the initial delay in informing the Claimant and the failure to provide the Claimant with a copy of the licence and conditions, in circumstances when the Claimant was relying on the application page of the EA website, it is not surprising that the Claimant and the LAND group had misunderstood the position. That explains the lack of urgency up until the 21 July 2025 when the group start asking questions as to what the position is. Thereafter the claim was issued on the 22 August 2025, some 11 days after receipt of the licence.
38. Mr Fraser for the EA submits that where a claim is issued outside the time limit there is automatically undue delay which, in the event that relief was granted, would cause prejudice to Sellafield given that the licence had been in effect for 3 months before the claim was launched. Sellafield has remained neutral on the question of promptness and does not advance any case claiming prejudice due to delay. That is not surprising given that, on its own case, the licence was sought as a risk mitigation measure and it may not even be necessary to utilise abstraction methods in the construction process. The Summary Grounds of Resistance confirm that the piling works in the operational development are now complete and they did not release any groundwater with only the tunnel works remaining. It is clear that any delay in issuing the claim has not caused any material delay to the construction activities currently being undertaken.
40. Having regard to all of the above matters, I am satisfied that the Claimant acted promptly in bringing a claim and that it is appropriate to extend time as requested.
42. Grounds 1 and 2
43. These two grounds concern an allegation that, in granting the abstraction licence, the EA has breached regulation 9(3) of the Habitats Regulations and has failed to reasonably inform itself about the potential impacts on the Natterjack Toad population, a relevant protected species, when making its assessment of the licence application.
45. Regulation 9(3) requires competent authorities, such as the EA, to "have regard to the requirements of the Directives so far as they may be affected" by the exercise of the functions which the EA is discharging. In this case the relevant direction is Article 12 which requires Member States to take requisite measures to establish a system or strict protection for animal species which includes Natterjack Toads. Article 12 of the Habitats Directive sets out various matters which Member States must prohibit, including the "deterioration or destruction of breeding sites or resting places". Those offences are reflected in domestic law by regulation 43 of the Habitats Regulations.
47. The application contained supporting information which confirmed that moderate risks were identified in the Phase 1 Preliminary Risk Assessment for controlled water but that, following site investigation, the risk has been reduced to less than moderate in the Phase 2 assessment. On 5 September 2024 the EA requested additional information regarding the potential hydrogeological impacts of the proposed abstraction, noting that dewatering applications are usually supported by some form of Hydrogeological Impact Assessment (HIA).
49. The EA screening tool noted that Natterjack Toads were located 0.18km SW. The groundwater and contaminated land consultee, Mr Gebbett, noted that the likely radius of impact of the dewatering operation " is usually very small (10s of metres) however to be very conservative I'd use a maximum of 250m".
51. The EA's fisheries and biodiversity (FBG) consultee confirmed that there was " a good natterjack toad population in the area?they breed in shallow ponds?if the radius of impact is as far as the newt ponds and likely to affect surface water features, there would be concern ". She further noted the recording of a dead Natterjack Toad 200m to the east of the dewatering boreholes which may be indicative of terrestrial habitat but that it was a dead toad and if there was no surface water there, it would not be an issue.
53. Mr Gebbett was asked to comment on the FBG consultee response and asked about the effects at four locations. He replied that " I think it is unlikely. The radius of impact for dewatering is usually very small ? likely 10s of metres at most, and so unlikely to extend to these features."
55. The regulation 9(3) duty is a duty to " have regard to " the requirements of the Directives. That is not to impose upon the EA the requirement to undertake the Natural England assessment necessary under the Habitats Directive when it determines whether there would be a breach of article 12 and if so, whether a licence should be granted. The relevant duty for EA in these circumstances has been confirmed in R (Prideaux) v Buckinghamshire CC [2013] Env LR 13, by Lindblom J (as he was), applying the well-established principles set out by the Supreme Court in R (Morge) v Hampshire CC [2011] 1 WLR 269.
57. The Claimant seeks to rely on Harris v Environment Agency [2022] PTSR 1751 which dealt with reviews of abstraction licences in the context of protected habitats and at paragraphs 49 and 50 the Judge said:
59. "49 Thus, where it appears that there is a risk of deterioration of a protected habitat, article 6(2) of the Habitats Directive requires that "appropriate steps" are taken to avoid that deterioration: Gr?ne Liga Sachsen eV v Freistaat Sachsen (Case C-399/14) [2016] PTSR 1240, paras 41?44.
60. 50 This means that where it becomes apparent that there may be a risk to a protected habitat or species as a result of the licensed abstraction of water, article 6(2) imposes an obligation to review the applicable licences: Gr?ne Liga, para 44. The review must be sufficiently robust to guarantee that the abstraction of water will not cause significant damage to ecosystems that are protected under the Habitats Directive: Gr?ne Liga, para 53."
61. Mr Thorold expands upon this by submitting that the corollary of the above is that, when considering whether to grant an abstraction licence, it follows that the EA must assess whether there will be any detrimental impacts upon a protected species in a "sufficiently robust manner".
63. However, the Harris case concerned protected European Sites, including Special Areas of Conservation (SACs), comprising 28 sites of special scientific interest. In that case there had been a series of investigations and reviews into the effects of abstraction licences upon the SAC and previous reports had opined that it was not possible to rule out abstraction as a cause for the adverse effects which had already occurred and that modelling had showed that there are risks to other sites in the SAC which had not been included in the review of licences.
65. In Harris there was an existing identified risk of deterioration of a protected habitat and it was in those circumstances that the Judge opined that the review of the already granted licence must be sufficiently robust. In any event, the SAC in the present case is not designated for Natterjack Toads, instead is dedicated for Freshwater Pearl Mussel and Atlantic Salmon. The Harris judgment does not materially assist in terms of the exercise to be undertaken in relation to a protected species.
67. Moreover, the EA's internal guidance adopts and applies the Morge approach in relation to European Protected Species (EPS). The internal guidance advises decision makers to seek advice from the EA's internal consultees on the FBG team and in the case of EPSs it advises that a water resources licence cannot be withheld unless the applicant is planning to do something which would clearly result in them not being granted a wildlife licence by Natural England.
69. I accept Mr Fraser's point on behalf of the EA that the report section entitled Screening Area was an initial high level screening exercise by the decision maker which picked up the Natterjack Toad site at 0.18km SW. That was a high level screening tool used to identify potential receptors in broad terms. In terms of internal consultation, Mr Gebbett clearly applied the precautionary principle when he advised that the radius of influence for operations like that proposed was usually very small (10s of metres) but that a "very conservative" maximum radius of 250metres could be used. The decision maker obtained the FBG consultee comments which confirmed the presence of a Natterjack Toad reserve circa 600 metres south west of the proposed abstraction and a record of a single dead toad around 200 metres to the east but if there was no surface water there, it was not an issue.
71. The matter was then referred back to Mr Gebbett who was informed of the comments from the FBG consultee. He opined that dewatering impacts would be unlikely and reiterated that the radius of influence is very small, "likely 10s of metres at most, and so unlikely to extend to these features." Mr Gebbett was fully aware of the FBG comments and he concluded that impacts were unlikely. The application of the 250 metre precautionary radius of influence was initially set by Mr Gebbett when he explained that it was very conservative. His later conclusions are based on his expert assessment of the evidence on Natterjack Toads and his expert analysis as to the likelihood of any impacts. He did not need to explicitly resile from the 250 metres radius, that was a general parameter set on the basis of a precautionary principle on first consultation. When more particular information was provided he gave his conclusion, emphasising again that the likely radius of influence would be 10s of metres.
73. It is not arguable that Mr Gebbett, or the EA more generally, misunderstood the nature of the duty it faced. Mr Gebbett's language is couched in terms of "likely" or "unlikely" effects. As the competent authority the EA has expertise in these areas and should be accorded due deference in the absence of anything to indicate that the duty has been misunderstood or misapplied.
75. I further accept Ms Keating's proposition that the Claimant has failed to identify credible evidence which points to a real risk as opposed to a hypothetical risk as warned against by Sullivan LJ in R (Boggis) and another v Natural England [2010] PTSR 725:
77. "37 In my judgment a breach of article 6(3) of the Habitats Directive is not established merely because, sometime after the plan or project has been authorised, a third party alleges that there was a risk that it would have a significant effect on the site which should have been considered, and since that risk was not considered at all it cannot have been excluded on the basis of objective information that the plan or project will have significant effects on the site concerned . Whether a breach of article 6(3) is alleged in infraction proceedings before the ECJ by the European Commission (see Commission of the European Communities v Italian Republic (Case C-179/06)[2007] ECR I-8131,para39), or in domestic proceedings before the courts in member states, a claimant who alleges that there was a risk which should have been considered by the authorising authority so that it could decide whether that risk could be excluded on the basis of objective information , must produce credible evidence that there was a real, rather than a hypothetical, risk which should have been considered."
78. To return to the Harris case, I note that in Harris there was an apparent risk of deterioration which resulted in the requirement for a robust review.
80. It is therefore not arguable that the EA did not have regard to the Directive by considering whether the licence was likely to have an effect on a European Protected Species. The process of internal consultation in relation to this matter was clear, the population of Natterjack Toads was identified, the evidence of the single toad was notified and those matters were put before Mr Gebbett. His repeated comments that the radius of influence is in the 10s of metres, shines a light on the very conservative initial 250 metres and explains his conclusion that impacts were unlikely to extend to the identified features.
82. Mr Thorold points out that when the abstraction application was submitted there was no requirement for a HIA to be submitted and since then, the guidance has changed and a HIA is a mandatory requirement for all abstraction applications. There is no dispute that the application was submitted in accordance with the guidance at the time of application. Irrespective of later changes, the essential question in this case is whether or not the EA had sufficient information before it on granting the licence to enable it to be satisfied that it could discharge its duties appropriately. It is not arguable that the Defendant did not have sufficient information or should reasonably have requested further information.
84. Mr Thorold criticises the reasons given by EA for permitting the licence as overlooking the consultation response which stated that Natterjack Toads were to be found 180 metres south-west of the proposed site location. However, the reasons clearly rely on the radius of impact typically extending to 10s of metres at most for dewatering operations of this scale. The reasons fairly reflect the consultation responses and conclusions of the EA's own expert Mr Gebbett.
86. The Claimant accepts that a public authority's Tameside duty to take such steps to inform itself as are reasonable is only reviewable on Wednesbury reasonableness grounds. Even applying the modest arguability test, it is not arguable that the EA acted irrationally in failing to carry out further enquiries. Permission is refused for grounds 1 and 2.
88. Ground 3
89. This ground alleges that there has been a breach of regulation 63 of the Habitats Regulations. Regulation 63 required the EA to grant the licence only after it had ascertained that the abstraction process was not likely to adversely affect the integrity of a European Protected Site. It is contended that the EA made no assessment whatsoever as to whether there would be likely significant effects on the River Ehen SAC as a result of the proposed water abstraction. Section 38(3) requires the EA to have regard to all the relevant circumstances.
91. Mr Thorold points to the Supporting Information which assessed the significance of the risk from leaching and migration of volatile contaminants to be "less than moderate" at the Phase II Preliminary Risk Assessment. That document was prepared in relation to the planning permission for the operational development. Mr Thorold points out that there is a recognition that the groundwater flow was towards the River Ehen and that downstream impacts could have deleterious impacts on features for which the River Ehen SAC had been designated. Mr Thorold submits that this was sufficient to indicate that the very low threshold [1] for requiring an appropriate assessment had been passed.
93. The Claimant's concern with potential impacts downstream of the abstraction on the River Ehen SAC is because the migratory route of the Atlantic Salmon (a key feature leading to designation) is along the route of the River Ehen. Mr Thorold points to the EA's own guidance:
95. "Species that are very mobile or migrate can be affected by pressures outside the boundary of the sites which are designated to help conserve them. These pressures are often termed 'off site impacts'. Various species, including birds, mammals and fish can be affected by offsite impacts. For example, an estuary may be designated for fish species that spends most of their adult life in that environment. If that fish species must travel many kilometres to the upper reaches of a catchment to get to areas with suitable habitat to breed, then anything affecting that journey is going to affect the population that lives in the estuary
96. ?
97. If the migratory route links to the population in a SSSI, SAC, or Ramsar site, then a Habitats Regulations Assessment (HRA) is required, even if the proposed activity is very distant from the boundary of the protected area."
98. The EA's FBG consultee was asked "with reference to the conservation sites and features flagged?.are there any that are likely to be impacted by the dewatering operation". She responded that:
100. "The River Calder has salmon, trout, eels, lamprey & otters- but it seems very unlikely there would be a significant loss of flow. If measurable loss of flow is likely ? please re-consult me."
101. The reasons given for the decision to grant the licence were as follows:
103. "No actions were taken as a result of the comments on the basis that we do not consider there to be a risk of impact on groundwater quality and do not consider the remaining points relevant to abstraction activity. Specifically, the method and quantities for abstraction were clarified with the applicant, as was the discharge location. However, the latter could not be published in the public domain for national security purposes (this is why there is no grid reference quoted in the licence for the discharge location). The remaining points were outside of the remit of water resources, including the concerns raised with regards to water quality, notwithstanding much of the wider West Cumbria sandstone aquifer has good water quality that this application would not impact on, even if it was within that part of the aquifer.
104. Our full response to the representation is below:
105. Many thanks for your comments on the application. After careful consideration we have decided to the grant the abstraction licence to Sellafield. We have taken this decision in accordance with our legal duties and obligations. It is our opinion that the abstraction itself is unlikely to degrade groundwater quality. In regards piling, providing correct guidance is followed, it can be completed such that it does not degrade the aquifer and water quality nor significantly impact on geological stability. The discharge activity is being made to Calder Interceptor sewer which is permitted under an installations permit (ref EPR/BM4317IX/V016) and a radioactive substances permit (EPR/KP3690SX). The Installations permit absorbs current and future operations (e.g., construction activities) that are considered directly associated, that would otherwise require Water Discharge Activity Permits. The permit permits Effluent discharged via the Calder Interceptor Sewer in accordance with the limits and requirements set out in the permit. This includes discharge of aqueous effluents composed of excavation and construction dewatering (including those generated by groundwater arisings) and general construction related effluents from construction activities anywhere within the Sellafield installation boundary, defined by the Site Construction Emissions Operating Techniques. The application of Best Available Techniques (BAT) and any associated monitoring requirements are considered by the EA on a project-by-project basis, within a Site envelope for generic construction activities ? which are contained within the Site Construction Emissions and Operating Techniques document which requires EA approval prior to discharge. All activities in relation to radioactivity are regulated under the radioactive substances permit referenced above. If you would like further details about how the site is regulated under these permits please contact us at enquiries@environment-agency.gov.uk."
106. Analysis
107. The Claimant's pleaded case is that the " River Ehen could feasibly have been impacted by the flow of contaminated groundwater; loss of flow; or discharge of contaminated waters following dewatering ". In these circumstances, the Claimant submits, it was incumbent on the EA to assess the impacts on the SAC and the failure to require a HIA deprived the EA of a proper evidential basis upon which to make a decision.
109. Regulation 63 requires a competent authority to undertake an appropriate assessment before giving consent to any project likely to have a significant effect on a European Site. The River Ehen SAC is such a site. An appropriate assessment did not take place because it was considered to be unnecessary given that the abstraction was not likely to have a significant effect.
111. The parties agree that the approach to likely significant effects is a precautionary one. Ms Keating for Sellafield reminds the Court that the issue of likely significant effect is an evaluative judgment for the EA, not the Court, see R (Wyatt) v Fareham Borough Council [2023] PTSR 1952. Further, it is expected that the Court will give appropriate deference to the views of expert regulatory bodies Wyatt and R(Mott) v Environment Agency [2016] 1 WLR 4338. Ms Keating again points to the dicta in the Boggis case to the effect that there must be evidence that there was a real, rather than a hypothetical risk which should have been considered.
113. An assessment of the EA's discharge of its duties under regulation 63 is by reference to the Wednesbury standard of reasonableness, Smyth v Secretary of State for Communities and Local Government [2015] PTSR 1417. Moreover, the principles enunciated in Boggis are highly pertinent in that it is for the Claimant to persuade the Court that the risk is real and not hypothetical in circumstances where it is alleged that there is a risk which should not have been excluded.
115. The EA's points regarding any potential impacts from the flow of contaminated groundwater are compelling. I start off by noting that the River Ehen SAC was 10 km away from the proposed abstraction site and therefore it fell outside the screening parameters. Further the proposal was for the abstraction of water already in the ground, together with rainwater, and its transfer, via the CIS, to the open sea at an already permitted discharge point. The operational development which had already been granted planning permission was considered under different regulations and subject to a planning condition which dealt with contamination arising from that operational development. The conclusion on the planning application had been that the development was unlikely to cause any detriment to groundwater in any event.
117. The impact on groundwater was specifically considered and dealt with in the comments of the consultees and in the response to the Claimant. The discharge point was into the Irish Sea at an already permitted point. It is not arguable that the evidence points to there being any credible or even feasible risk to an adverse impact on the SAC by virtue of the flow of contaminated groundwater.
119. With regards to the potential for a loss of flow to the River Ehen, the EA Internal Guidance identifies appropriate search areas when considering groundwater consent applications. One of the purposes of that guidance is to ensure compliance with the Habitats Regulations. The screening parameters are set by reference to the maximum proposed daily abstraction rate. The River Ehen SAC was therefore screened out because it was more than 1 km away from the proposed abstraction. However, the screening did identify the presence of Atlantic salmon within 0.33 km of the River Calder. Again, this matter was considered and Mr Gebbett in his response confirmed that the salmon in the River Calder were outside the radius of impact.
121. The Claimant has not established that there is a real or even feasible risk to a protected site. It is not arguable that the EA failed to reasonably consider the question as to whether there were likely to be significant effects on a protected site. Via a methodical screening and consultation process, the EA properly discharged its duties in terms of protected sites.
123. Ground 4
124. This ground is an allegation that the EA failed to take into account material considerations including the Natterjack Toad protected species and the River Ehen SAC as it was required to do by section 38 of the Water Resources Act
126. For the reasons given above it is not arguable that those matters were not properly taken into account. The consultee responses demonstrate that the issue of the impact on Natterjack Toads was specifically considered and the screening process was applied and ruled out the River Ehen SAC. All other relevant matters including the effects on Atlantic salmon were considered. For these reasons permission must be refused for grounds 3 and 4.
128. I have granted the extensions of time requested in relation to the issue of the claim and service of the sealed claim form. I have refused permission on all grounds advanced at the renewal stage.

Note 1   As described in Sweetman v An Bord Pleanala [2014] PTSR 1092 at paragraph 49 [Back]

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