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Reform of Licensing for Marine Works: Improvement and Clarification Under the Marine and Coastal Access Bill 2008

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Abstract

Important legislative change is underway in the marine environment. In relation to the licensing of activities which are carried out in this zone the need for change is significant for many interested sectors such as: energy generation; the extractive industries; port and harbour developments; fisheries; and bodies involved with the conservation of both natural and archaeological/cultural resources. This article considers the main aspects of the existing legislative situation in relation to marine licensing and then goes on to describe and evaluate the proposed new system to be substituted through the Marine and Coastal Access Bill (the Bill). In order to provide some basis for evaluation, the protection of underwater cultural heritage (UCH) provides a backdrop against which to assess the developments. The means by which interventions in the marine environment are currently regulated are complex, in some situations overlapping, and in others questionable as to the overall coherence of their regulatory effects. Parties which might be considered to be ‘interested’ are often excluded from formal deliberations, guidance is patchy, although proliferating, and voluntary agreements (BMAPA 2003; COWRIE 2007) on best practice within sectors have been developed in the absence of official provision—while these are undoubtedly useful, they lack the rigour of systematic legislative underpinning, which it is hoped that the Bill will address.

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Notes

  1. JNAPC (2007).

  2. Department of Trade and Industry (2002), Hampshire and Wight Trust for Maritime Archaeology (2009).

  3. British Archaeology (2006).

  4. 1973 c.33. Other legislation, such as the National Heritage Act 2002, c.14, and the Ancient Monuments and Archaeological Areas Act 1979, c.46 may also apply.

  5. English Heritage lists 61 designated sites around the UK, see for example: http://www.english-heritage.org.uk/server/show/nav.8385.

  6. DECC (2009), see Ch’s 1 and 4 in particular. The UK Renewable Energy Strategy Cm 7686.

  7. Defra (2007).

  8. Ibid, although for a fuller explanation as to the meaning of these principles, see also, Sustainable Development (2008).

  9. For a good account of offshore wind farm developments see e.g., Plant (2003).

  10. See, among the many policy and explanatory documents in relation to the Bill, Defra/WAG (2008).

  11. Although beyond the scope of this article witness for example the paucity of Marine Nature Reserves which could have been established under the Wildlife and Countryside Act 1981 c.69; the UK’s imperfect implementation of relevant EC legislation; and the resultant overhaul proposed in Part 5 of the Bill.

  12. See for example, the Marine Works(Environmental Impact Assessment) Regulations 2007, SI 2007/1518; and Environmental Impact Assessment and Natural Habitats (Extraction of Minerals by Marine Dredging) (England and Northern Ireland) Regulations 2007, SI 2007/1067.

  13. Including the Marine and Fisheries Agency, Local Authorities, the Environment Agency and the Department for Transport.

  14. For further explanation of the nuances involved see further below and, for a more technical account see the Marine and Fisheries Agency http://www.mfa.gov.uk/environment/works/consents-dredging.htm.

  15. See for e.g., Professor Lee’s article in this journal, and also the EC’s Carbon Capture Directive (proposed) (2008) http://ec.europa.eu/environment/climat/ccs/eccp1_en.htm.

  16. EC/ICZM (2007) gives the most recent and evaluated collection of policy directions in this area.

  17. As to which see Directive 85/337/EEC, as amended by Directives 97/11/EC and 2003/35/EC on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175/40); and Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L 197/30).

  18. 2008 c.29.

  19. R v Secretary of state for trade and industry ex parte Greenpeace (no. 1) [1998] Env. LR 415; R v Secretary of state for trade and industry ex parte Greenpeace (no. 2) [2000] Env. LR 221 and the resulting Offshore Marine Conservation (Natural Habitats, & c.) Regulations 2007 (SI 2007/1842).

  20. Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206/7).

  21. For details of which see Defra Consultation (2009).

  22. 1985 c.48.

  23. 1949 c.74.

  24. FEPA, Part II and Schedule 4 provide the detail of the system. A recent example of the licensing process is seen in Isle of Anglesey CC v Welsh Ministers [2008] EWHC 921, involving the potential impact of a marina construction on the public right to fish comprised in mussel beds.

  25. Defra/WAG (2008).

  26. Section “Common enforcement powers”—note ‘vessel’ is used as shorthand here for the more broadly encompassing meaning given in the statute.

  27. By, for example the Environmental Protection Act 1990 c.43, the Petroleum Act 1998 c.17 and the Energy Act 2008 c.32 amongst others.

  28. Marine and Fisheries Agency (2007).

  29. The sinking constituted a ‘deposit’ pursuant to FEPA and thus required a licence.

  30. And which are able to be altered or repealed by virtue of s.31 CPA.

  31. For and interesting example of a narrow construction placed upon s34 see for example Lord Denning MR in Harwich Harbour Conservancy Board v Secretary of State for the Environment, East Suffolk County Council and Stour River Estate [1975] 1 Lloyd's Rep. 334. The broader view, encompassing impacts relational to the works’ end use has been clarified by subsequent amendment: s.34(3A).

  32. CPA s.34(2).

  33. CPA s.35(1)(c).

  34. For consultation practice, see e.g., Marine and Fisheries Agency (2007).

  35. Such provisions are to remain outside of the new system of licensing under the Bill.

  36. S.109 Water Resources Act 1991 c.57.

  37. For example pursuant to the Telecommunications Act 1984, as amended by the Communications Act 2003 (consent by MFA on behalf of the Secretary of State, Defra).

  38. Defra/WAG (2008, p. 6).

  39. For the purposes of simplicity and brevity, focus is limited to the current licensing bodies as they will exist in England, and in the wider UK for non-devolved matters (although the reader should note that different institutional arrangements operate in the devolved administrations). Detail as to the identity of the relevant bodies for licensing, in relation to issue or geographical area) are contained in cl.113 of the Bill.

  40. Please note the list given here is illustrative only. Refer to the section for an exhaustive list of operations.

  41. Bill, cl.66(3). This includes all of the UK Marine Area, with the exclusion of Scottish inshore waters. The UK Marine area itself is defined in cl.42 “(1) For the purposes of this Act, the “UK marine area” consists of the following: (a) the area of sea within the seaward limits of the territorial sea adjacent to the United Kingdom, (b) any area of sea within the limits of the exclusive economic zone, (c) the area of sea within the limits of the UK sector of the continental shelf (so far as not falling within the area mentioned in paragraph (b), and see also subsection (2)), and includes the bed and subsoil of the sea within those areas…”

  42. Specific exemptions in relation to, for example, oil and gas exploration, carbon dioxide storage, electricity and telecommunications works are provided for in cls77–81.

  43. To which further detail can be found in Defra/WAG (2008 pp. 8, 9).

  44. Harbours Act 1964 c.40, Schedule 3, paras 1 and 4.

  45. 2008 c.49, s.1 establishes the Infrastructure Planning Commission and s.14 defines ‘nationally significant projects’.

  46. SI 2007/1067 The Environmental Impact Assessment and Natural Habitats (Extraction of Minerals by Marine Dredging) (England and Northern Ireland) Regulations 2007 (for marine aggregate dredging); SI 2007/1518 The Marine Works (Environmental Impact Assessment) Regulations 2007 (for marine works).

  47. See for example in relation to the discovery of a sixteenth century wreck in the Princes Channel approach to the Port of London, http://www.wessexarch.co.uk/projects/marine/thameswreck/index.html.

  48. Bill, cl.66(1)(9).

  49. Such as the Port of London Act 1968, the Sutton Harbour Act 1847, and many others.

  50. Macrory (2006); see also Hampton (2005).

  51. Macrory (2006, para E.9).

  52. 2008 c.13.

  53. RSEA 2008, s.36.

  54. Ibid, ss39–50.

  55. Ibid.

  56. Bill, cl.230, additionally Royal Naval Officers may also be MEOs and utilise the ‘common enforcement powers’.

  57. Bill, cls. 240–257.

  58. Bill, cl.241.

  59. Bill, cl.242.

  60. Bill, cl.245.

  61. Bill, cl.247.

  62. Bill, cl.252.

  63. Bill, cl.251.

  64. Bill, cl.256.

  65. Bill, cl.287.

  66. Defra (2008, p. 15).

  67. Bill, cl.86, other defences are provided in cls.84 and 84 relating to emergency works electronic communications and activities licensed by another State respectively. There is also a general ‘due diligence’ defence provided at cl.109.

  68. Bill, cl.90.

  69. Bill, cl.91.

  70. Bill, cl.92, with maximum penalties upon conviction ranging from a £50,000 fine for a summary conviction through to an unlimited fine and/or potential two year term of imprisonment on indictment.

  71. The Environment Agency’s policy can be accessed at http://www.environment-agency.gov.uk/static/documents/enforcement-policy.pdf; Natural England’s at http://www.naturalengland.org.uk/Images/enforcementpolicy_tcm6-11871.pdf.

  72. Bill, cl.91.

  73. Defra/CL (2008).

  74. Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage (OJ 2004 L 143/56).

  75. 1990 c.8, s.183.

  76. Bill, cl.102.

  77. Bill, cl.104.

  78. Bill, cl.100 and cl.102.

  79. Defra/Wag (2008, p.6).

  80. Defra Consultation (2009).

  81. Defra/House of Lords (2009).

  82. Amendment made to Clause 67 of the Bill.

  83. Defra/MMO (2009, p. 32).

  84. Defra/House of Lords (2009).

  85. See for e.g., Stewart (2000), RCEP (1998).

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Authors and Affiliations

  1. Senior Lecturer in Law, Plymouth Law School, University of Plymouth, Drakes Circus, Plymouth, PL4 8AA, UK

    Jason Lowther

  2. Senior Lecturer in Law, School of Law, Social Sciences and Communications, Wolverhampton, WV1 1SB, UK

    Michael Williams

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Lowther, J., Williams, M. Reform of Licensing for Marine Works: Improvement and Clarification Under the Marine and Coastal Access Bill 2008. Liverpool Law Rev 30, 115–130 (2009). https://doi.org/10.1007/s10991-009-9059-8

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