Increasing commercial interest in the exploitation of resources in the marine environment has led to the emergence at an international, European and UK level of legal mechanisms that are intended to protect important nature conservation interests. The Convention for the Protection of the Marine Environment of the North East Atlantic (OSPAR) places an obligation on the UK to establish an ecologically coherent network of Marine Protected Areas (MPAs).
At a European scale, marine sites hosting habitats and species that contribute to the Nature 2000 network established by the Habitats Directive are designated as Special Areas of Conservation (SACs) or notified as Special Protection Areas for birds (SPAs) form part of this network. Wetlands of international importance identified as Ramsar sites and the marine components of land-based Sites of Special Scientific Interests (SSSIs) are also part of this network.
To enable appropriate protection to be afforded to marine habitats and species that do not fall within the selection criteria for European and other designations, the Marine and Coastal Access Act 2009 (MCAA) together with the Marine Scotland Act 2010 and the Marine Act Northern Ireland 2013 provide for the establishment of a network of marine conservation areas within the UK marine area.
The network is intended to provide protection for marine areas that are nationally representative and important to conserve for the diversity of nationally rare or threatened wildlife, habitats, geology and geomorphology. Save in respect of areas designated by the Scottish Ministers, which are called marine protected areas, the areas are called Marine Conservation Zones (MCZs).This article considers the framework provided by the MCAA for the designation and protection of MCZs and the stage reached in the development of this part of the MPA network.
MCZs - where are we now?
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How are MCZs established?
Each MCZ is established by a legal order (a "designation order") made by the relevant appropriate authority (see below) under section 116(1) of the MCAA. Each order designates an area as an MCZ and defines that area, listing the protected features within it and specifying the conservation objective (or objectives) for that area.
Each conservation objective applies to all of the features listed for protection within an MCZ. Generally, each MCZ has one conservation objective; which is that each of the features being protected shall be in favourable condition. To achieve this, the general management approach required for a feature in an MCZ will be either for it to be maintained in favourable condition (if it is currently in this state), or for it to be recovered to favourable condition (if it is currently in a damaged state) and then to be maintained in favourable condition.
The type of general management approach required to achieve the favourable condition conservation objective for each feature is published alongside the designation orders in the MCZ site descriptions.
Advice from the Statutory Nature Conservation Bodies (SNCBs) is also published. The SNCBs for MCZs designated under the MCAA are NE for English inshore waters (<12 nautical miles) and the JNCC for offshore waters (12 > 200 nautical miles).
In deciding to designate MCZs the appropriate authority will be required under the MCAA to have regard (section 58 MCAA), to the UK wide Marine Policy Statement (DEFRA 2011) (UK MPS).
The MCCA further specifies that in considering whether it is desirable to designate an area as an MCZ, the appropriate authority may have regard to any economic or social consequences of doing so (section 117 MCAA).
For an MCZ in the Welsh inshore area the appropriate authority is the Welsh Ministers. For an MCZ in the Scottish offshore region the appropriate authority is the Scottish Ministers (with the agreement of the Secretary of State). Under the Marine Act Northern Ireland 2013 their Department for Environment (DOENI) may designate MCZs (with the agreement of the Secretary of State). In all other case the appropriate authority is the Secretary of State for DEFRA. Provision for the designation and protection of MPAs in the Scottish inshore region is made by the Marine Scotland Act 2010. Inshore regions comprise the relevant territorial seas, which extend up to 12 nautical miles (nm) from mean low water or mean high water spring tide). The rest of the UK marine area within which MCZs may be designated comprises the UK's Exclusive Economic Zone (EEZ) and the area of the sea bed or subsoil within the limits of the UK sector of the continental shelf that is not within the EEZ.
Who are the regulators and what are their functions?
A range of public authorities have responsibility for regulation of activities occurring in the sea and on the coast. These include the Marine Management Organisation (MMO) (>6 nautical miles), the Inshore Fisheries and Conservation Authorities (IFCAs) (<6 nautical miles), the Environment Agency, Local Authorities, Harbour Authorities and the Department of Energy and Climate Change (DECC).
The general duty
The MCAA requires all public authorities taking "authorisation or enforcement decisions" that affect, or might affect, the UK marine area to do so in accordance with the MPS and the relevant marine plans, unless relevant considerations indicate otherwise. In addition, a public authority must have regard to the appropriate marine policy documents in taking any decision which relates to the exercise of any function capable of affecting the whole or any part of the UK marine area, but which is not an authorisation or enforcement decision. An authorisation or enforcement decision includes the determination of any application for authorisation for any activity which affects or might affect the whole or any part of the UK marine area (eg marine licences), and any subsequent decisions related to the authorisation, but excludes decisions under the Planning Act 2008, where the authority is only required "to have regard to" the appropriate marine policy documents.
The specific duty
The MCAA also specifies how these principles should be applied in the case of marine licensing decisions (section 126), and makes provision for the MMO to introduce byelaws for protection of MCZs (section 129-133). The Act makes clear that one of the main duties of IFCAs is to seek to ensure that MCZ conservation objectives are furthered (section 154).
Where the functions of a public authority have the potential to affect (other than insignificantly) an MCZ the MCAA places it under an obligation to carry out its functions in a manner which the authority considers "best furthers" the conservation objectives of the MCZ (section 125 of the MCAA). Where this is not possible, the public authority is required to proceed in the manner which the authority considers would least hinder the achievement of the MCZ’s conservation objectives. Further, if a public authority, intends to do an act which is capable of affecting (other than significantly) any protected feature (or process on which the feature is dependent) of the MCZ, or believes that there is or may be a significant risk of its action(s) (or omission) hindering the achievement of the conservation objectives, it must usually notify the appropriate statutory conservation body.
A DEFRA Explanatory Note (November 2013) provides more information about its understanding of “best furthers”. It states that it means that the public authority should proceed in the manner that is most conducive to achieving the conservation objectives of the MCZ. Where there is an overriding public interest case for an activity to be permitted despite it having a negative impact on the MCZ, then the public authority should identify an approach to this which would “least hinder” the conservation objectives of the MCZ being achieved. It advises that consideration should be given to whether there is another means for the activity to occur which may have a substantially lower impact on the MCZ. In the case of licensed activities that are considered essential but damaging to an MCZ, measures of compensatory environmental benefits equivalent to the damage to the MCZ should be secured.
MCZ and marine licensing
The MMO also has issued guidance on how it will apply the principles discussed above in dealing with licensing applications. The MMO has a special MCZ assessment process that it has integrated into marine licensing decision making procedures. The process runs alongside other legislative regimes, including those that transpose the requirements of the Habitats Directive or the EIA Directive, so it is not a substitute for compliance with these. The special MCZ process applies to all new marine licence applications. The MMO will screen all applications to determine whether section 126 MCAA should apply. Its provisions will apply if the licensable activity is taking place within or near an area being forward or already designated as an MCZ; and the activity is capable of affecting (other than insignificantly) either the protected feature(s); or any process on which the conservation of any protected feature is (wholly or in part) dependent. The MMO will use a risk based approach when determining 'nearness'. In determining 'insignificance' it will consider the likelihood of an activity causing an effect, the magnitude if the effect were to occur and the potential risk any such effect may cause. The guidance note states that the MMO would not routinely consult the SNCBs at this stage although they would be notified of the MMO's screening decision and be given an opportunity to comment on this.
If screening determines that section 126 should apply then the MMO will assess the application further; this will be done in two stages with the first stage assessing if the conditions of section 126 can be met. As part of stage 1 the MMO will normally formally consult with the SNCBs for a period of 28 days. In assessing if an activity can further or hinder the conservation objectives of a site the MMO will consider both direct and indirect impacts and example of the latter being eg the changing effectiveness of a management measure to further the conservation objectives.
The stage two assessment will consider the benefit to the public of proceeding at a national, regional and local level. In determining measures of equivalent environmental benefit the MMO guidance note states that the measures that might be considered under the Habitats Directive would also be appropriate to consider.
The onus will be on the applicant to supply the relevant information to the MMO and the SNCBs.
What is the impact on proposed coastal projects?
The MCAA effectively introduced a system of strategic offshore planning by requiring public authorities to take authorisation or enforcement decisions in accordance with the appropriate marine policy documents, unless relevant considerations indicate otherwise.
Coastal development proposed in or near MCZs must therefore follow a particular planning process. The MMO issues marine licences under the MCAA for activities including the construction, alteration or improvement of any works in or over the sea, or on or under the seabed. A marine licence is required for relevant activities taking place up to the mean spring high-tide water mark. Terrestrial planning permission from the local planning authority (LPA) is required down to the mean spring low-tide water mark. Consequently, some coastal development projects may require consents under both regimes.
In respect of MCZs the MCAA places specific duties on public authorities, including LPAs and the MMO, when granting authorisations, licences, consents or permissions. The MMO has introduced a process for licensable activities located "in or near" proposed or designated MCZs to comply with its obligations. A similar process should be adopted by authorities when determining relevant planning applications.
The reach of the Town and Country Planning Act 1990 (TCPA) and the MCCA overlap in the area between Mean High Water Springs (MCCA landward reach ends) and Mean Low Water Springs (TCPA seaward reach ends). This overlap between land-based and marine planning regime requirements and the consequent duplication of jurisdictions is not simple to reconcile, with implications for costs and delays for projects.
A Coastal Concordat published by DEFRA (November 2013) (Coastal Concordat) applies to all applications for all coastal development - individual projects which span the intertidal area in estuaries and on the coast and require multiple consents including both a marine licence and a planning permission from the LPA - except those where coordination mechanisms are already in place under the Planning Act 2008, the Transport and Works Act 1992 or Hybrid Bills.
The Concordat is designed to form the basis of agreements between the main regulatory bodies and coastal LPAs. It provides a framework within which the separate processes for the consenting of coastal developments in England can be better coordinated.
Promoters of coastal projects and their advisers should exercise particular care where councils have not adopted the Coastal Concordat or where a marine licence is not needed. If there is a nearby MCZ then, to avoid potential delays and the risk of judicial review, it will be necessary to consider the MCZs protected feature(s) as well as the conservation objective(s) in order to ensure that relevant information can be included in any planning and marine licence applications, and to ensure that any LPA that may be unfamiliar with its obligations under the MCAA is able to comply with its duties.
The MMO guidance also notes that the MCZ assessment process will not be a replacement for other necessary tests e.g. assessment under the Habitats Directive. Applicants for consent for Nationally Significant Infrastructure Projects (NSIPs) under the Planning Act 2008 are able to agree evidence plans with relevant SNCBs. The MMO notes that requirements with respect to assessing possible impacts on MCZs will be included in this process.
If an initial screening exercise suggests that a proposed activity could affect, other than insignificantly, either the protected features of an MCZ or any ecological or geomorphological process on which conservation of a feature wholly or partly depends then a more detailed assessment, including to assess potential co-existence, is likely to be required. This will need to be factored into the project timetable. If a significant risk of hindering conservation goals for protected features were to transpire, then it is likely that it would become necessary to consider alternative means of proceeding with the activity that would substantially lower the risk of harm to conservation objectives.
As already noted, the public authority must have regard to appropriate marine policy documents, though it will be permitted to weigh the public benefit of the proposed project against the detriment to the environment. It may also consider the possibility of environmental offsetting if the public benefit test is satisfied.
What happens next?
The report of the Environmental Audit Committee (June 2014) noted that the MCZ selection process has been widely criticised, with concerns that it lacks sufficient ambition in terms of environmental protection expressed by some whilst others identify the potential for harm to business and leisure activities. The Committee concluded that at this stage it is difficult to assess whether uncertainties about the selection process are a feature of the programme or related to the evidence base.
The Committee recommended that that the Government follow an environmental precautionary principle approach to future designations, based if need be on 'best available' data rather than the fuller 'robust' data. It also made the following further recommendations. The Government should publish an engagement and communications plan and apply lessons from the previous consultation process using the "precautionary principle". It should immediately set out an overarching strategy for MCZ management which facilitates voluntary arrangements and should include management plans for individual MCZs. It should identify a lead authority and provide a valid assessment of resources available.
The JNCC data show that within the UK marine area there are currently 108 Special Areas of Conservation (SACs) with marine components, 108 Special Protection Areas (SPAs) with marine components, 28 MCZs, 30 Nature Conservation Marine Protected Areas (NCMPAs) (17 in Scottish inshore waters and 17 in Scottish offshore waters) and one Marine Nature Reserve.
Of the current 28 MCZs, 27 were designated in the first tranche of designations made by the Secretary of State in November 2013, with the additional designation being the conversion of the Lundy Marine nature Reserve to an MCZ. Defra is currently considering consultation responses in respect of proposals to designate a further 23 MCZs in the second tranche. The proposed MCZs in this tranche cover a marine area of 10,810 km2. In addition, new features for conservation are proposed for 10 of the first tranche MCZs. The outcome of the consultation on the second tranche is expected in December 2015 followed by designations in early 2016. The Coalition Government had announced proposals for a third tranche of MCZ designations to start a consultation period during 2016.
Physical processes, the evolution of habitats and species, the emergence of additional evidence and new understandings, human ambition, the greater accessibility of the marine environment in light of technical progress and the synergies between all of these and other factors make the UK marine area a dynamic and challenging one for those with interests in it. The process of designating sites under other regimes for the UK MPA network is ongoing, with a consultation on proposed SACs for harbour porpoise expected in September. In contrast to MCZs, once European sites are submitted to the European Commission for approval an obligation to review any consents granted but either not implemented or not completed will arise where there is potential for a likely significant effect on the integrity of the European site. In 2017, changes to the process of environmental impact assessment will require the promoters of relevant projects to provide more information on the potential for likely significant impacts on biodiversity. Decision-makers will have a duty to ensure that the environmental information provided to them is up-to-date at the time the determination of the application for consent is made.
In the context of individual projects with the potential to affect designated and proposed MCZs, all stakeholders (whether coastal LPAs, project promoters and their advisors, SNCBs or decision-makers), face the challenges of both understanding and applying the law, policy and science of MCZs to a diversity of activities and projects in a diversity of consenting and licensing regimes. MCZs represent one response amongst a number from different law and policy makers to the emerging challenges of effective regulation within the marine environment. The response of the new Conservative Government to the recent MCZ consultation is awaited with interest.
A map showing the MPAs including MCZs can be found here: http://jncc.defra.gov.uk/page-4524
More detailed information on each of the sites which were under consultation for further designation in Spring 2015 can be found here: http://www.mcsuk.org/mpa/details/List%20of%20areas%20-%20English