On 4 December 2008, the Marine and Coastal Access Bill (the Marine Bill) was introduced into Parliament as part of the Government’s legislative programme for 2008 – 2009. The Marine Bill seeks to implement measures for managing marine resources, promoting marine conservation and delivering sustainable development of the marine environment.
Who will be affected by the Marine Bill?
Anyone involved in projects in the “marine area” comprising:
- the territorial seas adjacent to the UK (low tide + 12 nautical miles)
- the area of sea falling within the UK continental shelf (low tide + 200 nautical miles)
- the sea within the exclusive economic zone (an area designated by the Crown for renewable energy generation outside of territorial waters).
This may include, amongst others, those actively involved in offshore renewable energy projects; carbon capture and storage; port and harbour developments; shipping; fishing; aggregate dredging; and drainage.
What will be the effect of the Marine Bill on marine development consent?
Marine planning is currently comprised of a complex combination of development consents derived from various Governmental bodies depending on the nature of the proposed development.
The Marine Bill seeks to simplify the planning system by enabling all necessary consents to be granted by a single body and with reference to transparent policy documents. The Marine Bill makes provision for the establishment of:
- A Marine Management Organisation (MMO) – This will be an independent non-departmental public body which will be charged with delivering marine functions for the UK Government as a whole in the waters around England and in the UK offshore area (for matters that are not devolved).
- Marine Policy Statements (MPS) and Marine Plans (MP) – The MMO will make its planning decisions on the basis of a national MPS which is intended to clarify the Government’s marine objectives and priorities for the future. The MPS is intended to strike a balance between balancing conservation, energy and resource needs. MPs are intended to support the MPS by providing more detailed policy for localised marine areas based on information about specific areas of sea and their uses.
Whilst the Marine Bill’s proposals have the potential to provide better regulation by providing joined up and clear thinking about how best to use coastal waters, it should be noted that its provisions will not apply to planning proposals for large infrastructure projects above certain thresholds (eg, renewable energy installations and harbour facilities). These development decisions will be made by the new Infrastructure Planning Commission (IPC), formed under the Planning Act 2008.
What will be the effect on the licensing of marine activities?
Currently companies and individuals seeking to carry out marine based projects are required to obtain various licences from different authorities before project activities commence. The complexity of the system often leads to confusion and consequently delays in obtaining necessary consents. The Marine Bill seeks to consolidate the licensing system so that a single licence (a Marine Licence) is required to permit all project activities – “one project: one licence”.
By way of example, changes to the licensing of renewable energy projects, harbour developments, dredging and drainage activities are set out below.
Offshore renewable energy projects
Currently, developers of renewable energy projects are required to obtain:
- consent under section 36 of the Electricity Act 1989 (EA 1989)
- a licence under the Food and Environment Protection Act 1985 (FEPA) (issued by the Environment Agency and intended to control dumping and incineration at sea, and construction on the seabed, to protect the marine environment, human health and other legitimate uses of the sea)
- a licence under the Coast Protection Act 1949 (CPA) (permitting activities associated to the development such as laying cables under the seabed to transfer energy to shore).
The Marine Bill seeks to achieve its “one project: one licence” goal by:
- replacing FEPA consent with a new Marine Licence
- allowing the licence application to be considered through the EA 1989 procedure
- removing the requirement for separate CPA consent.
By doing so, the Marine Bill ensures that only one administrative process is used by one authority – the MMO. But the MMO will not have jurisdiction to grant development consent for projects with a proposed capacity of above 100MW. These projects will be dealt with by the IPC under the Planning Act 2008.
Currently, harbour developers are required to obtain:
- a harbour empowerment or revision order under the Harbours Act 1964 (HA 1964) for the development of harbour facilities
- FEPA consent.
The Marine Bill removes the need to apply for a separate FEPA consent where an order under the HA 1964 authorises environmental assessments to be carried out in respect of the development. This effectively means that a single Marine Licence may be granted by the MMO. However, as with offshore renewable energy projects, the IPC will be the appropriate planning authority for harbours with a capacity to hold more than 500,000 TEU of containers, 250,000 units of ro-ro ferry or 5 million tones of cargo.
At present, dredging activities may be licensed under:
- the CPA, by the Minister for Transport
- a Tidal Works Licence, by the harbour authority, where the dredging is to be carried out in the harbour area
- the planning process, by a local authority, where dredging is to be carried out within a river and estuaries.
In addition, licences may be needed to deposit dredged material under FEPA consent. Under the Marine Bill all forms of marine dredging (subject to a few minor exemptions) will be caught by the single Marine Licence including currently unregulated dredging such as hydrodynamic and plough dredging.
Coastal engineering projects often raise issues of flood risk and land drainage and may require consent under the Water Resources Act 1991 (flood risk management consent) or the Land Drainage Act 1991 (land drainage consent). The Marine Bill proposes to incorporate these consents into a new Marine Licence. In respect of port and harbour developments, Harbour Orders under the HA 1964 will address the issues that these consents deal with. The MMO will assume responsibility for this with the collaboration and consent of the Environment Agency.
Although the new licensing system has the potential to bring benefits of a more streamlined consenting process, reducing the burden of regulatory effort, a number of activities fall outside of the scope of the new Marine Licences. These activities include (amongst others):
- oil and gas prospecting and extraction – these sectors will continue to be governed by the Petroleum Act 1998
- transport infrastructure projects such as barrages, bridges and tunnels – these projects will be licensed by an order made under the Transport and Works Act 1992 (TWA)
- major infrastructure projects such as offshore generating stations, airports (eg, on sand flats, or through extensions to the sea), and harbour facilities (where certain capacity thresholds are met) – these projects will be licensed by the IPC under the Planning Act 2008.
Broadly speaking, the MMO will licence small and medium sized operations outside harbours, whilst the big operations will be licensed by relevant Government departments or the IPC.
Will business activities be affected by the new marine conservation rules?
The Marine Bill provides for the designation of Marine Conservation Zones (MCZs) to conserve rare and threatened habitats and species. These are intended to be large enough and close enough to form an MCZ network that will support whole eco-systems. Each MCZ will be governed by a designating order which will set out specific conservation objectives for that site and determine the level of protection required, including whether to prohibit certain activities having the potential to affect the site.
The MCZ designation will have the potential to affect future developments in the marine area where designations are taken into account by the MMO when granting development consents or Marine Licences. However, the relevant authority designating a MCZ is required, under the Marine Bill as currently drafted, to have due regard of social and economic consequences of that designation.
What enforcement measures are available under the Marine Bill?
The Marine Bill proposes that the MMO will assume responsibility for enforcement in the marine area which will include bringing prosecutions where appropriate. In addition, the MMO will have the power to appoint Marine Enforcement Officers who will be responsible for monitoring and enforcing Marine Licences and IPC development consents.
Enforcement measures may include the issuing of:
- a compliance notice (to bring the holder of a Marine Licence into compliance with the licence’s conditions)
- a remediation notice (to remedy harm caused where breach of Marine Licence conditions results in damage to the environment and/or human health).
How will non-compliance with the Marine Act (assuming Royal Assent is given) be dealt with?
The current regulatory system has been much criticised for:
- imposing disproportionate penalties on low risk offenders (for example, criminal fines come with added penalties of a criminal record and damage to a company’s reputation)
- promoting non-compliance where financial penalties for regulatory offences are lower than the commercial advantage obtained when committing them.
Under the Marine Bill, offences include failing to obtain a licence, comply with the conditions of a Marine Licence, comply with an enforcement notice, provide accurate (not false or misleading) information; and damaging features of MCZs. Penalties for committing offences may include:
- criminal penalties (a fine of up to £50,000 in a Magistrates’ Court or an unlimited fine and/or up to two years imprisonment in a Crown Court)
- civil sanctions including fixed monetary penalties.
Civil sanctions, imposed as an alternative to criminal prosecution for lower risk offences, may produce a more proportionate regulatory regime by removing criminal records and the commercial advantage obtained by committing an offence.
The next steps
The UK Government has carried out a public consultation on the Marine Bill’s proposals and more recently on high-level marine objectives with a view to developing clear and unambiguous MPSs. Further consultations are likely on individual proposals, and participation in the consultation process is strongly encouraged on the basis that the decisions made by the Government will significantly affect future developments in marine areas.
It is anticipated that the Marine Bill will receive royal assent by the end of 2009 and that the MMO, MPS and MCZ should be in place one year later.