This article, authored by barrister Nicola Canty, from the Firm’s Marine Regulatory team, was featured in the October edition of Marine and Maritime Gazette.
In English waters and the offshore areas of Wales and Northern Ireland where the Secretary of State is the licensing authority, the Marine Management Organisation (MMO) has been the regulatory body responsible for issuing marine licences on behalf of the Secretary of State under Part 4 of the Marine and Coastal Access Act (MCAA) since April 2011.
Following a high profile legal challenge to a MMO decision to grant a marine licence for dredging and the associated dumping of the dredged material off Rame Head in Devon, Defra proposed amending the MMO’s powers to allow the Secretary of State, in certain circumstances, to ‘recover’ decisions from the MMO where local planning authorities (LPA) and Inshore Fisheries and Conservation Authorities (IFCA) sought an independent inquiry into certain complex cases.
Defra’s consultation closed on 25 February 2015, with a decision following in August 2015 to introduce the suggested recovery mechanism. Defra views this as a ‘modest policy change’ that was needed to inject democratic accountability into the marine licensing process, on the basis that ministers are directly accountable to Parliament. It is intended that the policy to recover application decisions will be highly selective so as to avoid causing disproportionate uncertainty and delay, and will only be used for decisions ‘which genuinely merit going to inquiry’.
This significant change to the marine licensing regime will take effect from 1 October 2015. It means that in certain situations the Secretary of State, rather than the MMO, may exercise specified functions as the appropriate licensing authority and determine an application.
The MMO’s delegated power to perform the function of determining marine licence applications is provided by the Marine Licensing (Delegation of Functions) Order 2011. This Order had to be amended to claw back some of the powers that had been delegated to the MMO, in order to allow the Secretary of State to be able to determine a marine licence application.
It should be noted that there is already the power under Section 70 of MCCA for the MMO to cause an independent inquiry to be held to assist it in making its decision. The new changes would allow external bodies such as LPAs or IFCAs to request that an inquiry takes place. The Secretary of State will make the final decision on whether the specified criteria for the recovery of marine licensing determinations are met, and consequently whether that application should be determined by the Secretary of State. The Planning Inspectorate will manage the inquiry process.
Which marine licence applications may be recovered?
For a marine licence to be recovered, it must meet one of two specified criteria. The first is that the MMO receives a formal representation from an affected LPA or IFCA asking for the decision to be recovered by the Secretary of State, the marine licence application itself relates to activity which falls within band 3 of the Marine Licensing (Application Fees) Regulations 2014, the activity is located in the inshore region and is capable of having a significant effect.
This is intended to catch the more complex cases such as construction projects over £1m or projects requiring an environmental impact assessment or an appropriate assessment under the Habitats Regulations, or dredge disposal operations. Approximately one third of the 500 marine licences which the MMO issues every year fall within band 3.
Alternatively, the second criteria is that the proposed activity raises issues which are of national significance and which are not adequately addressed for this purpose by the marine policy documents required under MCAA. This is intended to enable Ministers to determine cases which involve novel activities which are of national significance where there is no, or insufficient, planning policy guidance.
In both cases, the application must also be considered appropriate for examination in an inquiry.
The impact of the policy will be reviewed by Defra after 12 months. This change will be kept under review with a report required every 5 years to assess whether a system which imposed less regulation may achieve the same objectives, if those objectives remained appropriate. It will also become clearer over time whether Defra’s estimates for the anticipated costs of the change are realistic.
It is expected that guidance on the implementation of this policy change will be provided by the Secretary of State and the Planning Inspectorate for those affected (i.e. the MMO, LPAs and IFCAs, applicants and interested parties).
Our experienced team, led by Andrew Oldland QC, is able to advise on all aspects of marine planning and licensing and the interaction between marine licensing and terrestrial planning (including listed building consent), environmental law and harbour ‘works orders’.