This article, authored by Andrew Oldland QC and barrister Nicola Canty, from the Firm’s Marine Regulatory team, has been featured in the July edition of Marine and Maritime Gazette.
The Marine Management Organisation (MMO) issues ‘marine licences’ under Part 4 of the Marine and Coastal Access Act 2009 (MCAA). A marine licence is required for licensable activities taking place up to the mean spring high-tide water mark. Licensable activities include the construction, alteration or improvement of any works in or over the sea, or on or under the seabed (section 66(1)(7)) and the removal of any substance or object from the seabed (section 66(1)(8)); this will include most marine maintenance activities unless being carried out by or on behalf of a harbour authority.
In England and Wales it is possible to submit a single application for a 10 year licence that applies to multiple sites where the activities applied for are generally low impact maintenance activities. Applicants should be able to justify why the proposed region can be considered an ecologically coherent area.
A regional licence may be suitable for maintenance to moorings, pontoons and minor beach re-profiling which are not covered by the Marine licensing (Exempted Activities) Order 2011 or Articles 25 (Mooring and aids to navigation), 25A (pontoons) and 27 (launching of vessels) of MCAA. However, a regional licence would not be suitable for licensable dredging activities and a single site marine licence application should be submitted in those circumstances.
The intention is that a regional licence application would reduce the administrative burden, time and cost of applying for numerous licences separately. The various advisory bodies would also have the opportunity to address their concerns and propose conditions to the proposed licence in an efficient manner that would make best use of the resources available.
As with single site applications, a Habitats regulations assessment is generally required and the effects of the project on marine conservation zones must be considered. Other required considerations would include the Marine Policy Statement and any Marine Plans in place, in addition to the Water Framework Directive (though a simple screening assessment may be sufficient to satisfy this requirement). In addition, depending on the scale of the regional licence application, it is likely that a sustainability appraisal would be necessary.
A pre-application consultation meeting with statutory consultees such as Cefas, Natural England and the Environment Agency is invaluable. With a larger scale, multi-site application, the opportunity to engage with statutory consultees in the pre-application consultation stage is a useful opportunity to ensure the final application contains sufficient information to address any concerns raised and to enable a discussion of suitable licencing conditions. It is also possible to obtain advice from Natural England’s Discretionary Advice Service (DAS); Natural Resource Wales (NRW) provides similar pre-application advice, though NRW does not charge for their input. Regional licence applications must be advertised locally and the application must be available for public consultation for 28 days. The MMO would forward any public responses for the applicant to comment.
Michelmores has recently advised on the first regional marine licence issued by the MMO. Our marine team, led by Andrew Oldland QC, is able to advise on all aspects of obtaining, opposing and implementing marine licences, including emergency, fast-track, single site, and regional marine licences.