After nearly two years the Environment Bill has finally made it onto the statute books as the Environment Act 2021. Its enactment, presumably timed to coincide with the end of COP 26 in Glasgow, heralds the introduction of some fairly wide-ranging and significant changes, which will affect rural land owners and businesses for years to come.

In a series of articles, we will consider how this new legislation will impact rural land ownership and where the opportunities for rural businesses lie. We start with an overview of the new Act and focus on its scope and when rural measures will come into force.

New rural and agricultural framework

The arrival of the Environment Act 2021 comes a year after the enactment of the Agriculture Act 2020 and, together, they create a statutory framework for a completely new direction for rural and agricultural policy across the UK.

Certain measures within both pieces of legislation comprise devolved matters and we are already seeing considerable divergence in policy between the four home countries of the United Kingdom. This will only increase as devolved governments make choices which reflect their own political priorities and landscape.

Overview of new measures

So, what does the new Environment Act do? The Act is long (278 pages) and wide ranging, including various different parts as follows:

• Environmental governance: the setting of targets, improvement plans, monitoring and the creation of a statutory “Office for Environmental Protection”.

• Waste and resource efficiency: targeting producers with responsibility for costs of waste disposal; addressing waste management, enforcement and regulation.

• Air quality and environmental recall: updated requirements regarding air quality and the recall of vehicles.

• Water: updated requirements for water resources and drainage and sewerage management plans and water quality; reducing storm overflow sewerage discharges; modification of water abstraction licences and valuation of land (including agricultural land and buildings) in a drainage district.

• Nature and biodiversity: Biodiversity gain in planning, local nature recovery strategies, conservation strategies, habitats regulation, tree felling and planting and restrictions on use of commodities in commercial activity, which place forest at risk.

• Conservation covenants: A new enforceable legal structure which will allow land owners to give long term commitments, regarding the use and management of land, which are enforceable by a responsible body.

• Specific governance measures for Northern Ireland

Measures affecting rural land owners and businesses

Although virtually all of these measures affect rural land owners and businesses in some capacity or other, we are already finding that the nature, biodiversity and conservation covenants sections are raising the most issues and that these also tie in closely with provisions in the Agriculture Act 2020.

The concept of natural capital has become familiar to rural land owners over the past decade and the current moves to redirect agricultural subsidies towards schemes, which protect and enhance natural capital assets for wider environmental benefit, are starting to give these assets a greater financial significance.

The new biodiversity gain measures in the Environment Act take that process a giant step forward and when coupled together with the legal structure of a conservation covenant, we have a practical way to turn natural capital into significant income producing assets.

Biodiversity gain

Certain pilot local planning authorities have informally been imposing a 10% biodiversity gain on planning consents for some time. The requirement has also been included in General Development Orders for large infrastructure projects, but part 6 of the Environment Act is the first time we have seen this obligation included as a blanket  statutory obligation.

The Secretary of State has power to set up a register of biodiversity gain sites and can control eligibility criteria for registration of a site and for the identity of applicants. The Act also provides for the creation of a system of statutory biodiversity credits, which can be bought and sold by parties involved in the development of land.

In relation to England only, schedule 14 imposes a new mandatory obligation to meet a biodiversity gain objective on the grant of any new planning permission for development; that objective is met by a 10% increase in biodiversity value pre and post-development, either in the onsite habitat, in any registered offsite biodiversity gain allocated to the development or in statutory biodiversity credits purchased for the development.

A new biodiversity condition will be imposed in every planning permission, which will prohibit the starting of any development until a biodiversity gain plan has been submitted and been approved by the planning authority. The plan must specify various matters, including how the development is going to minimise the adverse effect of the development on the biodiversity of the onsite habitat, how the biodiversity values are calculated and how the biodiversity gain will be met.

Local nature recovery strategies

The Environment Act requires local nature recovery strategies to be created to cover the whole of England. These strategies will include a statement of biodiversity priorities for the relevant area and a local habitat map or maps for the whole strategy area. The statement will include a description of opportunities for recovering or enhancing biodiversity and the priorities for the strategy area.

Once created these strategies are likely to impact on the value and use of land; they will no doubt tie in with the awarding of agreements under the Local Nature Recovery and Landscape Recovery tiers of the new Environmental Land Management Scheme (ELMS), providing an income stream for the relevant land. Beyond subsidies, we may also find that such strategic areas of land become a focus for natural capital schemes and biodiversity gain sites, which may attract considerable capital sums.

Tree felling and planting

The Environment Act strengthens the existing protection for trees set out in the Forestry Act 1967, in particular for situations in which woodland changes hands and required restocking has not been carried out by the previous owner.

Regions affected and date for introduction

The biodiversity and conservation covenants parts of the Act apply to both England and Wales and will come into force on a date to be appointed by the Secretary of State in specific regulations. In the Government’s response in July 2019 to the consultation on biodiversity gain, it indicated that it would make provision in the Bill for a transition period of two years from the date on which the Bill received Royal Assent. In fact, this appears to have been left open with the biodiversity provisions in Part 6 due to come into effect “on such day as the Secretary of State may by regulations appoint”.

Like the Agriculture Act 2020, the Environment Act 2021 creates a framework on which new policy can be developed. In some areas the Act goes into considerable detail, however in others, the specifics are left for consultations further down the line.

Reflecting back on the last 5 years which have elapsed since the Brexit vote in 2016, what is striking is the length of the journey the country has made in a fairly short space of time. A decade ago most of the new measures included in this new Act would have been unthinkable, yet many have made it through consultations and Parliament with few fundamental objections.

If you require more information on this article, please contact Ben Sharples. 

The Commercial Development team has a client portfolio including many regional and national leading developers.

These include Eagle One, Midas Construction, St Modwen Developments and Vinci Group.

With the support of the largest Commercial Property department in the South West, our Commercial Devlopment Solicitors have dealt with some of the biggest developments in recent years, from inception through planning, land acquisition and site assembly, through to funding and disposal/letting.

Public law is the law which governs our relationship with the government, and public organisations. It includes administrative and constitutional law, and those public organisations include housing associations, county councils, and utility or transport companies.

Individuals and businesses can take legal action against the government or public organisations in order to protect or assert rights which are taken away from them or restricted. Often that legal action takes the form of an application for Judicial Review of a particular decision or outcome, but it is often the case that other sorts of claim can be pursued

Michelmores act for and against different government or public organisations in a range of matters.

The Construction Leadership Council (CLC) published its new guidance on the 21 October 2021, entitled “COVID-19 Contractual Guidance”. The purpose of this guidance is to provide a suite of documents which show contractual best practice and record keeping to achieve collaborative settlements. It also provides guidance and suitable drafting which can be used in contracts in respect of future projects. In effect, this guidance has updated and pulled together the information and resources previously published on the basis that the consequences of the pandemic and COVID-19 are ongoing.

The guidance strongly recommends that the construction sector approaches the difficulties arising from the pandemic in a constructive and collaborative manner and that risks are proportionately shared.

For those involved in the formation and agreement of contracts for future projects, the CLC’s ‘Template 3’ is of particular interest. This was first published in July 2021 but has now been updated. The Template is relevant for both the JCT and NEC suite of contracts. The Template provides a number of options and draft clauses to choose from. The choice of which option is chosen is dependent upon the risk profile agreed between the parties. For example, Option 1 only allows for an extension of time whereas option 4 allows an extension of time and compensation if the circumstances in respect of COVID-19 change from those as at the ‘base date’.  There is also a clause which allows the parties to terminate the contract if the works are suspended beyond a specified period.

As with all pre-drafted clauses, it is important to review them in some detail and to apply a number a practical scenarios in order to establish whether the clauses properly address the issues. For example, what are the contractual consequences if there is an outbreak of COVID-19 on site which has the effect of reducing or entirely excluding the workforce on-site? Is this a risk which the contractor is in a better position to manage and therefore, should it be treated as a ‘contractor risk’?

If, in the example above, the contractor is entitled to make a claim then it is important that there is sufficient evidence available to show that the delay was actually caused by COVID-19. CLC’s third updated guidance entitled “Record Keeping” addresses this point. It refers to the Society for Construction Law’s Delay and Disruption Protocol (2^nd edition) which emphasises the importance of proper and accurate record keeping. The guidance states that record keeping should be proportionate and in the context of the agreed COVID-19 clauses. Within this context, CLC’s fourth guidance entitled “COVID-19 Impact Assessment Toolkit” provides a construction business with a methodology to demonstrate that COVID-19 has had an adverse impact on its overall business, rather than each specific project. The purpose of methodology is not to replace the strict evidential requirements under the construction contract but to provide technical evidence that COVID-19 has had an impact and can be used in a collaborative negotiation situation.

The CLC has been the source of a number of invaluable resources during the pandemic. For those of us who were involved in advising during the early stages of the outbreak, the guidance and publications were essential; setting the tone of how the construction sector should work through the pandemic. This latest guidance has updated and brought together the information needed when considering how the subject of COVID-19 should be approached now in respect of both ongoing and future projects.

A copy of the guidance can be found here.

The 19th Michelmores Property Awards were held on Thursday 4 November with a glittering awards ceremony and gala dinner at Sandy Park Conference Centre in Exeter. The evening was hosted by former Exeter Chiefs rugby player, Chris Bentley and celebrated outstanding property and construction projects in Bristol, Cornwall, Devon and Wiltshire across ten categories.

The Box in Plymouth took home the coveted Building of the Year award as well as the prize for Leisure and Tourism Project of the year. The exciting and much-lauded project restored and transformed three listed buildings in Plymouth to provide an innovative visitor attraction and a sustainable home for at risk collections and artefacts. Its inspirational and accessible exhibitions successfully connect the people of Plymouth with their world-class heritage.

Market Hall, also in Plymouth won Heritage Project of the Year. The highly successful project saw the part-restoration, part-new development of an abandoned building in Devonport. The scheme embraces the old and the cutting edge whilst keeping the needs of the community at its heart. Alongside co-working spaces, the Hall is home to a 15-metre diameter immersive technology dome – the first of its kind in Europe.

The new Deaf Academy, built on the site of a former educational facility in Exmouth was awarded Project of the Year (over £5m). It was applauded for successfully meeting the complex needs of its occupants. The project has regenerated and revitalised part of the town, creating jobs and re-energising an abandoned building. The judges commented on the team’s ability to create an accessible and welcoming space with demanding user interpretations to create a building of merit.

Langarth Garden Village on the edge of Truro in Cornwall won in the Masterplanning for the Future category. The scheme was praised for its ambitious, place-making vision to create a brand-new community of 10,000 people in a vibrant and inclusive environment.

Sandpit Road in Calne, impressed with its highly commendable ‘hub’ house approach which gives residents the freedom to adapt their home over time, to suit their changing needs. The internal layout of the homes facilitates this whilst retaining formal and informal entrances and adaptable storage. Praise was also given for the scheme’s bespoke nature and the finish of the external design.

This year’s John Laurence Special Contribution Award, which recognises and celebrates outstanding property and construction professionals and organisations in the region, was given to Andrew Maynard for his instrumental role in championing the commercial and residential property sectors, in Exeter, the SW and beyond. Andrew is widely regarded in the business community as being a tour de force for the sector. He has led the way with his commitment, energy and ambition for all things property, as well as being an exemplar in bringing people together, fostering and nurturing relationships through networking, and providing excellent client care.

The other winning projects for 2021 include: the Digital and Data Centre at Exeter College in Devon – Education Project of the Year; Sideshore in Exmouth, Devon – Project of the Year (under £5m); and Wapping Wharf Living (Phase 2) in Bristol – Residential Project of the Year (36 units and over).

Of this year’s Awards, Emma Honey, Head of Property at Michelmores LLP said:

“It was fantastic to bring together members of the South West property and construction industry to celebrate the winners of the Michelmores Property Awards 2021. Despite challenging conditions, the sector has continued to thrive and shown itself to be a robust and innovative part of the region’s economy. My congratulations to our winners on their Awards which are thoroughly well deserved. My thanks to our panel of esteemed judges for their ongoing support and to our sponsors without whom, this event would not happen.”

This year’s winning projects:

Specially Commended Projects

NHS Nightingale Hospital Bristol – submitted by Kier Regional Building

NHS Nightingale Hospital Exeter – submitted by BAM Construction

Plymouth Lighthouse Labs – Kier Regional Building and University Hospitals Plymouth NHS Trust

True partnership

Led by Ben Hogan and key partner David Cave, our award-winning Projects & Infrastructure team is ranked Band 1 nationally by Chambers & Partners. Our team consists of lawyers who are experts in the establishment, management and termination/handback of infrastructure projects in a broad variety of sectors. In addition, our team has vast experience of project finance transactions, facilities management services and large-scale governmental and commercial projects.

Our team draws on the expertise of specialist lawyers from other teams within the firm, including procurement, construction, real estate, employment, corporate and banking, who have significant experience of working on infrastructure project transactions. This is key to us providing the seamless and first class service our clients expect.

We are renowned for building strong and lasting relationships with our clients and commence every client relationship with the goal of becoming and remaining a trusted adviser throughout the life cycle of the relevant project.

Sustainable solutions for sustainable infrastructure

Having acted for a wide range of procuring authorities, sponsors, service providers and lenders, we understand the many challenges facing project stakeholders in ensuring that social and economic infrastructure projects deliver the service outcomes required by the procuring entity, as well as projected returns to lenders, investors and subcontractors.

However, we also understand the wider societal and environmental context in which our clients operate and are committed to helping our clients to find ways to deliver truly sustainable infrastructure assets that achieve their social or economic purpose, are energy efficient, resilient and are fully integrated with related systems and networks.

Despite attempts at simplification by government, navigating the planning system remains a potentially time consuming and costly process. Our planning solicitors are experienced at helping clients through this process, whether at the strategic level as the first steps are made towards having a site allocated, helping to shape planning applications, negotiating planning obligation agreements or advising in relation to appeals and legal challenges at the decision making stage.

Our clients include national and regional house builders, commercial developers, government bodies, planning authorities, private sector companies and landed estates.

Rooney v Leicester City Council EA-2020-000070-DA and EA-2021-000256-DA

Since our recent article on the menopause (found here), a new Employment Appeal Tribunal (EAT) decision has explored the conduct of Tribunals when assessing menopause as a disability.

What constitutes a disability under the Equality Act 2010 (EqA)?

Under the EqA a person has a disability if:

• They have a physical or mental impairment; and
• The impairment has a substantial and long-term (i.e. it has or is likely to last for at least 12 months or for life) adverse effect on their ability to carry out normal day-to-day activities.

With the symptoms of menopause including hot flushes, sweats, difficulty sleeping, headaches, anxiety, joint stiffness and palpitations, it is likely that, in certain cases, this will meet the test for disability in law.

What are the facts of the case?

The Claimant, Ms Rooney, worked for Leicester City Council as a social worker until her resignation. Following her resignation, Ms Rooney brought a claim for constructive dismissal, but the claim form included an acceptance from her solicitors that her menopause symptoms did not amount to a disability under the EqA.

Ms Rooney then presented a second claim for disability and sex discrimination, harassment and victimisation in relation to her menopause symptoms, which she claimed had been ongoing for two years and included insomnia, fatigues, confusion, light-headedness, confusion, stress, depression, anxiety, palpitations, memory loss, migraines and hot flushes. Ms Rooney highlighted the negative impact this had on her life, that her GP had prescribed hormone replacement therapy and that she had been referred to a consultant at a specialist menopause clinic.

What did the Tribunal decide?

At a preliminary hearing Ms Rooney applied to remove the statement in her claim form that conceded that she was not disabled. The Tribunal subsequently held at a second preliminary hearing that Ms Rooney did not have a disability and her claims were struck out.

Ms Rooney appealed to the EAT.

What did the EAT decide?

The EAT held that the Tribunal erred in law in deciding Ms Rooney was not disabled, and striking out her discrimination claims, without sufficient analysis and or providing sufficient reasons for the decision.

The EAT based this decision on the Tribunal erring in:

• Balancing what Ms Rooney could and could not do from day to day (which contradicted previous case law);
• Failing to consider the meaning of ‘long-term’ under the EqA in assessing whether Ms Rooney was disabled;
• Deciding that Ms Rooney’s menopause symptoms did not have more than a minor or trivial effect on her life;
• Finding that Ms Rooney was not disabled based on the fact that the medical evidence did not support her impact statement and the fact that her original claim stated that she was not disabled;
• Finding that there was nothing to suggest that Ms Rooney’s physical symptoms were long-term or had a substantial effect on her day-to-day activities.

The EAT also upheld the appeal against the strike-out of the sex discrimination, harassment and victimisation claims.

The case is yet to be redecided by the Tribunal.

What can Employers do to Address Menopause in the workplace?

This decision highlights the impact that the menopause can have on workers and indicates that there is limited legal precedent for cases in this arena.

Websites such as Unison and ACAS provide useful tips for employers, such as:

• Implementing flexible working to include comfort breaks throughout the day;
• Providing greater support from line management;
• Maintaining a clear and up to date policy on menopause;
• Ensuring easy access to facilities; and
• Implementing reasonable adjustments where there is a negative impact on the employee’s working life.

Employers should aim to keep up to date with any developments in the current Parliamentary Inquiry and may consider seeking legal advice on policies and best practice when dealing with menopause in the workplace.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Rachael Lloyd to discuss any issues you are facing.

The team has significant experience of complex, high-value mixed use schemes, from the site acquisition, planning, site set-up, development financing and construction, through to the disposals of the residential units and the commercial space. The correct legal structure to accommodate early marketing of the new homes, whilst retaining flexibility for the design, letting and disposal of the economic interests in the commercial parts, is essential.

We have delivered these structures at short notice in order to accommodate foreign exhibition deadlines.

On 22 July 2021, the UK Government implemented the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (the “Regulations”). From 11 November 2021, the Regulations require registered persons of all Care Quality Commission (“CQC”) registered care homes (which provide accommodation together with nursing or personal care), including the registered manager, to ensure that a person does not enter the indoor premises of a care home unless they have been fully vaccinated.

Who will be required to have the vaccine and by when?

Whilst certain exemptions do apply, essentially, the Regulations require any employees, agency workers or other contractors, who may be engaged to enter a relevant care home, to be fully vaccinated by 11 November 2021. To comply, this means that affected individuals will need to have had their first vaccination on or before 16 September 2021.

Are there exemptions from having the vaccine?

From 11 November 2021, CQC registered persons are under an obligation to secure that no unvaccinated person enters the care home unless:

1. they are a resident of the care home;
2. they are able to provide evidence that they should not be vaccinated due to a clinical reason;
3. it is reasonably necessary for them to provide emergency assistance in the premises;
4. it is reasonably necessary for them to provide urgent maintenance assistance with respect to the premises;
5. the individual is attending the premises in the execution of their duties as a member of the emergency services;
6. the individual is a friend or relative of a resident;
7. the individual is visiting a resident who is dying;
8. it is reasonably necessary for the individual to provide comfort or support to a resident in relation to their bereavement following the death of a friend or relative; or
9. the individual is under the age of 18.

Visitors can demonstrate their vaccination records using the NHS COVID Pass service either via the NHS App, the NHS website or the NHS COVID Pass letter.

It is important to note that those who are medically exempt will not have to be vaccinated and, similarly, any visitors of care home residents will also be excluded from the new requirements.

What happens if employees do not have the vaccine by the deadline?

As it will not be legal for employees or workers to continue their normal duties on the care home premises until both vaccinations have been received, employers should start to consider and implement procedures to manage staff who do not have both vaccines by the implementation date. It is best practice to involve staff in this preparation.

The relevant Government guidance (here) (“Guidance”) emphasises that employers should explore all options available to staff who do not have proof of the vaccine and do not fall within an exemption. This may involve redeployment to alternative roles, such as those without direct contact with residents, or a temporary cessation of duties. Whilst paid or unpaid leave cannot be a long-term solution, as the Regulations do not have a time limit, this may be considered appropriate where a worker has simply not yet completed the full vaccination course by 11 November 2021 (but intends to do so) or where there are delays in obtaining evidence of medical exemption.

Alternatively, the Guidance also makes it clear that, as long as the employer follows a fair process, the Regulations may provide a fair reason for dismissal. Steps to consider before taking a decision to dismiss are helpfully outlined in the Guidance. It is unlikely that the dismissal will be considered fair in circumstances where the employee or worker is waiting to get their vaccine. However, it may be appropriate where an individual outright refuses to get the vaccine and alternatives to dismissal have been properly explored with them in advance.

Importantly, the Guidance also clarifies that employers will be protected from discrimination claims on the grounds of age, disability, religion or belief and will not breach the Equality Act 2010 on these grounds if they are following the Regulations. However, it will still be crucial that employers follow a fair procedure to ensure that the dismissal is carried out in a fair and non-discriminatory way (even where an employee does not have two years’ service). This protection does not extend to allegations of discrimination on the grounds of race, sex, sexual orientation, pregnancy and maternity, gender reassignment, marriage or civil partnership.

Judicial Review

The Regulations clearly place significant requirements on care workers. As a result, it is perhaps unsurprising that, on 9 September 2021, two care workers issued judicial review proceedings. Judicial review can be sought to challenge the lawfulness of a decision made by a public body. In this case, the proceedings challenge the mandatory vaccination requirement implemented by the Regulations.

The claim is reported to have been brought on five grounds, including that the Regulations are disproportionate, incompatible with laws prohibiting the enforcement of mandatory vaccines and the European Convention on Human Rights, and that they interfere with the public’s right to “bodily integrity”. There are also concerns that they will lead to shortages in care workers.

Whilst it is unlikely that any decision will be given before 11 November 2021, if the proceedings are successful, the Regulations may be deemed unlawful and amended insofar as is necessary.

What should CQC regulated employers be doing?

At this point in time, the Regulations remain in force and employers should proceed on the basis that they will remain in force on 11 November 2021. As such, employers should ensure that they:

• Consider adopting a written vaccination policy, including timescales in which employees may be redeployed after 11 November 2021 in order obtain the vaccine if they haven’t already done so.
• Review their privacy notices and data protection policies to ensure that they are transparent as to any personal data that will be processed to comply with the Regulations.
• Liaise with their workforce between the publication of the Guidance, and the implementation of the vaccination requirement on 11 November 2021.
• From 11 November 2021:
  1. keep up-to-date records of staff vaccination or exemption statuses of staff members and visitors; and
  2. complete a risk assessment for those who are exempt from vaccination to evaluate the potential risk to the spread of COVID-19 caused by unvaccinated but exempt members of staff entering the care home.

We will monitor the judicial review proceedings and circulate an update should the position for care homes change. In the meantime, employers are strongly advised to familiarise themselves with the Guidance.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. 

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.

Licences

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.

Process
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.

This article, authored by Andrew Oldland QC and barrister Nicola Canty, from the Firm’s Marine Regulatory team, has been featured in the December edition of Marine and Maritime Gazette.

Current conservation legislation protects a number of marine wildlife species from intentional or reckless disturbance, taking, harming or killing, and possession or sale of some species. A marine wildlife licence must be obtained if you intend to carry out an activity that would affect a UK or European protected species and is otherwise prohibited under conservation legislation.

Protected species include certain bird species, marine turtles, dolphins, porpoises and whales, seals, and certain species of fish and invertebrates. The legislation in this area can be complex and is spread over a number of different statutes. In general, the Conservation of Habitats and Species Regulations 2010 and the Wildlife and Countryside Act 1981 are the main pieces of legislation for protecting marine wildlife in the England and Wales inshore region.

The Marine Management Organisation (MMO) licenses activity in English water and Welsh offshore waters, with Natural Resources Wales (NRW) licensing activities in the Welsh inshore waters. In England and Wales, the police and the MMO are the main wildlife enforcement bodies. Wildlife offences are currently punishable by a fine or up to 6 month’s imprisonment for the most serious offences.

Is a wildlife licence required?

One example of when a wildlife licence may be required relates to marine development projects that involve piling activities which would result in temporary disturbance to cetaceans from the noise emitted during construction.  Where a European Protected Species is found on site once a project is already underway, this may lead to delays whilst a wildlife licence is applied for, so as to avoid committing a criminal offence.

A wildlife licence would not normally be required if there is a negligible risk of an offence being committed, or if the MMO considers that the proposed mitigation would render any such risk negligible. The MMO will often seek to work with applicants to introduce measures within the marine licence itself to mitigate against any potential impact on the relevant wildlife concerned.

In any event, a wildlife licence will only be issued as a last resort. Licences will usually only be issued where there is no satisfactory alternative and the activity concerned would not be detrimental to the maintenance of the population of the species at a ‘favourable conservation status’.

The MMO currently states that wildlife licence applications take 13 weeks to process. During this time, the MMO would consult with Natural England, the Joint Nature Conservation Committee (JNCC) or both, as appropriate. It should also be noted that there is no appeals mechanism in relation to decisions over the grant of wildlife licences.  If an applicant or an objector wanted to challenge the grant or refusal of a wildlife licence then they would have to challenge the decision by way of judicial review.

The road ahead

Potential applicants should also be aware that the Law Commission has recently completed its wildlife law project to review and reform the ‘complex patchwork of overlapping and sometimes conflicting provisions’ of wildlife law. On 10 November 2015 the Law Commission published a draft Wildlife Bill.  The intention is to provide a unified licensing regime to reduce complexity for prospective applicants.

This draft Bill contains several significant changes to the status quo which would rationalise much of UK wildlife law in one place, but also intends to ensure that the UK is meeting its obligations under international conventions such as the Bonn Convention (the Convention on the Conservation of Migratory Species of Wild Animals) and the Bern Convention (the Convention on the Conservation of European Wildlife and Natural Habitats), as well as the European Wild Birds and Habitats Directives.

Click here to read the full publication.