Reform of Licensing for Marine Works: Improvementand Clarification Under the Marine and Coastal AccessBill 2008

Jason Lowther • Michael Williams

Published online: 22 October 2009

� Springer Science+Business Media B.V. 2009

Abstract Important legislative change is underway in the marine environment. In

relation to the licensing of activities which are carried out in this zone the need for

change is significant for many interested sectors such as: energy generation; the

extractive industries; port and harbour developments; fisheries; and bodies involved

with the conservation of both natural and archaeological/cultural resources. This

article considers the main aspects of the existing legislative situation in relation to

marine licensing and then goes on to describe and evaluate the proposed new system

to be substituted through the Marine and Coastal Access Bill (the Bill). In order to

provide some basis for evaluation, the protection of underwater cultural heritage

(UCH) provides a backdrop against which to assess the developments. The means

by which interventions in the marine environment are currently regulated are

complex, in some situations overlapping, and in others questionable as to the overall

coherence of their regulatory effects. Parties which might be considered to be

‘interested’ are often excluded from formal deliberations, guidance is patchy,

although proliferating, and voluntary agreements (BMAPA 2003; COWRIE 2007)

on best practice within sectors have been developed in the absence of official

provision—while these are undoubtedly useful, they lack the rigour of systematic

legislative underpinning, which it is hoped that the Bill will address.

J. Lowther (&)

Senior Lecturer in Law, Plymouth Law School, University of Plymouth,

Drakes Circus, Plymouth PL4 8AA, UK

e-mail: jason.lowther@plymouth.ac.uk

M. Williams

Senior Lecturer in Law, School of Law, Social Sciences and Communications,

Wolverhampton WV1 1SB, UK

e-mail: m.v.williams@wlv.ac.uk

123

Liverpool Law Rev (2009) 30:115–130

DOI 10.1007/s10991-009-9059-8

Keywords Marine and coastal access bill � Marine licensing � Dredging �Dumping � Environmental protection � Sustainable development �Cultural heritage

Introduction

The island geography of the UK plays host to a vast array of UCH. There are some

36,000 known ship and aircraft wrecks, 5,200 of which are marked and identified1;

Palaeolithic remains have been discovered in marine aggregates dredged from the

sea floor; Mesolithic sites have been discovered in the English Channel and the

North Sea2; and the coastal waters of Devon host the site of one of the world’s

oldest known shipwrecks, some 3,500 years old.3 Legislation such as the Protection

of Wrecks Act 19734 can offer protection from more dramatic, and some might say

systematic, damage to or theft from the limited number of sites5 subject to

designation. That, however, is only part of the picture. First, the 1973 Act only

applies to the extent of UK territorial waters: licensable activities and many other

sites occur way beyond that twelve nautical-mile limit. Further, considerable

damage could be done to unprotected UCH, and the wider environment, by

relatively mundane activities, such as demersal trawling operations, cable laying,

dredging and other engineering works, the majority, although not all of which

operate pursuant to some form of licensing provision. The laudable increase in

renewable energy provision6 will have dramatic effects on the offshore environ-

ment, and, again, must be effectively regulated to limit its wider environmental and

UCH impacts. This article will consider the position in relation to certain of the

licensed activities, their current regimes and how these might be improved by the

coming into force of the provisions set out in the Bill. Commercial fishing is not

considered in this evaluation for reasons of space, as well as the fact that it is

considered by Part 7 of the Bill, and is a shared competence, regulated on a

European Community-wide basis by virtue of the Common Fisheries Policy.

The Central Themes

The principal issues for consideration gravitate around a set of related themes

comprised in the need to ensure that marine resources are better managed. The

Marine Bill White Paper, A Sea Change7 envisaged ‘clean, healthy, safe productive

1 JNAPC (2007).2 Department of Trade and Industry (2002), Hampshire and Wight Trust for Maritime Archaeology

(2009).3 British Archaeology (2006).4 1973 c.33. Other legislation, such as the National Heritage Act 2002, c.14, and the Ancient Monuments

and Archaeological Areas Act 1979, c.46 may also apply.5 English Heritage lists 61 designated sites around the UK, see for example: http://www.english-

heritage.org.uk/server/show/nav.8385.6 DECC (2009), see Ch’s 1 and 4 in particular. The UK Renewable Energy Strategy Cm 7686.7 Defra (2007).

116 J. Lowther, M. Williams

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and biologically diverse oceans and seas’ delivered within an overarching

framework of sustainable development, explained in the White Paper as reflecting

a shared set of principles8 to be delivered by the Bill:

• ‘‘living within environmental limits;

• ensuring a strong, healthy and just society;

• achieving a sustainable economy;

• promoting good governance; and

• using sound science responsibly’’.

Moving from the general to the more specific, the key drivers for improved

marine management have been identified by Defra as enhanced conservation of both

nature and heritage; adapting to the challenges presented by climate change;

ensuring the effective promotion of commerce, by effective ports, minerals and

renewable energy obligations9; and the promotion of recreational activities such as

angling and water sports.10 These are a diverse range of concerns, comfortably

addressing environmental, social and economic sustainability and which will thus

require a careful strategic and policy approach to managing licensable activities in

the marine zone in order to better utilise and conserve marine resources. The explicit

reference to heritage concerns is encouraging, particularly in the context of a

conservation agenda that has in recent times been almost exclusively focused

towards species and habitat, albeit at nowhere approaching an adequate level.11

Some very real concerns about the current system underpin the root and branch

reform which will be examined further in more detail below. For now, it suffices to say

first, that there is considerable complexity in the current system, whereby two basic

overarching legislative regimes, as well as a number of issue-specific Acts of

Parliament, and a considerable raft of secondary legislation, attempt to regulate some,

although not all, of the interventions which are undertaken offshore. Charting what

requirements apply in given circumstances is not always obvious: to take one example,

requirements for the assessment of the environmental impact of certain projects, and

what that assessment should include, have been far from clear despite recent secondary

legislation.12 Add to that mix a panoply of regulators,13 and a distinct lack of clarity in

the arrangements for the devolved administrations, and it is not difficult to appreciate

the byzantine character of the system as it currently exists. A further reason for the

reforms is that there are currently gaps in the licensing system. A good example of this

8 Ibid, although for a fuller explanation as to the meaning of these principles, see also, Sustainable

Development (2008).9 For a good account of offshore wind farm developments see e.g., Plant (2003).10 See, among the many policy and explanatory documents in relation to the Bill, Defra/WAG (2008).11 Although beyond the scope of this article witness for example the paucity of Marine Nature Reserves

which could have been established under the Wildlife and Countryside Act 1981 c.69; the UK’s imperfect

implementation of relevant EC legislation; and the resultant overhaul proposed in Part 5 of the Bill.12 See for example, the Marine Works(Environmental Impact Assessment) Regulations 2007, SI 2007/

1518; and Environmental Impact Assessment and Natural Habitats (Extraction of Minerals by Marine

Dredging) (England and Northern Ireland) Regulations 2007, SI 2007/1067.13 Including the Marine and Fisheries Agency, Local Authorities, the Environment Agency and the

Department for Transport.

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is dredging, which has obvious environmental consequences, and is usually

subdivided in terms of its being either navigational or acquisitive.14 In the case of

the former, there are significant dredging operations which are not covered by existing

legislation, so that issues around conservation sensitivity are unable to be formally

considered. Allied to the incomplete coverage of activities currently undertaken which

should be the subject of a licence, there is the need for the licensing of new activities, as

required by the march of technology, such as the concept of carbon capture and

storage15 or the intensification of others, such as offshore renewable energy

generation.

The continued extension of European law requirements into these regulatory

areas, and the development of EC policy in relation to, say, Integrated Coastal Zone

Management (ICZM),16 also provide a fertile opportunity for the UK to change its

laws and stay within or even ahead of its EC and international obligations or

commitments. EC law has necessitated considerable ‘bolt-on’ changes to existing

laws. This can be seen, for example in the development of formalised and robust

methods of, assessment of the environmental impacts of certain projects and, at a

more strategic level, the impact of plans.17 The licensing of certain marine activities

could certainly fall within the contemplation of this body of law, as well as

potentially overlapping with enhanced control of infrastructure planning projects as

envisaged by the Planning Act 2008.18 Additionally, more specific protection for

marine living resources has been provided by the extension to the continental shelf19

of habitat and species protection as a result of the habitats directive.20

Current Position: FEPA and the CPA

At present, and until the proposed secondary legislation21 gives effect to the Bill’s

provisions, the offshore licensing arrangements centre around two principal

legislative schemes: that contained in Part II of the Food and Environmental

14 For further explanation of the nuances involved see further below and, for a more technical account

see the Marine and Fisheries Agency http://www.mfa.gov.uk/environment/works/consents-dredging.htm.15 See for e.g., Professor Lee’s article in this journal, and also the EC’s Carbon Capture Directive

(proposed) (2008) http://ec.europa.eu/environment/climat/ccs/eccp1_en.htm.16 EC/ICZM (2007) gives the most recent and evaluated collection of policy directions in this area.17 As to which see Directive 85/337/EEC, as amended by Directives 97/11/EC and 2003/35/EC on the

assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175/40);

and Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the

environment (OJ 2001 L 197/30).18 2008 c.29.19 R v Secretary of state for trade and industry ex parte Greenpeace (no. 1) [1998] Env. LR 415; R vSecretary of state for trade and industry ex parte Greenpeace (no. 2) [2000] Env. LR 221 and the

resulting Offshore Marine Conservation (Natural Habitats, & c.) Regulations 2007 (SI 2007/1842).20 Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L

206/7).21 For details of which see Defra Consultation (2009).

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Protection Act 198522 (FEPA); and the Coast Protection Act 194923 (CPA). The

drafters of neither of the schemes as they were originally enacted envisaged the

contemporary policy drivers underpinning the Bill and so the consolidation and

streamlining of them both is perhaps inevitable. FEPA, inter alia, replaced the

Dumping at Sea Act 1974, and established a set of provisions in relation to the

dumping and/or incineration of materials at sea. Both activities require licensing, as

does the placing of objects on or under the seabed.24 All of the activities in Part II of

FEPA s.8 require the licensing authority, currently the Marine and Fisheries Agency

(MFA), to consider the protection of the marine environment, the living resources

which are supported by that environment, human health and to prevent interference

with other legitimate uses of the sea in making its determination, and is empowered

to apply licence conditions to that effect.

A limited appeal mechanism against refusal, variation or termination of a licence is

currently provided for in Schedule 3, which has been recognised by Defra as not being

sufficiently robust in terms of its accountability and/or transparency and thus ripe for

amendment.25 Offences are applied to the unlicensed carrying-out of an activity for

which FEPA requires a licence and certain, limited, defences are permitted in situations

necessary to save a vessel or human life.26 FEPA imposes both a territorial and

jurisdictional application, so that offences may be committed by UK flagged vessels

anywhere in the world, and foreign flagged vessels may commit offences while in UK

territorial waters. The Act itself has been subject to considerable amendment27 over time

as it has been stretched to fit with new imperatives, and to cover a far greater regulatory

basis which is applied to wider environmental considerations.

The long title of the CPA states that it is legislation targeted towards protecting

the UK coastline against erosion and encroachment by the sea, whilst at the same

time ensuring the safety of navigation. This is helpfully illustrated by the (three)

conditions in the licence granted by the Department of Transport in respect of the

sinking of HMS Scylla to create an artificial reef in Whitsand Bay, Cornwall, in

March 2004.28 Condition 1 requires a buoy of a defined specification to be

positioned seaward of the vessel, and condition 3 makes it clear that the relevant

authorities are informed so as to make alterations to nautical charts for the purpose

of navigational safety. This contrasts with the considerably more complex set of

conditions contained in the FEPA licence,29 applied by the, then, marine consents

unit of Defra relating to the same event, which covers issues as diverse as the

22 1985 c.48.23 1949 c.74.24 FEPA, Part II and Schedule 4 provide the detail of the system. A recent example of the licensing

process is seen in Isle of Anglesey CC v Welsh Ministers [2008] EWHC 921, involving the potential

impact of a marina construction on the public right to fish comprised in mussel beds.25 Defra/WAG (2008).26 Section ‘‘Common enforcement powers’’—note ‘vessel’ is used as shorthand here for the more broadly

encompassing meaning given in the statute.27 By, for example the Environmental Protection Act 1990 c.43, the Petroleum Act 1998 c.17 and the

Energy Act 2008 c.32 amongst others.28 Marine and Fisheries Agency (2007).29 The sinking constituted a ‘deposit’ pursuant to FEPA and thus required a licence.

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removal of debris generated from the sinking; the imposition of an initial 10 year

monitoring period; and the deployment of acoustic devices to deter marine animals

during the sinking operation. This usefully illustrates the difference in focus

between the regimes, while also demonstrating the lack of coherence in the overall

system, whereby two regulators using overlapping powers were required to be

involved in a decision relating to one relatively straight-forward intervention. It

perhaps should not be difficult to unite safety and environmental functions. The

transfer of functions for both regimes to the MFA was a useful first step towards the

unity in regulator function envisaged by the establishment of the MMO, as to which

see further below.

As with FEPA the CPA has been subject to some considerable amendment, and is

also haunted by the application of several local Acts of Parliament which grant

powers to certain port and harbour authorities30 enabling certain developments to be

undertaken, and specifically to act in furtherance of the promotion of navigational

safety. Of specific relevance in the licensing context is s.34 CPA. The section

requires that an applicant obtains consent from the MFA for: construction, alteration

or improvement of works, on under or over part of seashore below the level of mean

high water springs; deposit of objects or materials below that level; or the removal

of any object or materials below that level. The basis for the need for consent is

solely in relation to navigational safety, although the precise meaning of ‘interfering

with navigation’ has necessitated recourse to the courts and subsequent legislative

amendment.31

As with FEPA, the consents can be made conditional, or even the subject of a

local inquiry,32 although significant exemptions from the need to obtain a consent

appear in section 35. Amongst those exemptions is a specific exception for certain

dredging operations33 which are governed by the operation of local Acts: those

operations also include the deposit of the dredged materials—deposits into the

marine environment, including that of dredged material are usually a matter

governed by FEPA. Certain other operations, such as those involving deposits into

the marine environment, other than those governed by the exemption in s.35,

would also necessitate a FEPA licence, as illustrated with the Scylla example

above—thus giving a flavour of the fragmented nature of the consenting

procedures which may be applicable to one given operation. The fact that

different imperatives are in play depending upon the measure suggests the

possibility for disjunction, even with the likelihood of de facto if not statutorily

required consultation between agencies.34

30 And which are able to be altered or repealed by virtue of s.31 CPA.31 For and interesting example of a narrow construction placed upon s34 see for example Lord Denning

MR in Harwich Harbour Conservancy Board v Secretary of State for the Environment, East SuffolkCounty Council and Stour River Estate [1975] 1 Lloyd’s Rep. 334. The broader view, encompassing

impacts relational to the works’ end use has been clarified by subsequent amendment: s.34(3A).32 CPA s.34(2).33 CPA s.35(1)(c).34 For consultation practice, see e.g., Marine and Fisheries Agency (2007).

120 J. Lowther, M. Williams

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Current Position: Additional Regulatory Systems

In addition to these more generic sets of provisions, a series of miscellaneous

powers operate to regulate, amongst other things, oil and gas exploration,35 flood

defences,36 communications and other cable-laying.37 Some of these requirements

are statutory, such as for measures covered under the Transport and Works Act 1992

or those under local Harbours Acts; others driven by specific statutory instrument. In

each of these situations consents or licences are required for the activities and

granted, usually, on behalf of the Secretary of State for Defra. It is also to be

remembered that marine schemes will frequently involve developments on land—

such as the landfall of cabling, or some harbour works. Such developments may

need to be subject to yet another consent regime, such as that applied under planning

legislation. The mix and match of seaward and landward scheme throws up its own

complications, and for the same reasons of space as stated above the detail of these

numerous procedures is beyond the scope of this paper.

Changes Under the Bill

The Bill seeks to provide an antidote to the schemes discussed above. It is hoped

that a streamlining of the CPA and FEPA systems will remove ‘the complexity andoverlap that has evolved over the years through numerous amendments and EUrequirements’.38 This will involve a consolidation of licensing requirements and

will also pass the responsibility for licensing and enforcement from the Secretaries

of State for Defra and DECC on to the newly constituted Marine Management

Organisation (MMO), in England at least.39 The basic licensing requirement is set

out in Part 4 of the Bill at cl.65, which imposes a prohibition on activity requiring a

licence unless one is held by the person undertaking the activity. Licensable marine

activities are defined in cl.66 and include40 deposits from vessels, vehicles, aircraft

and marine structures into the sea or on or under the seabed, either within the UK

licensing area41 or anywhere from a British flagged vessel (etc.); scuttling of any

35 Such provisions are to remain outside of the new system of licensing under the Bill.36 S.109 Water Resources Act 1991 c.57.37 For example pursuant to the Telecommunications Act 1984, as amended by the Communications Act

2003 (consent by MFA on behalf of the Secretary of State, Defra).38 Defra/WAG (2008, p. 6).39 For the purposes of simplicity and brevity, focus is limited to the current licensing bodies as they will

exist in England, and in the wider UK for non-devolved matters (although the reader should note that

different institutional arrangements operate in the devolved administrations). Detail as to the identity of

the relevant bodies for licensing, in relation to issue or geographical area) are contained in cl.113 of the

Bill.40 Please note the list given here is illustrative only. Refer to the section for an exhaustive list of

operations.41 Bill, cl.66(3). This includes all of the UK Marine Area, with the exclusion of Scottish inshore waters.

The UK Marine area itself is defined in cl.42 ‘‘(1) For the purposes of this Act, the ‘‘UK marine area’’

consists of the following: (a) the area of sea within the seaward limits of the territorial sea adjacent to the

United Kingdom, (b) any area of sea within the limits of the exclusive economic zone, (c) the area of sea

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vessel (etc.) either in the UK licensing area or if British flagged; construction or

improvement of works in or over the sea, or on or under the seabed; to use a vessel

(etc.) to remove any material from the seabed within the UK licensing area;

dredging; deposit of explosives; and the incineration of material at sea. Certain

exemptions apply by virtue of cl.74, whereby the MMO is able to exempt certain

activities by order, which may or may not be conditional.42 It is clear that there is a

far better coverage of activities, and by bringing the majority of the consenting/

licensing regimes together, it is anticipated that there will be efficiency gains for

both regulator and regulated.

Harbour Works

Harbour works provide a clear example of the rationalisation of the system.43

Presently, an operator seeking to undertake harbour works would require,

potentially, consents pursuant to five separate pieces of legislation: the Harbours

Act 1964; FEPA; the Water Resources Act 1991; the Town and Country Planning

Act 1990; and the CPA. The consents would then be considered by four separate

regulators: the Department for Transport; the MFA; the Environment Agency; and a

local authority. Assuming that the regulators grant the consents applied for, the

operator would then receive five individual consents. The changed position would

see four applications made, but to only one body, the MMO. The Bill provides for a

special process in relation to harbour works in cl.78, by relating the procedure to

that used to obtain a Harbour Order under the Harbours Act 1964. Using a process

provided for in Schedule 3 of the Harbours Act 1964, which requires a range of

considerations to be taken into account, including environmental and heritage,44 the

MMO considers applications, and the resulting deliberations may result in two

permissions: a marine licence, and a harbour order, which could also include a

planning permission. There is also the potential for the MMO to be involved with

the Infrastructure Planning Commission, which will be jointly responsible for so-

called ‘nationally significant projects’, regulated pursuant to the Planning Act

2008.45 The objective is to remove inconsistencies, and to adopt a framework of

common timescales to determine applications, enabling operators to plan their

operations more effectively, and that the fullest range of factors consequent upon a

development can be considered together.

Footnote 41 continued

within the limits of the UK sector of the continental shelf (so far as not falling within the area mentioned

in paragraph (b), and see also subsection (2)), and includes the bed and subsoil of the sea within those

areas…’’42 Specific exemptions in relation to, for example, oil and gas exploration, carbon dioxide storage,

electricity and telecommunications works are provided for in cls77–81.43 To which further detail can be found in Defra/WAG (2008 pp. 8, 9).44 Harbours Act 1964 c.40, Schedule 3, paras 1 and 4.45 2008 c.49, s.1 establishes the Infrastructure Planning Commission and s.14 defines ‘nationally

significant projects’.

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Dredging

A second example of a changed regulatory landscape as a result of the Bill can be seen

in relation to dredging. The nature of the activity itself has unquestionable

environmental and heritage impacts. As a result, the current regulatory structure does

impose some controls through FEPA, the CPA, the Harbours Act 1964, a variety of

local Acts and through both specific and general secondary legislation.46 The coverage

is by no means comprehensive however, and the practices continue to cause a

significant problem in relation to UCH.47 In the main, dredging operations which are

not concerned with the acquisition of materials, such as aggregates, are usually

concerned with port and navigational issues. Aggregates dredging is controlled by

specific legislation, and the industry body, BMAPA, is, as noted above, party to a

voluntary agreement on best practice in relation to the discovery of material of

archaeological or heritage interest and has established a protocol to be followed in

cases where UCH is discovered.

New or so-called ‘capital’ dredging projects, which would be undertaken to create, as

opposed to merely maintain, navigational channels or berthing points within a port are

the subject of relatively comprehensive environmental controls through the legislation

above. Environmental assessments are required, and in the main, even where local Acts

provide an exemption to the application of FEPA or the CPA, permission is still usually

required from the Secretary of State. There is, however, a confusing regulatory position

in relation to so-called maintenance dredging: which as its name suggests is concerned

with the upkeep of existing dredged berths or navigational channels. The operation of

many local Acts does not require any consenting process for the majority of maintenance

dredging, and there is a curious position which then arises in relation to whether or not

the system should be subject to an environmental assessment and thus conform to the

purpose of the technique and all aspects of the stated drivers for the Bill. That discussion

is beyond the scope of this consideration, however.

Further, not all dredging is currently regulated. Some, such as water-jetting, or

ploughing, does not require the removal and subsequent deposit of any materials

from the sea bed, rather, it is left to drift from one place to another, rather than being

deliberately collected and then deposited elsewhere. This type of operation is able to

expose UCH, and particularly that which may be subject to exposure through the

collapse of sediments at the margins of dredged channels. The Bill tackles this head

on and makes any dredging operation, subject to the exceptions which will be

highlighted below, a licensable activity.48 Thus according to cl.66(2) ‘‘‘dredging’’

includes using any device to move any material (whether or not suspended in water)

from one part of the sea or seabed to another part’.

There are notable exceptions however, which maintains the ability for certain

dredging operations to operate free of the Bill’s licensing provisions when it is

46 SI 2007/1067 The Environmental Impact Assessment and Natural Habitats (Extraction of Minerals by

Marine Dredging) (England and Northern Ireland) Regulations 2007 (for marine aggregate dredging); SI

2007/1518 The Marine Works (Environmental Impact Assessment) Regulations 2007 (for marine works).47 See for example in relation to the discovery of a sixteenth century wreck in the Princes Channel

approach to the Port of London, http://www.wessexarch.co.uk/projects/marine/thameswreck/index.html.48 Bill, cl.66(1)(9).

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undertaken by or on behalf of a harbour authority and is carried out pursuant to the

provisions of other legislation. That legislation includes the Harbours Act 1964, and

the various local Acts in application for particular ports.49 In the first case, there is

provision for a process to determine whether or not the dredging operations is likely

to be significant enough to warrant a consideration of its environmental and UCH

impacts, in the same way as described for harbour works above; in the latter, there is

not. It seems that the Bill, despite providing a better general level of regulation for

dredging operations, has failed to close this particular gap.

Enforcement: Changes to Regulatory Offences

Any regulatory scheme is only as effective as its enforcement provisions. According

to the joint Defra/WAG guidance document on licensing, ‘‘Marine Bill changes willensure that all offences can be addressed in a proportionate, flexible and risk-basedway’’. The Bill reflects an overall contemporary culture-shift in the perception of

purpose and impact of the enforcement regimes for a variety of what might be

loosely called ‘regulatory offences’. The change has been influenced by publication

of a review of regulatory sanctions by Professor Richard Macrory,50 which, amongst

the many findings, it was recommended that a better range of sanctions be

marshalled against offenders.

‘Better’ in this context does not necessarily translate into ‘harsher’: rather, the

point is to consider what the mechanism sets out to achieve, be that overall

compliance or the prevention or remediation of environmental damage. Evidence

collected during the production of the report suggested that ‘‘many regulators areheavily reliant on one tool, namely criminal prosecution, as the main sanctionshould industry or individuals be unwilling or unable to follow advice and complywith legal obligations. Criminal prosecution may not be, in all circumstances, themost appropriate sanction to ensure that non-compliance is addressed, any damagecaused is remedied or behaviour is changed’’.51 The report contained a series of

recommendations, some of which related to the need for a fuller and more targeted

and proportionate range of regulatory responses, rather than just the blunt

instrument of a criminal prosecution. Part 3 of the Regulatory Sanctions and

Enforcement Act 200852 (RSEA) implements some of the recommendations from

the report, and permits Ministers53 to enable regulators to apply different sanctions,

such as fixed monetary penalties; and a series of notices and enforcement

undertakings.54 These alternatives fall short of criminal prosecution, which remains

an option should any of the other sanctions fail to be adhered to by the offender.55

49 Such as the Port of London Act 1968, the Sutton Harbour Act 1847, and many others.50 Macrory (2006); see also Hampton (2005).51 Macrory (2006, para E.9).52 2008 c.13.53 RSEA 2008, s.36.54 Ibid, ss39–50.55 Ibid.

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Common Enforcement Powers

The Bill makes provision for the MMO to draw upon some of the provisions in the

RSEA. Enforcement is to be undertaken by Marine Enforcement Officers (MEO),

appointed by the MMO and the Welsh Ministers,56 and in respect of marine

licensing offences, the powers of the MEO are set out in cl.231. The Bill addresses

an historic criticism of the current enforcement regimes: that differing powers

pertaining to differing regulators can be confusing for regulator and regulated alike.

The shortcoming is tackled by the introduction of a set of so called ‘commonenforcement powers’.57 These include the power to: stop, board or inspect a vessel

or marine installation58; to enter and inspect premises to carry out enforcement

functions59—under warrant if necessary; search60 and seize61 objects; stop a person

undertaking a regulated activity and require them to show a licence62; and to require

a name and address of a suspect.63 Finally, MEOs are empowered to use reasonable

force if necessary in the exercise of their functions.64 Offences can be committed

against MEOs if the person fails to comply with reasonable requirements as directed

by the officer, or if they obstruct, assault or provide false information to an officer.65

A range of penalties is provided including the possibility of a £50,000 maximum

fine.

Offences

In the licensing context the Bill provides for a range of offences, orders and

sanctions. As above, the rationale is to ensure that the response is proportionate and

reflective of the risk to the marine environment, whilst ensuring that operators are

made responsible for damage that they cause.66 An explicit heritage provision is

included in cl.112(2) which states that ‘…environment includes a reference to anysite(including any site comprising, or comprising the remains of, any vessel, aircraftor marine structure) which is of historic or archaeological interest’. The basic

offence is contained in cl.82, and relates to the breach of the requirement to have a

licence, or breach of the conditions within it. The MMO is required to have made

the person aware of their breach by notice, and should the person fail satisfactorily

56 Bill, cl.230, additionally Royal Naval Officers may also be MEOs and utilise the ‘common

enforcement powers’.57 Bill, cls. 240–257.58 Bill, cl.241.59 Bill, cl.242.60 Bill, cl.245.61 Bill, cl.247.62 Bill, cl.252.63 Bill, cl.251.64 Bill, cl.256.65 Bill, cl.287.66 Defra (2008, p. 15).

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to address the notice, the offence is committed. Penalties upon conviction range

from a maximum £50,000 fine in the magistrates court, to an unlimited fine and/or

potential two year term of imprisonment on indictment. A general emergency

defence67 is made available in circumstances where the action was necessary to save

a vessel, aircraft, marine platform or human life, and that the authorities were

informed of the nature, location and fact of the occurrence as soon as possible.

Failure to provide the information within a reasonable time or if the initial

endangerment was as a result of the defendant of a person under their direction or

control negates the defence.

Compliance and Remediation Notices

To assist the effective enforcement of licensing conditions, compliance68 and

remediation69 notices, may be issued by the MMO. Their functions are slightly

different: the former applying in situations where compliance is believed better

secured by encouragement, or where a final warning prior to penalty is thought

appropriate; the latter concerning damage that has occurred, and so specify the steps

necessary to remediate any harm caused. Compliance notices can be issued to a

person who is acting otherwise than in accordance with the conditions of a licence

held by them. However, and importantly, the notice can only be served in instances

where the activity has not caused, or is unlikely to cause damage to the

environment, human health or other legitimate uses of the sea. This reflects the

lesser, administrative nature of the breach, although non-compliance with the notice

is an offence.70 There is obviously a degree of flexibility and regulatory discretion

involved with such notices, as the determination as to whether a ‘gentle-nudge’

towards compliance or ‘final-warning’ prior to prosecution approach is taken by the

regulator. Much will depend here on the enforcement policy and practice of the

MMO, and it is imagined that it will follow the practice of other regulators such as

the Environment Agency, and Natural England in publishing an enforcement policy

document.71

A remediation notice may be applied if the MMO is of the view that a person

undertaking a licensed activity is committing or has committed an offence in

relation to that activity which has caused or is causing or likely to cause serious

harm to the environment, human health or legitimate uses of the sea.72 The notice

67 Bill, cl.86, other defences are provided in cls.84 and 84 relating to emergency works electronic

communications and activities licensed by another State respectively. There is also a general ‘due

diligence’ defence provided at cl.109.68 Bill, cl.90.69 Bill, cl.91.70 Bill, cl.92, with maximum penalties upon conviction ranging from a £50,000 fine for a summary

conviction through to an unlimited fine and/or potential two year term of imprisonment on indictment.71 The Environment Agency’s policy can be accessed at http://www.environment-agency.gov.uk/static/

documents/enforcement-policy.pdf; Natural England’s at http://www.naturalengland.org.uk/Images/

enforcementpolicy_tcm6-11871.pdf.72 Bill, cl.91.

126 J. Lowther, M. Williams

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requires that the person takes specified steps in relation to the activity in question

and that a sum of money is paid to the MMO to cover the cost of remedial steps that

are required to be taken in consequence of the harm caused. The power to undertake

remedial works is granted to the MMO by cl.106 in circumstances where it is

necessary to remedy serious harm caused to the environment (etc.). This obviously

raises definitional issues in relation to ‘seriousness’, as there is no clue provided by

the Bill. It is to be assumed that this may be the subject of guidance, as is the case in

areas such as land contamination under Part II A of the Environmental Protection

Act 1990, where explicit guidance is provided to determine the significance of any

harm.73 It is also following a far more consistent line of ensuring that it is the

polluter who should pay for the costs of environmental damage: a feature of a

number of contemporary legal provisions, including the recent EC Directive on

environmental liability.74 Failure to comply with a notice, which may be varied or

revoked by the MMO on the service of a further notice on the person concerned, is

an offence attracting, a maximum £50,000 fine on a summary conviction or an

unlimited fine and/or 2 years imprisonment on indictment.

Stop and Emergency Safety Notices

In common, again, with a number of other environmental regulatory systems, and

also the Town and Country Planning Act 199075 the Bill provides for a ‘stop notice’

mechanism to halt activity causing serious harm to the environment (etc.); or

in situations where the MMO is of the view that there is an imminent risk of such

serious harm.76 The notice must be served on a person undertaking a licensable

activity and must specify the date on which it is to take effect. The notice has a

limited, 7 day, initial application, and is able to be renewed by further notice, up to a

total of 35 days, unless the person undertaking the activity is not actually in

possession of a licence for the activity, in which case the notice may apply until

such time as one is granted.

There is the possibility of a further course of action, the emergency safety notice.

Issue of an emergency safety notice is dependent upon the service of a stop notice.77

That notice imposes requirements on the person to whom it is served to undertake to

provide any of: lights, signals or other aids to navigation; or the stationing of guard

ships. Similar powers of variation and renovation are available to the MMO as in

relation to the compliance and remediation notices above, and breach of a notice

attracts the same potential penalties.78 An important appeal mechanism is provided

for in cl.105, whereby the MMO (or other appropriate authority depending on the

73 Defra/CL (2008).74 Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of

environmental damage (OJ 2004 L 143/56).75 1990 c.8, s.183.76 Bill, cl.102.77 Bill, cl.104.78 Bill, cl.100 and cl.102.

Reform of Licensing for Marine Works 127

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location within the devolved administrations), must establish a process by passing

regulations. The appeals process relates to any of the enforcement orders above, as

well as to the revocation, variation or suspension of licence provided for in cl.69.

Obviously, this requirement to pass secondary legislation, means that the exact

nature of the appeals mechanism is not clear at the time of writing, although the

stated aim is for it to be fairer, independent, and more transparent than the current

arrangements.79

Conclusions

Perhaps inevitably, some sectoral interests will feel that the Bill has gone too far;

others that it does not go far enough. Overall it has been broadly welcomed. On

balance, there is undoubtedly a far greater likelihood of coherence in licensing

procedures and considerations. There is also better coverage than at present in

relation to certain activities—dredging being among the better examples in this

regard. From a circumstance where certain types of maintenance dredging were

effectively exempt from any real oversight, unless it was able to fall within the

thresholds which would trigger an environmental impact assessment, it seems as

though all but the most minor maintenance operations will be subject to a degree of

scrutiny pre-licensing unless falling within one of the exemptions. It is hoped that

the initial consultation on secondary legislation relating to the application,

determination, appeals and exemptions provisions, launched on 1st July 2009,80

will bring a greater sense of certainty for the stakeholders. There remains the

curious limbo of some activities and developments which appear to continue to

operate subject to historically anomalous local Acts of Parliament, despite the

fanfares concerning the consolidation of other provisions. This is a feature of the

Bill which suggests a missed opportunity for regulatory clarity and a demonstration

of a balance between competing environmental and economic considerations. The

obscurity of the provisions under which some ports continue to operate perhaps

belies the claimed transparency and accountability in the system, stacking the odds

firmly in favour of the status quo.

The Bill’s progress through the House of Lords resulted in debate upon some

one-thousand amendments.81 In a licensing context, amendments have been made

so as to provide notification to a relevant local authority of applications made in its

area.82 Additionally, a requirement is placed upon licensing authorities to consider a

range of interests, including the protection of the environment and interference with

legitimate uses of the sea, when seeking to exempt an activity from the need for

licensing as provided for by cl.74. The latter amendments in particular are to be

welcomed in an UCH sense, primarily due to the wide interpretation of the term

‘environment’; and the understanding that the study and appreciation of UCH is a

79 Defra/Wag (2008, p.6).80 Defra Consultation (2009).81 Defra/House of Lords (2009).82 Amendment made to Clause 67 of the Bill.

128 J. Lowther, M. Williams

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beneficial ‘other’ use of the sea. In this regard a memorandum of understanding

between the MMO and English Heritage in relation to the marine heritage landscape

is predicted by the MMO83: such a development can only be seen as encouraging. A

related amendment in relation to marine planning also clarifies that cultural

characteristics include historic and archaeological characteristics for marine

planning considerations.84 Obviously, it is a speculative exercise at present in

relation to any determination of the success or otherwise of the reformed licensing

provisions, but the initial feeling is that there has been progress: a single regulator is

a positive step on its own. If the move to a single regulator and a unified system of

licensing, taking account of the broader range of responsibilities encompassed

within the role of the MMO even approaches the success of the Environment

Agency as a single, or lead, regulator for most environmental permitting, then the

system will be a vast improvement on current provision.

The system of enforcement—the much-vaunted single set of common powers—

will depend upon the vigour with which the MMO undertakes its role and the

resources allocated to it. However, as a much simpler system of powers, premised

upon a more transparent rationale, operated by one organisation and applied to a

wider range of activities, could result in significant enforcement gains. Here lies the

potential for a far more effective scheme, drawing upon the very many past

reflections upon other command and control regulatory regimes.85 The flexibility of

the enforcement provisions, taking account of the Macrory review, provides further

opportunity for stakeholder engagement in a proportional system where the

regulatory basis is clear; and where sanctions are relative to breach. There is a better

overall feel to the Bill’s version of marine licensing than the situation as it currently

exists. It is to be hoped that the provisions within it are used to their full potential for

the sustainable utilisation of this most challenging and fragile of environments.

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