Tread carefully with new Marine Licenses
Andrew Oldland QC, a specialist in maritime regulatory law at Michelmores solicitors.
The Marine Management Organisation is the main UK coastal regulator, writes Andrew Oldland QC, a specialist in maritime regulatory law at Michelmores solicitors.
Its remit includes marine planning, protection of the environment and fisheries and operators of UK ports and offshore renewable energy projects should be aware of its powers.
The MMO is a statutory body created by the Marine and Coastal Access Act 2009 [MACAA]. It came into existence in early 2010. It replaced the Marine and Fisheries Agency, but was given enhanced powers of regulation and enforcement. It also assumed many of the maritime responsibilities of the Departments for Energy and Transport but has greater powers of supervision over harbour and port authorities.
On 6 April 2011 the MMO introduced a new system of marine licensing, issuing 'Marine Licences', which replaced and significantly expanded the requirements of its predecessor, the FEPA regime.
FEPA licences had focused on 'deposits in the sea', whereas the new licences are required for activities such as the construction, alteration or improvement of any works and the removal from the seabed of any substance or object. All types of dredging activities, including maintenance dredging are caught. There are, however, a number of exemptions for harbour authorities.
The jurisdictional reach has also been extended to cover the depositing into the sea from British registered vessels wherever they may be in the world or from non-British vessels which have loaded the substance to be deposited in a UK port.
Since the introduction of this new system, which brings with it hefty application fees, there has been a good deal of confusion. The MMO are taking a robust approach, which may not always be born out by the legislation, as to when Marine Licences are required. For example the MMO argues that the replacement, even on a like for like basis, of pilings which secure in place marinas requires a licence. Marina owners are furious at the extra bureaucracy, delays and cost of simply making their existing marinas safe.
Furthermore, many port operators are complaining about the confusion. They operate under Harbour Orders or their own acts of Parliament which grants certain rights, yet these are now subject to MACAA, which removes those rights only to reinstate them in part by way of exemption.
One thing is for sure, port operators must tread carefully. The problem of mud contaminated by TBT and other toxins in port areas is well known. The potential disturbance of such mud is a particular target for the MMO.
In late 2010 the operators of Falmouth docks were ordered to pay financial penalties and costs of over £600,000 for redistributing contaminated mud in order to create the depth required for a marina development within the docks, and these proceedings were taken under the old, weaker licensing system.
Similarly, with the renewable energy sector bringing extra business to the UK's ports, shipyards are increasingly being used as locations to build the structures needed for offshore wind farms and tidal energy systems. The new marine licensing system will bear not only on the planning side of such projects but also on any alterations required to dockyards for their manufacture and transportation.
Dredging can also be a major issue. Many of the UK's ports are in or near environmentally sensitive sites. Falmouth docks again provide a good example. A political battle is raging between the port operators and environmentalists. Dredging will bring business opportunities and jobs, but the steps sought by environmental lobbyists to mitigate any damage to the marine environment are prohibitively expensive.
The new marine licensing system will be the ground on which many such battles will be fought.
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