According to Lara Moore, Associate Solicitor in the Marine and Transport Team at UK law firm Ashfords, Marine licensing under the Marine and Coastal Access Act 2009 is a complex area but appeals and challenges can be made.
Under the Marine and Coastal Access Act 2009 ('MCAA'), a marine license is required for 'licensable activities' taking place up to the mean high water spring tide mark (including tidal estuaries, rivers and channels) unless an exemption applies. The scope of activities requiring a marine licence is huge and includes: construction, alteration or improvement of any works in or over the sea or on or under the sea bed and dredging.
The Marine Management Organisation ('MMO') is broadly responsible for marine licensing in the English inshore area and the English, Welsh and Northern Ireland offshore areas. Natural Resources Wales ('NRW') has similar responsibilities in relation to the Welsh inshore area.
The route of challenge or appeal of marine licensing decisions depends on the decision being challenged and whether you are the applicant or a third party. Third parties challenge by way of Judicial Review; applicants/ licence holders encounter a complex array of routes of appeal with differing time limits applying.
For licence holders, the power, under s72 MCAA for the MMO or NRW, by notice, to vary, suspend or revoke a marine licence at any time is perhaps the most problematic. The potential impacts are obvious; delays, increased costs or ultimately, a project which cannot proceed. Appeals against such a notice from either the MMO or NRW are to the First Tier Tribunal ('FTT') within 28 days.
This is a significantly shorter time limit than appeals against an initial refusal to grant a marine licence or grant subject to conditions, which have a six month time limit and in relation to MMO decisions, are to the Secretary of State (through PINS) or the FTT (if the Secretary of State took the original licensing decision). Appeals against similar NRW decisions are to the Welsh Ministers.
During an appeal the notice will be suspended (in full or part) if it varies the marine licence. However, where the notice revokes or suspends the marine licence, the FTT decides whether or not it remains in force, or is suspended, pending determination of the appeal.
In addition to the MMO or NRW varying a marine licence of their own volition, licence holders regularly apply to vary marine licences (e.g. to change the works methodology). However, the right of appeal to the FTT does not appear to apply to a decision by the MMO or NRW to refuse to vary a licence. As such the correct route of challenge is potentially by way of Judicial Review. However, to the author's knowledge, this is yet to be tested. Given the extremely tight timescales associated with such appeals and the relatively tight timescales related to Judicial Review, it is vital that care is taken to identify the correct route in a timely manner.
The Marine and Transport Team at national law firm, Ashfords LLP, act for a wide range of harbour authorities, developers and marine industry businesses. The team is able to assist with all marine licensing, harbour order, fisheries, shipping and regulatory matters.
