EIA consent deferrals

Andrew Oldland QC of Michelmores
Andrew Oldland QC of Michelmores
Lara Moore, solicitor at Michelmores
Lara Moore, solicitor at Michelmores

In the UK a number of coastal development projects require consent from the Marine Management Organisation (MMO) as well as terrestrial planning permission from the local planning authority. However, thanks to a process known as ‘Regulation 10 deferral’ the process can be significantly simplified. We spoke to Andrew Oldland QC, partner, and Lara Moore, solicitor, at Michelmores for more information on this potentially useful process.

The MMO has been issuing marine licences in England under the Marine and Coastal Access Act 2009 since 6 April 2011 for licensable activities taking place up to the mean spring high-tide water mark. In some river basins this can cover a substantial area. Licensable activities include the construction, alteration or improvement of any works in or over the sea or on or under the seabed and the removal of any substance or object from the seabed.

The complexity of the legislation surrounding coastal development is widely recognised. Usually, unless a Harbour Revision Order is in place which authorises the development, terrestrial planning permission is required down to the mean spring low-tide water mark. Accordingly, a number of coastal development projects require consent under both regimes. Under environmental legislation additional consent may also be required from other regulatory bodies. Recognising this complexity, the government has launched its Coastal Concordat to try to coordinate and streamline the consenting process. The new framework sets out to provide a single point of entry for applicants, who will then be guided to the other regulators responsible for the additional consents required for the development.

Where a development requires Environmental Impact Assessment (EIA) consent, the Coastal Concordat appoints a single lead authority and all the regulators are expected to coordinate their approach to determine all their likely environmental evidence requirements. Despite this, while the Coastal Concordat is still gaining traction, the situation remains particularly complex for such developments.

However, within the legislation, there is the potential for regulators to dispense with or defer regulatory responsibilities. An example is Regulation 10 of the Marine Works (Environmental Impact Assessment) Regulations ('the MWRs'). Under Regulation 10 if an EIA assessment of the project has already been, is being, or will be, carried out by another authority (e.g. a local planning authority in respect of planning permission) then, when considering a marine licence application, the MMO has the ability to defer its responsibilities to the EIA consent decision of that authority. The MMO screens the Environmental Statement to ensure that it contains all the information required under the MWRs and can then defer its decision. It is therefore important that if applicants wish to request a Regulation 10 deferral they ensure that any Environmental Statement prepared for the development contains all the information required by both the terrestrial and marine EIA regulations. An example of an area which is often overlooked is marine noise caused by piling.

The successful grant of a Regulation 10 deferral can save an applicant significant time and expense because the project does not have to go through the full EIA process for a second time. Yet, despite its importance, the deferral process is not widely understood. The MMO is rarely asked for a Regulation 10 deferral and the grant of one remains unusual, presumably due to a lack of awareness among applicants. Where an appropriate Environmental Statement exists, applicants should raise the possibility of a Regulation 10 deferral with the MMO as early as possible during pre-application discussions.

Michelmores’ has offices in Bristol, London and Exeter and is able to advise on all aspects of marine planning and licensing and the interaction between marine licensing and terrestrial planning (including listed building consent), environmental law and harbour 'works orders'.

By Jake Frith

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