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Under the Marine and Coastal Access Act 2009 ("MCAA") the Marine Management Organisation ("MMO") issues marine licences for a wide range of activities including the construction, alteration or improvement of any works in or over the sea, or, on or under the sea bed. This includes new development and some maintenance activities. A marine licence is required for licensable activities taking place up to the mean spring high tide water mark. Terrestrial planning permission is required down to the mean spring low tide water mark. As a result, some coastal development projects in England require consents under both regimes.
MCAA also provides for the creation of Marine Conservation Zones ("MCZs"). These are a type of marine protected area, established to protect nationally rare or threatened habitats or species. Protected habitats and species are known as ''protected features''. Each is given a conservation objective; ''recover'' or ''maintain''. In England the first MCZ designated was the Lundy MCZ in 2010, followed by a further 27 MCZs in November 2013. There are currently another 23 MCZs under consideration for designation. It is expected that Defra will announce the results of its consultation on this second tranche on 29 January 2016.
Section 126 MCAA provides that public authorities (including the MMO and local planning authorities) are under specific duties when granting authorisations for activities at sites located in or near an MCZ. This includes the grant of marine licences and terrestrial planning permissions. In addition section 125 MCAA, places a general duty on public authorities to exercise their functions in a manner which furthers the conservation objectives stated for the MCZ; or where that is not possible to exercise them in the manner which they consider least hinders the achievement of those objectives.
Local planning authorities with coastal boundaries (including tidal rivers) need to ensure that they comply with their obligations when considering planning permission applications for sites located in or near proposed or designated MCZs. For those unfamiliar with their obligations, particular care should be taken where a marine licence is not required or where councils have not adopted the government's Coastal Concordat. Some local planning authorities may wish to consider complying with their obligations by implementing a process similar to that introduced by the MMO in April 2013 .
The MMO process runs alongside the marine licensing process and involves 3 stages; screening, stage 1 and stage 2. At each stage in the process, the MMO consider the feature(s) for which the MCZ(s) has been designated, the current status of those features and the conservation objectives against each feature.
If screening suggests that a proposed activity could affect, other than insignificantly, either the protected features of an MCZ or any ecological or geomorphological process on which conservation of any protected feature of an MCZ is (wholly or in part) dependant, then a Stage 1 assessment is required. If not, the application is screened out.
Under Stage 1 the MMO consults with Statutory Nature Conservation Bodies and considers whether:
- it is satisfied that there is no significant risk of the activity hindering the conservation objectives stated for the MCZ?; and
- it can exercise its functions to further the conservation objectives of the site?
If the answer to the above is yes, a Stage 2 assessment is not required and the marine licensing process can continue. If the answer is no, the MMO then considers whether:
- there are other means of proceeding with the act which would create a substantially lower risk of hindering the achievement of those objectives? (This should include proceeding with it (a) in another manner, or (b) at another location).
If the answer is no, a Stage 2 assessment is required. Under Stage 2 the MMO consults with government departments and local government bodies. It considers if the benefit to the public of proceeding with the act clearly outweighs the risk of damage to the environment that will be created by proceeding with it. If the public benefit test is satisfied, then the MMO considers environmental offsetting. If environmental offsetting is not possible, or the public benefit test is not satisfied, the marine licence application will be rejected.