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Marine licensing: Can you authorise new activities through a marine licence variation?

The Marine Management Organisation (MMO) was established under the Marine and Coastal Access Act (MCAA) 2009, becoming responsible for the marine licensing regime*. Under this regime, marine licences are required to carry out ‘licensable marine activities’ as listed under section 66 of MCAA 2009.

Marine licence variations may be granted under section 72 of MCAA 2009. However, whether or not it is legally correct to authorise new activities through a variation has been quite unprecedented, until now.

Set out in this article** is the recent (24 March 2022) judgement which explores this issue in detail.

*The MMO are responsible for the marine licensing regime (‘the regime’) for English inshore waters and English, Welsh and Northern Irish offshore waters. Marine Scotland are responsible for the regime in Scottish inshore and offshore waters. Natural Resources Wales are responsible for the regime in Welsh inshore waters. The Marine and Fisheries Division is responsible for the regime in Northern Irish Inshore Waters.

** This article was first published on Lexis PSL on 19 April 2022.

SUMMARY

This judicial review considered whether the power to vary a marine licence under section 72 of MCAA 2009 could be used to licence new activities not already authorised under the original marine licence. 

In 2013, MMO approved a marine licence authorising dredging for the Hinkley Point C nuclear power project. However, the sixth variation to the original licence became subject to judicial review when it authorised a new activity, namely the disposal of dredged material.

On 24 March 2022, the judicial review was dismissed. Holgate J declared that the power to vary can properly be used to introduce a new activity “so long as the new activity can properly be said to represent a variation of that licence”. Therefore the power to vary can be used to authorise new activities, subject to the context of the original licence.

Case Details:

  • R (on the application of Tarian Hafren Severn Shield Cyf) v Marine Management Organisation [2022] EWHC 683 (Admin)
  • Judge: Holgate J
  • Date of Judgement: 24 March 2022

WHAT ARE THE PRACTICAL IMPLICATIONS OF THE CASE?

This judicial review provides a strong indication of the circumstances in which new licensable marine activities can be authorised through the variation of a marine licence under section 72 of MCAA 2009. The judgement makes clear that the power to vary a licence “does not exclude the authorisation… so long as that activity can properly be said to represent a variation of that licence”. Therefore the context under which the original marine licence was granted is of fundamental importance when attempting to authorise new activities through a variation (rather than by applying for a new marine licence under section 71 of MCAA 2009).

The Court decided that it would not be appropriate to seek to define exhaustively what may or may not constitute a variation of a marine licence, or to define the outermost reach of the power to vary. However, it considered what may qualify as a variation will be affected by:

  • the terms of the original licence (including its conditions);
  • the nature and extent of the activities already authorised by that document and any previous variations;
  • the nature and extent of the proposed addition to the licence; and
  • the nature of the project to which the marine licence relates or any other relevant statutory authorisation, for example an authorisation referred to in the marine licence or which forms part of the context for the licence.

The relationship between all these factors is plainly relevant. These considerations may to some extent involve matters of judgment, which Parliament has entrusted to the MMO, and which it is well qualified to assess.

Practitioners therefore ought to thoroughly consider the matters above when advising as to whether a new activity sought is within the ambit of the variation power afforded by section 72 of the MCAA 2009 or whether a new marine licence should be sought under section 71 MCAA 2009.

Additionally, practitioners should consider the relevance of wider regulations, including but not limited to the Water Framework Directive (Directive 2000/60/EC), The Waste (England and Wales) Regulations 2011 (SI 2011 No. 988), and the Conservation of Habitats and Species Regulations (SI 2017 No. 1012).

WHAT WAS THE BACKGROUND?

The Interested Party, NNB Generation Company (HPC) Limited (HPC), was a promoter of the Hinkley Point C nuclear power project (“the Project”) authorised under the Hinkley Point C (Nuclear Generating Station) Order 2013 (SI 2013 No. 648) (“the DCO”).

The Project involved activities requiring a marine licence under MCAA 2009, including dredging. HPC therefore applied for a marine licence which was granted in 2013 (“the Original Licence”). However, the Original Licence was conditional upon obtaining a separate marine licence from Natural Resources Wales for the disposal of dredged material at Cardiff Grounds (located outside of the MMO’s jurisdiction).

The Original Licence was subject to five variations in 2014, 2016, 2017, and 2019 (twice). In December 2020, HPC submitted a sixth application to vary to the Original Licence to authorise the disposal of dredged material at a new designated disposal site in Portishead (located within the MMO’s jurisdiction). The variation was granted by in August 2021. 

The Claimant, Tarian Hafren Severn Shield Cyf (THSS), was incorporated in October 2021 by a group of scientists, organisations and others who were concerned that radioactive particles in the dredged material posed a low level radiation risk. THSS initiated judicial review proceedings to challenge the MMO’s decision on five grounds, including that the power to vary a marine licence under MCAA 2009 had improperly been used to authorised a new activity, namely the disposal of dredged materials at Portishead.

WHAT DID THE COURT DECIDE?

THSS challenged the MMO on five grounds, all of which were dismissed on 24 March 2022.

1: THSS submitted that the MMO improperly used section 72 of MCAA 2009 to authorise the new disposal activity. However, the Court held the correct interpretation “does not exclude the authorisation… so long as that activity can properly be said to represent a variation of that licence”.

In addition the Court held that it is within the scope of section 72 for an licensee to make an application to the MMO to vary a marine licence, but noted that in the event of the MMO refusing to approve an application by a licensee to vary a licence, there is no right of appeal. Regulation 3 of SI 2011 No 936 only allows an appeal to be brought against a notice varying, suspending or revoking a licence.

2: THSS submitted that section 72 can only be exercised with relevant reasons to exercise it. The Court held that the MMO acted lawfully and interpreted section 72(3) to allow “a broad discretion to vary… a licence” and that “the MMO is entitled to treat the contents of a licensee’s proposal and the MMO’s views on the merits of that proposal as a relevant reason for varying a licence

5: THSS submitted that the MMO did not address the requirement that that deposition should not jeopardise the attainment of “good surface water chemical status”. This was dismissed on the basis that the “good status” objective was properly taken into account by the MMO.

Grounds 3 and 4 are not covered above (Ground 3 was not pursued, and in respect of Ground 4 the Court held “the legal complaints were hopeless”).

For more information on this article, please contact Lara Moore or Tommy Fox.

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