Under the Marine and Coastal Access Act 2009 (MCAA), the Marine Management Organisation (MMO) is responsible for deciding most marine licence applications and issuing marine licences.
The MMO's power to decide marine licence applications is delegated to the MMO from the Secretary of State. However, the way some marine licence applications are decided changed on 1 October 2015 when the Marine Licensing (Delegation of Functions) (Amendment) Order 2015 came into force. It has introduced a new 'power of recovery' for the Secretary of State in respect of certain marine licence applications (received on or after 1 October 2015).
The MMO is required to refer to the Secretary of State any marine licence application which a local planning authority (LPA) or Inshore Fisheries and Conservation Authority (IFCA) considers to meet all of the following criteria:
- Falls into band 3 of the Schedule to the Marine Licensing (Application Fees) Regulations 2014 (£1 million plus projects);
- Would take place wholly or partly within that part of the UK marine licensing area adjacent to England and extending 6 nautical miles from the baseline;
- Is capable of having a significant effect and raises issues which are appropriate for examination in an inquiry.
The Secretary of State will then decide whether to 'recover' the application. If the application is recovered then a PINS Inspector will be appointed to hold an Inquiry and present a report to the Secretary of State. The Secretary of State will then decide the application. It appears that appeals will be to the First Tier Tribunal as it would be inappropriate for an appeal to be to PINS. The government anticipates that very few cases will be recovered and of those that are, even less will go to appeal. However, the scope of cases caught by the criteria above is wide and there is concern that IFCAs and LPAs could request referrals in a larger number of cases than anticipated; particularly if the project is unpopular locally.
Instead of 'recovering' the application, the Secretary of State may also 'suspend' the decision on whether to recover the application (to allow the MMO to collect more evidence) or 'return' the marine licence application to the MMO for determination.
In addition to the power for LPAs and IFCAs to require the MMO to refer licence applications to the Secretary of State, the MMO is also able to refer certain applications itself. The relevant criteria are that the MMO considers that the activity to which the application relates, raises issues which are of significance to the UK as a whole, and are not addressed by appropriate marine policy documents; and accordingly are appropriate for examination in an inquiry.
The new power of recovery has been billed as strengthening democratic accountability by enabling locally accountable bodies (namely LPAs and IFCAs) to seek an independent inquiry into marine licensing cases with potentially significant effects, with the final decision taken by Ministers directly accountable to Parliament.
However it is not supported by all, and some respondents to Defra's consultation in early 2015 (including representatives of the ports and energy industries) did not believe that there was a democratic deficit in the process which would justify the policy change. Concerns were also raised about the potential for increased costs and delays for marine licence applicants at the referral and recovery stage of the process. The full response document issued by Defra can be read here.
It is proposed that the new power of recovery will be reviewed in October 2016 to assess costs and benefits. It will be important for any organisation which is affected by these changes to respond to the review in October 2016, so that the full effects of the new power of recovery can be considered.