Marine Conservation Zones and Marine Licensing

This article, authored by barrister Nicola Canty, from the Firm’s Marine Regulatory team, has been featured in the September edition of Marine and Maritime Gazette.

Marine Conservation Zones (MCZs) are relatively new additions to other existing Marine Protected Areas (MPAs) in the UK, such as European marine sites (Special Areas of Conservation and Special Protection Areas), Ramsar sites and Sites of Special Scientific Interest (SSSIs). Their designation is intended to help the UK meet its international commitments, such as establishing an ecologically coherent and well-managed network of MPAs.

On 21 November 2013, the UK Government designated 27 MCZs in the English inshore (within 12nm) and English and Welsh offshore waters (beyond 12nm), with 5 offshore MCZs covering 8000km2 and 22 inshore MCZs covering around 2000km2 of inshore waters. A second tranche of 23 MCZs (which would cover approximately 10,800km2), was consulted upon in early 2015, with the results due in January 2016. A third consultation on the final tranche of potential MCZ sites is expected in 2016.

The purpose of MCZs is to protect rare, threatened and representative marine flora and fauna, geology and geomorphology.  Different levels of protection are expected to be applied to each MCZ, from the least interventionist measure of voluntary controls up to highly regulated ‘reference areas’, where no damaging activities are allowed. No reference areas have yet been designated.

Obligations on public authorities

The Marine and Coastal Access Act 2009 (MCAA) created powers and imposes obligations on the Marine Management Organisation (MMO) (and other public authorities such as Local Planning Authorities in the coastal area, and Inshore Fisheries and Conservation Authorities (IFCAs) in relation to fisheries within the 10 IFCA districts from 0 to 6 nm). Under s125 MCAA, the MMO has a duty to exercise its functions to further, or where it that is not possible, to least hinder, the conservation objectives stated for the MCZ in question.

In determining marine licence applications, under s126 MCAA the MMO is also required to consider whether the act is capable of affecting (other than insignificantly) the protected features of the MCZ or any ecological or geomorphological process on which the conservation of any protected feature of an MCZ is dependant. If the MMO identifies such as risk, it must notify the relevant conservation body and will usually have to wait 28 days to determine the licence application to allow conservation advice and guidance to be provided. Conservation advice is provided by Natural England and the Joint Nature Conservation Committee (JNCC) in relation to inshore and offshore waters respectively.

Overview of the MMO’s MCZ assessment procedure

In order to meet this obligation under s126 MCAA, the MMO has introduced a MCZ assessment process into its marine licensing decision making procedures. For complex projects it is expected that the majority of the information required for this assessment would be provided in pre-application. The process introduced by the MMO involves three sequential stages:

1. Screening: all marine licence applications are screened to determine whether the licensable activity is taking place within or near an area being put forward or already designated as an MCZ. If so, the MMO would then consider whether the activity was capable of affecting the protected features of the MCZ as set out in s126 MCAA.
2. Stage 1 assessment: the MMO considers whether there is a significant risk of the activity hindering the conservation objectives stated for the MCZ, and whether the MMO would be able to exercise its functions to further the conservation objectives of the site. If not, the MMO would have to consider whether there were any other means of proceeding with the activity which would create a substantially lower risk.
3. Stage 2 assessment: The MMO will then consider whether the public benefit of the activity clearly outweighs the risk of damage to the environment. If so, the MMO would then consider whether they are satisfied that the applicant will undertake measures to provide equivalent environmental benefit. If not, the application would be rejected.

MCZs proposed in the third tranche, but as yet undesignated, would not trigger this MCZ assessment process. However, evidence supporting the proposal of an MCZ site (together with its proposed features and proposed conservation objectives) would still be considered relevant by the MMO in its decision making.