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1 1 1 1 14 44 44 4 (2008) 20 ELM : THE UK DRAFT MARINE BILL – WILSON, TRIGGS
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affect habitats and protected species. The case issue of significant concern is timing: the development of
established that assessments before such developments marine plans will take months if not years and, unless
take place must identify all the aspects of a plan or project managed properly, there could well be a hiatus in project
which can, by themselves or in combination, affect a site’s approvals while they are finalised.
conservation objectives. The Marine Bill is less specific
than that, and it will be important to bear in mind the Marine licensing
continuing relevance of the Habitats Directive to many of
the protected areas and species that it covers. The draft Bill proposes replacement of the licensing and
consent controls currently exercised under part II of FEPA
Implications for offshore energy 1985 and the Coast Protection Act 1949 with a new
‘marine licence’.
The draft Bill will neither revolutionise the development ‘Licensable marine activities’ will require a marine
of offshore energy nor will it prove particularly licence from the appropriate licensing authority. The list
instrumental in delivering the government’s ambitious of licensable activities remains very similar to that in FEPA
plans to make offshore renewables central to its target of with the exception that, whereas only some forms of
meeting 15 per cent of energy demand from renewable dredging were licensable under FEPA, all forms of dredging
sources by 2020. There is, however, much in the planning will now be licensable, although the Bill does set out
and licensing aspects of the Bill that should make the certain exemptions from the requirement to obtain a
offshore energy procurement and authorisation process licence.
more transparent and predictable, and for that the In determining an application for a marine licence,
renewable energy industry would appear to be grateful. the licensing authority must have regard to the need to
protect the environment, the need to protect human
Marine planning health, the need to prevent interference with legitimate
uses of the sea and such other matters as it thinks relevant.
Marine planning has hitherto been conducted on ad hoc Where an application is for a licence to construct, alter or
sector-by-sector basis and the Bill’s proposals for a new improve offshore works (which will be the case for nearly
strategic framework for decision-making in the marine all renewable energy works) the licensing authority is
arena are long overdue. required to have regard to the effects of any use intended
The introduction of marine strategic planning should to be made of the works in question when they have been
provide a welcome degree of certainty for developers. constructed, altered or improved.
Whilst the marine policy statement is likely to incorporate Examples of the sorts of conditions that may be
targets for offshore renewables and clear statements of imposed in licences are very similar in effect to those that
principle as to the locations where development will be could previously be imposed under FEPA. However, an
encouraged, the underlying plans will set out more specific important refinement is that, whereas under FEPA
information regarding the types and densities of offshore conditions could only be imposed to govern the original
development required or anticipated and should assist carrying out of an activity, the draft Bill allows the licensing
the renewable energy industry to make longer-term authority to attach conditions that will govern the
investment decisions. Detailed and accurate data will also behaviour of the licensee after the carrying out of the
be crucial for any Strategic Environmental Assessment authorised activities. Importantly, licences authorising the
(SEA) that is required of those plans. construction, alteration or improvement of offshore works
The industry has acknowledged the opportunities for may also include conditions which bind persons other than
improving decision-making that a well-resourced and those to whom the licence is given.
managed marine spatial planning system offers but notes The marine licence provisions may well prove
that the offshore renewables industry has hitherto not somewhat academic to the offshore energy industry,
been hindered by a lack of marine spatial planning but however, since section 73 of the draft Bill provides that,
rather by a lack of data. Data regarding the marine estate where a person makes applications for both a marine
is notoriously patchy, and establishing accurate and licence and a licence under either section 36 or section
comprehensive data will be essential for the formulation 37 Electricity Act 1989 and makes a request that the
of robust marine plans – plans based on incomplete data applications be considered together, the Secretary of State
will not only create confusion rather than clarity but will may disapply some or all of the procedural requirements
inevitably lead to inconsistent decision-making. relating to the marine licence in favour of the provisions
Securing adequate baseline data regarding the UK of the Electricity Act instead. If such a discretion is
marine area will involve significant upfront expense for exercised in full, it will ultimately mean offshore consents
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the MMO, however, and it is questionable whether the being granted by BERR as is currently the case. The
necessary levels of funding will be forthcoming. Another extent to which BERR will be required to have regard to

10 Case C-127/02, Landelijke Vereniging tot Behoud van de Waddenzee
(1) and Nederlandse Vereniging tot Bescherming van Vogels (2) v 11 The Department for Business, Enterprise & Regulatory Reform, formerly
Staatssecretaris van Landbouw, Natuurbeheer en Visserij the Department of Trade and Industry.

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