Chapter 1: Marine Licences
Sections 65 and 66: Requirement for licence; Licensable marine activities
226.Anyone undertaking an activity mentioned in section 66 will need to obtain a licence from the appropriate licensing authority, subject to any exemption provided for in the Act.
227.The appropriate licensing authority for any area is specified in section 113.
228.The list of licensable activities is similar to that covered by the Act’s predecessor, Part II of the Food and Environment Protection Act 1985 (“FEPA”). One of the main differences is dredging. Under FEPA only some forms of dredging were licensable, namely those that involved the removal and dumping of sediment elsewhere at sea. For example, hydrodynamic and plough dredging that involve the use of water jets or ploughs, respectively, to move sediment along the sea bed were not licensable. Aggregate dredging which involves the removal of sediment but for use on land was also not licensed under FEPA. Item 9 of subsection (1), as read with subsection (2)(a), make all forms of dredging within the UK marine licensing area licensable under this Part. Section 75 provides an exemption from the need for a marine licence for dredging already authorised under a Harbour Order or other local Act.
229.The list of licensable activities is self-explanatory. In summary:
All vessels, aircraft or structures, regardless of their country of origin, will need a licence to deposit, scuttle or incinerate any object or substance within the UK marine licensing area;
All vessels, aircraft or structures, regardless of their country of origin, where it is their intention to engage in such an activity anywhere at sea, will need a licence to load or begin towing in the UK marine licensing area; and
British vessels, aircraft or structures will need a licence to deposit, scuttle or incinerate any object or substance anywhere at sea. British vessels, aircraft or structures are defined in section 115.
230.By virtue of section 85, it is an offence to engage in a licensable activity without the requisite licence or in a way that breaches the conditions attached to that licence.
231.The list of activities that need a licence may be amended by order. Each licensing authority may produce such an order for activities within its competence. This order making power cannot be delegated to another body under the powers given in section 98.
Sections 67 and 68: Applications; Notice of applications
232.The licensing authority, by virtue of these sections, may specify in what form an application for a marine licence should be submitted and may charge an application fee. The licensing authority may vary these requirements for different cases. Fees will be set according to regulations made by the licensing authority.
233.The licensing authority may require any supplementary information or investigations it thinks are necessary to be able properly to assess an application. If, as part of the assessment of the application the authority undertakes additional investigations or tests, then it will be able to recover the costs from the applicant.
234.If an applicant fails to provide any such information, or fails to pay the associated fee, then the licensing authority may refuse to proceed with an application entirely or until the failure is remedied.
235.On receipt of an application, the licensing authority must, subject to section 68(7), secure that any application for a marine licence is advertised in a manner that will bring it to the attention of those likely to be interested in it. It may either advertise the application itself or ask the applicant to do so on its behalf.
236.It must also notify, or require the applicant to notify, any local authority in whose area the activity is proposed (wholly or in part) to be carried on (whether or not notice has been published under subsection (1)).
237.Subsections (7) and (8) give the licensing authority the discretion to lift the requirement to publicise or give notice if it thinks that a particular application should not be published or notified. This would be the case, for example, where it was clear to the licensing authority that the operation under consideration would have no impact on others and providing notice would serve no function other than to delay a decision on the application and increase the costs of the project unnecessarily. Section 68(7)(b) and (8)(b) makes provision for the specific case where the Secretary of State decides that giving notice would be prejudicial to the interests of national security.
238.The licensing authority may refuse to proceed with an application if publication or notice has not be given where it was required to have been; it may also refuse to proceed if any costs of publishing or giving notice which are due to the licensing authority are outstanding.
Sections 69 and 70: Determination of applications; Inquiries
239.When determining an application for a marine licence the licensing authority must have regard to the need to protect the environment; the need to protect human health; the need to prevent interference with legitimate uses of the sea; and such other matters as the authority thinks relevant.
240.The reference to the “environment” includes the local and global environment; the natural environment; and, by virtue of section 115(2), any site of historic or archaeological interest. The natural environment may include the physical, chemical and biological state of the sea, the sea-bed and the sea-shore, and the ecosystems within it, or those that are directly affected by an activity, whether within the marine licensing area or otherwise.
241.Legitimate uses of the sea include (but are not limited to): navigation (including taking any steps for the purpose of navigational safety); fishing; mineral extraction; and amenity use.
242.During its assessment of an application the licensing authority may actively seek views and comments from expert bodies on matters where they have expertise relevant to the application. It must also take into account any comments it receives from other interested parties. The licensing authority may hold an inquiry in connection with the determination of the application.
243.A licensing authority may set out further details in regulations as regards the procedure for applications and how it grants them.
Section 71: Licences
244.The licensing authority may, by virtue of this section, impose conditions on any licence it grants. Examples of the sorts of conditions that may be imposed are given in subsection (3); these are very similar in effect to those that could be imposed by the Act’s predecessor, FEPA. However, under FEPA, conditions could only be imposed that governed the original carrying out of an activity. Subsection (2)(b) allows the licensing authority to attach conditions that will govern the behaviour of the licensee after the carrying out of the authorised activities. For example, under FEPA a developer would obtain a licence to build a jetty and the conditions attached to the licence would only cover the activity of building that jetty. Under the Act, the same licence could also include conditions relating to precautions to be taken when using the jetty once it has been built and also how the jetty should be dismantled and removed from the sea once its active life is over.
245.In the particular case of licensing the construction, alteration or improvement of works, licence conditions may bind persons other than those to whom the licence is given. The persons who may be bound are those that own, occupy or enjoy the use of the works. There is a similar provision in section 34(4A)(b) of the Coast Protection Act 1949 (“CPA”) though not in FEPA, as the consequences of using the works primarily relate to obstructing navigation (the subject matter of the CPA). Given that the Act subsumes the CPA’s navigational remit under the interpretation of “interference with legitimate uses of the sea”, the Act also includes this provision. Such persons may commit an offence in failing to comply with the condition in the circumstances described in section 85.
Section 72: Variation, suspension, revocation and transfer
246.The licensing authority may vary, suspend or revoke a licence in certain cases by notice. These may include, for example, where there has been a breach of conditions or where there has been a change in circumstances relating to the environment or human health. A licence may not be suspended for more than 18 months.
247.On receipt of an application from the licensee, the licensing authority may transfer a licence from one named person to another. Licensees themselves cannot transfer their licences.
248.Where a licensing authority has delegated its function to another organisation (see section 98), any licences issued before the delegation may be varied, revoked or transferred by the new body as if it had issued the original licence (section 99(6)).
Section 73: Appeals against licensing decisions
249.Each appropriate licensing authority is under an obligation to establish a mechanism through which an applicant for a marine licence may appeal against its decision to refuse to grant a licence or against any of the conditions attached to one.