Legal Viewpoint: Protective zoning brings sea change

The Marine and Coastal Access Act 2009 provides for the creation of a type of marine protected area called a marine conservation zone (MCZ).

These are designed to protect nationally rare or threatened habitats or species. Developments proposed in or near MCZs must follow a particular planning process. In England, 27 MCZs were designated in 2013 and a further 37 are due to be considered for designation next year. So it will become more important than ever for planners to understand the legal and regulatory issues surrounding them.

The Marine Management Organisation (MMO) issues marine licences under the act for activities including the construction, alteration or improvement of any works in or over the sea, or on or under the seabed. A marine licence is required for relevant activities taking place up to the mean spring high-tide water mark. Terrestrial planning permission is required down to the mean spring low-tide water mark. As a result, some coastal development projects require consents under both regimes.

In respect of MCZs, the act places specific duties on authorities – including local planning authorities and the MMO – when granting authorisations, licences, consents or permissions. To comply with its obligations, the MMO has introduced a process for licensable activities located "in or near" proposed or designated MCZs. A similar process should be adopted by authorities when determining relevant planning applications.

If screening suggests that a proposed activity could affect, other than insignificantly, either the protected features of an MCZ or any ecological or geomorphological process on which conservation of a feature wholly or partly depends, a stage 1 assessment is required. A stage 2 assessment is needed unless, following stage 1, the MMO is satisfied that there is no significant risk of hindering conservation goals for protected features.

Under stage 2, if it is considered that there are no other means of proceeding with the activity that would substantially lower the risk of harm to conservation objectives, public benefit is weighed against detriment to the environment. The possibility of environmental offsetting is also considered if the public benefit test is satisfied.

Particular care needs to be taken where councils have not adopted the government’s Coastal Concordat or where a marine licence is not needed, as some authorities may be unfamiliar with their obligations. If applicants wish to avoid delays and reduce the risk of judicial review proceedings, they should consider each protected feature of any nearby MCZ as well as its conservation objectives. Relevant information can then be included in any planning and marine licence applications to ensure that the local authority complies with its duties under the act.

Michelmores head of planning David Richardson also contributed to this article

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