UK: Multiple Regulation For Coastal Projects And Investments Remains Despite Marine Concordat

Last Updated: 25 March 2013
Article by Francis Tyrrell

'Less burdensome enforcement of regulation' and a single overseeing regulator is what the Government wants for coastal projects and investments.

As part of the Government's red tape challenge initiative, the Minister of State for Business and Enterprise, Michael Fallon MP, has announced:

  • the development of a 'concordat' between the principal marine regulators and advisory bodies in England to identify a single regulator to 'oversee' licensing and permitting to be in place by September 2013
  • the fast tracking of marine licences and an extension of the current exemptions to the requirement for a licence; and
  • a renewed emphasis within the MMO of permitting sustainable development.

The concordat is to involve the Marine Management Organisation (MMO), the Environment Agency, Natural England, DEFRA, DfT and the Local Government Association.

This is well intentioned, but may miss the point in a number of respects.  
There seems to be no intention to reduce the proliferation of consents required for marine schemes and it is that which lies at the root of the problem the Government perceives.  Identifying a lead regulator whilst maintaining the number of consents needed may not always assist, indeed it may hinder.  In any large scheme requiring multiple consents the promoter (and its advisors) of that scheme will do what they can to drive the various regulators to meet a sensible timetable and deal with the necessary coordination between them.  It is the promoter that has the sense of urgency and who will dedicate resource to keep pressure on the regulators, for example arranging and facilitating meetings between them as required.  Creating an overseeing role for one regulator is likely only to hamper the efficient delivery of larger projects.  The overseeing regulator will not have the impetus or resource to harry the various regulators to reach a decision in a timely manner in the same way as the promoter does, meaning that the promoter is likely still to have to be involved, but now with the need also to deal with one regulator who will feel more 'in charge' than the others.  Smaller schemes could benefit from the role of an overseeing regulator but inevitably may not be of a sufficiently high profile to stimulate the overseeing regulator to devote the necessary resource.

Additionally, there is no mention of the fact that the multiplication of consents is often caused by the need for consents under historic legislation from local bodies such as harbour, conservancy or dock authorities.  Often, any project will be promoted by one of those bodies and, in any event, they all have important role to play so the Government should seek to involve them in any Concordat they propose.  Additionally, with so much of marine regulation being a devolved matter and the ample scope for projects to cross administrative boundaries it would be unfortunate not to encourage the involvement of the Scottish Government and Welsh Ministers (or the soon to be created National Resources Wales).

Lastly, delay is often caused by the failure or inability of regulators to allocate sufficient resource to the determination of consent applications before them.  The Government should encourage marine regulators to enter into the equivalent of planning performance agreements to allow promoters to supplement resources at the regulators if the promoter thinks appropriate.

The Government's announcement can be found here: www.gov.uk/government/news/government-takes-action-to-cut-red-tape-for-coastal-projects-and-investments

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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