Marine and Coastal Access Bill [HL]

This is a long group of amendments, and I congratulate the noble Baroness on a tour de force—on picking them all up and explaining them as effectively as she did. I shall take them individually, perhaps in a slightly different order from the one in which she and the noble Lord did. I shall start with Amendments 101BZZA and 101BZZB, which insert additional considerations that the licensing authority must take into account when determining the application for a marine licence. Amendment 101BZZA makes it explicit that the need to conserve biodiversity should be taken into account. Amendment 101BZZB does away with any considerations not listed. Already it is clear that a number of sometimes competing interests would want to get a mention in the clause. Before addressing specific amendments, it might be helpful if I explain how licensing decisions will take into account sustainable development. As I have said in earlier debates, the marine policy statement will articulate our shared vision, and detailed policies and objectives, for the sustainable development of the marine area. It will bring together all our marine policies, covering social, economic and environmental considerations, to set a clear and consistent framework for decision-makers. Marine licensing authorities will take their decisions in accordance with policies set out in the marine planning statement and subsequent marine plans. In this way, marine licensing will give clear effect to the policies set out in the MPS and the marine plans. Case by case, licensing authorities will obtain relevant scientific input from expert bodies such as CEFAS, and information from other consultees, to allow evidence-based, holistic consideration of the overall impacts and benefits of any particular activity, while having due regard to the need to protect the environment and human health, and prevent interference with other users of the sea. These might be described as baseline considerations that have to be taken into account. Authorities will be able to add conditions to a licence that will help to mitigate any adverse impact of a proposal. If an activity is to take place in a marine conservation zone, the licensing authority will have further regard to the impacts of the activity on the conservation objectives of that marine conservation zone. The general considerations that a licensing authority can take into account by virtue of Clause 66(1) are therefore already broad. Amendment 101BZZA would separate the need to conserve biodiversity from the need to protect the environment. Under the Food and Environment Protection Act, the licensing authority must have regard to the marine environment and the living resources that it supports. However, the distinction between the marine environment and living resources may no longer be considered sound. International commitments on the protection of the environment in general, and of marine biodiversity in particular, now emphasise the holistic nature of marine ecosystems. It is the health of the ecosystems in the sea that contributes in large part to determining whether the marine environment as a whole is healthy. The quality of the seawater, seabed and seashore are vital, but so too are the things living in them, or affected by them. We do not want to limit environmental considerations to the marine environment alone. For example, it may be necessary to consider the impact on the neighbouring terrestrial environment, to encourage coastal integration, and also to consider the need to protect the environment from global damage. It may also be necessary for the decision-maker to assess the relative significance of the effect of a proposed activity on the global and local environments. Amendment 101BZZB would remove the licensing authority’s ability to consider any factor not listed in the Bill. We want the licensing authority to have the freedom to make decisions based on the particulars of any given case and on the evidence submitted to it. Given the sheer variety of activities that take place in the marine environment, it is important that anything of relevance to any single activity is considered. Indeed, it would be remiss not to do so. Examples of things that might need considering are other people’s legal interests in, or rights to, the land; international good practice guidelines on how certain activities should be carried out; broader social and economic factors; and government policy as laid out in the relevant marine plan. This provision does not detract from the importance of the need to protect the environment and human health, or to prevent interference with other legitimate users of the sea. However, it does help the licensing authority to make holistic, sustainable decisions. The noble Lord, Lord Taylor, spoke to Amendment 101BZBBA. This would introduce a requirement on the licensing authority to consult the relevant IFCA or public authority if the application could influence a coastal, estuarine or nearshore zone. Amendments 101BZBA and 101BZBC would require the licensing authority to consult local authorities in England and Wales. We covered the so-called question of statutory consultees in an earlier debate and I do not want to go over old ground but, for a number of reasons, we are worried about having a list. First, there is the risk of the perception of two levels of consultees, with those listed in the legislation being seen as more important than those not listed. Secondly, there is the question of who should be a statutory consultee. Clearly, a diverse range of activities will require a marine licence. Consultees appropriate to an offshore wind farm could be very different from those for a small jetty at the bottom of someone’s garden. Although consulting the appropriate bodies is essential to effective decision-making, forcing a licensing authority to consult every statutory consultee, regardless of whether it thinks that the application has any impact on its functions, might increase the time and cost of determining small applications which have minimal impacts. There is also the issue of proportionate regulation in this regard. A list is also inflexible, as we would need to amend primary legislation to take account of any changes to the bodies listed. A prime example is in Part 2 of the Food and Environment Protection Act, which, despite being concerned with the environmental impacts of deposits in the marine environment, requires consultation with the Food Standards Agency. Another example of the inflexibility of using primary legislation is the National Parks and Access to the Countryside Act 1949; we are having to use this Bill to update the list to make it more appropriate for reports on long-distance routes.