Marine and Coastal Access Bill [HL]

I hope that the noble Lord does not think me hostile to his intent. I fully accept that the amendments in this group are partly probing and partly seeking to improve the consultative process, so I am sorry if I give the impression of hostility. I am rather trying to explain why there might need to be a more flexible approach. However, as I go through this, I also hope to reassure the Committee that there will ultimately be an effective process of consultation. This is not a fierce argument between us; it is about the general approach. If I might explain how we see the licensing authority doing this, we might perhaps reach a conclusion on whether it is the right approach. We envisage the licensing authority producing guidance on who should be consulted for which types of application. That is simply good practice, enabling staff to take a consistent yet flexible approach to consulting those persons most likely to have an interest or expertise in any particular application while seeking to minimise the burden on both consultees and the developer. The Marine and Fisheries Agency has a list of those bodies that it regularly consults, depending on the expertise needed. I gather that the list includes bodies such as the Centre for Environment, Fisheries and Aquaculture Science; the Crown Estate and Duchy of Cornwall; English Heritage; the Environment Agency; the Joint Nature Conservation Committee; local harbour authorities and planning authorities; the Maritime and Coastguard Agency; Natural England and the Countryside Council for Wales; the National Federation of Fishermen’s Organisations; the sea fisheries committees—the precursor to IFCAs—and Trinity House. Those are some of the bodies consulted at present under FEPA and the Coast Protection Act, without any specific legislative requirement to do so as the amendments propose. That list is relevant to Amendment 101ZC, which would require the licensing authority to notify the relevant local authorities of any applications that it receives for activities or developments in the inshore region. Clause 65(1) places the licensing authority under a duty to publish notice of any marine application. That goes beyond the Food and Environment Protection Act 1985, which makes no such provision. Clause 65, as drafted, is designed to force the licensing authority to bring an application to the attention of persons who, in its opinion, are likely to be affected by or interested in it. It must be the case that local authorities would be included when the marine development is likely to affect the inshore region or the owners of transport infrastructure. Additionally, Clause 66(3) requires the licensing authority to have due regard to any representations that it receives from any person having an interest in the outcome of the application. That, too, must include local authorities. On top of that, Clause 66(4)(b) gives the licensing authority the power to consult any person or body that it sees as having an expertise in any matter arising from an application, which would clearly include local authorities if the development was in their jurisdiction. We see these provisions, then, as allowing interested parties to have their say on licensing applications, while requiring the licensing authority to take into full consideration any points made by local authorities, or any other body, interested in or impacted by proposed development or activity. I feel that we have set out the broad principles and powers in the Bill to allow the licensing authority to use its professional discretion about whom to consult on a case-by-case basis, but in all the circumstances that I mentioned I have made it clear that local authorities will be consulted. On Amendment 101BZBB, I need to clarify the effect of Clause 66(4)(b), which makes it clear that the licensing authority can take into account the views of other bodies on particular cases. Clause 66(4)(a) makes it clear that it can also consult about its general approach to exercising its functions, but it necessarily cannot do that continuously or every time it undertakes a function—hence the inclusion of the words ““from time to time””. It is a point of administrative process in giving people affected by those functions an opportunity to comment on and inform them. Amendments 101BZAZA and 101BZAB would place a requirement on the licensing authority to have regard to representations that it receives from any persons, not just those who have an interest in the outcome of the application. Amendment 101BZAC would have two effects: first, it would place a requirement on the licensing authority to take account of representations from people with particular expertise in any matter associated with the development; and, secondly, it would force the licensing authority to publish details of how it dealt with any representations and any reasons for not following expert advice. Amendment 101BZBD would provide a power for the licensing authority to set out in regulations more detail on the consultation process for applications. Amendment 101BZBE would make it clear that any such regulations could include provision for notifying any persons who make representations during an application as a result of that application and for the advertising of each licensing determination more broadly. On the specific question raised by the noble Baroness, Lady Hamwee, by ““an interest”” in the outcome of an application, we mean not simply a legal interest, such as right, title or legal share in the outcome, but people who are directly affected by it in some way. The licensing authority must have regard to representations from such people. I respond positively to the noble Baroness’s supplementary question. There is nothing to prevent the licensing authority from paying regard to representations from people without the kind of interest that I have just described, including those who may have expertise in any particular area. It is hard to imagine, for instance, that the licensing body would not have regard to a representation from an expert body that it had directly consulted. However, we do not think that there is a need for express provision in the Bill. In some cases, a large number of sometimes frivolous representations may be made by those without an interest, and there is an issue about having a legal obligation to have regard to all of them, which could be bothersome and time-consuming. We are trying to get the right balance between proper consultation taking regard of views and proportionate regulation. The licensing provisions laid out in this part establish the overarching framework and principles for the new licensing regime. Under Clause 66, each licensing authority will produce secondary legislation that lays out all the applications and decision-making processes in more detail. These details are something on which we want to work closely with all interested parties, including NGOs and industry. We are planning to launch a first early consultation on this legislation in the next few months, followed, subject to the passage of the Bill, by a further consultation on the draft statutory instruments. We want to work closely with all relevant organisations on that. Consultations are a key part of the applications process, all aspects of which will be worked up in regulations under Clause 66(6), so we do not see a need to make specific reference to the consultations process in subsection (6). We plan to include in these regulations the issue that noble Lords have raised in their amendments. Amendment 101BZBE is about when and how the licensing authority should publish details of how it dealt with any representations received, whether and when it should notify any person or bodies that made representations in relation to any application of the determination and whether to advertise it more generally. This is something that is done under regulations such as for local planning applications and is something to which we will give careful consideration. It is our intention that these issues should be addressed in secondary legislation and we want to work with interested bodies in putting forward sensible and efficient solutions. On the question the noble Baroness, Lady Hamwee, raised, Clause 66(1) is about allowing the licensing authority access to all the facts needed to make a holistic, evidence-based decision, and Clause 67(8) is about national security as a clearly necessary provision, although we would expect the licensing authority to need to use that very rarely. I will write to the noble Baroness with more details about the circumstances in which we think that might arise. I have responded at some length but these are important matters. As a general comment, we believe that the Bill is sufficient, that the necessary provisions are there and that they allow the process to be carried out in a proportionate way. We are wary about the listing which a number of amendments propose.