Introduction - The UK Marine Environment
The UK has some of the richest marine ecosystems in the world and is an important location for many species. For example, the UK is home to a significant proportion of the world’s total population of seagulls; over 20 species of cetaceans (whales, dolphins and porpoise) have been recorded in UK waters; the UK is home to one third of the worlds grey seal population; and we are increasingly seeing species which have not been encountered previously, including walruses.
UK Policy Targets in Relation to the UK Marine Environment
The Environment Act 2021 specified that the government must table a suite of environmental targets. In December 2022, the DEFRA published these targets, including that:
‘70% of the designated features in the marine protected area network to be in favourable condition by 2042, with the remainder in recovering condition.’
The Environmental Targets (Marine Protected Areas) Regulations 2023 enact this target.
‘Favourable condition’ is further defined in these regulations with respect to the different types of marine protected areas (MPAs). For example, with respect to a protected feature in a Special Area of Conservation (SAC) which is a species of marine fauna or flora, favourable condition means:
‘The quality and quantity and distribution of its supporting habitat, the quality of the natural supporting processes on which it relies, the availability of prey and the composition of its population in terms of distribution and size are such as to ensure that the population is maintained in numbers which enable it to thrive, and
Where the population feature is a grey seal (Halichoerus grypus), harbour porpoise (Phocoena phocoena), or harbour seal (Phoca vitulina), it is free of human disturbance of a kind likely to have a significant effect on its use of the site.’
‘Recovering condition’ with respect to a protected feature in a relevant MPA means that the feature is not in favourable condition but the measures necessary to remove or manage all relevant impacts on that feature have been implemented.
The Environmental Improvement Plan, published in January 2023, sets out in more detail how this target will be achieved, including through an interim target for 48% of designated features in MPAs to be in favourable condition, with the remainder in recovering condition by 31 January 2028.
In addition to marine biodiversity targets, the UK also has targets in respect of renewable energy.
The Government published its Net Zero Strategy in 2021, which sets out how it will meet the target legislated in 2019 of reaching net zero greenhouse gas emissions by 2050. The Net Zero Strategy includes the ambition for the UK to be powered entirely by ‘clean electricity’, subject to the security of energy supply, by 2035.
On wind power, the Government’s British Energy Security Strategy published in April 2022 states that ‘with smarter planning we can maintain high environmental standards while increasing the pace of deployment by 25. Our ambition is to deliver up to 50GW by 2030, including up to 5GW of innovative floating wind.’ The British Energy Security Strategy recognises that the development and deployment of offshore wind farms still takes up to 13 years and subsequently goes on to state that the process time will be cut by over half by, among other things:
- Reducing consent time to one year.
- Strengthening the Renewable National Policy Statements to reflect the importance of energy security and net zero.
- Making environmental considerations at a more strategic level.
- Introducing strategic compensation environmental measures.
- Reviewing the Habitats Regulations Assessments process.
- Introducing a new Offshore Wind Environmental Improvement Package.
Meeting These Targets
In order to meet these targets, large-scale expansion of renewable energy must take place alongside nature restoration, enhancement and recovery. This has been the subject of several recent policies, consultations and strategies.
The role of the MPA network
There are several types of MPA in the UK, which in combination are intended to form an ‘ecologically coherent and well-managed network’ comprising the effective conservation and sustainable use of the UK’s marine environment. These include:
- Special Areas of Conservation (SACs);
- Special Protection Areas (SPAs); and
- Marine Conservation Zones (MCZs).
In addition, there are 3 Highly Protected Marine Areas (HPMAs), designated in July 2023.
Development in MPAs
MCZs are designated under the Marine and Coastal Access Act 2009, and SACs and SPAs under the Conservation of Habitats and Species Regulations 2017 and the Conservation of Offshore Marine Habitats and Species Regulations 2017 (together referred to as the Habitats Regulations). Where a plan or project may affect the protected features of an MCZ, or have a significant effect on an SAC or SPA, the responsible authority must assess the impact on the MPA of that plan or project before consenting it.
For MCZs, the responsible authority may not give consent unless it is satisfied either that there is no significant risk of the act hindering the achievement of the conservation objectives stated for the MCZ (s126(5) and (6) MCAA), or, if it not so satisfied that there is no significant risk, that the authority is satisfied that:
- There is no other means of proceeding with the act which would create a substantially lower risk of hindering the achievement of those objectives;
- The benefit to the public of proceeding with the act clearly outweighs the risk of damage to the environment that will be created by proceeding with it; and
- The person seeking the authorisation will undertake, or make arrangements for the undertaking of, measures of equivalent environmental benefit, to the damage which the act will or is likely to have in or on the MCZ.
For SACs or SPAs, the responsible authority may give consent to any plan or project only after having ascertained that it will not adversely affect the integrity of the site. The Habitats Regulations provide for a “derogation” that allows plans or projects affecting an MPA to be approved, if, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest. Where the plan or project is agreed to, notwithstanding a negative assessment of the implications for the site, the appropriate authority must secure that any necessary compensatory measures are taken to ensure that the overall coherence of the national site network is protected.
Securing compensatory measures for MPAs
In considering an application for development affecting an MCZ, SAC or SPA, a responsible authority might decide to consent to a development if it is satisfied that proposed compensatory measures can be secured and delivered, and that these are sufficient.
Between July and September 2021, Defra sought views on their ‘Best practice guidance’ for developing compensatory measures in MPAs. The summary of responses was published in December 2022. Defra announced that they would publish updated guidance by spring 2022, however this has not yet been published.
Most respondents were in support of:
- The hierarchy approach for compensatory measures – as it will not always be possible to deliver compensatory measures in a like-for-like capacity as is accepted terrestrially, compensatory measures that benefit the same feature which is impacted by the development will be the most preferable. Each step down the hierarchy moves away from like for like measures and therefore may decrease the certainty of success, and therefore increase the extent of compensation required.
- The location of compensation – the responsible authority should first consider compensatory measures that replicate or benefit the same feature within the affected site, and then consider measures that replicate or benefit the same feature outside the affected site.
- Compensatory measures should be delivered at a ratio higher than 1:1.
- Regarding timing, that a protected feature should not be impacted before compensation is secured – ideally measures should be in place, functioning and contributing to the network before development begins.
Compensatory measures have previously been rarely used in the marine environment. However, with more development, it is become increasingly necessary to provide compensatory measures.
An example of compensation in the marine environment is Hornsea 3 Offshore Windfarm, which received its Development Consent Order (DCO) in December 2020. As part of the DCO, a requirement was included for ecological compensation measures for the black-legged kittiwake. The developer, Ørsted, therefore commissioned three ‘industry first’ nearshore artificial nesting structures specially designed to house kittiwake to compensate for the impacts caused by the windfarm.
Byelaws to protect MPAs
The Marine Management Organisation (MMO) has the power under the MCAA and the Fisheries Act 2020 to make byelaws to further the conservation objectives of MCZs, SACs and SPAs.
In June 2022, the MMO introduced new byelaws to protect 4 offshore MPAs from damaging fishing activity. These ‘Stage 1’ MPAs were:
- Dogger Bank SAC
- The Canyons MCZ
- South Dorset MCZ
- Inner Dowsing, Race Bank and North Ridge SAC
After extensive consultation, these byelaws were introduced prohibiting the use of bottom towed gear within these MPAs.
Between January and March 2023, the MMO held a Stage 2 formal consultation to seek views on proposed byelaws to manage bottom towed fishing gear in 13 offshore MPAs. At the same time, the MMO opened its Stage 3 call for evidence on the impacts of fishing on seabed habitats in 41 MPAs. The MMO is also currently considering five Stage 4 MPAs which are those protecting highly mobile species.
Highly Protected Marine Areas
HPMAs are areas that allow the protection and full recovery of marine ecosystems. The first three HPMA designations in English waters came into force on 5 July 2023. These three sites are:
- Allonby Bay
- North East of Farnes Deep
- Dolphin Head
This initial pilot phase of HPMAs will inform the future of HPMA policy.
Offshore Wind Environmental Improvement Package
The government is considering legislation to deliver an Offshore Wind Environmental Improvement Package to support the accelerated deployment of offshore wind. The intention is to reduce offshore wind consenting time, whilst ensuring the UK meets its environmental commitments.
The Energy Bill (previously the Energy Security Bill) was introduced into Parliament on 6 July 2022 and builds on the commitments made in the British Energy Security Strategy. On 9 January 2023, amendments were proposed at the committee stage that would implement the Offshore Wind Environmental Improvement Package. Also on 9 January 2023, the government published a policy statement which explains why it is introducing the powers in the package and how it will use those powers.
Proposed amendments to the Energy Bill include:
- Making regulations about the assessment of the environmental effects on protected sites of offshore wind developments’ marine infrastructure.
- Strategic compensatory measures to be taken or secured. New legislation would enable the delivery of strategic compensatory measures, facilitating collaborative work between developers and government to work collectively across offshore wind projects. The aim is that considering compensatory measures up front and strategically through new habitats regulations assessment legislation will reduce the time spent resolving issues project by project.
Making regulations to introduce one or more industry-funded Marine Recovery Funds to support delivery of strategic compensatory measures.
Developers will still be required to undertake environmental impact assessment and habitats regulations assessments for their projects ahead of receiving consent.
The Energy Bill is currently at the ‘consideration of amendments’ stage. The policy statement indicates that the government will develop the draft regulations and other aspects of the Offshore Wind Environmental Improvement Package alongside the Energy Bill.
Marine Net Gain
The Government is expected to publish its response to the consultation on the principles of marine net gain in the coming months. The consultation set out the Government’s aims and proposed core principles for its net gain policy for the marine environment and development within it and sought views on whether to mandate net gain for marine developments, and, if so, the scope of marine net gain, and how it could be applied. The article in this link discusses the concept of marine net gain, provides a summary of the principles put forward in the consultation and considers the next steps.
Marine Mammal Protection
The House of Commons Environment, Food and Rural Affairs Committee report on ‘Protecting Marine Mammals in the UK and abroad’, published on 28 June 2023 identified that the legal framework to protect marine mammals is incoherent and not sufficient to effectively preserve these species and that UK measures contain concerning loopholes. The report made several recommendations, including that the Government should bring forward primary legislation specifically on marine mammal protection. The article in this link provides a brief introduction to the threats to marine mammals in UK waters, with a summary of the current legal framework.
Over the coming months and years, there is anticipated to be an increased focus on the marine environment, as the UK seeks to increase its renewable energy supply and protect and enable recovery of the marine environment. The policies, strategies, consultations, bills and recommendations discussed above will all form an integral part of the future of marine environmental protection. Given the interconnected nature of the marine environment, and the scale and nature of development that is current and envisaged, it is critical that legal and policy developments are joined up and coherent in order to be effective.
Helen Mitcheson is an Associate in the Environmental Law Team at Freeths LLP and Deputy Director at Cet Law. This blog post is a summary of talk given with Richard Broadbent, Director in the Environmental Law Team at Freeths LLP, on 3 October 2023. The talk can be viewed here.
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