GLD Vacancies

Cornerstone Planning

Marine licensing and recovery of cases

Predeterminiation iStock 000016468646Small 146x219Lara Moore examines a new power of recovery for the Secretary of State in relation to some marine licence applications, and the opportunity it brings for local planning authorities.

Under the Marine and Coastal Access Act 2009 (MCAA), the Marine Management Organisation (MMO) is responsible for deciding most marine licence applications in England. The MMO's power to decide marine licence applications is delegated by the Secretary of State (SoS). However, the way some marine licence applications are decided changed on 1 October 2015 when the Marine Licensing (Delegation of Functions)(Amendment) Order 2015 came into force. It has introduced a new 'power of recovery' for the SoS in respect of certain marine licence applications (received on or after 1 October 2015).

Importantly for local authorities, the MMO is required to refer to the SoS any marine licence application which a local planning authority (LPA), or Inshore Fisheries and Conservation Authority (IFCA), considers to meet all of the following criteria:

  • Falls into band 3 of the Schedule to the Marine Licensing (Application Fees) Regulations 2014;
  • Would take place wholly or partly within that part of the UK marine licensing area adjacent to England and extending 6 nautical miles from the baseline;
  • Is capable of having a significant effect and raises issues which are appropriate for examination in an inquiry.

The SoS will then decide whether to 'recover' the application. If the application is recovered then a PINS Inspector will be appointed to hold an inquiry and present a report to the SoS. The SoS will then decide the application. It appears that appeals will be to the First Tier Tribunal, as it would be inappropriate for an appeal to be heard by PINS. The government anticipates that very few cases will be recovered and, of those that are, even less will go to appeal. Instead of 'recovering' the application, the SoS may also 'suspend' the decision on whether to recover the application (to allow the MMO to collect more evidence) or 'return' the marine licence application to the MMO for determination. 

In addition to the power for LPAs and IFCAs to require the MMO to refer licence applications to the SoS, the MMO is also able to refer certain applications itself. The relevant criteria are that the MMO considers that the activity to which the application relates raises issues which are of significance to the UK as a whole and are not addressed, by appropriate marine policy documents; and accordingly are appropriate for examination in an inquiry.

The new power of recovery has been billed as strengthening democratic accountability by enabling locally accountable bodies (namely LPAs and IFCAs) to seek an independent inquiry into marine licensing cases with potentially significant effects, with the final decision taken by Ministers directly accountable to Parliament. However, it is not supported by all, and some respondents to Defra's consultation in early 2015 (including representatives of the ports and energy industries) did not believe that there was a democratic deficit in the process which would justify the policy change. Concerns were also raised about the potential for increased costs and delays for developers at the referral and recovery stage of the process. As a result, it is proposed that the new power of recovery will be reviewed in October 2016 to assess costs and benefits. In the meantime, it will be interesting to see how the new power is used over the next 12 months.

Lara Moore is an Associate in the Real Estate Team at Ashfords LLP. She specialises in marine planning, licensing and regulation. Lara can be reached on 01392 333861 or This email address is being protected from spambots. You need JavaScript enabled to view it..