This section looks at other considerations that those undertaking work around the coast should be aware of prior to commencement of submitting any applications for consent. Being well informed on all the different aspects of your site and the issues that need to be considered, can greatly assist you in preparing an application that will have the minimum objections and therefore likely to progress quickly and hence save you time and money.
What is covered in this section?
In section 6 of this Guide you can find information on the following: land and seabed ownership, byelaws, statutory consultees, public consultation, Notice to Mariners and General Directions, Harbour Guides, Rights of Way and England's coastal path, flood risk and coastal change, Shoreline Management Plans, protection of Historic Wrecks, SSSIs, Inshore Fisheries and Conservation Authorities, Control of Major Accident Hazard Regulations.
Development will almost always need the consent of the land owner. For the coast you can use the Land Registry to search for ownership down to the foreshore. Landowners include the Crown Estate, harbour authorities, local authorities, industry and private individuals. The most likely owner of the seabed will be the Crown Estate who own nearly all the sea bed around the UK. The Crown Estate's Managing Agent for the Solent region is Chesterton Humberts based in Southampton, and they are the first point of call for Crown Estate queries in the Solent.
Byelaws are laws of local or limited application made by local councils or other bodies, using powers granted by an Act of Parliament. They can also be made by private companies or charities that exercise public or semi-public functions such as water companies, harbour authorities or the National Trust. They create criminal offences that can be prosecuted in Magistrates' Courts. Byelaws have to be within the scope of the enabling legislation. They are subsidiary to national legislation and cannot be in conflict with it. They must also be clear, reasonable and proportionate to the problem they are seeking to resolve.
Key organisations that make coastal and marine byelaws are:
- The Marine Management Organisation can make marine conservation byelaws in the inshore area (0 to 12 miles) of English waters in European marine sites and marine conservation zones (MCZs).
- The Inshore Fisheries and Conservation Authorities are responsible for producing byelaws within their districts which includes such part of the English inshore region lying 6 nautical miles (nm) from baselines.
- Natural England (NE) has byelaw making powers in intertidal SSSI and National Nature Reserves (NNR).
- The Environment Agency can make fisheries byelaws.
It is worthwhile studying any byelaws that are in place around the location of your development/works. Ask your local planning or harbour authority to advise of any that are in force.
- Southampton Harbour Byelaws
- Yarmouth Harbour Byelaws
- Chichester Harbour Byelaws
- Cowes Harbour Byelaws
- River Hamble Byelaws
- Langstone Harbour Byelaws
Statutory consultees are organisations and bodies, defined by statute, who must be consulted on relevant development applications. Their views have to be taken into account by the consenting authority when considering whether or not to grant permission. Key organisations include the Environment Agency, Natural England, English Heritage, Ministry of Defence and the Crown Estate. It remains for the consenting authority to decide which parties with a particular local interest or involvement should also be consulted on development applications.
Why is it important to me as a developer to know about statutory consultees?
The consenting authority, such as the MMO for a Marine Licence, has a statutory duty to take on board the comments of statutory consultees like Natural England when deciding the outcome of an application. If statutory consultees have objections this can delay or prevent the issuing of consent. Therefore, it is well worth discussing your plans with statutory consultees prior to submission so that any of their concerns can be discussed and built into the application before it is submitted. This can save time and money in the long run.
If you need to know who the statutory consultees will be for your development, ask either the local planning authority (for shoreside development) or the MMO (for waterside development).
Non-statutory consultees are organisations and bodies, identified in national planning policy, who should be consulted on relevant applications. They include organisations such as Emergency Services and Multi-Agency Emergency Planning, Navigation Authorities and Water and Sewerage Undertakers.
Public consultation is an important part of any work or development needing consent and will always be undertaken by the consenting authority. The consenting authority will consult with both statutory consultees and the local community before making its decision. Applicants can assist this process by speaking to their neighbours and other interested parties and groups before submitting an application. It is useful to have good documentation and maps to hand on your proposal that show clearly what you intend to do. Having the support of the local community can save time and money in the long run by ironing out objections before formal consultation takes place as part of the consenting process.
When an application is formally submitted to the MMO for a Marine Licence it will allocate it a case officer. This case officer will then send the case out to public consultation; the application consultation period is 42 calendar days from the date of the consultation request. For planning applications the council will post notices near the building site and/or write letters to those living near the site to ask people if they agree with the plans. Planning permission cannot be given without public consultation taking place. Your local planning authority or MMO office will be able to give you more information on who will be consulted as part of the consenting process and how they notify interested parties.
Harbour authorities post Notices to Mariners for the area of water under their jurisdiction. These contain critical safety information for water users. Developers should be aware of any in force at their location and take account of any that might be released during the period of development. The UK Hydrographic Office has a facility that enables searches of the Notices to Mariners service for updates to Admiralty Charts by Chart or NM Number.
Some port and harbour authorities can also issue General Directions to tell Mariners about how to behave in their area of jurisdiction. These can be wide and varied and include banning fishing vessels from operating in navigable channels, requesting the reporting of sightings of oil pollution, keeping clear of certain berths, or how different vessels should approach the harbour. There are also areas in which anchorage is prohibited, for example over designated underwater pipeline routes. Contravention of these Directions can be a criminal offence.
The local harbour office will be able to give you information on what Notices or Directions may be in force.
Local harbour guides are a good source of information and will contain details of byelaws, zoning or any other local management schemes in place. They may also have contact details of parties that developers may wish to engage with as part of the public consultation procedure, such as other local marine businesses.
Rights of way are certain routes that the public have the right to walk along. These routes may be roads, paths or tracks, and can run through towns, remote countryside or private property. They are open to everyone at any time and are known as public rights of way or, simply, rights of way. If you are planning a development it is important to ensure that it will not block a public right of way or permission may be refused. Your local planning authority will be able to advise on the rights of way in the vicinity of your development. Where works adjacent to a right of way are vital for construction or maintenance, for example at an industrial site, the highway authority can grant an order for temporary closure on safety grounds.
Local authorities (national park authorities, county councils, some district councils, metropolitan boroughs or unitary authorities) must record the legal existence and location of rights of way on the definitive map, and ensure that they are open for public use. The responsibility for recording and maintaining rights of way is shared between local authorities, landowners and occupiers.
The Marine and Coastal Access Act, 2009 (MCCA) gave people the right of access around all of England's open coast, including, where appropriate, spreading room along the way where they can rest, relax or admire the view. Natural England has the duty to develop this access via a new English Coast Path. Future development of land is not restricted under the MCAA legislation. The new rights are about access, not development control. The Act imposes no obligation on Natural England to continue the Path around an estuary; however, it does have the power to do so. When going through the alignment process on a stretch of coast, Natural England will consider whether to use this power on any estuary that it contains.
The principle on the open coast is that the Path should be as continuous as possible. Detours can be provided around obstructions such as big industrial sites or secure ports. Natural England will consult land owners in agreeing a way forward to provide access around the coast, preferably on the seaward side.
Adapting to coastal change is seen as an ever increasingly important issue for all of us and this includes local businesses. When you apply for planning permission the local planning authority will consult with the Environment Agency who will advise on the potential flood risk of any development. Permission may be refused if the development is considered to be a high flood risk. Where a development is proposed within an area shown to be located within a flood risk zone, a Flood Risk Assessment (FRA) will need to be submitted with the planning application. See our section on Flood Defence Consent for more information.
The draft National Planning Policy Framework makes it clear that in coastal areas, local planning authorities should identify as a Coastal Change Management Area (CCMA) any area likely to be affected by physical changes to the coast. Planning authorities should be clear as to what development will be appropriate in such areas and in what circumstances; and make provision for development and infrastructure that needs to be relocated away from CCMAs. When assessing applications, authorities should consider development in a CCMA appropriate where it is demonstrated that; it will be safe over its planned lifetime and will not have an unacceptable impact on coastal change, the character of the coast including designations is not compromised, the development provides wider sustainability benefits, and the development does not hinder the creation and maintenance of a continuous signed and managed route around the coast.
It is good practice to think about how your development could adapt to coastal change in the future. For example, how would it cope with an increase in winter storms or higher tidal surges? There may be opportunities to build in adaptability at the design stage that will help to minimise future maintenance or damage. See Defra's webpages on climate change for more information on adapting to climate change. As marine plans are developed in the future, they will also consider the implications of coastal change when preparing the policies that will guide future coastal development. The draft National Planning Policy Framework states that new development should be planned to avoid increased vulnerability to impacts arising from climate change, and in vulnerable areas care should be taken to ensure that risks can be managed through suitable adaptation measures, including through the planning of green infrastructure.
The Flood and Water Management Act, 2010 includes provision for a National Flood and Coastal Erosion Risk Management Strategy for England; this was issued on the 18 July 2011 and it provides a national framework for communities to develop local partnerships and solutions to the flood and coastal erosion risks they face and underpins the partnership approach to funding flood and coastal resilience projects.
- Planning Policy Statement 25 Supplement on Development and Coastal Change.
- Flood and Water Management Act, 2010
- National Flood and Coastal Erosion Risk Management Strategy for England
A Shoreline Management Plan (SMP) is a large-scale assessment of the risks associated with coastal processes and helps reduce these risks to people and the developed, historic and natural environments. SMPs include an action plan that prioritises what work is needed to manage coastal processes into the future, and where it will happen. This in turn forms the basis for deciding and putting in place specific flood and erosion risk management schemes, coastal erosion monitoring and further research on how best to adapt to coastal change. For each section of the coast the SMP will show whether the policy is to 'hold the line', 'managed realignment', 'no active intervention' or 'adaptive management'.
Knowing what policy is in place at you development location will show you how that section of coast is to be managed in the future. This is very important as, for example, applying for a new development on an eroding coastline with a 'no active intervention' policy is highly unlikely to gain planning consent. SMPs are not legally enforceable but are used by Planners and Development Control Officers to assist with decision making for proposed development on or near the coast. Each planning application will be considered on its individual merits on a case-by-case basis against various constraints, opportunities, development plan and policies that apply.
- North Solent Shoreline Management Plan
- Isle of Wight Shoreline Management Plan
- Information Note for landowners, planners and developers on privately owned coastal defence - North Solent Shoreline Management Plan Appendix
The Protection of Wrecks Act (1973) allows the Government to designate a wreck to prevent uncontrolled interference. It is an offence to tamper with, damage or remove any objects or part of the vessel, or to carry out any diving or salvage operation within the exclusion zone around the wreck. Any activities around these wrecks require a licence from the Secretary of State, visit English Heritage's website for more information on how to obtain a licence. See the Hants and Wight Trust for Maritime Archaeology's website for more details on wreck sites in the Solent.
If you wish to undertake work or development within an SSSI then you may require written permission from Natural England. Natural England has a duty to ensure that works within a SSSI boundary do not damage its features of interest. This permission, obtained from Natural England, is known as 'Notice of proposal to carry out an operation on an SSSI'. This Notice is not usually needed in addition to other permissions, for example, if planning permission or a marine licence has been granted, then this Notice from Natural England is not needed as well. For more information see Natural England's Guidance for SSSI Owners and Occupiers. To see whether your location for works has been designated as an SSSI, visit Natural England's Nature on the Map website.
What do I do if I don't need a Marine Licence but my site lies within an SSSI?
If the work that you want to undertake doesn't require Planning Permission or is exempt from a Marine Licence, you will still need to notify Natural England using its 'Notice of proposal to carry out an operation on an SSSI' form if the work is taking place within an SSSI. It is a reasonable excuse to carry out operations in an emergency, as long as Natural England are informed as soon as practicable after the operation commences.
The Marine and Coastal Access Act 2009 has modernised the way that inshore sea fisheries resources are managed in England by replacing Sea Fisheries Committees with Inshore Fisheries and Conservation Authorities (IFCAs) from April 2011. IFCAs are either committees or joint committees of the local authorities that fall within an IFC district. They are tasked with the sustainable management of inshore sea fisheries resources in their local area. The Marine Management Organisation, Environment Agency and Natural England also each have a statutory seat on the IFCA. The applicable IFCA for the Solent is the Southern Inshore Fisheries & Conservation Authority.
IFCA has the powers to make byelaws and emergency byelaws to meet its objectives. Defra has produced a guidance document on this topic. The MMO acts as a policy and legal advisor on the process of making IFCA byelaws.
The MMO and the Environment Agency may also make fisheries byelaws in England within the 6 nm limit to protect the marine environment from fishing activities or to protect migratory fish. Natural England (NE) has byelaw making powers in intertidal SSSI and National Nature Reserves (NNR) where they overlap with IFCA.
The purpose of the Control of Major Accident Hazards (COMAH) Regulations is to ensure that businesses take all necessary measures to prevent major accidents involving dangerous substances and to limit the consequences to people and the environment of any major accidents which do occur. The COMAH Regulations are enforced by a body called the COMAH Competent Authority; it consists of the Health and Safety Executive (HSE) and the Environment Agency (EA). The Regulations place duties on the COMAH Competent Authority to inspect activities subject to COMAH and prohibit the operation of an establishment if there is evidence that measures taken for prevention and mitigation of major accidents are seriously deficient.
The Health and Safety Executive place a consultation zone around a hazardous installation and for any planning applications for land within this consultation zone, the local planning authority are obliged to consult the HSE before making the planning decision. The zone can vary depending upon the nature and quantity of substances stored. The HSE will advise the LPA whether the proposed development is appropriate.
- Hazardous substances consent: a guide for industry
- The Planning (Hazardous Substances) (Amendment) (England) Regulations 2009