Councils and marine licensing
Tommy Fox and Ian Manners examine a recent ruling where a local authority was fined after falling foul of the marine licensing regime.
The Marine Management Organisation (MMO) was established under the Marine and Coastal Access Act (MACAA) 2009. It became responsible for the marine licensing regime* which requires marine licences to be granted for licensable marine activities. Failure to obtain a licence is a breach and can result in prosecution, as was the case for Wirral Metropolitan Borough Council (WMBC) discussed below.
* The MMO are responsible for the marine licensing regime (‘the regime’) for English inshore waters and English, Welsh and Northern Irish offshore waters. Marine Scotland are responsible for the regime in Scottish inshore and offshore waters. Natural Resources Wales are responsible for the regime in Welsh inshore waters. The Marine and Fisheries Division is responsible for the regime in Northern Irish Inshore Waters.
The facts
Hilbre Island is located just off the coast of the Wirral Peninsula (Merseyside, England). After parts of the cliff collapsed in 2016, Wirral Metropolitant Borough Council (WMBC, the local authority) commissioned a report into local cliff stability. The report concluded with several recommendations, one of which was to fill a cave located in the island cliffside. The report acknowledged that this would require a marine licence.
In July 2019 and without a marine licence, WMBC engaged contractors to begin filling in the cave with a combination of polyurethane slabs and expanding foam. Notably, the foam used was not designated as approved for use in the marine environment.
In August 2019, a storm hit the island and washed away the foam over several days into the marine environment. Despite this, WMBC engaged the same contractors 6 days later to re-apply the expanding foam. On this occasion, however, the foam caught alight and the entire contents of the cave burned over 3 days causing even more pollution.
The legal argument
As neither WMBC nor the contractors obtained a marine licence, the MMO initiated enforcement proceedings for a breach of the marine licensing regime.
Under section 65(1) of MACAA 2009:
(1) “No person may–
(a) carry on a licensable marine activity, or
(b) cause or permit any other person to carry on such an activity…
except in accordance with a marine licence granted by the appropriate licensing authority.”
A list of licensable marine activities can be found under section 66.
In the absence of a marine licence, the MMO argued that WMBC breached section 65(1) on the basis that the expanding foam (which was not approved for marine use) had entered the marine environment, and therefore had committed an offence under section 85(1) which provides:
(1) “A person who–
(a) contravenes section 65(1), or
(b) fails to comply with any condition of a marine licence,
commits an offence.”
Under section 85(4), a person found guilty of an offence is liable to either a fine not exceeding £50,000 on summary conviction, or a fine and/or imprisonment for up to two years on conviction on indictment.
The outcome
On 21 March 2022, WMBC appeared before the Liverpool Magistrates’ Court and pleaded guilty to the offence of carrying out a marine licensable activity without a licence.
District Judge Clark imposed an £8,000 fine, a £3,894.22 costs charge, and a £150 victim surcharge. The total costs were therefore £12,044.22.
The Judge agreed the following mitigating factors applied to WMBC in this case:
- they entered an early guilty plea;
- they cooperated fully with the MMO’s investigation; and
- they made significant efforts to help clean-up the marine environment following the incident.
Following the conclusion of the case the MMO said:
“This case shows the importance of applying for a marine licence before works are undertaken. Had marine experts been able to look at the proposals before works were undertaken these substances would not have been approved for use and would not have entered the marine environment. In cases like these, MMO will always take proportionate and appropriate action, including prosecution, to ensure the marine environment is protected.”
Comment/conclusion
The MMO has wide ranging enforcement powers and this case is a timely reminder that the MMO is not afraid to use prosecution in cases where organisations carry out licensable marine activities without the requisite license in place. It was no doubt a factor in the enforcement decision that the works had not been carried out having proper regard to the marine environment (including the use of products not properly suited to the marine environment) and harm to the marine environment occurred as a consequence.
At a time where regulators and the public alike are ever more vocal in relation to their understandable expectations around ensuring waters are clean and the marine environment protected, organisations must ensure that work is properly planned, approved by the regulator and carried out safely.
This case also illustrates how mitigating factors, such as cooperating with the MMO, may be taken into account when imposing fines in the event of a breach. But whilst this is a relevant factor taken into account by the courts in setting an appropriate fine, it is unlikely to deter the MMO from prosecuting. Finally, organisations should be aware that the fine would likely have been significantly larger for a corporate defendant compared with a local authority.
Tommy Fox is a Solicitor and Ian Manners is a Partner at Ashfords.
