The long-awaited 'coastal concordat', which was originally announced in March, has now been published. It is intended as the basis for a streamlined, more efficient regulatory framework; bringing together Defra, the Department for Communities and Local Government (DCLG), the Department for Transport (DfT), the Marine Management Organisation (MMO), the Environment Agency (EA), Natural England, the Local Government Association's Coastal Special Interest Group and National Parks England.
Business Minister Michael Fallon said that the concordat would end overlaps between regulators, duplication of information requirements and delays to economically important coastal developments. The ports sector contributes £7.7 billion to UK GDP, according to the Government; and the country's ports also play an essential role in supporting imports and exports, and construction activity and longer term operations and maintenance in relation to offshore wind.
However environmental and planning law expert Francis Tyrrell of Pinsent Masons, the law firm behind Out-Law.com, said that the level of improvement that the concordat would bring was not clear.
"There is nothing in this concordat which reduces the proliferation of consents required for marine schemes and it is that which lies at the root of the problem the Government perceives," he said.
"The fact remains that a number of consents will still be required and a number of different regulators will still have separate statutory duties to consider any applications and promote the interests that they are charged with defending. It remains to be seen how much more quickly all the different consents can be delivered with the new ethos of cooperation that the concordat is encouraging but where the regulators still all have the same obligations," he said.
The announcement comes as part of the Government's response to a public examination of the 'Coastal Projects and Investments' regulatory regime as part of its Red Tape Challenge review of over 21,000 active regulations. The review found that while relationships between regulators and developers were generally positive, parts of the interaction between the land-use planning and marine licensing regimes could hold back much-needed investment.
According to the announcement, the concordat will allow developers that approach one regulator to be directed to the organisations responsible for the range of consents, permissions and licences they may require. The regulators should then agree a single lead authority for coordinating the requirements of the Environmental Impact Assessment (EIA) Directive or Habitats Regulations assessments, and should agree each authority's likely evidence requirements at the pre-applications stage where possible. Opportunities to defer or dispense with regulatory responsibilities should also be taken where legally possible and appropriate.
The concordat will not apply where coordination mechanisms are already in place, such as the Nationally Significant Infrastructure Projects (NSIP) consenting regime.
Environmental and planning law expert Francis Tyrrell said that although greater coordination between regulators on EIA and Habitats Directive matters was to be encouraged, the provisions of the concordat could actually lead to delays "whilst the various regulators work out who is best placed to be the lead regulator, and who is best placed to lead on the EIA and habitats side".
"The concordat encourages regulators to waive their responsibilities where possible if other regulators are dealing with the matter," he said. "However, whilst the various statutory duties on all the different regulators remain, more frequent waivers by the regulators bring forward the possibility of more challenges or more grounds for challenge by third-party objectors on the basis that a particular regulator inappropriately failed to consider a scheme fully."
"In a large scheme the promoter, and its advisors, will do what they can to drive the various regulators to meet a sensible timetable and deal with the necessary coordination between them. The promoter will dedicate the necessary resource for that. On the other hand, the lead regulator may not have the impetus or resource to harry the other regulators to reach a decision in a timely manner. Promoters will likely still have to be involved, but will now need to deal with one regulator that will feel more 'in charge' than the others," he said.
Although smaller schemes could benefit from the oversight of a 'lead' regulator, these schemes "inevitably may not be of a sufficiently high profile to stimulate the lead regulator to devote the necessary resource", he said.
Tyrrell also pointed out that the concordat did not deal with consents required from local bodies; such as the harbour, conservancy or dock authorities which are "usually key to many marine projects", he said. In addition, it did not extend to involve the Scottish Government, Welsh Ministers or National Resources Wales, he said.