Legislation overload
01 May 2007
Port operators are used to being bombarded with new rules and regulations – and environmental “issues” generally lead the field. Felicity Landon reports
Louise Gowman, a partner in law firm Lawrence Graham’s ports practice group, keeps a large archive box next to her desk labelled “Marine Development Control”. It is, she says, the only way she can keep up with all the changes.
“When I am giving advice on developments, I have 19 different sets of policy documents to consult. The environmental officers in the big ports are extremely skilled – but often they have to phone up to ask what legislation applies to their particular proposals. It shouldn’t be like that. It should be accessible.” The depressing news is that Ms Gowman is about to acquire a second archive box – and one of the key reasons for that is the UK Marine Bill, for which consultation started in March.
Ports might be feeling positive about the suggested “one project, one license” concept, but there are other ideas which might not be quite so welcome. One, says Ms Gowman, is a proposal within the Bill for a marine equivalent to the terrestrial spatial planning system – a system which means that applications for planning permission are decided in accordance with the planning policy for the relevant area set out in a development plan, unless there are “material considerations”why not.
“These development plans have become the subject of fierce debate as they go through the successive stages of preparation, consultation, amendment and public examination/inquiry – a process taking many years each time and which is often overtaken by events before it is concluded.”
The proposals in the Bill look very much like a mirror of the terrestrial system which will no doubt cause those port authorities which have been involved in that system (because it applies to their land down to the low-water mark) to sigh heavily, she says – particularly as the proposals would mean an overlapping of the two systems, with both covering the area between low and high water.
“As ever, there are pluses and minuses, and at the moment the different consents needed for a port project are decided against different criteria related to their historical origins, so there is a lot to be said for the more holistic approach that the consultation suggests with a one-licence regime against a consistent background. However, I must admit that I still sympathise with the port’s sighs.
In the terrestrial context,the development plans really matter to a port’s ability to develop and so compete in its international markets and a lot of time and expense, including advisers’ fees, has had to be spent on the process.” And there is more: the Marine Bill is proposing the introduction of a new designation, Marine Conservation Zones, which are likely to relate to sites of national ecological interest and will be very similar to the European designated sites, says Ms Gowman.
Above all,ports need certainty,she says – and the only certainty seems to be that they won’t get it.“We are in a situation at the moment where on the commercial side there is quite a lot of uncertainty.The shipping industry is a global one.Choosing between a Belgian or a UK port is just another stop on the motorway – so the time lines in decision-making are important.
“The problem is that for any scale of project you have to have a very, very long lead time and although the law won’t be related retrospectively, you have to think yourself into two regimes.”
That is because by the time a port has made its way through the Environmental Impact Assessment process and finally got to the point of making a formal application for consent, they could find themselves facing a whole new set of requirements, such is the speed at which the European Union and the UK in particular are firing out new policies and regulations.
“I am having to give advice based on ‘now’, considering what must be done under the regime as it is now,and then we have to sit down and consider what MIGHT be required in two years’ time, to allow for the long lead time in moving forward with major port developments – some of it necessarily a result of the time required to undertake environmental work in the first place. None of the ecologists are sure what it is going to be.That is the problem now and it is probably going to continue.”
The industry must continue to expect the unexpected – the factors which might change the whole picture again, she says. “For example, the industry could never have predicted the need to deal with overlaps in ports policy and renewable energy. The growth of renewable energy has resulted in the spotlight being put on the use of the marine environment in a way which perhaps it would not have been without it.There’s certainly quite a bit of focus on it in the consultation.”





