Consultation outcome

Summary of responses and government response

Updated 22 March 2019

Introduction

The UK marine licensing system was introduced under the Marine and Coastal Access Act 2009 (MCAA) to manage activities that take place in the marine area and ensure sustainable use of the marine environment. The activities which require a marine licence are set out in section 66 of the MCAA. In specific circumstances, licensable activities are exempt from the requirement to have a marine licence. The exemptions to the requirement to obtain a marine licence are set out in the Marine Licensing (Exempted Activities) Order 2011 (as amended).

On 2 November 2018 we published a consultation on proposed changes to the marine licensing exemptions on the gov.uk website. The consultation was open for a 6-week period and closed on 14 December 2018.

A further short consultation period was held between 28 January 2019 and 1 February 2019 to clarify an identified ambiguity and to correct a minor error in the text of the original consultation document.

Consultation purpose

The purpose of the consultation was to seek views on proposed changes to marine licensing exemptions in the marine areas where the Secretary of State is the appropriate licensing authority, as administered by the Marine Management Organisation (MMO).

The proposed changes consulted on included:

• the introduction of a new exemption to permit divers to remove marine litter and abandoned, discarded or lost fishing gear from the marine environment
• the introduction of a new exemption to allow Harbour Authorities to remove marine debris and litter from their area of responsibility
• the introduction of a new exemption to allow in-water cleaning of lightly-fouled recreational vessels, whilst achieving good biosecurity practice
• the dis-application of the existing exemption for shellfish propagation and cultivation, with the effect that a marine licence would be required for new or extended areas of activity
• amendment of the existing exemption for scientific instruments; to exclude those that pose the greatest risk to safe navigation
• amendment of the scope and notification requirements for existing exemptions for works on coast protection and flood defence works
• amendment of the scope of the existing exemption that allows local authorities to use vehicles to remove litter, seaweed or dead animals from beaches
• amendment of the existing exemptions on moorings or aids to navigation, temporary markers, and diver trails within restricted areas
• amendment of the existing exemption for the emergency inspection or repair of cables and pipelines; to clarify permissible works and amend notification requirements.

Background

The government’s vision is for clean, healthy, safe, productive and biologically diverse oceans and seas. To help achieve this vision, the MCAA introduced the current marine licensing system, which came into effect in April 2011. This system aims to support the sustainable use of the marine environment so that any activities such as construction, deposits (e.g. of sediment), removals (e.g. of marine aggregates), and dredging can be permitted, whilst having regard to any environmental impacts and preventing interference with other legitimate uses of the sea.

Part 4 of the MCAA sets out the marine licensing regime for the UK marine area, other than the Scottish inshore region. Marine licences are granted by the appropriate licensing authority, as described in section 113 of the MCAA. An appropriate licensing authority has the power to set fees for marine licence applications by regulation.

The Secretary of State is the appropriate licensing authority for the English inshore and offshore regions and the Northern Ireland offshore region. Most of the Secretary of State’s functions as appropriate licensing authority have been delegated to the MMO under section 98 of the MCAA. This delegation is set out in the Marine Licensing (Delegation of Functions) Order 2011.

The Scottish Ministers are the appropriate licensing authority in the Scottish offshore region, the Welsh Ministers are the appropriate licensing authority in the Welsh inshore and offshore regions and the Northern Ireland Department of Agriculture, Environment and Rural Affairs is the appropriate licensing authority in the Northern Ireland inshore region; in each case subject to certain matters reserved to the Secretary of State. The Marine (Scotland) Act 2010 legislates for marine licensing in the Scottish inshore region.

The activities which require a marine licence are described in section 66 of the MCAA. Exemptions to the requirement to obtain a marine licence are provided for in Chapter 2 of Part 4 of the MCAA. Under section 74(1) of the MCAA, the appropriate licensing authority may specify marine licensing exemptions by order.

The Marine Licensing (Exempted Activities) Order 2011 (as amended) sets out certain marine licensing exemptions where the Secretary of State is the appropriate licensing authority. The Order was last updated in 2013. The existing marine licence exemptions include (but are not limited to):

• activities that are regulated under other legislation
• activities for the safety of vessels or human lives
• activities taken to prevent pollution
• operational defence activities
• certain types of maintenance by relevant bodies – for example the maintenance of harbour works by harbour authorities
• routine low risk activities

Overview of responses received

The consultation on proposed changes to marine licensing exemptions was open for responses from 2 November 2018 to 14 December 2018; a period of 6 weeks in total.

A further, short consultation was undertaken between 28 January 2019 to 1 February 2019 to clarify an identified ambiguity and to correct a minor error in the original consultation document. The ambiguity related to the scientific instruments exemption, where we wished to make clear that the proposal was to exclude scientific instruments that posed the greatest risk to safe navigation – those which are tethered to the seabed or that reduce navigational clearance by more than 5% from Chart Datum. The minor error that needed correcting related to the exemption for the emergency inspection or repair of cables and pipelines. We wished to make clear that prior notification to the MMO was no longer required for such works but this would be replaced with a requirement to notify the MMO within 24 hours of commencement of the emergency works.

A total of 280 responses were received: 273 responses to the original consultation and an additional 7 responses to the further short consultation.

Responses by sector: Academia 1.5%, Energy 1.5%, Telecoms/cables/utilities 1.5%, Business/consultancy 2%, Environment/wildlife 3.5%, Leisure/recreation 4%, Ports/harbours 4%, Fishing 6%, Government/Agency 6%, Diving Community 30%, Private individuals 40%.

Responses received to consultation questions

The following section provides a summary of the comments received in response to each of the questions asked in the consultation document. All responses were considered in taking final decisions. Respondents to the consultation were asked whether they agreed, disagreed or neither agreed nor disagreed with each of the proposed new or amended exemptions in turn, and also whether they had any further comments to make.

New exemption: recovery of marine litter and abandoned, discarded or lost fishing gear

The proposed new exemption will permit divers to remove marine litter and abandoned, discarded or lost fishing gear from the marine environment during the course of diving activities and to do so without disproportionate regulatory burden.

A total of 265 responses were received to this proposed new exemption. 92% of respondents agreed with it, 5% neither agreed nor disagreed and 2% disagreed. 1% of respondents did not express a view.

There was overwhelming support for this proposal from respondents. Some concern was raised about the protection of items/areas of archaeological and historic interest. Similar concern was raised about protection of the marine environment. Some respondents suggested that the scope of the exemption should be widened to enable litter collection in other areas (such as the shoreline) and to other marine users. Concern was also expressed about the need to ensure diver safety and that the removal of legitimate fishing and scientific equipment should be prevented. Respondents also commented that disposal routes and the recycling of removed items should be considered and addressed.

Government response

The consultation responses have demonstrated support for the proposed introduction of this new marine licensing exemption. It will allow divers to remove marine litter and abandoned, discarded or lost fishing gear from the marine environment and to do so without disproportionate regulatory burden. We will ensure that marine litter is clearly defined to reduce the risk of items that are not litter being removed in error. We will also ensure that protected and sensitive areas are fully considered when drafting the legislation that will bring these changes into effect. We have taken account of responses that called for extending the scope of the exemption. We will explore these suggestions at the next available opportunity to review marine licensing exemptions – see Next Steps. On safeguards around training, there is already regulation on the operation of vessels at sea and we do not intend to duplicate that existing provision.

Action 1: We will introduce a new marine licensing exemption to allow for the recovery of marine litter and abandoned, discarded or lost fishing gear by divers.

New exemption: use of vehicles and vessels by a Harbour Authority to remove marine litter and debris

This proposed new exemption will permit Harbour Authorities to carry out activities to remove marine litter and debris from their jurisdiction.

A total of 264 responses were received to this proposed new exemption. 77% of respondents supported the new exemption, 19% neither agreed nor disagreed and 2% disagreed. 2% of respondents did not express a view.

Overall, there was positive support for this proposed new exemption from respondents. Some respondents suggested that particular care would be needed with the use of vehicles in protected areas and intertidal habitats, including areas of archaeological and historic interest and that Harbour Authorities should continue to assess the impacts of activities in designated areas. One respondent asked for the exemption to be extended to include moored structures used in the collection and removal of debris. It was also suggested that the exemption should be extended to include other users such as navigation authorities and nuclear power station operators. Concern was expressed that operators of vehicles and vessels should have sufficient training and experience, and that such vessels and vehicles should be of an appropriate size.

Government response

Harbour Authorities already use vehicles and vessels to remove marine debris and litter from their jurisdiction where it presents an immediate risk of obstruction or danger to navigation, in order to keep the navigational channel and intertidal area clear. The government proposes to extend these powers so that the exemption applies to the routine recovery of marine litter and debris.

We agree that protected and sensitive areas should continue to receive necessary protection and the exemption will be worded to ensure that is the case. We have taken account of responses that called for extending the scope of the exemption and will explore these suggestions at the next available opportunity to review marine licensing exemptions – see Next Steps. On safeguards around the use of vehicles and vessels, there is already regulation on the operation of vessels at sea and we do not intend to duplicate that existing provision.

Action 2: We will introduce a new marine licensing exemption to allow the use of vehicles and vessels by a Harbour Authority to remove marine litter and debris.

New exemption: in-water hull cleaning of lightly fouled recreational vessels

This proposed new exemption will enable in-water cleaning of lightly fouled vessels without the need to have a marine licence.

A total of 265 responses were received to this proposed new exemption. 46% of respondents supported the new exemption, 40% neither agreed nor disagreed and 11% disagreed. 3% of respondents did not express a view.

Concerns were expressed about the environmental impact of in-water cleaning and any chemicals that might be used in the process. There was a divergence of views on whether regular cleaning of vessels would reduce the likelihood of spreading invasive non-native species or increase the risk of spread. The definition of light fouling was questioned by some respondents. Respondents also raised questions about the methods that would be used for cleaning and the areas in which the in-water cleaning would take place. Views were also expressed about the appropriate size limit for vessels to be cleaned under the exemption; it was felt that larger vessels that were more likely to undertake international travel would potentially be more likely to introduce invasive non-native species.

Government response

As set out in the consultation document, in-water cleaning of vessels currently requires a marine licence because it involves the deposit of a substance into the marine environment from a vessel. We have considered the responses received through the consultation, including those where concerns were raised. We continue to believe that the gentle cleaning of lightly-fouled vessels will bring only a low risk to the marine environment and we will legislate to set out what methods can be used to achieve this. We will work with regulators and other stakeholders to ensure compliance with the conditions attached to the exemption.

Action 3: We will introduce a new marine licensing exemption to allow for the in-water cleaning of lightly fouled vessels.

Disapplication of current exemption: shellfish propagation and cultivation (Article 13)

The proposed amendment would dis-apply the current exemption and mean that a marine licence would be required for new or extended areas of shellfish cultivation and propagation that involved the deposit and removal of any shellfish, trestle, raft, cage, pole, rope, marker or line.

A total of 264 responses were received to this proposed amendment to the existing exemption. 35% of respondents agreed with it, 50% neither agreed nor disagreed, 13% disagreed and 2% did not say.

There are currently 47 active shellfish propagation and cultivation businesses in England. Eight out of nine shellfish propagation and cultivation businesses that responded to the consultation disagreed with the proposals, as did the relevant industry body on behalf of its members.

Those in support of this proposal felt that marine licensing was the appropriate means to manage shellfish farming, with the MMO best placed to provide strategic management of this industry. Views were expressed that it would bring more security of tenure and clearer rights. Respondents felt that it would bring a stronger position within marine planning and a more robust consideration of the shellfish industry in MMO’s Marine Plans, which are increasingly supportive of aquaculture development. It was also considered that the proposed change would enable those shellfish producers who have undergone a marine licensing process to more robustly defend themselves against detractors and potentially help reduce conflict with other coastal users.

Those opposing the change to this exemption thought that it would not bring a more robust or sound position to the industry but rather that it would add to existing arrangements, increasing regulatory burden. The shellfish aquaculture industry instead sought a streamlining and a simplification of the existing process. They felt more discussion with the industry was needed to further develop these proposals.

Government response

We have carefully considered the consultation responses and the views expressed. On balance, and in light of industry concerns, we have decided to focus on clarifying the existing regulatory regime for the shellfish propagation and cultivation sector.

Action 4: We will retain the current exemption for shellfish propagation and cultivation.

Amendment to existing exemption: scientific instruments (Article 17)

The deployment of scientific instruments is currently exempt from the requirement to have a marine licence and the proposal is to now exclude from this exemption those instruments that are considered to pose the greatest risk to safe navigation - those which are tethered to the seabed or that reduce navigational clearance by more than 5% from Chart Datum.

A total of 264 responses were received to the amendment of this existing marine licensing exemption. 38% of respondents supported the amendment of the existing exemption, 51% neither agreed nor disagreed and 8% disagreed. 3% of respondents did not express a view.

There was positive support from respondents for this change. Some respondents expressed the view that safety at sea must take precedence. It was also suggested that the proposals should not just be limited to scientific equipment, but also to the deposit of any other equipment likely to cause navigational difficulty. There was concern expressed by some respondents that this change would impede vital scientific data collection and evidence gathering; those deploying such instruments were thought to be generally competent persons and respondents stated that a small increase in risk should not lead to a disproportionate increase in costs arising from the requirement to have a marine licence. Some respondents stated that the proposed change was too strict and needed more nuance, for example to apply only in areas of high traffic. Some respondents queried the 5% threshold quoted and thought there was a need for more clarity, such as a list of affected instruments. Some commented that more detailed guidance was needed to understand how this measure would be implemented. One respondent suggested that consultation with navigational bodies prior to deployment of scientific instruments was preferable to changing the exemption. Another thought that marine plans could identify areas where scientific instruments could be deployed without the need for a marine licence.

After the close of the original consultation, we wrote to all those who had responded on this proposed change to point out an identified ambiguity in the original wording and offering a further short period to provide comment. This made clear that the scientific instruments that are considered to pose the greatest risk to navigational safety are those which are tethered to the seabed or that reduce navigational clearance by more than 5% from Chart Datum. One further consultation response was received, which suggested different approaches for different parts of the marine area.

Government response

We have considered the responses received through consultation and understand the concerns expressed by a small number of respondents. However, on balance we believe that navigational safety must take precedence. Those responsible for implementing maritime law and safety policy have expressed growing concern about scientific instruments that may be a potential risk to safe navigation. We believe that having one rule covering all affected scientific instruments is the simplest and most efficient solution, rather than having a range of different approaches in different areas, which might lead to potential confusion over the need to apply for a marine licence.

Action 5: We will amend the existing marine licence exemption to exclude those instruments that are considered to pose the greatest risk to safe navigation - those which are tethered to the seabed or that reduce navigational clearance by more than 5% from Chart Datum.

Amendment to existing exemption: maintenance of coast protection, drainage and flood defence works (Article 19)

The proposed amendment of this exemption will extend the range of authorities eligible to undertake activities under the exemption to all local authorities, not just coast protection authorities. It was also proposed to extend it to cover the Secretary of State for Defence to allow the Ministry of Defence to maintain its infrastructure without need for a licence. The proposed amendment also sought to clarify the scope of coast protection works that are eligible activities under the exemption.

A total of 262 responses were received to the amendment of this existing marine licensing exemption. 39% of respondents supported the amendment of the exemption, 49% neither agreed nor disagreed and 7% disagreed. 5% of respondents did not express a view.

Some respondents queried whether the organisations to which the exemption would be extended had the expertise to assess the impact of a coast protection scheme, particularly in protected and sensitive areas. One respondent also commented that no threshold or scale of works has been mentioned. Some respondents sought clarity on whether the exemption related to existing coast protection works or to new and altered coast protection works, and asked about what beach recycling and re-profiling involves. It was also suggested by some respondents that the scope of the exemption should be further extended to include other statutory authorities and to other works. It was suggested that Harbour Authorities should still be consulted on any works in their areas to ensure that navigational safety is properly considered.

Government response

Extending the scope of the marine licence exemption to include those local authorities that are not already coast protection authorities will enable them to benefit from this exemption when maintaining any existing coast protection, drainage or flood defence works. As with coast protection authorities, this exemption does not apply to activities being carried on outside of the existing boundaries of the works being maintained. This change should have no impact on any current requirements in relation to environmental impacts or consultation with Harbour Authorities.

We have taken account of responses that called for extending the scope of the exemption. We will explore these suggestions at the next available opportunity to review marine licensing exemptions – see Next Steps.

Action 6: We will amend the existing marine licence exemption to extend the scope of eligible bodies to include local authorities and the Secretary of State for Defence as well as coast protection authorities. The exemption will also be amended to clarify the scope of coast protection activities that are eligible under the exemption.

Amendment to exemption: emergency work in response to flood or flood risk (Article 20)

The proposed amendment to this exemption would remove the current requirement for the Environment Agency (EA), or those working on its behalf, to secure approval from the MMO prior to carrying out emergency works in response to any flood or the imminent risk of flood. This would be replaced with a requirement for the EA to notify the MMO no later than 72 hours after the emergency works commence.

A total of 272 responses were received to this proposed amendment of the existing exemption. 44% of respondents supported the amendment of the exemption, 45% neither agreed nor disagreed and 4% disagreed. 7% of respondents did not express a view.

Overall, there was positive support for this proposed change. However, one respondent considered that prior approval should still be needed with rapid response procedures put in place. Some respondents thought that ‘emergency’ needed to be defined and a list of possible works set out to avoid works being carried out that were not necessarily ‘an emergency’. Respondents stated that environmental impacts needed to be taken into account. Some respondents commented that the exemption should be extended to anyone with responsibility for emergency works and to include coastal erosion risks. One respondent considered that 72 hours added little real value. It was suggested that Harbour Authorities should continue to be consulted for navigational safety.

Government response

Most respondents seemed to agree that in the event of an emergency, the EA should be focussed on the task in hand and not seeking prior approval to carry out works. We have noted suggestions that replacing it with a 72-hour period of notification adds little value and consider that, instead, a 7-day period is a reasonable compromise position that will allow the MMO to retain an oversight of works being carried out and, as regulator, to intervene where it is considered necessary. This change should have no impact on any current requirements in relation to environmental impacts or consultation with Harbour Authorities.

We have taken account of responses that called for extending the scope of the exemption. We will explore these suggestions at the next available opportunity to review marine licensing exemptions – see Next Steps.

Action 7: We will amend the existing marine licence exemption to remove the current requirement for the Environment Agency (EA), or those working on its behalf, to secure approval from the MMO prior to carrying out emergency works and replace it with a requirement for the EA to notify the MMO no later than 7 days after the emergency works commence.

Amendment to exemption: use of vehicles to remove litter, seaweed or dead animals (Article 21)

The current exemption allows local authorities, or those acting on their behalf, to use vehicles to remove litter, seaweed or dead animals from beaches. It was proposed in the consultation to amend the exemption so that it applies to both beaches and other intertidal areas and to extend it to include activities undertaken on behalf of the Secretary of State for Defence.

A total of 264 responses were received to the amendment of this existing exemption. 68% of respondents supported the proposed change, 26% neither agreed nor disagreed and 3% disagreed. 3% did not express a view.

Overall, there was positive support for the proposed amendments to the marine licensing exemption. However, concern was expressed by some respondents about the removal of seaweed because of its value from an ecological and coastal protection perspective. Respondents also raised concern about the need to protect designated and sensitive areas from the over use of vehicles and machinery. Some respondents suggested that the exemption be extended to anyone with a responsibility for a beach or intertidal area. There was also concern that the Cetacean Strandings Investigation Programme (CSIP) should be able to continue with its activities.

Government response

The consultation responses have demonstrated support for the proposed amendment to the existing marine licensing exemption. The exemption will allow Local Authorities, or those working on their behalf, to remove seaweed, for example, that has accumulated on beaches or in the intertidal area following storm damage. The exemption will not impact on the activities of CSIP. The existing assessment and approval processes for protected and sensitive areas will not be changing.

We have taken account of responses that called for extending the scope of the exemption. We will explore these suggestions at the next available opportunity to review marine licensing exemptions – see Next Steps.

Since the consultation closed, the Ministry of Defence has confirmed that it does not require activities undertaken on behalf of the Secretary of State to be added to this exemption due to an existing exemption for defence activities.

Action 8: We will amend the existing marine licence exemption so that it applies to both beaches and other intertidal areas.

Amendment to exemption: moorings or aids to navigation (Article 25)

The proposed amendment of this marine licence exemption would remove the requirement on Harbour and Lighthouse Authorities, and those carrying out activity on their behalf, to provide prior notice to the MMO when carrying out relevant activity.

A total of 264 responses were received to the proposed amendment of the existing exemption. 45% of respondents agreed with the proposed change, 45% neither agreed nor disagreed and 5% disagreed. 5% did not express a view.

The consultation responses have demonstrated support for the amendment of this existing marine licensing exemption. One respondent commented that the proposed change would reduce the burden of licensing and reduce variability of reporting rigour between different Harbour Authorities. Some respondents commented that if an activity was deemed to be low risk or have a low impact it should be permitted without the need to notify the MMO. Some respondents argued that this activity should not be exempted because moorings can have significant impacts on seabed habitats and species. One respondent stated that new navigational aids should require a licence. A further argument made by some respondents was that this exemption should be extended to other organisations, such as coast protection authorities and navigation authorities.

Government response

Harbour and Lighthouse Authorities are navigational authorities responsible for activities within their jurisdiction and, as such, are well qualified to assess and understand the impact associated with the deposit or removal of moorings or aids to navigation. Furthermore, there are already assessment processes in place to ensure the protection of marine protected areas. However, we intend to maintain the requirement for prior notification to the MMO for those carrying out an activity with the consent of the harbour or lighthouse authority.

We have taken account of responses that called for extending the scope of the exemption. We will explore these suggestions at the next available opportunity to review marine licensing exemptions – see Next Steps.

Action 9: We will amend the existing marine licence exemption to remove the requirement on Harbour and Lighthouse Authorities to provide prior notice to the MMO when carrying out relevant activity.

Amendment to existing exemption: temporary markers (Article 26A)

The proposed amendment of this existing marine licence exemption will remove the current requirement for individuals and organisations to provide prior notice to the MMO when putting markers in place for less than 24 hours. Prior notice will still be required for markers in place for longer than 24 hours (but less than 28 days).

A total of 262 responses were received to the proposed amendment of this existing exemption. 42% of respondents supported the proposed change, 47% neither agreed nor disagreed and 6% disagreed. 5% of respondents did not express a view.

A number of respondents thought the timescales for this exemption should be altered. For example, 48 hours instead of 24 to allow for weekend events or to provide more flexibility if removal of markers was not possible due to weather conditions. Seven days was also suggested as a sensible exemption period. A respondent expressed support for the proposal as they thought it would remove red tape and unnecessary requirements for licence holders. Some respondents thought that markers deployed for less than 24 hours may still be hazardous to other marine users or have an impact on legitimate activity. One respondent thought that temporary markers intended to indicate a novel navigable hazard should be exempt irrespective of duration. Another respondent suggested that Harbour Authorities should be able to place temporary markers for up to 28 days without giving notice to the MMO.

Government response

We have taken into account the responses received on this proposed change and have noted that the majority of respondents supported the proposed change. On concerns about weather conditions not allowing the removal of markers within 24 hours, we are advised by the MMO that they have always taken a pragmatic approach to this and would consider individual cases on their particular merits. It is thought that in most cases this exemption will be used to allow divers to place temporary markers while they dive, with the markers then removed with other equipment when they leave the site within the 24-hour period. We do not at this point feel it is necessary to extend the 24-hour exemption for a longer period. For example, weekend events lasting 48 hours would be planned well in advance, giving sufficient time for notice to be given to the MMO.

Whilst we have considered the further changes suggested, we do not intend to depart from what has been set out in the consultation document at this time. Such further changes as have been suggested would require further discussion and consultation with any interested parties. We will revisit these suggestions when a future opportunity to review marine licencing exemptions arises – see Next Steps.

Action 10: We will amend the existing marine licence exemption to remove the requirement for individuals and organisations to provide prior notice to the MMO when putting markers in place for less than 24 hours. Prior notice will still be required for markers in place for longer than 24 hours (but less than 28 days).

Amendment to existing exemption: diver trails within restricted areas (Article 31)

A marine licensing exemption is currently in place for a deposit or removal activity when placing, securing or removing signage or other identification relating to a wreck in a restricted area (as defined in section 1 of the Protection of Wrecks Act 1973). It is proposed that this exemption is extended to include scheduled monuments (as defined in section 1 of the Ancient Monuments and Archaeological Areas Act 1979) and to include the Protection of Military Remains Act 1986.

A total of 263 responses were received to the proposed amendment of this existing exemption. 55% of respondents agreed supported the proposed change, 37% neither agreed nor disagreed and 4% disagreed. 4% of respondents did not express a view.

There was positive support for the proposed change to the existing marine licensing exemption; that the exemption would be extended to cover all heritage assets under the relevant legislation and not limited just to shipwrecks. Some respondents commented that these were pragmatic proposals that would benefit divers, with little adverse consequences. Another respondent said that diver trails help inexperienced divers to navigate an area safely and to get the most out of their dive – they were to be encouraged but also managed so overuse did not spoil what people came to see. Another respondent thought that this activity should not be exempted as a matter of course and that other mechanisms (such as pre-assessment of a range of activities) should be put in place instead.

Government response

The consultation responses have demonstrated majority support for the proposed amendment of this existing marine licensing exemption. We consulted on extending the exemption to cover other heritage assets and other Acts of Parliament and not on whether the exemption should be removed. We remain of the view that exemptions allow the MMO to be proportionate in its regulation of the marine environment and make the marine licensing process more efficient and cost effective in appropriate circumstances.

Action 11: We will amend the existing marine licence exemption by extending it to include scheduled monuments (as defined in section 1 of the Ancient Monuments and Archaeological Areas Act 1979) and to include the Protection of Military Remains Act 1986.

Amendment to existing exemption: cables and pipeline – authorised emergency inspection or repair (Article 34)

The proposed amendment to this existing marine licensing exemption is to remove the current requirement for cable and pipeline operators to obtain prior approval from the MMO for emergency inspection or repair works. This would be replaced by a requirement to notify the MMO within 24 hours of commencement of the emergency works. It was also proposed to amend the exemption to clarify that it did not apply to cable and pipeline protection works.

A total of 264 responses were received to this proposed amendment of the existing marine licensing exemption. 36% of respondents supported the proposed change, 56% neither agreed nor disagreed and 4% disagreed. 4% of respondents did not express a view.

Most respondents supported the removal of the requirement to provide prior notification to the MMO of emergency works. A small number of responses thought that approval should still be required and responsive mechanisms (such as pre-assessment of a range of activities) put in place to achieve that. The proposed amendment to clarify protection works received less support. Some respondents considered that the MMO should not restrict its ability to exercise discretion on whether additional protection is ancillary to the emergency repair of the cable or pipeline. A wind farm operator pointed out that there were significant cost and resource implications for the offshore wind industry of leaving a cable exposed while a marine licence application was prepared and sought.

After the close of the original consultation, we wrote to all those who had responded to point out a minor error in the original wording of the proposed amendment and offering a further, short period to provide comments. Where the consultation document had said there would be a requirement to notify the MMO “within 24 hours of completion” of the emergency works”, this should have read “within 24 hours of commencement”.

Government response

The consultation responses have demonstrated majority support for the proposed amendment of this existing marine licensing exemption in relation to the removal of the requirement to provide prior notice to the MMO. We have now clarified that the period for notifying the MMO should be within 24 hours of commencement of the emergency works. This is still an improvement on the current situation and will allow the planning and commencement of such works to take place rapidly. It also provides an appropriate safeguard for the MMO to intervene if it thinks it appropriate to do so. No objection to this clarification was raised by respondents.

We have noted concerns expressed around the proposed amendment relating to clarifying the scope of protection works. Government is of the view that cable and pipeline protection activities do not fall within the exemption because they are ancillary to the emergency repair of a pipeline or cable and the emergency situation will have ended by the time the protection activity takes place. This clarity will hopefully be useful to those needing to make use of this exemption.

Action 12: We will amend the existing marine licence exemption by removing the current requirement for cable and pipeline operators to obtain prior approval from the Marine Management Organisation (MMO) for emergency inspection or repair works. This would be replaced by a requirement to notify the MMO within 24 hours of commencement of the emergency works. The exemption will also be amended to clarify that it does not apply to cable and pipeline protection works.

Next steps

Following publication of this government response on consultation responses we will take forward steps to make amendments to the Marine Licensing (Exempted Activities) Order 2011 (as amended) in order to enact the agreed changes to marine licence exemptions as set out in this document and list of actions (see Annex A).

The agreed changes to marine licence exemptions will come into effect at the earliest available opportunity.

In undertaking this review of marine licensing exemptions we have focused on those organisations with statutory responsibilities, relevant accountability and expertise, and have therefore not extended the application of any exemptions to other organisations at this time. Whilst there is no formal requirement for when marine licensing exemptions are reviewed, we anticipate scoping the potential need for a further review of marine licensing exemptions before the end of 2020, and will include consideration of suggestions made, within responses to the consultation, to extend the scope of organisations eligible to operate under marine licensing exemptions, in scoping the next review.

Annex A – list of actions

Action 1: We will introduce a new marine licensing exemption to allow for the recovery of marine litter and abandoned, discarded or lost fishing gear by divers.

Action 2: We will introduce a new marine licensing exemption to allow the use of vehicles and vessels by a Harbour Authority to remove marine litter and debris.

Action 3: We will introduce a new marine licensing exemption to allow for the in-water cleaning of lightly fouled vessels.

Action 4: We will retain the current exemption for shellfish propagation and cultivation.

Action 5: We will amend the existing marine licence exemption to exclude those instruments that are considered to pose the greatest risk to safe navigation - those which are tethered to the seabed or that reduce navigational clearance by more than 5% from Chart Datum.

Action 6: We will amend the existing marine licence exemption to extend the scope of eligible bodies to include local authorities and the Secretary of State for Defence as well as coast protection authorities. The exemption will also be amended to clarify the scope of coast protection activities that are eligible under the exemption.

Action 7: We will amend the existing marine licence exemption to remove the current requirement for the Environment Agency (EA), or those working on its behalf, to secure approval from the Marine Management Organisation (MMO) prior to carrying out emergency works and replace it with a requirement for the EA to notify the MMO within 7 days of the emergency works commencing.

Action 8: We will amend the existing marine licence exemption so that it applies to both beaches and other intertidal areas.

Action 9: We will amend the existing marine licence exemption to remove the requirement on Harbour and Lighthouse Authorities to provide prior notice to the MMO when carrying out relevant activity.

Action 10: We will amend the existing marine licence exemption to remove the requirement remove the current requirement for individuals and organisations to provide prior notice to the MMO when putting markers in place for less than 24 hours. Prior notice will still be required for markers in place for longer than 24 hours (but less than 28 days).

Action 11: We will amend the existing marine licence exemption by extending it to include scheduled monuments (as defined in section 1 of the Ancient Monuments and Archaeological Areas Act 1979) and to include the Protection of Military Remains Act 1986.

Action 12: We will amend the existing marine licence exemption by removing the current requirement for cable and pipeline operators to obtain prior approval from the MMO for emergency inspection or repair works. This would be replaced by a requirement to notify the MMO within 24 hours of commencement of the emergency works. The exemption will also be amended to clarify that it does not apply to cable and pipeline protection works.