Marine licensing applications: when decisions can go to government ministers
The process and criteria for the recovery of marine licence applications for decision by ministers.
The Marine Management Organisation (MMO) is generally responsible for taking decisions on marine licensing applications. In some circumstances it can refer an application to government ministers for a decision rather than making a licensing decision itself.
When certain criteria apply, the MMO will refer an application to ministers so they can decide whether to recover it. If ministers recover the application, they will set up a public inquiry. Ministers will then make the final decision on the application.
These referrals from the MMO go to ministers responsible for the Department for the Environment, Food and Rural Affairs (Defra).
Criteria for recovery
For ministers to recover a marine licensing application, it must meet all 3 of the following criteria:
- it falls in band 3 of MMO’s licence charging scheme, covering the larger and more complex projects
- it is for an activity taking place wholly or partly in English waters up to 6 nautical miles from the coast
- it could have a significant effect and raise issues appropriate for examination in an inquiry
Request a referral
Individuals or organisations can ask a Local Planning Authority (LPA) or Inshore Fisheries and Conservation Authority (IFCA) to request that the MMO refers an application to ministers if they think it meets the 3 criteria.
Who can ask the MMO to make a referral
A Local Planning Authority (LPA) or Inshore Fisheries and Conservation Authority (IFCA) can advise the MMO that they consider an application meets all the 3 criteria for referral to Defra ministers. They should do this during the consultation period on the application. The MMO must refer the application to Defra ministers if an LPA or IFCA advises that it meets all 3 criteria.
LPAs in the devolved administrations can also advise the MMO that the 3 criteria apply because of potential cross-border effects.
An LPA or IFCA could be affected by a proposed activity because it would take place within their area or near to it. They might also be affected because of the combined effects of several activities occurring over a wider area.
How the referral process works
The MMO will let the applicant, the LPA and IFCA know if it has referred an application to Defra ministers. It will do this at the end of an application’s consultation period. Defra will let other interested parties know.
Within 4 weeks of the MMO referring an application, Defra ministers will aim to make a decision on how to proceed. They will decide whether to recover an application, not recover or suspend their decision until a later point in the process. The ministers’ decision will be based on the criteria set out in legislation.
The government’s intention is that the policy will be highly selective and that only a very small proportion of marine licensing cases will be recovered.
If an application is not recovered by ministers, it will go back to the MMO for a decision.
Ministers may recover an application for an activity which meets both of the following criteria:
there are issues of national significance which are not sufficiently addressed in marine policy guidance
an examination in an inquiry would be appropriate.
The MMO will decide whether to refer the application to ministers. This does not require a request from an LPA or IFCA.
Recovered applications that go to public inquiry
If ministers decide to recover the application, they will set up a public inquiry. The inquiry will be held by an independent inspector appointed by the Planning Inspectorate (PINS).
Interested parties can attend the inquiry and submit further evidence to the inquiry. You will be able to find detailed guidance on the inquiry stage from the Planning Inspectorate.
After the inquiry, the inspector will submit a report and recommendation to ministers who will make the final decision and issue the decision letter.
The MMO will continue to carry out other licensing functions such as monitoring and enforcement.
There is a right of appeal against a decision by ministers on an application that is recovered. The government will be making changes to the appeals regulations so that any appeal following an inquiry goes to the First Tier Tribunal.
Defra ministers have issued detailed statutory guidance to the MMO on how this process should work. The detailed guidance is available by contacting Defra at: firstname.lastname@example.org or the MMO at: email@example.com.
You can also read the Order revising the delegation of licensing functions to the MMO.